Consti Cases

Facts:
In her COC for presidency for the May 2016 elections, Grace Poe declared that she is
a natural-born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be 10 years and 11 months counted from 24 May 2005.
May 24, 2005 was the day she came to the Philippines after deciding to stay in the
PH for good. Before that however, and even afterwards, she has been going to and
fro between US and Philippines. She was born in 1968, found as newborn infant in
Iloilo, and was legally adopted. She immigrated to the US in 1991 and was
naturalized as American citizen in 2001. On July 18, 2006, the BI granted her petition
declaring that she had reacquired her Filipino citizenship under RA 9225. She
registered as a voter and obtained a new Philippine passport. In 2010, before
assuming her post as an appointed chairperson of the MTRCB, she renounced her
American citizenship to satisfy the RA 9225 requirement . From then on, she
stopped using her American passport.
Petitions were filed before the COMELEC to deny or cancel her candidacy on the
ground particularly, among others, that she cannot be considered a natural-born
Filipino citizen since she cannot prove that her biological parents or either of them
were Filipinos. The COMELEC en banc cancelled her candidacy on the ground that
she is in want of citizenship and residence requirements, and that she committed
material misrepresentations in her COC.
On certiorari, the SC reversed the ruling and held (9-6 votes) that Poe is qualified as
a candidate for Presidency. Three justices, however, abstained to vote on the natural-
born citizenship issue.
Issue 1: W/N the COMELEC has jurisdiction to rule on the issue of qualifications of
candidates (Read Dissent)
Held:
No. Article IX-C, Sec 2 of the Constitution provides for the powers and functions of
the COMELEC, and deciding on the qualifications or lack thereof of a candidate is
not one among them.
In contrast, the Constitution provides that only the SET and HRET tribunals have
sole jurisdiction over the election contests, returns, and qualifications of their
respective members, whereas over the President and Vice President, only the SC en
banc has sole jurisdiction. As for the qualifications of candidates for such positions, the
Constitution is silent. There is simply no authorized proceeding in determining
the ineligibility of candidates before elections. Such lack of provision cannot be
supplied by a mere rule, and for the COMELEC to assimilate grounds
for ineligibility into grounds for disqualification in Rule 25 in its rules of procedures
would be contrary to the intent of the Constitution.
Hence, the COMELEC committed grave abuse of discretion when it decided on the
qualification issue of Grace as a candidate in the same case for cancellation of her
COC.
Issue 2: W/N Grace Poe-Llamanzares is a natural-born Filipino citizen (Read
Dissent)
Held:
Yes, Grace Poe might be and is considerably a natural-born Filipino. For that, she
satisfies one of the constitutional requirements that only natural-born Filipinos may
run for presidency.
First, there is a high probability that Grace Poes parents are Filipinos. Her physical
features are typical of Filipinos. The fact that she was abandoned as an infant in a
municipality where the population of the Philippines is overwhelmingly Filipinos
such that there would be more than 99% chance that a child born in such province is
a Filipino is also a circumstantial evidence of her parents nationality. That
probability and the evidence on which it is based are admissible under Rule 128,
Section 4 of the Revised Rules on Evidence. To assume otherwise is to accept the
absurd, if not the virtually impossible, as the norm.
Second, by votes of 7-5, the SC pronounced that foundlings are as a class, natural-
born citizens. This is based on the finding that the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be
covered by the enumeration. While the 1935 Constitutions enumeration is silent
as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with
respect to foundlings, the SC felt the need to examine the intent of the framers.
Third, that foundlings are automatically conferred with natural-born citizenship is
supported by treaties and the general principles of international law. Although the
Philippines is not a signatory to some of these treaties, it adheres to the customary
rule to presume foundlings as having born of the country in which the foundling is
found.
Issue 3: W/N Grace Poe satisfies the 10-year residency requirement
Held:
Yes. Grace Poe satisfied the requirements of animus manendi coupled with animus
revertendi in acquiring a new domicile.
Grace Poes domicile had been timely changed as of May 24, 2005, and not on July
18, 2006 when her application under RA 9225 was approved by the BI. COMELECs
reliance on cases which decree that an aliens stay in the country cannot be counted
unless she acquires a permanent resident visa or reacquires her Filipino citizenship
is without merit. Such cases are different from the circumstances in this case, in
which Grace Poe presented an overwhelming evidence of her actual stay and intent
to abandon permanently her domicile in the US. Coupled with her eventual
application to reacquire Philippine citizenship and her familys actual continuous
stay in the Philippines over the years, it is clear that when Grace Poe returned on
May 24, 2005, it was for good.
Issue 4: W/N the Grace Poes candidacy should be denied or cancelled for
committing material misrepresentations in her COC
Held:
No. The COMELEC cannot cancel her COC on the ground that she misrepresented
facts as to her citizenship and residency because such facts refer to grounds for
ineligibility in which the COMELEC has no jurisdiction to decide upon. Only when
there is a prior authority finding that a candidate is suffering from a disqualification
provided by law or the Constitution that the COMELEC may deny due course or
cancel her candidacy on ground of false representations regarding her qualifications.
In this case, by authority of the Supreme Court Grace Poe is now pronounced
qualified as a candidate for the presidency. Hence, there cannot be any false
representations in her COC regarding her citizenship and residency. ##
G.R. No. 221538, September 20, 2016
RIZALITO Y. DAVID, Petitioner, v. SENATE ELECTORAL TRIBUNAL AND
MARY GRACE POE-LLAMANZARES, Respondents.
DECISION
LEONEN, J.:
The words of our most fundamental law cannot be read so as to callously exclude all
foundlings from public service.
When the names of the parents of a foundling cannot be discovered despite a

diligent search, but sufficient evidence is presented to sustain a reasonable inference
that satisfies the quantum of proof required to conclude that at least one or both of
his or her parents is Filipino, then this should be sufficient to establish that he or she
is a natural-born citizen. When these inferences are made by the Senate Electoral
Tribunal in the exercise of its sole and exclusive prerogative to decide the
qualifications of the members of the Senate, then there is no grave abuse of
discretion remediable by either Rule 65 of the Rules of Court or Article VIII, Section I
of the Constitution.
This case certainly does not decide with finality the citizenship of every single
foundling as natural-born. The circumstances of each case are unique, and
substantial proof may exist to show that a foundling is not natural-born. The nature
of the Senate Electoral Tribunal and its place in the scheme of political powers, as
devised by the Constitution, are likewise different from the other ways to raise
questions of citizenship.
Before this Court is a Petition for Certiorari1 filed by petitioner Rizalito Y. David
(David). He prays for the nullification of the assailed November 17, 2015 Decision
and December 3, 2015 Resolution of public respondent Senate Electoral Tribunal in
SET Case No. 001-15.2 The assailed November 17, 2015 Decision3dismissed the
Petition for Quo Warranto filed by David, which sought to unseat private
respondent Mary Grace Poe-Llamanzares as a Senator for allegedly not being a
natural-born citizen of the Philippines and, therefore, not being qualified to hold
such office under Article VI, Section 34 of the 1987 Constitution. The assailed
December 3, 2015 Resolution5 denied David's Motion for Reconsideration.
Senator Mary Grace Poe-Llamanzares (Senator Poe) is a foundling whose biological

parents are unknown. As an infant, she was abandoned at the Parish Church of Jaro,
Iloilo.6 Edgardo Militar found her outside the church on September 3, 1968 at about
9:30 a.m.7 He later turned her over to Mr. and Mrs. Emiliano Militar.8 Emiliano
Militar reported to the Office of the Local Civil Registrar that the infant was found
on September 6, 1968.9 She was given the name Mary Grace Natividad Contreras
Militar.10 Local Civil Registrar issued a Certificate of Live Birth/Foundling
Certificate stating:ChanRoblesVirtualawlibrary
Circumstances: THE SUBJECT CHILD WAS FOUND IN THE PARISH CHURCHD
[sic] OF JARO, ON SEPTEMBER 3, 1968 AT ABOUT 9:30 A.M. BY EDGARDO
MILITAR AND THE SAID CHILD IS PRESENTLY IN THE CUSTODY OF MR.
AND MRS. EMILIANO MILITAR AT STA. ISABEL STREET, JARO . .
.11chanroblesvirtuallawlibrary
On May 13, 1974, the Municipal Court of San Juan, Rizal promulgated the Decision
granting the Petition for Adoption of Senator Poe by Spouses Ronald Allan Poe
(more popularly known as Fernando Poe, Jr.) and Jesusa Sonora Poe (more
popularly known as Susan Roces).12 The Decision also ordered the change in Senator
Poe's name from Mary Grace Natividad Contreras Militar to Mary Grace Natividad
Sonora Poe.13 October 27, 2005, Clerk of Court III Eleanor A. Sorio certified that the
Decision had become final in a Certificate of Finality.14chanrobleslaw
On April 11, 1980, the Office of Civil Registrar-Iloilo received the Decision of the San
Juan Court Municipal Court and noted on Senator Poe's foundling certificate that
she was adopted by Spouses Ronald Allan and Jesusa Poe.15 This hand-written
notation appears on Senator Poe's foundling certificate:ChanRoblesVirtualawlibrary
NOTE: Adopted child by the Spouses Ronald Allan Poe and Jesusa Sonora Poe as
per Court Order, Mun. Court, San Juan, Rizal, by Hon. Judge Alfredo M. Gorgonio
dated May 13, 1974, under Sp. Proc. No. 138.16chanroblesvirtuallawlibrary
Senator Poe became a registered voter in Greenhills, San Juan, Metro Manila when
she turned 18 years old.17 The Commission on Elections issued her a Voter's
Identification Card for Precinct No. 196, Greenhills, San Juan, Metro Manila on
December 13, 1986.18chanrobleslaw
On April 4, 1988, the Department of Foreign Affairs issued her a Philippine

passport.19 Her passport was renewed on April 5, 1993, May 19, 1998, October 13,
2009, December 19, 2013, and March 18, 2014.20Having become Senator, she was also
issued a Philippine diplomatic passport on December 19, 2013.21chanrobleslaw
Senator Poe took Development Studies at the University of the Philippines, Manila,
but eventually went to the United States in 1988 to obtain her college degree.22 In
1991, she earned a bachelor's degree in Political Science from Boston College,
Chestnut Hill, Massachusetts.23chanrobleslaw
On July 27, 1991, Senator Poe married Teodoro Misael Daniel V. Llamanzares, both
an American and Filipino national since birth.24 The marriage took place in
Sanctuario de San Jose Parish, San Juan, Manila.25cralawred On July 29, 1991, Senator
Poe returned to the United States with her husband.26 For some time, she lived with
her husband and children in the United States.27chanrobleslaw
Senator Poe and her husband had three (3) children: Brian Daniel (Brian), Hanna
MacKenzie (Hanna), and Jesusa Anika (Anika).28 Brian was born in the United States
on April 16, 1992. Hanna was born on July 10, 1998, and Anika on June 5, 2004. Both
Hanna and Anika were born in the Philippines.29chanrobleslaw
Senator Poe was naturalized and granted American citizenship on October 18,
2001.30 She was subsequently given a United States passport.31chanrobleslaw
Senator Poe's adoptive father, Fernando Poe, Jr., ran for President of the Republic of
the Philippines in the 2004 National Elections.32 To support her father's candidacy,
Senator Poe and her daughter Hanna returned to the Philippines on April 8,
2004.33 After the Elections, she returned to the United States on July 8, 2004.34 It was
during her stay in the Philippines that she gave birth to her youngest daughter,
Anika.35chanrobleslaw
Fernando Poe, Jr. was hospitalized on December 11, 2004 and eventually "slipped
into a coma."36 Senator Poe returned to the Philippines on December 13, 2004.37 On
December 14, 2004, her father died.38 She stayed in the country until February 3, 2005
to attend her father's funeral and to attend to the settling of his
estate.39chanrobleslaw
In 2004, Senator Poe resigned from work in the United States. She never looked for
work again in the United States.40chanrobleslaw
Senator Poe decided to return home in 2005.41 After consulting her children, they all
agreed to return to the Philippines to support the grieving Susan Roces.42 In early
2005, they notified Brian and Hanna's schools Virginia, United States that they
would be transferring to the Philippines the following semester.43She came back on
May 24, 2005.44 Her children also arrived in the first half of 2005.45 However, her
husband stayed in the United States to "finish pending projects, and to arrange for
the sale of the family home there."46chanrobleslaw
Following her return, Senator Poe was issued by the Bureau of Internal Revenue a
Tax Identification Number (TIN) on July 22, 2005.47chanrobleslaw
On July 7, 2006, Senator Poe took the Oath of Allegiance to Republic of the
Philippines:48
I, Mary Grace Poe Llamanzares, solemnly swear that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of
evasion.49chanroblesvirtuallawlibrary
On July 10, 2006, Senator Poe filed a Petition for Retention and or Re-acquisition of
Philippine Citizenship through Republic Act No. 9225.50 She also "filed applications
for derivative citizenship on behalf of her three children who were all below
eighteen (18) years of age at that time."51chanrobleslaw
The Petition was granted by the Bureau of Immigration and Deportation on July 18,
2006 through an Order signed by Associate Commissioner Roy M. Almoro for
Commissioner Alipio F. Fernandez, Jr:52
A careful review of the documents submitted in support of the instant petition
indicate that David was a former citizen of the Republic of the Philippines being
born to Filipino parents and is presumed to be a natural born Philippine citizen;
thereafter, became an American citizen and is now a holder of an American
passport; was issued an ACT and ICR and has taken her oath of allegiance to the
Republic of the Philippines on July 7, 2006 and so is thereby deemed to have re-
acquired her Philippine Citizenship.53 (Emphasis in the original)
In the same Order, Senator Poe's children were "deemed Citizens of the Philippines
in accordance with Section 4 of R[epublic] A[ct] No. 9225."54 Until now, the Order
"has not been set aside by the Department of Justice or any other agency of
Government."55chanrobleslaw
On July 31, 2006, the Bureau of Immigration issued Identification Certificates in the
name of Senator Poe and her children.56 It stated that Senator Poe is a "citizen of the
Philippines pursuant to the Citizenship Retention and Re-acquisition Act of 2003 . . .
in relation to Administrative Order No. 91, Series of 2004 and Memorandum
Circular No. AFF-2-005 per Office Order No. AFF-06-9133 signed Associate
Commissioner Roy M. Almoro dated July 18, 2006."57chanrobleslaw
Senator Poe became a registered voter of Barangay Santa Lucia, San Juan City on
August 31, 2006.58chanrobleslaw
Senator Poe made several trips to the United States of America between 2006 and
2009 using her United States Passport No. 170377935.59 She used her passport "after
having taken her Oath of Allegiance to the Republic on 07 July 2006, but not after she
has formally renounced her American citizenship on 20 October 2010."60 The
following are the flight records given by the Bureau of
Immigration:ChanRoblesVirtualawlibrary
Departures Flight No.
November 1, 2006 SQ071
July 20, 2007 PR730
October 31, 2007 PR300
April 20, 2009 PR104
July 31, 2009 PR730
November 15, 2009 PR103

December 27, 2009 PR112
March 27, 2010 PR102
Arrivals Flight No.
November 4, 2006 SQ076
July 23, 2007 PR731
May 8, 2008 PR103
May 21, 2009 PR105
August 3, 2009 PR733

On October 6, 2010, President Benigno Simeon Aquino III appointed Senator Poe as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).62 On October 20, 2010, Senator Poe executed an Affidavit of Renunciation
of Allegiance to the United States of America and Renunciation of American
Citizenship,63 stating:
chanRoblesvirtualLawlibraryI, MARY GRACE POE-LLAMANZARES, Filipino, of

legal age, and presently residing at No. 107 Rodeo Drive, Corinthian Hills, Quezon
City, Philippines, after having been duly sworn to in accordance with the law, do
hereby depose and state that with this affidavit, I hereby expressly and voluntarily
renounce my United States nationality/American citizenship, together with all
rights and privileges and all duties and allegiance and fidelity thereunto pertaining.
I make this renunciation intentionally, voluntarily, and of my own free will, free of
any duress or undue influence.64 (Emphasis in the original)
The affidavit was submitted to the Bureau of Immigration on October 21, 2010.65 On
October 21, 2010, she took her Oath of Office as MTRCB Chairperson and assumed
office on October 26, 2010.66 Her oath of office stated:ChanRoblesVirtualawlibrary
PANUNUMPA SA KATUNGKULAN
Ako, si MARY GRACE POE LLAMANZARES, na itinalaga sa katungkulan

bilang Chairperson, Movie and Television Review and Classification Board, ay taimtim na
nanunumpa na tutuparin ko nang buong husay at katapatan, sa abot ng aking
kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan at ng mga iba
pang pagkaraan nito'y gagampanan ko sa ilalim ng Republika ng Pilipinas; na aking
itataguyod at ipagtatanggol ang Saligan Batas ng Pilipinas; na tunay na mananalig at
tatalima ako rito; na susundin ko ang mga batas, mga kautusang lega, at mga
dekretong pinaiiral ng mga sadyang itinakdang may kapangyarihan ng Republika
ng Pilipinas; at kusa kong babalikatin ang pananagutang ito, nang walang ano mang
pasubali o hangaring umiwas.
Kasihan nawa ako ng Diyos.
NILAGDAAN AT PINANUMPAAN sa harap ko ngayong ika-21 ng Oktubre 2010,

Lungsod ng Maynila, Pilipinas.67 (Emphasis in the original)
Senator Poe executed an Oath/Affirmation of Renunciation of Nationality of the
United States68 in the presence of Vice-Consul Somer E. Bessire-Briers on July 12,
2011.69 On this occasion, she also filled out the Questionnaire Information for
Determining Possible Loss of U.S. Citizenship.70 On December 9, 2011, Vice Consul
Jason Galian executed a Certificate of Loss of Nationality for Senator Poe.71 The
certificate was approved by the Overseas Citizen Service, Department of State, on
February 3, 2012.72chanrobleslaw
Senator Poe decided to run as Senator in the 2013 Elections.73 On September 27, 2012,
she executed a Certificate of Candidacy, which was submitted to the Commission on
Elections on October 2, 2012.74 She won and was declared as Senator-elect on May
16, 2013.75chanrobleslaw
David, a losing candidate in the 2013 Senatorial Elections, filed before the Senate
Electoral Tribunal a Petition for Quo Warranto on August 6, 2015.76 He contested the
election of Senator Poe for failing to "comply with the citizenship and residency
requirements mandated by the 1987 Constitution."77chanrobleslaw
Thereafter, the Senate Electoral Tribunal issued Resolution No. 15-01 requiring
David "to correct the formal defects of his petition."78 David filed his amended
Petition on August 17, 2015.79chanrobleslaw
On August 18, 2015, Resolution No. 15-02 was issued by the Senate Electoral
Tribunal, through its Executive Committee, ordering the Secretary of the Senate
Electoral Tribunal to summon Senator Poe to file an answer to the amended
Petition.80chanrobleslaw
Pending the filing of Senator Poe's answer, David filed a Motion Subpoena the
Record of Application of Citizenship Re-acquisition and related documents from the
Bureau of Immigration on August 25, 2015.81The documents requested included
Senator Poe's record of travels and NSO kept Birth Certificate.82 On August 26, 2015,
the Senate Electoral Tribunal issued Resolution No. 15-04 granting the Motion.83 The
same Resolution directed the Secretary of the Tribunal to issue a subpoena to the
concerned officials of the Bureau of Immigration and the National Statistics
Office.84 The subpoenas ordered the officials to appear on September 1, 2015 at 10:00
a.m. before the Office of the Secretary of the Senate bearing three (3) sets of the
requested documents.85 The subpoenas were complied with by both the Bureau of
Immigration and the National Statistics Office on September 1, 2015.86chanrobleslaw
On September 1, 2015, Senator Poe submitted her Verified Answer with (1) Prayer
for Summary Dismissal; (2) Motion for Preliminary Hearing on Grounds for
Immediate Dismissal/Affirmative Defenses; (3) Motion to Cite David for Direct
Contempt of Court; and (4) Counterclaim for Indirect Contempt of
Court.87chanrobleslaw
On September 2, 2015, the Senate Electoral Tribunal issued Resolution No. 15-05
requiring the parties to file a preliminary conference brief on or before September 9,
2015.88 The Resolution also set the Preliminary Conference on September 11,
2015.89 During the Preliminary Conference, the parties "agreed to drop the issue of
residency on the ground of prescription."90chanrobleslaw
Oral arguments were held by the Senate Electoral Tribunal on September 21,
2015.91 The parties were then "required to submit their respective [memoranda],
without prejudice to the submission of DNA evidence by [Senator Poe] within thirty
(30) days from the said date."92chanrobleslaw
On October 21, 2015, Senator Poe moved to extend for 15 days the submission of
DNA test results.93 The Senate Electoral Tribunal granted the Motion on October 27,
2015 through Resolution No. 15-08.94 On November 5, 2015, Senator Poe filed a
Manifestation regarding the results of DNA Testing,95 which stated that "none of the
tests that [Senator Poe] took provided results that would shed light to the real
identity of her biological parents."96 The Manifestation also stated that Senator Poe
was to continue to find closure regarding the issue and submit any development to
the Senate Electoral Tribunal. Later, Senator Poe submitted "the issue of her natural-
born Filipino citizenship as a foundling for resolution upon the legal arguments set
forth in her submissions to the Tribunal."97 On November 6, 2015, through
Resolution No. 15-10, the Senate Electoral Tribunal "noted the [M]anifestation and
considered the case submitted for resolution."98chanrobleslaw
On November 17, 2015, the Senate Electoral Tribunal promulgated its assailed
Decision finding Senator Poe to be a natural-born citizen and, therefore, qualified to
hold office as Senator.99 The Decision stated:ChanRoblesVirtualawlibrary
We rule that Respondent is a natural-born citizen under the 1935 Constitution and
continue to be a natural-born citizen as defined under the 1987 Constitution, as she is
a citizen of the Philippines from birth, without having to perform any act to acquire
or perfect (her) Philippine citizenship.
....
In light of our earlier pronouncement that Respondent is a natural-born Filipino

citizen, Respondent validly reacquired her natural-born Filipino citizenship upon
taking her Oath of Allegiance to the Republic of the Philippines, as required under
Section 3 of R.A. No. 9225.
Under Section 11 of B.I. Memorandum Circular No. AFF 05-002 (the Revised Rules
Implementing R.A. No. 9225), the foregoing Oath of Allegiance is the "final act" to
reacquire natural-born Philippine citizenship.
....
To repeat, Respondent never used her USA passport from the moment she
renounced her American citizenship on 20 October 2010. She remained solely a
natural-born Filipino citizen from that time on until today.
WHEREFORE, in view of the foregoing, the petition for quo warranto is

DISMISSED.
No pronouncement as to costs.
SO ORDERED.100 (Citations omitted)

On November 23, 2015, David moved for reconsideration.101 The Senate Electoral
Tribunal issued Resolution No. 15-11 on November 24, 2015, giving Senator Poe five
(5) days to comment on the Motion for Reconsideration.102chanrobleslaw
Senator Poe filed her Comment/Opposition to the Motion for Reconsideration on

December 1, 2015.103David's Motion for Reconsideration was denied by the Senate
Electoral Tribunal on December 3, 2015:104
WHEREFORE, the Tribunal resolves to DENY the Verified Motion for Reconsideration
(of the Decision promulgated on 17 November 2015) of David Rizalito Y. David dated 23
November 2015.
The Tribunal further resolves to CONFIRM Resolution No. 15-11 dated 24

November 2015 issued by the Executive Committee of the Tribunal; to NOTE the
Comment/Opposition filed by counsel for Respondent on 01 December 2015;
to GRANT the motion for leave to appear and submit memorandum as amici
curiae filed by Dean Arturo de Castro [and to] NOTE the Memorandum (for
Volunteer Amicus Curiae) earlier submitted by Dean de Castro before the
Commission on Elections in SPA No. 15-139 (DC), entitled "Amado D. Valdez,
Petitoner, versus Mary Grace Natividad Sonora Poe Llaman[z]ares, Respondent."
SO ORDERED.105 (Emphasis in the original)

On December 8, 2015, the Senate Electoral Tribunal's Resolution was received by
David.106 On December 9, 2015, David filed the pre Petition for Certiorari before this
Court.107chanrobleslaw
On December 16, 2015, this Court required the Senate Electoral Tribunal and Senator
Poe to comment on the Petition "within a non-extendible period of fifteen (15) days
from notice."108 The Resolution also set oral arguments on January 19, 2016.109 The
Senate Electoral Tribunal, through the Office of the Solicitor General, submitted its
Comment on December 30, 2015.110 Senator Poe submitted her Comment on January
4, 2016.111chanrobleslaw
This case was held in abeyance pending the resolution of the Commission on
Elections case on the issue of private respondent's citizenship.
For resolution is the sole issue of whether the Senate Electoral Tribunal committed
grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing
petitioner's Petition for Quo Warranto based on its finding that private respondent is
a natural-born Filipino citizen, qualified to hold a seat as Senator under Article VI,
Section 3 of the 1987 Constitution.
I
Petitioner comes to this Court invoking our power of judicial review through a
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He seeks to
annul the assailed Decision and Resolution of the Senate Electoral Tribunal, which
state its findings and conclusions on private respondent's citizenship.
Ruling on petitioner's plea for post-judgment relief calls for a consideration of two
(2) factors: first, the breadth of this Court's competence relative to that of the Senate
Electoral Tribunal; and second, the nature of the remedial vehiclea petition for
certiorarithrough which one who is aggrieved by a judgment of the Senate
Electoral Tribunal may seek relief from this Court.
I. A
The Senate Electoral Tribunal, along with the House of Representatives Electoral
Tribunal, is a creation of Article VI, Section 17 of the 1987 Constitution:112
ARTICLE VI
The Legislative Department
....
SECTION 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to
be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman. (Emphasis supplied)
Through Article VI, Section 17, the Constitution segregates from all other judicial
and quasi-judicial bodies (particularly, courts and the Commission on Elections113)
the power to rule on contests114 relating to the election, returns, and qualifications of
members of the Senate (as well as of the House of Representatives). These powers
are granted to a separate and distinct constitutional organ. There are two (2) aspects
to the exclusivity of the Senate Electoral Tribunal's power. The power to resolve such
contests is exclusive to any other body. The resolution of such contests is its only
task; it performs no other function.
The 1987 Constitution is not the first fundamental law to introduce into our legal
system an "independent, impartial and non-partisan body attached to the legislature
and specially created for that singular purpose."115 The 1935 Constitution similarly
created an Electoral Commission, independent from the National Assembly, to be
the sole judge of all contests relating to members of the National Assembly.116This
was a departure from the system introduced by prior organic acts enforced under
American colonial rulenamely: the Philippine Bill of 1902 and the Jones Law of
1916which vested the power to resolve such contests in the legislature itself. When
the 1935 Constitution was amended to make room for a bicameral legislature, a
corresponding amendment was made for there to be separate electoral tribunals for
each chamber of Congress.117 The 1973 Constitution did away with these electoral
tribunals, but they have since been restored by the 1987 Constitution.
All constitutional provisionsunder the 1935 and 1987 Constitutionswhich

provide for the creation of electoral tribunals (or their predecessor, the Electoral
Commission), have been unequivocal in their language. The electoral tribunal shall
be the "sole" judge.
In Lazatin v. House Electoral Tribunal:118

The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred. . . . The exercise of the power by the Electoral Commission under the 1935
Constitution has been described as "intended to be as complete and unimpaired as if
it had remained originally in the legislature[.]" Earlier, this grant of power to the
legislature was characterized by Justice Malcohn as "full, clear and complete." . . .
Under the amended 1935 Constitution, the power was unqualifiedly reposed upon
the Electoral Tribunal . . . and it remained as full, clear and complete as that
previously granted the legislature and the Electoral Commission. . . . The same may
be said with regard to the jurisdiction of the Electoral Tribunals under the 1987
Constitution.119chanroblesvirtuallawlibrary
Exclusive, original jurisdiction over contests relating to the election, returns, and
qualifications of the elective officials falling within the scope of their powers is, thus,
vested in these electoral tribunals. It is only before them that post-election challenges
against the election, returns, and qualifications of Senators and Representatives (as
well as of the President and the Vice-President, in the case of the Presidential
Electoral Tribunal) may be initiated.
The judgments of these tribunals are not beyond the scope of any review. Article VI,
Section 17's stipulation of electoral tribunals' being the "sole" judge must be read in
harmony with Article VIII, Section 1's express statement that "[j]udicial power
includes the duty of the courts of justice . . . 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." Judicial review is,
therefore, still possible. In Libanan v. House of Representatives Electoral Tribunal:120
The Court has stressed that ". . . so long as the Constitution grants the [House of
Representatives Electoral Tribunal] the power to be the sole judge of all contests
relating to the election, returns and qualifications of members of the House of
Representatives, any final action taken by the [House of Representatives Electoral
Tribunal] on a matter within its jurisdiction shall, as a rule, not be reviewed by this
Court . . . the power granted to the Electoral Tribunal . . . excludes the exercise of any
authority on the part of this Court that would in any wise restrict it or curtail it or
even affect the same."
The Court did recognize, of course, its power of judicial review in exceptional cases.
In Robles vs. [House of Representatives Electoral Tribunal], the Court has explained that
while the judgments of the Tribunal are beyond judicial interference, the Court may
do so, however, but only "in the exercise of this Court's so-called extraordinary
jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was
rendered without or in excess of its jurisdiction, or with grave abuse of discretion or
paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use
by the Tribunal of its power as constitutes a denial of due process of law, or upon a
demonstration of a very clear unmitigated error, manifestly constituting such grave
abuse of discretion that there has to be a remedy for such abuse."
In the old, but still relevant, case of Morrero vs. Bocar, the Court has ruled that the
power of the Electoral Commission "is beyond judicial interference except, in any
event, upon a clear showing of such arbitrary and improvident use of power as will
constitute a denial of due process." The Court does not, to paraphrase it in Co vs.
[House of Representatives Electoral Tribunal], venture into the perilous area of
correcting perceived errors of independent branches of the Government; it comes in
only when it has to vindicate a denial of due process or correct an abuse of discretion
so grave or glaring that no less than the Constitution itself calls for remedial
action.121 (Emphasis supplied, citations omitted)
This Court reviews judgments of the House and Senate Electoral Tribunals not in the
exercise of its appellate jurisdiction. Our review is limited to a determination of
whether there has been an error in jurisdiction, not an error in judgment.
I. B
A party aggrieved by the rulings of the Senate or House Electoral Tribunal invokes
the jurisdiction of this Court through the vehicle of a petition for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure. An appeal is a continuation of the
proceedings in the tribunal from which the appeal is taken. A petition for certiorari
is allowed in Article VIII, Section 1 of the Constitution and described in the 1997
Rules of Civil Procedure as an independent civil action.122 The viability of such a
petition is premised on an allegation of "grave abuse of discretion."123chanrobleslaw
The term "grave abuse of discretion" has been generally held to refer to such
arbitrary, capricious, or whimsical exercise of judgment as is tantamount to lack of
jurisdiction:ChanRoblesVirtualawlibrary
[T]he abuse of discretion must be patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility. Mere abuse of discretion is not enough: it
must be grave.124chanroblesvirtuallawlibrary
There is grave abuse of discretion when a constitutional organ such as the Senate
Electoral Tribunal or the Commission on Elections, makes manifestly gross errors in
its factual inferences such that critical pieces of evidence, which have been
nevertheless properly introduced by a party, or admitted, or which were the subject
of stipulation, are ignored or not accounted for.125chanrobleslaw
A glaring misinterpretation of the constitutional text or of statutory provisions, as

well as a misreading or misapplication of the current state of jurisprudence, is also
considered grave abuse of discretion.126 The arbitrariness consists in the disregard of
the current state of our law.
Adjudication that fails to consider the facts and evidence or frivolously departs from
settled principles engenders a strong suspicion of partiality. This can be a badge of
hostile intent against a party.
Writs of certiorari have, therefore, been issued: (a) where the tribunal's approach to
an issue is premised on wrong considerations and its conclusions founded on a gross
misreading, if not misrepresentation, of the evidence;127 (b) where a tribunal's
assessment of a case is "far from reasonable[,] [and] based solely on very personal
and subjective assessment standards when the law is replete with standards that can
be used";128 "(c) where the tribunal's action on the appreciation and evaluation of
evidence oversteps the limits of its discretion to the point of being grossly
unreasonable";129 and (d) where the tribunal invokes erroneous or irrelevant
considerations in resolving an issue.130chanrobleslaw
I. C
We find no basis for concluding that the Senate Electoral Tribunal acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
The Senate Electoral Tribunal's conclusions are in keeping with a faithful and
exhaustive reading of the Constitution, one that proceeds from an intent to give life
to all the aspirations of all its provisions.
Ruling on the Petition for Quo Warranto initiated by petitioner, the Senate Electoral
Tribunal was confronted with a novel legal question: the citizenship status of
children whose biological parents are unknown, considering that the Constitution, in
Article IV, Section 1(2) explicitly makes reference to one's father or mother. It was
compelled to exercise its original jurisdiction in the face of a constitutional ambiguity
that, at that point, was without judicial precedent.
Acting within this void, the Senate Electoral Tribunal was only asked to make a
reasonable interpretation of the law while needfully considering the established
personal circumstances of private respondent. It could not have asked the impossible
of private respondent, sending her on a proverbial fool's errand to establish her
parentage, when the controversy before it arose because private respondent's
parentage was unknown and has remained so throughout her life.
The Senate Electoral Tribunal knew the limits of human capacity. It did not insist on
burdening private respondent with conclusively proving, within the course of the
few short months, the one thing that she has never been in a position to know
throughout her lifetime. Instead, it conscientiously appreciated the implications of
all other facts known about her finding. Therefore, it arrived at conclusions in a
manner in keeping with the degree of proof required in proceedings before a quasi-
judicial body: not absolute certainty, not proof beyond reasonable doubt or
preponderance of evidence, but "substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a
conclusion."131chanrobleslaw
In the process, it avoided setting a damning precedent for all children with the
misfortune of having been abandoned by their biological parents. Far from reducing
them to inferior, second-class citizens, the Senate Electoral Tribunal did justice to the
Constitution's aims of promoting and defending the well-being of children,
advancing human rights, and guaranteeing equal protection of the laws and equal
access to opportunities for public service.
II
Article VI, Section 3 of the 1987 Constitution spells out the requirement that "[n]o
person shall be a Senator unless he [or she] is a natural-born citizen of the
Philippines."
Petitioner asserts that private respondent is not a natural-born citizen and, therefore,
not qualified to sit as Senator of the Republic, chiefly on two (2) grounds. First, he
argues that as a foundling whose parents are unknown, private respondent fails to
satisfy the jus sanguinis principle: that is, that she failed to establish her Filipino
"blood line," which is supposedly the essence of the Constitution's determination of
who are natural-born citizens of the Philippines. Proceeding from this first assertion,
petitioner insists that as private respondent was never a natural-born citizen, she
could never leave reverted to natural-born status despite the performance of acts
that ostensibly comply with Republic Act No. 9225, otherwise known as the
Citizenship Retention and Re-acquisition Act of 2003.
Petitioner's case hinges on the primacy he places over Article IV, Section 1 of the
1987 Constitution and its enumeration of who are Filipino citizens, more specifically
on Section 1(2), which identifies as citizens "[t]hose whose fathers or mothers are
citizens of the Philippines." Petitioner similarly claims that, as private respondent's
foundling status is settled, the burden to prove Filipino parentage was upon her.
With private respondent having supposedly failed to discharge this burden, the
supposed inevitable conclusion is that she is not a natural-born Filipino.
III
At the heart of this controversy is a constitutional ambiguity. Definitely, foundlings

have biological parents, either or both of whom can be Filipinos. Yet, by the nature
of their being foundlings, they may, at critical times, not know their parents. Thus,
this controversy must consider possibilities where parentage may be Filipino but,
due to no fault of the foundling, remains unknown.132 Resolving this controversy
hinges on constitutional interpretation.
Discerning constitutional meaning is an exercise in discovering the sovereign's

purpose so as to identify which among competing interpretations of the same text is
the more contemporarily viable construction. Primarily, the actual wordstext
and how they are situated within the whole documentcontextgovern.
Secondarily, when discerning meaning from the plain text (i.e., verba legis) fails,
contemporaneous construction may settle what is more viable. Nevertheless, even
when a reading of the plain text is already sufficient, contemporaneous construction
may still be resorted to as a means for verifying or validating the clear textual or
contextual meaning of the Constitution.
III. A
The entire exercise of interpreting a constitutional provision must necessarily begin

with the text itself. The language of the provision being interpreted is the principal
source from which this Court determines constitutional intent.133chanrobleslaw
To the extent possible, words must be given their ordinary meaning; this is
consistent with the basic precept of verba legis.134 The Constitution is truly a public
document in that it was ratified and approved by a direct act of the People exercising
their right of suffrage, they approved of it through a plebiscite. The preeminent
consideration in reading the Constitution, therefore, is the People's consciousness:
that is, popular, rather than technical-legal, understanding.
Thus:ChanRoblesVirtualawlibrary
We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained.
They are to be given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus, these are the
cases where the need for construction is reduced to a minimum.135 (Emphasis
supplied)
Reading a constitutional provision requires awareness of its relation with the whole
of the Constitution. A constitutional provision is but a constituent of a greater whole.
It is the framework of the Constitution that animates each of its components through
the dynamism of these components' interrelations. What is called into operation is
the entire document, not simply a peripheral item. The Constitution should,
therefore, be appreciated and read as a singular, whole unitut magis valeat quam
pereat.136 Each provision must be understood and effected in a way that gives life to
all that the Constitution contains, from its foundational principles to its finest
fixings.137chanrobleslaw
The words and phrases that establish its framework and its values color each
provision at the heart of a controversy in an actual case. In Civil Liberties Union v.
Executive Secretary:138
It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to
be so interpreted as to effectuate the great purposes of the instrument. Sections
bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution and one section is not to be allowed
to defeat another, if by any reasonable construction, the two can be made to stand
together.
In other words, the court must harmonize them, if practicable, and must lean in
favor of construction which will render every word operative, rather than one which
may make the words idle and nugatory.139 (Citations omitted)
Reading a certain text includes a consideration of jurisprudence that has previously
considered that exact same text, if any. Our legal system is founded on the basic
principle that "judicial decisions applying or interpreting the laws or the
Constitution shall form part of [our] legal system."140 Jurisprudence is not an
independent source of law. Nevertheless, judicial interpretation is deemed part of or
written into the text itself as of the date that it was originally passed. This is because
judicial construction articulates the contemporaneous intent that the text brings to
effect.141 Nevertheless, one must not fall into the temptation of considering prior
interpretation as immutable.
Interpretation grounded on textual primacy likewise looks into how the text has
evolved. Unless completely novel, legal provisions are the result of the re-
adoptionoften with accompanying re-calibrationof previously existing rules.
Even when seemingly novel, provisions are often introduced as a means of
addressing the inadequacies and excesses of previously existing rules.
One may trace the historical development of text by comparing its current iteration
with prior counterpart provisions, keenly taking note of changes in syntax, along
with accounting for more conspicuous substantive changes such as the addition and
deletion of provisos or items in enumerations, shifting terminologies, the use of
more emphatic or more moderate qualifiers, and the imposition of heavier penalties.
The tension between consistency and change galvanizes meaning.
Article IV, Section 1 of the 1987 Constitution, which enumerates who are citizens of
the Philippines, may be compared with counterpart provisions, not only in earlier
Constitutions but even in organic laws142 and in similar mechanisms143 introduced
by colonial rulers whose precepts nevertheless still resonate today.
Even as ordinary meaning is preeminent, a realistic appreciation of legal

interpretation must grapple with the truth that meaning is not always singular and
uniform. In Social Weather Stations, Inc. v. Commission on Elections,144 this Court
explained the place of a holistic approach in legal
interpretation:ChanRoblesVirtualawlibrary
Interestingly, both COMELEC and petitioners appeal to what they (respectively)
construe to be plainly evident from Section 5.2(a)'s text on the part of COMELEC,
that the use of the words "paid for" evinces no distinction between direct purchasers
and those who purchase via subscription schemes; and, on the part of petitioners,
that Section 5.2(a)'s desistance from actually using the word "subscriber" means that
subscribers are beyond its contemplation. The variance in the parties' positions,
considering that they are both banking on what they claim to be the Fair Election
Act's plain meaning, is the best evidence of an extant ambiguity.
Second, statutory construction cannot lend itself to pedantic rigor that foments
absurdity. The dangers of inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These dangers are by no means
endemic to legal interpretation. Even in everyday conversations, misplaced literal
interpretations are fodder for humor. A fixation on technical rules of grammar is no
less innocuous. A pompously doctrinaire approach to text can stifle, rather than
facilitate, the legislative wisdom that unbridled textualism purports to bolster.
Third, the assumption that there is, in all cases, a universal plain language is
erroneous. In reality, universality and uniformity in meaning is a rarity. A contrary
belief wrongly assumes that language is static.
The more appropriate and more effective approach is, thus, holistic rather than
parochial: to consider context and the interplay of the historical, the contemporary,
and even the envisioned. Judicial interpretation entails the convergence of social realities
and social ideals. The latter are meant to be effected by the legal apparatus, chief of which is
the bedrock of the prevailing legal order: the Constitution. Indeed, the word in the vernacular
that describes the Constitution saligan demonstrates this imperative of constitutional
primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we
consider not an abstruse provision but a stipulation that is part of the whole, i.e., the
statute of which it is a part, that is aimed at realizing the ideal of fair elections. We
consider not a cloistered provision but a norm that should have a present
authoritative effect to achieve the ideals of those who currently read, depend on, and
demand fealty from the Constitution.145 (Emphasis supplied)
III. B
Contemporaneous construction and aids that are external to the text may be resorted
to when the text is capable of multiple, viable meanings.146 It is only then that one
can go beyond the strict boundaries of the document. Nevertheless, even when
meaning has already been ascertained from a reading of the plain text,
contemporaneous construction may serve to verify or validate the meaning yielded
by such reading.
Limited resort to contemporaneous construction is justified by the realization that

the business of understanding the Constitution is not exclusive to this Court. The
basic democratic foundation of our constitutional order necessarily means that all
organs of government, and even the People, read the fundamental law and are
guided by it. When competing viable interpretations arise, a justiciable controversy
may ensue requiring judicial intervention in order to arrive with finality at which
interpretation shall be sustained. To remain true to its democratic moorings,
however, judicial involvement must remain guided by a framework or deference
and constitutional avoidance. This same principle underlies the basic doctrine that
courts are to refrain from issuing advisory opinions. Specifically as regards this
Court, only constitutional issues that are narrowly framed, sufficient to resolve an
actual case, may be entertained.147chanrobleslaw
When permissible then, one may consider analogous jurisprudence (that is, judicial
decisions on similar, but not the very same, matters or concerns),148 as well as
thematically similar statutes and international norms that form part of our legal
system. This includes discerning the purpose and aims of the text in light of the
specific facts under consideration. It is also only at this juncturewhen external aids
may be consultedthat the supposedly underlying notions of the framers, as
articulated through records of deliberations and other similar accounts, can be
illuminating.
III. C
In the hierarchy of the means for constitutional interpretation, inferring meaning

from the supposed intent of the framers or fathoming the original understanding of
the individuals who adopted the basic document is the weakest approach.
These methods leave the greatest room for subjective interpretation. Moreover, they
allow for the greatest errors. The alleged intent of the framers is not necessarily
encompassed or exhaustively articulated in the records of deliberations. Those that
have been otherwise silent and have not actively engaged in interpellation and
debate may have voted for or against a proposition for reasons entirely their own
and not necessarily in complete agreement with those articulated by the more vocal.
It is even possible that the beliefs that motivated them were based on entirely
erroneous premises. Fathoming original understanding can also misrepresent
history as it compels a comprehension of actions made within specific historical
episodes through detached, and not necessarily better-guided, modern lenses.
Moreover, the original intent of the framers of the Constitution is not always
uniform with the original understanding of the People who ratified it. In Civil
Liberties Union:ChanRoblesVirtualawlibrary
While it is permissible in this jurisdiction to consult the debates and proceedings of
the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of
the individual members, and as indicating the reasons for their votes, but they give
us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave the instrument the force of
fundamental law. We think it safer to construe the constitution from what appears
upon its face." The proper interpretation therefore depends more on how it was understood
by the people adopting it than in the framer's understanding thereof.149 (Emphasis supplied)
IV
Though her parents are unknown, private respondent is a Philippine citizen without
the need for an express statement in the Constitution making her so. Her status as
such is but the logical consequence of a reasonable reading of the Constitution
within its plain text. The Constitution provides its own cues; there is not even a need
to delve into the deliberations of its framers and the implications of international
legal instruments. This reading proceeds from several levels.
On an initial level, a plain textual reading readily identifies the specific provision,
which principally governs: the Constitution's actual definition, in Article IV, Section
2, of "natural-born citizens." This definition must be harmonized with Section 1's
enumeration, which includes a reference to parentage. These provisions must then
be appreciated in relation to the factual milieu of this case. The pieces of evidence
before the Senate Electoral Tribunal, admitted facts, and uncontroverted
circumstances adequately justify the conclusion of private respondent's Filipino
parentage.
On another level, the assumption should be that foundlings are natural-born unless
there is substantial evidence to the contrary. This is necessarily engendered by a
complete consideration of the whole Constitution, not just its provisions on
citizenship. This includes its mandate of defending the well-being of children,
guaranteeing equal protection of the law, equal access to opportunities for public
service, and respecting human rights, as well as its reasons for requiring natural-
born status for select public offices. Moreover, this is a reading validated by
contemporaneous construction that considers related legislative enactments,
executive and administrative actions, and international instruments.
V
Private respondent was a Filipino citizen at birth. This status' commencement from
birth means that private respondent never had to do anything to consummate this
status. By definition, she is natural-born. Though subsequently naturalized, she
reacquired her natural-born status upon satisfying the requirement of Republic Act
No. 9225. Accordingly, she is qualified to hold office as Senator of the Republic.
V. A
Article IV, Section 1 of the 1987 Constitution enumerates who are citizens of the
Philippines:ChanRoblesVirtualawlibrary
Section 1. The following are citizens of the Philippines:
chanRoblesvirtualLawlibrary
(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.150

Article IV, Section 2 identifies who are natural-born
citizens:ChanRoblesVirtualawlibrary
Sec. 2. Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship.
Those who elect Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens. (Emphasis supplied)
Section 2's significance is self-evident. It provides a definition of the term "natural-
born citizens." This is distinct from Section 1's enumeration of who are citizens. As
against Section 1's generic listing, Section 2 specifically articulates those who may
count themselves as natural-born.
The weight and implications of this categorical definition are better appreciated
when supplemented with an understanding of how our concepts of citizenship and
natural-born citizenship have evolved. As will be seen, the term "natural-born
citizen" was a transplanted, but tardily defined, foreign concept.
V. B
Citizenship is a legal device denoting political affiliation. It is the "right to have

rights."151 It is one's personal and . . . permanent membership in a political
community. . . The core of citizenship is the capacity to enjoy political rights, that is,
the right to participate in government principally through the right to vote, the right
to hold public office[,] and the right to petition the government for redress of
grievance.152chanrobleslaw
Citizenship also entails obligations to the political community of which one is
part.153 Citizenship, therefore, is intimately tied with the notion that loyalty is owed
to the state, considering the benefits and protection provided by it. This is
particularly so if these benefits and protection have been enjoyed from the moment
of the citizen's birth.
Tecson v. Commission on Elections154 reckoned with the historical development of our

concept of citizenship, beginning under Spanish colonial rule.155 Under the Spanish,
the native inhabitants of the Philippine Islands were identified not as citizens but as
"Spanish subjects."156 Church records show that native inhabitants were referred to
as "indios." The alternative identification of native inhabitants as subjects or as indios
demonstrated the colonial master's regard for native inhabitants as
inferior.157Natives were, thus, reduced to subservience in their own land.
Under the Spanish Constitution of 1876, persons born within Spanish territory, not
just peninsular Spain, were considered Spaniards, classification, however, did not
extend to the Philippine Islands, as Article 89 expressly mandated that the
archipelago was to be governed by special laws.158 It was only on December 18, 1889,
upon the effectivity in this jurisdiction of the Civil Code of Spain, that there existed a
categorical enumeration of who were Spanish
citizens,159 thus:ChanRoblesVirtualawlibrary
(a) Persons born in Spanish territory,
(b) Children of a Spanish father or mother, even if they were born outside of
Spain,
(c) Foreigners who have obtained naturalization papers,
(d) Those who, without such papers, may have become domiciled inhabitants of
any town of the Monarchy.160
1898 marked the end of Spanish colonial rule. The Philippine Islands were ceded by
Spain to the United States of America under the Treaty of Paris, which was entered
into on December 10, 1898. The Treaty of Paris did not automatically convert the
native inhabitants to American citizens.161 Instead, it left the determination of the
native inhabitants' status to the Congress of the United
States:ChanRoblesVirtualawlibrary
Spanish subjects, natives of the Peninsula, residing in the territory over which Spain
by the present treaty relinquishes or cedes her sovereignty may remain in such
territory or may remove therefrom. . . . In case they remain in the territory they may
preserve their allegiance to the Crown of Spain by making . . . a declaration of their
decision to preserve such allegiance; in default of which declaration they shall be
held to have renounced it and to have adopted the nationality of the territory in
which they may reside.
Thus -
The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by
Congress.162chanroblesvirtuallawlibrary
Pending legislation by the United States Congress, the native inhabitants who had
ceased to be Spanish subjects were "issued passports describing them to be citizens
of the Philippines entitled to the protection of the United States."163chanrobleslaw
The term "citizens of the Philippine Islands" first appeared in legislation in the
Philippine Organic Act, otherwise known as the Philippine Bill of 1902:164
Section 4. That all inhabitants of the Philippine Islands continuing to reside therein,
who were Spanish subjects on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine Islands and as such
entitled to the protection of the United States, except such as shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the provisions of
the treaty of peace between the United States and Spain signed at Paris December
tenth, eighteen hundred and ninety-eight. (Emphasis supplied)
The Philippine Bill of 1902 explicitly covered the status of children born in the
Philippine Islands to its inhabitants who were Spanish subjects as of April 11, 1899.
However, it did not account for the status of children born in the Islands to parents
who were not Spanish subjects. A view was expressed that the common law concept
of jus soli (or citizenship by place of birth), which was operative in the United States,
applied to the Philippine Islands.165chanrobleslaw
On March 23, 1912, the United States Congress amended Section 4 of the Philippine
Bill of 1902. It was made to include a proviso for the enactment by the legislature of a
law on acquiring citizenship. This proviso read:ChanRoblesVirtualawlibrary
Provided, That the Philippine Legislature, herein provided for, is hereby authorized
to provide by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the natives of
the insular possessions of the United States, and such other persons residing in the
Philippine Islands who are citizens of the United States, or who could become
citizens of the United States under the laws of the United States if residing
therein.166chanroblesvirtuallawlibrary
In 1916, the Philippine Autonomy Act, otherwise known as the Jones Law of 1916,
replaced the Philippine Bill of 1902. It restated the citizenship provision of the
Philippine Bill of 1902, as amended:167
Section 2.Philippine Citizenship and Naturalization
That all inhabitants of the Philippine Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of
peace between the United States and Spain, signed at Paris December tenth, eighteen
hundred and ninety-eight, and except such others as have since become citizens of
some other country: Provided, That the Philippine Legislature, herein provided for,
is hereby authorized to provide by law for the acquisition of Philippine citizenship
by those natives of the Philippine Islands who do not come within the foregoing
provisions, the natives of the insular possessions of the United States, and such other
persons residing in the Philippine Islands who are citizens of the United States, or
who could become citizens of the United States under the laws of the United States if
residing therein.
The Jones Law of 1916 provided that a native-born inhabitant of the Philippine
Islands was deemed to be a citizen of the Philippines as of April 11, 1899 if he or she
was "(1) a subject of Spain on April 11, 1899, (2) residing in the Philippines on said
date, and (3) since that date, not a citizen of some other country."168chanrobleslaw
There was previously the view that jus soli may apply as a mode of acquiring
citizenship. It was the 1935 Constitution that made sole reference to parentage vis-a-
vis the determination of citizenship.169 Article III, Section 1 of the 1935 Constitution
provided:ChanRoblesVirtualawlibrary
SECTION 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of
this Constitution.
(2) Those born in the Philippines Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and upon reaching the
age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.

The term "natural-born citizen" first appeared in this jurisdiction in the 1935
Constitution's provision stipulating the qualifications for President and Vice-
President of the Philippines. Article VII, Section 3 read:ChanRoblesVirtualawlibrary
SECTION 3. No person may be elected to the office of President or Vice-President,
unless he be a natural-born citizen of the Philippines, a qualified voter, forty years of
age or over, and has been a resident of the Philippines for at least ten years
immediately preceding the election.
While it used the term "natural-born citizen," the 1935 Constitution did not define
the term.
Article II, Section 1(4) of the 1935 Constitutionread with the then civil law
provisions that stipulated the automatic loss of Filipino citizens lip by women who
marry alien husbandswas discriminatory towards women.170 The 1973
Constitution rectified this problematic situation:ChanRoblesVirtualawlibrary
SECTION 1. The following are citizens of the Philippines:
Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
SECTION 2. A female citizen of the Philippines who marries an alien shall retain her
Philippine citizenship, unless by her act or omission she is deemed, under the law, to
have renounced her citizenship.171chanroblesvirtuallawlibrary
The 1973 Constitution was the first instrument to actually define the term "natural-
born citizen." Article III, Section 4 of the 1973 Constitution
provided:ChanRoblesVirtualawlibrary
SECTION 4. A natural-born citizen is one who is a citizen of the Philippines from
birth without having to perform any act to acquire or perfect his Philippine
citizenship.172chanroblesvirtuallawlibrary
The present Constitution adopted most of the provisions of the 1973 Constitution on
citizenship, "except for subsection (3) thereof that aimed to correct the irregular
situation generated by the questionable proviso in the 1935
Constitution."173chanrobleslaw
Article IV, Section 1 of the 1987 Constitution now reads:ChanRoblesVirtualawlibrary

Constitution;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
(4) Those who are naturalized in accordance with law.174

Article IV, Section 2 also calibrated the 1973 Constitution's previous definition of
natural-born citizens, as follows:ChanRoblesVirtualawlibrary
Sec. 2. Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship.
Those who elect Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens. (Emphasis supplied)
Ironically, the concept of "natural-born" citizenship is a "foreign" concept that was
transplanted into this jurisdiction as part of the 1935 Constitution's eligibility
requirements for President and Vice-President of the Philippines.
In the United States Constitution, from which this concept originated, the term
"natural-born citizen" appears in only a single instance: as an eligibility requirement
for the presidency.175 It is not defined in that Constitution or in American laws. Its
origins and rationale for inclusion as a requirement for the presidency are not even
found in the records of constitutional deliberations.176 However, it has been
suggested that, as the United States was under British colonial rule before its
independence, the requirement of being natural-born was introduced as a safeguard
against foreign infiltration in the administration of national
government:ChanRoblesVirtualawlibrary
It has been suggested, quite plausibly, that this language was inserted in response to
a letter sent by John Jay to George Washington, and probably to other delegates, on
July 25, 1787, which stated:ChanRoblesVirtualawlibrary
Permit me to hint, whether it would be wise and seasonable to provide a strong
check to the admission of Foreigners into the administration of our national
Government; and to declare expressly that the Command in Chief of the American
army shall not be given to nor devolve on, any but a natural born Citizen.
Possibly this letter was motivated by distrust of Baron Von Steuben, who had served
valiantly in the Revolutionary forces, but whose subsequent loyalty was suspected
by Jay. Another theory is that the Jay letter, and the resulting constitutional
provision, responded to rumors that the Convention was concocting a monarchy to
be ruled by a foreign monarch.177chanroblesvirtuallawlibrary
In the United States, however, citizenship is based on jus soli, not jus sanguinis.
V. C
Today, there are only two (2) categories of Filipino citizens: natural-born and
naturalized.
A natural-born citizen is defined in Article IV, Section 2 as one who is a citizen of the
Philippines "from birth without having to perform any act to acquire or perfect
Philippine citizenship." By necessary implication, a naturalized citizen is one who is
not natural-born. Bengson v. House of Representatives Electoral Tribunal178 articulates
this definition by dichotomy:ChanRoblesVirtualawlibrary
[O]nly naturalized Filipinos are considered not natural-born citizens. It is apparent
from the enumeration of who are citizens under the present Constitution that there
are only two classes of citizens: . . . A citizen who is not a naturalized Filipino, i.e.,
did not have to undergo the process of naturalization to obtain Philippine
citizenship, necessarily is a natural-born Filipino.179chanroblesvirtuallawlibrary
Former Associate Justice Artemio Panganiban further shed light on the concept of
naturalized citizens in his Concurring Opinion in Bengson: naturalized citizens, he
stated, are "former aliens or foreigners who had to undergo a rigid procedure, in
which they had to adduce sufficient evidence to prove that they possessed all the
qualifications and none of the disqualifications provided by law in order to become
Filipino citizens."180chanrobleslaw
One who desires to acquire Filipino citizenship by naturalization is generally

required to file a verified petition.181 He or she must establish. among others, that he
or she is of legal age, is of good moral character, and has the capacity to adapt to
Filipino culture, tradition, and principles, or otherwise has resided in the Philippines
for a significant period of time.182 Further, the applicant must show that he or she
will not be a threat to the state, to the public, and to the Filipinos' core
beliefs.183chanrobleslaw
V. D
Article IV, Section 1 of the 1987 Constitution merely gives an enumeration. Section 2
categorically defines "natural-born citizens." This constitutional definition is further
clarified in jurisprudence, which delineates natural-born citizenship from
naturalized citizenship. Consistent with Article 8 of the Civil Code, this
jurisprudential clarification is deemed written into the interpreted text, thus
establishing its contemporaneous intent.
Therefore, petitioner's restrictive reliance on Section 1 and the need to establish

bloodline is misplaced. It is inordinately selective and myopic. It divines Section 1's
mere enumeration but blatantly turns a blind eye to the succeeding Section's
unequivocal definition.
Between Article IV, Section 1(2), which petitioner harps on, and Section 2, it is
Section 2 that is on point. To determine whether private respondent is a natural-born
citizen, we must look into whether she had to do anything to perfect her citizenship.
In view of Bengson, this calls for an inquiry into whether she underwent the
naturalization process to become a Filipino.
She did not.
At no point has it been substantiated that private respondent went through the
actual naturalization process. There is no more straightforward and more effective
way to terminate this inquiry than this realization of total and utter lack of proof.
At most, there have been suggestions likening a preferential approach to foundlings,

as well as compliance with Republic Act No. 9225, with naturalization. These
attempts at analogies are misplaced. The statutory mechanisms for naturalization are
clear, specific, and narrowly devised. The investiture of citizenship on foundlings
benefits children, individuals whose capacity to act is restricted.184 It is a glaring
mistake to liken them to an adult filing before the relevant authorities a sworn
petition seeking to become a Filipino, the grant of which is contingent on evidence
that he or she must himself or herself adduce. As shall later be discussed, Republic
Act No. 9225 is premised on the immutability of natural-born status. It privileges
natural-born citizens and proceeds from an entirely different premise from the
restrictive process of naturalization.
So too, the jurisprudential treatment of naturalization vis-a-vis natural-born status is
clear. It should be with the actual process of naturalization that natural-born status is
to be contrasted, not against other procedures relating to citizenship. Otherwise, the
door may be thrown open for the unbridled diminution of the status of citizens.
V. E
Natural-born citizenship is not concerned with being a human thoroughbred.
Section 2 defines "natural-born citizens." Section 1(2) stipulates that to be a citizen,

either one's father or one's mother must be a Filipino citizen.
That is all there is to Section 1(2). Physical features, genetics, pedigree, and ethnicity
are not determinative of citizenship.
Section 1(2) does not require one's parents to be natural-born Filipino citizens. It
does not even require them to conform to traditional conceptions of what is
indigenously or ethnically Filipino. One or both parents can, therefore, be ethnically
foreign.
Section 1(2) requires nothing more than one ascendant degree: parentage. The
citizenship of everyone else in one's ancestry is irrelevant. There is no need, as
petitioner insists, for a pure Filipino bloodline.
Section 1(2) requires citizenship, not identity. A conclusion of Filipino citizenship

may be sustained by evidence adduced in a proper proceeding, which substantially
proves that either or both of one's parents is a Filipino citizen.
V. F
Private respondent has done this. The evidence she adduced in these proceedings
attests to how at least oneif not bothof her biological parents were Filipino
citizens.
Proving private respondent's biological parentage is now practically impossible. To

begin with, she was abandoned as a newborn infant. She was abandoned almost half
a century ago. By now, there are only a handful of those who, in 1968, were able-
minded adults who can still lucidly render testimonies on the circumstances of her
birth and finding. Even the identification of individuals against whom DNA
evidence may be tested is improbable, and by sheer economic cost, prohibitive.
However, our evidentiary rules admit of alternative means for private respondent to
establish her parentage.
In lieu of direct evidence, facts may be proven through circumstantial evidence.

In Suerte-Felipe v. People:185
Direct evidence is that which proves the fact in dispute without the aid of any
inference or presumption; while circumstantial evidence is the proof of fact or facts
from which, taken either singly or collectively, the existence of a particular fact in
dispute may be inferred as a necessary or probable
consequence.186chanroblesvirtuallawlibrary
People v. Raganas187 further defines circumstantial
evidence:ChanRoblesVirtualawlibrary
Circumstantial evidence is that which relates to a series of facts other than the fact in
issue, which by experience have been found so associated with such fact that in a
relation of cause and effect, they lead us to a satisfactory conclusion.188 (Citation
omitted)
Rule 133, Section 4 of the Revised Rules on Evidence, for instance, stipulates when
circumstantial evidence is sufficient to justify a conviction in criminal
proceedings:ChanRoblesVirtualawlibrary
Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is
sufficient for conviction if:
chanRoblesvirtualLawlibrary(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are proven; and cralawlawlibrary
(c) The combination of all the circumstances is such as to produce a conviction

beyond reasonable doubt.
Although the Revised Rules on Evidence's sole mention of circumstantial evidence is
in reference to criminal proceedings, this Court has nevertheless sustained the use of
circumstantial evidence in other proceedings.189 There is no rational basis for making
the use of circumstantial evidence exclusive to criminal proceedings and for not
considering circumstantial facts as valid means for proof in civil and/or
administrative proceedings.
In criminal proceedings, circumstantial evidence suffices to sustain a conviction

(which may result in deprivation of life, liberty, and property) anchored on the
highest standard or proof that our legal system would require, i.e., proof beyond
reasonable doubt. If circumstantial evidence suffices for such a high standard, so too
may it suffice to satisfy the less stringent standard of proof in administrative and
quasi-judicial proceedings such as those before the Senate Electoral Tribunal, i.e.,
substantial evidence.190chanrobleslaw
Private respondent was found as a newborn infant outside the Parish Church of Jaro,
Iloilo on September 3, 1968.191 In 1968, Iloilo, as did mostif not allPhilippine
provinces, had a predominantly Filipino population.192 Private respondent is
described as having "brown almond-shaped eyes, a low nasal bridge, straight black
hair and an oval-shaped face."193 She stands at 5 feet and 2 inches tall.194 Further, in
1968, there was no international airport in Jaro, Iloilo.
These circumstances are substantial evidence justifying an inference that her

biological parents were Filipino. Her abandonment at a Catholic Church is more or
less consistent with how a Filipino who, in 1968, lived in a predominantly religious
and Catholic environment, would have behaved. The absence of an international
airport in Jaro, Iloilo precludes the possibility of a foreigner mother, along with a
foreigner father, swiftly and surreptitiously coming in and out of Jaro, Iloilo just to
give birth and leave her offspring there. Though proof of ethnicity is unnecessary,
her physical features nonetheless attest to it.
In the other related case of Poe-Llamanzares v. Commission on Elections,195 the Solicitor

General underscored how it is statistically more probable that private respondent
was born a Filipino citizen rather than as a foreigner. He submitted the following
table is support of his statistical inference:196
NUMBER OF FOREIGN AND FILIPINO CHILDREN BORN IN THE PHILIPPINES:
1965-1975 and 2010-2014
FOREIGN CHILDREN BORN IN FILIPINO CHILDREN BORN IN

YEAR
THE PHILIPPINES THE PHILIPPINES
1965 1,479 795,415
1966 1,437 823,342
1967 1,440 840,302
1968 1,595 898,570
1969 1,728 946,753
1970 1,521 966,762
1971 1,401 963,749
1972 1,784 968,385
1973 1,212 1,045,290
1974 1,496 1,081,873
1975 1,493 1,223,837
2010 1,244 1,782,877
2011 1,140 1,746,685
2012 1,454 1,790,367
2013 1,315 1,751,523
2014 1,351 1,748,782

Source: Philippine Statistics Authority [illegible]197chanroblesvirtuallawlibrary
Thus, out of the 900,165 recorded births in the Philippines in 1968, only 1,595 or
0.18% newborns were foreigners. This translates to roughly 99.8% probability that
private respondent was born a Filipino citizen.
Given the sheer difficulty, if not outright impossibility, of identifying her parents
after half a century, a range of substantive proof is available to sustain a reasonable
conclusion as to private respondent's parentage.
VI
Before a discussion on how private respondent's natural-born status is sustained by

a general assumption on foundlings arising from a comprehensive reading and
validated by a contemporaneous construction of the Constitution, and considering
that we have just discussed the evidence pertaining to the circumstances of private
respondent's birth, it is opportune to consider petitioner's allegations that private
respondent bore the burden of provingthrough proof of her bloodlineher
natural-born status.
Petitioner's claim that the burden of evidence shifted to private respondent upon a
mere showing that she is a foundling is a serious error.
Petitioner invites this Court to establish a jurisprudential presumption that all

newborns who have been abandoned in rural areas in the Philippines are not
Filipinos. His emphasis on private respondent's supposed burden to prove the
circumstances of her birth places upon her an impossible condition. To require proof
from private respondent borders on the absurd when there is no dispute that the
crux of the controversythe identity of her biological parentsis simply not known.
"Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by
law." Burden of proof lies on the party making the allegations;198 that is, the party
who "alleges the affirmative of the issue"199 Burden of proof never shifts from one
party to another. What shifts is the burden of evidence. This shift happens when a
party makes a prima facie case in his or her favor.200 The other party then bears the
"burden of going forward"201 with the evidence considering that which has
ostensibly been established against him or her.
In an action for quo warranto, the burden of proof necessarily falls on the party who
brings the action and who alleges that the respondent is ineligible for the office
involved in the controversy. In proceedings before quasi-judicial bodies such as the
Senate Electoral Tribunal, the requisite quantum of proof is substantial
evidence.202 This burden was petitioner's to discharge. Once the petitioner makes a
prima facie case, the burden of evidence shifts to the respondent.
Private respondent's admitted status as a foundling does not establish a prima facie
case in favor of petitioner. While it does establish that the identities of private
respondent's biological parents are not known, it does not automatically mean that
neither her father nor her mother is a Filipino.
The most that petitioner had in his favor was doubt. A taint of doubt, however, is by
no means substantial evidence establishing a prima facie case and shifting the
burden of evidence to private respondent.
Isolating the fact of private respondent's being a foundling, petitioner trivializes

other uncontroverted circumstances that we have previously established as
substantive evidence of private respondent's parentage:ChanRoblesVirtualawlibrary
(1) Petitioner was found in front of a church in Jaro, Iloilo;
(2) She was only an infant when she was found, practically a newborn;
(3) She was-found sometime in September 1968;
(4) Immediately after she was found, private respondent was registered as a
foundling;
(5) There was no international airport in Jaro, Iloilo; and
(6) Private respondent's physical features are consistent with those of typical
Filipinos.
Petitioner's refusal to account for these facts demonstrates an imperceptive bias. As
against petitioner's suggested conclusions, the more reasonable inference from these
facts is that at least one of private respondent's parents is a Filipino.
VII
Apart from how private respondent is a natural-born Filipino citizen consistent with
a reading that harmonizes Article IV, Section 2's definition of natural-born citizens
and Section 1(2)'s reference to parentage, the Constitution sustains a presumption
that all foundlings found in the Philippines are born to at least either a Filipino
father or a Filipino mother and are thus natural-born, unless there is substantial
proof otherwise. Consistent with Article IV, Section 1(2), any such countervailing
proof must show that bothnot just oneof a foundling's biological parents are not
Filipino citizens.
VII. A
Quoting heavily from Associate Justice Teresita Leonardo-De Castro's Dissenting
Opinion to the assailed November 17, 2015 Decision, petitioner intimates that no
inference or presumption in favor of natural-born citizenship may be indulged in
resolving this case.203 He insists that it is private respondent's duty to present
incontrovertible proof of her Filipino parentage.
Relying on presumptions is concededly less than ideal. Common sense dictates that
actual proof is preferable. Nevertheless, resolving citizenship issues based on
presumptions is firmly established in jurisprudence.
In 2004, this Court resolved Tecson on the basis of presumptions. Ruling on the
allegations that former presidential candidate Ronald Allan Poe (more popularly
known as Fernando Poe, Jr.) was not a natural-born Filipino citizen, this Court
proceeded from the presumptions that: first, Fernando Poe Jr.'s grandfather, Lorenzo
Pou, was born sometime in 1870, while the country was still under Spanish colonial
rule;204 and second, that Lorenzo Pou's place of residence, as indicated in his dearth
certificate, must have also been his place of residence before death, which subjected
him to the "en masse Filipinization," or sweeping investiture of Filipino citizenship
effected by the Philippine Bill of 1902.205 This Court then noted that Lorenzo Pou's
citizenship would have extended to his son and Fernando Poe Jr.'s father, Allan F.
Poe. Based on these, Fernando Poe. Jr. would then have been a natural-born Filipino
as he was born while the 1935 Constitution, which conferred Filipino citizenship to
those born to Filipino fathers, was in effect:ChanRoblesVirtualawlibrary
In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not
the father of respondent, Allan F. Poe, would have himself been a Filipino citizen
and, in the affirmative, whether or not the alleged illegitimacy of respondent
prevents him from taking after the Filipino citizenship of his putative father. Any
conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the
presumption that having died in 1954 at 84 years old, when the Philippines was
under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have well been his place of
residence before death, such that Lorenzo Pou would have benefited from the "en
masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of
Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of
respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has
seen first light, confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or
illegitimate.206chanroblesvirtuallawlibrary
It is true that there is jurisprudencePaa v. Chan207 and Go v. Ramos208 (which merely
cites Paa)to the effect that presumptions cannot be entertained in citizenship cases.
Paa, decided in 1967, stated:ChanRoblesVirtualawlibrary

It is incumbent upon the respondent, who claims Philippine citizenship, to prove to
the satisfaction of the court that he is really a Filipino. No presumption can be
indulged in favor of the claimant, of Philippine citizenship, and any doubt regarding
citizenship must be resolved in favor of the State.209 (Emphasis supplied)
These pronouncements are no longer controlling in light of this Court's more recent
ruling in Tecson.
Moreover, what this Court stated in Paa was that "no presumption can be indulged
in favor of the claimant of Philippine citizenship." This reference to "the claimant"
was preceded by a sentence specifically referencing the duty of "the respondent."
The syntax of this Court's pronouncementusing the definitive article "the"
reveals that its conclusion was specific only to Chan and to his circumstances.
Otherwise, this Court would have used generic language. Instead of the definite
article "the," it could have used the indefinite article "a" in that same sentence: "no
presumption can be indulged in favor of a claimant of Philippine citizenship." In the
alternative, it could have used other words that would show absolute or sweeping
application, for instance: "no presumption can be indulged in favor
of any/every claimant of Philippine citizenship;" or, "no presumption can be
indulged in favor of all claimants of Philippine citizenship."
The factual backdrop of Paa is markedly different from those of this case. Its
statements, therefore, are inappropriate precedents for this case. In Paa, clear
evidence was adduced showing that respondent Quintin Chan was registered as an
alien with the Bureau of Immigration. His father was likewise registered as an alien.
These pieces of evidence already indubitably establish foreign citizenship and shut
the door to any presumption. In contrast, petitioner in this case presents no proof,
direct or circumstantial, of private respondent's or of both of her parents' foreign
citizenship.
Go cited Paa, taking the same quoted portion but revising it to make it appear that
the same pronouncement was generally applicable:ChanRoblesVirtualawlibrary
It is incumbent upon one who claims Philippine citizenship to prove to the
satisfaction of the court that he is really a Filipino. No presumption can be indulged
hi favor of the claimant of Philippine citizenship, and any doubt regarding
citizenship must be resolved in favor of the state.210 (Emphasis supplied)
Thus, Paa's essential and pivotal nuance was lost in proverbial translation. In any
case, Go was decided by this Court sitting in Division. It cannot overturn Tecson,
which was decided by this Court sitting En Banc. Likewise, Go's factual and even
procedural backdrops are different from those of this case. Go involved the
deportation of an allegedly illegal and undesirable alien, not an election controversy.
In Go, copies of birth certificates unequivocally showing the Chinese citizenship of
Go and of his siblings were adduced.
VII. B
The presumption that all foundlings found in the Philippines are born to at least
either a Filipino father or a Filipino mother (and are thus natural-born, unless there
is substantial proof otherwise) arises when one reads the Constitution as a whole, so
as to "effectuate [its] whole purpose."211chanrobleslaw
As much as we have previously harmonized Article IV, Section 2 with Article IV,
Section 1(2), constitutional provisions on citizenship must not be taken in isolation.
They must be read in light of the constitutional mandate to defend the well-being of
children, to guarantee equal protection of the law and equal access to opportunities
for public service, and to respect human rights. They must also be read in
conjunction with the Constitution's reasons for requiring natural-born status for
select public offices. Further, this presumption is validated by contemporaneous
construction that considers related legislative enactments, executive and
administrative actions, and international instruments.
Article II, Section 13 and Article XV, Section 3 of the 1987 Constitution require the
state to enhance children's well-being and to project them from conditions
prejudicial to or that may undermine their development. Fulfilling this mandate
includes preventing discriminatory conditions and, especially, dismantling
mechanisms for discrimination that hide behind the veneer of the legal
apparatus:ChanRoblesVirtualawlibrary
ARTICLE II
....
State Policies
....
SECTION 13. The State recognizes the vital role of the youth in nation-building
and shall promote and protect their physical, moral, spiritual, intellectual, and
social well-being. It shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.
....
ARTICLE XV
The Family
....
SECTION 3. The State shall defend:
chanRoblesvirtualLawlibrary. . . .
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development[.] (Emphasis supplied)
Certain crucial government offices are exclusive to natural-born citizens of the
Philippines. The 1987 Constitution makes the following offices exclusive to natural-
born citizens:ChanRoblesVirtualawlibrary
(1) President;212
(2) Vice-President;213
(3) Senator;214
(4) Member of the House of Representatives;215
(5) Member of the Supreme Court or any lower collegiate court;216
(6) Chairperson and Commissioners of the Civil Service Commission;217
(7) Chairperson and Commissioners of the Commission on Elections;218
(8) Chairperson and Commissioners of the Commission on Audit;219
(9) Ombudsman and his or her deputies;220
(10) Board of Governors of the Bangko Sentral ng Pilipinas;221 and
(11) Chairperson and Members of the Commission on Human Rights.222

Apart from these, other positions that are limited to natural-born citizens include,
among others, city fiscals,223 assistant city fiscals,224 Presiding Judges and Associate
Judges of the Sandiganbayan, and other public offices.225 Certain professions are also
limited to natural-born citizens,226 as are other legally established benefits and
incentives.227chanrobleslaw
Concluding that foundlings are not natural-born Filipino citizens is tantamount to

permanently discriminating against our foundling citizens. They can then never be
of service to the country in the highest possible capacities. It is also tantamount to
excluding them from certain means such as professions and state scholarships,
which will enable the actualization of their aspirations. These consequences cannot
be tolerated by the Constitution, not least of all through the present politically
charged proceedings, the direct objective of which is merely to exclude a singular
politician from office. Concluding that foundlings are not natural-born citizens
creates an inferior class of citizens who are made to suffer that inferiority through no
fault of their own.
If that is not discrimination, we do not know what is.
The Constitution guarantees equal protection of the laws and equal access to
opportunities for public service:ChanRoblesVirtualawlibrary
ARTICLE II
....
State Policies
....
SECTION 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.
....
ARTICLE III
Bill of Rights
SECTION 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.
....
ARTICLE XIII
Social Justice and Human Rights
SECTION 1. The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good. (Emphasis supplied)
The equal protection clause serves as a guarantee that "persons under like
circumstances and falling within the same class are treated alike, in terms of
'privileges conferred and liabilities enforced.' It is a guarantee against 'undue favor
and individual or class privilege, as well as hostile discrimination or oppression of
inequality.'"228chanrobleslaw
Other than the anonymity of their biological parents, no substantial

distinction229 differentiates foundlings from children with known Filipino parents.
They are both entitled to the full extent of the state's protection from the moment of
their birth. Foundlings' misfortune in failing to identify the parents who abandoned
theman inability arising from no fault of their owncannot be the foundation of a
rule that reduces them to statelessness or, at best, as inferior, second-class citizens
who are not entitled to as much benefits and protection from the state as those who
know their parents. Sustaining this classification is not only inequitable; it is
dehumanizing. It condemns those who, from the very beginning of their lives, were
abandoned to a life of desolation and deprivation.
This Court does not exist in a vacuum. It is a constitutional organ, mandated to effect
the Constitution's dictum of defending and promoting the well-being and
development of children. It is not our business to reify discriminatory classes based
on circumstances of birth.
Even more basic than their being citizens of the Philippines, foundlings are human
persons whose dignity we value and rights we, as a civilized nation, respect.
Thus:ChanRoblesVirtualawlibrary
ARTICLE II
....
State Policies
....
SECTION 11. The State values the dignity of every human person and
guarantees full respect for human rights. (Emphasis supplied)
VII. C
Though the matter is settled by interpretation exclusively within the confines of

constitutional text, the presumption that foundlings are natural-born citizens of the
Philippines (unless substantial evidence of the foreign citizenship of both of the
foundling's parents is presented) is validated by a parallel consideration or
contemporaneous construction of the Constitution with acts of Congress,
international instruments in force in the Philippines, as well as acts of executive
organs such as the Bureau of Immigration, Civil Registrars, and the President of the
Philippines.
Congress has enacted statutes founded on the premise that foundlings are Filipino
citizens at birth. It has adopted mechanisms to effect the constitutional mandate to
protect children. Likewise, the Senate has ratified treaties that put this mandate into
effect.
Republic Act No. 9344, otherwise known as the Juvenile Justice and Welfare Act of
2006, provides:ChanRoblesVirtualawlibrary
SEC. 2. Declaration of State Policy. - The following State policies shall be observed
at all times:
(b) The State shall protect the best interests of the child through measures that will
ensure the observance of international standards of child protection, especially
those to which the Philippines is a party. Proceedings before any authority shall be
conducted in the best interest of the child and in a manner which allows the child to
participate and to express himself/herself freely. The participation of children in the
program and policy formulation and implementation related to juvenile justice and
welfare shall be ensured by the concerned government agency. (Emphasis supplied)
Section 4(b) of the Republic Act No. 9344 defines the "best interest of the child" as the
"totality of the circumstances and conditions which are most congenial to the
survival, protection and feelings of security of the child and most encouraging to the
child's physical, psychological and emotional development."
Consistent with this statute is our ratification230 of the United Nations Convention on
the Rights of the Child. This specifically requires the states-parties' protection of:
first, children's rights to immediate registration and nationality after birth; second,
against statelessness; and third, against discrimination on account of their birth
status.231 Pertinent portions of the Convention read:ChanRoblesVirtualawlibrary
Preamble
The State Parties to the present Convention,
Considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world,
Bearing in mind that the peoples of the United Nations have, in the
Charter, reaffirmed their faith in fundamental human rights and in the dignity
and worth of the human person, and have determined to promote social progress
and better standards of life in larger freedom,
Recognizing that the United Nations has, in the Universal Declaration of Human
Rights and in the International Covenants on Human Rights, proclaimed and agreed
that everyone is entitled to all the rights and freedoms set forth therein, without
distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status,
Recalling that, in the Universal Declaration of Human Rights, the United Nations
has proclaimed that childhood is entitled to special care and assistance,
....
Have agreed as follows:
Article 2
1. State parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property,
disability, birth or other status.
2. States Parties shall take appropriate measures to ensure that the child
is protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the
child's parents, legal guardians, or family members.
Article 3
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be
a primary consideration.
2. States Parties undertake to ensure the child such protection and care
as is necessary for his or her well-being, taking into account the rights
and duties of his or her parents, legal guardians, or other individuals
legally responsible for him or her, and, to this end, shall take all
appropriate legislative and administrative measures.
....
Article 7
1. The child, shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and as
far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the
relevant international instruments in this field, in particular where the
child would otherwise be stateless. (Emphasis supplied)
The Philippines likewise ratified232 the 1966 International Covenant on Civil and
Political Rights. As with the Convention on the Rights of the Child, this treaty
requires that children be allowed immediate registration after birth and to acquire a
nationality. It similarly defends them against
discrimination:ChanRoblesVirtualawlibrary
Article 24. . . .
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of his
family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
....
Article 26. All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. (Emphasis supplied)
Treaties are "international agreements] concluded between state| in written form
and governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation."233 Under
Article VII, Section 21 of the 1987 Constitution, treaties require concurrence by the
Senate before they became binding:ChanRoblesVirtualawlibrary
SECTION 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
The Senate's ratification of a treaty makes it legally effective and binding by
transformation. It then has the force and effect of a statute enacted by Congress.
In Pharmaceutical and Health Care Association of the Philippines v. Duque III, et al.:234
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the
force of domestic law.
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into municipal law that can be applied
to domestic conflicts.235 (Emphasis supplied)
Following ratification by the Senate, no further action, legislative or otherwise, is
necessary. Thereafter, the whole of governmentincluding the judiciaryis duty-
bound to abide by the treaty, consistent with the maxim pacta sunt servanda.
Accordingly, by the Constitution and by statute, foundlings cannot be the object of

discrimination. They are vested with the rights to be registered and granted
nationality upon birth. To deny them these rights, deprive them of citizenship, and
render them stateless is to unduly burden them, discriminate them, and undermine
their development.
Not only Republic Act No. 9344, the Convention on the Rights of the Child, and the
International Covenant on Civil and Political Rights effect the constitutional dictum
of promoting the well-being of children and protecting them from discrimination.
Other legislative enactments demonstrate the intent to treat foundlings as Filipino
citizens from birth.
Republic Act No. 8552, though briefly referred to as the Domestic Adoption Act of
1998, is formally entitled An Act Establishing the Rules and Policies on Domestic
Adoption of Filipino Children and for Other Purposes. It was enacted as a
mechanism to "provide alternative protection and assistance through foster care or
adoption of every child who is neglected, orphaned, or abandoned."236chanrobleslaw
Foundlings are explicitly among the "Filipino children" covered by Republic Act No.
8552:237
SECTION 5. Location of Unknown Parent(s). It shall be the duty of the Department
or the child-placing or child-caring agency which has custody of the child to exert all
efforts to locate his/her unknown biological parent(s). If such efforts fail, the child
shall be registered as a foundling and subsequently be the subject of legal
proceedings where he/she shall be declared abandoned. (Emphasis supplied)
Similarly, Republic Act No. 8043, though briefly referred to as the Inter-Country
Adoption Act of 1995, is formally entitled An Act Establishing the Rules to Govern
Inter-Country Adoption of Filipino Children, and for Other Purposes. As with
Republic Act No. 8552, it expressly includes foundlings among "Filipino children"
who may be adopted:ChanRoblesVirtualawlibrary
SECTION 8. Who May Be Adopted. Only a legally free child may be the subject of
inter-country adoption, hi order that such child may be considered for placement,
the following documents must be submitted: to the Board:
chanRoblesvirtualLawlibrary a) Child study;
b) Birth certificate/foundling certificate;
c) Deed of voluntary commitment/decree of abandonment/death certificate of

parents;
d) Medical evaluation/history;
e) Psychological evaluation, as necessary; and cralawlawlibrary
f) Recent photo of the child. (Emphasis supplied)

In the case of foundlings, foundling certificates may be presented in lieu of
authenticated birth certificates to satisfy the requirement for the issuance of
passports, which will then facilitate their adoption by
foreigners:ChanRoblesVirtualawlibrary
SECTION 5. If the applicant is an adopted person, he must present a certified true
copy of the Court Order of Adoption, certified true copy of his original and
amended birth certificates as issued by the OCRG. If the applicant is a minor, a
Clearance from the DSWD shall be required. In case the applicant is for adoption by
foreign parents under R.A. No. 8043, the following, shall be required:
a) Certified true copy of the Court Decree of Abandonment of Child, the Death
Certificate of the child's parents, or the Deed of Voluntary Commitment
executed after the birth of the child.
b) Endorsement of child to the Intercountry Adoption Board by the DSWD.

c) Authenticated Birth or Foundling Certificate.238 (Emphasis supplied)
Our statutes on adoption allow for the recognition of foundlings' Filipino citizenship
on account of their birth. They benefit from this without having to do any act to
perfect their citizenship or without having to complete the naturalization process.
Thus, by definition, they are natural-born citizens.
Specifically regarding private respondent, several acts of executive organs have

recognized her natural-born status. This status was never questioned throughout her
life; that is, until circumstances made it appear that she was a viable candidate for
President of the Philippines. Until this, as well as the proceedings in the related case
of Poe-Llamanzares, private respondent's natural-born status has been affirmed and
reaffirmed through various official public acts.
First, private respondent was issued a foundling certificate and benefitted from the
domestic adoption process. Second, on July 18, 2006, she was granted an order of
reacquisition of natural-born citizenship under Republic Act No. 9225 by the Bureau
of Immigration. Third, on October 6, 2010, the President of the Philippines appointed
her as MTRCB Chairpersonan office that requires natural-born
citizenship.239chanrobleslaw
VIII
As it is settled that private respondent's being a foundling is not a bar to natural-

born citizenship, petitioner's proposition as to her inability to benefit from Republic
Act No. 9225 crumbles. Private respondent, a natural-born Filipino citizen, re-
acquired natural-born Filipino citizenship when, following her naturalization as a
citizen of the United States, she complied with the requisites of Republic Act No.
9225.
VIII. A
"Philippine citizenship may be lost or reacquired in the manner provided by

law."240 Commonwealth Act No. 63, which was in effect when private respondent
was naturalized an American citizen on October 18, 2001, provided in Section 1(1)
that "[a] Filipino citizen may lose his citizenship . . . [b]y naturalization in a foreign
country." Thus, private respondent lost her Philippine citizenship when she was
naturalized an American citizen. However, on July 7, 2006, she took her Oath of
Allegiance to the Republic of the Philippines under Section 3 of Republic Act No.
9225. Three (3) days later, July 10, 2006, she filed before the Bureau of Immigration
and Deportation a Petition for Reacquisition of her Philippine citizenship. Shortly
after, this Petition was granted.241chanrobleslaw
Republic Act No. 9225 superseded Commonwealth Act No. 63242 and Republic Act
No. 8171243 specifically "to do away with the provision in Commonwealth Act No. 63
which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries."244chanrobleslaw
The citizenship regime put in place by Republic Act No. 9225 is designed, in its own
words, to ensure "that all Philippine citizens who become citizens of another country
shall be deemed not to have lost their Philippine citizenship."245 This Court shed light
on this in Calilung v. Commission on Elections:246 "[w]hat Rep. Act No. 9225 does is
allow dual citizenship to natural-born Filipino citizens who have lost Philippine
citizenship by reason of their naturalization as citizens of a foreign
country."247chanrobleslaw
Republic Act No. 9225 made natural-born Filipinos' status permanent and
immutable despite naturalization as citizens of other countries. To effect this, Section
3 of Republic Act No. 9225 provides:ChanRoblesVirtualawlibrary
SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:ChanRoblesVirtualawlibrary
"I _________________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines; and
I hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
Section 3's implications are clear. Natural-born Philippine citizens who, after
Republic Act 9225 took effect, are naturalized in foreign countries "retain," that is,
keep, their Philippine citizenship, although the effectivity of this retention and the
ability to exercise the rights and capacities attendant to this status are subject to
certain solemnities (i.e., oath of allegiance and other requirements for specific rights
and/or acts, as enumerated in Section 5). On the other hand, those who became
citizens of another country before the effectivity of Republic Act No. 9225 "reacquire"
their Philippine citizenship and may exercise attendant rights and capacities, also
upon compliance with certain solemnities. Read in conjunction with Section 2's
declaration of a policy of immutability, this reacquisition is not a mere restoration
that leaves a vacuum in the intervening period. Rather, this reacquisition works to
restore natural-born status as though it was never lost at all.
VIII. B
Taking the Oath of Allegiance effects the retention or reacquisition of natural-born

citizenship. It also facilitates the enjoyment of civil and political rights, "subject to all
attendant liabilities and responsibilities."248 However, other conditions must be met
for the exercise of other faculties:ChanRoblesVirtualawlibrary
Sec. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act
No. 9189, otherwise known as "the Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath
of allegiance to the Republic of the Philippines and its duly constituted
authorities prior to their assumption of office; Provided, That they
renounce their oath of allegiance to the country where they took that
oath;
(4) Those intending to practice their profession in the Philippines shall apply
with the proper authority for a license or permit to engage in such
practice; and
(5) That the right to vote or be elected or appointed to any public office in
the Philippines cannot be exercised by, or extended to, those who:
a. are candidates for or are occupying any public office in the country of
which they are naturalized citizens; and/or
b. are in active service as commissioned or noncommissioned officers in the

armed forces of the country which they are naturalized citizens.
(Emphasis supplied)
Thus, natural-born Filipinos who have been naturalized elsewhere and wish to run
for elective public office must comply with all of the following requirements:
chanRoblesvirtualLawlibraryFirst, taking the oath of allegiance to the Republic. This
effects the retention or reacquisition of one's status as a natural-born Filipino.249 This
also enables the enjoyment of full civil and political rights, subject to all attendant
liabilities and responsibilities under existing laws, provided the solemnities recited
in Section 5 of Republic Act No. 9225 are satisfied.250chanrobleslaw
Second, compliance with Article V, Section 1 of the 1987 Constitution,251 Republic

Act No. 9189, otherwise known as the Overseas Absentee Voting Act of 2003, and
other existing laws. This is to facilitate the exercise of the right of suffrage; that is, to
allow for voting in elections.252chanrobleslaw
Third, "mak[ing] a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath."253 This, along
with satisfying the other qualification requirements under relevant laws, makes one
eligible for elective public office.
As explained in Sobejana-Condon v. Commission on Elections,254 this required sworn

renunciation is intended to complement Article XI, Section 18 of the Constitution in
that "[p]ublic officers and employees owe the State and this Constitution allegiance
at all times and any public officer or employee who seeks to change his citizenship
or acquire the status of an immigrant of another country during his tenure shall be
dealt with by law."255 It is also in view of this that Section 5(5) similarly bars those
who seek or occupy public office elsewhere and/or who are serving in the armed
forces of other countries from being appointed or elected to public office in the
Philippines.
VIII. C
Private respondent has complied with all of these requirements. First, on July 7,
2006, she took the Oath of Allegiance to the Republic of the Philippines.256 Second,
on August 31, 2006, she became a registered voter of Barangay Santa Lucia, San
Juan.257 This evidences her compliance with Article V, Section 1 of the 1987
Constitution. Since she was to vote within the country, this dispensed with the need
to comply with the Overseas Absentee Voting Act of 2003. Lastly, on October 20,
2010, she executed an Affidavit of Renunciation of Allegiance to the United States of
America and Renunciation of American Citizenship.258This was complemented by
her execution of an Oath/Affirmation of Renunciation of Nationality of the United
States259 before Vice-Consul Somer E. Bessire-Briers on July 12, 2011,260 which was, in
turn, followed by Vice Consul Jason Galian's issuance of a Certificate of Loss of
Nationality on December 9, 2011261 and the approval of this certificate by the
Overseas Citizen Service, Department of State, on February 3, 2012.262chanrobleslaw
Private respondent has, therefore, not only fully reacquired natural-born citizenship;
she has also complied with all of the other requirements for eligibility to elective
public office, as stipulated in Republic Act No. 9225.
VIII. D
It is incorrect to intimate that private respondent's having had to comply with
Republic Act No. 9225 shows that she is a naturalized, rather than a natural-born,
Filipino citizen. It is wrong to postulate that compliance with Republic Act No. 9225
signifies the performance of acts to perfect citizenship.
To do so is to completely disregard the unequivocal policy of permanence and

immutability as articulated in Section 2 of Republic Act No. 9225 and as illuminated
in jurisprudence. It is to erroneously assume that a natural-born Filipino citizen's
naturalization elsewhere is an irreversible termination of his or her natural-born
status.
To belabor the point, those who take the Oath of Allegiance under Section 3 of
Republic Act No. 9225 reacquire natural-born citizenship. The prefix "re" signifies
reference to the preceding state of affairs. It is to this status quo ante that one returns.
"Re"-acquiring can only mean a reversion to "the way things were." Had Republic
Act No. 9225 intended to mean the investiture of an entirely new status, it should not
have used a word such as "reacquire." Republic Act No. 9225, therefore, does not
operate to make new citizens whose citizenship commences only from the moment
of compliance with its requirements.
Bengson, speaking on the analogous situation of repatriation, ruled that repatriation

involves the restoration of former status or the recovery of one's original
nationality:ChanRoblesVirtualawlibrary
Moreover, repatriation results in the recovery of the original nationality. This means
that a naturalized Filipino who lost his citizenship will be restored to his prior status
as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born
citizen before he lost his Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.263 (Emphasis supplied)
Although Bengson was decided while Commonwealth Act No. 63 was in force, its
ruling is in keeping with Republic Act No. 9225 's policy of permanence and
immutablity: "all Philippine citizens of another country shall be deemed not to have
lost their Philippine citizenship."264 In Bengson's words, the once naturalized citizen
is "restored" or brought back to his or her natural-born status. There may have been
an interruption in the recognition of this status, as, in the interim, he or she was
naturalized elsewhere, but the restoration of natural-born status expurgates this
intervening fact. Thus, he or she does not become a Philippine citizen only from the
point of restoration and moving forward. He or she is recognized, de jure, as a
Philippine citizen from birth, although the intervening fact may have consequences
de facto.
Republic Act No. 9225 may involve extended processes not limited to taking the
Oath of Allegiance and requiring compliance with additional solemnities, but these
are for facilitating the enjoyment of other incidents to citizenship, not for effecting
the reacquisition of natural-born citizenship itself. Therefore, it is markedly different
from naturalization as there is no singular, extended process with which the former
natural-born citizen must comply.
IX
To hold, as petitioner suggests, that private respondent is stateless265 is not only to

set a dangerous and callous precedent. It is to make this Court an accomplice to
injustice.
Equality, the recognition of the humanity of every individual, and social justice are
the bedrocks of our constitutional order. By the unfortunate fortuity of the inability
or outright irresponsibility of those gave them life, foundlings are compelled to
begin their very existence at a disadvantage. Theirs is a continuing destitution that
can never be truly remedied by any economic relief.
If we are to make the motives of our Constitution true, then we an never tolerate an
interpretation that condemns foundlings to an even greater misfortune because of
their being abandoned. The Constitution cannot be rendered inert and meaningless
for them by mechanical judicial fiat.
Dura lex sed lex is not a callous and unthinking maxim to be deployed against other
reasonable interpretations of our basic law. It does command us to consider legal
text, but always with justice in mind.
It is the empowering and ennobling interpretation of the Constitution that we must

always sustain. Not only will this manner of interpretation edify the less fortunate; it
establishes us, as Filipinos, as a humane and civilized people.
The Senate Electoral Tribunal acted well within the bounds of its constitutional
competence when it ruled that private respondent is a natural-born citizen qualified
to sit as Senator of the Republic. Contrary to petitioner's arguments, there is no basis
for annulling its assailed Decision and Resolution.
WHEREFORE, the Petition for Certiorari is DISMISSED. Public respondent Senate

Electoral Tribunal did not act without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in rendering its
assailed November 17, 2015 Decision and December 3, 2015 Resolution.
Private respondent Mary Grace Poe-Llamanzares is a natural-born Filipino citizen

qualified to hold office as Senator of the Republic.
SO ORDERED.chanRoblesvirtualLawlibrary
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The
COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a.
FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.
[G.R. No. 161634. March 3, 2004]
ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY
POE, a.k.a. FERNANDO POE, JR., respondent.
[G. R. No. 161824. March 3, 2004]
VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS
and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE
JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are
deserving of the privilege. It is a precious heritage, as well as an inestimable
acquisition,[1] that cannot be taken lightly by anyone - either by those who enjoy it
or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question
of profound importance to the nation. The issue of citizenship is brought up to
challenge the qualifications of a presidential candidate to hold the highest office of the
land.Our people are waiting for the judgment of the Court with bated breath. Is
Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for
the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American
colonial roots and reminds us of the rich heritage of civil law and common law
traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no
less than distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as
Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position
of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang
Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of
candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines,
stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20
August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier,
Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also
known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition
docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to
disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon
the thesis that FPJ made a material misrepresentation in his certificate of candidacy by
claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his
father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish
subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he
could not have transmitted his Filipino citizenship to FPJ, the latter being an
illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate
birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage
to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no
such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after
the birth of respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004,
petitioner, in support of his claim, presented several documentary exhibits - 1) a copy
of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in
Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and
concubinage against the father of respondent, Allan F. Poe, after discovering his
bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a
certification issued by the Director of the Records Management and Archives Office,
attesting to the fact that there was no record in the National Archives that a Lorenzo
Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a
certification from the Officer-In-Charge of the Archives Division of the National
Archives to the effect that no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence,
the more significant ones being - a) a certification issued by Estrella M. Domingo of
the Archives Division of the National Archives that there appeared to be no available
information regarding the birth of Allan F. Poe in the registry of births for San Carlos,
Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division
of the National Archives that no available information about the marriage of Allan F.
Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d)
Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of
Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No.
20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate
of death of Lorenzo Pou, g) a copy of the purported marriage contract between
Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil
Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said
office during the period of from 1900 until May 1946 were totally destroyed during
World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of
merit. Three days later, or on 26 January 2004, Fornier filed his motion for
reconsideration. The motion was denied on 06 February 2004 by the COMELEC en
banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before
this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of
Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a
temporary restraining order, a writ of preliminary injunction or any other resolution
that would stay the finality and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R.
No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The
Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and
Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo
Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both
challenging the jurisdiction of the COMELEC and asserting that, under Article VII,
Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC
deny due course to or cancel FPJs certificate of candidacy for alleged
misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the
COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code
Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52 of the
Omnibus Election Code -
Section 52. Powers and functions of the Commission on Elections. In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to
the conduct of elections for the purpose of ensuring free, orderly and honest
elections -
and in relation to Article 69 of the Omnibus Election Code which would authorize
"any interested party" to file a verified petition to deny or cancel the certificate of
candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the
Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the Revised
Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads
"Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum, required by
the rules of the Commission or by the Commission itself. Unless otherwise provided
by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that
judicial power is vested in one Supreme Court and in such lower courts as may be
established by law which 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.
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly
elevated to, and could well be taken cognizance of by, this Court. A contrary view
could be a gross denial to our people of their fundamental right to be fully informed,
and to make a proper choice, on who could or should be elected to occupy the highest
government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634,
invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution
in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-
003 and in urging the Supreme Court to instead take on the petitions they directly
instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and
the 1973 Constitution to designate any tribunal to be the sole judge of presidential and
vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,[4] as
not (being) justiciable controversies or disputes involving contests on the elections,
returns and qualifications of the President or Vice-President. The constitutional lapse
prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act
Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests
Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines
and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the
Chief Justice and the Associate Justices of the Supreme Court to be the members of the
tribunal. Although the subsequent adoption of the parliamentary form of government
under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the
statutory set-up, nonetheless, would now be deemed revived under the present
Section 4, paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-
election scenario. Election contests consist of either an election protest or a quo
warranto which, although two distinct remedies, would have one objective in view, i.e.,
to dislodge the winning candidate from office. A perusal of the phraseology in Rule
12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated
by the Supreme Court en banc on 18 April 1992, would support this premise -
Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President of
the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an election
protest or a petition for quo warranto against the President or Vice-President. An
election protest shall not include a petition for quo warranto. A petition for quo
warranto shall not include an election protest.
Rule 14. Election Protest. - Only the registered candidate for President or for Vice-
President of the Philippines who received the second or third highest number of
votes may contest the election of the President or the Vice-President, as the case may
be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal
within thirty (30) days after the proclamation of the winner.
The rules categorically speak of the jurisdiction of the tribunal over contests
relating to the election, returns and qualifications of the "President" or "Vice-
President", of the Philippines, and not of "candidates" for President or Vice-
President. A quo warranto proceeding is generally defined as being an action against a
person who usurps, intrudes into, or unlawfully holds or exercises a public office.[5] In
such context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third
highest number of votes could file an election protest. This rule again presupposes a
post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section
4, paragraph 7, of the 1987 Constitution, would not include cases directly brought
before it, questioning the qualifications of a candidate for the presidency or vice-
presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs.
Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez
vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for
want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical
background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle,
who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared
in the administration of justice and in the holding of an office. [6] Aristotle saw its
significance if only to determine the constituency of the "State," which he described as
being composed of such persons who would be adequate in number to achieve a self-
sufficient existence.[7] The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty could be
expected. Citizenship was seen to deal with rights and entitlements, on the one hand,
and with concomitant obligations, on the other.[8] In its ideal setting, a citizen was
active in public life and fundamentally willing to submit his private interests to the
general interest of society.
The concept of citizenship had undergone changes over the centuries. In the 18th
century, the concept was limited, by and large, to civil citizenship, which established
the rights necessary for individual freedom, such as rights to property, personal
liberty and justice.[9] Its meaning expanded during the 19th century to include political
citizenship, which encompassed the right to participate in the exercise of political
power.[10] The 20th century saw the next stage of the development of social citizenship,
which laid emphasis on the right of the citizen to economic well-being and social
security.[11] The idea of citizenship has gained expression in the modern welfare state
as it so developed in Western Europe. An ongoing and final stage of development, in
keeping with the rapidly shrinking global village, might well be the internationalization
of citizenship.[12]
The Local Setting - from Spanish
Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but
"subjects of Spain" or "Spanish subjects."[13]In church records, the natives were
called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish
laws on citizenship became highly codified during the 19th century but their sheer
number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands
except for those explicitly extended by Royal Decrees.[14]
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was
extended to the Philippines remained to be the subject of differing views among
experts;[15] however, three royal decrees were undisputably made applicable to
Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,[16] the Royal
Decree of 23 August 1868 specifically defining the political status of children born in
the Philippine Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870,
which was expressly made applicable to the Philippines by the Royal Decree of 13 July
1870.[18]
The Spanish Constitution of 1876 was never extended to the Philippine Islands
because of the express mandate of its Article 89, according to which the provisions of
the Ultramar among which this country was included, would be governed by special
laws.[19]
It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who were
Spanish citizens. -
(a) Persons born in Spanish territory,
(b) Children of a Spanish father or mother, even if they were born outside of
Spain,
(c) Foreigners who have obtained naturalization papers,
(d) Those who, without such papers, may have become domiciled
inhabitants of any town of the Monarchy.[20]
The year 1898 was another turning point in Philippine history. Already in the state
of decline as a superpower, Spain was forced to so cede her sole colony in the East to
an upcoming world power, the United States. An accepted principle of international
law dictated that a change in sovereignty, while resulting in an abrogation of all
political laws then in force, would have no effect on civil laws, which would remain
virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the
United States.[21] Under Article IX of the treaty, the civil rights and political status of
the native inhabitants of the territories ceded to the United States would be
determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain
by the present treaty relinquishes or cedes her sovereignty may remain in such
territory or may remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such property or of its proceeds;
and they shall also have the right to carry on their industry, commerce, and
professions, being subject in respect thereof to such laws as are applicable to
foreigners. In case they remain in the territory they may preserve their allegiance to
the Crown of Spain by making, before a court of record, within a year from the date
of the exchange of ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they shall be held to have
renounced it and to have adopted the nationality of the territory in which they
reside.
Thus
"The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."[22]
Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish
subjects. Although they did not become American citizens, they, however, also ceased
to be "aliens" under American laws and were thus issued passports describing them
to be citizens of the Philippines entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of
1902, the first comprehensive legislation of the Congress of the United States on the
Philippines -
".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United States, except such as
shall have elected to preserve their allegiance to the Crown of Spain in accordance
with the provisions of the treaty of peace between the United States and Spain,
signed at Paris, December tenth eighteen hundred and ninety eight."[23]
Under the organic act, a citizen of the Philippines was one who was an inhabitant of
the Philippines, and a Spanish subject on the 11th day of April 1899. The term
inhabitant was taken to include 1) a native-born inhabitant, 2) an inhabitant who was
a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or
before 11 April 1899.[24]
Controversy arose on to the status of children born in the Philippines from 11
April 1899 to 01 July 1902, during which period no citizenship law was extant in the
Philippines. Weight was given to the view, articulated in jurisprudential writing at the
time, that the common law principle of jus soli, otherwise also known as the principle
of territoriality, operative in the United States and England, governed those born in
the Philippine Archipelago within that period.[25] More about this later.
In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby authorized to provide by law
for the acquisition of Philippine citizenship by those natives of the Philippine Islands
who do not come within the foregoing provisions, the natives of other insular
possession of the United States, and such other persons residing in the Philippine
Islands who would become citizens of the United States, under the laws of the
United States, if residing therein."[26]
With the adoption of the Philippine Bill of 1902, the concept of "Philippine
citizens" had for the first time crystallized. The word "Filipino" was used by William
H. Taft, the first Civil Governor General in the Philippines when he initially made
mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine
Autonomy Act, also known as the Jones Law restated virtually the provisions of the
Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -
That all inhabitants of the Philippine Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequently thereto, shall be deemed and held to be
citizens of the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of
peace between the United States and Spain, signed at Paris December tenth, eighteen
hundred and ninety-eight and except such others as have since become citizens of
some other country; Provided, That the Philippine Legislature, herein provided for,
is hereby authorized to provide for the acquisition of Philippine citizenship by those
natives of the Philippine Islands who do not come within the foregoing provisions,
the natives of the insular possessions of the United States, and such other persons
residing in the Philippine Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States, if residing
therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to
be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11
April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a
citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus soli was
a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such
link with common law, by adopting, once and for all, jus sanguinis or blood
relationship as being the basis of Filipino citizenship -
Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution
(2) Those born in the Philippines Islands of foreign parents who, before the adoption
of this Constitution, had been elected to public office in the Philippine Islands.
(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
Subsection (4), Article III, of the 1935 Constitution, taken together with existing
civil law provisions at the time, which provided that women would automatically lose
their Filipino citizenship and acquire that of their foreign husbands, resulted in
discriminatory situations that effectively incapacitated the women from transmitting
their Filipino citizenship to their legitimate children and required illegitimate children
of Filipino mothers to still elect Filipino citizenship upon reaching the age of
majority.Seeking to correct this anomaly, as well as fully cognizant of the newly found
status of Filipino women as equals to men, the framers of the 1973 Constitution crafted
the provisions of the new Constitution on citizenship to reflect such concerns -
Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:
Constitution.
(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
For good measure, Section 2 of the same article also further provided that
"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have
renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution,
except for subsection (3) thereof that aimed to correct the irregular situation generated
by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
The following are citizens of the Philippines:
Constitution.
(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the
Philippines, a registered voter, able to read and write, at least forty years of age on
the day of the election, and a resident of the Philippines for at least ten years
immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of
the Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship."[27]
The date, month and year of birth of FPJ appeared to be 20 August 1939 during
the regime of the 1935 Constitution.Through its history, four modes of acquiring
citizenship - naturalization, jus soli, res judicata and jus sanguinis[28] had been in
vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a
natural-born citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs[29] (1912), did not last long. With the adoption of the 1935 Constitution and
the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus sanguinis or blood
relationship would now become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the
earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou,
married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo
Pou had not been presented in evidence, his death certificate, however, identified him
to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of
his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F.
Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and
a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an uncertified
copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita
Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16 September 1940. In the same certificate,
Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen,
and Bessie Kelley to be twenty-two years old, unmarried, and an American
citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939
to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American
citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of some of the
entries on the birth certificate of respondent and the marriage certificate of his parents,
the only conclusions that could be drawn with some degree of certainty from the
documents would be that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16
September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years
old.
Would the above facts be sufficient or insufficient to establish the fact that FPJ is
a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie
Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are
documents of public record in the custody of a public officer. The documents have
been submitted in evidence by both contending parties during the proceedings before
the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3"
for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted
as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by
respondent as his Exhibit "5." While the last two documents were submitted in
evidence for respondent, the admissibility thereof, particularly in reference to the facts
which they purported to show, i.e., the marriage certificate in relation to the date of
marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death
of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by
petitioner, who had utilized those material statements in his argument. All three
documents were certified true copies of the originals.
Section 3, Rule 130, Rules of Court states that -
Original document must be produced; exceptions. - When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
xxxxxxxxx
(d) When the original is a public record in the custody of a public office or is
recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate
of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima
facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides:
Entries in official records. Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts therein stated.
The trustworthiness of public documents and the value given to the entries made
therein could be grounded on 1) the sense of official duty in the preparation of the
statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the
routine and disinterested origin of most such statements, and 4) the publicity of record
which makes more likely the prior exposure of such errors as might have occurred.[31]
The death certificate of Lorenzo Pou would indicate that he died on 11 September
1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that
Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a
colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines
during the crucial period of from 1898 to 1902 considering that there was no existing
record about such fact in the Records Management and Archives Office.Petitioner,
however, likewise failed to show that Lorenzo Pou was at any other place during the
same period. In his death certificate, the residence of Lorenzo Pou was stated to be
San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be
sound to conclude, or at least to presume, that the place of residence of a person at the
time of his death was also his residence before death. It would be extremely doubtful
if the Records Management and Archives Office would have had complete records of
all residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil
status of the child to the father [or mother]) or paternity (relationship or civil status of
the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son
according to petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08
December 1889 up until the day prior to 30 August 1950 when the Civil Code of the
Philippines took effect, acknowledgment was required to establish filiation or
paternity.Acknowledgment was either judicial (compulsory) or voluntary. Judicial or
compulsory acknowledgment was possible only if done during the lifetime of the
putative parent; voluntary acknowledgment could only be had in a record of birth, a
will, or a public document.[32] Complementary to the new code was Act No. 3753 or
the Civil Registry Law expressing in Section 5 thereof, that -
In case of an illegitimate child, the birth certificate shall be signed and sworn to
jointly by the parents of the infant or only by the mother if the father refuses. In the
latter case, it shall not be permissible to state or reveal in the document the name of
the father who refuses to acknowledge the child, or to give therein any information
by which such father could be identified.
In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be signed or
sworn to by the father. The failure of such requirement rendered the same useless as
being an authoritative document of recognition.[33] In Mendoza vs. Mella,[34] the Court
ruled -
"Since Rodolfo was born in 1935, after the registry law was enacted, the question
here really is whether or not his birth certificate (Exhibit 1), which is merely a
certified copy of the registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our judgment, may be
placed upon it. While it contains the names of both parents, there is no showing that
they signed the original, let alone swore to its contents as required in Section 5 of Act
No. 3753. For all that might have happened, it was not even they or either of them
who furnished the data to be entered in the civil register. Petitioners say that in any
event the birth certificate is in the nature of a public document wherein voluntary
recognition of a natural child may also be made, according to the same Article 131.
True enough, but in such a case, there must be a clear statement in the document
that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in
the document was the signature of Allan F. Poe found. There being no will apparently
executed, or at least shown to have been executed, by decedent Allan F. Poe, the only
other proof of voluntary recognition remained to be "some other public
document." In Pareja vs. Pareja,[35] this Court defined what could constitute such a
document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents,
those executed by private individuals which must be authenticated by notaries, and
those issued by competent public officials by reason of their office. The public
document pointed out in Article 131 as one of the means by which recognition may
be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of
illegitimate children into voluntary, legal or compulsory. Voluntary recognition was
required to be expressedly made in a record of birth, a will, a statement before a court
of record or in any authentic writing. Legal acknowledgment took place in favor of
full blood brothers and sisters of an illegitimate child who was recognized or judicially
declared as natural. Compulsory acknowledgment could be demanded generally in
cases when the child had in his favor any evidence to prove filiation. Unlike an action
to claim legitimacy which would last during the lifetime of the child, and might pass
exceptionally to the heirs of the child, an action to claim acknowledgment, however,
could only be brought during the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic
writing," so as to be an authentic writing for purposes of voluntary recognition, simply
as being a genuine or indubitable writing of the father. The term would include a
public instrument (one duly acknowledged before a notary public or other competent
official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and
Article 175 provide:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 173. The action to claim legitimacy may be brought by the child during his or
her lifetime and shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the death
of either or both of the parties.
x x x x x x x x x.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged parent.
The provisions of the Family Code are retroactively applied; Article 256 of the
code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be
decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that
Code provides that 'the voluntary recognition of a natural child shall take place
according to this Code, even if the child was born before the effectivity of this body
of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive
effect."
It should be apparent that the growing trend to liberalize the acknowledgment or
recognition of illegitimate children is an attempt to break away from the traditional
idea of keeping well apart legitimate and non-legitimate relationships within the
family in favor of the greater interest and welfare of the child. The provisions are
intended to merely govern the private and personal affairs of the family. There is little,
if any, to indicate that the legitimate or illegitimate civil status of the individual would
also affect his political rights or, in general, his relationship to the State. While, indeed,
provisions on "citizenship" could be found in the Civil Code, such provisions must be
taken in the context of private relations, the domain of civil law; particularly -
"Civil Law is that branch of law which has for its double purpose the organization of
the family and the regulation of property. It has thus [been] defined as the mass of
precepts which determine and regulate the relations of assistance, authority and
obedience among members of a family, and those which exist among members of a
society for the protection of private interests."[37]
In Yaez de Barnuevo vs. Fuster,[38] the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to
family rights and duties, or to the status, condition and legal capacity of persons,
govern Spaniards although they reside in a foreign country; that, in consequence, 'all
questions of a civil nature, such as those dealing with the validity or nullity of the
matrimonial bond, the domicile of the husband and wife, their support, as between
them, the separation of their properties, the rules governing property, marital
authority, division of conjugal property, the classification of their property, legal
causes for divorce, the extent of the latter, the authority to decree it, and, in general,
the civil effects of marriage and divorce upon the persons and properties of the
spouses, are questions that are governed exclusively by the national law of the
husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in
Article 15 of the Civil Code, stating that -
"Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad" -
that explains the need to incorporate in the code a reiteration of the Constitutional
provisions on citizenship. Similarly, citizenship is significant in civil relationships
found in different parts of the Civil Code,[39] such as on successional rights and family
relations.[40] In adoption, for instance, an adopted child would be considered the child
of his adoptive parents and accorded the same rights as their legitimate child but such
legal fiction extended only to define his rights under civil law[41] and not his political
status.
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and property laws, which,
while defining proprietary and successional rights of members of the family, provided
distinctions in the rights of legitimate and illegitimate children. In the monarchial set-
up of old Spain, the distribution and inheritance of titles and wealth were strictly
according to bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the
Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil
Code became the primary source of our own Civil Code. Such distinction, however,
remains and should remain only in the sphere of civil law and not unduly impede or
impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship
status should thus be deemed independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family Code provisions on proof
of filiation or paternity, although good law, do not have preclusive effects on matters
alien to personal and family relations. The ordinary rules on evidence could well and
should govern. For instance, the matter about pedigree is not necessarily precluded
from being applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -
Act or Declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth
or marriage, may be received in evidence where it occurred before the controversy,
and the relationship between the two persons is shown by evidence other than such
act or declaration. The word `pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately connected
with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already
dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant
must be a relative of the person whose pedigree is in question, (d) declaration must be
made before the controversy has occurred, and (e) the relationship between the
declarant and the person whose pedigree is in question must be shown by evidence
other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of
Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to
prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ,
i.e, living together with Bessie Kelley and his children (including respondent FPJ) in
one house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in
Stockton, California, U.S.A., after being sworn in accordance with law do hereby
declare that:
1. I am the sister of the late Bessie Kelley Poe.
2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe,
more popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ.
4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.
xxxxxxxxx
7. Fernando Poe Sr., and my sister Bessie, met and became engaged while
they were students at the University of the Philippines in 1936. I was
also introduced to Fernando Poe, Sr., by my sister that same year.
8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth,
Ronald, Allan and Fernando II, and myself lived together with our
mother at our family's house on Dakota St. (now Jorge Bocobo St.),
Malate until the liberation of Manila in 1945, except for some months
between 1943-1944.
10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more
children after Ronald Allan Poe.
xxxxxxxxx
18. I am executing this Declaration to attest to the fact that my nephew,
Ronald Allan Poe is a natural born Filipino, and that he is the
legitimate child of Fernando Poe, Sr.
Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas
Declarant
DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish
or would be difficult to obtain, DNA testing, which examines genetic codes obtained
from body cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals,[42] this Court has acknowledged the strong
weight of DNA testing -
"Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University
of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and the child are analyzed to
establish parentage. Of course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as the appropriate case comes,
courts should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently obtained in
aid of situations presented, since to reject said result is to deny progress."
Petitioners Argument For
Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could
not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate
child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on
July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent
marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The
veracity of the supposed certificate of marriage between Allan F. Poe and Paulita
Gomez could be most doubtful at best. But the documentary evidence introduced by
no less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a
Filipino father and an American mother who were married to each other a year later,
or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship
of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this
Court in Morano vs. Vivo,[43]citing Chiongbian vs. de Leon[44] and Serra vs. Republic.[45]
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ,
is most convincing; he states -
"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement
would be a decision constituting doctrine under the rule of stare decisis. But if the
pronouncement was irrelevant to the lis mota, the pronouncement would not be a
decision but a mere obiter dictum which did not establish doctrine. I therefore invite
the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino
father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese
mother and a Chinese father. The issue was whether the stepson followed the
naturalization of the stepfather.Nothing about jus sanguinis there. The stepson did
not have the blood of the naturalized stepfather.
Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a
Filipino father. It was about a legitimate son of a father who had become Filipino by
election to public office before the 1935 Constitution pursuant to Article IV, Section
1(2) of the 1935 Constitution. No one was illegitimate here.
Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino
father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The
issue was whether one who was already a Filipino because of his mother who still
needed to be naturalized. There is nothing there about invidious jus sanguinis.
Finally, Paa vs. Chan.[46] This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan
claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a
Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio,
his father. But the Supreme Court said that there was no valid proof that Leoncio
was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio
was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin
therefore was not only not a natural-born Filipino but was not even a Filipino.
The Court should have stopped there. But instead it followed with an obiter
dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino,
Quintin would not be Filipino because Quintin was illegitimate. This statement
about Quintin, based on a contrary to fact assumption, was absolutely unnecessary
for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter
dictum in Morano vs. Vivo.
xxxxxxxxx
"Aside from the fact that such a pronouncement would have no textual foundation
in the Constitution, it would also violate the equal protection clause of the
Constitution not once but twice. First, it would make an illegitimate distinction
between a legitimate child and an illegitimate child, and second, it would make an
illegitimate distinction between the illegitimate child of a Filipino father and the
illegitimate child of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago by
People vs. Cayat.[47] I would grant that the distinction between legitimate children
and illegitimate children rests on real differences. x x x But real differences alone do
not justify invidious distinction. Real differences may justify distinction for one
purpose but not for another purpose.
x x x What is the relevance of legitimacy or illegitimacy to elective public
service? What possible state interest can there be for disqualifying an illegitimate
child from becoming a public officer. It was not the fault of the child that his parents
had illicit liaison. Why deprive the child of the fullness of political rights for no fault
of his own? To disqualify an illegitimate child from holding an important public
office is to punish him for the indiscretion of his parents. There is neither justice nor
rationality in that. And if there is neither justice nor rationality in the distinction,
then the distinction transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this
Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have
expressed similar views. The thesis of petitioner, unfortunately hinging solely on
pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship
of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality
for the illegitimate child of an alien father in line with the assumption that the mother
had custody, would exercise parental authority and had the duty to support her
illegitimate child. It was to help the child, not to prejudice or discriminate against him.
The fact of the matter perhaps the most significant consideration is that the 1935
Constitution, the fundamental law prevailing on the day, month and year of birth of
respondent FPJ, can never be more explicit than it is. Providing neither conditions nor
distinctions, the Constitution states that among the citizens of the Philippines are
those whose fathers are citizens of the Philippines. There utterly is no cogent
justification to prescribe conditions or distinctions where there clearly are none
provided.
In Sum
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction
over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the
COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the
petition in SPA No. 04-003 which has prayed for the disqualification of respondent
FPJ from running for the position of President in the 10th May 2004 national elections
on the contention that FPJ has committed material representation in his certificate of
candidacy by representing himself to be a natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions
in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in
the latters capacity as the only tribunal to resolve a presidential and vice-presidential
election contest under the Constitution. Evidently, the primary jurisdiction of the
Court can directly be invoked only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not
the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and,
in the affirmative, whether or not the alleged illegitimacy of respondent prevents him
from taking after the Filipino citizenship of his putative father. Any conclusion on the
Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that
having died in 1954 at 84 years old, Lorenzo would have been born sometime in the
year 1870, when the Philippines was under Spanish rule, and that San Carlos,
Pangasinan, his place of residence upon his death in 1954, in the absence of any other
evidence, could have well been his place of residence before death, such that Lorenzo
Pou would have benefited from the en masse Filipinization that the Philippine Bill had
effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend
to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which
regime respondent FPJ has seen first light, confers citizenship to all persons whose
fathers are Filipino citizens regardless of whether such children are legitimate or
illegitimate.
(4) But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still
would preponderate in his favor enough to hold that he cannot be held guilty of
having made a material misrepresentation in his certificate of candidacy in violation
of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has
utterly failed to substantiate his case before the Court, notwithstanding the ample
opportunity given to the parties to present their position and evidence, and to prove
whether or not there has been material misrepresentation, which, as so ruled
in Romualdez-Marcos vs. COMELEC,[48] must not only be material, but also deliberate
and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe
(a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No.
161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon.
Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe,
Jr., for failure to show grave abuse of discretion on the part of respondent Commission
on Elections in dismissing the petition in SPA No. 04-003.
No Costs.
RENALD F. VILANDO, Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, JOCELYN SY
LIMKAICHONG AND HON. SPEAKER PROSPERO NOGRALES, Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing
the March 24, 2010 Decision1of the House of Representatives Electoral
Tribunal (HRET) dismissing the petitions for quo warranto and declaring private
respondent Jocelyn Sy Limkaichong (Limkaichong) not disqualified as Member of
the House of Representatives representing the First District of Negros Oriental and
its Resolution2 dated May 17, 2010, denying the motion for reconsideration.
In the May 14, 2007 elections, Limkaichong filed her certificate of candidacy for the
position of Representative of the First District of Negros Oriental. She won over the
other contender, Olivia Paras.
On May 25, 2007, she was proclaimed as Representative by the Provincial Board of
Canvassers on the basis of Comelec Resolution No. 80623 issued on May 18, 2007.
On July 23, 2007, she assumed office as Member of the House of Representatives.
Meanwhile, petitions involving either the disqualification or the proclamation of
Limkaichong were filed before the Commission on Elections (COMELEC) which
reached the Court.
The petitions, which questioned her citizenship, were filed against Limkaichong by
her detractors: Louis Biraogo (G.R. No. 179120);4 Olivia Paras (G.R. Nos. 179132-
33);5 and Renald F. Vilando (G.R. Nos. 179240-41).6 These three (3) petitions were
consolidated with the petition for certiorari filed by Limkaichong (G.R. Nos. 178831-
32) assailing the Joint Resolution issued by the COMELEC which resolved the
disqualification cases against her.
On April 1, 2009, the Court granted the aforesaid petition of Limkaichong, reversed
the Joint Resolution of the Comelec, dismissed the three (3) other petitions, and
directed the petitioners to seek relief before the HRET by way of a petition for Quo
Warranto.
On April 21, 2009 and May 27, 2009, petitioner Renald F. Vilando (Vilando), as
taxpayer; and Jacinto Paras, as registered voter of the congressional district
concerned, filed separate petitions for Quo Warranto against Limkaichong before the
HRET. These petitions were consolidated by the HRET as they both challenged the
eligibility of one and the same respondent. Petitioners asserted that Limkaichong
was a Chinese citizen and ineligible for the office she was elected and proclaimed.
They alleged that she was born to a father (Julio Sy), whose naturalization had not
attained finality, and to a mother who acquired the Chinese citizenship of Julio Sy
from the time of her marriage to the latter. Also, they invoked the jurisdiction of the
HRET for a determination of Limkaichongs citizenship, which necessarily included
an inquiry into the validity of the naturalization certificate of Julio Sy.
For her defense, Limkaichong maintained that she is a natural-born Filipino citizen.
She averred that the acquisition of Philippine citizenship by her father was regular
and in order and had already attained the status of res judicata. Further, she claimed
that the validity of such citizenship could not be assailed through a collateral attack.
On March 24, 2010, the HRET dismissed both petitions and declared Limkaichong
not disqualified as Member of the House of Representatives. Pertinent portions of
the HRET decision reads:
By and large, petitioners failed to satisfy the quantum of proof to sustain their theory
that respondent is not a natural-born Filipino citizen and therefore not qualified as
Representative of the First District, Negros Oriental. This being so, their petitions
must fail.
WHEREFORE, the Tribunal DISMISSES the instant petition for lack of merit and
declares that respondent Jocelyn Sy Limkaichong is not disqualified as Member of
the House of Representatives representing the First District, Negros Oriental.
As soon as the Decision becomes final and executory, notice of copies thereof shall
be sent to the President of the Philippines, the House of Representatives through the
Speaker, the Commission on Audit through the Chairman, pursuant to Rule 96 of
the 2004 Rules of the House of Representatives Electoral Tribunal. Let a copy of this
Decision be furnished the Chairman, Commission on Elections, for his information
and appropriate action.
SO ORDERED.7
The petitioners sought reconsideration of the aforesaid decision, but it was denied
by the HRET in its Resolution dated May 17, 2010.
Hence, this petition for certiorari filed by Vilando anchored on the following
GROUNDS:
THE ONE-SIDED RESOLUTION OF THE SUBJECT PETITION FOR QUO
WARRANTO AND THE UTTER FAILURE OF THE HRET TO DISQUALIFY
LIMKAICHONG AS MEMBER OF THE HOUSE OF REPRESENTATIVES DESPITE
MANIFEST EVIDENCE THAT SHE IS NOT A NATURAL-BORN FILIPINO
CITIZEN IS WHIMSICAL, CAPRICIOUS AND ARBITRARY BECAUSE:
1. THE PETITION FOR QUO WARRANTO DOES NOT OPERATE AS
A COLLATERAL ATTACK ON THE CITIZENSHIP OF
LIMKAICHONGS FATHER FOR THE REASON THAT HER
FATHERS CERTIFICATE OF NATURALIZATION IS OF NO FORCE
AND EFFECT FROM THE VERY BEGINNING, HENCE, THERE IS
ACTUALLY NOTHING BEING ATTACKED OR ASSAILED BY THE
SAME.
2. LIMKAICHONG CANNOT DERIVE PHILIPPINE CITIZENSHIP
FROM HER MOTHER GIVEN THAT AT THE TIME OF HER BIRTH,
HER MOTHER IS NOT ALREADY A FILIPINO CITIZEN AS A
RESULT OF HER MARRIAGE TO HER FATHER AS PROVIDED FOR
UNDER SECTION 1 (7) OF COMMONWEALTH ACT NO. 63 IN
RELATION TO ARTICLE 2 (1) CHAPTER II OF THE CHINESE
REVISED NATIONALITY LAW OF FEBRUARY 5, 1959.
3. HAVING THE PLENARY, ABSOLUTE AND EXCLUSIVE
JURISDICTION TO DETERMINE, AMONG OTHERS, THE
QUALIFICATIONS OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES, THE HRET CAN LOOK INTO THE
ELIGIBILITY OF LIMKAICHONG EVEN IF, AS AN INCIDENT
THERETO, IT WOULD MEAN LOOKING INTO THE VALIDITY OF
THE CERTIFICATE OF NATURALIZATION.8
It should be noted that Limkaichongs term of office as Representative of the First
District of Negros Oriental from June 30, 2007 to June 30, 2010 already expired. As
such, the issue questioning her eligibility to hold office has been rendered moot and
academic by the expiration of her term. Whatever judgment is reached, the same can
no longer have any practical legal effect or, in the nature of things, can no longer be
enforced.9 Thus, the petition may be dismissed for being moot and academic.
Moreover, there was the conduct of the 2010 elections, a supervening event, in a
sense, has also rendered this case moot and academic. A moot and academic case is
one that ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical value. As a rule, courts decline
jurisdiction over such case, or dismiss it on ground of mootness. 10
Citizenship, being a continuing requirement for Members of the House of
Representatives, however, may be questioned at anytime.11 For this reason, the
Court deems it appropriate to resolve the petition on the merits. This position finds
support in the rule that courts will decide a question, otherwise moot and academic,
if it is "capable of repetition, yet evading review."12 The question on Limkaichongs
citizenship is likely to recur if she would run again, as she did run, for public office,
hence, capable of repetition.
In any case, the Court is of the view that the HRET committed no grave abuse of
discretion in finding that Limkaichong is not disqualified to sit as Member of the
House of Representatives.
Vilandos argument, that the quo warranto petition does not operate as a collateral
attack on the citizenship of Limkaichongs father as the certificate of naturalization is
null and void from the beginning, is devoid of merit.
In this petition, Vilando seeks to disqualify Limkaichong on the ground that she is a
Chinese citizen. To prove his point, he makes reference to the alleged nullity of the
grant of naturalization of Limkaichongs father which, however, is not allowed as it
would constitute a collateral attack on the citizenship of the father. In our
jurisdiction, an attack on a person's citizenship may only be done through a direct
action for its nullity.13
The proper proceeding to assail the citizenship of Limkaichongs father should be in
accordance with Section 18 of Commonwealth Act No. 473. As held in Limkaichong v.
Comelec,14 thus:
As early as the case of Queto v. Catolico,15 where the Court of First Instance
judge motu propio and not in the proper denaturalization proceedings called to court
various grantees of certificates of naturalization (who had already taken their oaths
of allegiance) and cancelled their certificates of naturalization due to procedural
infirmities, the Court held that:
x x x It may be true that, as alleged by said respondents, that the proceedings for
naturalization were tainted with certain infirmities, fatal or otherwise, but that is
beside the point in this case. The jurisdiction of the court to inquire into and rule
upon such infirmities must be properly invoked in accordance with the procedure
laid down by law. Such procedure is the cancellation of the naturalization certificate.
[Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of
Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in
the proper proceedings by the Solicitor General or his representatives, or by the
proper provincial fiscal." In other words, the initiative must come from these officers,
presumably after previous investigation in each particular case.
Clearly, under law and jurisprudence, it is the State, through its representatives
designated by statute, that may question the illegally or invalidly procured
certificate of naturalization in the appropriate denaturalization proceedings. It is
plainly not a matter that may be raised by private persons in an election case
involving the naturalized citizens descendant.
Vilando asserts that as an incident in determining the eligibility of Limkaichong, the
HRET, having the plenary, absolute and exclusive jurisdiction to determine her
qualifications, can pass upon the efficacy of the certificate of naturalization.
True, the HRET has jurisdiction over quo warranto petitions, specifically over cases
challenging ineligibility on the ground of lack of citizenship. No less than the 1987
Constitution vests the HRET the authority to be the sole judge of all contests relating
to the election, returns and qualifications of its Members. This constitutional power
is likewise echoed in the 2004 Rules of the HRET. Rule 14 thereof restates this duty,
thus:
Rule 14. Jurisdiction. The Tribunal is the sole judge of all contests relating to the
election, returns, and qualifications of the Members of the House of Representatives.
Time and again, this Court has acknowledged this sole and exclusive jurisdiction of
the HRET.16 The power granted to HRET by the Constitution is intended to be as
complete and unimpaired as if it had remained originally in the legislature.17 Such
power is regarded as full, clear and complete and excludes the exercise of any
authority on the part of this Court that would in any wise restrict it or curtail it or
even affect the same.18
Such power of the HRET, no matter how complete and exclusive, does not carry
with it the authority to delve into the legality of the judgment of naturalization in the
pursuit of disqualifying Limkaichong. To rule otherwise would operate as a
collateral attack on the citizenship of the father which, as already stated, is not
permissible. The HRET properly resolved the issue with the following ratiocination:
xxx We note that Jocelyn C. Limkaichong, not the father Julio Ong Sy, is the
respondent in the present case. The Tribunal may not dwell on deliberating on the
validity of naturalization of the father if only to pursue the end of declaring the
daughter as disqualified to hold office.
Unfortunately, much as the Tribunal wants to resolve said issue, it cannot do so
because its jurisdiction is limited to the qualification of the proclaimed respondent
Limkaichong, being a sitting Member of the Congress.
Evidently, there is no basis to oblige the Tribunal to reopen the naturalization
proceedings for a determination of the citizenship of the ascendant of respondent. A
petition for quo warranto is not a means to achieve that purpose. To rule on this issue
in this quo warranto proceeding will not only be a clear grave abuse of discretion
amounting to a lack or excess of jurisdiction, but also a blatant violation of due
process on the part of the persons who will be affected or who are not parties in this
case.19
Thus, the Office of the Solicitor General (OSG) wrote that "a collateral attack against
a judgment is generally not allowed, unless the judgment is void upon its face or its
nullity is apparent by virtue of its own recitals."20 Under the present situation, there
is no evidence to show that the judgment is void on its face:
As to the Order of the CFI, Negros Oriental dated July 9, 1957 and September 21,
1959 that were offered in evidence, far from proving an invalid oath of allegiance
and certificate of naturalization, being public records, they do in fact constitute
legitimate source of authority for the conferment of status of the father of respondent
as naturalized Filipino. Absent any contrary declaration by a competent court, the
Tribunal presumes the validity of the CFI Orders of July 9, 1957 and September 21,
1959, and the resulting documentations of Julio Sys acquisition of Filipino
citizenship by naturalization as valid and of legal effect. The oath of allegiance and
certificate of naturalization are themselves proofs of the actual conferment of
naturalization.21
The HRET, therefore, correctly relied on the presumption of validity of the July 9,
1957 and September 21, 1959 Orders of the Court of First Instance (CFI) Negros
Oriental, which granted the petition and declared Julio Sy a naturalized Filipino
absent any evidence to the contrary.
Records disclose that Limkaichong was born in Dumaguete City on November 9,
1959. The governing law is the citizenship provision of the 1935 Constitution, the
pertinent portion thereof, reads:
Article IV
xxx
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age
of majority, elect Philippine citizenship.
xxx
Indubitably, with Limkaichongs father having been conferred the status as a
naturalized Filipino, it follows that she is a Filipino citizen born to a Filipino father.
Even on the assumption that the naturalization proceedings and the subsequent
issuance of certificate of naturalization were invalid, Limkaichong can still be
considered a natural-born Filipino citizen having been born to a Filipino mother and
having impliedly elected Filipino citizenship when she reached majority age. The
HRET is, thus, correct in declaring that Limkaichong is a natural-born Filipino
citizen:
Respondent Limkaichong falls under the category of those persons whose fathers are
citizens of the Philippines. (Section 1(3), Article IV, 1935 Constitution) It matters not
whether the father acquired citizenship by birth or by naturalization. Therefore,
following the line of transmission through the father under the 1935 Constitution,
the respondent has satisfactorily complied with the requirement for candidacy and
for holding office, as she is a natural-born Filipino citizen.
Likewise, the citizenship of respondent Limkaichong finds support in paragraph 4,
Section 1, Article IV of the 1935 Constitution.
Having failed to prove that Anesia Sy lost her Philippine citizenship, respondent can
be considered a natural born citizen of the Philippines, having been born to a mother
who was a natural-born Filipina at the time of marriage, and because respondent
was able to elect citizenship informally when she reached majority age. Respondent
participated in the barangay elections as a young voter in 1976, accomplished voters
affidavit as of 1984, and ran as a candidate and was elected as Mayor of La Libertad,
Negros Oriental in 2004. These are positive acts of election of Philippine citizenship.
The case of In re: Florencio Mallare, elucidates how election of citizenship is
manifested in actions indubitably showing a definite choice. We note that
respondent had informally elected citizenship after January 17, 1973 during which
time the 1973 Constitution considered as citizens of the Philippines all those who
elect citizenship in accordance with the 1935 Constitution. The 1987 Constitution
provisions, i.e., Section 1(3), Article [IV] and Section 2, Article [IV] were enacted to
correct the anomalous situation where one born of a Filipino father and an alien
mother was automatically accorded the status of a natural-born citizen, while one
born of a Filipino mother and an alien father would still have to elect Philippine
citizenship yet if so elected, was not conferred natural-born status. It was the
intention of the framers of the 1987 Constitution to treat equally those born before
the 1973 Constitution and who elected Philippine citizenship upon reaching the age
of majority either before or after the effectivity of the 1973 Constitution. Thus, those
who would elect Philippine citizenship under par. 3, Section 1, Article [IV] of the
1987 Constitution are now, under Section 2, Article [IV] thereof also natural-born
Filipinos. The following are the pertinent provisions of the 1987 Constitution:
Article IV
Constitution;
(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
Section 2. Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens.22
Vilandos assertion that Limkaichong cannot derive Philippine citizenship from her
mother because the latter became a Chinese citizen when she married Julio Sy, as
provided for under Section 1 (7) of Commonwealth Act No. 63 in relation to Article 2
(1) Chapter II of the Chinese Revised Nationality Law of February 5, 1959, must
likewise fail.
As aptly pointed out by the HRET, Vilando was not able to offer in evidence a duly
certified true copy of the alleged Chinese Revised Law of Nationality to prove that
Limkaichongs mother indeed lost her Philippine citizenship. Verily, Vilando failed
to establish his case through competent and admissible evidence to warrant a
reversal of the HRET ruling.
Also, an application for an alien certificate of registration (ACR) is not an indubitable
proof of forfeiture of Philippine citizenship. It is well to quote the ruling of the HRET
on this matter, to wit:
An alien certificate of registration is issued to an individual who declares that he is
not a Filipino citizen. It is obtained only when applied for. It is in a form prescribed
by the agency and contains a declaration by the applicant of his or her personal
information, a photograph, and physical details that identify the applicant. It bears
no indication of basis for foreign citizenship, nor proof of change to foreign
citizenship. It certifies that a person named therein has applied for registration and
fingerprinting and that such person was issued a certificate of registration under the
Alien Registration Act of 1950 or other special law. It is only evidence of registration.
Unlike birth certificates registered pursuant to Act 3753 (The Civil Register Law),
and much less like other public records referred to under Section 23, Rule 132, an
alien certificate of registration is not a public document that would be prima
facie evidence of the truth of facts contained therein. On its face, it only certifies that
the applicant had submitted himself or herself to registration. Therefore, there is no
presumption of alienage of the declarant. This is especially so where the declarant
has in fact been a natural-born Filipino all along and never lost his or her status as
such.23 1avvphi1
Thus, obtaining an ACR by Limkaichongs mother was not tantamount to a
repudiation of her original citizenship. Neither did it result in an acquisition of alien
citizenship. In a string of decisions, this Court has consistently held that an
application for, and the holding of, an alien certificate of registration is not an act
constituting renunciation of Philippine citizenship.24 For renunciation to effectively
result in the loss of citizenship, the same must be express.25 Such express
renunciation is lacking in this case.
Accordingly, Limkaichongs mother, being a Filipino citizen, can transmit her
citizenship to her daughter.
Well-settled is the principle that the judgments of the HRET are beyond judicial
interference. The only instance where this Court may intervene in the exercise of its
so-called extraordinary jurisdiction is upon a determination that the decision or
resolution of the HRET was rendered without or in excess of its jurisdiction, or with
grave abuse of discretion or upon a clear showing of such arbitrary and improvident
use of its power to constitute a denial of due process of law, or upon a
demonstration of a very clear unmitigated error, manifestly constituting such grave
abuse of discretion that there has to be a remedy for such abuse.26 In this case, there
is no showing of any such arbitrariness or improvidence. The HRET acted well
within the sphere of its power when it dismissed the quo warranto petition.
In fine, this Court finds sufficient basis to sustain the ruling of the HRET which
resolved the issue of citizenship in favor of Limkaichong.
WHEREFORE, the petition is DENIED. Accordingly, the Court affirms the March
24, 2010 Decision of the HRET declaring that Limkaichong is not disqualified as
Member of the House of Representatives representing the First District, Negros
Oriental.
THE REPUBLIC OF THE PHILIPPINES, Petitioner, v. NORA FE SAGUN,
Respondent.
VILLARAMA, JR., J.:

FACTS:
Nora Fe Sagun is the legitimate child of Albert S. Chan, a Chinese national, and
Marta Borromeo, a Filipino citizen. She was born on August 8, 1959 in Baguio City
and did not elect Philippine citizenship upon reaching the age of majority. In 1992, at
the age of 33 and after getting married to Alex Sagun, she executed an Oath of
Allegiance to the Republic of the Philippines. Said document was notarized by Atty.
Cristeta Leungon but was not recorded and registered with the Local Civil Registrar
of Baguio City.
Sometime in September 2005, respondent applied for a Philippine passport. Her

application was denied due to the citizenship of her father and there being no
annotation on her birth certificate that she has elected Philippine citizenship.
Consequently, she sought a judicial declaration of her election of Philippine
citizenship averring that she was raised as a Filipino and she is a registered voter of
Precinct No. 0419A of Barangay Manuel A. Roxas in Baguio City and had voted in
local and national elections as shown in the Voter Certification. She asserted that by
virtue of her positive acts, she has effectively elected Philippine citizenship and such
fact should be annotated on her record of birth so as to entitle her to the issuance of a
Philippine passport.
After conducting a hearing, the trial court rendered the assailed Decision on April 3,
2009 granting the petition and declaring respondent a Filipino citizen.
Upon payment of the required fees, the Local Civil Registrar of Baguio City is hereby
directed to annotate [on] her birth certificate, this judicial declaration of Filipino
citizenship of said petitioner.
Petitioner, through the OSG, directly filed the instant recourse via a petition for
review on certiorari before us. Petitioner points out that while respondent executed
an oath of allegiance before a notary public, there was no affidavit of her election of
Philippine citizenship. Additionally, her oath of allegiance which was not registered
with the nearest local civil registry was executed when she was already 33 years old
or 12 years after she reached the age of majority.
ISSUES: Whether or not an action or proceeding for judicial declaration of Philippine

citizenship is procedurally and jurisdictionally permissible; and,Whether or not an election of
Philippine citizenship, made twelve (12) years after reaching the age of majority, is
considered to have been made within a reasonable time as interpreted by jurisprudence.
HELD: The original ruling was reversed.
POLITICAL LAW: requirements of citizenship
The petition is meritorious.
Under our laws, there can be no action or proceeding for the judicial declaration of
the citizenship of an individual. Courts of justice exist for settlement of justiciable
controversies, which imply a given right, legally demandable and enforceable, an act
or omission violative of said right, and a remedy, granted or sanctioned by law, for
said breach of right. As an incident only of the adjudication of the rights of the
parties to a controversy, the court may pass upon, and make a pronouncement
relative to their status. Otherwise, such a pronouncement is beyond judicial power.
Clearly, it was erroneous for the trial court to make a specific declaration of
respondents Filipino citizenship as such pronouncement was not within the court's
competence.
As to the propriety of respondent's petition seeking a judicial declaration of election

of Philippine citizenship, it is imperative that we determine whether respondent is
required under the law to make an election and if so, whether she has complied with
the procedural requirements in the election of Philippine citizenship.
When respondent was born on August 8, 1959, the governing charter was the 1935
Constitution, which declares as citizens of the Philippines those whose mothers are
citizens of the Philippines and elect Philippine citizenship upon reaching the age of
majority. Sec. 1, Art. IV of the 1935 Constitution reads:
xxxx
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age
of majority, elect Philippine citizenship.
Under Article IV, Section 1(4) of the 1935 Constitution, the citizenship of a legitimate
child born of a Filipino mother and an alien father followed the citizenship of the
father, unless, upon reaching the age of majority, the child elected Philippine
citizenship. The right to elect Philippine citizenship was recognized in the 1973
Constitution when it provided that [t]hose who elect Philippine citizenship pursuant
to the provisions of the Constitution of nineteen hundred and thirty-five are citizens
of the Philippines. Likewise, this recognition by the 1973 Constitution was carried
over to the 1987 Constitution which states that [t]hose born before January 17, 1973
of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority are Philippine citizens. It should be noted, however, that the 1973 and 1987
Constitutional provisions on the election of Philippine citizenship should not be
understood as having a curative effect on any irregularity in the acquisition of
citizenship for those covered by the 1935 Constitution. If the citizenship of a person
was subject to challenge under the old charter, it remains subject to challenge under
the new charter even if the judicial challenge had not been commenced before the
effectivity of the new Constitution.
G.R. No. 200983, March 18, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner, v. HUANG TE FU, A.K.A. ROBERT
UY, Respondent.
DECISION
DEL CASTILLO, J.:
This case reiterates the rule in naturalization cases that when full and complete
compliance with the requirements of the Revised Naturalization Law, or
Commonwealth Act No. 473 (CA 473), is not shown, a petition for naturalization
must be perfunctorily denied.
This Petition for Review on Certiorari1 seeks to set aside 1) the November 29, 2011
Decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 91213 affirming the
September 24, 2007 Order3 of the Regional Trial Court of Quezon City, Branch 96 in
Nat. Case/Spec. Proc. No. Q-05-55251, as well as 2) the CAs March 7, 2012
Resolution4 denying petitioners Motion for Reconsideration.5cralawred
Factual Antecedents
On March 19, 2004, respondent Huang Te Fu, a.k.a. Robert Uy a citizen of the
Republic of China (Taiwan) filed a sworn Declaration of Intent to Become [a]
Citizen of the Philippines6 with the Office of the Solicitor General (OSG).
On April 27, 2005, respondent filed with the Regional Trial Court of Quezon City
(trial court) a Petition for Naturalization,7 which was docketed as Spec. Proc. No. Q-
05-55251 and assigned to Branch 96. The Petition states:
I apply for naturalization as citizen of the Philippines and to the Court, respectfully
shows [sic]:chanRoblesvirtualLawlibrary
First: My full name is HUANG TE FU, also known as ROBERT
UY;ChanRoblesVirtualawlibrary
Second: My places of residence were:
1982 1 Santiago Street, Malinta, Valenzuela City
1982 to Biak na Bato, San Francisco Del Monte, Quezon City
1984
1984 to 235 C 3rd Street, 10th Avenue, Caloocan City
1994
1994 to 64-A Parklane Street, Barangay Sangandaan, Project 8, Quezon
present City;
Third: My trade or profession is a Businessman engaged in the manufacture of

zipper, in which I have been connected since 1992; and from which I derive an
average monthly income of P15,000.00;ChanRoblesVirtualawlibrary
Fourth: I was born on the 15th day of August 1976 in Taiwan. I am at present a
Citizen or subject of the Republic of China, under whose laws Filipinos may become
naturalized citizens or subjects thereof [sic];ChanRoblesVirtualawlibrary
Fifth: I am married to a Filipino, IRENE D. CHAN, 28 years of age, having been born
on 11 April 1977 at Manila, and with whom I have two (2) children, namely:
ROCHELLE IVY C. HUANG, 3 years of age, who was born on 26 March 2002 at [sic]
Quezon City; and REYNARD IVAN C. HUANG, 1 year of age, who was born on 25
February 2004 at [sic] Quezon City. My wife and two children are presently residing
with me at 64-A Parklane Street, Barangay Sangandaan, Project 8, Quezon
City;ChanRoblesVirtualawlibrary
Sixth: I arrived in the Philippines via China Airlines on the 13th of August
1982;ChanRoblesVirtualawlibrary
Seventh: I have filed my Declaration of Intent to Become a Citizen of the Philippines

with the Office of the Solicitor General on 4 March 2004, pursuant to and in
compliance with Section 5 of Commonwealth Act No. 473, as amended;8cralawred
Eighth: I have resided continuously, for the last twenty three (23) years, in the
Philippines since my arrival. I have received my primary education at Philippine
Cultural High School; secondary education at Philippine Cultural High School; and
finished my college education at Ateneo de Manila University with the degree of
Bachelor of Science in Computer Science, respectively, which are schools recognized
by the Government and not limited to any race or
nationality;ChanRoblesVirtualawlibrary
Ninth: I am able to speak and write English and

Filipino;ChanRoblesVirtualawlibrary
Tenth: I believe in the principle underlying the Philippine Constitution. I am of good

moral character and have conducted myself in a proper and irreproachable manner
during the entire period of my residence in the Philippines, in my relations with the
constituted Government as well as with the community in which I am living. I have
mingled socially with the Filipinos, and have evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the Filipinos. I have all the
qualifications required under Section 2, a special qualification under Section 3, by
being married to a Filipino woman, and none of the disqualifications under Section 4
of Commonwealth Act No. 473;ChanRoblesVirtualawlibrary
I am not opposed to organized government or affiliated with any association or

group of persons who uphold and teach doctrines opposing all organized
governments. I am not defending or teaching the necessity or propriety of violence,
personal assault, or assassination for the success and predominance of mens ideas. I
am not a polygamist nor a believer in the practice of polygamy. I have not been
convicted of any crime involving moral turpitude. I am not suffering from any
mental alienation or incurable diseases. The nation of which I am a citizen or subject
of is not at war with the Philippines. The country of which I am a citizen or subject
of grants Filipinos the right to become naturalized citizens or subjects
thereof;ChanRoblesVirtualawlibrary
Eleventh: It is my intention in good faith to become a citizen or subject of the
Philippines and to renounce absolutely and forever all allegiance and fidelity to my
foreign prince, potentate, state, or sovereignty, and particularly to the Republic of
China of which at this time I am a citizen or subject. I will reside continuously in the
Philippines from the date of the filing of my petition up to the time of my admission
to the Philippine Citizenship;ChanRoblesVirtualawlibrary
Twelfth: I have not heretofore made any petition for citizenship to any
Court;ChanRoblesVirtualawlibrary
Thirteenth: Mr. BENJAMIN A. MORALEDA, JR., of legal age, married, residing at 82-
A Maginoo Street, Barangay Central, Quezon City, and Ms. BELLA RAMONA A.
ANTONANO, of legal age, single, residing at 1 Ligaya Street, Mandaluyong City,
who are both Filipinos, will appear and testify as my witnesses at the hearing of my
herein petition.
Attached hereto and made an integral part of this petition are: (a) the Original
Certification of Arrival from the Bureau of Immigration (Annex A); (b) Declaration
of Intent to Become a Citizen of the Philippines (Annex B); (c) Affidavit of the two
witnesses (Annexes C and D); and (d) my two recent photographs (Annexes E
and E-1).
WHEREFORE, petitioner prays that he be admitted a citizen of the

Philippines.9cralawlawlibrary
After trial, the trial court issued a September 24, 2007 Order10 granting respondents
petition for naturalization, decreeing thus:chanRoblesvirtualLawlibrary
Petitioner11 thereafter testified that he was born on August 15, 1976 in Taiwan; that
his father, Huang Ping-Hsung, and mother, Huang Wen, Chiu-Yueh are both
Chinese nationals; that he is the holder of Alien Certificate of Registration No.
E062035 and Immigrant Certificate of Residence No. 259804; that he resided at Lin 4,
Chienkuo Li, Panchiao City, Taipei County, Taiwan Province since his birth until he
came to Manila, Philippines on August 13, 1982; that he first stayed at Santiago
Street, Valenzuela City; that they transferred to Biak-na-Bato Street, San Francisco
Del Monte and they later transferred to 23-C, 3rd Street, 10th Avenue, Caloocan City;
that petitioner presently resides at No. 64-A Parklane Street, Barangay Sangandaan,
Project 8, Quezon City; that he attended Philippine Cultural High School for his
elementary and secondary education; that he attended Ateneo de Manila University
where he took up Bachelor of Science in Computer Science.
When petitioner graduated from College in the year 2000, he worked as General
Manager of MIT Zipper, a company owned by the family of the petitioner; that as a
businessman he conscientiously files Income Tax Returns; that he is presently
married to Irene Chan, a Filipino citizen on October 01, 2000; that he has two
children namely, Rochelle Ivy C. Huang, 3 years old, and Reynard Ivan C. Huang, 1
year old and that he and his family are presently residing at 64-A Parklane Street,
Barangay Sangandaan, Project 8, Quezon City.
Petitioner further alleged that he believes in the principles underlying the Philippine
Constitution. He had conducted himself in a proper, irreproachable manner during
his entire period of residence in the Philippines in his relations with the constituted
government as well as with the community in which he is living. These allegations
are evinced by the clearances petitioner was able to secure from the Philippine
National Police, National Bureau of Investigation, Office of the Clerk of Court
Regional Trial Court, Quezon City, and the Office of the City Prosecutor. He has
mingled socially with the Filipinos, and have [sic] evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos.
Petitioner further alleged that he is not a polygamist nor a believer in the practice of
polygamy. He has not been convicted of any crime involving moral turpitude. He is
not suffering from any mental alienation or any incurable or contagious disease. The
nation of which he is presently a citizen or subject of, is not at war with the
Philippines. He is not opposed to organized government or affiliated with any
association or group of persons who uphold and teach doctrines opposing all
organized governments. He has all the qualifications required and none of the
disqualifications under Commonwealth Act No. 473, as amended.
Moreover, petitioners intention to become a citizen of the Philippines is being done

in good faith, and to renounce absolutely and forever all allegiance and fidelity to
any foreign state, prince, potentate or sovereignty and particularly to the Chinese
Government of which at this time he is a citizen and subject, and that petitioner shall
reside continuously in the Philippines from the date of filing of this petition up to
the time of [his] admission to the Philippine Citizenship.
Based on the foregoing, the Court believes that the petitioner was able to establish by
sufficient evidence, both testimonial and documentary, that he has all the
qualifications and none of the disqualifications provided for under the law which
will warrant the granting of the relief being prayed for.
ACCORDINGLY, therefore, the petition for admission as citizen of the Philippines is

hereby GRANTED.
This decision shall become executory after two (2) years from its promulgation and
after the Court, after hearing, with the attendance of the Solicitor General or his
representative, is satisfied, and so finds that during the intervening time the
applicant has (1) not left the Philippines, (2) dedicated himself continuously to a
lawful calling or profession, (3) not been convicted of any offense or violation of
government[-]promulgated rules, or (4) committed any act of [sic] prejudicial to the
interest of the nation or contrary to any government renounced [sic] policies.
SO ORDERED.12cralawlawlibrary
Ruling of the Court of Appeals
Petitioner filed an appeal with the CA, which was docketed as CA-G.R. CV No.
91213. Petitioner contended in its Appellants Brief13 that respondent may not
become a naturalized Filipino citizen because: 1) he does not own real estate in the
Philippines; 2) he does not have some known lucrative trade, profession or lawful
occupation; 3) he is not gainfully employed, as he merely worked in the business
owned by his family and was merely given allowances by his parents for the daily
expenses of his family; 4) in an August 2001 Deed of Sale14 covering a parcel of land
in Antipolo City he and his wife supposedly purchased, respondent falsely
misrepresented himself as a Filipino citizen, thus exemplifying his lack of good
moral character; 5) his income tax returns for the years 2002, 2003 and 2004 reveal
that his actual monthly income differs from his monthly income as declared in his
petition for naturalization, leading to the conclusion that either he is evading taxes or
concealing the truth regarding his income; and 6) on cross-examination by
petitioner, he could not cite any of the principles underlying the Philippine
Constitution which he is supposed to believe in.
In a short Comment/Opposition15 to petitioners brief, respondent admitted that

while he was merely made to sign the Deed of Sale which falsely represented him
as a Filipino citizen, he had nothing to do with the preparation thereof and was
unaware that his citizenship was even indicated therein he just signed the
document as requested by the broker so that the property will be registered in the
name of his wife; that the discrepancy between his income declarations in his tax
returns and the declared income in his petition for naturalization came to light and
resulted from the fact that he does not personally file his income tax returns and
that he merely received salaries in the range of P15,000.00 per month considering
that he is employed in a family corporation; that most of his expenses are taken
care of by his parents who own the corporation, and this has been
explained during his cross-examination; that while petitioner claimed that he could
not cite any underlying principles of the Constitution, he was not confronted by the
former about these principles during the proceedings; and that petitioners
opposition is based merely on conjecture and particular portions of the evidence
which do not represent the whole context of the proceedings.
On November 29, 2011, the CA issued the assailed Decision, pronouncing

thus:chanRoblesvirtualLawlibrary
First off, an examination of the evidence presented during the proceedings below
shows that the petitioner-appellee16 has been engaged in some lucrative trade or
lawful occupation. He works as general manager in their family-owned business,
Crown Shipper Manufacturer and Trading Corporation, a zipper manufacturing
company employing workers mostly coming from the province.
Prior to his appointment as general manager, petitioner-appellee has also been

working in the familys business before his parents turned over the management of
its affairs. This is evidenced by the increase in the declared gross income of the
petitioner-appellee in his Income Tax Returns filed for the years 2002, 2003, 2004 and
2005. The extent of the operations of the petitioner-appellees family business and
his involvement in the management thereof are corroborated by the testimonies of
Atty. Benjamin Moraleda and Atty. Bella Ramona Antonano, both friends of the
Huang family and the petitioner-appellee since 1987 and 1994, respectively. Both
witnesses also testified that the petitioner-appellee possessed all the qualifications
and none of the disqualifications to become a naturalized citizen of the Philippines.
Secondly, the Solicitor General also averred that the petitioner-appellee failed to
conduct himself in a proper and irreproachable manner during his entire stay or
residence in the Philippines. It noted that the petitioner-appellee stated in his
petition that he earns an average of P15,000.00 per month but his declared gross
income for 2002 and 2003 indicated that he earned P120,000.00 annually while in
2004, his annual gross income was P210,000.00. The Solicitor General contended that
because of the petitioner-appellees failure to divulge his true income, his moral
character has been tainted.
We hold otherwise.
Absent a clear and unmistakable showing that the petitioner-appellee knowingly

and deliberately filed a fraudulent return with intent to evade tax or that he has
concealed the truth in his income tax returns, the presumption that the latter has
regularly filed his return prevails. The petitioner-appellee has, in fact, explained
before the trial court that his salary is not exactly fixed; sometimes he earns more or
sometimes less than his estimated or average monthly earnings which could well be
between P15,000.00 to P18,000.00. He even testified that he is not included in the
payroll since his parents own the company and his salaries are handed to him by his
parents.
In the case of Republic of the Philippines v. Court of Appeals and Loh Khuan Fatt, the
Supreme Court did not agree with the argument of the Solicitor General that there
had been a willful failure on the part of the applicant to disclose the petitioners true
income, thereby tainting his moral character. The discrepancy between the
petitioners estimate of his income in his application and that declared by him
during his direct testimony should not be taken against him as an indication of
intent to evade payment of taxes. x x x
xxxx
Lastly, the Solicitor General argued that petitioner-appellee is disqualified from

becoming a citizen of the Philippines because he could not even cite any of the
principles underlying the Constitution during cross-examination x x x.chanrobleslaw
xxxx
We agree with the observation of the petitioner-appellee that the oppositors
representative during the cross-examination was actually asking the petitioner-
appellee to recite what these underlying principles of the Constitution are in a
manner which a law professor would normally ask his Political Law students. Not
being able to enumerate the principles in verbatim does not necessarily mean that
one does not believe in the Constitution. What is important is that the petitioner-
appellee declared under oath that he believes in the principles underlying the
Constitution, and that he had no derogatory or criminal record which would be a
clear violation of the law of the land. Apparently, during cross-examination the
oppositor-appellant did not confront the petitioner-appellee of the principles which
it thought the latter does not believe in.
WHEREFORE, the appeal is DENIED and the Decision dated September 24, 2007 of
the Regional Trial Court of Quezon City, Branch 96 in Naturalization Case No. Q-05-
55251 is AFFIRMED.
SO ORDERED.17cralawlawlibrary
Petitioner moved for reconsideration, but in its March 7, 2012 Resolution, the
appellate court stood its ground.chanroblesvirtuallawlibrary
Issue
Thus, the instant Petition was filed, raising the following

issue:chanRoblesvirtualLawlibrary
WHETHER X X X RESPONDENT X X X HAS DULY COMPLIED WITH THE RIGID
REQUISITES PRESCRIBED BY COMMONWEALTH ACT NO. 473, OTHERWISE
KNOWN AS THE REVISED NATURALIZATION LAW, AS TO ENTITLE HIM TO
BE ADMITTED AS A CITIZEN OF THE PHILIPPINES.18cralawred
cralawlawlibrary
Petitioners Arguments
In its Petition and Reply19 seeking the reversal of the assailed CA dispositions as well
as the denial of respondents petition for naturalization, petitioner argues that
respondent failed to prove that he is engaged in a lucrative trade, profession or
lawful occupation; that respondents admission during trial that he is not even in the
payroll of his employer belies his claim that he is the general manager thereof, as
well as his claim that he is engaged in a lucrative trade; that respondents declared
monthly income is not even sufficient for his family, much less could it be
considered lucrative; that respondents admission that he received allowances
from his parents to answer for the daily expenses of his family further proves the
point that he does not have a lucrative trade; that the monthly income declared in
respondents petition for naturalization could not be reconciled with the incomes
stated in his annual tax returns; that the inconsistencies in respondents testimonial
and documentary evidence point to the fact the he could either be evading taxes or
concealing the truth regarding his income, and indicates that he does not possess the
requisite good moral character; that respondents act of falsely declaring himself a
Filipino citizen in the August 2001 deed of sale proves lack of good moral character
and defiance of the constitutional prohibition regarding foreign ownership of land;
and that respondent has exhibited lack of knowledge of the underlying principles of
the Philippine Constitution.
Respondents Arguments
In his Comment,20 respondent reiterates that the inconsistencies in his income tax
returns and declarations during the naturalization proceedings are explained by the
fact that he does not personally file his income tax returns; that his monthly salary is
not fixed; that most of his expenses are taken cared of by his parents who own the
zipper manufacturing business which employs him; that the Antipolo property was
not titled in his name, but in the name of his wife, and the title thereto merely
describes and indicates that the owner his wife is married to him; that he was
merely made to sign the deed of sale, and he had no hand in its preparation nor
was he aware that his citizenship was indicated therein; and that as he was not a law
student, he could not at the trial be expected to recite verbatim and specifically the
underlying legal principles of the Constitution, which is what petitioner expected
him to do at the time.chanroblesvirtuallawlibrary
Our Ruling
The Court finds for petitioner.
In Republic v. Hong,21 it was held in essence that an applicant for naturalization must
show full and complete compliance with the requirements of the naturalization law;
otherwise, his petition for naturalization will be denied. This ponente has likewise
held that [t]he courts must always be mindful that naturalization proceedings are
imbued with the highest public interest. Naturalization laws should be rigidly
enforced and strictly construed in favor of the government and against the applicant.
The burden of proof rests upon the applicant to show full and complete compliance
with the requirements of law.22cralawred
Section 2 of the Revised Naturalization Law or CA 473 requires, among others, that
an applicant for naturalization must be of good moral character and must have some
known lucrative trade, profession, or lawful occupation. In regard to the
requirement that the applicant must have a known lucrative trade,
this ponente declared:chanRoblesvirtualLawlibrary
Based on jurisprudence, the qualification of some known lucrative trade,
profession, or lawful occupation means not only that the person having the
employment gets enough for his ordinary necessities in life. It must be shown
that the employment gives one an income such that there is an appreciable margin
of his income over his expenses as to be able to provide for an adequate support in
the event of unemployment, sickness, or disability to work and thus avoid ones
becoming the object of charity or a public charge. His income should permit
him and the members of his family to live with reasonable comfort, in
accordance with the prevailing standard of living, and consistently with the
demands of human dignity, at this stage of our civilization.
Moreover, it has been held that in determining the existence of a lucrative income,
the courts should consider only the applicants income; his or her spouses income
should not be included in the assessment. The spouses additional income is
immaterial for under the law the petitioner should be the one to possess some
known lucrative trade, profession or lawful occupation to qualify him to become a
Filipino citizen. Lastly, the Court has consistently held that the applicants
qualifications must be determined as of the time of the filing of his
petition.23 (Emphasis supplied)cralawlawlibrary
From the above, it may be concluded that there is no basis for the CA finding that
respondent is engaged in a lucrative trade. Indeed, his supposed income of
P15,000.00 to P18,000.00 per month as found by the CA is not enough for the support
of his family. By his own admission, most of his familys daily expenses are still
shouldered by his parents who own the zipper manufacturing business which
employs him. This simply means that respondent continues to be a burden to, and a
charge upon, his parents; he lives on the charity of his parents. He cannot support
his own family on his own.
Indeed, it is even doubtful that respondent is carrying on a trade at all. He admitted

during trial that he was not even listed or included in the payroll of his familys
zipper business. If this is the case, then he may not be considered an employee
thereof. One of the most effective pieces of evidence to prove employment aside
from the employment contract itself and other documents such as daily time
records24 is a workers inclusion in the payroll. With this admitted fact, one may
not be faulted for believing that respondents alleged employment in his familys
zipper business was contrived for the sole purpose of complying with the legal
requirements prior to obtaining Philippine citizenship.
On the other hand, even assuming that respondent was indeed employed by his
parents, his non-inclusion in the payroll for all the years he has worked in his
parents business25 suggests as correctly argued by petitioner an intent to evade
taxes or to conceal the true nature of his employment and the amount of his salary or
income. It is concealment of the truth; an attempt to circumvent with impunity the
tax laws, labor laws relative to the employment of aliens, and other laws that would
otherwise regulate respondents actions during his stay in this country. Indeed,
without payroll records, it can never be said that respondent works for his parents
zipper business. If such is the case, then respondent is not required to state in his
income tax return as is the case his employer and what he actually receives as
salary therefrom; he is free to conveniently declare any amount of income in his tax
returns.
Either way, respondents deliberate non-inclusion in the payroll of his parents

business can have only the most unpleasant connotations. And his consent to be
part of such scheme reflects negatively on his moral character. It shows a proclivity
for untruthfulness and dishonesty, and an unreserved willingness and readiness to
violate Philippine laws.
The appellate courts reliance upon the case of Republic v. Court of Appeals26 is
misplaced. In that case, there was only a discrepancy between the applicants
estimate of his income in his application and that declared by him during his direct
testimony. In the present case, respondent is not at all listed on the payroll of his
parents business, where he is supposed to be its general manager. As a result, there
is absolutely no basis for the correct determination of his income; instead, he invites
Us to conveniently rely on his income tax returns and his unilateral declarations. As
We have earlier said, if We are to believe them, then still, they are insufficient to
generate a conclusion that respondent is carrying on a lucrative trade; he cannot
support his family from his declared income.
Moreover, respondents admitted false declaration under oath contained in the

August 2001 deed of sale that he is a Filipino citizen which he did to secure the
seamless registration of the property in the name of his wife is further proof of
respondents lack of good moral character. It is also a violation of the constitutional
prohibition on ownership of lands by foreign individuals.27 His defense that he
unknowingly signed the deed is unacceptable. First of all, as a foreigner living in a
foreign land, he should conduct himself accordingly in this country with care,
circumspect, and respect for the laws of the host. Finally, as an educated and
experienced businessman, it must be presumed that he acted with due care and
signed the deed of sale with full knowledge of its import.28cralawred
Having decided in the foregoing manner, We must conclude the instant case and
disregard the other issues and arguments of the parties; they are deemed irrelevant
and will not alter the conclusion arrived at. As far as this Court is concerned,
respondent has failed to satisfy the law which renders him completely undeserving
of Filipino citizenship.
WHEREFORE, the Petition is GRANTED. The November 29, 2011 Decision and
March 7, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 91213
are REVERSED AND SET ASIDE. The September 24, 2007 Order of the Regional
Trial Court of Quezon City, Branch 96 in Nat. Case/Spec. Proc. No. Q-05-55251 is
likewise ANNULLED and SET ASIDE, and the respondents Petition for
Naturalization in said case is DISMISSED.
REPUBLIC OF THE PHILIPPINES, Petitioner, v. KAMRAN F.

KARBASI, Respondent.
DECISION
MENDOZA, J.:
The Contracting States shall as far as possible facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort to expedite naturalization proceedings
and to reduce as far as possible the charges and costs of such proceedings.1
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing
the January 29, 2013 Decision2 and the November 27, 20133 Resolution of the Court
of Appeals (CA), in CA-G.R. CV No. 01126-MIN, which affirmed the January 17,2007
Order of the Regional Trial Court, Branch 10, Dipolog City (RTC), in a naturalization
case docketed as Naturalization Case No. 2866. The RTC order granted the petition
for naturalization and, thus, admitted Kamran F. Karbasi as a citizen of the
Philippines.
The Facts
On June 25, 2002, Kamran F. Karbasi (Karbasi) filed a petition for naturalization with
the RTC, where he alleged the following:chanRoblesvirtualLawlibrary
1. His full name is Kamran F. Karbasi;
2. He is recognized as a Person of Concern by the United Nations High
Commissioner for Refugees (UNHCR) as shown in a certification duly
issued by the UNHCR;
3. He is presently residing with his family at 341 Burgos Street, Dipolog
City, since early part of June 2000 and more so has resided
continuously in the Philippines for not less than 11 years immediately
preceding the date of this petition; to wit, since 11 July 1990 and in
Dipolog City for more than one (1) year;
4. His last place of foreign residence was Pakistan and his other places of
residence, prior to his present residence, were as follows (i) Panay
Ave., Quezon City; (ii) Sta. Filomena, Dipolog City; (iii) Capitol Area,
Dumaguete City; (iv) Dohinob, Roxas, Zamboanga del Norte;
5. He was born on 4 September 1966 in Tehran, Iran, as shown in his
identity card which also serves as his birth certificate;
6. He is married and is the father of one (1) child;
7. His wife Cliji G. Lim Karbasi is a Filipino citizen, 22 years old and born
on 10 August 1979 in Cebu City, whom he married on 12 October 2000
in Dipolog City, as shown in their certificate of marriage;
8. His child, Keenyji L. Karbasi, l-year old , was born on 9 June 2001 in
Dipolog City and presently residing with him and his wife at 341
Burgos Street, Dipolog City;
9. He arrived in Manila, Philippines, under an assumed name (Syed Gul
Agha) from Pakistan on 11 July 1990 specifically at the Manila
International Airport on board Philippine Airlines Flight No. 731, per
UNHCR certification containing reference to his Pakistani passport
issued under said assumed name;
10. Due to his marriage, he is entitled to the benefit of Section 3 of
Commonwealth Act No. 473, which reduced to five years the ten year
requirement of continuous residence;
11. He speaks and writes English and Visayan;
12. His trade or occupation is as a repair technician in which he has been
engaged since 1998 and, as such, he derives an average annual income
of Php 80,000.00 more or less;
13. He has all the qualifications required under Section 2 and none of the
disqualifications under Section 4, of the Commonwealth Act No. 473;
14. He has complied with the requirements of the Naturalization Law
(Commonwealth Act No. 473) regarding the filing with the Office of
the Solicitor General of his bona fide intention to become a citizen of
the Philippines, as shown in his Declaration of Intention duly filed on
25 May 2001;
15. It is his intention in good faith to become a citizen of the Philippines
and to renounce absolutely and forever all allegiance and fidelity to
any foreign prince, potentate, state or sovereignty, and particularly to
Iran of which, at this time, he is a citizen or subject; that he will reside
continuously in the Philippines from the date of filing of this petition
up to the time of his admission to Philippine citizenship;
16. Dominador Natividad Tagulo, of legal age, Filipino, married and
residing at ABC Compound, Quezon Ave., Miputak, Dipolog City and
Alton C. Ratificar, of legal age, Filipino, married and residing at 047
Burgos Street, Dipolog City, who are Filipino citizens, whose affidavits
are attached to his petition, will appear and testify as witnesses at the
hearing thereof.
[Emphasis Supplied]
On July 2, 2002, after finding the petition sufficient in form and substance, the RTC
issued an order setting the petition for hearing on October 21, 2002 and ordering the
publication thereof, once a week for three (3) consecutive weeks, in the Official
Gazette and in a newspaper of general circulation in Zamboanga del Norte and in
the cities of Dipolog and Dapitan. In the same Order, persons concerned were
enjoined to show cause, if any, why the petition should not be granted and oppose
the petition.
On July 22, 2002, the RTC amended its previous order and, with notice to the Office
of the Solicitor General (OSG), reset the hearing on September 10, 2003 instead
because the National Printing Office could no longer accommodate the publication
requirement before the first hearing date.
On December 2, 9 and 16, 2002, copies of the amended order and Karbasi's petition
were published in the Official Gazette. Subsequently, the same were published
in Press Freedom on January 27, February 3 and 10, 2003. The said copies were
likewise posted on the bulletin boards of the RTC and the Municipal Building of
Roxas, Zamboanga del Norte and Capitol Building, Dipolog City.
On September 10, 2003, Karbasi and his counsel appeared and presented proof of
compliance with the jurisdictional requirements. Nobody appeared to interpose an
objection to the petition.
During the hearing on May 18, 2006, Alton C. Ratificar (Ratificar) and Dominador
Natividad Tagulo (Tagulo) testified as character witnesses.
Ratificar testified that in 1990, he was introduced to Karbasi whose house was
located about 30 meters away from his; that he came to know him since then; that
when Karbasi got married, he was invited to the wedding ceremony where the then
City Mayor of Dipolog was one of the wedding sponsors; that he also attended the
celebration; that he used to see Karbasi almost every day as he owned an electronics
repair shop near his house; that Karbasi would also allow neighbors, who did not
own television sets at home, to watch shows at his repair shop; that he never heard
of any complaint by the neighbors against Karbasi, who went to church during
Sundays and even on weekdays; that on several occasions, he was invited to
Karbasi's home, where he observed his good relationship with his in-laws and his
treatment of his wife and child which was in accordance with Filipino customs; and
that Karbasi talked to him in both Visayan and English.
For his part, witness Tagulo testified that he worked at the Andres Bonifacio College
and had known Karbasi since July 1990 when the latter was then enrolled in a
vocational course; that Karbasi was very respectful to his instructors and that he had
good grades; that he treated his schoolmates in accordance with Filipino customs;
that he never showed any inclination to violence; that when Karbasi transferred to
Dumaguete City, he visited him there; and that during this visits, Tagulo witnessed
how Karbasi socially interacted and mingled with the rest of the community.
On August 10, 2006, the wife of Karbasi, Cliji G. Lim (Cliji), also took the witness
stand. She testified that her father introduced her to Karbasi during her graduation
party; that a courtship followed thereafter for five months, during which Karbasi
was well-behaved and acted like any other Filipino; that when Karbasi proposed
marriage to her, he was accompanied by his brother, Ali Karbasi; that Karbasi's
baptism as a Catholic coincided with her birthday; that after their marriage, they
begot two (2) children; that Karbasi continuously stayed with his family and never
returned to Iran; that he was a good husband, father and provider; that all his
income from the repair shop was turned over to her for the budgeting of the family's
expenses; and that he was then earning a daily income of P1,000.00.
She added that Karbasi and his family regularly attended the Catholic mass and
received communion; that they were active members of Couples for Christ since
2003; that he actively participated in Catholic practices like the novena and vigil for
her deceased grandfather; that Karbasi was not a polygamist and that he did not flirt
with other women; that she never heard her husband speak of any terrorist groups;
and that he was never known to have an immoral reputation.
On several hearing dates thereafter, Karbasi himself took the witness stand. As
summarized by the RTC, the gist of his testimony is as
follows:chanRoblesvirtualLawlibrary
He is an Iranian national. He was born in Tehran, Iran, and resided there since birth
up to 1986. His father is Abdolhossein Karbasi, a doctor in Iran, and his mother is
Narjes Froghnia Karbasi, a retired teacher.
He has five brothers and two sisters. The eldest of the brood, Hamid Reza Karbasi, is
in the United States of America and is now an American Citizen. The second, Dr. Ali
Reza Karbasi, admitted as Filipino citizen in the Regional Trial Court, Branch 6,
Dipolog City, is in the Philippines. The third is Qite Karbasi, his sister. The fourth,
his brother, Dr. Abduoul Reza Karbasi, graduated in India. The fifth, his sister, Kia
Karbasi, is a nurse. The sixth, his brother Qolam Reza Karbasi, is an engineer who
graduated in France. His last four siblings are all in Iran.
He was a Shiite Muslim before he was converted as Roman Catholic. His former
religion believes in the existence of a Supreme Being called God. It believes in the
existence of government and repudiates violence. His said religion is not within an
organization of Al Qaeda, Jemayah Islamiya, or any terrorist group. It also adheres
to the principle of one man-one woman marital relation.
He and his brother, Ali Reza Karbasi, left Iran in 1986 because of the war between
Iran and Iraq at that time. When the Shah of Iran, Pahlavi, was overthrown by
Ayatolah Khomini in 1979, some Iranian nationals left Iran. He and Ali Reza, who
also condemns the act of overthrowing an existing government by force and
violence, were among those who left. Since the government confiscated his passport,
they traveled by camel and passed by the desert during night time to reach Pakistan.
He stayed there for almost three (3) years,
Being foreigners in Pakistan, they submitted themselves to the United Nations High
Commissioner for Refugees. However, they were not granted the status of refugee
right away since Pakistan is adjacent to Iran. They had to transfer to a third country
not at war with Iran. Since his brother Ali Reza was already studying in the
Philippines, they decided to come here.
As it was difficult for him to get travel documents, petitioner procured a Pakistani
passport under the assumed name of Syed Gul Agha.
Upon his arrival in the Philippines on July n, 1990, he submitted himself to the
United Nations in Manila. After several interviews, he was admitted as a refugee
and, later on, as a person of concern. As a refugee, he was granted by the United
Nations allowances, medical benefits and protection to some extent.
After having been interviewed by the Solicitor General regarding his intention to
become a Filipino citizen, he filed the corresponding Declaration of Intention, dated
March 28, 2001, on May 25, 2001.
Sometime in 2002, petitioner, having signified his intention to become a Filipino

citizen, was issued a certification captioned "UN High Commissioner for Refugees,
Liaison Office for the Philippines," dated 25 June 2002, certifying that he has been
recognized as a person of concern who arrived in the Philippines on 11 July 1990 on
board Philippine Airlines flight 731 under an assumed name (Syed Gul Agha).
At the time of the filing of the petition, he was already married and residing at 341
Burgos Street, Dipolog City. However, upon arrival in the Philippines, he first
resided at Panay Avenue, Quezon City, where he stayed for almost six months.
During those times, the United Nations provided him a monthly allowance of
2,800.00, being a refugee. He then transferred to Burgos Street, Miputak, Dipolog
City, where he stayed at the house of the father-in-law of his brother Ali Reza for a
month.
He then moved to Sta. Filomena, Dipolog City, at the house of his sister-in-law. It
was during this time that he enrolled at Andres Bonifacio College where he studied
from 1990 to 1992. He finished a two-year vocational course in said school as
evidenced by a Diploma issued by the Andres Bonifacio College, Dipolog City. In
Iran, he finished Bachelor of Science in Economics.
He then pursued a four-year course (Bachelor of Science in Industrial Technology

Major in Electronics) at the Central Visayas Polytechnic College in Dumaguete City.
He resided in the Capitol Area of said city. He was already receiving a monthly
allowance of 4,800.00 from the United Nations at that time. He graduated from said
institution as evidenced by a Diploma issued by said school. He also attended
technical trainings conducted by Asian Durables Manufacturing, Inc. as evidenced
by a Certificate of Attendance issued by said company.
In 1996, he returned to Dipolog City and resided at Burgos Street where he opened
his electronics repair shop (KX3 Electronics Repair Shop).
On October 12, 2000, he got married. The couple transferred to the house of his
parents-in-law after the marriage. When the grandfather of his wife got ill, they were
requested to take care of him. Thus, the couple transferred their residence to
Dohinob, Roxas. However, they moved back to their house in Burgos Street, Dipolog
City, as it is nearer to a hospital. When his grandfather-in-law died, he participated
in all the rites and ceremonies relative to his wake and burial.
At present, his repair shop's gross monthly income hovers between P20,000.00 to
P25,000.00."4
Additionally, Karbasi claimed that he had never been involved in any demonstration
or mass action protesting any issuances, policies or acts of the Philippine
Government and its officials; that he had never made any rebellious or seditious
utterances; that he believed in the principles underlying the Philippine Constitution
and he had even memorized the preamble; and that he can also sing the Philippine
National Anthem and recite the Filipino Patriotic Pledge, both of which he did in
open court.
The following documents were proffered in Karbasi's Formal Offer of Exhibits: 1]

Identity Card issued by Iran to prove his Iranian citizenship; 2] Pakistani passport
with visa under the assumed name of Syed Gul Agha; 3] Certifications and
Identification Card issued by the UNHCR to prove his status as a refugee and, later,
as a "person of concern"; 4] Alien Certificate of Registration; 5] Certifications to
prove Filipino nationality of Karbasi's wife, Cliji G. Lim; 6] Certificate of Marriage
between Karbasi and Cliji; 7] Certificates of Live Birth of his children Keenyji and
Kerl Jasmen; 8] Karbasi's Certificate of Baptism; 9] Affidavits of his character
witnesses Alton C. Ratificar and Dommador Tagulo; 10] Police and NBI Clearances;
11] Certifications and Diploma to prove his completion of vocational technology, BS
Industrial Technology, and training seminars; 12] Alien Employment Permit for
Refugees; 13] Business Permit, Clearances and DTI Certificates of Accreditation to
KX3 Repair Shop, Karbasi's source of livelihood; 14] Income Tax Returns for the
years 2001 to 2005; and 15] Contract of Service with Quality Circuits Services, Inc.
and Kolins Philippines Intl. Inc., including a Summary of Accounts paid to KX3
Electronics Repair Shop.5chanrobleslaw
On January 17, 2007, the RTC found Karbasi's evidence sufficient to support his
petition. Finding Karbasi as possessing all the qualifications and none of the
disqualifications to become a Filipino citizen, the RTC rendered its decision, the
dispositive portion of which reads:chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing, the petition for naturalization filed by
KAMRAN F. KARBASI to be admitted as citizen of the Philippines is hereby
GRANTED.
SO ORDERED.6
Not in conformity, the Republic of the Philippines, through the Office of the Solicitor
General (OSG), interposed an appeal to the CA, based mainly on the ground that the
RTC erred in granting Karbasi's petition as he failed to comply with the provisions
of Commonwealth Act No. 473 (Naturalization Law) on character, income and
reciprocity. Specifically, the OSG pointed out that Karbasi failed to establish that: 1]
Iran grants reciprocal rights of naturalization to Filipino citizens; 2] he has a
lucrative income as required under the law; and 3] he is of good moral character as
shown by his disregard of Philippine tax laws when he had underdeclared his
income in his income tax returns (ITRs) and overstated the same in his petition for
naturalization.
On January 29, 2013, the CA rendered the assailed decision affirming the grant of
Filipino citizenship to Karbasi. The dispositive portion of the CA decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 17
January 2007 of the Regional Trial Court of Dipolog City, Branch 10 in
Naturalization Case No. 2866 is AFFIRMED.
SO ORDERED.7
The CA ruled that the alleged under declaration in Karbasi's ITRs was prepared in
good faith because he was of the belief that he no longer needed to include the
income he received as payment of his services to Daewoo Electronics Electronics
Services, Inc. (Daewoo) and Kolins Philippines International, Inc. (Kolins), because the
same were already withheld at source. The CA likewise affirmed the RTC finding
that Karbasi, as a refugee, need not prove reciprocity between Philippine and Iranian
laws.
Hence, this petition.
Position of the OSG
The OSG asserts that the findings of the courts a quo are not in accord with law and
jurisprudence because Karbasi failed to prove that he had a lucrative income and an
irreproachable character. It insists that Karbasi failed to establish his lucrative
income considering that at the time of the filing of his petition for naturalization in
2002, his gross income was 21,868.65. Per table of Annual Income and Expenditure
in Western Mindanao, the average income for the year 2000 was P86,135.00 and for
2003 was P93,000.00. This shows that Karbasi's declared gross income was way
below the average income and average expenses in Western Mindanao, the region
where Dipolog City, his residence, is located. The OSG argues that even if the
subsequent years were to be considered, Karbasi's income was still insufficient as
compared to the average income and expenditure in the area. Karbasi's declared
income for the years 2003, 2004 and 2005 were P31,613.00, 41,200.00 and P39,020.00,
respectively. The same table presentation, however, provides that the average
expenditure for the year 2000 was P69,452.00, and for the year 2003 was P75,000.00.
This shows that Karbasi's declared gross income was not enough to support his
family within the contemplation of the law. Whether based on his testimony or on
his ITRs, Karbasi's gross income was not adequate, given the high cost of living
prevailing in the region. The OSG also mentions that Karbasi's child had started
formal schooling which would entail substantial income on the part of Karbasi, so
that he could meet his family's needs.
The OSG cites the discrepancy between his petition for naturalization and his ITRs
as another reason to deny his application for Filipino citizenship. An examination of
the petition discloses that Karbasi claimed an annual income of P80,000.00. He had
also declared in his testimony that he was earning P20,000.00 to P25,000.00, monthly,
from his electronic repair shop. His ITRs on the other hand, show his gross income
as P14,870.00 in 2001; P21,868.65 in 2002; P31,613.00 in 2003; P41,200.00 in 2004; and
P 39,020.00 in 2005.
The OSG further argues that the "underdeclaration" of Karbasi's income in his ITRs
reflects his disregard of Philippine tax laws and, worse, its overstatement in his
petition indicates his intent to make it appear that there was compliance with the
Naturalization Law, when there was actually none. According to the OSG, this
negates irreproachable behavior which required of every applicant for naturalization
because the failure to enter the true income on the tax return is indicative of
dishonesty. The OSG cited the ruling in Republic v. Yao,8 where the Court ordered the
cancellation of the naturalization certificate issued to the applicant therein upon the
discovery of his underdeclaration and underpayment of income tax. In the OSG's
words, "[underdeclaration of income is a serious matter that it is used as a ground to
cancel the certificate of naturalization. If the court can reverse the decision in an
application for naturalization, with more reason can underdeclaration be considered
in denying an application," as in Karbasi's case.9chanrobleslaw
Position of Karbasi
In the April 7, 2014 Resolution of the Court, Karbasi was required to file a comment
on the petition in which he mainly argued that the petition did not raise questions of
law but questions of facts which were too unsubstantial to require consideration. He
countered that while, admittedly, the "lucrative trade/occupation" requirement
under the law must be complied with, it has been emphasized in jurisprudence that,
the objective of this economic requirement is to ensure that the applicant should not
become a public charge or an economic burden upon the society.10 Karbasi claims
that he had more than satisfactorily established his lucrative trade or occupation,
showing that he would become a citizen who could contribute to national progress.
This has been clearly and unanimously appreciated by the RTC and the CA.
Karbasi also avers that the analysis of the OSG with respect to the data on Annual
Income and Expenditure in Western Mindanao is misplaced. Firstly, the data
presented were merely statistical and not actual, and did not reflect the
circumstances relative to a specific subject or person. Hence, these are greatly
unreliable with respect to a specific person in a naturalization case. At best, it was
only intended for the purpose it was made - for planning and for policy making of
the government and not to determine whether a certain trade, occupation or income
is lucrative or not.
Anent the allegation that the underdeclaration of his income projects was a flaw on
his moral character, Karbasi point out that he had sincerely explained that his failure
to declare his correct annual income was in good faith not intended to commit fraud.
He believed that the other sources of his income apart from his repair shop had
already been withheld by the companies for whom he had rendered services. For
Karbasi, the meaning of "irreproachable" as required by the law does not mean
"perfectly faultless."
On September 18, 2014, Karbasi moved for leave of court to file a supplemental
pleading, in which he insisted that pursuant to the 1951 Convention Relating to the
Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, to which
the Philippines was a signatory, the country was bound to safeguard the rights and
well-being of the refugees and to ensure the facility of their local integration including
naturalization. Karbasi reasoned that this was precisely why Department Circular 58
Series of 2012 was issued by the Department of Justice (DOJ). Under the said
circular, the Refugees and Stateless Persons Unit was created not only to facilitate
the identification and determination of refugees but also for the protection of these
refugees.
Karbasi insisted that unlike any other alien applying for naturalization, he had to
leave Iran out of fear of persecution without any mental and financial preparation,
and only with a view of finding safe refuge in the Philippines.
Reply of OSG
In its Reply, the OSG contended that Karbasi could not downplay the significance of
the Data on Annual Income and Expenditure in Western Mindanao, as it was an
accurate illustration of the financial condition of a typical family in a particular
region. The said table was prepared by the National Statistics Coordination Board
(NSCB), which strengthened the credibility of the report. The OSG explained that
whether the data were statistical or actual, the numbers still reflected the financial
standing of Karbasi. It followed then that Karbasi could not claim good faith in
failing to declare the income he gained from his transactions with several companies.
He even failed to present a certificate of tax withheld to show that these companies
had actually remitted the withholding taxes due to the Bureau of Internal Revenue.
Even assuming that Karbasi's declared income allegedly excluded the amount
withheld by these companies, the OSG claimed that his income would still be below
the standard income and expenditure per the table.
The Court's Ruling
The Court is confronted with the issue of whether or not the CA had correctly
affirmed the RTC decision granting Karbasi's application for naturalization despite
the opposition posed by the OSG.
Citizenship is personal and, more or less a permanent membership in a political

community. It denotes possession within that particular political community of full
civil and political rights subject to special disqualifications. Reciprocally, it imposes
the duty of allegiance to the political community.11 The core of citizenship is the
capacity to enjoy political rights, that is, the right to participate in government
principally through the right to vote, the right to hold public office and the right to
petition the government for redress of grievance.12chanrobleslaw
No less than the 1987 Constitution enumerates who are Filipino citizens.13 Among
those listed are citizens by naturalization. Naturalization refers to the legal act of
adopting an alien and clothing him with the privilege of a native-born citizen. Under
the present laws, the process of naturalization can be judicial or administrative.
Judicially, the Naturalization Law provides that after hearing the petition for
citizenship and the receipt of evidence showing that the petitioner has all the
qualifications and none of the disqualifications required by law, the competent court
may order the issuance of the proper naturalization certificate and its registration in
the proper civil registry. On the other hand, Republic Act (R.A.) No. 9139 provides
that aliens born and residing in the Philippines may be granted Philippine
citizenship by administrative proceeding by filing a petition for citizenship with the
Special Committee, which, in view of the facts before it, may approve the petition
and issue a certificate of naturalization.14 In both cases, the petitioner shall take an
oath of allegiance to the Philippines as a sovereign nation.
It is a well-entrenched rule that Philippine citizenship should not easily be given
away.15 All those seeking to acquire it must prove, to the satisfaction of the Court,
that they have complied with all the requirements of the law. The reason for this
requirement is simple. Citizenship involves political status; hence, every person
must be proud of his citizenship and should cherish it. Naturalization is not a right,
but one of privilege of the most discriminating, as well as delicate and exacting
nature, affecting, as it does, public interest of the highest order, and which may be
enjoyed only under the precise conditions prescribed by law
therefor.16chanrobleslaw
Jurisprudence dictates that in judicial naturalization, the application must show

substantial and formal compliance with the law. In other words, an applicant must
comply with the jurisdictional requirements; establish his or her possession of the
qualifications and none of the disqualifications enumerated under the law; and
present at least two (2) character witnesses to support his allegations.17 Section 2 of
the Naturalization Law clearly sets forth the qualifications that must be possessed by
any applicant, viz:ChanRoblesVirtualawlibrary
Section 2. Qualifications. - Subject to section four of this Act, any person having the
following qualifications may become a citizen of the Philippines by
naturalization:chanRoblesvirtualLawlibrary
First. He must be not less than twenty-one years of age on the day of the hearing of
the petition;
Second. He must have resided in the Philippines for a continuous period of not less
than ten years;
Third. He must be of good moral character and believes in the principles underlying
the Philippine Constitution, and must have conducted himself in a proper and
irreproachable manner during the entire period of his residence in the Philippines in
his relation with the constituted government as well as with the community in
which he is living.
Fourth. He must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade, profession,
or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and any one of the
principal Philippine languages;
Sixth. He must have enrolled his minor children of school age, in any of the public
schools or private schools recognized by the Office of Private Education1 of the
Philippines, where the Philippine history, government and civics are taught or
prescribed as part of the school curriculum, during the entire period of the residence
in the Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen.
[Emphasis supplied]
The contention in this case revolves around the following
points:chanRoblesvirtualLawlibrary
1. the sufficiency of Karbasi's income for purposes of naturalization;
2. the effect of the alleged discrepancy in the amounts of his gross income
as declared in his ITRs, on one hand, and in his petition for
naturalization on the other; and
3. the necessity of proving reciprocity between Iranian and Philippine
laws on naturalization.
The Court resolves these issues in seriatim.
First. A reading of the OSG's pleadings discloses that its position arose out of a
comparison made between Karbasi's declared income and the amounts reflected in
the Data on Annual Income and Expenditure in Western Mindanao issued by the
NSCB. The OSG also invokes the past rulings of the Court where the concept of
"lucrative trade, trade, profession or lawful occupation" was explained in this
wise:chanRoblesvirtualLawlibrary
It means not only that the person having the employment gets enough for his
ordinary necessities in life. It must be shown that the employment gives one an
income such that there is an appreciable margin of his income over his expenses as
to be able to provide for an adequate support in the event of unemployment,
sickness, or disability to work and thus avoid one's becoming the object of charity or
a public charge. His income should permit him and the members of his family to live
with reasonable comfort, in accordance with the prevailing standard of living, and
consistently with the demands of human dignity, at this stage of our civilization.18
A long line of cases reveals that the Court did not hesitate in reversing grants of
citizenship upon a showing that the applicant had no lucrative income and would,
most likely, become a public charge. A summary of some of these notable cases is in
order:chanRoblesvirtualLawlibrary
1. In the Matter of the Petition for Admission to Philippine Citizenship of
Engracio Chan also known as Nicasio Lim.19 - The Court found that the
petitioner, who was a salesman at the Caniogan Sari-Sari and Grocery
Store, then located in Pasig, Rizal, from which he received a monthly
salary of P200.00, with free board and lodging, had no lucrative
income. Even if the petitioner was then an unmarried man without
dependents, a monthly income of P200.00 with free board and lodging,
was not considered gainful employment. Further, there was no proof
that he was legally authorized to use an alias and his use thereof, being
in violation of the Anti-Alias Law, was indicative of a reproachable
conduct.
2. In the Matter of the Petition of Antonio Po to be admitted a Citizen of the
Philippines.20 - The Court found Antonio Po, then single and employed
as collector of the Surigao Chamber of Commerce as without lucrative
income on the ground that his employment had so long depended
upon the selection of the succeeding presidents of the chamber and
that he then got free board and lodging by living with his widowed
mother. Simply put, there was not enough stability in his claimed
salary. His additional income gained from helping his mother to run a
store was also insufficient to satisfy the law, in the amount and in its
steadiness. His free board and lodging pretense was also discerned as
indicative of dependence upon his mother for support.
3. In the Matter of the Petition ofTanpa Ong Alias Pedro Tan to be admitted a
Citizen of the Philippines.21 - The income of the applicant as
contemplated in the naturalization law was only P3,000.00 a year.
Considering that he had a wife and seven children to support, this
income was held as insufficient to meet the high cost of living at that
time.
4. Keng Giok v. Republic.22 - The Court held that an income of P9,074.50 per
annum was not sufficient for a married applicant with a wife and five
children to support.
5. Sy Ang Hoc vs. Republic.23 - The Court held that his income, derived
from employment in a business enterprise of the petitioner's father,
was not sufficient to establish compliance with the statutory
requirement of lucrative occupation or calling.
6. In the Matter of the Petition to be admitted a Citizen of the Philippines by
Pantaleon Sia alias Alfredo Sia.24 - The Court ruled that the determination
of lucrative income or occupation should be reckoned as of the time of
the filing of the petition. The Court decided against the petitioner as his
regular salary was not ample enough to defray his family's expenses.
The excess amounts representing his bonuses and commissions should
not be considered in determining whether or not petitioner had a
lucrative income or occupation.
With the pronouncements in these cases in mind, the comparison made by the OSG
now begets another question: can the possession of an applicant's lucrative trade,
profession or lawful occupation, for purposes of naturalization, be fairly determined
through a simplistic read-through on government data?
The Court answers in the negative.
While it is true that a naturalization case is not an ordinary judicial contest to be

decided in favor of the party whose claim is supported by the preponderance of the
evidence, this does not accord infallibility on any and all of the OSG's assertions. If
this were the case, the rules of evidence might as well be brushed aside in order to
accord conclusiveness to every opposition by the Republic. Needless to state, the
Court still has the final authority and duty to evaluate the records of proceedings a
quo and decide on the issues with fair and sound judgment.
Here, it is clear that the circumstances prevailing in the above-cited cases are not at
all attendant in Karbasi's situation. There was neither a showing that Karbasi was
dependent on another person for support nor proof that his family's extraordinary
expenses that would render his income as inadequate. As in any other business
venture, the risk of losses is a possibility for his repair shop but, still, this risk was
not clearly established to render his livelihood as unstable and volatile. In fact, the
OSG does not belie the fact that Karbasi has been engaged by reputable companies
for his services. Conversely, the findings of the RTC would indicate that Karbasi had
indeed exhibited industry and hard work in putting up his repair shop business and
that his wife considered him as a good provider, not to mention a vocational and
college degree holder. Admittedly, testimonies in favor of an applicant for
naturalization are expected to be self-serving. Nevertheless, the Court finds it
difficult to agree with the OSG's meager use of government data to prove that
Karbasi would become a burden to the Philippine society in the future. Except for its
own citation of government data, nothing else was presented to establish that
Karbasi had indeed no lucrative income or trade to support himself and his family.
To accept the OSG's logic is a dangerous precedent that would peg the compliance to
this requirement in the law to a comparison with the results of research, the purpose
of which is unclear. This is not to say that the data produced by government research
are inappropriate, or much less irrelevant in judicial proceedings. The plain reliance
on this research information, however, may not be expected to produce the force of
logic which the OSG wants to attain in this case. Besides, had the law intended for
government data on livelihood and income research to be used as a gauge for the
"lucrative income" requirement, it must have stated the same and foreclosed the
Court's power to assess existing facts in any given case. Here, the Court opts to
exercise this power and delve into a judicious review of the findings of the RTC and
the CA and, as explained, to rule that Karbasi, possesses a lucrative income and a
lawful occupation, as required by the Naturalization Law.
At this point, it is worthy to note the Court's ruling in Republic v. Court of Appeals and
Chua25 (Chua), where the Court assessed the prevailing circumstances of an applicant
for naturalization who was a medical student at the time of the filing of her petition.
In Chua, the Court rejected the Republic's argument that the applicant's status as a
subsequent passer of the Board Examinations of 1985 for Doctors of Medicine could
not by itself be equated with "gainful employment or tangible receipts." The Court
held that this interpretation of the income requirement in the law is "too literal and
restrictive." It then cited Uy v. Republic,26 where the Court laid down the public
policy underlying the lucrative income requirement as
[T]he Court must be satisfied that there is reasonable assurance not only that the
applicant will not be a social burden or liability but that he is a potential asset to the
country he seeks to adopt for himself and quite literally, for his children and his
children's children.chanroblesvirtuallawlibrary
The Court, in Chua, continued:chanRoblesvirtualLawlibrary
The economic qualification for naturalization may be seen to embody the objective of
ensuring that the petitioner would not become a public charge or an economic
burden upon society. The requirement relates, in other words, not simply to the time
of execution of the petition for naturalization but also to the probable future of the
applicant for naturalization. In the case at bar, the Solicitor General does not dispute
that respondent applicant, then a student, was earning P2,000.00 a month, with free
board and lodging, at the time she filed her Petition in August 1984. While this
amount was not, even in 1984, exactly a princely sum, she was not then a public
charge and the respondent applicant having passed the qualifying medical board
examinations, can scarcely be regarded as likely to become a public charge in the
future should she be admitted as a citizen of this Republic. Respondent is certainly
in a position to earn substantial income if allowed to exercise her profession. Being a
Doctor of Medicine, she is also clearly a "potential asset to the country."27
As in Chua's case, it does not at all seem likely that Karbasi, in his current
circumstances, will ever become a public charge. It bears emphasis to note that from
a refugee who had nothing when he came to the Philippines, Karbasi had indeed
refused to be the object of charity by working hard to graduate from college and to
eventually engage in business to give his family support and comfort. The CA could
not have explained this in better terms
Thus, Karbasi went from being a refugee - who was dependent on the UNCHR for
support - to a self-made entrepreneur who can ably support himself and his family.
As such, there is no showing that Karbasi may turn out to be a public charge and a
burden to our country's resources. The fact moreover that he overcame this adversity
through his education and skills shows that he is a potential asset of the
country.chanroblesvirtuallawlibrary
Second. The OSG raised the issue of Karbasi's alleged underdeclaration of income in
his ITRs. It contended that even if Karbasi had, indeed, a lucrative means of earning,
his failure to declare the income which he had earned from service contracts and to
present any proof of the withholding of the taxes thereon, would reflect adversely on
his conduct, which under the statute must be "proper and irreproachable." The OSG
cited Lim Eng Yu v. Republic28 (Lim Eng Yu), where the applicant later refuted the
amounts reflected in his ITRs in order to prove that he had lucrative trade or
occupation. The Court rebuffed this "eleventh hour explanation" and concluded that
the applicant had to conceal his true income for the purpose of evading payment of
lawful taxes. The Court found that Lim Eng Yu, at that time, had a wife and two
children, so, at most, his total tax exemption then, was P5,000.00. Had he stated the
net incomes he claimed in his ITRs, he would have been required to pay income
taxes, it appearing that the same exceeded his exemption under the law. Such
conduct showed that Lim Eng Yu's moral character was not irreproachable, or as
good as it should be, thus, disqualifying him for naturalization.
Like the CA, the Court is inclined not to apply the rigidity of the ruling in Lim Eng
Yu to the present case. Unlike Lim Eng Yu, Karbasi did not deny the charge of the
OSG and instead admitted a procedural lapse on his part. Here, there is no showing
that the income earned by Karbasi was undeclared in order to benefit from statutory
tax exemptions. To clarify, this does not intend to downplay the requirement of good
moral character in naturalization cases. It bears stressing that the granting of
applications for naturalization still necessitates that only those who are deserving
may be admitted as Filipino citizens. The character of the applicant remains to be
one of the significant measures to determine entitlement to Filipino citizenship.
Nonetheless, the tenor of the ground used for the denial of the application in Lim
Eng Yu is not akin to what happened in this case.
Clearly, in Lim Eng Yu, the petitioner altogether intended to evade the payment of
taxes by abusing the benefits granted by tax exemptions. In this case, Karbasi did not
deny that he gained income through his transactions with Daewoo and Kolin. He
even presented, as evidence, the contracts of service he had entered into with the
companies including a Summary of Accounts paid to his repair shop. He did not
disclaim that he had rendered services to these companies and that he had earned a
considerable sum therefrom. Instead, he explained the cause of his lapse and
acknowledged his mistaken belief that his earnings from these transactions need not
be declared in his ITRs as these were withheld already.
Again, it is not the objective of the Court to justify irregularities in ITRs by reason of
a "mistaken belief." The Court, however, finds it difficult to equate Karbasi's lapse
with a moral depravity that is fatal to his application for Filipino citizenship. This
mistaken understanding of the proper way to declare income is actually so common
to individual taxpayers, including lawyers and other professionals. While this is not
to be taken as an excuse for every irregularity in ITR.S, the Court is not prepared to
consider this as an outright reflection of one's immoral inclinations. With due
consideration to his character as established by witnesses, and as observed by the
RTC during the hearings, Karbasi should be deemed to have sufficiently explained
his mistake.
In the case of Chua, the Court had even disregarded the OSG's argument that the
applicant's failure to execute her ITR "reflects adversely on her conduct." Her
explanation of non-filing as an "honest mistake" was accepted by the Court with due
regard to the other circumstances of her case. Like the CA, the Court also finds the
same degree of sincerity in Karbasi's case, for he was candid enough to elicit this
conclusion. Besides, there was no suggestion in the records that Karbasi habitually
excluded particular income in his ITRs. Echoing the findings in Chua, the Court does
not believe that this one lapse should be regarded as having so blackened Karbasi's
character as to disqualify him from naturalization as a Philippine citizen.
Third. Considering the above disquisitions, the Court does not need to belabor the
last issue on reciprocity between Iranian and Philippine laws on naturalization.
True, the Naturalization Law disqualifies citizens or subjects of a foreign country
whose laws do not grant Filipinos the right to become naturalized citizens or
subjects. A perusal of Karbasi's petition, both with the RTC and the CA, together
with his supplemental pleadings filed with the Court, however, reveals that he has
successfully established his refugee status upon arrival in the Philippines. In effect,
the country's obligations under its various international commitments come into
operation. Articles 6 and 34 of the 1951 Convention relating to the Status of
Refugees, to which the Philippines is a signatory, must be considered in this case, to
wit:chanRoblesvirtualLawlibrary
Article 6 of the 1951 Convention:
For the purposes of this Convention, the term "in the same circumstances" implies
that any requirements (including requirements as to length and conditions of
sojourn or residence) which the particular individual would have to fulfill for the
enjoyment of the right in question, if he were not a refugee, must be fulfilled by him,
with the exception of requirements which by their nature a refugee is incapable of
fulfilling.
Article 34 of the 1951 Convention:
The Contracting States shall as far as possible facilitate the assimilation and
naturalization of refugees. They shall in particular make every effort to expedite
naturalization proceedings and to reduce as far as possible the charges and costs of
such proceedings.chanroblesvirtuallawlibrary
In the same vein, Article 729 of the said Convention expressly provides exemptions
from reciprocity, while Article 34 states the earnest obligation of contracting parties
to "as far as possible facilitate the assimilation and naturalization of refugees." As
applied to this case, Karbasi's status as a refugee has to end with the attainment of
Filipino citizenship, in consonance with Philippine statutory requirements and
international obligations. Indeed, the Naturalization Law must be read in light of the
developments in international human rights law specifically the granting of
nationality to refugees and stateless persons.
WHEREFORE, the petition is DENIED.
BENGSON VS. HRET AND CRUZ

MARCH 28, 2013 ~ VBDIAZ
BENGSON vs. HRET and CRUZ
G.R. No. 142840
May 7, 2001
FACTS: The citizenship of respondent Cruz is at issue in this case, in view of the
constitutional requirement that no person shall be a Member of the House of
Representatives unless he is a natural-born citizen.
Cruz was a natural-born citizen of the Philippines. He was born in Tarlac in 1960 of
Filipino parents. In 1985, however, Cruz enlisted in the US Marine Corps and
without the consent of the Republic of the Philippines, took an oath of allegiance to
the USA. As a Consequence, he lost his Filipino citizenship for under CA No. 63 [(An
Act Providing for the Ways in Which Philippine Citizenship May Be Lost or
Reacquired (1936)] section 1(4), a Filipino citizen may lose his citizenship by, among
other, rendering service to or accepting commission in the armed forces of a foreign
country.
Whatever doubt that remained regarding his loss of Philippine citizenship was
erased by his naturalization as a U.S. citizen in 1990, in connection with his service in
the U.S. Marine Corps.
In 1994, Cruz reacquired his Philippine citizenship through repatriation under RA
2630 [(An Act Providing for Reacquisition of Philippine Citizenship by Persons Who
Lost Such Citizenship by Rendering Service To, or Accepting Commission In, the
Armed Forces of the United States (1960)]. He ran for and was elected as the
Representative of the 2nd District of Pangasinan in the 1998 elections. He won over
petitioner Bengson who was then running for reelection.
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with
respondent HRET claiming that Cruz was not qualified to become a member of the
HOR since he is not a natural-born citizen as required under Article VI, section 6 of
the Constitution.
HRET rendered its decision dismissing the petition for quo warranto and declaring
Cruz the duly elected Representative in the said election.
ISSUE: WON Cruz, a natural-born Filipino who became an American citizen, can
still be considered a natural-born Filipino upon his reacquisition of Philippine
citizenship.
HELD: petition dismissed
YES
Filipino citizens who have lost their citizenship may however reacquire the same in
the manner provided by law. C.A. No. 63 enumerates the 3 modes by which
Philippine citizenship may be reacquired by a former citizen:
1. by naturalization,
2. by repatriation, and
3. by direct act of Congress.
**
Repatriation may be had under various statutes by those who lost their citizenship
due to:
1. desertion of the armed forces;
2. services in the armed forces of the allied forces in World War II;
3. service in the Armed Forces of the United States at any other time,
4. marriage of a Filipino woman to an alien; and
5. political economic necessity
Repatriation results in the recovery of the original nationality This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was originally a natural-born
citizen before he lost his Philippine citizenship, he will be restored to his former
status as a natural-born Filipino.
R.A. No. 2630 provides:
Sec 1. Any person who had lost his Philippine citizenship by rendering service to, or
accepting commission in, the Armed Forces of the United States, or after separation
from the Armed Forces of the United States, acquired United States citizenship, may
reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the
Philippines and registering the same with Local Civil Registry in the place where he
resides or last resided in the Philippines. The said oath of allegiance shall contain a
renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in accordance
with the aforecited provision, Cruz is deemed to have recovered his original status
as a natural-born citizen, a status which he acquired at birth as the son of a Filipino
father. It bears stressing that the act of repatriation allows him to recover, or return
to, his original status before he lost his Philippine citizenship.
JOEVANIE ARELLANO TABASA, Petitioner,
vs.
HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and
DEPORTATION and WILSON SOLUREN, Respondents.
DECISION
VELASCO, JR., J.:
Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren fittingly
emphasized its crowning value when he wrote that "it is mans basic right for it is
nothing less than to have rights." 1 When a person loses citizenship, therefore, the
State sees to it that its reacquisition may only be granted if the former citizen fully
satisfies all conditions and complies with the applicable law. Without doubt,
repatriation is not to be granted simply based on the vagaries of the former Filipino
citizen.
The Case
The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure
contests the denial by the Court of Appeals (CA) of the Petition for Habeas
Corpus interposed by petitioner Joevanie Arellano Tabasa from the Order of
Summary Deportation issued by the Bureau of Immigration and Deportation (BID)
for his return to the United States.
The Facts
The facts as culled by the CA from the records show that petitioner Joevanie
Arellano Tabasa was a natural-born citizen of the Philippines. In 1968, 3 when
petitioner was seven years old, 4 his father, Rodolfo Tabasa, became a naturalized
citizen 5 of the United States. By derivative naturalization (citizenship derived from
that of another as from a person who holds citizenship by virtue of naturalization 6),
petitioner also acquired American citizenship.
Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a
"balikbayan" for one year. Thereafter, petitioner was arrested and detained by agent
Wilson Soluren of the BID on May 23, 1996, pursuant to BID Mission Order No. LIV-
96-72 in Baybay, Malay, Aklan; subsequently, he was brought to the BID Detention
Center in Manila. 7
Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law
and Investigation Division of the BID on May 28, 1996; and on the same day, Tabasa
was accused of violating Section 8, Chapter 3, Title 1, Book 3 of the 1987
Administrative Code, in a charge sheet which alleged:
1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the
Philippines and was admitted as a balikbayan;
2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of
[the] U.S. Embassy, informed the Bureau that respondents Passport No. 053854189
issued on June 10, 1994 in San Francisco, California, U.S.A., had been revoked by the
U.S. Department of State;
3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable
alien and may be summarily deported pursuant to Law and Intelligence Instructions
No. 53 issued by then Commissioner Miriam Defensor Santiago to effect his
deportation (Exhibit 3). 8
The pertinent portion of the Herbert letter is as follows:
The U.S. Department of State has revoked U.S. passport 053854189 issued on June 10,
1994 in San Francisco, California under the name of Joevanie Arellano Tabasa, born
on February 21, 1959 in the Philippines. Mr. Tabasas passport has been revoked
because he is the subject of an outstanding federal warrant of arrest issued on
January 25, 1996 by the U.S. District Court for the Northern District of California, for
violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of Title 18 of the
United States Code. He is charged with one count of a felon in possession of a
firearm, in violation of California Penal Code, Section 12021(A)(1), and one count of
sexual battery, in violation of California Penal Code, Section 243.4 (D). 9
The BID ordered petitioners deportation to his country of origin, the United States,
on May 29, 1996, in the following summary deportation order:
Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the
U.S. Embassy in Manila, filed a request with the Bureau to apprehend and deport
the abovenamed [sic] respondent [petitioner Tabasa] on the ground that a standing
warrant for several federal charges has been issued against him, and that the
respondents Passport No. 053854189 has been revoked.
By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence
operatives apprehended the respondent in Aklan on 23 May 1996.
In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, 81461
should be 86461], 30 May 1989), the Supreme Court ruled that if a foreign embassy
cancels the passport of an alien, or does not reissue a valid passport to him, the alien
loses the privilege to remain in the country. Further, under Office Memorandum
Order No. 34 issued on 21 August 1989, summary deportation proceedings lie where
the passport of the alien has expired.
It is, thus, apparent that respondent has lost his privilege to remain in the country. 10
Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary
Injunction and/or Temporary Restraining Order 11 on May 29, 1996, which was
docketed as CA-G.R. SP No. 40771. Tabasa alleged that he was not afforded due
process; that no warrant of arrest for deportation may be issued by immigration
authorities before a final order of deportation is made; that no notice of the
cancellation of his passport was made by the U.S. Embassy; that he is entitled to
admission or to a change of his immigration status as a non-quota immigrant
because he is married to a Filipino citizen as provided in Section 13, paragraph (a) of
the Philippine Immigration Act of 1940; and that he was a natural-born citizen of the
Philippines prior to his derivative naturalization when he was seven years old due
to the naturalization of his father, Rodolfo Tabasa, in 1968.
At the time Tabasa filed said petition, he was already 35 years old. 12
On May 30, 1996, the CA ordered the respondent Bureau to produce the person of
the petitioner on June 3, 1996 and show the cause of petitioners detention, and
restrained the Bureau from summarily deporting him. On June 3, 1996, the BID
presented Tabasa before the CA; and on June 6, 1996, the CA granted both parties
ten (10) days within which to file their memoranda, after which the case would be
considered submitted for decision. 13Meanwhile, the Commissioner of Immigration
granted the petitioners temporary release on bail on a PhP 20,000.00 cash bond. 14
However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he
had acquired Filipino citizenship by repatriation in accordance with Republic Act
No. 8171 (RA 8171), and that because he is now a Filipino citizen, he cannot be
deported or detained by the respondent Bureau. 15
The Ruling of the Court of Appeals
The CA, in its August 7, 1996 Decision, 16 denied Tabasas petition on the ground
that he had not legally and successfully acquiredby repatriationhis Filipino
citizenship as provided in RA 8171. The court said that although he became an
American citizen by derivative naturalization when his father was naturalized in
1968, there is no evidence to show that he lost his Philippine citizenship "on account
of political or economic necessity," as explicitly provided in Section 1, RA 8171the
law governing the repatriation of natural-born Filipinos who have lost their
citizenship. The affidavit does not state that political or economic necessity was the
compelling reason for petitioners parents to give up their Filipino citizenship in
1968. Moreover, the court a quo found that petitioner Tabasa did not dispute the
truth of the April 16, 1996 letter of the United States Consul General Kevin F.
Herbert or the various warrants issued for his arrest by the United States court. The
court a quo noted that after petitioner was ordered deported by the BID on May 29,
1996, he successively executed an Affidavit of Repatriation on June 6, 1996 and took
an oath of allegiance to the Republic of the Philippines on June 13, 1996more than
ten months after his arrival in the country on August 3, 1995. The appellate court
considered petitioners "repatriation" as a last ditch effort to avoid deportation and
prosecution in the United States. The appellate court concluded that his only reason
to want to reacquire Filipino citizenship is to avoid criminal prosecution in the
United States of America. The court a quo, therefore, ruled against Tabasa, whose
petition is now before us.
The Issue
The only issue to be resolved is whether petitioner has validly reacquired Philippine
citizenship under RA 8171. If there is no valid repatriation, then he can be summarily
deported for his being an undocumented alien.
The Courts Ruling
The Court finds no merit in this petition.
RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost
Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,"
was enacted on October 23, 1995. It provides for the repatriation of only two (2)
classes of persons, viz:
Filipino women who have lost their Philippine citizenship by marriage to aliens and
natural-born Filipinos who have lost their Philippine citizenship, including their
minor children, on account of political or economic necessity, may reacquire
Philippine citizenship through repatriation in the manner provided in Section 4 of
Commonwealth Act No. 63, as amended: Provided, That the applicant is not a:
(1) Person opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing organized government;
(2) Person defending or teaching the necessity or propriety of violence, personal
assault, or association for the predominance of their ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable contagious
diseases. 17 (Emphasis supplied.)
Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine
citizenship by reason of political or economic necessity under RA 8171?
He does not.
Persons qualified for repatriation under RA 8171
To reiterate, the only persons entitled to repatriation under RA 8171 are the
following:
a. Filipino women who lost their Philippine citizenship by marriage to aliens; and
b. Natural-born Filipinos including their minor children who lost their Philippine
citizenship on account of political or economic necessity.
Petitioner theorizes that he could be repatriated under RA 8171 because he is
a child of a natural-born Filipino, and that he lost his Philippine citizenship by
derivative naturalization when he was still a minor.
Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is
available only to natural-born Filipinos who lost their citizenship on account of
political or economic necessity, and to the minor children of said natural-born
Filipinos. This means that if a parent who had renounced his Philippine citizenship
due to political or economic reasons later decides to repatriate under RA 8171, his
repatriation will also benefit his minor children according to the law. This includes a
situation where a former Filipino subsequently had children while he was a
naturalized citizen of a foreign country. The repatriation of the former Filipino will
allow him to recover his natural-born citizenship and automatically vest Philippine
citizenship on his children of jus sanguinis or blood relationship:18 the children
acquire the citizenship of their parent(s) who are natural-born Filipinos. To claim the
benefit of RA 8171, however, the children must be of minor age at the time the
petition for repatriation is filed by the parent. This is so because a child does not
have the legal capacity for all acts of civil life much less the capacity to undertake a
political act like the election of citizenship. On their own, the minor children cannot
apply for repatriation or naturalization separately from their parents.
In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968,
while he was still a minor, his father was naturalized as an American citizen; and by
derivative naturalization, petitioner acquired U.S. citizenship. Petitioner now wants
us to believe that he is entitled to automatic repatriation as a child of natural-born
Filipinos who left the country due to political or economic necessity. This is absurd.
Petitioner was no longer a minor at the time of his "repatriation" on June 13, 1996.
The privilege under RA 8171 belongs to children who are of minor age at the time of
the filing of the petition for repatriation.
Neither can petitioner be a natural-born Filipino who left the country due to political
or economic necessity. Clearly, he lost his Philippine citizenship by operation of law
and not due to political or economic exigencies. It was his father who could have
been motivated by economic or political reasons in deciding to apply for
naturalization. The decision was his parents and not his. The privilege of
repatriation under RA 8171 is extended directly to the natural-born Filipinos who
could prove that they acquired citizenship of a foreign country due to political and
economic reasons, and extended indirectly to the minor children at the time of
repatriation.
In sum, petitioner is not qualified to avail himself of repatriation under RA 8171.
However, he can possibly reacquire Philippine citizenship by availing of the
Citizenship Retention and Re-acquisition Act of 2003 (Republic Act No. 9225) by
simply taking an oath of allegiance to the Republic of the Philippines.
Where to file a petition for repatriation pursuant to RA 8171
Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still he
failed to follow the procedure for reacquisition of Philippine citizenship. He has to
file his petition for repatriation with the Special Committee on Naturalization (SCN),
which was designated to process petitions for repatriation pursuant to
Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit:
Section 1. Composition.The composition of the Special Committee on
Naturalization, with the Solicitor General as Chairman, the Undersecretary of
Foreign Affairs and the Director-General of the National Intelligence Coordinating
Agency, as members, shall remain as constituted.
Sec. 2. Procedure.Any person desirous of repatriating or reacquiring Filipino
citizenship pursuant to R.A. No. 8171 shall file a petition with the Special Committee
on Naturalization which shall process the same. If their applications are approved[,]
they shall take the necessary oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired Philippine citizenship. The
Commission on Immigration and Deportation shall thereupon cancel their certificate
of registration (emphasis supplied).
Sec. 3. Implementing Rules.The Special Committee is hereby authorized to
promulgate rules and regulations and prescribe the appropriate forms and the
required fees for the processing of petitions.
Sec. 4. Effectivity.This Administrative Order shall take effect immediately.
In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN
on August 5, 1999, applicants for repatriation are required to submit documents in
support of their petition such as their birth certificate and other evidence proving
their claim to Filipino citizenship. 19 These requirements were imposed to enable the
SCN to verify the qualifications of the applicant particularly in light of the reasons
for the renunciation of Philippine citizenship.
What petitioner simply did was that he took his oath of allegiance to the Republic of
the Philippines; then, executed an affidavit of repatriation, which he registered,
together with the certificate of live birth, with the Office of the Local Civil Registrar
of Manila. The said office subsequently issued him a certificate of such
registration. 20At that time, the SCN was already in place and operational by virtue
of the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although
A.O. No. 285 designating the SCN to process petitions filed pursuant to RA 8171 was
issued only on August 22, 1996, it is merely a confirmatory issuance according to the
Court in Angat v. Republic. 22 Thus, petitioner should have instead filed a petition for
repatriation before the SCN.
Requirements for repatriation under RA 8171
Even if petitionernow of legal agecan still apply for repatriation under RA 8171,
he nevertheless failed to prove that his parents relinquished their Philippine
citizenship on account of political or economic necessity as provided for in the law.
Nowhere in his affidavit of repatriation did he mention that his parents lost their
Philippine citizenship on account of political or economic reasons. It is notable that
under the Amended Rules and Regulations Implementing RA 8171, the SCN
requires a petitioner for repatriation to set forth, among others, "the reason/s why
petitioner lost his/her Filipino citizenship, whether by marriage in case of Filipino
woman, or whether by political or economic necessity in case of [a] natural-born
Filipino citizen who lost his/her Filipino citizenship. In case of the latter, such
political or economic necessity should be specified." 23
Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for
repatriation must prove that he lost his Philippine citizenship on account of political
or economic necessity. He theorizes that the reference to political or economic
reasons is "merely descriptive, not restrictive, of the widely accepted reasons for
naturalization in [a] foreign country." 24
Petitioners argument has no leg to stand on.
A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to limit
the benefit of repatriation only to natural-born Filipinos who lost their Philippine
citizenship on account of political or economic necessity, in addition to Filipino
women who lost their Philippine citizenship by marriage to aliens. The precursor of
RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted on June 5,
1975 amending Commonwealth Act No. 63, also gives to the same groups of former
Filipinos the opportunity to repatriate but without the limiting phrase, "on account
of political or economic necessity" in relation to natural-born Filipinos. By adding the
said phrase to RA 8171, the lawmakers clearly intended to limit the application of
the law only to political or economic migrants, aside from the Filipino women who
lost their citizenship by marriage to aliens. This intention is more evident in the
following sponsorship speech of Rep. Andrea B. Domingo on House Bill No. 1248,
the origin of RA 8171, to wit:
Ms. Domingo: x x x
From my experience as the Commissioner of the Bureau of Immigration and
Deportation, I observed that there are only four types of Filipinos who leave the
country.
The first is what we call the "economic refugees" who go abroad to work because
there is no work to be found in the country. Then we have the "political refugees"
who leave the country for fear of their lives because they are not in consonance with
the prevailing policy of government. The third type is those who have committed
crimes and would like to escape from the punishment of said crimes. Lastly, we have
those Filipinos who feel that they are not Filipinos, thereby seeking other citizenship
elsewhere.
Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country
not of choice, but rather out of sacrifice to look for a better life, as well as for a safer
abode for themselves and their families. It is for these two types of Filipinos that this
measure is being proposed for approval by this body. (Emphasis supplied.)
xxxx
x x x [I]f the body would recall, I mentioned in my short sponsorship speech the four
types of Filipinos who leave their country. And the two typesthe economic and
political refugeesare the ones being addressed by this proposed law, and they are
not really Filipino women who lost their citizenship through marriage. We had a lot
of problems with these people who left the country because of political persecution
or because of pressing economic reasons, and after feeling that they should come
back to the country and get back their citizenship and participate as they should in
the affairs of the country, they find that it is extremely difficult to get their
citizenship back because they are treated no different from any other class of alien. 26
From these two sources, namely, P.D. 725 and the sponsorship speech on House Bill
No. 1248, it is incontrovertible that the intent of our legislators in crafting Section 1 of
RA 8171, as it is precisely worded out, is to exclude those Filipinos who have
abandoned their country for reasons other than political or economic necessity.
Petitioner contends it is not necessary to prove his political or economic reasons
since the act of renouncing allegiance to ones native country constitutes a "necessary
and unavoidable shifting of his political allegiance," and his fathers loss of
Philippine citizenship through naturalization "cannot therefore be said to be for any
reason other than political or economic necessity." 27
This argument has no merit.
While it is true that renunciation of allegiance to ones native country is necessarily a
political act, it does not follow that the act is inevitably politically or economically
motivated as alleged by petitioner. To reiterate, there are other reasons why Filipinos
relinquish their Philippine citizenship. The sponsorship speech of former
Congresswoman Andrea B. Domingo illustrates that aside from economic and
political refugees, there are Filipinos who leave the country because they have
committed crimes and would like to escape from punishment, and those who really
feel that they are not Filipinos and that they deserve a better nationality, and
therefore seek citizenship elsewhere.
Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon
him to prove to the satisfaction of the SCN that the reason for his loss of citizenship
was the decision of his parents to forfeit their Philippine citizenship for political or
economic exigencies. He failed to undertake this crucial step, and thus, the sought
relief is unsuccessful.
Repatriation is not a matter of right, but it is a privilege granted by the State. This is
mandated by the 1987 Constitution under Section 3, Article IV, which provides that
citizenship may be lost or reacquired in the manner provided by law. The State has
the power to prescribe by law the qualifications, procedure, and requirements for
repatriation. It has the power to determine if an applicant for repatriation meets the
requirements of the law for it is an inherent power of the State to choose who will be
its citizens, and who can reacquire citizenship once it is lost. If the applicant, like
petitioner Tabasa, fails to comply with said requirements, the State is justified in
rejecting the petition for repatriation.
Petitioner: an undocumented alien subject to summary deportation
Petitioner claims that because of his repatriation, he has reacquired his Philippine
citizenship; therefore, he is not an undocumented alien subject to deportation.
This theory is incorrect.
As previously explained, petitioner is not entitled to repatriation under RA 8171 for
he has not shown that his case falls within the coverage of the law.
Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on
summary deportation:
2. The Board of Special Inquiry and the Hearing Board IV shall observe summary
deportation proceedings in cases where the charge against the alien is overstaying,
or the expiration or cancellation by his government of his passport. In cases
involving overstaying aliens, BSI and the Hearing Board IV shall merely require the
presentation of the aliens valid passport and shall decide the case on the basis
thereof.
3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid
passport to him, the alien loses the privilege to remain in the country, under the
Immigration Act, Sections 10 and 15 (Schonemann v. Santiago, et al., G.R. No. 81461
[sic, should be 86461], 30 May 1989). The automatic loss of the privilege obviates
deportation proceedings. In such instance, the Board of Commissioners may issue
summary judgment of deportation which shall be immediately executory. 28
In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held:
It is elementary that if an alien wants to stay in the Philippines, he must possess the
necessary documents. One of these documents is a valid passport. There are, of
course, exceptions where in the exercise of its sovereign prerogatives the Philippines
may grant refugee status, refuse to extradite an alien, or otherwise allow him or her
to stay here even if he [the alien] has no valid passport or Philippine visa. "Boat
people" seeking residence elsewhere are examples. However, the grant of the
privilege of staying in the Philippines is discretionary on the part of the proper
authorities. There is no showing of any grave abuse of discretion, arbitrariness, or
whimsicality in the questioned summary judgment. x x x 29
Petitioner Tabasa, whose passport was cancelled after his admission into the
country, became an undocumented alien who can be summarily deported. His
subsequent "repatriation" cannot bar such deportation especially considering that he
has no legal and valid reacquisition of Philippine citizenship.
WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996
Decision of the Court of Appeals is AFFIRMED. No costs to the petitioner.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
ARLENE LLENA EMPAYNADO CHUA, Petitioner,
vs.
COMMISSION ON ELECTIONS, IMELDA E. FRAGATA, and KRYSTLE MARIE
C. BACANI, Respondents.
DECISION
LEONEN, J.:
Dual citizens are disqualified from running for any elective local position. They
cannot successfully run and assume office because their ineligibility is inherent in
them, existing prior to the filing of their certificates of candidacy. Their certificates of
candidacy are void ab initio, and votes cast for them will be disregarded.
Consequently, whoever garners the next highest number of votes among the eligible
candidates is the person legally entitled to the position.
This resolves a Petition for Certiorari and Prohibition1 assailing the Commission on
Elections Resolutions dated October 17, 20132 and January 30, 2015.3 The
Commission on Elections annulled the "proclamation of . . . Arlene Llena
Empaynado Chua as Councilor for the Fourth District of Manila[,]"4 and directed the
Board of Canvassers to reconvene and proclaim Krystle Marie C. Bacani (Bacani) as
Councilor for having garnered the next highest number of votes.5
On October 3, 2012, Arlene Llena Empaynado Chua (Chua) filed her Certificate of
Candidacy6 for Councilor for the Fourth District of Manila during the May 13, 2013
National and Local Elections. The Fourth District of Manila is entitled to six (6) seats
in the Sangguniang Panlungsod.7
After the conduct of elections, Chua garnered the sixth highest number of votes.8 She
was proclaimed by the Board of Canvassers on May 15, 2013.9
On the date of Chuas proclamation, however, Imelda E. Fragata (Fragata) filed a
Petition10 captioned as a "petition to declare [Chua] as a nuisance candidate"11 and
"to deny due course and/or cancel [Chuas] Certificate of Candidacy."12 Fragata was
allegedly a registered voter in the Fourth District13 who claimed that Chua was
unqualified to run for Councilor on two grounds: Chua was not a Filipino citizen,
and she was a permanent resident of the United States of America.14 Fragata
specifically alleged the following in her Petition:
3. [Chua] is not a Filipino Citizen.
4. Prior to the filing of her candidacy, [Chua] has been living in the United
States of America (USA) for at least 33 years.
5. [Chua] is an immigrant and was validly issued a Green Card by the
Government of the USA.
6. She resided and continues to reside [in Georgia, USA].
7. [Chua] has been a Registered Professional Nurse in the State of Georgia,
USA since November 17, 1990.
8. . . . [Chuas] Professional License in the USA is still to expire in 31 January
2014.15
The last paragraph of the Petition prayed that Chua "be disqualified as a candidate
for the position of councilor in the Fourth District of the City of Manila[.]"16
Answering the Petition, Chua contended that she was a natural-born Filipino, born
to Filipino parents in Cabanatuan City, Nueva Ecija.17 With respect to her residency,
Chua alleged that she had been residing in Sampaloc, Manila since 200818 and had
more than complied with the one-year period required to run for Councilor.19
According to Chua, Fragatas Petition was belatedly filed,20 whether it was treated as
one for declaration of a nuisance candidate21 or for denial of due course or
cancellation of certificate of candidacy.22 Fragata filed her Petition on May 15, 2013,
which was beyond five (5) days from October 5, 2012, the last day of the filing of
certificates of candidacy.23 The Petition was also filed beyond 25 days from October
3, 2012,24 the date Chua filed her Certificate of Candidacy.25
Chua stressed that she had already been proclaimed on May 15, 2013, the same date
that Fragata filed her Petition; hence, Fragatas proper remedy was to file a petition
for quo warranto26 under Section 253 of the Omnibus Election Code. Chua prayed
that the Commission dismiss Fragatas Petition.27
On June 19, 2013, Bacani filed a Motion to Intervene with Manifestation and Motion
to Annul Proclamation.28Bacani alleged that she likewise ran for Councilor in the
Fourth District of Manila, and that after the canvassing of votes, she ranked seventh
among all the candidates, next to Chua.29 Should Chua be disqualified, Bacani
claimed that she should be proclaimed Councilor30 following this Courts ruling
in Maquiling v. Commission on Elections.31
Bacani argued that Chua, being a dual citizen, was unqualified to run for
Councilor.32 Based on an Order of the Bureau of Immigration, Chua was allegedly
naturalized as an American citizen on December 7, 1977.33 She was issued an
American passport34 on July 14, 2006.
Chua took an Oath of Allegiance to the Republic of the Philippines on September 21,
2011.35 Nonetheless, Chua allegedly continued on using her American passport,
specifically on the following dates:
October 16, 2012 Departure for the United States
December 11, 2012 Arrival in the Philippines
May 30, 2013 Departure for the United States36
Moreover, Chua did not execute an oath of renunciation of her American
citizenship.37
With Chua being a dual citizen at the time she filed her Certificate of Candidacy,
Bacani prayed that the Commission on Elections annul Chuas proclamation.38
In her Comment/Opposition (to the Motion to Intervene of Krystle Marie
Bacani),39 Chua argued that the Motion was a belatedly filed petition to deny due
course or cancel a certificate of candidacy, having been filed after the day of the
elections.40 According to Chua, the Motion should not even be considered since she
was already proclaimed by the Board of Canvassers.41 Thus, Chua prayed that the
Motion to Intervene be denied and expunged from the records of the case.42
The Commission on Elections then ordered the parties to file their respective
memoranda.43
In her Memorandum,44 Chua maintained that Fragatas Petition was filed out of time
and should have been outright dismissed.45 Reiterating that she had already been
proclaimed, Chua argued that Fragatas proper remedy was a petition for quo
warranto.46
Countering Chuas claims, Fragata and Bacani restated in their Joint
Memorandum47 that Chua was a dual citizen disqualified from running for any
elective local position.
The Commission on Elections Second Division resolved Fragatas Petition. Ruling
that Bacani had a legal interest in the matter in litigation, it allowed Bacanis Motion
to Intervene.48 The Commission said that should Fragatas Petition be granted, the
votes for Chua would not be counted.49 In effect, Bacani would garner the sixth
highest number of votes among the qualified candidates, which would earn her a
seat in the Sangguniang Panlungsod of Manila.50
With respect to the nature of Fragatas Petition, the Commission on Elections held
that it was one for disqualification, regardless of the caption stating that it was a
petition to declare Chua a nuisance candidate.51The Petition alleged a ground for
disqualification under Section 40 of the Local Government Code,52 specifically, that
Chua was a permanent resident in the United States.
Since Fragata filed a petition for disqualification, Rule 25, Section 3 of the
Commission on Elections Rules of Procedure governed the period for its
filing.53 Under the Rules, a petition for disqualification should be filed "any day after
the last day for filing of certificates of candidacy, but not later than the date of the
proclamation." Fragata filed the Petition within this period, having filed it on the
date of Chuas proclamation on May 15, 2013.54
The Commission no longer discussed whether Chua was a permanent resident of the
United States. Instead, it found that Chua was a dual citizen when she filed her
Certificate of Candidacy.55 Although she reacquired her Filipino citizenship in 2011
by taking an Oath of Allegiance to the Republic of the Philippines, petitioner failed
to take a sworn and personal renunciation of her American citizenship required
under Section 5(2) of the Citizenship Retention and Re-acquisition Act of 2003.56
Considering that Chua is a dual citizen, the Commission held that Chua was
disqualified to run for Councilor pursuant to Section 40 of the Local Government
Code.57 Consequently, Chuas Certificate of Candidacy was void ab initio, and all
votes casted for her were stray.58 Chuas proclamation was likewise voided, and
per Maquiling, Bacani was declared to have garnered the sixth highest number of
votes.59
Thus, in the Resolution dated October 17, 2013, the Commission on Elections Second
Division ruled in favor of Fragata and Bacani.60 The dispositive portion of the
October 17, 2013 Resolution reads:
WHEREFORE, premises considered, the Commission (Second
Division) RESOLVES, as it hereby RESOLVED:
1. To ANNUL the proclamation of respondent Arlene Llena Empaynado
Chua as Councilor for the Fourth District of Manila;
2. To DIRECT the Board of Canvassers of the City of Manila
to CONVENE and PROCLAIM Intervenor Krystle Marie C. Bacani as the
duly elected Councilor of the Fourth District of the City of Manila, having
obtained the sixth highest number of votes for said position.
Let the Deputy Executive Director for Operations implement this Resolution.
SO ORDERED.61
Chua moved for reconsideration,62 but the Commission on Elections En Banc denied
the Motion in the Resolution dated January 30, 2015.
Arguing that the Commission issued its October 17, 2013 and January 30, 2015
Resolutions with grave abuse of discretion, Chua filed before this Court a Petition
for Certiorari and Prohibition with prayer for issuance of temporary restraining
order and/or writ of preliminary injunction.63 Fragata and Bacani jointly filed their
Comment,64while the Commission on Elections filed its Comment65 through the
Office of the Solicitor General.
Chua emphasizes that she was already proclaimed as a duly elected
Councilor.66 Assuming that she was ineligible to run for office, this created a
permanent vacancy in the Sangguniang Panlungsod, which was to be filled
according to the rule on succession under Section 45 of the Local Government Code,
and not by proclamation of the candidate who garnered the next highest number of
votes.67
Chua maintains that Fragata belatedly filed her Petition before the Commission on
Elections.68 Since Fragata filed a Petition to deny due course or cancel certificate of
candidacy, it should have been filed within five (5) days from the last day for filing
of certificates of candidacy, but not later than 25 days from the time of the filing of
the certificate of candidacy assailed.69 Fragata filed the Petition on May 15, 2013,
more than 25 days after Chua filed her Certificate of Candidacy on October 3,
2012.70 The Commission on Elections, therefore, should have outright dismissed
Fragatas Petition.71
With her already proclaimed, Chua argues that the Commission on Elections should
have respected the voice of the people.72 Chua prays that the Resolutions annulling
her proclamation and subsequently proclaiming Bacani be set aside.73
As for Fragata and Bacani as well as the Commission on Elections, all maintain that
Fragatas Petition was a petition for disqualification assailing Chuas citizenship and
status as a permanent resident in the United States.74The Petition, which Fragata
filed on the date of Chuas proclamation, was filed within the reglementary period.75
The Commission on Elections stresses that Chua was a dual citizen at the time she
filed her Certificate of Candidacy.76 Consequently, she was ineligible to run for
Councilor and was correctly considered a non-candidate. 77 All the votes casted in
Chuas favor were correctly disregarded, resulting in Bacani garnering the next
highest number of votes.78 Following Maquiling, the Commission argues that Bacani
was validly proclaimed as Councilor, and, contrary to Chuas claim, the rule on
succession under Section 45 of the Local Government Code did not apply, with the
disqualifying circumstance existing prior to the filing of the Certificate of
Candidacy.79
Although Chua was already proclaimed, the Commission on Elections argues that
"[t]he will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed that the candidate was
qualified."80 Fragata, Bacani, and the Commission on Elections pray that the Petition
for Certiorari and Prohibition be dismissed.81
The issues for this Courts resolution are the following:
First, whether private respondent Imelda E. Fragata filed a petition for
disqualification or a petition to deny due course or cancel certificate of candidacy;
and
Second, whether the rule on succession under Section 45 of the Local Government
Code applies to this case.
We dismiss the Petition. The allegations of private respondent Fragatas Petition
before the Commission on Elections show that it was a timely filed petition for
disqualification. Moreover, the Commission on Elections did not gravely abuse its
discretion in disqualifying petitioner Arlene Llena Empaynado Chua, annulling her
proclamation, and subsequently proclaiming private respondent Krystle Marie C.
Bacani, the candidate who garnered the sixth highest number of votes among the
qualified candidates.
I
As this Court has earlier observed in Fermin v. Commission on Elections,82 members of
the bench and the bar have "indiscriminately interchanged"83 the remedies of a
petition to deny due course or cancel certificate of candidacy and a petition for
disqualification, thus "adding confusion to the already difficult state of our
jurisprudence on election laws."84
The remedies, however, have different grounds and periods for their filing. The
remedies have different legal consequences.
A person files a certificate of candidacy to announce his or her candidacy and to
declare his or her eligibility for the elective office indicated in the
certificate.85 Section 74 of the Omnibus Election Code on the contents of a certificate
of candidacy states:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and
that he is eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or district or section
which he seeks to represent; the political party to which he belongs; civil status; his
date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted authorities; that
he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose
of evasion; and that the facts stated in the certificate of candidacy are true to the best
of his knowledge.
Unless a candidate has officially changed his name through a court approved
proceeding, a candidate shall use in a certificate of candidacy the name by which he
has been baptized, or if has not been baptized in any church or religion, the name
registered in the office of the local civil registrar or any other name allowed under
the provisions of existing law or, in the case of a Muslim, his Hadji name after
performing the prescribed religious pilgrimage: Provided, That when there are two or
more candidates for an office with the same name and surname, each candidate,
upon being made aware of such fact, shall state his paternal and maternal surname,
except the incumbent who may continue to use the name and surname stated in his
certificate of candidacy when he was elected. He may also include one nickname or
stage name by which he is generally or popularly known in the locality.
The person filing a certificate of candidacy shall also affix his latest photograph,
passport size; a statement in duplicate containing his bio-data and program of
government not exceeding one hundred words, if he so desires.
The Commission on Elections has the ministerial duty to receive and acknowledge
receipt of certificates of candidacy.86 However, under Section 78 of the Omnibus
Election Code,87 the Commission may deny due course or cancel a certificate of
candidacy through a verified petition filed exclusively on the ground that "any
material representation contained therein as required under Section 74 hereof is
false." The "material representation" referred to in Section 78 is that which involves
the eligibility or qualification for the office sought by the person who filed the
certificate.88 Section 78 must, therefore, be read "in relation to the constitutional and
statutory provisions on qualifications or eligibility for public office."89 Moreover, the
false representation "must consist of a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible."90
A person intending to run for public office must not only possess the required
qualifications for the position for which he or she intends to run. The candidate must
also possess none of the grounds for disqualification under the law. As Justice
Vicente V. Mendoza said in his Dissenting Opinion in Romualdez-Marcos v.
Commission on Elections,91 "that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice-versa."92
Section 68 of the Omnibus Election Code provides for grounds in filing a petition for
disqualification:
Sec. 68 Disqualifications. Any candidate who, in action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.
Apart from the grounds provided in Section 68, any of the grounds in Section 12 of
the Omnibus Election Code as well as in Section 40 of the Local Government Code
may likewise be raised in a petition for disqualification. Section 12 of the Omnibus
Election Code states:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.
This disqualifications to be a candidate herein provided shall be deemed removed
upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.
Disqualifications specifically applicable to those running for local elective positions
are found in Section 40 of the Local Government Code:
SECTION 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to
the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
Private respondent Fragata alleges in her Petition that petitioner is a permanent
resident in the United States, a green card holder who, prior to the filing of her
Certificate of Candidacy for Councilor, has resided in the State of Georgia for 33
years. She anchors her Petition on Section 40 of the Local Government Code, which
disqualifies permanent residents of a foreign country from running for any elective
local position.
It is true that under Section 74 of the Omnibus Election Code, persons who file their
certificates of candidacy declare that they are not a permanent resident or immigrant
to a foreign country. Therefore, a petition to deny due course or cancel a certificate of
candidacy may likewise be filed against a permanent resident of a foreign country
seeking an elective post in the Philippines on the ground of material
misrepresentation in the certificate of candidacy.93
What remedy to avail himself or herself of, however, depends on the petitioner. If
the false material representation in the certificate of candidacy relates to a ground for
disqualification, the petitioner may choose whether to file a petition to deny due
course or cancel a certificate of candidacy or a petition for disqualification, so long as
the petition filed complies with the requirements under the law.94
Before the Commission on Elections, private respondent Fragata had a choice of
filing either a petition to deny due course or cancel petitioners certificate of
candidacy or a petition for disqualification. In her Petition, private respondent
Fragata did not argue that petitioner made a false material representation in her
Certificate of Candidacy; she asserted that petitioner was a permanent resident
disqualified to run for Councilor under Section 40 of the Local Government Code.
Private respondent Fragatas Petition, therefore, was a petition for disqualification.
It follows that private respondent Fragata timely filed her Petition before the
Commission on Elections. Under Rule 25, Section 3 of the Rules of Procedure of the
Commission, a petition for disqualification "shall be filed any day after the last day
for filing of certificates of candidacy, but not later that the date of proclamation."
Private respondent Fragata filed her Petition on the date of petitioners proclamation
on May 15, 2013. The Commission on Elections did not gravely abuse its discretion
in taking cognizance of private respondent Fragatas Petition.
In addition, the Commission on Elections correctly admitted private respondent
Bacanis pleading-in-intervention.
An adverse decision against petitioner would require a pronouncement as to who
should assume the position of Councilor. Hence, those who believe that they are
entitled to the position may prove their legal interest in the matter in litigation95 and
may properly intervene for a complete disposition of the case.
Private respondent Bacani claims that she is entitled to the position of Councilor. In
her Motion to Intervene, she argues for petitioners disqualification and alleges the
circumstances surrounding petitioners dual citizenship. She then cites Maquiling,
arguing that she should be proclaimed in lieu of petitioner because she obtained the
sixth highest number of votes among the qualified candidates. Private respondent
Bacanis intervention was, therefore, proper.
II
The Commission on Elections did not gravely abuse its discretion in disqualifying
petitioner, annulling her proclamation, and subsequently proclaiming private
respondent Bacani as the duly elected Councilor for the Fourth District of Manila.
Petitioner was born to Filipino parents in 1967, which makes her a natural-born
Filipino under the 1935 Constitution.96 Ten years later, on December 7, 1977,
petitioner became a naturalized American. Hence, she lost her Filipino citizenship
pursuant to Section 1 of Commonwealth Act No. 63.97
It was on September 21, 2011 when petitioner took an Oath of Allegiance to the
Republic of the Philippines, thus reacquiring her Filipino citizenship.98 From
September 21, 2011 up to the present, however, petitioner failed to execute a sworn
and personal renunciation of her foreign citizenship particularly required of those
seeking elective public office. Section 5(2) of the Citizenship Retention and Re-
acquisition Act of 2003
provides:
SECTION 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire
....
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath[.]
Petitioner cannot claim that she has renounced her American citizenship by taking
the Oath of Allegiance. The oath of allegiance and the sworn and personal
renunciation of foreign citizenship are separate requirements, the latter being
an additional requirement for qualification to run for public office. In Jacot v. Dal:99
[T]he oath of allegiance contained in the Certificate of Candidacy, which is
substantially similar to the one contained in Section 3 of Republic Act No. 9225, does
not constitute the personal and sworn renunciation sought under Section 5(2) of
Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a
general requirement for all those who wish to run as candidates in Philippine
elections; while the renunciation of foreign citizenship is an additional requisite only
for those who have retained or reacquired Philippine citizenship under Republic Act
No. 9225 and who seek elective public posts, considering their special circumstance
of having more than one citizenship.100
With petitioners failure to execute a personal and sworn renunciation of her
American citizenship, petitioner was a dual citizen at the time she filed her
Certificate of Candidacy on October 3, 2012. Under Section 40 of the Local
Government Code, she was disqualified to run for Councilor in the Fourth District of
Manila during the 2013 National and Local Elections.
Petitioner, however, argues that the Commission on Elections gravely abused its
discretion in proclaiming private respondent Bacani, the mere seventh placer among
the candidates for Councilor and, therefore, not the electorates choice. Petitioner
maintains that the vacancy left by her disqualification should be filled according to
the rule on succession under Section 45(a)(1) of the Local Government Code, which
provides:
SECTION 45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in
the sanggunian where automatic successions provided above do not apply shall be
filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the case of the
sangguniang panlalawigan and the sangguniang panlungsod of highly
urbanized cities and independent component cities[.]
The permanent vacancies referred to in Section 45 are those arising "when an elective
local official fills a higher vacant office, refuses to assume office, fails to qualify, dies,
is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office."101 In these situations, the
vacancies were caused by those whose certificates of candidacy were valid at the
time of the filing "but subsequently had to be cancelled because of a violation of law
that took place, or a legal impediment that took effect, after the filing of the
certificate of candidacy."102
The rule on succession under Section 45, however, would not apply if the permanent
vacancy was caused by one whose certificate of candidacy was void ab initio.
Specifically with respect to dual citizens, their certificates of candidacy are void ab
initio because they possess "a substantive [disqualifying circumstance] . . . [existing]
prior to the filing of their certificate of candidacy."103 Legally, they should not even
be considered candidates. The votes casted for them should be considered stray and
should not be counted.104
In cases of vacancies caused by those with void ab initio certificates of candidacy, the
person legally entitled to the vacant position would be the candidate who garnered
the next highest number of votes among those eligible.105 In this case, it is private
respondent Bacani who is legally entitled to the position of Councilor, having
garnered the sixth highest number of votes among the eligible candidates. The
Commission on Elections correctly proclaimed private respondent Bacani in lieu of
petitioner.
Petitioner may have garnered more votes than private respondent Bacani. She may
have already been proclaimed. Nevertheless, elections are more than a numbers
game. Hence, in Maquiling:
The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires certain
qualifications to be possessed or that certain disqualifications be not possessed by
persons desiring to serve as elective public officials, those qualifications must be met
before one even becomes a candidate. When a person who is not qualified is voted
for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of
the candidate. To rule otherwise is to trample upon and rent asunder the very law
that sets forth the qualifications and disqualifications of candidates. We might as
well write off our election laws if the voice of the electorate is the sole determinant of
who should be proclaimed worthy to occupy elective positions in our republic.
....
As in any contest, elections are governed by rules that determine the qualifications
and disqualifications of those who are allowed to participate as players. When there
are participants who turn out to be ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess any of the disqualifications nor
lacks any of the qualifications set in the rules to be eligible as candidates. 106
All told, petitioner Arlene Llena Empaynado Chua is a dual citizen correctly
disqualified from running for the position of Councilor in the Fourth District of
Manila during the 2013 National and Local elections. With her dual citizenship
existing prior to the filing of the certificate of candidacy, her Certificate of Candidacy
was void ab initio. She was correctly considered a non-candidate. All votes casted
for her were stray, and the person legally entitled to the position is private
respondent Krystle Marie C. Bacani, the candidate with the next highest number of
votes among the eligible candidates. The Commission on Elections did not gravely
abuse its discretion in annulling Chua's proclamation and subsequently proclaiming
private respondent Bacani.
WHEREFORE, the Petition for Certiorari and Prohibition is DISMISSED. This
Decision is immediately executory.
SO ORDERED.
ARSENIO A. AGUSTIN, Petitioner, v. COMMISSION ON ELECTIONS AND
SALVADOR S. PILLOS, Respondent.
DECISION
BERSAMIN, J.:
A person of dual citizenship is disqualified from running for a public office in the
Philippines.
The Case
The petitioner seeks to annul and set aside the adverse resolution issued on April 23,
2013 in SPA No. 13-023 (DC),1 whereby the Commission on Elections
(COMELEC) En Banc disposed:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Motion for Reconsideration of Petitioner
Stewart D. De La Cruz in SPA No. 13-024 (DC) is denied for lack of merit. On the
other hand, the Motion for Reconsideration of Petitioner Salvador S. Pillos in SPA
No. 13-023 (DC) is granted; consequently, the Certificate of Candidacy of
Respondent Arsenio A. Agustin is hereby CANCELLED and DENIED DUE
COURSE.
SO ORDERED.2ChanRoblesVirtualawlibrary
cralawlawlibrary
Antecedents
In 1997, the petitioner was naturalized as a citizen of the United States of America
(USA).3 On October 5, 2012,4 he filed his certificate of candidacy (CoC) for the
position of Mayor of the Municipality of Marcos, Ilocos Norte to be contested in the
May 13, 2013 local elections.5 As the official candidate of the Nacionalista Party,6 he
declared in his CoC that he was eligible for the office he was seeking to be elected to;
that he was a natural born Filipino citizen; and that he had been a resident of the
Municipality of Marcos, Ilocos Norte for 25 years.7
On October 10, 2012, respondent Salvador S. Pillos, a rival mayoralty candidate, filed
in the COMELEC a Petition To Deny Due Course and/or to Cancel the Certificate of
Candidacy of Arsenio A. Agustin, docketed as SPA No. 13-023 (DC),8 alleging that the
petitioner had made a material misrepresentation in his CoC by stating that he had
been a resident of the Municipality of Marcos for 25 years despite having registered
as a voter therein only on May 31, 2012. The petition stated the sole ground
thuswise:chanRoblesvirtualLawlibrary
THE DECLARATION UNDER OATH MADE BY THE RESPONDENT THAT HE IS
ELIGIBLE FOR THE OFFICE OR SEEK TO BE ELECTED TO (sic) CONSTITUTES
MATERIAL MISREPRESENTATION FOR THE TRUTH OF THE MATTER (sic) HE
HAS NOT RESIDED AS REQUIRED BY LAW FOR A PERIOD OF ONE YEAR IN
THE LOCALITY HE SEEKS TO BE ELECTED.9cralawlawlibrary
and prayed, viz.:chanRoblesvirtualLawlibrary

WHEREFORE, it is respectfully prayed before this Honorable Commission, to issue
an order to immediately deny due course and or to cancel the certificate of
candidacy of respondent Arsenio A. Agustin.
Other reliefs just and equitable are likewise prayed of (sic).10cralawlawlibrary
In his answer, the petitioner countered that the one-year requirement referred to
residency, not to voter registration; that residency was not dependent on citizenship,
such that his travel to Hawaii for business purposes did not violate the residency
requirement pursuant to prevailing jurisprudence; and that as regards citizenship,
he attached a copy of his Affidavit of Renunciation of U.S./American
Citizenship executed on October 2, 2012.11
On January 28, 2013, the COMELEC Second Division issued its omnibus
resolution,12 pertinently holding:chanRoblesvirtualLawlibrary
As can be clearly gathered from the Velasco case, a candidate's status as a registered
voter is a material fact which falls under the same classification as one's citizenship
or residence. While they are under the same classification as referring to a
candidate's qualification for elective office, the requirements are different. The
requirement that a candidate must be a registered voter does not carry with it the
requirement that he must be so one year before the elections because this refers to
the residency qualification.
On this score, it could not be said that respondents falsely represented the length of
their residence in the municipality simply because they became registered voters
thereof only fairly recently. As far as registration as a voter is concerned, it should
suffice that they are duly registered upon the filing of their COCs or within the
period prescribed by law for such registration.
Anent petitioner['] allegations that respondents were unable to vote because they are
residents of other countries, the records are bereft of any evidence that would
substantiate this. It is a fundamental rule that he who alleges, not he who denies,
must prove. Mere, petitioners have not adduced a single shred of competent
evidence that respondents were actually residents or citizens of other countries that
is why they were unable to vote.
WHEREFORE, in view of the foregoing, the petitions are hereby DENIED for lack of
merit.
cralawlawlibrary
On February 12, 2013, Pillos moved for the reconsideration of the January 28, 2013
resolution with the COMELEC En Banc.14 He underscored in his motion that the
certification issued by the Bureau of Immigration reflected that the petitioner had
voluntarily declared in his travel documents that he was a citizen of the USA; that
when he travelled to Hawaii, USA on October 6, 2012, he still used his USA passport
despite his renunciation of his USA citizenship on October 2, 2012 and after filing his
CoC on October 5, 2012, in which he declared that he was a resident of the
Municipality of Marcos, Ilocos Norte; and that the petitioner's declaration of his
eligibility in his CoC constituted material misrepresentation because of his failure to
meet the citizenship and residency requirements.
The petitioner opposed the motion for reconsideration.15
On April 23, 2013, the COMELEC En Banc issued its assailed resolution cancelling
and denying due course to the petitioner's CoC, observing as
Having admitted his dual citizenship, Agustin had the burden of proving through
his evidence that he complied with the statutory requirements imposed upon dual
citizens provided under Republic Act 9225, particularly Section 3 and 5(2) thereof, to
xxxx
While Agustin presented a copy of his Affidavit of Renunciation, he failed to furnish

this Commission a copy of his Oath of Allegiance. Noteworthy is the fact, that in
Agustin's Affidavit of Renunciation, it was stated that his Oath of Allegiance is
attached as Annex "B"; however, said attachment has not been made available for the
perusal of this Commission. Having failed to sufficiently show that he complied
with the provisions of RA 9225, Agustin's COC must be cancelled and/or denied
due course. Consequently, the Motion for Reconsideration is only granted as against
Respondent Agustin.16ChanRoblesVirtualawlibrary
cralawlawlibrary
On May 3, 2013, the petitioner filed a Verified Urgent Motion for Reconsideration with
Leave of Court.17He attached thereto copies of the Order of Approval dated February
12, 201218 and his Oath of Allegiance dated March 9, 2012,19 both issued by the
Consulate General of the Philippines in Honolulu, Hawaii. He further attached
certifications issued by Election Officers in Ilocos Norte attesting that the documents
had been received by the COMELEC and retained in its files. He explained that the
documents were not presented during the course of the proceedings because the sole
issue raised by Pillos' Petition to Deny Due Course and/or to Cancel Certificate of
Candidacy had involved only his (petitioner) compliance with the one-year residency
requirement.
Pillos submitted a Motion for Issuance of Writ of Execution and Comment on the Verified
Motion for Reconsideration with Leave of Court on May 8, 2013,20 praying that a writ of
execution be issued to implement the cancellation of the petitioner's COC.
On election day, May 13, 2013, the name of the petitioner remained in the ballot. He
was later on proclaimed as the duly elected Municipal Mayor of Marcos, Ilocos
Norte for obtaining 5,020 votes,21 the highest among the contending parties.
Sensing that the 30-day period within which a petition for certiorari should be filed in
the Supreme Court was about to expire, the petitioner filed on May 24, 2013 an
Urgent Motion to Withdraw Verified Urgent Motion for Reconsideration with Leave of
Court dated May 3, 2013.22
On May 28, 2013, the petitioner thus instituted this case, alleging grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the COMELEC
En Banc based on the following grounds:chanRoblesvirtualLawlibrary
a. The assailed En Banc Resolution was promulgated in gross violation of
Petitioner's guaranteed Constitutional Right to Due Process and to be
informed of the facts and the law on which the same was based; and
b. The grave erroneous appreciation of the facts, law, and the evidence of
the case.23
cralawlawlibrary
Meanwhile, on June 18, 2013, the COMELEC En Banc, pointing out that the filing of a
motion for reconsideration of an en banc resolution was not allowed under Rule 13 of
the 1993 COMELEC Rules of Procedure; and that, accordingly, the April 23, 2013
resolution was deemed final and executory pursuant to Section 8, paragraph 2 of
COMELEC Resolution No. 9523, issued the writ of execution.24
On July 16, 2013, the Court required the parties to observe the status quo prevailing
before the issuance of the COMELEC En Banc resolution dated April 23,
2013.25cralawred
Issues
The core issue involves the eligibility of the petitioner as a candidate for the position
of Mayor of the Municipality of Marcos, Ilocos Norte.
A secondary issue concerns the propriety of Pillos' claim as the rightful occupant of
the contested elective position.
Ruling
The petition for certiorari lacks merit.
The Court finds and declares that the petitioner made no material misrepresentation
in his CoC; hence, there is no legal or factual basis for the cancellation of the CoC.
Even so, he was disqualified to run as Mayor of the Municipality of Marcos, Ilocos
Norte for being a dual citizen. With his disqualification having been determined and
pronounced by final judgment before the elections, the votes cast in his favor should
not be counted. Accordingly, his rival, respondent Pillos, should be proclaimed duly
elected Mayor for obtaining the highest number of votes in the elections.
1.
Administrative due process was observed
Before anything more, let us deal with the petitioner's insistence that the
COMELEC En Banc gravely abused its discretion in resolving Pillos' motion for
reconsideration based on a ground that was neither the basis of nor raised in
the Petition To Deny Due Course and/or to Cancel the Certificate of Candidacy of Arsenio
A. Agustin; that the non-presentation of his Oath of Allegiance should not be fatal to
his constitutional right to run for public office especially because the sole ground for
Pillos' petition in the COMELEC had dealt only with the residency requirement; that
Pillos could have included citizenship as a ground by the amendment of his petition,
but he did not move for that purpose; that he duly complied with the requirements
for the re-acquisition of his Philippine citizenship pursuant to Republic Act No. 9225,
and the proof of the re-acquisition had been submitted to the Election Officers in
Ilocos Norte; and that the COMELEC, by not at least holding a clarificatory hearing
to ascertain and confirm such matters, violated his right to due process by denying
to him the opportunity to prepare for his defense.
The petitioner's insistence lacks merit.
We note that the petitioner's citizenship came to the fore because he himself asserted
his Philippine citizenship in his answer to Pillos' petition to cancel his CoC in order
to bolster his allegation of compliance with the one-year residency requirement. As
such, he could not credibly complain about being denied due process, especially
considering that he had been able to file an opposition to Pillos' motion for
reconsideration. It is worthy to state that the observance of due process in
administrative proceedings does not always require or involve a trial-type
proceeding, for the demand of due process is also met whenever a person, being
notified, is afforded the opportunity to explain or defend himself. Also, due process
is satisfied by giving the opportunity to seek the reconsideration of the action or
ruling complained of.26 The rule is the same in election cases.27
2.
The petitioner filed a valid CoC, but the use of
his USA passport after his renunciation of
foreign citizenship rendered him disqualified
from continuing as a mayoralty candidate
A valid CoC arises upon the timely filing of a person's declaration of his intention to
run for public office and his affirmation that he possesses the eligibility for the
position he seeks to assume. The valid CoC renders the person making the
declaration a valid or official candidate.28
There are two remedies available under existing laws to prevent a candidate from
running in an electoral race. One is by petition for disqualification, and the other by
petition to deny due course to or to cancel his certificate of candidacy. In Fermin v.
Commission on Elections,29 the Court has differentiated the two remedies
thuswise:chanRoblesvirtualLawlibrary
[A] petition for disqualification, on the one hand, can be premised on Section 12 or
68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due
course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different
effects. While a person who is disqualified under Section 68 is merely prohibited to
continue as a candidate, the person whose certificate is cancelled or denied due
course under Section 78 is not treated as a candidate at all, as if he/she never filed a
CoC.30cralawlawlibrary
Section 78 of the Omnibus Election Code states:chanRoblesvirtualLawlibrary

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.cralawlawlibrary
The Court has described the nature of a Section 78 petition

in Fermin thusly:chanRoblesvirtualLawlibrary
[t]he denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false,
which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office
he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or eligibility for public
office. If the candidate subsequently states a material representation in the CoC
that is false, the COMELEC, following the law, is empowered to deny due course
to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since
they both deal with the eligibility or qualification of a candidate, with the distinction
mainly in the feet that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning
candidate.31cralawlawlibrary
The denial of due course to or the cancellation of the CoC under Section 78 of the
Omnibus Election Code involves a finding not only that a person lacked a
qualification for the office he is vying for but also that such he made a material
representation in the CoC that was false. The Court has stressed in Mitra v.
Commission on Elections32 that in addition to materiality there must be a deliberate
attempt to mislead, misinform, or hide a fact that would otherwise render the
candidate ineligible, viz.:chanRoblesvirtualLawlibrary
The false representation under Section 78 must likewise be a "deliberate attempt to
mislead, misinform, or hide a fact that would otherwise render a candidate
ineligible." Given the purpose of the requirement, it must be made with the intention
to deceive the electorate as to the would-be candidate's qualifications for public
office. Thus, the misrepresentation that Section 78 addresses cannot be the result of a
mere innocuous mistake, and cannot exist in a situation where the intent to deceive
is patently absent, or where no deception on the electorate results. The deliberate
character of the misrepresentation necessarily follows from a consideration of the
consequences of any material falsity: a candidate who falsifies a material fact cannot
run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for
violation of the election laws.33ChanRoblesVirtualawlibrary
cralawlawlibrary
A petition for the denial of due course to or cancellation of COC that falls short of
the foregoing requirements should not be granted.
The petition of Pillos in SPA No. 13-023 (DC) was in the nature of the Section 78
petition to deny due course to or to cancel the CoC of the petitioner because it
contained allegations pertaining to a Section 78 petition, namely: (a) the petitioner as
a candidate made a representation in his CoC; (b) the representation referred to a
material matter that would affect his substantive right as candidate (that is, the right
to run for the position for which he filed his CoC); and (c) he made the false
representation with the intention to deceive the electorate as to his qualification for
public office, or he deliberately attempted to mislead, misinform, or hide a fact that
would otherwise render him ineligible. Pillos further challenged the petitioner's
eligibility for public office based on his failure to comply with the one-year residency
requirement stated in the Local Government Code, and ultimately specifically prayed
that the COMELEC "issue an order to immediately deny due course and or to cancel
the certificate of candidacy of respondent Arsenio A. Agustin."34
Yet, the COMELEC En Banc canceled the petitioner's CoC not because of his failure
to meet the residency requirement but because of his failure "to sufficiently show
that he complied with the provisions of RA 9225."35 In our view, such basis for
cancelation was unwarranted considering that he became eligible to run for public
office when he expressly renounced his USA citizenship, by which he fully complied
with the requirements stated in Section 5(2) of Republic Act No. 9225, to
Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire
Philippines and the following conditions:chanRoblesvirtualLawlibrary
xxxx
(2) Those seeking elective public in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath;
xxxx
cralawlawlibrary
More particularly, the petitioner took his Oath of Allegiance on March 9, 2012 and
executed his Affidavit of Renunciation on October 2, 2012. By his Oath of Allegiance
and his renunciation of his USA citizenship, he reverted to the status of an
exclusively Filipino citizen. On October 5, 2012, the date he filed his CoC he was,
therefore, exclusively a Filipino citizen, rendering him eligible to run for public
office. His CoC was valid for all intents and purposes of the election laws because he
did not make therein any material misrepresentation of his eligibility to run as
Mayor of the Municipality of Marcos, Ilocos Norte.
Nonetheless, we uphold the declaration by the COMELEC En Banc that the

petitioner was ineligible to run and be voted for as Mayor of the Municipality of
Marcos, Ilocos Norte. It is not disputed that on October 6, 2012,36 after having
renounced his USA citizenship and having already filed his CoC, he travelled
abroad using his USA passport, thereby representing himself as a citizen of the USA.
He continued using his USA passport in his subsequent travels abroad37 despite
having been already issued his Philippine passport on August 23, 2012.38 He thereby
effectively repudiated his oath of renunciation on October 6, 2012, the first time he
used his USA passport after renouncing his USA citizenship on October 2, 2012.
Consequently, he could be considered an exclusively Filipino citizen only for the
four days from October 2, 2012 until October 6, 2012.
The petitioner's continued exercise of his rights as a citizen of the USA through using
his USA passport after the renunciation of his USA citizenship reverted him to his
earlier status as a dual citizen.39 Such reversion disqualified him from being elected
to public office in the Philippines pursuant to Section 40(d) of the Local Government
Code, viz.:chanRoblesvirtualLawlibrary
Section 40. Disqualifications. - The following persons arc disqualified from running
for any elective local position:chanRoblesvirtualLawlibrary
xxxx
(d) Those with dual citizenship;
x x x x (Emphasis supplied)
cralawlawlibrary
A candidate is ineligible if he is disqualified to be elected to office, and he is

disqualified if he lacks any of the qualifications for elective office.40 Even if it made
no finding that the petitioner had deliberately attempted to mislead or to misinform
as to warrant the cancellation of his CoC, the COMELEC could still declare him
disqualified for not meeting the requisite eligibility under the Local Government Code.
3.
The petitioner was declared disqualified by
final judgment before election day; hence, the
votes cast for him should not be counted.
Considering that the Section 78 petition to deny due course to or to cancel the CoC
requires a finding that he made a material representation in the CoC that was false,
the COMELEC En Banc, in granting Pillos' motion for reconsideration, expressly held
the petitioner ineligible to participate in the elections or disqualified from the
mayoralty race, which was the basis for the cancellation of his CoC. Such reason
cancelling the petitioner's CoC despite the absence of the material misrepresentation
at the time he filed his CoC might not be in order, but the undisputed fact is that the
COMELEC En Banc expressly decreed his disqualification in the April 23, 2013
resolution.
The effect of the petitioner's disqualification under the April 23, 2013 resolution
depended on when the disqualification attained finality. The distinction exists
because of Section 6 of Republic Act No. 6646 (The Electoral Reforms Law of 1987),
which states:chanRoblesvirtualLawlibrary
Section 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt
is strong.
cralawlawlibrary
In Cayat v. Commission on Elections,41 the Court has expounded on the effect of
Section 6 of Republic Act No. 6646 thusly:chanRoblesvirtualLawlibrary
The law expressly declares that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral
Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt
is strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is
when the disqualification becomes final before the elections, which is the situation
covered in the first sentence of Section 6. The second is when the disqualification
becomes final after the elections, which is the situation covered in the second
sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms
Law governing the first situation is categorical: a candidate disqualified by final
judgment before an election cannot be voted for, and votes cast for him shall not
be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way
before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayat's favor
are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng's
proclamation is proper because he was the sole and only candidate, second to
none.42cralawlawlibrary
Even if his disqualification did not subvert the validity of his CoC, the petitioner
would be reduced to a non-candidate under the terms of Section 6, supra, should it
be shown that the disqualification attained finality prior to the 2013 elections. The
effect was to render the votes cast in his favor stray, resulting in Pillos being
proclaimed the winning candidate.
It is crucial, therefore, to determine with certainty the time when the judgment
declaring the petitioner disqualified from running for the local elective position
attained finality.
Pillos submits that the April 23, 2013 resolution was already deemed final and
executory as of May 4, 2013; hence, the writ of execution was issued on June 18, 2013;
and that the petitioner's disqualification thus attained finality prior to the May 13,
2013 elections.
Pillos' submission is correct.
Although the petitioner filed his Verified Urgent Motion for Reconsideration with Leave
of Court on May 3, 201343 upon receiving the April 23, 2013 resolution granting Pillos'
motion for reconsideration,44 such filing did not impede the April 23, 2013 resolution
from being deemed final and executory because Section l(d), Rule 13 of the 1993
COMELEC Rules of Procedure expressly disallowed the filing of the motion for
reconsideration.45 Within the context of Section 13, Rule 18,46 and Section 3, Rule
37,47 both of the 1993 COMELEC Rules of Procedure, the April 23, 2013 resolution
became final and executory as of May 4, 2013 upon the lapse of five days from its
promulgation without a restraining order being issued by the Supreme Court.
Under the circumstances, the finality of the petitioner's disqualification pursuant to

the April 23, 2013 resolution prior to the May 13, 2013 elections rendered him a non-
candidate, and the votes cast for him should not have been counted.48 Pillos, being
the qualified candidate obtaining the highest number of votes, should be proclaimed
duly elected as Mayor of the Municipality of Marcos, Ilocos Norte in the 2013
elections.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the
resolution dated April 23, 2013 insofar as it disqualified petitioner Arsenio A.
Agustin from running for any local elective position in the May 13, 2013
elections; DECLARES respondent Salvador S. Pillos the duly elected Mayor of the
Municipality of Marcos, Ilocos Norte in the May 13, 2013 elections; ORDERS the
Commission on Elections to cause the proclamation of respondent Salvador S. Pillos
as the duly elected Mayor of the Municipality of Marcos, Ilocos Norte in the May 13,
2013 elections; and REQUIRES the petitioner to pay the costs of suit.
SO ORDERED.chanroblesvirtuallawlibrary
TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR
and WILMA P. PAGADUAN, Respondents.
SERENO,*
PERLAS-BERNABE, JJ *
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section
5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and
thus hold any elective public office.
The Case
At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court
seeking to nullify Resolution2dated September 6, 2011 of the Commission on
Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution
(a) reversed the Order3 dated November 30, 2010 of COMELEC Second Division
dismissing petitioners appeal; and (b) affirmed the consolidated Decision4 dated
October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33,
declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and
ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents
on August 8, 1944. On December 13, 1984, she became a naturalized Australian
citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship
before the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A.
No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of
2003."5 The application was approved and the petitioner took her oath of allegiance
to the Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation
of Australian Citizenship before the Department of Immigration and Indigenous
Affairs, Canberra, Australia, which in turn issued the Order dated September 27,
2006 certifying that she has ceased to be an Australian citizen.6
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007
elections. She lost in her bid. She again sought elective office during the May 10, 2010
elections this time for the position of Vice-Mayor. She obtained the highest numbers
of votes and was proclaimed as the winning candidate. She took her oath of office on
May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis
M. Bautista,8 (private respondents) all registered voters of Caba, La Union, filed
separate petitions for quo warranto questioning the petitioners eligibility before the
RTC. The petitions similarly sought the petitioners disqualification from holding her
elective post on the ground that she is a dual citizen and that she failed to execute a
"personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath" as imposed by Section 5(2) of R.A.
No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006,
she ceased to be an Australian citizen. She claimed that the Declaration of
Renunciation of Australian Citizenship she executed in Australia sufficiently
complied with Section 5(2), R.A. No. 9225 and that her act of running for public
office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the
petitioners failure to comply with Section 5(2) of R.A. No. 9225 rendered her
ineligible to run and hold public office. As admitted by the petitioner herself during
trial, the personal declaration of renunciation she filed in Australia was not under
oath. The law clearly mandates that the document containing the renunciation of
foreign citizenship must be sworn before any public officer authorized to administer
oath. Consequently, the RTCs decision disposed as follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of
[private respondents] and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and
ineligible to hold the office of Vice-Mayor of Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said
municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the
Second Division in its Order10dated November 30, 2010 for failure to pay the docket
fees within the prescribed period. On motion for reconsideration, the appeal was
reinstated by the COMELEC en banc in its Resolution11 dated September 6, 2011. In
the same issuance, the substantive merits of the appeal were given due course. The
COMELEC en banc concurred with the findings and conclusions of the RTC; it also
granted the Motion for Execution Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it
hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.12 (Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en
banc.
The Petitioners Arguments
The petitioner contends that since she ceased to be an Australian citizen on
September 27, 2006, she no longer held dual citizenship and was only a Filipino
citizen when she filed her certificate of candidacy as early as the 2007 elections.
Hence, the "personal and sworn renunciation of foreign citizenship" imposed by
Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to
her.
She further argues that a sworn renunciation is a mere formal and not a mandatory
requirement. In support thereof, she cites portions of the Journal of the House of
Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House
Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility
since they failed to do so when she filed certificates of candidacy for the 2007 and
2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of
the substantive merits of her appeal instead of remanding the same to the
COMELEC Second Division for the continuation of the appeal proceedings; and (b)
allow the execution pending appeal of the RTCs judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may
resolve the merits of an appeal after ruling on its reinstatement; II) Whether the
COMELEC en banc may order the execution of a judgment rendered by a trial court
in an election case; III) Whether the private respondents are barred from questioning
the qualifications of the petitioner; and IV) For purposes of determining the
petitioners eligibility to run for public office, whether the "sworn renunciation of
foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.
The Courts Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto
the COMELEC en banc by Section 3, Article IX-C of the Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules
of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on interlocutory orders of the
division which shall be resolved by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en
bancs prerogative in resolving a motion for reconsideration, there is nothing to
prevent the body from directly adjudicating the substantive merits of an appeal after
ruling for its reinstatement instead of remanding the same to the division that
initially dismissed it.
We thus see no impropriety much more grave abuse of discretion on the part of the
COMELEC en banc when it proceeded to decide the substantive merits of the
petitioners appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC
en banc, the petitioner not only proffered arguments on the issue on docket fees but
also on the issue of her eligibility. She even filed a supplemental motion for
reconsideration attaching therewith supporting documents13 to her contention that
she is no longer an Australian citizen. The petitioner, after obtaining an unfavorable
decision, cannot be permitted to disavow the en bancs exercise of discretion on the
substantial merits of her appeal when she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division
that initially dismissed them cannot serve as a precedent to the disposition of the
petitioners appeal. A decision or resolution of any adjudicating body can be
disposed in several ways. To sustain petitioners argument would be virtually
putting a straightjacket on the COMELEC en bancs adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division
would be unnecessarily circuitous and repugnant to the rule on preferential
disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC
Rules of Procedure.14
II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioners submission that the COMELEC en banc has no
power to order the issuance of a writ of execution and that such function belongs
only to the court of origin.
There is no reason to dispute the COMELECs authority to order discretionary
execution of judgment in view of the fact that the suppletory application of the Rules
of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of
Procedure.15
Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be
issued by an appellate court after the trial court has lost jurisdiction. In Batul v.
Bayron,16 we stressed the import of the provision vis--vis election cases when we
held that judgments in election cases which may be executed pending appeal
includes those decided by trial courts and those rendered by the COMELEC whether
in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioners eligibility to hold public
office.
The fact that the petitioners qualifications were not questioned when she filed
certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to
the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two
instances where a petition questioning the qualifications of a registered candidate to
run for the office for which his certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. Any voter contesting the election of any
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to
file the petition within the twenty-five (25)-day period prescribed by Section 78 of
the Omnibus Election Code for whatever reasons, the elections laws do not leave
him completely helpless as he has another chance to raise the disqualification of the
candidate by filing a petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253 of the
Omnibus Election Code.17
The above remedies were both available to the private respondents and their failure
to utilize Section 78 of the Omnibus Election Code cannot serve to bar them should
they opt to file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for
natural-born citizens who have lost their Philippine citizenship18 by taking an oath
of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have re-acquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will
support and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I imposed this
obligation upon myself voluntarily without mental reservation or
purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
The oath is an abbreviated repatriation process that restores ones Filipino
citizenship and all civil and political rights and obligations concomitant therewith,
subject to certain conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire
(1) Those intending to exercise their right of suffrage must meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification
for holding such public office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities
prior to their assumption of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed
forces of the country which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the petitioner has validly re-
acquired her Filipino citizenship when she took an Oath of Allegiance to the
Republic of the Philippines on December 5, 2005. At that point, she held dual
citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she
filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly,
however, the same was not under oath contrary to the exact mandate of Section 5(2)
that the renunciation of foreign citizenship must be sworn before an officer
authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the
Court to interpret the "sworn renunciation of any and all foreign citizenship" in
Section 5(2) to be a mere pro forma requirement in conformity with the intent of the
Legislature. She anchors her submission on the statement made by Representative
Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No.
9225.
At the outset, it bears stressing that the Courts duty to interpret the law according to
its true intent is exercised only when the law is ambiguous or of doubtful meaning.
The first and fundamental duty of the Court is to apply the law. As such, when the
law is clear and free from any doubt, there is no occasion for construction or
interpretation; there is only room for application.19 Section 5(2) of R.A. No. 9225 is
one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in
more than one way, or of referring to two or more things at the same time. For a
statute to be considered ambiguous, it must admit of two or more possible
meanings.20
The language of Section 5(2) is free from any ambiguity. In Lopez v.
COMELEC,21 we declared its categorical and single meaning: a Filipino American or
any dual citizen cannot run for any elective public position in the Philippines unless
he or she personally swears to a renunciation of all foreign citizenship at the time of
filing the certificate of candidacy. We also expounded on the form of the
renunciation and held that to be valid, the renunciation must be contained in an
affidavit duly executed before an officer of the law who is authorized to administer
an oath stating in clear and unequivocal terms that affiant is renouncing all foreign
citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-
acquiring or retaining their Philippine citizenship under R.A. No. 9225 must
explicitly renounce their foreign citizenship if they wish to run for elective posts in
the Philippines, thus:
The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal
and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who
have been naturalized as citizens of a foreign country, but who reacquired or
retained their Philippine citizenship (1) to take the oath of allegiance under Section 3
of Republic Act No. 9225, and (2) for those seeking elective public offices in the
Philippines, to additionally execute a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer prior or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and
sworn renunciation of any and all foreign citizenship) requires of the Filipinos
availing themselves of the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with under Section 3 thereof
(oath of allegiance to the Republic of the Philippines). This is made clear in the
discussion of the Bicameral Conference Committee on Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of
Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon.
Representative Arthur Defensor explained to Hon. Representative Exequiel Javier
that the oath of allegiance is different from the renunciation of foreign citizenship;
xxxx
The intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they
wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely, Philippine
citizenship.23 (Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be
disqualified from running for the position of vice-mayor for his failure to make a
personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings
to the phrase "sworn renunciation". The language of the provision is plain and
unambiguous. It expresses a single, definite, and sensible meaning and must thus be
read literally.25 The foreign citizenship must be formally rejected through an
affidavit duly sworn before an officer authorized to administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to
convey.26 Even a resort to the Journal of the House of Representatives invoked by the
petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited
to natural-born Filipinos and not to naturalized Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that
natural-born Filipinos who have dual citizenship shall continue to enjoy full civil
and political rights. This being the case, he sought clarification as to whether they
can indeed run for public office provided that they renounce their foreign
citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to
make a personal and sworn renunciation of foreign citizenship before any
authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill
provides them with full civil and political rights as Filipino citizens, the measure also
discriminates against them since they are required to make a sworn renunciation of
their other foreign citizenship if and when they run for public office. He thereafter
proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts
regarding any issues that might be raised pertaining to the citizenship of any
candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the
United States considered a naturalized American still as an American citizen even
when he cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in
voting, one is not required to renounce his foreign citizenship. He pointed out that
under the Bill, Filipinos who run for public office must renounce their foreign
citizenship. He pointed out further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign
citizenship and are now entitled to reacquire their Filipino citizenship will be
considered as natural-born citizens. As such, he likewise inquired whether they will
also be considered qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they
make a sworn renunciation of their foreign citizenship and that they comply with
the residency and registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are
those who are citizens at the time of birth without having to perform an act to
complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the
repeal of CA No. 63. The repeal, he said, would help Filipino citizens who acquired
foreign citizenship to retain their citizenship. With regard then to Section 5 of the
Bill, he explained that the Committee had decided to include this provision because
Section 18, Article XI of the Constitution provides for the accountability of public
officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a
foreign citizenship will only become a pro forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino
citizens who became foreign citizens and who have reacquired their Filipino
citizenship under the Bill will be considered as natural-born citizens, and therefore
qualified to run for the presidency, the vice-presidency or for a seat in Congress. He
also agreed with the observation of Rep. Javier that a natural-born citizen is one who
is a citizen of the country at the time of birth. He also explained that the Bill will, in
effect, return to a Filipino citizen who has acquired foreign citizenship, the status of
being a natural-born citizen effective at the time he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against
naturalized Filipino citizens and Filipino citizens by election who are all disqualified
to run for certain public offices. He then suggested that the Bill be amended by not
considering as natural-born citizens those Filipinos who had renounced their
Filipino citizenship and acquired foreign citizenship. He said that they should be
considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the
latters comments on the matter. He however stressed that after a lengthy
deliberation on the subject, the Committees on Justice, and Foreign Affairs had
decided to revert back to the status of being natural-born citizens those natural-born
Filipino citizens who had acquired foreign citizenship but now wished to reacquire
their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue
of her marriage to a foreigner can regain her repatriated Filipino citizenship, upon
the death of her husband, by simply taking her oath before the Department of Justice
(DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other
Filipino citizens who are not considered natural-born. He reiterated that natural-
born Filipino citizens who had renounced their citizenship by pledging allegiance to
another sovereignty should not be allowed to revert back to their status of being
natural-born citizens once they decide to regain their Filipino citizenship. He
underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of
Rep. Javier, Rep. Libanan stated that this will defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who
acquired foreign citizenships and later decided to regain their Filipino citizenship,
will be considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had
ruled that only naturalized Filipino citizens are not considered as natural-born
citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers
are Filipino citizens under the 1935 Constitution and who elected Filipino citizenship
upon reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results
in the recovery of ones original nationality and only naturalized citizens are not
considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-
born citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep.
Libanan remarked that the Body in plenary session will decide on the matter.27
The petitioner obviously espouses an isolated reading of Representative Javiers
statement; she conveniently disregards the preceding and succeeding discussions in
the records.
The above-quoted excerpts of the legislative record show that Representative Javiers
statement ought to be understood within the context of the issue then being
discussed, that is whether former natural-born citizens who re-acquire their
Filipino citizenship under the proposed law will revert to their original status as
natural-born citizens and thus be qualified to run for government positions reserved
only to natural-born Filipinos, i.e. President, Vice-President and Members of the
Congress.
It was Representative Javiers position that they should be considered as repatriated
Filipinos and not as natural-born citizens since they will have to execute a personal
and sworn renunciation of foreign citizenship. Natural-born citizens are those who
need not perform an act to perfect their citizenship. Representative Libanan,
however, maintained that they will revert to their original status as natural-born
citizens. To reconcile the renunciation imposed by Section 5(2) with the principle
that natural-born citizens are those who need not perform any act to perfect their
citizenship, Representative Javier suggested that the sworn renunciation of foreign
citizenship be considered as a mere pro forma requirement.
Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign
citizenship" must be deemed a formal requirement only with respect to the re-
acquisition of ones status as a natural-born Filipino so as to override the effect of the
principle that natural-born citizens need not perform any act to perfect their
citizenship. Never was it mentioned or even alluded to that, as the petitioner wants
this Court to believe, those who re-acquire their Filipino citizenship and thereafter
run for public office has the option of executing an unsworn affidavit of
renunciation.
It is also palpable in the above records that Section 5 was intended to complement
Section 18, Article XI of the Constitution on public officers primary accountability of
allegiance and loyalty, which provides:
Sec. 18. Public officers and employees owe the State and this Constitution
allegiance at all times and any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another country during his
tenure shall be dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered
person or thing, that ones statement is true or that one will be bound to a promise.
The person making the oath implicitly invites punishment if the statement is untrue
or the promise is broken. The legal effect of an oath is to subject the person to
penalties for perjury if the testimony is false.28
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures
truthfulness to the prospective public officers abandonment of his adopted state and
promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for
ceremonial purposes; it would also accommodate a mere qualified or temporary
allegiance from government officers when the Constitution and the legislature
clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is
already deemed to have lost her citizenship, is entitled to judicial notice. We
disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be
alleged and proven.29 To prove a foreign law, the party invoking it must present a
copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of
Court which reads:
Sec. 24. Proof of official record. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice- consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his
office. (Emphasis ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record
is attested for the purpose of the evidence, the attestation must state, in substance,
that the copy is a correct copy of the original, or a specific part thereof, as the case
may be. The attestation must be under the official seal of the attesting officer, if there
be any, or if he be the clerk of a court having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the
existence of a foreign law may also be established through: (1) a testimony under
oath of an expert witness such as an attorney-at-law in the country where the foreign
law operates wherein he quotes verbatim a section of the law and states that the
same was in force at the time material to the facts at hand; and (2) likewise, in
several naturalization cases, it was held by the Court that evidence of the law of a
foreign country on reciprocity regarding the acquisition of citizenship, although not
meeting the prescribed rule of practice, may be allowed and used as basis for
favorable action, if, in the light of all the circumstances, the Court is "satisfied of the
authenticity of the written proof offered." Thus, in a number of decisions, mere
authentication of the Chinese Naturalization Law by the Chinese Consulate General
of Manila was held to be a competent proof of that law.30
The petitioner failed to prove the Australian Citizenship Act of 1948 through any of
the above methods. As uniformly observed by the RTC and COMELEC, the
petitioner failed to show proof of the existence of the law during trial. Also, the letter
issued by the Australian government showing that petitioner already renounced her
Australian citizenship was unauthenticated hence, the courts a quo acted judiciously
in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as
competent evidence the said letter in view of the photocopy of a Certificate of
Authentication issued by Consular Section of the Philippine Embassy in Canberra,
Australia attached to the petitioners motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers
and Allied Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No.
9225 did not intend the law to concern itself with the actual status of the other
citizenship.
This Court as the government branch tasked to apply the enactments of the
legislature must do so conformably with the wisdom of the latter sans the
interference of any foreign law. If we were to read the Australian Citizen Act of 1948
into the application and operation of R.A. No. 9225, we would be applying not what
our legislative department has deemed wise to require. To do so would be a brazen
encroachment upon the sovereign will and power of the people of this Republic.32
The petitioners act of running for public office does not suffice to serve as an
effective renunciation of her Australian citizenship. While this Court has previously
declared that the filing by a person with dual citizenship of a certificate of candidacy
is already considered a renunciation of foreign citizenship,33 such ruling was already
adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which
provides for the additional condition of a personal and sworn renunciation of
foreign citizenship.34
The fact that petitioner won the elections can not cure the defect of her candidacy.
Garnering the most number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire
their citizenship and seek elective office, to execute a personal and sworn
renunciation of any and all foreign citizenships before an authorized public officer
prior to or simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.36 The rule applies to all those who have re-
acquired their Filipino citizenship, like petitioner, without regard as to whether they
are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right
to run for public office.
Stated differently, it is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It
is the operative act that restores their right to run for public office. The petitioner's
failure to comply therewith in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she executed
on September 18, 2006. As such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her Australian citizenship, she is
ineligible to run for and hold any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The
Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC
(AE) No. A-44-2010 is AFFIRMED in toto.
SO ORDERED.
JENNIFER A. AGUSTIN-SE AND ROHERMIA J. JAMSANI-
RODRIGUEZ, Petitioners, v. OFFICE OF THE PRESIDENT, REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ORLANDO C.
CASIMIRO, OVERALL DEPUTY OMBUDSMAN, OFFICE OF THE
OMBUDSMAN, AND JOHN I.C. TURALBA, ACTING DEPUTY SPECIAL
PROSECUTOR, OFFICE OF THE SPECIAL PROSECUTOR, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 to set aside the 29 November 2012
Decision2 and the 23 May 20133 Resolution of the Court of Appeals upholding the 14
June 20114 Decision of the Office of the President (OP) to dismiss the complaint of
Jennifer A. Agustin-Se and Rohermia J. Jamsani-Rodriguez (petitioners) against
respondents Orlando C. Casimiro (Casimiro) and John I.C. Turalba
(Turalba).chanRoblesvirtualLawlibrary
The Facts
Petitioners are Assistant Special Prosecutors III of the Office of the Ombudsman,
who have been assigned to prosecute cases against Lt. Gen. (Ret.) Leopoldo S. Acot
(Acot), Bgen. (Ret.) Ildelfonso N. Dulinayan (Dulinayan) and several others before
the Sandiganbayan for alleged ghost deliveries of assorted supplies and materials to
the Philippine Air Force amounting to about Eighty Nine Million Pesos
(P89,000,000.00).
Sometime in early 1995, the Judge Advocate General's Office of the Armed Forces of
the Philippines filed a complaint before the Ombudsman against Acot, Dulinayan
and several others which was eventually docketed as OMB-AFP-CRIM-94-0218. In a
Resolution dated 12 April 1996,5 Ombudsman Investigators Rainier C. Almazan
(Almazan) and Rudifer G. Falcis II (Falcis) recommended the filing of Informations
against Acot, Dulinayan, and several others for violation of Section 3(e) of the Anti-
Graft and Corrupt Practices Act (Republic Act No. 3019 [RA No. 3019]) and/or for
Malversation through Falsification. Casimiro was then the Director of the Criminal
and Administrative Investigation Division of the Office of the Ombudsman and the
immediate supervisor of Almazan and Falcis. Casimiro concurred with and signed
the 12 April 1996 Resolution and indorsed the same to Bgen. (Ret.) Manuel B.
Casaclang, then Casimiro's immediate superior.
In a Memorandum dated 10 July 1996,6 then Special Prosecution Officer III Reynaldo
L. Mendoza recommended the modification of the 12 April 1996 Resolution to
charge Acot, Dulinayan and several others only with the violation of Section 3(e) of
RA No. 3019. In a Memorandum dated 12 January 1998,7Special Prosecutor
Leonardo Tamayo (Tamayo) recommended that the charges against Acot and
Dulinayan be dismissed for lack of evidence. Affirming the recommendation of
Tamayo, on 2 March 1998, Ombudsman Aniano A. Desierto approved the 12 April
1996 Resolution with the modification to dismiss the charges against Acot and
Dulinayan.
In a Memorandum dated 29 April 2005,8 Nolasco B. Ducay and Melita A. Cuasay,

record officers of the Office of the Deputy Ombudsman for the Military and Other
Law Enforcement Officers (OMB-MOLEO), brought to the attention of Casimiro
(who was then already the Deputy Ombudsman for MOLEO having been appointed
on 16 December 1999) that the main folder containing the 12 April 1996 Resolution
could not be located despite the records having been returned to the OMB-MOLEO
on 6 March 1998. The discovery of the missing folder was made when Col. Proceso I.
Sabado and Ltc. Jose R. Gadin, who were co-respondents of Acot and Dulinayan,
applied for a clearance with the Office of the Ombudsman. Due to the delay in the
action on the 12 April 1996 Resolution and inexplicable loss of the main folder,
Almazan and Falcis, in a Memorandum dated 7 July 2005,9 strongly recommended a
thorough review of the case. Casimiro forwarded the 7 July 2005 Memorandum to
Ombudsman Simeon V. Marcelo who directed the Office of Legal Affairs (OLA) to
study the records and submit a recommendation.
In a Memorandum dated 25 June 2007,10 the OLA noted that the 12 April 1996
Resolution had "no force and effect because it was never promulgated." The OLA
recommended, among others, the filing of Informations against Acot, Dulinayan and
several others. In a Memorandum dated 23 February 2009, Assistant Special
Prosecutor II Terence S. Fernando of the Office of the Ombudsman Proper
recommended the approval of the OLA's Memorandum. On 3 March 2009, acting
pursuant to delegated authority, Casimiro approved both the 25 June 2007 and 23
February 2009 Memoranda. The Informations were thereafter filed against Acot,
Dulinayan and several others with the Sandiganbayan.
Acot and Dulinayan filed their respective Motions to Quash/Dismiss and to Defer
Arraignment mainly on the grounds that: (1) the right of the State to prosecute had
already prescribed; and (2) given the amount of time the case was filed after the
preliminary investigation was started almost 15 years, their right to speedy
disposition of case had been violated.11 Dulinayan further alleged that a clearance
had been issued by the Office of the Ombudsman stating that there were no pending
cases against him. The Sandiganbayan required petitioners, the assigned prosecutors
for this case, to comment on the motions filed by Acot and Dulinayan.
To determine the veracity of the statement of Dulinayan that he had been issued a
clearance stating that there are no pending cases against him, petitioners confirmed
with the Public Assistance Bureau of the Office of the Ombudsman whether such
clearance had been issued.12 Moreover, to determine the events that transpired after
the modification of the 12 April 1996 Resolution, petitioners requested certified
machine copies of the docket entries with the Records Division.13 While the issuance
of the clearance was timely confirmed, the certified machine copies of the docket
entries were delayed; and thus, petitioners were constrained to file several Motions
for Extension of Time to File Comment/Opposition to the Motions filed by
Dulinayan and Acot.
Based on their evaluation of the records, petitioners found that there were
procedural lapses in the handling of the cases, which they attributed to Casimiro.
Thus, instead of filing the required Comment and/or Opposition with the
Sandiganbayan, petitioners submitted a Memorandum dated 5 January 2010,14which
contained their findings against Casimiro. This Memorandum, while addressed to
then Special Prosecutor Dennis M. Villa-Ignacio, was submitted to Turalba, who was
the Officer-in-Charge, Director, Prosecution Bureau V. Turalba, however, merely
attached the said Memorandum as part of the records and thereafter relieved
petitioners from the cases, alluding that they were remiss in their duty to file the
necessary Comment and/or Opposition with the Sandiganbayan.15 Turalba filed his
owa Comment and/or Opposition which prompted petitioners to seek the approval
of Villa-Ignacio of their version of the draft Comment and/or Opposition, which
they eventually filed with the Sandiganbayan.16 However, the Informations against
Acot, Dulinayan and several others were subsequently dismissed by the
Sandiganbayan for violation of the accused's right to speedy disposition of the case.
In the meantime, Turalba furnished Casimiro with the 5 January 2010 Memorandum
of petitioners. Casimiro thereafter required petitioners to explain why they should
not be held criminally and administratively liable for insubordination, gross neglect
and conduct prejudicial to the best interest of the service.17 Instead of responding to
Casimiro, petitioners submitted a Memorandum dated 20 January 2010 to Villa-
Ignacio explaining their actions.18chanroblesvirtuallawlibrary
Thereafter, on 4 February 2010, Casimiro filed a Complaint19 against petitioners with

the Internal Affairs Board (IAB) of the Office of the Ombudsman for the crime of
libel and Section 3(e) of RA No. 3019, and administratively, for grave misconduct,
conduct prejudicial to the best interest of the service, gross neglect of duty, and
insubordination. Pending investigation, petitioners were placed under preventive
suspension.
On 3 November 2010, petitioners filed their own Complaint20 before the OP, alleging
that Casimiro and Turalba committed the following administrative infractions: (1)
grave misconduct, (2) gross negligence; (3) oppressions, (4) conduct grossly
prejudicial to the best interest of the service; (5) violation of the rules on
confidentiality; (6) violation of Office Order No. 05-18, and Office Order No. 05-13;
and (7) violation of Section 35 of RA No. 6770,21 amounting to dishonesty and gross
misconduct.22chanRoblesvirtualLawlibrary
The Ruling of the Office of the President
In a Decision dated 14 June 2011,23 the OP dismissed the complaint filed against
Casimiro and Turalba. On the allegation that Casimiro caused the delay in the
investigation of the cases against Acot, Dulinayan and several others, the OP ruled
that:ChanRoblesVirtualawlibrary
This Office finds that the delay in the preliminary investigation of OMB-AFP-CRM-
94-0218 could not be validly attributed to respondent Casimiro, whose participation
in the disposition of the case is his initial review as Director, submission of the
Memorandum of 7 July 2005 and the Information in accordance with the Resolution
dated 12 April 1996, as approved by Ombudsman Desierto, and his approval of the
final resolution of the case by delegated authority and of the various Informations
for violation of Section 3(e) of Republic Act No. 3019 against the accused, now
docketed as SB-09-CRM-0184 to 0189 of the Sandiganbayan.
This Office agrees with respondent Casimiro that as a mere Director of a Bureau of
the Office of the Deputy Ombudsman for Military and other Law Enforcement
Offices and who was thereafter appointed Deputy Ombudsman only on December
16, 1999, he had every right to presume regularity in the investigation of the case.
In fact, no less than the Office of Legal Affairs of the Office of the Ombudsman,
concluded that the Resolution dated 12 April 1996 had never become final.
x x xx
No delay, therefore, may be attributed to respondent Casimiro who came across the
records of the case nine (9) years after he signed the Resolution dated 12 April 1996
recommending the filing of informations to his superior, if the Office of the
Ombudsman itself never considered that the Resolution dated 12 April 1996 as final
and executory.24chanroblesvirtuallawlibrary
On the issue of whether Casimiro and Turalba violated the rules on confidentiality,
the OP stated:ChanRoblesVirtualawlibrary
The Memorandum dated January 5, 2010 is not confidential or classified information
within the ambit of R.A. No. 6713 and R.A. No. 3019.
Therefore, Director Turalba could not be faulted for his act of furnishing a copy
thereof to respondent Casimiro who was the subject of the investigation which the
complainants sought to be conducted. On the other hand, respondent Casimiro
cannot be blamed for issuing the Memorandum dated January 18, 2010 directing
complainants to explain their action, in view of the latter's insinuation that it was by
his fault that the preliminary investigation of OMB-AFP-CRM-94-0218 had been
prolonged.25cralawred
On 2 November 2011, the OP denied the Motion for Reconsideration filed by
petitioners.26 On 28 November 2011, they filed a petition for review on certiorari
under Rule 43 of the Rules of Court with the Court of Appeals to set aside the
decision of the OP.chanRoblesvirtualLawlibrary
In a Decision dated 29 November 2012, the Court of Appeals affirmed the decision
rendered by the OP. The Court of Appeals held:ChanRoblesVirtualawlibrary
As correctly raised by respondent Casimiro, the delay, if any, was necessitated by
the layers of preliminary investigation and multiple reviews conducted by the
concerned authorities in the Office of the Ombudsman over a period of time under
different leaderships starting from Ombudsman Desierto, to Ombudsman Marcelo
and thereafter, to Ombudsman Gutierrez. It must be emphasized that for his part,
respondent Casimiro concurred with the findings of his subordinates, Almazan
and Falcis, who conducted the preliminary investigation against Acot and
company, and who issued the 12 April 1996 Resolution recommending the filing
of appropriate criminal Informations against the latter. This, in turn, was
recommended for approval by Casaclang, respondent Casimiro's immediate
superior, to Ombudsman Desierto.
xxxx
From the foregoing factual antecedents, it becomes evident that upon review of the
12 April 1996 Resolution, the charges against Acot and Dulinayan were approved for
dismissal by Ombudsman Desierto, and not for the filing of Information as
recommended and concurred with by Almazan and Falcis, and respondent
Casimiro, respectively. Thus, respondent Casimiro cannot be faulted in the delay, if
any, in filing the appropriate criminal Informations against Acot and Dulinayan
considering that Ombudsman Desierto overruled the recommendations and
concurrence by the Investigators and Casimiro as to the finding of probable cause
against the said military officials. Simply put, there was nothing to be filed before
the Sandiganbayan against Acot and Dulinayan after the approval and
modification of the 12 April 1996 Resolution as the charges against them were
approved for dismissal.27chanroblesvirtuallawlibrary
In a Resolution dated 23 May 2013,28 the Court of Appeals denied the Motion for
Reconsideration29 filed by petitioners on 21 December 2012. Thereafter, this petition
for review on certiorari under Rule 45 of the Rules of Court was timely filed on 19
June 2013.chanRoblesvirtualLawlibrary
The Issues
In this petition, petitioners seek a reversal of the decision of the OP and the Court of
Appeals, and raise the following issues for resolution:ChanRoblesVirtualawlibrary
A. WHETHER THE HONORABLE COURT OF APPEALS CORRECTLY RULED
THAT PETITIONERS' RIGHT TO DUE PROCESS WAS NOT VIOLATED BY
RESPONDENT OFFICE OF THE PRESIDENT, WHEN IT DID NOT CONSIDER
THE EVIDENCE PRESENTED BY THE PETITIONERS DURING THE
ADMINISTRATIVE ADJUDICATION;
B. WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED

WHEN IT RULED THAT THERE ARE NO SUBSTANTIAL EVIDENCE ON
RECORD AS AGAINST RESPONDENT CASIMIRO FOR THE DELAY IN THE
DISPOSITION AND PRELIMINARY INVESTIGATION OF OMB-AFP-CRM-94-0218
(SB-09-CRM-0184-0189), AND AGAINST RESPONDENTS CASIMIRO AND
TURALBA FOR VIOLATION OF OFFICE ORDER NO. 05-18, OFFICE ORDER NO.
05-13, VIOLATION OF SEC. 35 OF R.A. 6770 AND SEC. 3 (K) OF R.A. 3019;
C. WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN

SUSTAINING THE DECISION OF THE RESPONDENT OFFICE OF THE
PRESIDENT THAT THE PREVENTIVE SUSPENSION OF THE COMPLAINANT
WAS BY REASON OF THE "DELAY" IN FILING THEIR COMMENT IN SB-09-
CRM-0184-0189, TO THE MOTION TO QUASH SEPARATELY FILED BY
ACCUSED ACOT AND DULINAYAN;
D. WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN

SUSTAINING THE DECISION OF THE RESPONDENT OFFICE OF THE
PRESIDENT IN DISMISSING THE COMPLAINT AGAINST RESPONDENTS,
WHICH IS NOT IN ACCORD WITH THE EVIDENCE ON RECORD, BUT
CONTRARY TO ESTABLISHED JURISPRUDENCE AND ITS PREVIOUS RULINGS;
E. WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN

APPLYING THE PROVISIONS OF EXECUTIVE ORDER NO. 13;
F. WHETHER THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
SUSTAINING THE RULING OF THE OFFICE OF THE PRESIDENT, WHEN IT
FAILED TO RULE ON VARIOUS ISSUES RAISED BY THE PETITIONERS, SUCH
AS:
1. WHEN IT FAILED TO CONSIDER THE FINDINGS OF THE COURT OF
APPEALS IN C.A. G.R. 114210 ENTITLED JENNIFER AGUSTIN-SE ET AL. VS.
INTERNAL AFFAIRS BOARD ET AL.;
2. TO RULE ON THE ISSUE THAT RESPONDENT [OFFICE OF THE PRESIDENT]

ERRONEOUSLY CONCLUDED THAT THE PREVENTIVE SUSPENSION OF THE
COMPLAINANT WAS JUSTIFIED BY REASON OF THE DELAY IN FILING THEIR
COMMENT IN SB-09- CRM-0184-0189;
3. WHETHER OR NOT THE FINDING OF THE RESPONDENT [OFFICE OF THE

PRESIDENT] IS CORRECT THAT THERE WAS NO EVIDENCE RELATIVE TO
THE UNDUE INJURY CAUSE [SIC] TO THE PEOPLE AND TO
PETITIONERS.30chanroblesvirtuallawlibrary
The Ruling of the Court
The petition lacks merit.chanRoblesvirtualLawlibrary

Question of Law v. Question of Fact
At the outset, we note that questions of fact are raised in this petition which are not
proper under Rule 45 of the Rules of Court.
A question of law arises when there is a doubt as to what the law is on a certain state
of facts, while there is a question of fact when doubt arises as to the truth or falsity of
the alleged facts.31 For a question to be a question of law, it must not involve an
examination of the probative value of the evidence presented by the litigants. The
resolution of the issue must rest solely on what the law provides on the given set of
facts and circumstances. Once it is clear that the issue invites a review of the
evidence presented, the question is one of fact. Thus, the test of whether a question is
one of law or of fact is not the appellation given to such question by the party raising
the same; rather, it is whether the appellate court can determine the issue without
examining or evaluating the evidence, in which case, it is a question of law;
otherwise, it is a question of fact.32chanroblesvirtuallawlibrary
In this case, petitioners allege, among others, that (1) the Court of Appeals did not
consider their evidence during the administrative adjudication; (2) the Court of
Appeals gravely erred in ruling that there is no substantial evidence on record
against Casimiro for the delay in the disposition and preliminary investigation, and
against Casimiro and Turalba for violations of Office Order No. 05-18, Office Order
No. 05-13, Section 35 of RA No. 6770 and Section 3(k) of RA No. 3019; (3) the Court
of Appeals gravely erred in sustaining the finding of the OP that they were
preventively suspended by reason of their delay in filing their Comment, (4) the
Court of Appeals gravely erred in sustaining the dismissal of the Complaint by the
OP which is not in accord with the evidence on record but contrary to established
jurisprudence and its previous rulings; and (5) the Court of Appeals gravely erred in
sustaining the OP without ruling on the finding of the OP that there was no evidence
relative to the undue injury caused to the people and the petitioners.33 These issues
all involve a review of the facts on record or the examination of the probative value
of the evidence submitted.
Applying the test of whether the question is one of law or of fact, the
aforementioned are questions of fact because petitioners assail the appreciation of
evidence by the Court of Appeals.34 We have previously held that questions on the
probative value of the evidence, or those which relate to the analysis of the records
by the lower courts are questions of fact which are not proper for review by this
Court:ChanRoblesVirtualawlibrary
Whether certain items of evidence should be accorded probative value or weight, or
should be rejected as feeble or spurious; or whether or not the proofs on one side or
the other are clear and convincing and adequate to establish a proposition in issue;
whether or not the body of proofs presented by a party, weighed and analyzed in
relation to contrary evidence submitted by adverse party, may be said to be strong,
clear and convincing; whether or not certain documents presented by one side
should be accorded full faith and credit in the face of protests as to their spurious
character by the other side; whether or not inconsistencies in the body of proofs of a
party are of such gravity as to justify refusing to give said proofs weight - all these
are issues of fact. Questions like these are not reviewable by the Supreme Court
whose review of cases decided by the CA is confined only to questions of law raised
in the petition and therein distinctly set forth.35chanroblesvirtuallawlibrary
Moreover, it is well-settled that as a general rule, this Court is not a trier of
facts.36 Thus, absent the recognized exceptions to this general rule, this Court will
not review the findings of fact of the lower courts.37 In this case, petitioners failed to
show that the exceptions to justify a review of the appreciation of facts by the Court
of Appeals are present.
On the contrary, the findings of the Court of Appeals are all supported by the
evidence on record and further, are in accordance with the findings of the OP. In
fact, other than the bare and general allegation that the Court of Appeals did not
consider the evidence presented, petitioners were not able to identify the Court of
Appeals' alleged error in the appreciation of facts. A reading of the assailed decisions
shows that both the OP and the Court of Appeals considered the pleadings and
corresponding evidence submitted by both parties in arriving at their respective
decisions. Thus, we find no error in the appreciation of facts by the Court of
Appeals.chanRoblesvirtualLawlibrary
Due Process
Petitioners allege that their right to due process was violated when the OP (1) did
not consider the evidence they have presented and (2) issued its decision without the
recommendation of the Office of the Deputy Executive Secretary for Legal Affairs
(ODESLA) as provided in Executive Order (EO) No. 13.
We find these contentions untenable.
Essence of Due Process in Administrative Cases
The essence of due process is an opportunity to be heard - as applied to

administrative proceedings, it is an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of.38 In this
case, petitioners were given both opportunities - the opportunity to explain their
side by filing their pleadings which contained all their allegations and evidence in
support of their arguments, and the opportunity to seek a reconsideration of the
ruling complained of, as shown by their motions for reconsideration and appeals. As
long as parties are afforded these opportunities, the requirement of due process in
administrative proceedings is sufficiently met. As evidenced by the pleadings filed
during the administrative proceeding, and their subsequent appeal to the Court of
Appeals and now to this Court, they have been afforded the fullest opportunity to
establish their claims and to seek a reconsideration of the ruling complained of.
Moreover, a reading of the decisions of the Court of Appeals and the OP shows that
the evidence petitioners presented had been duly considered. Indeed, aside from
their general allegation that the Court of Appeals did not consider their evidence,
petitioners failed to identify any conclusion arrived at by the Court of Appeals or the
OP that was not supported by the evidence on record. Moreover, both the Court of
Appeals and the OP addressed the issues raised by the parties, and subsequently
cited the proper evidence on record and quoted the applicable laws and
jurisprudence to support their findings. The bare allegation that they were denied
due process cannot overcome the clear fact that they were given every opportunity
to establish their claims.
Recommendation of ODESLA
Petitioners further allege that the Court of Appeals gravely erred in applying the
provisions of EO No. 13,39 as the decision of the OP was approved only by the
Executive Secretary without the recommendation of the ODESLA. They argue that
their right to due process was violated as the decision was rendered by only one
person rather than through the recommendation of a collegial body - namely the
Investigative and the Adjudicatory Division of the ODESLA.
We find this argument patently baseless. As correctly pointed out by the Court of
Appeals, there is nothing in EO No. 13 which states that findings on the complaints
against a presidential appointee, such as a Deputy Ombudsman, must be issued by a
collegial body. The ODESLA is merely a fact-finding and recommendatory body to
the President; and thus, it does not have the power to settle controversies and
adjudicate cases. In Pichay, Jr. v. ODESLA-IAD,40 the Court
held:ChanRoblesVirtualawlibrary
Under E.O. 12, the PAGC was given the authority to "investigate or hear
administrative cases or complaints against all presidential appointees in the
government" and to "submit its report and recommendations to the President." The
IAD-ODESLA is a fact-finding and recommendatory body to the President, not
having the power to settle controversies and adjudicate cases. As the Court ruled
in Cario v. Commission on Human Rights, and later reiterated in Biraogo v. The
Philippine Truth Commission:ChanRoblesVirtualawlibrary
Fact-finding is not adjudication and it cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or office. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a judicial
function. To be considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law.
xxxx
While the Ombudsman's function goes into the determination of the existence of
probable cause and the adjudication of the merits of a criminal accusation, the
investigative authority of the IAD-ODESLA is limited to that of a fact-finding
investigator whose determinations and recommendations remain so until acted
upon by the President. As such, it commits no usurpation of the Ombudsman's
constitutional duties.41chanroblesvirtuallawlibrary
Moreover, as the report of the ODESLA is merely recommendatory in nature, its
absence does not negate the validity of the decision of the OP. There is nothing in EO
No. 13 which states that the lack of recommendation of the ODESLA renders the
OP's decision in an administrative case void. Thus, it cannot be said that petitioners
were deprived of their right to due process.
Inordinate Delay
Petitioners posit that the delay in the filing of the Informations against Acot,
Dulinayan and several others should be attributed to Casimiro. They further argue
that this delay amounts to grave misconduct, conduct prejudicial to the interest of
the service, and gross neglect of duty.
While it is unfortunate that the filing of the Informations has taken an inexplicable
amount of delay from the preliminary investigation, this cannot be blamed solely on
Casimiro. The records show that the initial delay was incurred because of the
procedural layers of review done to the 12 April 1996 Resolution recommending the
filing of Informations against Acot, Dulinayan and several others. Moreover,
considering that the 12 April 1996 Resolution was modified to dismiss the charges
against Acot and Dulinayan, Casimiro cannot be faulted for the delay in the filing of
the Informations against them as there was nothing to be filed. Casimiro was
appointed Deputy Ombudsman only on 16 December 1999 and thus, had every right
to presume regularity in the investigation of the cases. The delay, therefore, cannot
be attributed to Casimiro.
Petitioners also bewail the fact that there was no apparent movant in the case against
Acot, Dulinayan and several others; and thus, Casimiro, by reviewing this case,
showed unusual interest. However, the records show that the case was brought to
the attention of the MOLEO when Col. Sabado and Ltc. Gadin, co-respondents of
Acot and Dulinayan, requested for their Ombudsman Clearance. This was when the
record officers found out that the first folder of the case was missing and that the
action taken on the 12 April 1996 Resolution after its 2 March 1998 modification was
unknown. As these facts were brought to the attention of Casimiro, it would have
been highly irresponsible for him to turn a blind eye to the irregularities uncovered.
To expect Casimiro, who was then the Deputy Ombudsman for the MOLEO, to turn
a blind eye to this anomaly would have been more suspect and highly
irregular.chanRoblesvirtualLawlibrary
Confidentiality of Memorandum
Petitioners allege that the Court of Appeals gravely erred when it affirmed the
decision of the OP holding that Casimiro did not violate Section 3(k) of RA No. 3019,
Office Order No. 05-13 and Office Order No. 05-18.
In particular, petitioners aver that Casimiro and Turalba, in conspiracy with each
other, violated Section 3(k) of RA No. 3019, as well as Section 7, paragraph (c) of RA
No. 6713,42 when the latter furnished Casimiro with the 5 January 2010
Memorandum which they alleged was of a confidential nature. Petitioners further
allege that they are considered "whistleblowers" under Office Order No. 05-18, Series
of 2005 (Rules on Internal Whistleblowing and Reporting); and thus, they should be
protected against any retaliatory action of Casimiro. This allegation is again based on
the premise that their 5 January 2010 Memorandum calling for the investigation of
Casimiro is a "protected disclosure" which should not have been disclosed by
Turalba to Casimiro.
We find these contentions to be without merit.
Protected disclosure is defined as "the deliberate and voluntary disclosure by an

official or employee who has relevant information of an actual, suspected or
anticipated wrongdoing by any official or employee, or by any OMB organizational
unit."43 On the other hand, a whistleblower refers "to an official or employee who
makes protected disclosure to his immediate supervisor, other superior officers, the
Tanodbayan and/or his duly authorized/designated representative or the Internal
Affairs Board (IAB)."44 Petitioners insist that based on the foregoing definitions, the 5
January 2010 Memorandum is a protected disclosure; and thus, they are considered
whistleblowers who should be protected from retaliatory
action.45chanroblesvirtuallawlibrary
A reading of the Rules on Internal Whistleblowing and Reporting, however, will

show that the conditions for "protected disclosure" have not been met in this case.
Specifically, Section 7 provides:ChanRoblesVirtualawlibrary
Section 7. Conditions for Protected Disclosure. -
Whistleblowers shall be entitled to the benefits under these Rules, provided that all
the following requisites concur:
(a) The disclosure is made voluntarily, in writing and under oath;
(b) The disclosure pertains to a matter not yet the subject of a complaint already filed
with, or investigated by the IAB or by any other concerned office; unless, the
disclosures are necessary for the effective and successful prosecutions, or essential
for the acquisitions of material evidence not yet in its possession;
(c) The whistleblower assists and participates in proceedings commenced in

connection with the subject matter of the disclosure; and
(d) The information given by the whistleblower contains sufficient particulars and,
as much as possible, supported by other material evidence.
The 5 January 2010 Memorandum does not meet the conditions set forth in Section 7;
and thus, it does not qualify as a protected disclosure under the rules. The
Memorandum fails to meet the first requirement as the disclosure, while made
voluntarily and in writing, was not executed under oath. Contrary to the allegations
of petitioners, there is also no indication that the document was to be treated as
confidential. If indeed they had intended that the Memorandum be considered of a
confidential nature, they should have indicated it clearly, such as by putting the
word "confidential" on the face of the document. This they failed to do; and thus, the
Memorandum was treated as a regular office memorandum.
Moreover, as correctly pointed out by the Court of Appeals and OP, the allegations
made by petitioners could all be easily verified through the records and thus do not
fall under the ambit of protected information. There was nothing confidential about
the Memorandum. Neither did it contain any classified information. Thus, there
could have been no violation of Section 3(k) of RA No. 301946 or of Section 7(c) of RA
No. 6713.47 Moreover, as there was no violation of Section 7(c) of RA No. 6713, there
is also no violation of Office Order No. 05-13 which provides in
part:ChanRoblesVirtualawlibrary
Section 1. OMB officials and employees shall not disclose any confidential
information acquired by them in the course of their employment in the Office.
Pursuant to Section 7(c) of Republic Act 6713 otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees, they shall not use
or divulge confidential or classified information officially known to them by reason
of their office and not made available to the public either: (1) to further their private
interest or give undue advantage to anyone; or (2) to prejudice the public interest, x
x x.
To reiterate, the 5 January 2010 Memorandum was bereft of any confidential
character - it was not a protected disclosure nor did it contain any confidential or
classified information as provided under the law. As such, Turalba could not have
violated any rules on confidentiality when he provided Casimiro with a copy of the
said Memorandum.chanRoblesvirtualLawlibrary
Malicious Prosecution
As for the allegation that Casimiro was liable for malicious prosecution under
Section 35 of RA No. 6770, we find that this argument must also fail.
Section 35 of RA No. 6770 provides:ChanRoblesVirtualawlibrary

Section 35. Malicious Prosecution. Any person who, actuated by malice or gross
bad faith, files a completely unwarranted or false complaint against any government
official or employee shall be subject to a penalty of one (1) month and one (1) day to
six (6) months imprisonment and a fine not exceeding five thousand pesos
(P5,000.00).
In turn, malicious prosecution has been defined as
follows:ChanRoblesVirtualawlibrary
In this jurisdiction, the term malicious prosecution has been defined as an action for
damages brought by one against whom a criminal prosecution, civil suit, or other
legal proceeding has been instituted maliciously and without probable cause, after
the termination of such prosecution, suit, or other proceeding in favor of the
defendant therein. While generally associated with unfounded criminal actions, the
term has been expanded to include unfounded civil suits instituted just to vex and
humiliate the defendant despite the absence of a cause of action or probable cause.
xxxx
This Court has drawn the four elements that must be shown to concur to recover
damages for malicious prosecution. Therefore, for a malicious prosecution suit to
prosper, the plaintiff must prove the following: (1) the prosecution did occur, and
the defendant was himself the prosecutor or that he instigated its commencement;
(2) the criminal action finally ended with an acquittal; (3) in bringing the action, the
prosecutor acted without probable cause; and (4) the prosecution was impelled by
legal malice - an improper or a sinister motive. The gravamen of malicious
prosecution is not the filing of a complaint based on the wrong provision of law, but
the deliberate initiation of an action with the knowledge that the charges were false
and groundless.48chanroblesvirtuallawlibrary
Based on the foregoing, we see that the elements of malicious prosecution are
wanting in this case. Based on the Complaint filed by Casimiro before the IAB, there
had been probable cause for him to initiate the charges against petitioners. It is of
record that petitioners had indeed filed several motions for extension of time, and
that instead of filing the necessary Comment, they had submitted the 5 January 2010
Memorandum. This could have constituted conduct prejudicial to the best interest of
the service or gross neglect of duty. Moreover, when they were asked by Casimiro to
explain their actions, they did not respond, but merely submitted another
Memorandum, addressed to Villa-Ignacio, which were considered actions that
evinced resistance to authority.49 In fact, the IAB found petitioners guilty of Simple
Discourtesy in the Course of Official Duties and were reprimanded for their
conduct.50 Thus, the gravamen of malicious prosecution - the deliberate initiation of
an action with the knowledge that the charges were false and groundless - was
absent on the part of Casimiro.chanRoblesvirtualLawlibrary
Stare Decisis and Res Judicata
Petitioners further allege that the Court of Appeals gravely erred when it failed to
take judicial notice of CA-G.R. No. 114210, where the Twelfth Division of the Court
of Appeals found that petitioners were not remiss in performing their duties in
relation to the criminal cases against Acot, Dulinayan and several others.
Again, we do not find any reversible error.
Petitioners, in essence, are arguing that the Court of Appeals should have applied
the doctrine of stare decisis, which enjoins adherence to judicial precedence, such that
lower courts are bound to follow the rule established in a decision of the Supreme
Court,51 or the doctrine of res judicata, which provides that a final judgment or decree
on the merits rendered by a court of competent jurisdiction is conclusive of the rights
of the parties or their privies in all later suits and on all points and matters
determined in the previous suit.52chanroblesvirtuallawlibrary
However, we note that the decision being relied on by petitioners was rendered
merely by another division of the Court of Appeals, and not this Court. We have
previously settled that the decision of a division of the Court of Appeals is not
binding on a co-division.53 We held:ChanRoblesVirtualawlibrary
In the case at bar, this Court holds that there was no grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Special Sixth Division
of the Court of Appeals in not giving due deference to the decision of its co-
division. As correctly pointed out by the Special Sixth Division of the Court of
Appeals, the decision of its co-division is not binding on its other division.
Further, it must be stressed that judicial decisions that form part of our legal
system are only the decisions of the Supreme Court. Moreover, at the time
petitioners made the aforesaid Manifestation, the Decision dated 14 December 2007
in CA-G.R. SP No. 96717 of the Special Tenth Division was still on appeal before this
Court.
Therefore, the Special Sixth Division of the Court of Appeals cannot be faulted for
not giving due deference to the said Decision of its co-division, and its actuation
cannot be considered grave abuse of discretion amounting to lack or excess of its
jurisdiction.54(Boldfacing and underscoring supplied)
Moreover, as correctly pointed out by the Court of Appeals, the subject matter in
CA-G.R. No. 114210 is different from the issues involved in this case. While this
petition involves the administrative complaint filed by petitioners against Casimiro
in relation to the alleged failure of Casimiro to file the Informations against Acot,
Dulinayan and several others, the petition involved in CA-G.R. No. 114210 is the
administrative complaint filed by petitioners which relates to the delay incurred by
petitioners in filing the necessary pleadings before the Sandiganbayan. Thus, the
Court of Appeals did not err in not taking judicial notice of CA-G.R. No. 114210.
WHEREFORE, we DENY the petition. We AFFIRM the 29 November 2012 Decision

and the 23 May 2013 Resolution of the Court of Appeals, which affirmed the 14 June
2011 Decision of the Office of the President.
SO ORDERED.cralawlawlibrary
NAPOLEON D. SENIT, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
Before the Court is a petition for review on certiorari1 under Rule 45 of the Rules of
Court assailing the Decision2dated November 20, 2009 and the. Resolution3 dated
June 17, 2010 of the Court of Appeals (CA) in CA-G.R. CR No. 00390-MIN which
affirmed with modification the Dedision4 dated April 26, 2006 of the Regional Trial
Court (RTC) of Malaybalay City, Bukidnon, Branch 10, in Criminal Case No. 10717-
00 convicting Napoleon D. Senit (petitioner) guilty beyond reasonable doubt of
Reckless Imprudence resulting to Multiple Serious Physical Injuries and Damage to
Property.
The Antecedents
The facts as narrated are culled from the Comments5 of the Office of the Solicitor
General (OSG) and from the assailed decision of the CA:
In the morning of September 2, 2000, private complainant Mohinder Toor, Sr. was
driving north along Aglayan from the direction of Valencia on board his Toyota
pick-up with his wife Rosalinda Toor, their three-year-old son Mohinder Toor, Jr.,
and househelper Mezelle Jane Silayan. He turned left and was coming to the center
of Aglayan when a speeding Super 5 bus driven by petitioner and coming from
Malaybalay headed south towards Valencia, suddenly overtook a big truck from the
right side. Petitioner tried to avoid the accident by swerving to the right towards the
shoulder of the road and applying the brakes, but he was moving too fast and could
not avoid a collision with the pick-up. The bus crashed into the right side of private
complainants pick-up at a right angle.
All passengers of the pick-up were injured and immediately brought to Bethel
Baptist Hospital, Sumpong, Malaybalay City. However, because of lack of medical
facilities, they were transferred to the Bukidnon Doctors Hospital in Valencia City,
Bukidnon. Rosalinda Toor sustained an open fracture of the humerus of the right
arm and displaced, closed fracture of the proximal and distal femur of the right
lower extremity which required two surgical operations. She was paralyzed as a
result of the accident and was unable to return to her job as the Regional Manager of
COSPACHEM Product Laboratories. Mohinder Toor, Sr. spent about P580,000.00 for
her treatment and P3,000.00 for Mezelle Jean Silayan, who suffered frontal area
swelling as a result of the accident. Mohinder Toor, Sr. suffered a complete fracture
of the scapular bone of his right shoulder while his son Mohinder Toor, Jr. sustained
abdominal injury and a wound on the area of his right eye which required suturing.
The damage sustained by the pick-up reached P106,155.00.
Thus, on May 30, 2001, Carlo B. Mejia, City Prosecutor of Malaybalay City, charged
petitioner with Reckless Imprudence Resulting to Multiple Serious Physical Injuries
and Damage to Property in an Amended Information which was filed with Branch
10 of the [RTC] in Malaybalay City. The information reads:
"That on or about September 2, 2000 in the morning at [sic] Barangay Aglayan,
Malaybalay City, Province of Bukidnon, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully,
unlawfully, and criminally in violation of the Land Transportation and Traffic Code,
in negligent, careless, imprudent manner and without precaution to prevent accident
[to] life and property, drive a Super Five Nissan Bus, color white/red bearing plate
No. MVD-776 owned by PAUL PADAYHAG of Rosario Heights, Iligan City, as a
result hit and bumped the [sic] motor vehicle, Toyota Pick-up color blue with plate
No. NEF-266 driven and owned by MOHINDER S. TOO[R,] SR., and with his wife
Rosalinda Toor, son Mohinder Toor, Jr., 3 years old and househelp Mezelle Jane
Silayan, 17 years old, riding with him. The Toyota pick-up was damaged in the
amount of [P]105,300.00 and spouses Mohinder Toor[,] Sr. and Rosalinda Toor,
Mohinder Toor[,] Jr[.] and Mezelle Jane Silayan sustained the following injuries to
wit:
MOHINDER TOOR[,] SR.
= complete fracture of superior scapular bone right shoulder
MOHINDER TOOR[,] JR.
= MPI secondary to MVA r/o Blunt abdominal injury
= Saturing [sic] right eye area
ROSALINDA TOOR
= Fracture, open type 11, supracondylar, humerus right
= Fracture, closed, Complete, displaced, subtrochanter
= and supracondylar femur right
MEZELLE JANE SILAYAN
= Frontal area swelling 20 vehicular accident
to the damage and prejudice of the complainant victim in such amount that they are
entitled to under the law.
CONTRARY TO and in Violation of Article 365 in relation to 263 of the Revised
Penal Code. IN RELATION TO THE FAMILY CODE."6 (Citations omitted)
Upon being arraigned on June 21, 2001, the petitioner, with the assistance of his
counsel, pleaded not guilty to the Information in this case.7
Trial ensued. However, after the initial presentation of evidence for the petitioner, he
resigned from his employment and transferred residence. His whereabouts allegedly
became unknown so he was not presented as a witness by his new counsel.8
On April 26, 2006, the RTC rendered its Decision in absentia convicting the petitioner
of the crime charged. The fallo of the decision reads:
WHEREFORE, premises considered and finding the accused NAPOLEON SENIT y
Duhaylungsod guilty beyond reasonable doubt of the crime as charged, he is hereby
sentenced to an imprisonment of an indeterminate penalty of Four [4] months and
One [1] day of Arresto Mayor maximum as minimum and to Four [4] years and Two
[2] months Prision Correc[c]ional medium as maximum. The accused is further
ordered to indemnify the private complainant the amount of Fifty Thousand
[P50,000.00] Pesos as moral damages, the amount of Four Hundred Eighty Thousand
[P480,000.00] [Pesos] for the expenses incurred in the treatment and hospitalization
of Rosalinda Toor, Mohinder Toor, Jr[.] and Mezelle Jean Silayan and the amount of
Eighty Thousand [P80,000.00] [Pesos] for the expenses incurred in the repair of the
damaged Toyota pick-up vehicle.
SO ORDERED.9
The RTC issued a Promulgation10 dated August 4, 2006, which included an order for
the arrest of the petitioner.
The petitioner then filed a motion for new trial via registered mail on the ground that
errors of law or irregularities have been committed during trial that are allegedly
prejudicial to his substantial rights. He claimed that he was not able to present
evidence during trial because he was not notified of the schedule. Likewise, he
mistakenly believed that the case against him has been dismissed as private
complainant Mohinder Toor, Sr. (Toor, Sr.) purportedly left the country.11
On September 22, 2006, the public prosecutor opposed the motion for new trial filed
by the petitioner.12
On October 26, 2006, the motion for new trial was denied by the lower court
pronouncing that notices have been duly served the parties and that the reason
given by the petitioner was self-serving.13
Dissatisfied with the RTC decision, the petitioner filed his Notice of Appeal dated
November 6, 2006 by registered mail to the CA, on both questions of facts and
laws.14
Ruling of the CA
On November 20, 2009, the CA affirmed the decision of the RTC with modification
as to the penalty imposed, the dispositive portion thereof reads:
ACCORDINGLY, with MODIFICATION that [the petitioner] should suffer the
penalty of three (3) months and one (1) day of arresto mayor, the Court AFFIRMS in
all other respects the appealed 26 April 2006 Decision of the [RTC] of Malaybalay
City, Branch 10, in Criminal Case No. 10717-00.
SO ORDERED.15
In affirming with modification the decision of the RTC, the CA ratiocinated as
follows: first, the evidence presented by OSG overwhelmingly points to the
petitioner as the culprit. A scrutiny of the records further reveals that the pictures
taken after the accident and the Traffic Investigation Report all coincide with the
testimonies of the prosecution witnesses, which are in whole consistent and
believable thus, debunking the claim of the petitioner that he was convicted on the
mere basis of allegedly biased and hearsay testimonies which do not establish his
guilt beyond reasonable doubt. In addition, there was no existing evidence to show
that there was an improper motive on the part of the eyewitnesses.16
Second, it found the arguments of the petitioner to move for a new trial as baseless.17
Lastly, it rendered that the proper imposable penalty is the maximum period
of arresto mayor in its minimum and medium periods that is imprisonment for three
(3) months and one (1) day of arresto mayor since the petitioner has, by reckless
imprudence, committed an act which, had it been intentional, would have
constituted a less grave felony, based on the first paragraph of Article 365 in relation
to Article 48 of the Revised Penal Code (RPC).18
The petitioner filed a motion for reconsideration which was denied by the CA, in its
Resolution19 dated June 17, 2010.
As a final recourse, the petitioner filed the petition for review before this Court,
praying that the applicable law on the matter be reviewed, and the gross
misappreciation of facts committed by the court a quo and by the CA be given a
second look.
The Issues
I. WHETHER OR NOT THE RTC AND THE CA ERRED IN DENYING THE
MOTION FOR NEW TRIAL OR TO RE-OPEN THE SAME IN ORDER TO ALLOW
THE PETITIONER TO PRESENT EVIDENCE ON HIS BEHALF; AND
II. WHETHER OR NOT THE RTC ERRED IN CONVICTING THE PETITIONER
DESPITE THE APPARENT FAILURE ON THE PART OF THE PROSECUTION TO
PROVE THE GUILT OF THE PETITIONER BEYOND REASONABLE DOUBT.20
Ruling of the Court
The petition lacks merit.
The RTC and CA did not err in denying the petitioners motion for new trial or to
re-open the same.
The Court finds that no errors of law or irregularities, prejudicial to the substantial
rights of the petitioner, have been committed during trial.
The petitioner anchors his motion for new trial on Rule 121, Section 2(a) of the
Revised Rules of Criminal Procedure, to wit:
Sec. 2. Grounds for a new trial. The Court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of
the accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the trial
and which if introduced and admitted would probably change the judgment.
(Emphasis ours)
To sum up the claims of the petitioner, he theorizes that there was an error of law or
irregularities committed when the RTC promulgated a decision in absentia and
deemed that he had waived his right to present evidence resulting to denial of due
process, a one-sided decision by the RTC, and a strict and rigid application of the
Revised Rules of Criminal Procedure against him.
First, it must be noted that the petitioner had already been arraigned and therefore,
the court a quo had already acquired jurisdiction over him. In fact, there was already
an initial presentation of evidence for the defense when his whereabouts became
unknown.
The petitioners claims that he had not testified because he did not know the
schedule of the hearings, and mistakenly believed that the case had already been
terminated with the departure of Toor, Sr., do not merit our consideration.21
The holding of trial in absentia is authorized under Section 14(2), Article III of the
1987 Constitution which provides that after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.22 It is established that notices have been
served to the counsel of the petitioner and his failure to inform his counsel of his
whereabouts is the reason for his failure to appear on the scheduled date. Thus, the
arguments of the petitioner against the validity of the proceedings and promulgation
of judgment in absentia for being in violation of the constitutional right to due
process are doomed to fail.23
In Estrada v. People,24 the Court ruled that:
Due process is satisfied when the parties are afforded a fair and reasonable
opportunity to explain their respective sides of the controversy.
In the present case, petitioner was afforded such opportunity. The trial court set a
hearing on May 14, 1997 for reception of defense evidence, notice of which was duly
sent to the addresses on record of petitioner and her counsel, respectively. When
they failed to appear at the May 14, 1997 hearing, they later alleged that they were
not notified of said setting. Petitioners counsel never notified the court of any
change in her address, while petitioner gave a wrong address from the very
beginning, eventually jumped bail and evaded court processes. Clearly, therefore,
petitioner and her counsel were given all the opportunities to be heard. They cannot
now complain of alleged violation of petitioners right to due process when it was by
their own fault that they lost the opportunity to present evidence.25 (Citation
omitted)
Similarly in the present case, the petitioner clearly had previous notice of the
criminal case filed against him and was given the opportunity to present evidence in
his defense. The petitioner was not in any way deprived of his substantive and
constitutional right to due process as he was duly accorded all the opportunities to
be heard and to present evidence to substantiate his defense, but he forfeited this
right, through his own negligence, by not appearing in court at the scheduled
hearings.26
The negligence of the petitioner in believing that the case was already terminated
resulting to his failure to attend the hearings, is inexcusable. The Court has ruled in
many cases that:
It is petitioners duty, as a client, to be in touch with his counsel so as to be
constantly posted about the case. It is mandated to inquire from its counsel about the
status and progress of the case from time to time and cannot expect that all it has to
do is sit back, relax and await the outcome of the case. It is also its responsibility,
together with its counsel, to devise a system for the receipt of mail intended for
them.27 (Citations omitted)
The Court finds that the negligence exhibited by the petitioner, towards the criminal
case against him in which his liberty is at risk, is not borne of ignorance of the law as
claimed by his counsel rather, lack of concern towards the incident, and the people
who suffered from it. While there was no showing in the case at bar that the counsel
of the petitioner was grossly negligent in failing to inform him of the notices served,
the Court cannot find anyone to blame but the petitioner himself in not exercising
diligence in informing his counsel of his whereabouts.
The Court also agrees with the Comment of the OSG that there is neither rule nor
law which specifically requires the trial court to ascertain whether notices received
by counsel are sufficiently communicated with his client.28
In GCP-Manny Transport Services, Inc. v. Judge Principe,29 the Court held that:
[W]hen petitioner is at fault or not entirely blameless, there is no reason to overturn
well-settled jurisprudence or to interpret the rules liberally in its favor. Where
petitioner failed to act with prudence and diligence, its plea that it was not accorded
the right to due process cannot elicit this Courts approval or even sympathy. It is
petitioners duty, as a client, to be in touch with his counsel so as to be constantly
posted about the case. x x x.30 (Citations omitted)
Even if the Court assumed that the petitioner anchors his claim on Section 2(b) of
Rule 121 of the Revised Rules of Criminal Procedure, the argument still has no merit.
"A motion for new trial based on newly-discovered evidence may be granted only if
the following requisites are met: (a) that the evidence was discovered after trial; (b)
that said evidence could not have been discovered and produced at the trial even
with the exercise of reasonable diligence; (c) that it is material, not merely
cumulative, corroborative or impeaching; and (d) that the evidence is of such weight
that, if admitted, it would probably change the judgment. It is essential that the
offering party exercised reasonable diligence in seeking to locate the evidence before
or during trial but nonetheless failed to secure it."31 The Court agrees with the CA in
its decision which held that "a new trial may not be had on the basis of evidence
which was available during trial but was not presented due to its negligence.
Likewise, the purported errors and irregularities committed in the course of the trial
against [the petitioners] substantive rights do not exist."32
In Lustaa v. Jimena-Lazo,33 the Court ruled that:
Rules of procedure are tools designed to promote efficiency and orderliness as well
as to facilitate attainment of justice, such that strict adherence thereto is required. Their
application may be relaxed only when rigidity would result in a defeat of equity and
substantial justice, which is not present here. Utter disregard of the Rules cannot just
be rationalized by harking on the policy of liberal construction.34 (Citations omitted
and italics in the original)
In the instant case, the Court finds no reason to waive the procedural rules in order
to grant the motion for new trial of the petitioner. There is just no legal basis for the
grant of the motion for new trial. The Court believes that the petitioner was given
the opportunity to be heard but he chose to put this opportunity into waste by not
being diligent enough to ask about the status of the criminal case against him and
inform his counsel of his whereabouts.
The RTC did not err in convicting the petitioner.
The law applicable to the case at bar is Article 365 of the RPC, which provides that:
Art. 365. Imprudence and negligence. x x x.
xxxx
Reckless imprudence consists in voluntary, but without malice, doing or failing to
do an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such act,
taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place.
xxxx
The elements of reckless imprudence are: (1) that the offender does or fails to do an
act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the reckless imprudence; and (5) that
there is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical
condition, and other circumstances regarding persons, time, and place.35
All elements for the crime of reckless imprudence have been established in the
present case.
The petitioner questions the credibility of the prosecution witnesses and claims that
their testimonies are biased. He also claims that Toor, Sr. is the real culprit when he
turned left without looking for an incoming vehicle, thus violating traffic rules
resulting to the mishap.
The Court believes that the RTC and CA correctly appreciated the evidence and
testimonies presented in the instant case.
The Court agrees with the OSG that not only were the witnesses narrations of the
accident credible and worthy of belief, their accounts were also consistent and tallied
on all significant and substantial points.36 These witnesses testimonies are as
follows:
PO3 Jesus Delfin testified that he investigated the accident at Aglayan. He made the
following findings in his accident report: the pick-up owned and driven by Toor, Sr.,
together with his family and a househelper as his passengers, was turning left along
Aglayan when it was hit at a right angle position by a Super 5 bus driven by the
petitioner. He noted skid marks made by the bus and explained that the petitioner
was overtaking but was not able to do so because of the pick-up. The petitioner
could not swerve to the left to avoid the pick-up because there was a ten-wheeler
truck. He swerved to the right instead and applied breaks to avoid the accident. The
investigator clearly testified that, on the basis of data gathered, the collision was due
to the error of the bus driver who was driving too fast, as evinced by the distance
from the skid marks towards the axle.37
Albert Alon testified that he saw Toor, Sr.s pick-up turn left along Aglayan. He also
saw a big truck and a Super 5 bus both coming from Malaybalay. The truck was
running slowly while the Super 5 bus was running fast and overtaking the big truck
from the right side. The bus crashed into the pick-up and pushed the smaller vehicle
due to the force of the impact. He went nearer the area of collision and saw that the
four passengers of the pick-up were unconscious.38
Mezelle Jane Silayan testified that while moving towards the center of Aglayan on
board her employers pick-up, she saw a Super 5 bus overtaking a big truck from the
right side. Their vehicle was hit by the bus. She was thrown out of the pick-up and
hit her head on the ground.39
Toor, Sr. testified that while he was driving his pick-up at the corner of the center of
Aglayan, a Super 5 bus, moving fast, overtook a big truck from the right side. The
bus then hit the pick up, injuring him and all his passengers.40
Taken all together, the testimonies of the witnesses conclusively suggest that: (1) the
Super 5 bus was moving fast; (2) the bus overtook a big truck which was moving
slowly from the right side; and (3) when the petitioner saw the pick-up truck turning
left, he applied the brakes but because he was moving fast, the collision became
inevitable.
"Well-entrenched is the rule that the trial courts assessment of the credibility of
witnesses is entitled to great weight and is even conclusive and binding, if not
tainted with arbitrariness or oversight of some fact or circumstance of significance
and influence. This rule is based on the fact that the trial court had the opportunity
to observe the demeanor and the conduct of the witnesses."41 The Court finds in the
instant case that there is no reason for this Court to deviate from the rule.
The Court finds the testimonies of the witnesses not biased. There was no evidence
of ill motive of the witnesses against the petitioner.
Lastly, the petitioner claims that Toor, Sr. committed a traffic violation and thus, he
should be the one blamed for the incident. The Court finds this without
merit.1wphi1
The prosecution sufficiently proved that the Super 5 bus driven by the petitioner
recklessly drove on the right shoulder of the road and overtook another south-
bound ten-wheeler truck that slowed at the intersection, obviously to give way to
another vehicle about to enter the intersection. It was impossible for him not to
notice that the ten-wheeler truck in front and traveling in the same direction had
already slowed down to allow passage of the pick-up, which was then negotiating a
left turn to Aglayan public market. Seeing the ten-wheeler truck slow down, it was
incumbent upon the petitioner to reduce his speed or apply on the brakes of the bus
in order to allow the pick-up to safely make a left turn. Instead, he drove at a speed
too fast for safety, then chose to swerve to the right shoulder of the road and
overtake the truck, entering the intersection and directly smashing into the pick-up.
In flagrantly failing to observe the necessary precautions to avoid inflicting injury or
damage to other persons and things, the petitioner was recklessly imprudent in
operating the Super 5 bus.42
In Dumayag v. People,43 the Court held:
Section 37 of R.A. No. 4136, as amended, mandates all motorists to drive and operate
vehicles on the right side of the road or highway. When overtaking another, it
should be made only if the highway is clearly visible and is free from oncoming
vehicle. Overtaking while approaching a curve in the highway, where the driver's
view is obstructed, is not allowed. Corollarily, drivers of automobiles, when
overtaking another vehicle, are charged with a high degree of care and diligence
to avoid collision. The obligation rests upon him to see to it that vehicles coming
from the opposite direction are not taken unaware by his presence on the side of
the road upon which they have the right to pass.44 (Citations omitted and emphasis
ours)
Thus, the petitioner cannot blame Toor, Sr. for not noticing a fast-approaching bus,
as the cited law provides that the one overtaking on the road has the obligation to let
other cars in the opposite direction know his presence and not the other way around
as the petitioner suggests.
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated November
20, 2009 and the Resolution dated June 17, 2010 of the Court of Appeals in CA-G.R.
CR No. 00390-MIN are AFFIRMED.
SO ORDERED.
DRUGSTORES ASSOCIATION OF THE PHILIPPINES, INC. AND NORTHERN
LUZON DRUG CORPORATION, Petitioners, v. NATIONAL COUNCIL ON
DISABILITY AFFAIRS; DEPARTMENT OF HEALTH; DEPARTMENT OF
FINANCE; BUREAU OF INTERNAL REVENUE; DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT; AND DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT, Respondent.
DECISION
PERALTA, J.:
Before us is a Petition for Review on Certiorari1 with a Prayer for a Temporary
Restraining Order and/or Writ of Preliminary Injunction which seeks to annul and
set aside the Decision2 dated July 26, 2010, and the Resolution3 dated November 19,
2010 of the Court of Appeals (CA) in CA-G.R. SP No. 109903. The CA dismissed
petitioners' Petition for Prohibition4 and upheld the constitutionality of the
mandatory twenty percent (20%) discount on the purchase of medicine by persons
with disability (PWD).
The antecedents are as follows:
chanRoblesvirtualLawlibraryOn March 24, 1992, Republic Act (R.A.) No. 7277,

entitled "An Act Providing for the Rehabilitation, Self-Development and Self-
Reliance of Disabled Persons and their Integration into the Mainstream of Society
and for Other Purposes," otherwise known as the "Magna Carta for Disabled
Persons," was passed into law.5 The law defines "disabled persons", "impairment" and
"disability" as follows:ChanRoblesVirtualawlibrary
SECTION 4. Definition of Terms. - For purposes of this Act, these terms are defined as
follows:
chanRoblesvirtualLawlibrary(a) Disabled Persons are those suffering from restriction

of different abilities, as a result of a mental, physical or sensory impairment, to
perform an activity in the manner or within the range considered normal for a
human being;
(b) Impairment is any loss, diminution or aberration of psychological, physiological,

or anatomical structure of function;
(c) Disability shall mean (1) a physical or mental impairment that substantially limits
one or more psychological, physiological or anatomical function of an individual or
activities of such individual; (2) a record of such an impairment; or (3) being
regarded as having such an impairment.6chanroblesvirtuallawlibrary
On April 30, 2007, Republic Act No. 94427 was enacted amending R.A. No. 7277. The
Title of R.A. No. 7277 was amended to read as "Magna Carta for Persons with
Disability" and all references on the law to "disabled persons" were amended to read as
"persons with disability" (PWD).8 Specifically, R.A. No. 9442 granted the PWDs a
twenty (20) percent discount on the purchase of medicine, and a tax deduction
scheme was adopted wherein covered establishments may deduct the discount
granted from gross income based on the net cost of goods sold or services
rendered:ChanRoblesVirtualawlibrary
CHAPTER 8. Other Privileges and Incentives. SEC. 32. Persons with disability shall
be entitled to the following:
chanRoblesvirtualLawlibraryx x x x
(d) At least twenty percent (20%) discount for the purchase of medicines in all
drugstores for the exclusive use or enjoyment of persons with disability;
xxxx
The abovementioned privileges are available only to persons with disability who are
Filipino citizens upon submission of any of the following as proof of his/her
entitlement thereto:
(i) An identification card issued by the city or municipal mayor or the barangay
captain of the place where the person with disability resides;
(ii) The passport of the person with disability concerned; or
(ii) Transportation discount fare Identification Card (ID) issued by the National
Council for the Welfare of Disabled Persons (NCWDP).
xxxx
The establishments may claim the discounts granted in subsections (a), (b), (c), (f)
and (g) as tax deductions based on the net cost of the goods sold or services
rendered: Provided, however, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted: Provided, further, That the total amount of the claimed tax deduction net of
value-added tax if applicable, shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation and to the provisions of the
National Internal Revenue Code (NIRC), as amended.9chanroblesvirtuallawlibrary
The Implementing Rules and Regulations (IRR) of R.A. No. 944210 was jointly
promulgated by the Department of Social Welfare and Development (DSWD),
Department of Education, Department of Finance (DOF), Department of Tourism,
Department of Transportation and Communication, Department of the Interior and
Local Government (DILG) and Department of Agriculture. Insofar as pertinent to
this petition, the salient portions of the IRR are hereunder quoted:11
RULE III. DEFINITION OF TERMS
Section 5. Definition of Terms. For purposes of these Rules and Regulations, these
terms are defined as follows:
chanRoblesvirtualLawlibrary5.1. Persons with Disability - are those individuals

defined under Section 4 of RA 7277 "An Act Providing for the Rehabilitation, Self-
Development and Self-Reliance of Persons with Disability as amended and their
integration into the Mainstream of Society and for Other Purposes". This is defined
as a person suffering from restriction or different abilities, as a result of a mental,
physical or sensory impairment, to perform an activity in a manner or within the
range considered normal for human being. Disability shall mean (1) a physical or
mental impairment that substantially limits one or more psychological, physiological
or anatomical function of an individual or activities of such individual; (2) a record
of such an impairment; or (3) being regarded as having such an impairment.
xxxx
RULE IV. PRIVILEGES AND INCENTIVES FOR THE PERSONS WITH DISABILITY
Section 6. Other Privileges and Incentives. Persons with disability shall be entitled to
the following:
chanRoblesvirtualLawlibraryx x x x
6.1.d. Purchase of Medicine - at least twenty percent (20%) discount on the purchase of
medicine for the exclusive use and enjoyment of persons with disability. All
drugstores, hospital, pharmacies, clinics and other similar establishments selling
medicines are required to provide at least twenty percent (20%) discount subject to
the guidelines issued by DOH and PHILHEALTH.12chanrobleslaw
xxxx
6.11 The abovementioned privileges are available only to persons with disability
who are Filipino citizens upon submission of any of the following as proof of
his/her entitlement thereto subject to the guidelines issued by the NCWDP in
coordination with DSWD, DOH and DILG.
6.11.1 An identification card issued by the city or municipal mayor or the barangay
captain of the place where the person with disability resides;
6.11.2 The passport of the persons with disability concerned; or
6.11.3 Transportation discount fare Identification Card (ID) issued by the National
Council for the Welfare of Disabled Persons (NCWDP). However, upon effectivity of
this Implementing Rules and Regulations, NCWDP will already adopt the
Identification Card issued by the Local Government Unit for purposes of uniformity
in the implementation. NCWDP will provide the design and specification of the
identification card that will be issued by the Local Government
Units.13chanroblesvirtuallawlibrary
6.14. Availmenl of Tax Deductions by Establishment Granting Twenty Percent. 20%
Discount - The establishments may claim the discounts granted in sub-sections (6.1),
(6.2), (6.4), (6.5) and (6.6) as tax deductions based on the net cost of the goods sold or
services rendered: Provided, however, that the cost of the discount shall be allowed
as deduction from gross income for the same taxable year that the discount is
granted: Provided, further, That the total amount of the claimed tax deduction net of
value-added tax if applicable, shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation and to the provisions of the
National Internal Revenue Code, as amended.
On April 23, 2008, the National Council on Disability Affairs (NCDA)14 issued
Administrative Order (A.O.) No. 1, Series of 2008,15 prescribing guidelines which
should serve as a mechanism for the issuance of a PWD Identification Card (IDC)
which shall be the basis for providing privileges and discounts to bona fide PWDs in
accordance with R.A. 9442:ChanRoblesVirtualawlibrary
IV. INSTITUTIONAL ARRANGEMENTS
A. The Local Government Unit of the City or Municipal Office shall
implement these guidelines in the issuance of the PWD-IDC
xxxx
D. Issuance of the appropriate document to confirm the medical condition of the

applicant is as follows:ChanRoblesVirtualawlibrary
Disability Document Issuing Entity
Apparent Medical
Licensed Private or Government Physician
Disability Certificate
School Licensed Teacher duly signed by the School

Assessment Principal
Certificate of Head of the Business Establishment or

Disability Head of Non-Government Organization
Non-Apparent Medical
Licensed Private or Government Physician
Disability Certificate
E. PWD Registration Forms and ID Cards shall be issued and signed by the City or
Municipal Mayor, or Barangay Captain.
xxxx
V. IMPLEMENTING GUIDELINES AND PROCEDURES
Any bonafide person with permanent disability can apply for the issuance of the
PWD-IDC. His/her caregiver can assist in the application process. Procedures for the
issuance of the ID Cards are as follows:
chanRoblesvirtualLawlibraryA. Completion of the Requirements. Complete and/or

make available the following requirements:ChanRoblesVirtualawlibrary
1. Two "1x1" recent ID pictures with the names, and signatures or
thumbmarks at the back of the picture
2. One (1) Valid ID
3. Document to confirm the medical or disability condition (See
Section IV, D for the required document).
On December 9, 2008, the DOF issued Revenue Regulations No. 1-200916 prescribing
rules and regulations to implement R.A. 9442 relative to the tax privileges of PWDs
and tax incentives for establishments granting the discount. Section 4 of Revenue
Regulations No. 001-09 states that drugstores can only deduct the 20% discount from
their gross income subject to some conditions.17chanrobleslaw
On May 20, 2009, the DOH issued A.O. No. 2009-001118 specifically stating that the
grant of 20% discount shall be provided in the purchase of branded medicines and
unbranded generic medicines from all establishments dispensing medicines for the
exclusive use of the PWDs.19 It also detailed the guidelines for the provision of
medical and related discounts and special privileges to PWDs pursuant to R.A.
9442.20chanrobleslaw
On July 28, 2009, petitioners filed a Petition for Prohibition with application for a
Temporary Restraining Order and/or a Writ of Preliminary Injunction21 before the
Court of Appeals to annul and enjoin the implementation of the following
laws:ChanRoblesVirtualawlibrary
1) Section 32 of R.A. No. 7277 as amended by R.A. No. 9442;
2) Section 6, Rule IV of the Implementing Rules and Regulations of R.A. No. 9442;
3) NCDA A.O. No. 1;
4) DOF Revenue Regulation No. 1-2009;
5) DOH A.O. No. 2009-0011.

On July 26, 2010, the CA rendered a Decision upholding the constitutionality of R.A.
7277 as amended, as well as the assailed administrative issuances. However, the CA
suspended the effectivity of NCDA A.O. No. 1 pending proof of respondent NCDA's
compliance with filing of said administrative order with the Office of the National
Administrative Register (ONAR) and its publication in a newspaper of general
circulation. The dispositive portion of the Decision
states:ChanRoblesVirtualawlibrary
WHEREFORE, the petition is PARTLY GRANTED. The effectivity of NCDA
Administrative Order No. 1 is hereby SUSPENDED pending Respondent's
compliance with the proof of filing of NCDA Administrative Order No. 1 with the
Office of the National Administrative Register and its publication in a newspaper of
general circulation.
Respondent NCDA filed a motion for reconsideration before the CA to lift the
suspension of the implementation of NCDA A.O. No. 1 attaching thereto proof of its
publication in the Philippine Star and Daily Tribune on August 12, 2010, as well as a
certification from the ONAR showing that the same was filed with the said office on
October 22, 2009.22 Likewise, petitioners filed a motion for reconsideration of the CA
Decision.
In a Resolution dated November 19, 2010, the CA dismissed petitioners' motion for
reconsideration and lifted the suspension of the effectivity of NCDA A.O. No. 1
considering the filing of the same with ONAR and its publication in a newspaper of
general circulation.
Hence, the instant petition raising the following issues:ChanRoblesVirtualawlibrary

I. THE CA SERIOUSLY ERRED ON A QUESTION OF SUBSTANCE WHEN IT
RULED THAT THE MANDATED PWD DISCOUNT IS A VALID EXERCISE OF
POLICE POWER. ON THE CONTRARY, IT IS AN INVALID EXERCISE OF THE
POWER OF EMINENT DOMAIN BECAUSE IT FAILS TO PROVIDE JUST
COMPENSATION TO PETITIONERS AND OTHER SIMILARLY SITUATED
DRUGSTORES;
II. THE CA SERIOUSLY ERRED WHEN IT RULED THAT SECTION 32 OF RA 7277

AS AMENDED BY RA 9442, NCDA AO 1 AND THE OTHER IMPLEMENTING
REGULATIONS DID NOT VIOLATE THE DUE PROCESS CLAUSE;
III. THE CA SERIOUSLY ERRED WHEN IT RULED THAT THE DEFINITIONS OF

DISABILITIES UNDER SECTION 4(A), SECTION 4(B) AND SECTION 4(C) OF RA
7277 AS AMENDED BY RA 9442, RULE 1 OF THE IMPLEMENTING RULES AND
REGULATIONS23 OF RA 7277, SECTION 5.1 OF THE IMPLEMENTING RULES
AND REGULATIONS OF RA 9442, NCDA AO 1 AND DOH AO 2009-11 ARE NOT
VAGUE, AMBIGUOUS AND UNCONSTITUTIONAL;
IV. THE CA SERIOUSLY ERRED WHEN IT RULED THAT THE MANDATED PWD
DISCOUNT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE.
We deny the petition.
The CA is correct when it applied by analogy the case of Carlos Superdrug Corporation
et al. v. DSWD, et al.24 wherein We pronouced that Section 4 of R.A. No. 9257 which
grants 20% discount on the purchase of medicine of senior citizens is a legitimate
exercise of police power:ChanRoblesVirtualawlibrary
The law is a legitimate exercise of police power which, similar to the power of
eminent domain, has general welfare for its object. Police power is not capable of an
exact definition, but has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient
and flexible response to conditions and circumstances, thus assuring the greatest
benefits.25cralawredAccordingly, it has been described as the most essential, insistent
and the least limitable of powers, extending as it does to all the great public
needs.26 It is [t]he power vested in the legislature by the constitution to make, ordain,
and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the commonwealth, and of the
subjects of the same.27chanrobleslaw
For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights,
though sheltered by due process, must yield to general welfare.28chanrobleslaw
Police power as an attribute to promote the common good would be diluted

considerably if on the mere plea of petitioners that they will suffer loss of earnings
and capital, the questioned provision is invalidated. Moreover, in the absence of
evidence demonstrating the alleged confiscatory effect of the provision in question,
there is no basis for its nullification in view of the presumption of validity which
every law has in its favor.29chanroblesvirtuallawlibrary
Police power is the power of the state to promote public welfare by restraining and
regulating the use of liberty and property. On the other hand, the power of eminent
domain is the inherent right of the state (and of those entities to which the power has
been lawfully delegated) to condemn private property to public use upon payment
of just compensation. In the exercise of police power, property rights of private
individuals are subjected to restraints and burdens in order to secure the general
comfort, health, and prosperity of the state.30 A legislative act based on the police
power requires the concurrence of a lawful subject and a lawful method. In more
familiar words, (a) the interests of the public generally, as distinguished from those
of a particular class, should justify the interference of the state; and (b) the means
employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.31chanrobleslaw
R.A. No. 7277 was enacted primarily to provide full support to the improvement of
the total well-being of PWDs and their integration into the mainstream of society.
The priority given to PWDs finds its basis in the
Constitution:ChanRoblesVirtualawlibrary
ARTICLE XII
NATIONAL ECONOMY AND PATRIMONY
xxxx
Section 6. The use of property bears a social function, and all economic agents shall
contribute to the common good. Individuals and private groups, including
corporations, cooperatives, and similar collective organizations, shall have the right
to own, establish, and operate economic enterprises, subject to the duty of the State
to promote distributive justice and to intervene when the common good so
demands.32chanrobleslaw
ARTICLE XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
xxxx
Section 11. The State shall adopt an integrated and comprehensive approach
to health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to
paupers.33chanroblesvirtuallawlibrary
Thus, R.A. No. 7277 provides:ChanRoblesVirtualawlibrary
SECTION 2. Declaration of Policy. The grant of the rights and privileges for disabled
persons shall be guided by the following principles:
chanRoblesvirtualLawlibrary(a). Disabled persons are part of the Philippine society,

thus the Senate shall give full support to the improvement of the total well-being of
disabled persons and their integration into the mainstream of society.
Toward this end, the State shall adopt policies ensuring the rehabilitation, self-
development and self-reliance of disabled persons.
It shall develop their skills and potentials to enable them to compete favorably for
available opportunities.
(b). Disabled persons have the same rights as other people to take their proper place
in society. They should be able to live freely and as independently as possible. This
must be the concern of everyone - the family, community and all government and
non-government organizations.
Disabled person's rights must never be perceived as welfare services by the

Government.
xxxx
(d). The State also recognizes the role of the private sector in promoting the welfare
of disabled persons and shall encourage partnership in programs that address their
needs and concerns.34chanroblesvirtuallawlibrary
To implement the above policies, R.A. No. 9442 which amended R.A. No. 7277
grants incentives and benefits including a twenty percent (20%) discount to PWDs in
the purchase of medicines; fares for domestic air, sea and land travels including
public railways and skyways; recreation and amusement centers including theaters,
food chains and restaurants.35 This is specifically stated in Section 4 of the IRR of
R.A. No. 9442:ChanRoblesVirtualawlibrary
Section 4. Policies and Objectives - It is the objective of Republic Act No. 9442 to
provide persons with disability, the opportunity to participate fully into the
mainstream of society by granting them at least twenty percent (20%) discount in
all basic services. It is a declared policy of RA 7277 that persons with disability are
part of Philippine society, and thus the State shall give full support to the
improvement of their total wellbeing and their integration into the mainstream of
society. They have the same rights as other people to take their proper place in
society. They should be able to live freely and as independently as possible. This
must be the concern of everyone the family, community and all government and
non-government organizations. Rights of persons with disability must never be
perceived as welfare services. Prohibitions on verbal, non-verbal ridicule and
vilification against persons with disability shall always be observed at all
times.36chanroblesvirtuallawlibrary
Hence, the PWD mandatory discount on the purchase of medicine is supported by a
valid objective or purpose as aforementioned. It has a valid subject considering that
the concept of public use is no longer confined to the traditional notion of use by the
public, but held synonymous with public interest, public benefit, public welfare,
and public convenience. As in the case of senior citizens,37 the discount privilege to
which the PWDs are entitled is actually a benefit enjoyed by the general public to
which these citizens belong. The means employed in invoking the active
participation of the private sector, in order to achieve the purpose or objective of the
law, is reasonably and directly related.38 Also, the means employed to provide a fair,
just and quality health care to PWDs are reasonably related to its accomplishment,
and are not oppressive, considering that as a form of reimbursement, the discount
extended to PWDs in the purchase of medicine can be claimed by the establishments
as allowable tax deductions pursuant to Section 32 of R.A. No. 9442 as implemented
in Section 4 of DOF Revenue Regulations No. 1-2009. Otherwise stated, the discount
reduces taxable income upon which the tax liability of the establishments is
computed.
Further, petitioners aver that Section 32 of R.A. No. 7277 as amended by R.A. No.
9442 is unconstitutional and void for violating the due process clause of the
Constitution since entitlement to the 20% discount is allegedly merely based on any
of the three documents mentioned in the provision, namely: (i) an identification card
issued by the city or municipal mayor or the barangay captain of the place where the
PWD resides; (ii) the passport of the PWD; or (iii) transportation discount fare
identification card issued by NCDA. Petitioners, thus, maintain that none of the said
documents has any relation to a medical finding of disability, and the grant of the
discount is allegedly without any process for the determination of a PWD in
accordance with law.
Section 32 of R.A. No. 7277, as amended by R.A. No. 9442, must be read with its IRR
which stated that upon its effectivity, NCWDP (which is the government agency
tasked to ensure the implementation of RA 7277), would adopt the IDC issued by the
local government units for purposes of uniformity in the implementation.39 Thus,
NCDA A.O. No. 1 provides the reasonable guidelines in the issuance of IDCs to
PWDs as proof of their entitlement to the privileges and incentives under the
law40 and fills the details in the implementation of the law.
As stated in NCDA A.O. No. 1, before an IDC is issued by the city or municipal
mayor or the barangay captain,41 or the Chairman of the NCDA,42 the applicant must
first secure a medical certificate issued by a licensed private or government
physician that will confirm his medical or disability condition. If an applicant is an
employee with apparent disability, a "certificate of disability" issued by the head of
the business establishment or the head of the non-governmental organization is
needed for him to be issued a PWD-IDC. For a student with apparent disability, the
"school assessment" issued by the teacher and signed by the school principal should
be presented to avail of a PWD-ID.
Petitioners' insistence that Part IV (D) of NCDA Administrative Order No. 1 is void
because it allows allegedly non-competent persons like teachers, head of
establishments and heads of Non-Governmental Organizations (NGOs) to confirm
the medical condition of the applicant is misplaced. It must be stressed that only for
apparent disabilities can the teacher or head of a business establishment validly
issue the mentioned required document because, obviously, the disability is easily
seen or clearly visible. It is, therefore, not an unqualified grant of authority for the
said non-medical persons as it is simply limited to apparent disabilities. For a non-
apparent disability or a disability condition that is not easily seen or clearly visible,
the disability can only be validated by a licensed private or government physician,
and a medical certificate has to be presented in the procurement of an IDC. Relative
to this issue, the CA validly ruled, thus:ChanRoblesVirtualawlibrary
We agree with the Office of the Solicitor General's (OSG) ratiocination that teachers,
heads of business establishments and heads of NGOs can validly confirm the
medical condition of their students/employees with apparent disability for obvious
reasons as compared to non-apparent disability which can only be determined by
licensed physicians. Under the Labor Code, disabled persons are eligible as
apprentices or learners provided that their handicap are not as much as to
effectively impede the performance of their job. We find that heads of business
establishments can validly issue certificates of disability of their employees because
aside from the fact that they can obviously validate the disability, they also
have medical records of the employees as a pre-requisite in the hiring of
employees. Hence, Part IV (D) of NCDA AO No. 1 is logical and
valid.43chanroblesvirtuallawlibrary
Furthermore, DOH A.O. No. 2009-11 prescribes additional guidelines for the 20%
discount in the purchase of all medicines for the exclusive use of PWD.44 To avail of
the discount, the PWD must not only present his I.D. but also the doctor's
prescription stating, among others, the generic name of the medicine, the physician's
address, contact number and professional license number, professional tax receipt
number and narcotic license number, if applicable. A purchase booklet issued by the
local social/health office is also required in the purchase of over-the-counter
medicines. Likewise, any single dispensing of medicine must be in accordance with
the prescription issued by the physician and should not exceed a one (1) month
supply. Therefore, as correctly argued by the respondents, Section 32 of R.A. No.
7277 as amended by R.A. No. 9442 complies with the standards of substantive due
process.
We are likewise not persuaded by the argument of petitioners that the definition of
"disabilities" under the subject laws is vague and ambiguous because it is allegedly
so general and broad that the person tasked with implementing the law will
undoubtedly arrive at different interpretations and applications of the law. Aside
from the definitions of a "person with disability" or "disabled persons" under Section
4 of R.A. No. 7277 as amended by R.A. No. 9442 and in the IRR of RA 9442, NCDA
A.O. No. 1 also provides:ChanRoblesVirtualawlibrary
4. Identification Cards shall be issued to any bonafide PWD with
permanent disabilities due to any one or more of the following
conditions: psychosocial, chronic illness, learning, mental, visual,
orthopedic, speech and hearing conditions. This includes persons
suffering from disabling diseases resulting to the person's limitations
to do day to day activities as normally as possible such as but not
limited to those undergoing dialysis, heart disorders, severe cancer
cases and such other similar cases resulting to temporary or permanent
disability.45
Similarly, DOH A.O. No. 2009-0011 defines the different categories of disability as
Rule IV, Section 4, Paragraph B of the Implementing Rules and Regulations (IRR) of
this Act required the Department of Health to address the health concerns of seven
(7) different categories of disability, which include the following: (1) Psychological
and behavioral disabilities (2) Chronic illness with disabilities (3)Learning(cognitive
or intellectual) disabilities (4) Mental disabilities (5) Visual/seeing disabilities (6)
Orthopedic/moving, and (7) communication deficits.46chanroblesvirtuallawlibrary
Elementary is the rule that when laws or rules are clear, when the law is
unambiguous and unequivocal, application not interpretation thereof is imperative.
However, where the language of a statute is vague and ambiguous, an interpretation
thereof is resorted to. A law is deemed ambiguous when it is capable of being
understood by reasonably well-informed persons in either of two or more senses.
The fact that a law admits of different interpretations is the best evidence that it is
vague and ambiguous.47chanrobleslaw
In the instant case, We do not find the aforestated definition of terms as vague and
ambiguous. Settled is the rule that courts will not interfere in matters which are
addressed to the sound discretion of the government agency entrusted with the
regulation of activities coming under the special and technical training and
knowledge of such agency.48 As a matter of policy, We accord great respect to the
decisions and/or actions of administrative authorities not only because of the
doctrine of separation of powers but also for their presumed knowledge, ability, and
expertise in the enforcement of laws and regulations entrusted to their jurisdiction.
The rationale for this rule relates not only to the emergence of the multifarious needs
of a modern or modernizing society and the establishment of diverse administrative
agencies for addressing and satisfying those needs; it also relates to the accumulation
of experience and growth of specialized capabilities by the administrative agency
charged with implementing a particular statute.49chanrobleslaw
Lastly, petitioners contend that R.A. No. 7227, as amended by R.A. No. 9442, violates
the equal protection clause of the Constitution because it fairly singles out
drugstores to bear the burden of the discount, and that it can hardly be said to
"rationally" meet a legitimate government objective which is the purpose of the law.
The law allegedly targets only retailers such as petitioners, and that the other
enterprises in the drug industry are not imposed with similar burden. This same
argument had been raised in the case of Carlos Superdrug Corp., et al. v. DSWD, et
al.,50 and We reaffirm and apply the ruling therein in the case at
bar:ChanRoblesVirtualawlibrary
The Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. While the Constitution protects
property rights, petitioners must accept the realities of business and the State, in the
exercise of police power, can intervene in the operations of a business which may
result in an impairment of property rights in the process.
Moreover, the right to property has a social dimension. While Article XIII of the
Constitution provides the precept for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the regulation of contracts and
public utilities, continuously serve as a reminder that the right to property can be
relinquished upon the command of the State for the promotion of public
good.51chanroblesvirtuallawlibrary
Under the equal protection clause, all persons or things similarly situated must be
treated alike, both in the privileges conferred and the obligations imposed.
Conversely, all persons or things differently situated should be treated
differently.52 In the case of ABAKADA Guro Party List, et al. v. Hon. Purisima, et
al.,53We held:ChanRoblesVirtualawlibrary
Equality guaranteed under the equal protection clause is equality under the same
conditions and among persons similarly situated; it is equality among equals, not
similarity of treatment of persons who are classified based on substantial differences
in relation to the object to be accomplished. When things or persons are different in
fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde
Rope Workers' Union, this Court declared:ChanRoblesVirtualawlibrary
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the State. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality, that
every man, woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea
of classification is that of inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member
of the class. This Court has held that the standard is satisfied if the classification
or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws
over matters within its jurisdiction, the state is recognized as enjoying a wide range
of discretion. It is not necessary that the classification be based on scientific or
marked differences of things or in their relation. Neither is it necessary that the
classification be made with mathematical nicety. Hence, legislative classification may
in many cases properly rest on narrow distinctions, for the equal protection guaranty
does not preclude the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.
The equal protection clause recognizes a valid classification, that is, a classification
that has a reasonable foundation or rational basis and not arbitrary.54 With respect to
R.A. No. 9442, its expressed public policy is the rehabilitation, self-development and
self-reliance of PWDs. Persons with disability form a class separate and distinct from
the other citizens of the country. Indubitably, such substantial distinction is germane
and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the PWDs fully satisfy the demands of equal protection. Thus,
Congress may pass a law providing for a different treatment to persons with
disability apart from the other citizens of the country.
Subject to the determination of the courts as to what is a proper exercise of police

power using the due process clause and the equal protection clause as yardsticks, the
State may interfere wherever the public interests demand it, and in this particular, a
large discretion is necessarily vested in the legislature to determine, not only what
interests of the public require, but what measures are necessary for the protection of
such interests.55 Thus, We are mindful of the fundamental criteria in cases of this
nature that all reasonable doubts should be resolved in favor of the constitutionality
of a statute.56 The burden of proof is on him who claims that a statute is
unconstitutional. Petitioners failed to discharge such burden of proof.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated
July 26, 2010, and the Resolution dated November 19, 2010, in CA-G.R. SP No.
109903 are AFFIRMED.
SUBIDO PAGENTE CERTEZA MENDOZA AND BINAY LAW

OFFICES, Petitioner, v. THE COURT OF APPEALS, HON. ANDRES B. REYES, JR.,
IN HIS CAPACITY AS PRESIDING JUSTICE OF THE COURT OF APPEALS,
AND THE ANTI-MONEY LAUNDERING COUNCIL, REPRESENTED BY ITS
MEMBERS, HON. AMANDO M. TETANGCO, JR., GOVERNOR OF THE
BANGKO SENTRAL NG PILIPINAS, HON. TERESITA J. HERBOSA,
CHAIRPERSON OF THE SECURITIES AND EXCHANGE COMMISSION, AND
HON. EMMANUEL F. DOOC, INSURANCE COMMISSIONER OF THE
INSURANCE COMMISSION, Respondents.
DECISION
PEREZ, J.:
Challenged in this petition for certiorari and prohibition under Rule 65 of the Rules
1
of Court is the constitutionality of Section 11 of Republic Act (R.A.) No. 9160, the
Anti-Money Laundering Act, as amended, specifically the Anti-Money Laundering
Council's authority to file with the Court of Appeals (CA) in this case, an ex-
parte application for inquiry into certain bank deposits and investments, including
related accounts based on probable cause.
In 2015, a year before the 2016 presidential elections, reports abounded on the
supposed disproportionate wealth of then Vice President Jejomar Binay and the rest
of his family, some of whom were likewise elected public officers. The Office of the
Ombudsman and the Senate conducted investigations2 and inquiries3 thereon
ostensibly based on their respective powers delineated in the Constitution.
From various news reports announcing the inquiry into then Vice President Binay's
bank accounts, including accounts of members of his family, petitioner Subido
Pagente Certeza Mendoza & Binay Law Firm (SPCMB) was most concerned with the
article published in the Manila Times on 25 February 2015 entitled "Inspect Binay
Bank Accounts" which read, in pertinent part:
xxx The Anti-Money Laundering Council (AMLC) asked the Court of Appeals (CA)
to allow the [C]ouncil to peek into the bank accounts of the Binays, their
corporations, and a law office where a family member was once a partner.
xxxx
Also the bank accounts of the law office linked to the family, the Subido Pagente
Certeza Mendoza & Binay Law Firm, where the Vice President's daughter Abigail
was a former partner.4
The following day, 26 February 2015, SPCMB wrote public respondent, Presiding
Justice of the CA, Andres B. Reyes, Jr.:
The law firm of Subido Pagente Certeza Mendoza and Binay was surprised to
receive a call from Manila Times requesting for a comment regarding a [supposed
petition] filed by the Republic of the Philippines represented by the Anti-Money
Laundering Council before the Court of Appeals seeking to examine the law office's
bank accounts.
To verify the said matter, the law office is authorizing its associate Atty. Jose Julius
R. Castro to inquire on the veracity of said report with the Court of Appeals. He is
likewise authorized to secure copies of the relevant documents of the case, such as
the petition and orders issued, if such a case exists.
As this is a matter demanding serious and immediate attention, the Firm respectfully
manifests that if no written response is received within 24-hours from receipt of this
letter, we shall be at liberty to assume that such a case exists and we shall act
accordingly.
Hoping for your immediate action.
Respectfully yours,
For the Firm
CLARO F. CERTEZA5
Within twenty four (24) hours, Presiding Justice Reyes wrote SPCMB denying its
request, thus:
Anent your request for a comment on a supposed petition to inquire into your law
office's bank accounts, please be informed that a petition of this nature is strictly
confidential in that when processing the same, not even the handling staff members
of the Office of the Presiding Justice know or have any knowledge who the subject
bank account holders are, as well as the bank accounts involved.
Please be informed further that clearly under the rules, the Office of the Presiding
Justice is strictly mandated not to disclose, divulge, or communicate to anyone
directly or indirectly, in any manner or by any means, the fact of the filing of any
petition brought before this Court by the Anti-Money Laundering Council, its
contents and even its entry in the logbook.
Trusting that you find satisfactory the foregoing explanation.6
By 8 March 2015, the Manila Times published another article entitled, "CA orders
probe of Binay's assets" reporting that the appellate court had issued a Resolution
granting the ex-parte application of the AMLC to examine the bank accounts of
SPCMB:
The Court of Appeals (CA) has officially issued an order for examination of Vice
President Jejomar Binay's bank accounts.
In granting the petition of the Anti-Money Laundering Council (AMLC), the CA also
ordered the inspection of the bank deposits of Binay's wife, children, and a law office
connected to him.
xxx xxx xxx
The bank accounts of the law office linked to Binay - the Subido Pagente Certeza
Mendoza & Binay where Binay's daughter, Makati City (Metro Manila) Rep. Mar-
len Abigail Binay was a partner, are also included in the probe, the sources said.7
Forestalled in the CA thus alleging that it had no ordinary, plain, speedy, and
adequate remedy to protect its rights and interests in the purported ongoing
unconstitutional examination of its bank accounts by public respondent Anti-Money
Laundering Council (AMLC), SPCMB undertook direct resort to this Court via this
petition for certiorari and prohibition on the following grounds:
A. THE ANTI-MONEY LAUNDERING ACT IS UNCONSTITUTIONAL
INSOFAR AS IT ALLOWS THE EXAMINATION OF A BANK ACCOUNT
WITHOUT ANY NOTICE TO THE AFFECTED PARTY:cralawlawlibrary
1. IT VIOLATES THE PERSON'S RIGHT TO DUE PROCESS; AND
2. IT VIOLATES THE PERSON'S RIGHT TO PRIVACY.

B. EVEN ASSUMING ARGUENDO THAT THE ANTI-MONEY LAUNDERING
ACT IS CONSTITUTIONAL, THE RESPONDENTS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION CONSIDERING THAT:cralawlawlibrary
1. THE REFUSAL OF RESPONDENT PRESIDING JUSTICE TO PROVIDE
PETITIONER WITH A COPY OF THE EX-PARTE APPLICATION FOR
BANK EXAMINATION FILED BY RESPONDENT AMLC AND ALL OTHER
PLEADINGS, MOTIONS, ORDERS, RESOLUTIONS, AND PROCESSES
ISSUED BY THE RESPONDENT COURT OF APPEALS IN RELATION
THERETO VIOLATES PETITIONER'S RIGHT TO DUE PROCESS;
2. A CARTE BLANCHE AUTHORITY TO EXAMINE ANY AND ALL

TRANSACTIONS PERTAINING TO PETITIONER'S BANK ACCOUNTS
VIOLATES THE ATTORNEY-CLIENT PRIVILEGE WHICH IS
SACROSANCT IN THE LEGAL PROFESSION;
3. A BLANKET AUTHORITY TO EXAMINE PETITIONER'S BANK

ACCOUNTS, INCLUDING ANY AND ALL TRANSACTIONS THEREIN
FROM ITS OPENING UP TO THE PRESENT, PARTAKES THE NATURE OF
A GENERAL WARRANT THAT IS CLEARLY INTENDED TO AID A MERE
FISHING EXPEDITION;
4. THERE IS NOTHING IN THE ANTI-MONEY LAUNDERING ACT THAT

ALLOWS OR JUSTIFIES THE WITHHOLDING OF INFORMATION
AND/OR ANY COURT RECORDS OR PROCEEDINGS PERTAINING TO
AN EXAMINATION OF A BANK ACCOUNT, ESPECIALLY IF THE COURT
HAS ALREADY GRANTED THE AUTHORITY TO CONDUCT THE
EXAMINATION;
5. THE PETITIONER DID NOT COMMIT, NOR HAS THE PETITIONER BEEN
IMPLEADED IN ANY COMPLAINT INVOLVING ANY PREDICATE CRIME
THAT WOULD JUSTIFY AN INQUIRY INTO ITS BANK ACCOUNTS; AND
7. THE EXAMINATION OF THE PETITIONER'S BANK ACCOUNTS IS A
FORM OF POLITICAL PERSECUTION OR HARASSMENT.8
In their Comment, the AMLC, through the Office of the Solicitor General (OSG),
points out a supposed jurisdictional defect of the instant petition, i.e., SPCMB failed
to implead the House of Representatives which enacted the AMLA and its
amendments. In all, the OSG argues for the dismissal of the present petition,
highlighting that the AMLC's inquiry into bank deposits does not violate due
process nor the right to privacy:
1. Section 11's allowance for AMLC's ex-parte application for an inquiry into
particular bank deposits and investments is investigative, not adjudicatory;
2. The text of Section 11 itself provides safeguards and limitations on the allowance
to the AMLC to inquire into bank deposits: (a) issued by the CA based on probable
cause; and (b) specific compliance to the requirements of Sections 2 and 3, Article III
of the Constitution;
3. The ex-parte procedure for investigating bank accounts is necessary to achieve a
legitimate state objective;
4. There is no legitimate expectation of privacy as to the bank records of a depositor;
5. The examination of, and inquiry, into SPCMB's bank accounts does not violate
Attorney-Client Privilege; and
6. A criminal complaint is not a pre-requisite to a bank inquiry order.
In their Reply, SPCMB maintains that the ex-parte proceedings authorizing inquiry of
the AMLC into certain bank deposits and investments is unconstitutional, violating
its rights to due process and privacy.
Before anything else, we here have an original action turning on three crucial
matters: (1) the petition reaches us from a letter of the Presiding Justice of the CA in
response to a letter written by SPCMB; (2) SPCMB's bank account has been reported
to be a related account to Vice President Binay's investigated by the AMLC for anti-
money laundering activities; and (3) the constitutionality of Section 11 of the AMLA
at its recent amendment has not been squarely raised and addressed.
To obviate confusion, we act on this petition given that SPCMB directly assails the
constitutionality of Section 11 of the AMLA where it has been widely reported that
Vice President Binay's bank accounts and all related accounts therewith are subject
of an investigation by the AMLC. In fact, subsequent events from the filing of this
petition have shown that these same bank accounts (including related accounts)
were investigated by the Ombudsman and both Houses of the Legislature. However,
at the time of the filing of this petition, SPCMB alleged that its accounts have been
inquired into but not subjected to a freeze order under Section 10 of the AMLA.
Thus, as previously noted, with its preclusion of legal remedies before the CA which
under the AMLA issues the ex-parte bank inquiry and freeze orders, Sections 10 and
11, respectively, SPCMB establishes that it has no plain, speedy and adequate
remedy in the ordinary course of law to protect its rights and interests from the
purported unconstitutional intrusion by the AMLC into its bank accounts.
The foregoing shall be addressed specifically and bears directly on the disposition of
the decision herein.
Additionally, we note that the OSG did not question how this petition reaches us
from a letter of the appellate court's Presiding Justice, only that, procedurally,
SPCMB should have impleaded Congress.
On the sole procedural issue of whether SPCMB ought to have impleaded Congress,
the contention of the OSG though novel is untenable. All cases questioning the
constitutionality of a law does not require that Congress be impleaded for their
resolution. The requisites of a judicial inquiry are elementary:
1. There must be an actual case or controversy; party;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination
of the case itself.9
The complexity of the issues involved herein require us to examine the assailed
provision vis-a-vis the constitutional proscription against violation of due process.
The statute reads:
SEC. 11. Authority to Inquire into Bank Deposits. - Notwithstanding the provisions of
Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic
Act No. 8791; and other laws, the AMLC may inquire into or examine any particular
deposit or investment, including related accounts, with any banking institution or
non-bank financial institution upon order of any competent court based on an ex
parte application in cases of violations of this Act, when it has been established that
there is probable cause that the deposits or investments, including related accounts
involved, are related to an unlawful activity as defined in Section 3(i) hereof or a
money laundering offense under Section 4 hereof; except that no court order shall be
required in cases involving activities defined in Section 3(i)(1), (2), and (12) hereof,
and felonies or offenses of a nature similar to those mentioned in Section 3(i)(1), (2),
and (12), which are punishable under the penal laws of other countries, and
terrorism and conspiracy to commit terrorism as defined and penalized under
Republic Act No. 9372.
The Court of Appeals shall act on the application to inquire into or examine any
deposit or investment with any banking institution or non-bank financial institution
within twenty-four (24) hours from filing of the application.
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the
course of a periodic or special examination, check the compliance of a covered
institution with the requirements of the AMLA and its implementing rules and
regulations.
For purposes of this section, 'related accounts' shall refer to accounts, the funds and
sources of which originated from and/or are materially linked to the monetary
instrument(s) or property(ies) subject of the freeze order(s).
A court order ex parte must first be obtained before the AMLC can inquire into these
related Accounts: Provided, That the procedure for the ex parte application of the ex
parte court order for the principal account shall be the same with that of the related
accounts.
The authority to inquire into or examine the main account and the related accounts
shall comply with the requirements of Article III, Sections 2 and 3 of the 1987
Constitution, which are hereby incorporated by reference.10
The due process clause of the Constitution reads:
SECTION 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws. 11
The right to due process has two aspects: (1) substantive which deals with the
extrinsic and intrinsic validity of the law; and (2) procedural which delves into the
rules government must follow before it deprives a person of its life, liberty or
property.12
As presently worded, Section 11 of the AMLA has three elements: (1) ex-
parte application by the AMLC; (2) determination of probable cause by the CA; and
(3) exception of court order in cases involving unlawful activities defined in Sections
3(i)(1), (2), and (12).
As a brief backgrounder to the amendment to Section 11 of the AMLA, the text
originally did not specify for an ex-parte application by the AMLC for authority to
inquire into or examine certain bank accounts or investments. The extent of this
authority was the topic of Rep. of the Phils. v. Hon. Judge Eugenio, Jr., et al.
(Eugenio)13 where the petitioner therein, Republic of the Philippines, asseverated that
the application for that kind of order under the questioned section of the AMLA did
not require notice and hearing. Eugenio schooled us on the AMLA, specifically on the
provisional remedies provided therein to aid the AMLC in enforcing the law:
It is evident that Section 11 does not specifically authorize, as a general rule, the
issuance ex-parte of the bank inquiry order. We quote the provision in full:
SEC. 11. Authority to Inquire into Bank Deposits. Notwithstanding the
provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as
amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or
examine any particular deposit or investment with any banking institution or non
bank financial institution upon order of any competent court in cases of violation of
this Act, when it has been established that there is probable cause that the
deposits or investments are related to an unlawful activity as defined in Section
3(i) hereof or a money laundering offense under Section 4 hereof, except that no
court order shall be required in cases involving unlawful activities defined in
Sections 3(i)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may
inquire into or examine any deposit of investment with any banking institution or
non bank financial institution when the examination is made in the course of a
periodic or special examination, in accordance with the rules of examination of the
BSP. (Emphasis supplied)
Of course, Section 11 also allows the AMLC to inquire into bank accounts without
having to obtain a judicial order in cases where there is probable cause that the
deposits or investments are related to kidnapping for ransom, certain violations of
the Comprehensive Dangerous Drugs Act of 2002, hijacking and other violations
under R.A. No. 6235, destructive arson and murder. Since such special circumstances
do not apply in this case, there is no need for us to pass comment on this proviso.
Suffice it to say, the proviso contemplates a situation distinct from that which
presently confronts us, and for purposes of the succeeding discussion, our reference
to Section 11 of the AMLA excludes said proviso.
In the instances where a court order is required for the issuance of the bank inquiry
order, nothing in Section 11 specifically authorizes that such court order may be
issued ex parte. It might be argued that this silence does not preclude the ex
parte issuance of the bank inquiry order since the same is not prohibited under
Section 11. Yet this argument falls when the immediately preceding provision,
Section 10, is examined.
SEC 10. Freezing of Monetary Instrument or Property. The Court of
Appeals, upon application ex parte by the AMLC and after determination that
probable cause exists that any monetary instrument or property is in any way
related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze
order which shall be effective immediately. The freeze order shall be for a period of
twenty (20) days unless extended by the court.
Although oriented towards different purposes, the freeze order under Section 10 and
the bank inquiry order under Section 11 are similar in that they are extraordinary
provisional reliefs which the AMLC may avail of to effectively combat and prosecute
money laundering offenses. Crucially, Section 10 uses specific language to authorize
an ex parte application for the provisional relief therein, a circumstance absent in
Section 11. If indeed the legislature had intended to authorize ex parte proceedings
for the issuance of the bank inquiry order, then it could have easily expressed such
intent in the law, as it did with the freeze order under Section 10.
Even more tellingly, the current language of Sections 10 and 11 of the AMLA was
crafted at the same time, through the passage of R.A. No. 9194. Prior to the
amendatory law, it was the AMLC, not the Court of Appeals, which had authority to
issue a freeze order, whereas a bank inquiry order always then required, without
exception, an order from a competent court. It was through the same enactment
that ex parte proceedings were introduced for the first time into the AMLA, in the
case of the freeze order which now can only be issued by the Court of Appeals. It
certainly would have been convenient, through the same amendatory law, to allow a
similar ex parte procedure in the case of a bank inquiry order had Congress been so
minded. Yet nothing in the provision itself, or even the available legislative record,
explicitly points to an ex parte judicial procedure in the application for a bank inquiry
order, unlike in the case of the freeze order.
That the AMLA does not contemplate ex parte proceedings in applications for bank
inquiry orders is confirmed by the present implementing rules and regulations of the
AMLA, promulgated upon the passage of R.A. No. 9194. With respect to freeze
orders under Section 10, the implementing rules do expressly provide that the
applications for freeze orders be filed ex parte, but no similar clearance is granted in
the case of inquiry orders under Section 11. These implementing rules were
promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the
Securities and Exchange Commission, and if it was the true belief of these
institutions that inquiry orders could be issued ex parte similar to freeze orders,
language to that effect would have been incorporated in the said Rules. This is
stressed not because the implementing rules could authorize ex parte applications for
inquiry orders despite the absence of statutory basis, but rather because the framers
of the law had no intention to allow such ex parte applications.
Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC to
enforce the provisions of the AMLA specifically authorize ex parte applications with
respect to freeze orders under Section 10 but make no similar authorization with
respect to bank inquiry orders under Section 11.
The Court could divine the sense in allowing ex parte proceedings under Section 10
and in proscribing the same under Section 11. A freeze order under Section 10 on the
one hand is aimed at preserving monetary instruments or property in any way
deemed related to unlawful activities as defined in Section 3(i) of the AMLA. The
owner of such monetary instruments or property would thus be inhibited from
utilizing the same for the duration of the freeze order. To make such freeze order
anteceded by a judicial proceeding with notice to the account holder would allow for
or lead to the dissipation of such funds even before the order could be issued.
(Citations omitted.)
Quite apparent from the foregoing is that absent a specific wording in the AMLA
allowing for ex-parte proceedings in orders authorizing inquiry and examination by
the AMLC into certain bank deposits or investments, notice to the affected party is
required.
Heeding the Court's observance in Eugenio that the remedy of the Republic then lay
with the legislative, Congress enacted Republic Act No. 10167 amending Section 11
of the AMLA and specifically inserted the word ex-parte appositive of the nature of
this provisional remedy available to the AMLC thereunder.
It is this current wording of Section 11 which SPCMB posits as unconstitutional and
purportedly actually proscribed in Eugenio.
We do not subscribe to SPCMB's position.
Succinctly, Section 11 of the AMLA providing for ex-parte application and inquiry by
the AMLC into certain bank deposits and investments does not violate substantive
due process, there being no physical seizure of property involved at that stage. It is
the preliminary and actual seizure of the bank deposits or investments in question
which brings these within reach of the judicial process, specifically a determination
that the seizure violated due process.14 In fact, Eugenio delineates a bank inquiry
order under Section 11 from a freeze order under Section 10 on both remedies' effect
on the direct objects, i.e. the bank deposits and investments:
On the other hand, a bank inquiry order under Section 11 does not necessitate any
form of physical seizure of property of the account holder. What the bank inquiry
order authorizes is the examination of the particular deposits or investments in
banking institutions or non-bank financial institutions. The monetary instruments or
property deposited with such banks or financial institutions are not seized in a
physical sense, but are examined on particular details such as the account holder's
record of deposits and transactions. Unlike the assets subject of the freeze order, the
records to be inspected under a bank inquiry order cannot be physically seized or
hidden by the account holder. Said records are in the possession of the bank and
therefore cannot be destroyed at the instance of the account holder alone as that
would require the extraordinary cooperation and devotion of the bank.15
At the stage in which the petition was filed before us, the inquiry into certain bank
deposits and investments by the AMLC still does not contemplate any form of
physical seizure of the targeted corporeal property. From this cite, we proceed to
examine whether Section 11 of the law violates procedural due process.
As previously stated, the AMLA now specifically provides for an ex-parte application
for an order authorizing inquiry or examination into bank deposits or investments
which continues to pass constitutional muster.
Procedural due process is essentially the opportunity to be heard.16 In this case, at
the investigation stage by the AMLC into possible money laundering offenses,
SPCMB demands that it have notice and hearing of AMLC's investigation into its
bank accounts.
We are not unaware of the obiter in Eugenio17 and cited by SPCMB, voicing
misgivings on an interpretation of the former Section 11 of the AMLA allowing
for ex-parte proceedings in bank inquiry orders, to wit:
There certainly is fertile ground to contest the issuance of an ex-parte order. Section
11 itself requires that it be established that "there is probable cause that the deposits
or investments are related to unlawful activities," and it obviously is the court which
stands as arbiter whether there is indeed such probable cause. The process of
inquiring into the existence of probable cause would involve the function of
determination reposed on the trial court. Determination clearly implies a function of
adjudication on the part of the trial court, and not a mechanical application of a
standard pre-determination by some other body. The word "determination" implies
deliberation and is, in normal legal contemplation, equivalent to "the decision of a
court of justice."
The court receiving the application for inquiry order cannot simply take the AMLC's
word that probable cause exists that the deposits or investments are related to an
unlawful activity. It will have to exercise its own determinative function in order to
be convinced of such fact. The account holder would be certainly capable of
contesting such probable cause if given the opportunity to be apprised of the
pending application to inquire into his account; hence a notice requirement would
not be an empty spectacle. It may be so that the process of obtaining the inquiry
order may become more cumbersome or prolonged because of the notice
requirement, yet we fail to see any unreasonable burden cast by such circumstance.
After all, as earlier stated, requiring notice to the account holder should not, in any
way, compromise the integrity of the bank records subject of the inquiry which
remain in the possession and control of the bank. (Emphasis supplied)
On that score, the SPCMB points out that the AMLC 's bank inquiry is preliminary to
the seizure and deprivation of its property as in a freeze order under Section 10 of
the AMLA which peculiarity lends itself to a sui generis proceeding akin to the
evaluation process in extradition proceedings pronounced in Secretary of Justice v.
Hon. Lantion.18 Under the extradition law, the Secretary of Foreign Affairs is bound
to make a finding that the extradition request and its supporting documents are
sufficient and complete in form and substance before delivering the same to the
Secretary of Justice. We ruled:
[L]ooking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true
that the extradition request was delivered to the Department of Foreign Affairs on
June 17, 1999, the following day or less than 24 hours later, the Department of Justice
received the request, apparently without the Department of Foreign affairs
discharging its duty thoroughly evaluating the same and its accompanying
documents. xxx.
xxxx
[T]he record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting
documents and that it arrived at a well-founded judgment that the request and its
annexed documents satisfy the requirements of law. XXX.
The evaluation process, just like the extradition proceedings, proper belongs to a
class by itself. It is sui generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial functions. At such
stage, the executive authority has the power: (a) to make a technical assessment of
the completeness and sufficiency of the extradition papers; (b) to outrightly deny
the request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one which is not
punishable under non-military penal legislation. Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-judicial
power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation
of evidence; (b) determining facts based upon the evidence presented; and (c)
rendering an order or decision supported by the facts proved. Inquisitorial power,
which is also known as examining or investigatory power, is one of the
determinative powers of an administrative body which better enables it to exercise
its quasi-judicial authority. This power allows the administrative body to inspect the
records and premises, and investigate the activities, of persons or entities coming
under its jurisdiction, or to require disclosure of information by means of accounts,
records, reports, testimony of witnesses, production of documents, or otherwise.
The power of investigation consists in gathering, organizing, and analyzing
evidence, which is a useful aid or tool in an administrative agency's performance of
its rule-making or quasi-judicial functions. Notably, investigation is indispensable to
prosecution.19 (Emphasis supplied, citations omitted)
The submission of AMLC requires a determination whether the AMLC is an
administrative body with quasi-judicial powers; corollary thereto, a determination of
the jurisdiction of the AMLC.
Lim v. Gamosa20 is enlightening on jurisdiction and the requirement of a specific grant
thereof in the enabling law. We declared that the creation of the National
Commission on Indigenous Peoples (NCIP) by the Indigenous Peoples Rights Act
(IPRA) did not confer it exclusive and original, nor primary jurisdiction, in all claims
and disputes involving rights of IPs and ICCs where no such specific grant is
bestowed.
In this instance, the grant of jurisdiction over cases involving money laundering
offences is bestowed on the Regional Trial Courts and the Sandiganbayan as the case
may be. In fact, Rule 5 of the IRR is entitled Jurisdiction of Money Laundering
Cases and Money Laundering Investigation Procedures:
Rule 5.a. Jurisdiction of Money Laundering Cases. The Regional Trial Courts shall
have the jurisdiction to try all cases on money laundering. Those committed by
public officers and private persons who are in conspiracy with such public officers
shall be under the jurisdiction of the Sandiganbayan.
Rule 5.b. Investigation of Money Laundering Offenses. - The AMLC shall
investigate:
(1) suspicious transactions;
(2) covered transactions deemed suspicious after an investigation conducted by the
AMLC;
(3) money laundering activities; and
(4) other violations of the AMLA, as amended.
The confusion on the scope and parameters of the AMLC's investigatory powers and
whether such seeps into and approximates a quasi-judicial agency's inquisitorial
powers lies in the AMLC's investigation and consequent initial determination of
whether certain activities are constitutive of anti-money laundering offenses.
The enabling law itself, the AMLA, specifies the jurisdiction of the trial courts, RTC
and Sandiganbayan, over money laundering cases, and delineates the investigative
powers of the AMLC.
Textually, the AMLA is the first line of defense against money laundering in
compliance with our international obligation. There are three (3) stages of
determination, two (2) levels of investigation, falling under three (3) jurisdictions:
1. The AMLC investigates possible money laundering offences and initially
determines whether there is probable cause to charge any person with a money
laundering offence under Section 4 of the AMLA, resulting in the filing of a
complaint with the Department of Justice or the Office of the Ombudsman;21
2. The DOJ or the Ombudsman conducts the preliminary investigation proceeding
and if after due notice and hearing finds probable cause for money laundering
offences, shall file the necessary information before the Regional Trial Courts or the
Sandiganbayan;22
3. The RTCs or the Sandiganbayan shall try all cases on money laundering, as may
be applicable.23
Nowhere from the text of the law nor its Implementing Rules and Regulations can
we glean that the AMLC exercises quasi-judicial functions whether the actual
preliminary investigation is done simply at its behest or conducted by the
Department of Justice and the Ombudsman.
Again, we hark back to Lantion citing Ruperto v. Torres,23-a where the Court had
occasion to rule on the functions of an investigatory body with the sole power of
investigation:
[Such a body] does not exercise judicial functions and its power is limited to
investigating facts and making findings in respect thereto. The Court laid down the
test of determining whether an administrative body is exercising judicial functions
or merely investigatory functions: Adjudication signifies the exercise of power and
authority to adjudicate upon the rights and obligations of the parties before it.
Hence, if the only purpose for investigation is to evaluate evidence submitted before
it based on the facts and Circumstances presented to it, and if the agency is not
authorized to make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment.
adjudicate in regard to the rights and obligations of both the Requesting State and
the prospective extraditee. Its only power is to determine whether the papers comply
with the requirements of the law and the treaty and, therefore, sufficient to be the
basis of an extradition petition. Such finding is thus merely initial and not final. The
body has no power to determine whether or not the extradition should be effected.
That is the role of the court. The body's power is limited to an initial finding of
whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation
procedure is characterized by certain peculiarities. Primarily, it sets into motion the
wheels of the extradition process. Ultimately, it may result in the deprivation of
liberty of the prospective extraditee. This deprivation can be effected at two
stages: First, the provisional arrest of the prospective extraditee pending the
submission of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition
Treaty), but he shall be automatically discharged after 60 days if no request is
submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period
of 20 days after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the provisions only
mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if
no request is submitted. Practically, the purpose of this detention is to prevent his
possible flight from the Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition petition in court
(Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as
during the evaluation stage. It is not only an imagined threat to his liberty, but a
very imminent one.
Because of these possible consequences, we conclude that the evaluation process is
akin to an administrative agency conducting an investigative proceeding, the
consequences of which are essentially criminal since such technical assessment sets
off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee, As described by petitioner himself, this is a "tool" for criminal
law enforcement. In essence, therefore, the evaluation process partakes of the nature
of a criminal investigation. In a number of cases, we had occasion to make available
to a respondent in an administrative case or investigation certain constitutional
rights that are ordinarily available only in criminal prosecutions. Further, as pointed
out by Mr. Justice Mendoza during the oral arguments, there are rights formerly
available only at the trial stage that had been advanced to an earlier stage in the
proceedings, such as the right to counsel and the right against self-
incrimination.24 (Citations omitted)
In contrast to the disposition in Lantion that the evaluation process before the
Department of Foreign Affairs is akin to an administrative agency conducting
investigative proceedings with implications on the consequences of criminal
liability, i.e., deprivation of liberty of a prospective extraditee, the sole investigative
functions of the AMLC finds more resonance with the investigative functions of the
National Bureau of Investigation (NBI).
That the AMLC does not exercise quasi-judicial powers and is simply an
investigatory body finds support in our ruling in Shu v. Dee.25 In that case, petitioner
Shu had filed a complaint before the NBI charging respondents therein with
falsification of two (2) deeds of real estate mortgage submitted to the Metropolitan
Bank and Trust Company (Metrobank). After its investigation, the NBI came up with
a Questioned Documents Report No. 746-1098 finding that the signatures of
petitioner therein which appear on the questioned deeds are not the same as the
standard sample signatures he submitted to the NBI. Ruling on the specific issue
raised by respondent therein that they had been denied due process during the NBI
investigation, we stressed that the functions of this agency are merely investigatory
and informational in nature:
[The NBI] has no judicial or quasi-judicial powers and is incapable of granting any
relief to any party. It cannot even determine probable cause. The NBI is an
investigative agency whose findings are merely recommendatory. It undertakes
investigation of crimes upon its own initiative or as public welfare may require in
accordance with its mandate. It also renders assistance when requested in the
investigation or detection of crimes in order to prosecute the persons responsible.
Since the NBI's findings were merely recommendatory, we find that no denial of the
respondent's due process right could have taken place; the NBI's findings were still
subject to the prosecutor's and the Secretary of Justice's actions for purposes of
finding the existence of probable cause. We find it significant that the specimen
signatures in the possession of Metrobank were submitted by the respondents for
the consideration of the city prosecutor and eventually of the Secretary of Justice
during the preliminary investigation proceedings. Thus, these officers had the
opportunity to examine these signatures.
The respondents were not likewise denied their right to due process when the NBI
issued the questioned documents report. We note that this report merely stated that
the signatures appearing on the two deeds and in the petitioner's submitted sample
signatures were not written by one and the same person. Notably, there was no
categorical finding in the questioned documents report that the respondents falsified
the documents. This report, too, was procured during the conduct of the NBI's
investigation at the petitioner's request for assistance in the investigation of the
alleged crime of falsification. The report is inconclusive and does not prevent the
respondents from securing a separate documents examination by handwriting
experts based on their own evidence. On its own, the NBI's questioned documents
report does not directly point to the respondents' involvement in the crime charged.
Its significance is that, taken together with the other pieces of evidence submitted by
the parties during the preliminary investigation, these evidence could be sufficient
for purposes of finding probable cause the action that the Secretary of Justice
undertook in the present case.
As carved out in Shu, the AMLC functions solely as an investigative body in the
instances mentioned in Rule 5.b.26 Thereafter, the next step is for the AMLC to file a
Complaint with either the DOJ or the Ombudsman pursuant to Rule 6.b.
Even in the case of Estrada v. Office of the Ombudsman,27 where the conflict arose at the
preliminary investigation stage by the Ombudsman, we ruled that the
Ombudsman's denial of Senator Estrada's Request to be furnished copies of the
counter-affidavits of his co-respondents did not violate Estrada's constitutional right
to due process where the sole issue is the existence of probable cause for the purpose
of determining whether an information should be filed and does not prevent Estrada
from requesting a copy of the counter-affidavits of his co-respondents during the
pre-trial or even during trial. We expounded on the nature of preliminary
investigation proceedings, thus:
It should be underscored that the conduct of a preliminary investigation is only for
the determination of probable cause, and "probable cause merely implies probability
of guilt and should be determined in a summary manner. A preliminary
investigation is not a part of the trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence." Thus, the rights of a respondent in a
preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief
that a crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to
"engender a well founded belief' as to the fact of the commission of a crime and the
respondent's probable guilt thereof A preliminary investigation is not the occasion
for the full and exhaustive display of the parties' evidence; it is for the presentation
of such evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. We are in accord
with the state prosecutor's findings in the case at bar that there exists prima facie
evidence of petitioner's involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioner's argument that the testimonies of Galarion
and Hanopol are inadmissible as to him since he was not granted the opportunity of
cross-examination.
It is a fundamental principle that the accused in a preliminary investigation has no
right to cross-examine the witnesses which the complainant may present. Section 3,
Rule 112 of the Rules of Court expressly provides that the respondent shall only
have the right to submit a counter-affidavit, to examine all other evidence submitted
by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner
was not given the opportunity to cross-examine Galarion and Hanopol at the time
they were presented to testify during the separate trial of the case against Galarion
and Roxas, he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the
trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by
the trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and
the trial court can rule on the admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of Galarion and Hanopol for
purposes of cross-examination. (Citations and emphasis omitted)
Plainly, the AMLC's investigation of money laundering offenses and its
determination of possible money laundering offenses, specifically its inquiry into
certain bank accounts allowed by court order, does not transform it into an
investigative body exercising quasi-judicial powers. Hence, Section 11 of the AMLA,
authorizing a bank inquiry court order, cannot be said to violate SPCMB's
constitutional right to procedural due process.
We now come to a determination of whether Section 11 is violative of the
constitutional right to privacy enshrined in Section 2, Article III of the Constitution.
SPCMB is adamant that the CA's denial of its request to be furnished copies of
AMLC's ex-parte application for a bank inquiry order and all subsequent pleadings,
documents and orders filed and issued in relation thereto, constitutes grave abuse of
discretion where the purported blanket authority under Section 11: (1) partakes of a
general warrant intended to aid a mere fishing expedition; (2) violates the attorney-
client privilege; (3) is not preceded by predicate crime charging SPCMB of a money
laundering offense; and (4) is a form of political harassment [of SPCMB's] clientele.
We shall discuss these issues jointly since the assailed Section 11 incorporates by
reference that "[t]he authority to inquire into or examine the main and the related
accounts shall comply with the requirements of Article III, Sections 2 and 3 of the
1987 Constitution." On this point, SPCMB asseverates that "there is nothing in the
AMLA that allows or justifies the withholding of information and/or any court
records or proceedings pertaining to an examination of a bank account, especially if
the court has already granted the authority to conduct the examination."
The theme of playing off privacy rights and interest against that of the state's interest
in curbing money laundering offenses is recurring.28
The invoked constitutional provisions read:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the person or
things to be seized.
SEC. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public policy or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Once again, Eugenio29 offers guidance:
The Court's construction of Section 11 of the AMLA is undoubtedly influenced by
right to privacy considerations. If sustained, petitioner's argument that a bank
account may be inspected by the government following an ex parte proceeding
about which the depositor would know nothing would have significant implications
on the right to privacy, a right innately cherished by all notwithstanding the legally
recognized exceptions thereto. The notion that the government could be so
empowered is cause for concern of any individual who values the right to privacy
which, after all, embodies even the right to be "let alone," the most comprehensive of
rights and the right most valued by civilized people.
One might assume that the constitutional dimension of the right to privacy, as
applied to bank deposits, warrants our present inquiry. We decline to do so.
Admittedly, that question has proved controversial in American
jurisprudence. Notably, the United States Supreme Court in U.S. v. Miller held that
there was no legitimate expectation of privacy as to the bank records of a
depositor. Moreover, the text of our Constitution has not bothered with the
triviality of allocating specific rights peculiar to bank deposits.
However, sufficient for our purposes, we can assert there is a right to privacy
governing bank accounts in the Philippines, and that such right finds application to
the case at bar. The source of such right is statutory, expressed as it is in R.A. No.
1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is
enshrined in Section 2 of that law, to wit:
SECTION 2. All deposits of whatever nature with banks or banking institutions in
the Philippines including investments in bonds issued by the Government of the
Philippines, its political subdivisions and its instrumentalities, are hereby
considered as of an absolutely confidential nature and may not be examined,
inquired or looked into by any person, government official, bureau or office, except
upon written permission of the depositor, or in cases of impeachment, or upon order
of a competent court in cases of bribery or dereliction of duty of public officials, or in
cases where the money deposited or invested is the subject matter of the litigation.
Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic
state policy in the Philippines. Subsequent laws, including the AMLA, may have
added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies
as the general rule. It falls within the zones of privacy recognized by our laws. The
framers of the 1987 Constitution likewise recognized that bank accounts are not
covered by either the right to information under Section 7, Article III or under the
requirement of full public disclosure under Section 28, Article II. Unless the Bank
Secrecy Act is repealed or amended, the legal order is obliged to conserve the
absolutely confidential nature of Philippine bank deposits.
Any exception to the rule of absolute confidentiality must be specifically legislated.
Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby these bank
accounts may be examined by "any person, government official, bureau or office";
namely when: (1) upon written permission of the depositor; (2) in cases of
impeachment; (3) the examination of bank accounts is upon order of a competent
court in cases of bribery or dereliction of duty of public officials; and (4) the money
deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No.
3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this Court as
constituting an additional exception to the rule of absolute confidentiality, and there
have been other similar recognitions as well.
The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the
AMLC may inquire into a bank account upon order of any competent court in cases
of violation of the AMLA, it having been established that there is probable cause that
the deposits or investments are related to unlawful activities as defined in Section
3(i) of the law, or a money laundering offense under Section 4 thereof. Further, in
instances where there is probable cause that the deposits or investments are related
to kidnapping for ransom, certain violations of the Comprehensive Dangerous
Drugs Act of 2002, hijacking and other violations under R.A. No. 6235, destructive
arson and murder, then there is no need for the AMLC to obtain a court order before
it could inquire into such accounts.
It cannot be successfully argued the proceedings relating to the bank inquiry order
under Section 11 of the AMLA is a "litigation" encompassed in one of the exceptions
to the Bank Secrecy Act which is when "the money deposited or invested is the
subject matter of the litigation." The orientation of the bank inquiry order is simply
to serve as a provisional relief or remedy. As earlier stated, the application for such
does not entail a full-blown trial.
Nevertheless, just because the AMLA establishes additional exceptions to the Bank
Secrecy Act it does not mean that the later law has dispensed with the general
principle established in the older law that "[a]ll deposits of whatever nature with
banks or banking institutions in the Philippines x x x are hereby considered as of an
absolutely confidential nature." Indeed, by force of statute, all bank deposits are
absolutely confidential, and that nature is unaltered even by the legislated
exceptions referred to above. There is disfavor towards construing these exceptions
in such a manner that would authorize unlimited discretion on the part of the
government or of any party seeking to enforce those exceptions and inquire into
bank deposits. If there are doubts in upholding the absolutely confidential nature of
bank deposits against affirming the authority to inquire into such accounts, then
such doubts must be resolved in favor of the former. Such a stance would persist
unless Congress passes a law reversing the general state policy of preserving the
absolutely confidential nature of Philippine bank accounts. (Citations omitted,
emphasis supplied)
From the foregoing disquisition, we extract the following principles:
1. The Constitution did not allocate specific rights peculiar to bank deposits;
2. The general rule of absolute confidentiality is simply statutory,30i.e. not specified
in the Constitution, which has been affirmed in jurisprudence;31
3. Exceptions to the general rule of absolute confidentiality have been carved out by
the Legislature which legislation have been sustained, albeit subjected to heightened
scrutiny by the courts;32 and
4. One such legislated exception is Section 11 of the AMLA.
The warning in Eugenio that an ex-parte proceeding authorizing the government to
inspect certain bank accounts or investments without notice to the depositor would
have significant implications on the right to privacy still does not preclude such a
bank inquiry order to be allowed by specific legislation as an exception to the
general rule of absolute confidentiality of bank deposits.
We thus subjected Section 11 of the AMLA to heightened scrutiny and found
nothing arbitrary in the allowance and authorization to AMLC to undertake an
inquiry into certain bank accounts or deposits. Instead, we found that it provides
safeguards before a bank inquiry order is issued, ensuring adherence to the general
state policy of preserving the absolutely confidential nature of Philippine bank
accounts:
(1) The AMLC is required to establish probable cause as basis for its ex-
parte application for bank inquiry order;
(2) The CA, independent of the AMLC's demonstration of probable cause, itself
makes a finding of probable cause that the deposits or investments are related to an
unlawful activity under Section 3(i) or a money laundering offense under Section 4
of the AMLA;
(3) A bank inquiry court order ex-parte for related accounts is preceded by a bank
inquiry court order ex-parte for the principal account which court order ex-parte for
related accounts is separately based on probable cause that such related account is
materially linked to the principal account inquired into; and
(4) The authority to inquire into or examine the main or principal account and the
related accounts shall comply with the requirements of Article III, Sections 2 and 3 of
the Constitution.
The foregoing demonstrates that the inquiry and examination into the bank account
are not undertaken whimsically and solely based on the investigative discretion of
the AMLC. In particular, the requirement of demonstration by the AMLC, and
determination by the CA, of probable cause emphasizes the limits of such
governmental action. We will revert to these safeguards under Section 11 as we
specifically discuss the CA's denial of SPCMB's letter request for information
concerning the purported issuance of a bank inquiry order involving its accounts.
First. The AMLC and the appellate court are respectively required to demonstrate
and ascertain probable cause. Ret. Lt. Gen. Ligot, et al. v. Republic of the
Philippines,33 which dealt with the adjunct provisional remedy of freeze order under
Section 10 of the AMLA, defined probable cause, thus:
The probable cause required for the issuance of a freeze order differs from the
probable cause required for the institution of a criminal action, xxx.
As defined in the law, the probable cause required for the issuance of a freeze order
refers to "such facts and circumstances which would lead a reasonably discreet,
prudent or cautious man to believe that an unlawful activity and/or money
laundering offence is about to be, is being or has been committed and that the
account or any monetary instrument or property subject thereof sought to be
frozen is in any way related to said unlawful activity and/or money laundering
offense."
In other words, in resolving the issue of whether probable cause exits, the CA's
statutorily-guided determination's focus is not on the probable commissions of an
unlawful activity (or money laundering) that the office of the Ombudsman has
already determined to exist, but on whether the bank accounts, assets, or other
monetary instruments sought to be frozen are in any way related to any of the illegal
activities enumerated under R.A. 9160, as amended. Otherwise stated, probable
cause refers to the sufficiency of the relation between an unlawful activity and the
property or monetary instrument which is the focal point of Section 10 of RA No.
9160, as amended. xxx. (Emphasis supplied)
Second. As regards SPCMB's contention that the bank inquiry order is in the nature
of a general warrant, Eugenio already declared that Section 11, even with the
allowance of an ex parte application therefor, "is not a search warrant or warrant of
arrest as it contemplates a direct object but not the seizure of persons or
property."34 It bears repeating that the ''bank inquiry order" under Section 11 is a
provisional remedy to aid the AMLC in the enforcement of the AMLA.
Third. Contrary to the stance of SPCMB, the bank inquiry order does not contemplate
that SPCMB be first impleaded in a money laundering case already filed before the
courts:
We are unconvinced by this proposition, and agree instead with the then Solicitor
General who conceded that the use of the phrase "in cases of' was unfortunate, yet
submitted that it should be interpreted to mean "in the event there are violations" of
the AMLA, and not that there are already cases pending in court concerning such
violations. If the contrary position is adopted, then the bank inquiry order would be
limited in purpose as a tool in aid of litigation of live cases, and wholly inutile as a
means for the government to ascertain whether there is sufficient evidence to sustain
an intended prosecution of the account holder for violation of the AMLA. Should
that be the situation, in all likelihood the AMLC would be virtually deprived of its
character as a discovery tool, and thus would become less circumspect in filing
complaints against suspect account holders. After all, under such set-up the
preferred strategy would be to allow or even encourage the indiscriminate filing of
complaints under the AMLA with the hope or expectation that the evidence of
money laundering would somehow .surface during the trial. Since the AMLC could
not make use of the bank inquiry order to determine whether there is evidentiary
basis to prosecute the suspected malefactors, not filing any case at all would not be
an alternative. Such unwholesome set-up should not come to pass. Thus Section 11
cannot be interpreted in a way that would emasculate the remedy it has established
and encourage the unfounded initiation of complaints for money
laundering.35 (Citation omitted)
Guided as we are by prior holdings, and bound as we are by the requirements for
issuance of a bank inquiry order under Section 11 of the AMLA, we are hard pressed
to declare that it violates SPCMB's right to privacy.
Nonetheless, although the bank inquiry order ex-parte passes constitutional muster,
there is nothing in Section 11 nor the implementing rules and regulations of the
AMLA which prohibits the owner of the bank account, as in his instance SPCMB, to
ascertain from the CA, post issuance of the bank inquiry order ex-parte, if his account
is indeed the subject of an examination. Emphasized by our discussion of the
safeguards under Section 11 preceding the issuance of such an order, we find that
there is nothing therein which precludes the owner of the account from challenging
the basis for the issuance thereof.
The present controversy revolves around the issue of whether or not the appellate
court, through the Presiding Justice, gravely abused its discretion when it effectively
denied SPCMB's letter-request for confirmation that the AMLC had applied (ex-
parte) for, and was granted, a bank inquiry order to examine SPCMB's bank accounts
relative to the investigation conducted on Vice-President Binay's accounts.
We recall the Presiding Justice's letter to SPCMB categorically stating that "under the
rules, the Office of the Presiding Justice is strictly mandated not to disclose, divulge,
or communicate to anyone directly or indirectly, in any manner or by any means, the
fact of the filing of the petition brought before [the Court of Appeals] by the
[AMLC], its contents and even its entry in the logbook." Note that the letter did not
cite the aforementioned rules that were supposedly crystal clear to foreclose
ambiguity. Note further that Rules 10.c.3 and 10.d of the IRR on Authority to File
Petitions for Freeze Order provides that:
Rule 10.c. Duty of Covered Institutions upon receipt thereof.
Rule 10.c.1. Upon receipt of the notice of the freeze order, the covered institution
concerned shall immediately freeze the monetary instrument or property and related
accounts subject thereof.
Rule 10.c.2. The covered institution shall likewise immediately furnish a copy of the
notice of the freeze order upon the owner or holder of the monetary instrument or
property or related accounts subject thereof.
Rule 10.c.3. Within twenty-four (24) hours from receipt of the freeze order, the
covered institution concerned shall submit to the Court of Appeals and the AMLC,
by personal delivery, a detailed written return on the freeze order, specifying all the
pertinent and relevant information which shall include the following:
(a) the account numbers;
(b) the names of the account owners or holders;
(c) the amount of the monetary instrument, property or related accounts as of the
time they were frozen;
(d) all relevant information as to the nature of the monetary instrument or property;
(e) any information on the related accounts pertaining to the monetary instrument or
property subject of the freeze order; and
(f) the time when the freeze thereon took effect.
Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon
verification by the covered institution that the related accounts originated from
and/or are materially linked to the monetary instrument or property subject of the
freeze order, the covered institution shall freeze these related accounts wherever
these may be found.
The return of the covered institution as required under Rule 10.c.3 shall include the
fact of such freezing and an explanation as to the grounds for the identification of
the related accounts.
If the related accounts cannot be determined within twenty-four (24) hours from
receipt of the freeze order due to the volume and/or complexity of the transactions
or any other justifiable factor(s), the covered institution shall effect the freezing of
the related accounts, monetary instruments and properties as soon as practicable
and shall submit a supplemental return thereof to the Court of Appeals and the
AMLC within twenty-four (24) hours from the freezing of said related accounts,
monetary instruments and properties.
The foregoing rule, in relation to what Section 11 already provides, signifies that ex-
parte bank inquiry orders on related accounts may be questioned alongside, albeit
subsequent to, the issuance of the initial freeze order of the subject bank accounts.
The requirements and procedure for the issuance of the order, including the return
to be made thereon lay the grounds for judicial review thereof. We expound.
An act of a court or tribunal can only be considered tainted with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as
is equivalent to lack of jurisdiction. It is well-settled that the abuse of discretion to be
qualified as "grave" must be so patent or gross as to constitute an evasion of a
positive duty or a virtual refusal to perform the duty or to act at all in contemplation
of law.36 In this relation, case law states that not every error in the proceedings, or
every erroneous conclusion of law or fact, constitutes grave abuse of
discretion.37 The degree of gravity, as above-described, must be met.
That the propriety of the issuance of the bank inquiry order is a justiciable issue
brooks no argument. A justiciable controversy refers to an existing case or
controversy that is appropriate or ripe for judicial determination, not one that is
conjectural or merely anticipatory.38
As previously adverted to in our discussion on the right to privacy, the clash of
privacy rights and interest against that of the government's is readily apparent.
However, the statutorily enshrined general rule on absolute confidentiality of bank
accounts remains. Thus, the safeguards instituted in Section II of the AMLA and
heretofore discussed provide for certain well defined limits, as in the language
of Baker v. Carr, "judicially discoverable standards" for determining the validity of
the exercise of such discretion by the appellate court in denying the letter-request of
SPCMB.39 In short, Section II itself provides the basis for the judicial inquiry and
which the owner of the bank accounts subject of the AMLC inquiry may invoke.
Undeniably, there is probable and preliminary governmental action against SPCMB
geared towards implementation of the AMLA directed at SPCMB's property,
although there is none, as yet, physical seizure thereof, as in freezing of bank
accounts under Section 10 of the AMLA.40 Note, however, that the allowance to
question the bank inquiry order we carve herein is tied to the appellate court's
issuance of a freeze order on the principal accounts. Even in Eugenio, while declaring
that the bank inquiry order under Section II then required prior notice of such to the
account owner, we recognized that the determination of probable cause by the
appellate court to issue the bank inquiry order can be contested. As presently
worded and how AMLC functions are designed under the AMLA, the occasion for
the issuance of the freeze order upon the actual physical seizure of the investigated
and inquired into bank account, calls into motions the opportunity for the bank
account owner to then question, not just probable cause for the issuance of the freeze
order under Section I 0, but, to begin with, the determination of probable cause for
an ex-parte bank inquiry order into a purported related account under Section II.
In enacting the amendment to Section II of the AMLC, the legislature saw it fit to
place requirements before a bank inquiry order may be issued. We discussed these
requirements as basis for a valid exception to the general rule on absolute
confidentiality of bank accounts. However, these very safe guards allow SPCMB,
post issuance of the ex-parte bank inquiry order, legal bases to question the propriety
of such issued order, if any. To emphasize, this allowance to the owner of the bank
account to question the bank inquiry order is granted only after issuance of the
freeze order physically seizing the subject bank account. It cannot be undertaken
prior to the issuance of the freeze order.
While no grave abuse of discretion could be ascribed on the part of the appellate
court when it explained in its letter that petitions of such nature "is strictly
confidential in that when processing the same, not even the handling staff members
of the Office of the Presiding Justice know or have any knowledge who the subject
bank account holders are, as well as the bank accounts involved," it was incorrect
when it declared that "under the rules, the Office of the Presiding Justice is strictly
mandated not to disclose, divulge, or communicate to anyone directly or indirectly,
in any manner or by any means, the fact of the filing of any petition brought before
[the Court of Appeals] by the Anti-Money Laundering Council, its contents and even
its entry in the logbook." As a result, the appellate court effectively precluded and
prevented SPCMB of any recourse, amounting to a denial of SPCMB's letter request.
We cannot overemphasize that SPCMB, as the owner of the bank account which may
be the subject of inquiry of the AMLC, ought to have a legal remedy to question the
validity and propriety of such an order by the appellate court under Section 11 of the
AMLA even if subsequent to the issuance of a freeze order. Moreover, given the
scope of inquiry of the AMLC, reaching and including even related accounts, which
inquiry into specifies a proviso that: "[t]hat the procedure for the ex-parte application
of the ex-parte court order for the principal account shall be the same with that of the
related accounts," SPCMB should be allowed to question the government intrusion.
Plainly, by implication, SPCMB can demonstrate the absence of probable cause, i.e.
that it is not a related account nor are its accounts materially linked to the principal
account being investigated.41
In BSB Group, Inc. v. Go,42 we recounted the objective of the absolute confidentiality
rule which is protection from unwarranted inquiry or investigation if the purpose of
such inquiry or investigation is merely to determine the existence and nature, as well
as the amount of the deposit in any given bank account:
xxx. There is, in fact, much disfavor to construing these primary and supplemental
exceptions in a manner that would authorize unbridled discretion, whether
governmental or otherwise, in utilizing these exceptions as authority for
unwarranted inquiry into bank accounts. It is then perceivable that the present legal
order is obliged to conserve the absolutely confidential nature of bank deposits.
The measure of protection afforded by the law has been explained in China Banking
Corporation v. Ortega. That case principally addressed the issue of whether the
prohibition against an examination of bank deposits precludes garnishment in
satisfaction of a judgment. Ruling on that issue in the negative, the Court found
guidance in the relevant portions of the legislative deliberations on Senate Bill No.
351 and House Bill No. 3977, which later became the Bank Secrecy Act, and it held
that the absolute confidentiality rule in R.A. No. 1405 actually aims at protection
from unwarranted inquiry or investigation if the purpose of such inquiry or
investigation is merely to determine the existence and nature, as well as the amount
of the deposit in any given bank account. Thus,
x x x The lower court did not order an examination of or inquiry into the deposit of
B&B Forest Development Corporation, as contemplated in the law. It merely
required Tan Kim Liong to inform the court whether or not the defendant B&B
Forest Development Corporation had a deposit in the China Banking Corporation
only for purposes of the garnishment issued by it, so that the bank would hold the
same intact and not allow any withdrawal until further order. It will be noted from
the discussion of the conference committee report on Senate Bill No. 351 and House
Bill No. 3977 which later became Republic Act No. 1405, that it was not the intention
of the lawmakers to place banks deposits beyond the reach of execution to satisfy a
final judgment Thus:
x x x Mr. Marcos: Now, for purposes of the record, I should like the Chairman of the
Committee on Ways and Means to clarify this further. Suppose an individual has a
tax case. He is being held liable by the Bureau of Internal Revenue [(BIR)] or, say,
P1,000.00 worth of tax liability, and because of this the deposit of this individual [has
been] attached by the [BIR].
Mr. Ramos: The attachment will only apply after the court has pronounced sentence
declaring the liability of such person. But where the primary aim is to determine
whether he has a bank deposit in order to bring about a proper assessment by the
[BIR], such inquiry is not allowed by this proposed law.
Mr. Marcos: But under our rules of procedure and under the Civil Code, the
attachment or garnishment of money deposited is allowed. Let us assume for
instance that there is a preliminary attachment which is for garnishment or for
holding liable all moneys deposited belonging to a certain individual, but such
attachment or garnishment will bring out into the open the value of such deposit. Is
that prohibited by... the law?
Mr. Ramos: It is only prohibited to the extent that the inquiry... is made only for the
purpose of satisfying a tax liability already declared for the protection of the right in
favor of the government; but when the object is merely to inquire whether he has a
deposit or not for purposes of taxation, then this is fully covered by the law. x x x
Mr. Marcos: The law prohibits a mere investigation into the existence and the
amount of the deposit.
Mr. Ramos: Into the very nature of such deposit. x x x (Citations omitted)
What is reflected by the foregoing disquisition is that the law plainly prohibits a
mere investigation into the existence and the amount of the deposit. We relate the
principle to SPCMB's relationship to the reported principal account under
investigation, one of its clients, former Vice President Binay. SPCMB as the owner of
one of the bank accounts reported to be investigated by the AMLC for probable
money laundering offenses should be allowed to pursue remedies therefrom where
there are legal implications on the inquiry into its accounts as a law firm. While we
do not lapse into conjecture and cannot take up the lance for SPCMB on probable
violation of the attorney-client privilege based on pure speculation, the extent of
information obtained by the AMLC concerning the clients of SPCMB has not been
fully drawn and sufficiently demonstrated. At the same time, the owner of bank
accounts that could be potentially affected has the right to challenge whether the
requirements for issuance of the bank inquiry order were indeed complied with
given that such has implications on its property rights. In this regard, SPCMB's
obeisance to promulgated rules on the matter could have afforded it a remedy, even
post issuance of the bank inquiry order.
Rule 10.b. of the IRR defines probable cause as "such facts and circumstances which
would lead a reasonably discreet, prudent or cautious man to believe that an
unlawful activity and/or a money laundering offense is about to be, is being or has
been committed and that the account or any monetary instrument or property
sought to be frozen is in any way related to said unlawful activity and/or money
laundering offense." Evidently, the provision only refers to probable cause for freeze
orders under Section 10 of the AMLA. From this we note that there is a
glaring lacunae in our procedural rules concerning the bank inquiry order under
Section 11. Despite the advent of RA No. 10167, amending Section 11 of the AMLA,
we have yet to draft additional rules corresponding to the ex-parte bank inquiry
order under Section 11. A.M. No. 05-11-04-SC entitled "Rule of Procedure in Cases of
Civil Forfeiture, Asset Preservation, and Freezing of Monetary Instrument, Property,
or Proceeds Representing, Involving, or Relating to an Unlawful Activity or Money
Laundering Offense Under Republic Act No. 9160, as Amended," only covers what is
already provided in the title. As we have already noted, the bank inquiry order must
likewise be governed by rules specific to its issuance where the AMLC regularly
invokes this provision and which, expectedly clashes with the rights of bank account
holders.
Apart from Section 2, Rule IV of the 2009 Internal Rules of the CA (IRCA) reads:
SEC. 2. Action by the Presiding Justice or Executive Justice. When a petition
involves an urgent matter, such as an application for writ of habeas corpus, amparo or
habeas data or for temporary restraining order, and there is no way of convening
the Raffle Committee or calling any of its members, the Presiding Justice or the
Executive Justice, as the case may be, or in his/her absence, the most senior Justice
present, may conduct the raffle or act on the petition, subject to raffle in the latter
case on the next working day in accordance with Rule III hereof.
(AMLA cases are limited to the first three most senior Justices as stated in the law
and are raffled by the Chairmen of the First, Second and Third Divisions to the
members of their Divisions only.)
Nothing in the IRCA justifies the disallowance to SPCMB of information and/or
court records or proceedings pertaining to the possible bank inquiry order covering
its bank deposits or investment.
We note that the Presiding Justice's reply to the request for comment of SPCMB on
the existence of a petition for bank inquiry order by the AMLC covering the latter's
account only contemplates the provisions of Section 10 of the AMLA, its IRR and the
promulgated rules thereon. Such immediate and definitive foreclosure left SPCMB
with no recourse on how to proceed from what it perceived to be violation of its
rights as owner of the bank account examined. The reply of the Presiding Justice
failed to take into consideration Section 54 of A.M. No. 05-11-04-SC on Notice of
Freeze Order which reads:
SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be
served personally, in the same manner provided for the service of the asset
preservation order in Section 14 of this Rule, upon the respondent or any person
acting in his behalf and such covered institution or government agency. The court
shall notify also such party in interest as may have appeared before the
court. (Emphasis supplied)
We relate this Section 54 to the already cited Rule 10.d of the IRR
Rule 10.d. Upon receipt of the freeze order issued by the Court of Appeals and upon
verification by the covered institution that the related accounts originated from
and/or are materially linked to the monetary instrument or property subject of the
freeze order, the covered institution shall freeze these related accounts wherever
these may be found.
The return of the covered institution as required under Rule 10.c.3 shall include
the fact of such freezing and an explanation as to the grounds for the
identification of the related accounts.
If the related accounts cannot be determined within twenty-four (24) hours from
receipt of the freeze order due to the volume and/or complexity of the transactions
or any other justifiable factor(s), the covered institution shall effect the freezing of
the related accounts, monetary instruments and properties as soon as practicable
and shall submit a supplemental return thereof to the Court of Appeals and the
AMLC within twenty-four (24) hours from the freezing of said related accounts,
monetary instruments and properties. (Emphasis supplied)
demonstrating that the return of the Freeze Order must provide an explanation as to
the grounds for the identification of the related accounts, or the requirement of
notice to a party in interest affected thereby whose bank accounts were examined.
This necessarily contemplates the procedure for a prior bank inquiry order which we
ought to provide for.
For exact reference, we cite A.M. No. 05-11-04-SC, Title VIII on Petitions for Freeze
Order in the CA which certain pertinent provisions we adopt and apply suppletorily
as a separate Title on Petitions for Bank Inquiry Order:
TITLE VIII
PETITIONS FOR FREEZE ORDER IN THE COURT OF APPEALS
SEC. 43. Applicability. - This Rule shall apply to petitions for freeze order in the Court
of Appeals. The 2002 Internal Rules of the Court of Appeals, as amended, shall apply
suppletorily in all other aspects.
xxxx
SEC. 46. Contents of the petition. - The petition shall contain the following allegations:
(a) The name and address of the respondent;
(b) A specific description with particularity of the monetary instrument,

property or proceeds, their location, the name of the owner, holder,
lienholder or possessor, if known;
(c) The grounds relied upon for the issuance of a freeze order; and
(d) The supporting evidence showing that the subject monetary instrument,
property, or proceeds are in any way related to or involved in an unlawful
activity as defined under Section 3(i) of Republic Act No. 9160, as amended
by Republic Act No. 9194.
The petition shall be filed in seven clearly legible copies and shall be
accompanied by clearly legible copies of supporting documents duly
subscribed under oath.
xxxx
SEC. 49. Confidentiality; prohibited disclosure. - The logbook and the entries therein
shall be kept strictly confidential and maintained under the responsibility of the
Presiding Justice or the Executive Justices, as the case may be. No person, including
Court personnel, shall disclose, divulge or communicate to anyone directly or
indirectly, in any manner or by any means, the fact of the filing of the petition for
freeze order, its contents and its entry in the logbook except to those authorized by
the Court. Violation shall constitute contempt of court.
xxxx
SEC. 51. Action by the Court of Appeals.- All members of the Division of the Court to
which the assigned justice belongs shall act on the petition within twenty-four hours
after its filing. However, if one member of the Division is not available, the assigned
justice and the other justice present shall act on the petition. If only the assigned
justice is present, he shall act alone. The action of the two justices or of the assigned
justice alone, as the case may be, shall be forthwith promulgated and thereafter
submitted on the next working day to the absent member or members of the
Division for ratification, modification or recall.
If the Court is satisfied from the verified allegations of the petition that there exists
probable cause that the monetary instrument, property, or proceeds are in any way
related to or involved in any unlawful activity as defined in Section 3(i) of Republic
Act No. 9160, as amended by Republic Act No. 9194, it shall issue ex parte a freeze
order as hereinafter provided.
If the Court finds no substantial merit in the petition, it shall dismiss the petition
outright, stating the specific reasons for such dismissal.
When the unanimous vote of the three justices of the Division cannot be obtained,
the Presiding Justice or the Executive Justice shall designate two justices by raffle
from among the other justices of the first three divisions to sit temporarily with them
forming a special division of five justices. The concurrence of a majority of such
special division shall be required for the pronouncement of a judgment or resolution.
SEC. 52. Issuance, form and contents of the freeze order - The freeze order shall:
(a) issue in the name of the Republic of the Philippines represented by the Anti-
Money Laundering Council;
(b) describe with particularity the monetary instrument, property or proceeds

frozen, as well as the names of their owner or owners; and
(c) direct the person or covered institution to immediately freeze the subject
monetary instrument, property or proceeds or its related web of accounts.
SEC. 53. Freeze order.
(a) Effectivity; post issuance hearing. - The freeze order shall be effective
immediately for a period of twenty days. Within the twenty-day period, the
court shall conduct a summary hearing, with notice to the parties, to
determine whether or not to modify or lift the freeze order, or extend its
effectivity as hereinafter provided.
(b) Extension. - On motion of the petitioner filed before the expiration of twenty
days from issuance of a freeze order, the court may for good cause extend its
effectivity for a period not exceeding six months.
SEC. 54. Notice of freeze order.- The Court shall order that notice of the freeze order be
served personally, in the same manner provided for the service of the asset
preservation order in Section 14 of this Rule, upon the respondent or any person
acting in his behalf and such covered institution or government agency. The court
shall notify also such party in interest as may have appeared before the court.
SEC. 55. Duty of respondent, covered institution or government agency upon receipt of
freeze order. - Upon receipt of a copy of the freeze order, the respondent, covered
institution or government agency shall immediately desist from and not allow any
transaction, withdrawal, deposit, transfer, removal, conversion, other movement or
concealment the account representing, involving or relating to the subject monetary
instrument, property, proceeds or its related web of accounts.
SEC. 56. Consolidation with the pending civil forfeiture proceedings - After the post-
issuance hearing required in Section 53, the Court shall forthwith remand the case
and transmit the records to the regional trial court for consolidation with the
pending civil forfeiture proceeding.
SEC. 57. Appeal.- Any party aggrieved by the decision or ruling of the court may
appeal to the Supreme Court by petition for review on certiorari under Rule 45 of the
Rules of Court. The appeal shall not stay the enforcement of the subject decision or
final order unless the Supreme Court directs otherwise.
A reverse situation affords us a clearer picture of the arbitrary and total preclusion of
SPCMB to question the bank inquiry order of the appellate court. In particular, in an
occasion where the appellate court denies the AMLC's ex-parte application for a bank
inquiry order under Section 11, the AMLC can question this denial and assail such
an order by the appellate court before us on grave abuse of discretion. Among
others, the AMLC can demonstrate that it has established probable cause for its
issuance, or if the situation contemplates a denial of an application for a bank
inquiry order into a related account, the AMLC can establish that the account
targeted is indeed a related account. The resolution on these factual and legal issues
ought to be reviewable, albeit post issuance of the Freeze Order, akin to the
provision of an Appeal to the Supreme Court under Section 57 of A.M. No. 05-11-04-
SC.
Palpably, the requirement to establish probable cause is not a useless supposition. To
establish and demonstrate the required probable cause before issuance of the bank
inquiry and the freeze orders is a screw on which the AMLC's intrusive functions
turns. We are hard pressed to justify a disallowance to an aggrieved owner of a bank
account to avail of remedies.
That there are no specific rules governing the bank inquiry order does not signify
that the CA cannot confirm to the actual owner of the bank account reportedly being
investigated whether it had in fact issued a bank inquiry order for covering its
accounts, of course after the issuance of the Freeze Order. Even in Ligot,43 we held
that by implication, where the law did not specify, the owner of the "frozen"
property may move to lift the freeze order issued under Section 10 of the AMLA if
he can show that no probable cause exists or the 20-day period of the freeze order
has already lapsed without any extension being requested from and granted by the
CA. Drawing a parallel, such a showing of the absence of probable cause ought to be
afforded SPCMB.
Ligot clarifies that "probable cause refers to the sufficiency of the relation between an
unlawful activity and the property or monetary instrument which is the focal point
of Section 10 of the AMLA, as amended." This same probable cause is likewise the
focal point in a bank inquiry order to further determine whether the account under
investigation is linked to unlawful activities and/or money laundering offense.
Thus, the specific applicability of Sections 52, 53, 54 and 57 Title VIII of A.M. No. 05-
11-04-SC covering the following: (1) Issuance, Form and Content of the Freeze Order;
(2) Effectivity of the Freeze Order and Post Issuance Hearing thereon; (3) Notice of
the Freeze Order; and (4) Appeal from the Freeze Order as separate Rules for
Petitions to Question the Bank Inquiry Order. And as held in Eugenio which now
applies to the present Section 11 of the AMLA:
Although oriented towards different purposes, the freeze order under Section 10 and
the bank inquiry order under Section 11 are similar in that they are extraordinary
provisional reliefs which the AMLC may avail of to effectively combat and prosecute
money laundering offenses. Crucially, Section 10 uses specific language to authorize
an ex parte application for the provisional relief therein, a circumstance absent in
Section 11. xxx.44
The cited rules cover and approximate the distinction made by Eugenio in declaring
that the bank inquiry order is not a search warrant, and yet there are instituted
requirements for the issuance of these orders given that such is now allowed ex-parte:
The Constitution and the Rules of Court prescribe particular requirements attaching
to search warrants that are not imposed by the AMLA with respect to bank inquiry
orders. A constitutional warrant requires that the judge personally examine under
oath or affirmation the complainant and the witnesses he may produce, such
examination being in the form of searching questions and answers. Those are
impositions which the legislative did not specifically prescribe as to the bank inquiry
order under the AMLA and we cannot find sufficient legal basis to apply them to
Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or
warrant of arrest as it contemplates a direct object but not the seizure of persons or
property.
Even as the Constitution and the Rules of Court impose a high procedural standard
for the determination of probable cause for the issuance of search warrants which
Congress chose not to prescribe for the bank inquiry order under the AMLA,
Congress nonetheless disallowed ex parte applications for the inquiry order. We can
discern that in exchange for these procedural standards normally applied to search
warrants, Congress chose instead to legislate a right to notice and a right to be heard
characteristics of judicial proceedings which are not ex parte. Absent any
demonstrable constitutional infirmity, there is no reason for us to dispute such
legislative policy choices.45
Thus, as an ex-parte bank inquiry order which Congress has now specifically
allowed, the owner of a bank account post issuance of the freeze order has an
opportunity under the Rules to contest the establishment of probable cause.
Again, we cannot avoid the requirement-limitation nexus in Section 11. As it affords
the government authority to pursue a legitimate state interest to investigate money
laundering offenses, such likewise provides the limits for the authority given.
Moreover, allowance to the owner of the bank account, post issuance of the bank
inquiry order and the corresponding freeze order, of remedies to question the order,
will not forestall and waylay the government's pursuit of money launderers. That
the bank inquiry order is a separate from the freeze order does not denote that it
cannot be questioned. The opportunity is still rife for the owner of a bank account to
question the basis for its very inclusion into the investigation and the corresponding
freezing of its account in the process.
As noted in Eugenio, such an allowance accorded the account holder who wants to
contest the issuance of the order and the actual investigation by the AMLC, does not
cast an unreasonable burden since the bank inquiry order has already been issued.
Further, allowing for notice to the account holder should not, in any way,
compromise the integrity of the bank records subject of the inquiry which remain in
the possession and control of the bank. The account holder so notified remains
unable to do anything to conceal or cleanse his bank account records of suspicious or
anomalous transactions, at least not without the whole hearted cooperation of the
bank, which inherently has no vested interest to aid the account holder in such
manner. Rule 10.c.46 of the IRR provides for Duty of the Covered Institution
receiving the Freeze Order. Such can likewise be made applicable to covered
institutions notified of a bank inquiry order.
On the other hand, a scenario where SPCMB or any account holder under
examination later shows that the bank inquiry order was without the required
probable cause, the information obtained through the account reverts to, and
maintains, its confidentiality. In short, any and all information obtained therein by
the AMLC remains confidential, as if no examination or inquiry on the bank account
or investments was undertaken. The foregoing consequence can be added as a
Section in the Rules entitled "Effect of absence of probable cause."
All told, we affirm the constitutionality of Section 11 of the AMLA allowing the ex-
parte application by the AMLC for authority to inquire into, and examine, certain
bank deposits and investments.
Section 11 of the AMLA providing for the ex-parte bank deposit inquiry is
constitutionally firm for the reasons already discussed. The ex-parte inquiry shall be
upon probable cause that the deposits or investments are related to an unlawful
activity as defined in Section 3(i) of the law or a money laundering offense under
Section 4 of the same law. To effect the limit on the ex-parte inquiry, the petition
under oath for authority to inquire, must, akin to the requirement of a petition for
freeze order enumerated in Title VIII of A.M. No. 05-11-04-SC, contain the name and
address of the respondent; the grounds relied upon for the issuance of the order of
inquiry; and the supporting evidence that the subject bank deposit are in any way
related to or involved in an unlawful activity.
If the CA finds no substantial merit in the petition, it shall dismiss the petition
outright stating the specific reasons for such denial. If found meritorious and there is
a subsequent petition for freeze order, the proceedings shall be governed by the
existing Rules on Petitions for Freeze Order in the CA. From the issuance of a freeze
order, the party aggrieved by the ruling of the court may appeal to the Supreme
Court by petition for review on certiorari under Rule 45 of the Rules of Court raising
all pertinent questions of law and issues, including the propriety of the issuance of a
bank inquiry order. The appeal shall not stay the enforcement of the subject decision
or final order unless the Supreme Court directs otherwise. The CA is directed to
draft rules based on the foregoing discussions to complement the existing A.M. No.
05-11-04-SC Rule of Procedure in Cases of Civil Forfeiture, Asset Preservation, and
Freezing of Monetary Instrument, Property, or Proceeds Representing, Involving, or
Relating to an Unlawful Activity or Money Laundering Offense under Republic Act
No. 9160, as Amended for submission to the Committee on the Revision of the Rules
of Court and eventual approval and promulgation of the Court en banc.
WHEREFORE, the petition is DENIED. Section 11 of Republic Act No. 9160, as
amended, is declared VALID and CONSTITUTIONAL.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Bersamin, Del Castillo,
Mendoza, Reyes, Perlas-Bernabe, and Jardeleza, JJ., concur.
Peralta, J., no part.
Leonen, J., see separate concurring opinion.
Caguioa, J., on leave.
Endnotes:
* (On Leave).
1Rollo, pp. 3-46.
2 Fact-finding as preliminary investigation based on administrative supervision and
powers to investigate government officials, Section 5, Article XI of the Constitution,

Ombudsman Act of 1990.
3 In aid of legislation under Section 21, Article VI of the Constitution.
4Rollo, p. 10
5 Id. at 60.
6 Id. at 51.
7 Id. at 11.
8 Id. at 12-13.
9Dumlao v. Commission on Elections, 184 Phil. 369, 376-377 (1980).
10 Republic Act No. 9160 as amended by RA 10167.
11 CONSTITUTION, Article III, Sec. 1.
12Perez, et al. v. Philippine Telegraph and Telephone Co., et al., 602 Phil. 522, 545 (2009).
13 569 Phil. 98, 120-124 (2008).
14Republic of the Phils. v. Glasgow Credit and Collection Services, Inc., et al. 566 Phil. 94,
106-107 (2008).
15 Supra note 13 at 124-125.
16 Supra note 11 & 12.
17 Supra note 13 at 126.
18 379 Phil. 165 (2000).
19 Id. at 196-198.
20 G. R. No. 193964, December 2, 2015.
21 Rule 6.b. When the AMLC finds, after investigation, that there is probable cause to
charge any person with a money laundering offense under Section 4 of the AMLA,
as amended, it shall cause a complaint to be filed, pursuant to Section 7 (4) of the
AMLA, as amended, before the Department of Justice or the Office of the
Ombudsman, which shall then conduct the preliminary investigation of the case.
22 Rule 6.c If after due notice and hearing in the preliminary investigation
proceedings, the Department of Justice, or the Office of the Ombudsman, as the case
may be, finds probable cause for a money laundering offense, it shall file the
necessary information before the Regional Trial Courts or the Sadiganbayan.
23 Rule 5.a. Jurisdiction of Money Laundering Cases. The Regional Trial Courts
shall have the jurisdiction to try all cases on money laundering. Those committed by
public officers and private persons who are in conspiracy with such public officers
shall be under the jurisdiction of the Sandiganbayan.
23-a 100 Phil. 1098 (1957).
24 Supra note 18 at 198-200.
25 G.R. No. 182573, April 23, 2014, 723 SCRA 512, 522-523.
26 Rule 5.b. Investigation of Money Laundering Offenses.- The AMLC shall
investigate:
(1) suspicious transactions;
(2) covered transactions deemed suspicious after an investigation conducted by the
AMLC;
(3) money laundering activities; and
(4) other violations of the AMLA, as amended.
27 G.R. No. 212140-41, January-21, 2015.
28 Recommended Citation, Robert S. Pasley, Privacy Rights v. Anti-Money Laundering
Enforcement, I 6 N.C. Banking Inst. 147 (2002).

29 Supra note 13 at 127-132.
30 Bank Secrecy Act (BSA) of 1955, RA No. 1405.
31BSB Group, Inc. v. Go, 626 Phil. 501 (2010).
32 Supra note 30 at 513; Sec. 2 of the BSA.
33 705 Phil. 477, 501-502 (2013).
35 Id. at 120.
36Republic of the Philippines v. Roque, 718 Phil. 294, 303 (2013).
37Villanueva v. Mayor Ople, 512 Phil. 187 (2005).
38Velarde v. Social Justice Society, 472 Phil. 285, 302 (2004)
39 369 U.S. 186 (1962), cited in Francisco, Jr. v. The House of Representatives, 460 Phil.
830, 890- 891 (2003).

40See note 13 at 124-125.
41 Implementing Rules and Regulations of RA 9160 as amended by RA 9194 and RA
10167;
Rule 3.e.3. "Related Accounts" are those accounts, the funds and sources of which
originated from and/or are materially linked to the monetary instruments or
properties subject of the freeze order.
Rule 3.e.3.a. Materially linked accounts include but are not limited to the following:
(1) All accounts or monetary instruments belonging to the same person whose
accounts, monetary instruments or properties are the subject of the freeze
order;
(2) All accounts or monetary instruments held, owned or controlled by the

owner or holder of the accounts, monetary instruments or properties subject
of the freeze order, whether such accounts are held, owned or controlled
singly or jointly with another person;
(3) All accounts or monetary instruments the funds of which are transferred to
the accounts, monetary instruments or properties subject of the freeze order
without any legal or trade obligation, purpose or economic justification;
(4) All "In Trust For" (lTF) accounts where the person whose accounts, monetary
instruments or properties are the subject of the freeze order is either the
trustee or the trustor;
(5) All accounts held for the benefit or in the interest of the person whose
accounts, monetary instruments or properties are the subject of the freeze
order;
(6) All accounts or monetary instruments under the name of the immediate
family or household members of the person whose accounts, monetary
instruments or properties are the subject of the freeze order if the amount or
value involved is not commensurate with the business or financial capacity
of the said family or household member;
(7) All accounts of corporate and juridical entities that are substantially owned,
controlled or effectively controlled by the person whose accounts, monetary
instruments or properties are subject of the freeze order;
(8) All shares or units in any investment accounts and/or pooled funds of the
person whose accounts, monetary instruments or properties are subject of
the freeze order; and
(9) All other accounts, shares, units or monetary instruments that are similar,
analogous or identical to any of the foregoing.
42 Supra note 31 at 514-515.
45 Id. at 127.
46Rule 10.c. Duty of Covered Institutions upon receipt thereof. -
Rule 10.c.1. Upon receipt of the notice of the freeze order, the covered institution
concerned shall immediately freeze the monetary instrument or property and related
accounts subject thereof.
Rule 10.c.2. The covered institution shall likewise immediately furnish a copy of the
notice of the freeze order upon the owner or holder of the monetary instrument or
property or related accounts subject thereof.
Rule 10.c.3. Within twenty-four (24) hours from receipt of the freeze order, the
covered institution concerned shall submit to the Court of Appeals and the AMLC,
by personal delivery, a detailed written return on the freeze order, specifying all the
pertinent and relevant information which shall include the following:
(a) the account numbers;
(b) the names of the account owners or holders;
(c) the amount of the monetary instrument, property or related accounts as of

the time they were frozen;
(d) all relevant information as to the nature of the monetary instrument or

property;
(e) any information on the related accounts pertaining to the monetary

instrument or property subject of the freeze order; and
(f) the time when the freeze thereon took effect.
CONCURRING OPINION
LEONEN, J.:
I concur in the result. It is my honor to do so considering that the majority opinion is
the final ponencia for this Court En Banc of our esteemed colleague Justice Jose P.
Perez.
I join the unanimous declaration that, based on the challenges posed by the present
petitions and only within its ambient facts, Section 11 of Republic Act No. 9160 or
the Anti-Money Laundering Act is not unconstitutional. Further, that we are
unanimous in declaring that the depositor has no right to demand that it be notified
of any application or issuance of an order to inquire into his or her bank deposit. The
procedure in the Court of Appeals is ex parte but requires proof of probable cause of
the occurrence of the predicate crime as well as the potential liability of the owner of
the deposit.
After the inquiry of the bank deposits and related accounts within the limitations
contained in the court order, it is still the option of the law enforcers or the Anti-
Money Laundering Council, to proceed to request for a Freeze Order in accordance
with Section 10 of the same law. The depositor is, thus, entitled to be informed only
after the freeze order has been issued. In questioning the freeze order, the depositor
may then raise defenses relating to the existence of sufficient evidence to lead the
court to believe that there is probable cause that a covered crime has occurred, that
the depositor is a participant in the crime, and that the stay of all transactions with
respect to the bank account is essential in order to preserve evidence or to keep the
proceeds of the crime intact for and on behalf of the victims.
I differ with the premises used to arrive at the same conclusion.
I
The numbers on a bank's ledger corresponding to the amounts of money that a
depositor has and its various transactions, especially when digitized, are definitely
not physical. Yet, just because they are not physical does not necessarily mean that
they do not partake of the kinds of "life, liberty, or property"1protected by the due
process clause of the Constitution. Neither should it mean that the numerical
equivalent of the bank's debt to a depositor or the record of its various transactions
have nothing to do with the "persons . . . papers, and effects"2 constitutionally
protected against "unreasonable searches and seizures."3 The majority opinion's
statement that the "inquiry by the [Anti-Money Laundering Council] into certain
bank deposits and investments does not violate substantive due process, there being
no physical seizure of property involved at that stage"4 may have been inadvertent.
It does, however, neglect that the penumbra of rights protected by the due process
clause and the proscription against unreasonable searches and seizures also pertains
to protecting the intangibles essential to human life. Definitely, every liberal
democratic constitutional order has outgrown the archaic concept that life is only
that which can be tangible.
The due process clause is crafted as a proscription. Thus, it states that "[n]o person
shall be deprived of life, liberty, or property without due process of law[.]"5 This
means that there is a sphere of individual existence or a penumbra of individual
autonomy that exists prior to every regulation that should primordially be left
untouched. In other words, the existence of what Louis D. Brandeis and Samuel D.
Warren once called "the right to be let alone"6 is now broadly, though at times
awkwardly referred to roughly as the right to privacy, presumed. Every regulation
therefore that limits this aspect of individuality may be the subject of inquiry that it
does not "deprive" one of their "life, liberty or property" without "due process of
law".
Thus, in the often cited writings of Warren and Brandeis as early as 1890 on the right
to privacy:
That the individual shall have full protection in person and in property is a principle
as old as the common law; but it has been found necessary from time to time to
define anew the exact nature and extent of such protection. Political, social, and
economic changes entail the recognition of new rights, and the common law, in its
eternal youth, grows to meet the demands of society. Thus, in very early times, the
law gave a remedy only for physical interference with life and property, for
trespasses vi et armis. Then the "right to life" served only to protect the subject from
battery in its various forms; liberty meant freedom from actual restraint; and the
right to property secured to the individual his lands and his cattle. Later, there came
a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the
scope of these legal rights broadened; and now the right to life has come to mean the
right to enjoy life, the right to be let alone; the right to liberty secures the exercise
of extensive civil privileges; and the term "property" has grown to comprise every
form of possession intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against
actual bodily injury was extended to prohibit mere attempts to do such injury; that
is, the putting another in fear of such injury. From the action of battery grew that of
assault. Much later there came a qualified protection of the individual against
offensive noises and odors, against dust and smoke, and excessive vibration. The law
of nuisance was developed. So regard for human emotions soon extended the scope
of personal immunity beyond the body of the individual. His reputation, the
standing among his fellow-men, was considered, and the law of slander and libel
arose. Man's family relations became a part of the legal conception of his life, and the
alienation of a wife's affections was held remediable. Occasionally the law halted,
as in its refusal to recognize the intrusion by seduction upon the honor of the family.
But even here the demands of society were met. A mean fiction, the action per quod
servitium amisit, was resorted to, and by allowing damages for injury to the parents'
feelings, an adequate remedy was ordinarily afforded. Similar to the expansion of
the right to life was the growth of the legal conception of property. From corporeal
property arose the incorporeal rights issuing out of it; and then there opened the
wide realm of intangible property, in the products and processes of the mind, as
works of literature and art, goodwill, trade secrets, and trademarks.
This development of the law was inevitable.7 (Citations omitted)
Nothing in the structure of the due process clause limits the protected sphere of
individual existence or autonomy only to the physical or corporeal aspects of life.
After all, as we have long held, life is not limited only to physical
existence.8 Property can be incorporeal.9 Liberty denotes something more than just
freedom from physical restraint.
More fundamentally, the reservation of a very broad sphere of individual privacy or
individual autonomy is implied in the very concept of society governed under a
constitutional and democratic order. The aspects of our humanity and the parts of
our liberty surrendered to the government, in order to assure a functioning society,
should only be as much as necessary for a just society and no more. While the extent
of necessary surrender cannot be determined with precision, our existing doctrine is
that any state interference should neither be arbitrary nor unfair. In many cases, we
have held that due process of law simply means that regulation should both be
reasonable and fair.
Reasonability and fairness is tentatively captured in the twin legal concepts of
substantive and procedural due process respectively. Substantive due process is
usually, though not in all cases, a nuanced means-to-end test. Basically, this means
that the regulation which impinges on individual autonomy is necessary to meet a
legitimate state interest to be protected through means that can logically relate to
achieving that end.10 Procedural due process is succinctly and most descriptively
captured in the idea that in the kinds of deprivation of rights where it would be
relevant, there should be an opportunity to be heard.11
In the due process clause, there is the requirement of "deprivation" of one's right to
"life, liberty or property." In my view, this means more than the occasional and
temporary discomforts we suffer, which is consistent with the natural workings of
groups of human beings living within a society. De minimis discomfort is a part of
group life, independent of the workings of the State. The deprivation that may
trigger a judicial inquiry should be more than momentary. It must be fundamentally
disruptive of a value that we protect because it is constitutive of our concept of
individual autonomy.
For instance, a person who chooses to walk down a public street cannot complain
that a police officer glances or even stares at him or her. The discomfort of being the
subject of the observation by others, under those circumstances, may be too fleeting
and trivial that it should not cause any constitutional query. That we look at each
other in public spaces is inherently a part of existing within a society. After all, one
of the worst human indignities may be that we are rendered invisible to everyone for
all time within public spaces.
On the other hand, the uninvited and unwelcome peering eyes of the State's agents
as we reside in our most private spaces presumptively violates our right to life,
liberty, and even our property. In such cases, even the most fleeting act of voyeurism
can cause substantial disruption of our collective values. Certainly, there is reason to
trigger judicial inquiry. If the intrusion is unreasonable, it violates the constitutional
protection of the due process clause.
Examining the petitioner's bank accounts is analogous to the situation involving the
uninvited and unwelcome glance. For some, their financial worth contained in the
bank's ledgers may not be physical, but it is constitutive of that part of their identity,
which for their own reasons, they may not want to disclose. Peering into one's bank
accounts and related transactions is sufficiently disruptive as to be considered a
"deprivation" within the meaning of the due process clause. It may be short of the
physical seizure of property but it should, in an actual controversy such as this case
at bar, be subject of judicial review.
I disagree with the majority's opinion that bank accounts do not have any "legitimate
expectation of privacy[.]"12 I believe that such opinion may be too broad a reading
of Republic v. Hon. Judge Eugenio, Jr., et al.13 It is true that no bank account or
investment can be made without the cooperation of those who work with financial
intermediaries. The possibility that there are those, who may come across personal
financial information, should not be the measure of what may be "legitimate
expectation" in a constitutional sense. We should start to distinguish between
knowledge of the content of these accounts, storage of these information, exchange
of data, and making public disclosures.
What we deal with when the Court of Appeals allows inquiry is simply providing
the Anti-Money Laundering Council or the appropriate law enforcement agency
with access to knowledge of the content of these accounts. The limits of its storage,
how it is exchanged, and making public disclosures are another matter. Nothing in
this decision should be used to imply the nature of the right to privacy or the factors
to be considered to establish "legitimate expectation of privacy" as it applies to
storage, exchange, and public disclosures of information.
The truth is that most of today's digital data is vulnerable to one who is curious
enough, exceedingly determined, skillful, and willing to deploy the necessary time
and resources to make discovery of our most private information. Ubiquitous
surveillance systems that ensure the integrity as well as increase confidence in the
security of the data kept in a system are ever present. Copying or transferring digital
data occurs likewise with phenomenal speed. Data shared in cyberspace also tends
to be resilient and difficult to completely delete. Users of various digital platforms,
including bank accounts, are not necessarily aware of these vulnerabilities.
Therefore, the concept of "legitimate expectation of privacy" as the framework for
assessing whether personal information fall within the constitutionally protected
penumbra need to be carefully reconsidered. In my view, the protected spheres of
privacy will make better sense when our jurisprudence in the appropriate cases
make clear how specific types of information relate to personal identity and why this
is valuable to assure human dignity and a robust democracy in the context of a
constitutional order.
II
A bank inquiry order is a provisional relief available to the Anti-Money Laundering
Council in aid of its investigative powers. It partakes of the character of a search
warrant.
United Laboratories Inc. v. Isip14 discussed the nature of a search warrant:
On the first issue, we agree with the petitioner's contention that a search warrant
proceeding is, in no sense, a criminal action or the commencement of a
prosecution. The proceeding is not one against any person, but is solely for the discovery
and to get possession of personal property. It is a special and peculiar remedy, drastic in
nature, and made necessary because of public necessity. It resembles in some respect with
what is commonly known as John Doe proceedings. While an application for a
search warrant is entitled like a criminal action, it does not make it such an action.
A search warrant is a legal process which has been likened to a writ of discovery employed by
the State to procure relevant evidence of crime. It is in the nature of a criminal process,
restricted to cases of public prosecutions. A search warrant is a police weapon, issued
under the police power. A search warrant must issue in the name of the State,
namely, the People of the Philippines.
A search warrant has no relation to a civil process. It is not a process for adjudicating
civil rights or maintaining mere private rights. It concerns the public at large as
distinguished from the ordinary civil action involving the rights of private persons.
It may only be applied for in the furtherance of public prosecution.15 (Emphasis
supplied, citations omitted)
In a search warrant proceeding, there is already a crime that has been committed
and law enforcers apply for a search warrant to find evidence to support a case or to
retrieve and preserve evidence already known to them.
In the same way, a bank inquiry order is "a means for the government to ascertain
whether there is sufficient evidence to sustain an intended prosecution of the
account holder for violation of the [Anti-Money Laundering Act]."16 It is a
preparatory tool for the discovery and procurement, and preservation through
the subsequent issuance of a freeze order of relevant evidence of a money
laundering transaction or activity.
Considering its implications on the depositor's right to privacy, Section 11 of the
Anti-Money Laundering Act explicitly mandates that "[t]he authority to inquire into
or examine the main account and the related accounts shall comply with the
requirements of Article III, Sections 2 and 3 of the 1987 Constitution[.]"
Article III, Section II of the Constitution states:
SECTION 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
produce, and particularly describing the place to be searched and the persons or
"The phrase 'upon probable cause to be determined personally by the judge after
produce' allows a determination of probable cause by the judge [or the Court of
Appeals in Anti-Money Laundering Act cases] ex parte." 17
In People v. Delos Reyes,18 the Court held that due to the ex parte and non-adversarial
nature of the proceedings, "the [j]udge acting on an application for a search warrant
is not bound to apply strictly the rules of evidence."19
The ordinary rules of evidence are generally not applied in ex parte proceedings, partly
because there is no opponent to invoke them, partly because the Judge's determination is
usually discretionary, partly because it is seldom that, but mainly because the system of
evidence rules was devised for the special control of trials by jury.20(Emphasis supplied)
"The existence [of probable cause] depends to a large degree upon the finding or
opinion of the judge [or magistrate] conducting the examination."21 "However, the
findings of the judge [or magistrate] should not disregard the facts before him nor
run counter to the clear dictates of reason."22
Search warrant proceedings are ex parte because of the necessities of the
investigation. La Chemise Lacoste, S.A. v. Hon. Fernandez, etc. et al.,23 states:
... an application for a search warrant is heard ex parte. It is neither a trial nor a part of
the trial. Action on these applications must be expedited for time is of the essence. Great
reliance has to be accorded by the judge to the testimonies under oath of the complainant and
the witnesses.24 (Emphasis supplied)
Similarly, it is essential that investigations for Anti-Money Laundering Act offenses,
including the proceedings for the issuance of bank inquiry orders, be kept ex parte, in
order not to frustrate the State's effort in building its case and eventually prosecuting
money laundering offenses.
III
The absence of notice to the owner of a bank account that an ex parte application as
well as an order to inquire has been granted by the Court of Appeals is not
unreasonable nor arbitrary. The lack of notice does not violate the due process clause
of the Constitution.
It is reasonable for the State, through its law enforcers, to inquire ex parte and
without notice because of the nature of a bank account at present.
A bank deposit is an obligation. It is a debt owed by a bank to its client-depositor. It
is understood that the bank will make use of the value of the money deposited to
further create credit. This means that it may use the value to create loans with
interest to another. Whoever takes out a loan likewise creates a deposit with another
bank creating another obligation and empowering that other bank to create credit
once mere through providing other loans.
Bank deposits are not isolated information similar to personal sets of preferences.
Rather, bank deposits exist as economically essential social constructs. The inherent
constitutionally protected private rights in bank deposits and other similar
instruments are not absolute. These rights should, in proper cases, be weighed
against the need to maintaining the integrity of our financial system. The integrity of
our financial system on the other hand contributes to the viability of banks and
financial intermediaries, and therefore the viability of keeping bank deposits.
Furthermore, we are at an age of instantaneous financial transactions. It would be
practically impossible to locate, preserve, and later on present evidence of crimes
covered by the Anti-Money Laundering Act if the theory of the petitioner is correct.
After all, as correctly pointed out by the majority opinion, the right to information
accrues only after a freeze order is issued. It is then that limitations on the ability to
transact the value of the bank account will truly affect the depositor.
Accordingly, with these clarifications, I vote to DENY the Petition.
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR
OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE,
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q.
CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino
III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY
OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of
President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as
Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M.
REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD,
Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE
PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE,
HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO
BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director
of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME,
Chief of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the
Department of the Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department
of Interior and Local Government, The CHIEF of the Philippine National Police,
The DIRECTOR of the National Bureau of Investigation (all of the Executive
Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND
RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE
JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL
OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR
AND LOCAL GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and
PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E.
RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the
Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by
HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his
capacity as Speaker of the House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in
his capacity as Executive Director, Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in
his capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President
of the Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his
official capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official
capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and Communications
Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as
Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine
National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY
D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN
THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
TONSON, TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA
FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T.
DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L.
TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY
OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE
NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and
THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act
(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that
he needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for
the general public or for special audiences like associates, classmates, or
friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies, public
utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater information
and facility of communication. But all is not well with the system since it could not
filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of
the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking into
or surreptitiously accessing his bank account or credit card or defrauding him
through false representations. The wicked can use the cyberspace, too, for illicit
trafficking in sex or for exposing to pornography guileless children who have access
to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc
to the computer systems and networks of indispensable or highly useful institutions
as well as to the laptop or computer programs and memories of innocent
individuals. They accomplish this by sending electronic viruses or virtual dynamites
that destroy those computer systems, networks, programs, and memories. The
government certainly has the duty and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues presented in these cases, on February
5, 2013 the Court extended the original 120-day temporary restraining order (TRO)
that it earlier issued on October 9, 2012, enjoining respondent government agencies
from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track down
and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and
R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC);
and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and
362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
(1) Illegal Access. The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and should
thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a suspect class is presumed
unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict scrutiny standard was used to assess
the validity of laws dealing with the regulation of speech, gender, or race as well as
other fundamental rights, as expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act accessing
the computer system of another without right. It is a universally condemned
conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate the
target systems security and report back to the owners the vulnerabilities they found
in it and give instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to verify its
bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement between
them as to the extent of the search, the methods to be used, and the systems to be
tested. This is referred to as the "get out of jail free card."6Since the ethical hacker
does his job with prior permission from the client, such permission would insulate
him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion or
deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks
to discourage data interference, it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that unnecessarily sweep
its subject broadly, thereby invading the area of protected freedoms.7 But Section
4(a)(3) does not encroach on these freedoms at all. It simply punishes what
essentially is a form of vandalism,8 the act of willfully destroying without right the
things that belong to others, in this case their computer data, electronic document, or
electronic data message. Such act has no connection to guaranteed freedoms. There
is no freedom to destroy other peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an
in terrorem effect9 or the fear of possible prosecution that hangs on the heads of
citizens who are minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instill such kind of fear
is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to
intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be valid.11 Petitioner
has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith
to profit, mislead, destroy the reputation, and deprive others from registering the
same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the domain
name registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause12 in that, not being narrowly tailored, it will cause a user using his real name
to suffer the same fate as those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing there exists a well
known billionaire-philanthropist named "Julio Gandolfo," the law would punish for
cyber-squatting both the person who registers such name because he claims it to be
his pseudo-name and another who registers the name because it happens to be his
real name. Petitioners claim that, considering the substantial distinction between the
two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be
his real name or use it as a pseudo-name for it is the evil purpose for which he uses
the name that the law condemns. The law is reasonable in penalizing him for
acquiring the domain name in bad faith to profit, mislead, destroy reputation, or
deprive others who are not ill-motivated of the rightful opportunity of registering
the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial
of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging to
another, whether natural or juridical, without right: Provided: that if no damage has
yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
and to privacy and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures.13 But the Court acknowledged its existence as early as 1968 in
Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones
of Privacy." The Court explained in "In the Matter of the Petition for Issuance of Writ
of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of these zones to the
right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any
form of intrusion is impermissible unless excused by law and in accordance with
customary legal process. The meticulous regard we accord to these zones arises not
only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal
Declaration of Human Rights which mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and "everyone has the right to the protection
of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches16 and seizures, which is the basis of the right to be let alone,
and (b) the right to privacy of communication and correspondence.17 In assessing the
challenge that the State has impermissibly intruded into these zones of privacy, a
court must determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of birth, the
name of his spouse if any, his occupation, and similar data.19 The law punishes those
who acquire or use such identifying information without right, implicitly to cause
damage. Petitioners simply fail to show how government effort to curb computer-
related identity theft violates the right to privacy and correspondence as well as the
right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will
not hold water since the specific conducts proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of another. There is
no fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a
person in the news to secure information about him that could be published. But this
is not the essence of identity theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the
user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established
through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances reveal a
different intent on the part of the perpetrator.20 As such, the press, whether in quest
of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation, directly
or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the
aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.21 They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when done "for favor" in
cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon)
usually worn conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies
into the bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing x x x between and
among two private persons x x x although that may be a form of obscenity to
some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade,
and pornography for favor and consideration. This includes interactive prostitution
and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography.29 The Court weighed the property rights of individuals against the
public welfare. Private property, if containing pornographic materials, may be
forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the
State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to persons
engaged in the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of
a computer system as Congress has intended.
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(2) Child Pornography. The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the penalty to be imposed shall be (1)
one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act
of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing
prevents the government from invoking the ACPA when prosecuting persons who
commit child pornography using a computer system. Actually, ACPAs definition of
child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA
provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular piece of child
pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet the
core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who
merely doodles on paper and imagines a sexual abuse of a 16-year-old is not
criminally liable for producing child pornography but one who formulates the idea
on his laptop would be. Further, if the author bounces off his ideas on Twitter,
anyone who replies to the tweet could be considered aiding and abetting a
cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality
of Section 4(c)(2) is not successfully challenged.
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(3) Unsolicited Commercial Communications. The transmission of commercial
electronic communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order to
induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications,
also known as "spam." The term "spam" surfaced in early internet chat rooms and
interactive fantasy games. One who repeats the same sentence or comment was said
to be making a "spam." The term referred to a Monty Pythons Flying Circus scene in
which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and
network capacities of internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending
out spams enters the recipients domain without prior permission. The OSG
contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic
ads reduce the "efficiency of computers." Secondly, people, before the arrival of the
age of computers, have already been receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail
ads. That is true with spams. Their recipients always have the option to delete or not
to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him. Commercial
speech is a separate category of speech which is not accorded the same level of
protection as that given to other constitutionally guaranteed forms of expression but
is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as
well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime,
or of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.
Art. 355. Libel means by writings or similar means. A libel committed by means
of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200
to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to
form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
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(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any
other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of "presumed
malice" even when the latest jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring
"presumed malice" from the accuseds defamatory statement by virtue of Article 354
of the penal code infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken
down as unconstitutional for otherwise good jurisprudence requiring "actual malice"
could easily be overturned as the Court has done in Fermin v. People39 even where
the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed;
and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it
was false or not.42 The reckless disregard standard used here requires a high degree
of awareness of probable falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of absence of
actual malice, even when the statement turns out to be false, is available where the
offended party is a public official or a public figure, as in the cases of Vasquez (a
barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law,
mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement
where the offended party is a public figure. Societys interest and the maintenance of
good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily,
not only was there malice in law, the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities, when it
modified the penalty of imprisonment to just a fine of P6,000.00.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence (malice in
law) from the defamatory character of the assailed statement.45 For his defense, the
accused must show that he has a justifiable reason for the defamatory statement
even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention
Act violate the countrys obligations under the International Covenant of Civil and
Political Rights (ICCPR). They point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws should include the
defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes
truth as a defense but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may
be given in evidence to the court and if it appears that the matter charged as libelous
is true, and, moreover, that it was published with good motives and for justifiable
ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their official
duties.
In such cases if the defendant proves the truth of the imputation made by him, he
shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression.48Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In effect,
Section 4(c)(4) above merely affirms that online defamation constitutes "similar
means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions on libel were enacted. The
culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing
style.50 In a sense, they are a world apart in terms of quickness of the readers
reaction to defamatory statements posted in cyberspace, facilitated by one-click reply
options offered by the networking site as well as by the speed with which such
reactions are disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who
willfully abets or aids in the commission of any of the offenses enumerated in
this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully
attempts to commit any of the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of
the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a
chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of
"netizens," the multitude that avail themselves of the services of the internet. He
points out that existing laws and jurisprudence sufficiently delineate the meaning of
"aiding or abetting" a crime as to protect the innocent. The Solicitor General argues
that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing
laws. When a person aids or abets another in destroying a forest,52 smuggling
merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment
as criminal in character. These forms of aiding or abetting lend themselves to the
tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of
sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings online
threatens the heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos
have accessed the internet within a year, translating to about 31 million
users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social
relations among people who, for example, share interests, activities, backgrounds, or
real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch.58 Users register at
this site, create a personal profile or an open book of who they are, add other users
as friends, and exchange messages, including automatic notifications when they
update their profile.59 A user can post a statement, a photo, or a video on Facebook,
which can be made visible to anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons
of preferences on the programs screen such as "Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting while "Comment" enables him to post
online his feelings or views about the same, such as "This is great!" When a Facebook
user "Shares" a posting, the original "posting" will appear on his own Facebook
profile, consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of up to 140
characters. These are known as "Tweets." Microblogging is the practice of posting
small pieces of digital contentwhich could be in the form of text, pictures, links,
short videos, or other mediaon the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular users posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general public. If a post is available to the
public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting
or republishing another persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider
like PLDT, Smart, Globe, or Sun; d) the internet caf that may have provided the
computer used for posting the blog; e) the person who makes a favorable comment
on the blog; and f) the person who posts a link to the blog site.60 Now, suppose
Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She
needs the internet to access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a certain married
public official has an illicit affair with a movie star. Linda, one of Marias friends
who sees this post, comments online, "Yes, this is so true! They are so immoral."
Marias original post is then multiplied by her friends and the latters friends, and
down the line to friends of friends almost ad infinitum. Nena, who is a stranger to
both Maria and Linda, comes across this blog, finds it interesting and so shares the
link to this apparently defamatory blog on her Twitter account. Nenas "Followers"
then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas
original tweet and posts this on her Facebook account. Immediately, Pamelas
Facebook Friends start Liking and making Comments on the assailed posting. A lot
of them even press the Share button, resulting in the further spread of the original
posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding
or abetting?" In libel in the physical world, if Nestor places on the office bulletin
board a small poster that says, "Armand is a thief!," he could certainly be charged
with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel
since he did not author the poster. If Arthur, passing by and noticing the poster,
writes on it, "Correct!," would that be libel? No, for he merely expresses agreement
with the statement on the poster. He still is not its author. Besides, it is not clear if
aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the
"Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel? And,
in the complex world of cyberspace expressions of thoughts, when will one be liable
for aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be
liable for aiding or abetting? And, considering the inherent impossibility of joining
hundreds or thousands of responding "Friends" or "Followers" in the criminal charge
to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg
in a round hole when applied to cyberspace libel. Unless the legislature crafts a
cyber libel law that takes into account its unique circumstances and culture, such law
will tend to create a chilling effect on the millions that use this new medium of
communication in violation of their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,61 a case involving the constitutionality of the Communications
Decency Act of 1996. The law prohibited (1) the knowing transmission, by means of
a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2)
the knowing use of an interactive computer service to send to a specific person or
persons under 18 years of age or to display in a manner available to a person under
18 years of age communications that, in context, depict or describe, in terms
"patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed
and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223,
is a matter of special concern for two reasons. First, the CDA is a content-based
regulation of speech. The vagueness of such a regulation raises special U.S. Const.
amend. I concerns because of its obvious chilling effect on free speech. Second, the
CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions may well cause
speakers to remain silent rather than communicate even arguably unlawful words,
ideas, and images. As a practical matter, this increased deterrent effect, coupled with
the risk of discriminatory enforcement of vague regulations, poses greater U.S.
Const. amend. I concerns than those implicated by certain civil regulations.
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The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great
threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDAs
burden on protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad
news. Moreover, cyberlibel often goes hand in hand with cyberbullying that
oppresses the victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a persons reputation and peace of
mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect on those who express
themselves through cyberspace posts, comments, and other messages.64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections,65 "we must view these statements
of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount
facial challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due process,
lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here,
one can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. It prohibits one from assailing the constitutionality of the statute based
solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his
own rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech
that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on
the internet by liking it? Netizens are not given "fair notice" or warning as to what is
criminal conduct and what is lawful conduct. When a case is filed, how will the
court ascertain whether or not one netizens comment aided and abetted a
cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates
an altogether new defamatory story against Armand like "He beats his wife and
children," then that should be considered an original posting published on the
internet. Both the penal code and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel destroys reputations that society
values. Allowed to cascade in the internet, it will destroy relationships and, under
certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of transactions
involving the dissemination of child pornography," does this make Google and its
users aiders and abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes
law lacksthe exemption of a provider or notably a plain user of interactive
computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider and cannot be held civilly liable for any action voluntarily taken in good
faith to restrict access to or availability of material that the provider or user considers
to be obscene...whether or not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads the
Facebook mobile application, the user may give consent to Facebook to access his
contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of
annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on
the freedom of expression, especially since the crime of aiding or abetting ensnares
all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.71 In
the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on
Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section
4(c)(2) on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom of
expression.
The crime of willfully attempting to commit any of these offenses is for the same
reason not objectionable. A hacker may for instance have done all that is necessary to
illegally access another partys computer system but the security employed by the
systems lawful owner could frustrate his effort. Another hacker may have gained
access to usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts
to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is
not right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.73 While this may be true with respect to cybercrimes that tend to sneak
past the area of free expression, any attempt to commit the other acts specified in
Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section
4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as
the actors aiding and abetting the commission of such acts can be identified with
some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case
may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other means.
In using the technology in question, the offender often evades identification and is
able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine
that a single set of acts may be prosecuted and penalized simultaneously under two
laws, a special law and the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is
not an essential element of the other.74 With the exception of the crimes of online
libel and online child pornography, the Court would rather leave the determination
of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material
on print, said to be libelous, is again posted online or vice versa, that identical
material cannot be the subject of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code and the other a violation of Section
4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and
the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4)
merely establishes the computer system as another means of publication.75 Charging
the offender under both laws would be a blatant violation of the proscription against
double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPAs scope so as to include identical activities in cyberspace. As
previously discussed, ACPAs definition of child pornography in fact already covers
the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage incurred or
both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1)
of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
of this Act shall be punished with the penalties as enumerated in Republic Act No.
9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be
imposed shall be one (1) degree higher than that provided for in Republic Act No.
9775, if committed through a computer system.
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall
be punished with imprisonment one (1) degree lower than that of the prescribed
penalty for the offense or a fine of at least One hundred thousand pesos
(PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or
both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when
the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1)
on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or Abetting, and Attempt in the
Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to
be punished. The power to determine penalties for offenses is not diluted or
improperly wielded simply because at some prior time the act or omission was but
an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative
department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with
due cause, shall be authorized to collect or record by technical or electronic means
traffic data in real-time associated with specified communications transmitted by
means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date,
size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant
and the witnesses he may produce and the showing: (1) that there are reasonable
grounds to believe that any of the crimes enumerated hereinabove has been
committed, or is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is essential to the
conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such
evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one
another.
The first question is whether or not Section 12 has a proper governmental purpose
since a law may require the disclosure of matters normally considered private but
then only upon showing that such requirement has a rational relation to the purpose
of the law,79 that there is a compelling State interest behind the law, and that the
provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights,
courts should balance the legitimate concerns of the State against constitutional
guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public
good.82 To do this, it is within the realm of reason that the government should be
able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data
is a part, aims to provide law enforcement authorities with the power they need for
spotting, preventing, and investigating crimes committed in cyberspace. Crime-
fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative
measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,84 transmitting viruses,85 lasciviously
exhibiting sexual organs or sexual activity for favor or consideration;86 and
producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day.
In this digital age, the wicked can commit cybercrimes from virtually anywhere:
from internet cafs, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses and can
neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of
computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can succeed in
ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do
not provide ample safeguards against crossing legal boundaries and invading the
peoples right to privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together
to create zones of privacy wherein governmental powers may not intrude, and that
there exists an independent constitutional right of privacy. Such right to be left alone
has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and informational
privacy. Decisional privacy involves the right to independence in making certain
important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic data in
real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where one claiming the right
must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one
society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12
applies to all information and communications technology (ICT) users, meaning the
large segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of privacy is to be
measured from the general publics point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the latter, a
third person, the traffic data needed for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message intended for another ICT user must
furnish his service provider with his cellphone number and the cellphone number of
his recipient, accompanying the message sent. It is this information that creates the
traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service.
Those who post letters have no expectations that no one will read the information
appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and in a
way that may be likened to parcels of letters or things that are sent through the
posts. When data is sent from any one source, the content is broken up into packets
and around each of these packets is a wrapper or header. This header contains the
traffic data: information that tells computers where the packet originated, what kind
of data is in the packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits together with
other packets.93 The difference is that traffic data sent through the internet at times
across the ocean do not disclose the actual names and addresses (residential or
office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their
contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of
the messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service
providers communications system will put his voice message into packets and send
them to the other persons cellphone where they are refitted together and heard. The
latters spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider
when he puts his call through. He also reveals the cellphone number to the person
he calls. The other ways of communicating electronically follow the same basic
pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme
Court reasoned that telephone users in the 70s must realize that they necessarily
convey phone numbers to the telephone company in order to complete a call. That
Court ruled that even if there is an expectation that phone numbers one dials should
remain private, such expectation is not one that society is prepared to recognize as
reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them out of
the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly
random bits of traffic data are gathered in bulk, pooled together, and analyzed, they
reveal patterns of activities which can then be used to create profiles of the persons
under surveillance. With enough traffic data, analysts may be able to determine a
persons close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be
disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to
protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or
record by technical or electronic means traffic data in real-time. Petitioners point out
that the phrase "due cause" has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the discretion of the police. Replying to
this, the Solicitor General asserts that Congress is not required to define the meaning
of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint at
the meaning it intends for the phrase "due cause." The Solicitor General suggests that
"due cause" should mean "just reason or motive" and "adherence to a lawful
procedure." But the Court cannot draw this meaning since Section 12 does not even
bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is
akin to the use of a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data collection should not disclose identities
or content data, such restraint is but an illusion. Admittedly, nothing can prevent
law enforcement agencies holding these data in their hands from looking into the
identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from
certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with
specified communications." But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement
authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to
privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that would
authorize the search of what is akin to a "moving vehicle." But warrantless search is
associated with a police officers determination of probable cause that a crime has
been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be
better served by providing for more robust safeguards. His bare assurance that law
enforcement authorities will not abuse the provisions of Section 12 is of course not
enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude
abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the
void-for-vagueness doctrine and the overbreadth doctrine. These doctrines however,
have been consistently held by this Court to apply only to free speech cases. But
Section 12 on its own neither regulates nor punishes any type of speech. Therefore,
such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area of privacy and facilitate intrusions
into it. In modern terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian society."96 The
Court must ensure that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for the rights that the
Constitution guarantees.
Sec. 13. Preservation of Computer Data. The integrity of traffic data and
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the date of
the transaction. Content data shall be similarly preserved for six (6) months from the
date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by a
service provider is used as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the Prosecutor shall be deemed
a notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the
order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of
the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil
forfeiture proceedings. Such order prevents internet users from accessing and
disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to
their authors or recipients and are to be considered private communications. But it is
not clear that a service provider has an obligation to indefinitely keep a copy of the
same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscribers information, traffic data or relevant data
in his/its possession or control within seventy-two (72) hours from receipt of the
order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to
carry out their executive functions. The prescribed procedure for disclosure would
not constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise
have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined
in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage
medium; and
(e) To render inaccessible or remove those computer data in the accessed
computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to
protect and preserve the computer data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but
in no case for a period longer than thirty (30) days from date of approval by the
court.
Petitioners challenge Section 15 on the assumption that it will supplant established
search and seizure procedures. On its face, however, Section 15 merely enumerates
the duties of law enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been seized by virtue of
a court warrant. The exercise of these duties do not pose any threat on the rights of
the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement authorities,
as the case may be, shall immediately and completely destroy the computer data
subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers storage
systems and prevent overload. It would also ensure that investigations are quickly
concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of property
without due process of law. But, as already stated, it is unclear that the user has a
demandable right to require the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted them preserved, he should
have saved them in his computer when he generated the data or received it. He
could also request the service provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data
is prima facie found to be in violation of the provisions of this Act, the DOJ shall
issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the
right against unreasonable searches and seizures. The Solicitor General concedes that
this provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware,
as well as files that contain texts, images, audio, or video recordings. Without having
to go into a lengthy discussion of property rights in the digital space, it is
indisputable that computer data, produced or created by their writers or authors
may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal
computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in
ones papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to be determined personally by the
judge. Here, the Government, in effect, seizes and places the computer data under its
control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section
19 operates as a restriction on the freedom of expression over cyberspace. Certainly
not all forms of speech are protected. Legislature may, within constitutional bounds,
declare certain kinds of expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant, it is not enough for
him to be of the opinion that such content violates some law, for to do so would
make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on
speech. Restraints on free speech are generally evaluated on one of or a combination
of three tests: the dangerous tendency doctrine, the balancing of interest test, and the
clear and present danger rule.101 Section 19, however, merely requires that the data
to be blocked be found prima facie in violation of any provision of the cybercrime
law. Taking Section 6 into consideration, this can actually be made to apply in
relation to any penal provision. It does not take into consideration any of the three
tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable
searches and seizures.
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be punished as
a violation of Presidential Decree No. 1829 with imprisonment of prision correctional
in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or
both, for each and every noncompliance with an order issued by law enforcement
authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a legislative finding of guilt, without
regard to situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential
Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense
which are defined therein. If Congress had intended for Section 20 to constitute an
offense in and of itself, it would not have had to make reference to any other statue
or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases by committing any
of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt, during
which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created,
within thirty (30) days from the effectivity of this Act, an inter-agency body to be
known as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination
among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of
real time commission of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave
the Cybercrime Investigation and Coordinating Center (CICC) the power to
formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the
Court has adopted two tests: the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the delegate, the only thing he will
have to do is to enforce it.1avvphi1 The second test mandates adequate guidelines or
limitations in the law to determine the boundaries of the delegates authority and
prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate
and implement a national cybersecurity plan. Also, contrary to the position of the
petitioners, the law gave sufficient standards for the CICC to follow when it
provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches,
actions, training, best practices, assurance and technologies that can be used to
protect cyber environment and organization and users assets.104 This definition
serves as the parameters within which CICC should work in formulating the
cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the
law to "prevent and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international cooperation."105 This
policy is clearly adopted in the interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in
real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice
to restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without
right;
b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain
name over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes
defined under the Revised Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a
court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to
cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and
Coordinating Center (CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post; but VOID
and UNCONSTITUTIONAL with respect to others who simply receive the
post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of
cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section
4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3)
on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4)
on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of
Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a
violation of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender
under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the
Anti-Child Pornography Act of 2009 also constitutes a violation of the same
proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP
VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL
CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them." Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions
of the fundamental and preferred right to expression of the electorate during
political contests no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections.
It is significant and of first impression. We are asked to decide whether the
Commission on Elections (COMELEC) has the competence to limit expressions made
by the citizens who are not candidates during elections.
Before us is a special civil action for certiorari and prohibition with application for
preliminary injunction and temporary restraining order1 under Rule 65 of the Rules
of Court seeking to nullify COMELECs Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size. They were posted on the front
walls of the cathedral within public view. The first tarpaulin contains the message
"IBASURA RH Law" referring to the Reproductive Health Law of 2012 or Republic
Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH)
Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on the adoption of
Republic Act No. 10354, otherwise known as the RH Law.6Those who voted for the
passing of the law were classified by petitioners as comprising "Team Patay," while
those who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casio, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians
who helped in the passage of the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulins removal within three (3) days from receipt for
being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2) by three feet (3).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the
immediate removal of the tarpaulin; otherwise, it will be constrained to file an
election offense against petitioners. The letter of COMELEC Law Department was
silenton the remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or against
the candidates and party-list groups with the following names and messages,
particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on the
size (even with the subsequent division of the said tarpaulin into two), as the lawful
size for election propaganda material is only two feet (2) by three feet (3), please
order/cause the immediate removal of said election propaganda material, otherwise,
we shall be constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission
on Elections inensuring the conduct of peaceful, orderly, honest and credible
elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free speech,
petitioners initiated this case through this petition for certiorari and prohibition with
application for preliminary injunction and temporary restraining order.14 They
question respondents notice dated February 22, 2013 and letter issued on February
27, 2013. They pray that: (1) the petition be given due course; (2) a temporary
restraining order (TRO) and/or a writ of preliminary injunction be issued
restraining respondents from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as unconstitutional and
void, and permanently restraining respondents from enforcing them or any other
similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining
order enjoining respondents from enforcing the assailed notice and letter, and set
oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for
certiorari and prohibition under Rule 65 of the Rules of Court filed before this court
is not the proper remedy to question the notice and letter of respondents; and (2) the
tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to
its mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents
claim that the issuances ordering its removal for being oversized are valid and
constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their
respective memoranda within 10 days or by April 1, 2013, taking into consideration
the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED
ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE
ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS
ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA"
CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED
SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A
FORM OF EXPRESSION, WHETHER THE COMELEC POSSESSES
THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE.
I
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and
letter are not final orders, decisions, rulings, or judgments of the COMELEC En Banc
issued in the exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules
of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special civil action, there must also be a
showing that there be no plain, speedy, and adequate remedy in the ordinary course
of the law.
Respondents contend that the assailed notice and letter are not subject to review by
this court, whose power to review is "limited only to final decisions, rulings and
orders of the COMELEC En Banc rendered in the exercise of its adjudicatory or
quasi-judicial power."23 Instead, respondents claim that the assailed notice and letter
are reviewable only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the
Constitution24 on COMELECs power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited to final decisions,
orders, rulings and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
Samar filed the election protest.32At issue was the validity of the promulgation of a
COMELEC Division resolution.33 No motion for reconsideration was filed to raise
this issue before the COMELEC En Banc. This court declared that it did not have
jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final
orders, rulings and decisionsof the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must be a final decision or
resolution of the Comelec en banc, not of a division, certainly not an interlocutory
order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest case,
involving the mayoralty elections in Pagsanghan, Samar.36 This time, the case was
brought to this court because the COMELEC First Division issued a status quo ante
order against the Regional Trial Court executing its decision pending appeal.37 This
courts ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot
take jurisdiction to review interlocutory orders of a COMELEC Division.38However,
consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the
exception:
This Court, however, has ruled in the past that this procedural requirement [of filing
a motion for reconsideration] may be glossed over to prevent miscarriage of justice,
when the issue involves the principle of social justice or the protection of labor,
when the decision or resolution sought to be set aside is a nullity, or when the need
for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC in
electoral contests despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest
case involving candidates for the city council of Muntinlupa City.41 Petitioners in
Soriano, Jr.filed before this court a petition for certiorari against an interlocutory
order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the general rule
that only final orders should be questioned with this court. The ponencia for this
court, however, acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case
of one of the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC
Second Division ruled that petitioner could not qualify for the 2007 elections due to
the findings in an administrative case that he engaged in vote buying in the 1995
elections.46 No motion for reconsideration was filed before the COMELEC En Banc.
This court, however, took cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case
involving the mayoralty candidates of Taguig City.48 Petitioner assailed a resolution
of the COMELEC denying her motion for reconsideration to dismiss the election
protest petition for lack of form and substance.49 This court clarified the general rule
and refused to take cognizance of the review of the COMELEC order. While
recognizing the exceptions in ABS-CBN, this court ruled that these exceptions did
not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not
operate as precedents to oust this court from taking jurisdiction over this case. All
these cases cited involve election protests or disqualification cases filed by the losing
candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their
petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELECs exercise
of its adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in
the implementation of its regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement
on speech and the "chilling effect" caused by respondent COMELECs notice and
letter.
Petitioners allege that respondents committed grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing the notice51 dated February 22,2013 and
letter52 dated February 27, 2013 ordering the removal of the tarpaulin.53 It is their
position that these infringe on their fundamental right to freedom of expression and
violate the principle of separation of church and state and, thus, are
unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority "to
hear and determine cases of the general class to which the proceedings in question
belong and is conferred by the sovereign authority which organizes the court and
defines its powers."55 Definitely, the subject matter in this case is different from the
cases cited by respondents.
Nothing less than the electorates political speech will be affected by the restrictions
imposed by COMELEC. Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with the sovereign right to
change the contours of power whether through the election of representatives in a
republican government or the revision of the basic text of the Constitution. The zeal
with which we protect this kind of speech does not depend on our evaluation of the
cogency of the message. Neither do we assess whether we should protect speech
based on the motives of COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and medium because the
quality of this freedom in practice will define the quality of deliberation in our
democratic society.
COMELECs notice and letter affect preferred speech. Respondents acts are capable
of repetition. Under the conditions in which it was issued and in view of the novelty
of this case,it could result in a "chilling effect" that would affect other citizens who
want their voices heard on issues during the elections. Other citizens who wish to
express their views regarding the election and other related issues may choose not
to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court is
allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform
for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this courts expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether ornot there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all
questions affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment
of election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its
exercise of jurisdiction, gravely abused it. We are confronted with the question as to
whether the COMELEC had any jurisdiction at all with its acts threatening imminent
criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs notice
and letter on free speech. This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this provision cannot be interpreted
to mean that COMELEC has the exclusive power to decide any and allquestions that
arise during elections. COMELECs constitutional competencies during elections
should not operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of
the Constitution.This provision provides for this courts original jurisdiction over
petitions for certiorari and prohibition. This should be read alongside the expanded
jurisdiction of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave
abuse of discretion. Thus, the constitutionality of the notice and letter coming from
COMELEC is within this courts power to review.
During elections, we have the power and the duty to correct any grave abuse of
discretion or any act tainted with unconstitutionality on the part of any government
branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is
this courts constitutional mandate to protect the people against governments
infringement of their fundamental rights. This constitutional mandate out weighs
the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy
of courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition.57 They add that observation of the hierarchy of courts is compulsory, citing
Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while there are
exceptions to the general rule on hierarchy of courts, none of these are present in this
case.59
On the other hand, petitioners cite Fortich v. Corona60 on this courts discretionary
power to take cognizance of a petition filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the issues raised. . . ."61 Petitioners
submit that there are "exceptional and compelling reasons to justify a direct resort
[with] this Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of the
hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and
now affirms that the policy is not to be ignored without serious consequences. The
strictness of the policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental and more essential tasks that
the Constitution has assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus only when absolutely
necessary or when serious and important reasons exist to justify an exception to the
policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed to issue
writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the task of dealing with causes
in the first instance. Its original jurisdiction to issue the so-called extraordinary writs
should be exercised only where absolutely necessary or where serious and important
reasons exist therefore. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the issuance of an
extraordinary writ is also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the specific action for the
writs procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of courts was created by this
court to ensure that every level of the judiciary performs its designated roles in an
effective and efficient manner. Trial courts do not only determine the facts from the
evaluation of the evidence presented before them. They are likewise competent to
determine issues of law which may include the validity of an ordinance, statute, or
even an executive issuance in relation to the Constitution.67 To effectively perform
these functions, they are territorially organized into regions and then into branches.
Their writs generally reach within those territorial boundaries. Necessarily, they
mostly perform the all-important task of inferring the facts from the evidence as
these are physically presented before them. In many instances, the facts occur within
their territorial jurisdiction, which properly present the actual case that makes ripe
a determination of the constitutionality of such action. The consequences, of course,
would be national in scope. There are, however, some cases where resort to courts at
their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature. This
nature ensures more standpoints in the review of the actions of the trial court. But
the Court of Appeals also has original jurisdiction over most special civil actions.
Unlike the trial courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further
reiterating in the light of new circumstances or in the light of some confusions of
bench or bar existing precedents. Rather than a court of first instance or as a
repetition of the actions of the Court of Appeals, this court promulgates these
doctrinal devices in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in
order to protect constitutional rights when these become exigent should not be
emasculated by the doctrine in respect of the hierarchy of courts. That has never
been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it for exceptionally compelling reasons69 or
if warranted by the nature of the issues clearly and specifically raised in the
petition."70 As correctly pointed out by petitioners,71 we have provided exceptions to
this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct resort
to this court includes availing of the remedies of certiorari and prohibition toassail
the constitutionality of actions of both legislative and executive branches of the
government.72
In this case, the assailed issuances of respondents prejudice not only petitioners
right to freedom of expression in the present case, but also of others in future similar
cases. The case before this court involves an active effort on the part of the electorate
to reform the political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote an eminent
political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at
better social judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that was
awakened and invigorated by the idea of new society in which man's mind was free,
his fate determined by his own powers of reason, and his prospects of creating a
rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust
community. It contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full potentialities.It
spurns the alternative of a society that is tyrannical, conformist, irrational and
stagnant.73
In a democracy, the citizens right tofreely participate in the exchange of ideas in
furtherance of political decision-making is recognized. It deserves the highest
protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance prevents courts from the paralysis
of procedural niceties when clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom
of speech and freedom of expression which warrants invocation of relief from this
court. The principles laid down in this decision will likely influence the discourse of
freedom of speech in the future, especially in the context of elections. The right to
suffrage not only includes the right to vote for ones chosen candidate, but also the
right to vocalize that choice to the public in general, in the hope of influencing their
votes. It may be said that in an election year, the right to vote necessarily includes
the right to free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first
impression, no jurisprudence yet exists that will guide the lower courts on this
matter. In Government of the United States v. Purganan,76 this court took cognizance
of the case as a matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no
local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the
issue of whether the right of suffrage includes the right of freedom of expression.
This is a question which this court has yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v.
Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to
the higher judgmentof this Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its discussion.79 (Citation
omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that
can rule with finality on whether COMELEC committed grave abuse of discretion or
performed acts contrary to the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed
during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to this
court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held that
"[i]t is easy to realize the chaos that would ensue if the Court of First Instance ofeach
and every province were [to] arrogate itself the power to disregard, suspend, or
contradict any order of the Commission on Elections: that constitutional body would
be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not have
been binding for other citizens whom respondents may place in the same situation.
Besides, thiscourt affords great respect to the Constitution and the powers and
duties imposed upon COMELEC. Hence, a ruling by this court would be in the best
interest of respondents, in order that their actions may be guided accordingly in the
future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate
remedy in the ordinary course of law that could free them from the injurious effects
of respondents acts in violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute
an exceptionally compelling reason to justify the direct resort to this court. The lack
of other sufficient remedies in the course of law alone is sufficient ground to allow
direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the
orders complained of were found to be patent nullities, or the appeal was
consideredas clearly an inappropriate remedy."82 In the past, questions similar to
these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens right to bear arms,83 government contracts involving
modernization of voters registration lists,84 and the status and existence of a public
office.85
This case also poses a question of similar, if not greater import. Hence, a direct action
to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time
to justify a direct resort to this court. While generally, the hierarchy of courts is
respected, the present case falls under the recognized exceptions and, as such, may
be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this courts power of review. They
cite Justice Vitugs separate opinion in Osmea v. COMELEC86 to support their
position:
It might be worth mentioning that Section 26, Article II, of the Constitution also
states that the "State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law." I see neither Article IX
(C)(4) nor Section 26, Article II, of the Constitution to be all that adversarial or
irreconcilably inconsistent with the right of free expression. In any event, the latter,
being one of general application, must yield to the specific demands of the
Constitution. The freedom of expression concededly holds, it is true, a vantage point
in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is
not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on the
part of Congress and the Commission on Elections to ensure that all candidates are
given an equal chance to media coverage and thereby be equally perceived as giving
real life to the candidates right of free expression rather than being viewed as an
undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is
not for the Court to question; it is a matter that lies beyond the normal prerogatives
of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in
this case.
The present petition does not involve a dispute between the rich and poor, or the
powerful and weak, on their equal opportunities for media coverage of candidates
and their right to freedom of expression. This case concerns the right of petitioners,
who are non-candidates, to post the tarpaulin in their private property, asan exercise
of their right of free expression. Despite the invocation of the political question
doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not judicial,
is that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or
particular officer of the government, withdiscretionary power to act.89 (Emphasis
omitted)
It is not for this court to rehearse and re-enact political debates on what the text of
the law should be. In political forums, particularly the legislature, the creation of the
textof the law is based on a general discussion of factual circumstances, broadly
construed in order to allow for general application by the executive branch. Thus,
the creation of the law is not limited by particular and specific facts that affect the
rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of government is
essential in order to ensure that the rights of the general public are upheld at all
times. In order to preserve this balance, branches of government must afford due
respectand deference for the duties and functions constitutionally delegated to the
other. Courts cannot rush to invalidate a law or rule. Prudence dictates that we are
careful not to veto political acts unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty.
There is no political question. It can be acted upon by this court through the
expanded jurisdiction granted to this court through Article VIII, Section 1 of the
Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of the
legislature. The political question doctrine is used as a defense when the petition
asks this court to nullify certain acts that are exclusively within the domain of their
respective competencies, as provided by the Constitution or the law. In such
situation, presumptively, this court should act with deference. It will decline to void
an act unless the exercise of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when
the act of a constitutional organ infringes upon a fundamental individual or
collective right. Even assuming arguendo that the COMELEC did have the discretion
to choose the manner of regulation of the tarpaulin in question, it cannot do so by
abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by law is for the
latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone
an evolution since the timethat it had been first invoked in Marcos v. Manglapus.
Increasingly, this court has taken the historical and social context of the case and the
relevance of pronouncements of carefully and narrowly tailored constitutional
doctrines. This trend was followed in cases such as Daza v. Singson92 and Coseteng
v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18
of the 1987 Constitution involving the removal of petitioners from the Commission
on Appointments. In times past, this would have involved a quint essentially
political question as it related to the dominance of political parties in Congress.
However, in these cases, this court exercised its power of judicial review noting that
the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised.
This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the
possible existence ofa political question did not bar an examination of whether the
exercise of discretion was done with grave abuse of discretion. In that case, this court
ruled on the question of whether there was grave abuse of discretion in the
Presidents use of his power to call out the armed forces to prevent and suppress
lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a
former President resigned was not a political question even if the consequences
would be to ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may
use the resolution of constitutional issues as leverage. But the expanded jurisdiction
of this court now mandates a duty for it to exercise its power of judicial review
expanding on principles that may avert catastrophe or resolve social conflict.
This courts understanding of the political question has not been static or unbending.
In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a
settled rule that when the issue involved concerns the validity of such discretionary
powers or whether said powers are within the limits prescribed by the Constitution,
We will not decline to exercise our power of judicial review. And such review does
not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of the second impeachment
complaint that was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice Reynato Puno
elaborated on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in
light of the new Constitution which expanded the definition of judicial power as
including "the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power
considerably constricted the scope of political question. He opined that the language
luminously suggests that this duty (and power) is available even against the
executive and legislative departments including the President and the Congress, in
the exercise of their discretionary powers.100 (Emphasis in the original, citations
omitted)
Francisco also provides the cases which show the evolution of the political question,
as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes,
held: The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court,under previous
constitutions, would have normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this
Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "(t)he political question
doctrine neither interposes an obstacle to judicial determination of the rival claims.
The jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political
and non-justiciable question lies in the answer to the question of whether there are
constitutionally imposed limits on powers or functions conferred upon political
bodies. If there are, then our courts are duty-bound to examine whether the branch
or instrumentality of the government properly acted within such limits.101 (Citations
omitted)
As stated in Francisco, a political question will not be considered justiciable if there
are no constitutionally imposed limits on powers or functions conferred upon
political bodies. Hence, the existence of constitutionally imposed limits justifies
subjecting the official actions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not
fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule
65 that "there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law."103 They add that the proper venue to assail the validity of
the assailed issuances was in the course of an administrative hearing to be conducted
by COMELEC.104 In the event that an election offense is filed against petitioners for
posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the
controversy is already ripe for adjudication. Ripeness is the "prerequisite that
something had by then been accomplished or performed by either branch [or in this
case, organ of government] before a court may come into the picture."106
Petitioners exercise of their rightto speech, given the message and their medium,
had understandable relevance especially during the elections. COMELECs letter
threatening the filing of the election offense against petitioners is already an
actionable infringement of this right. The impending threat of criminal litigation is
enough to curtail petitioners speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would occupy
the highest rank, and among different kinds of political expression, the subject of fair
and honest elections would be at the top."108 Sovereignty resides in the
people.109 Political speech is a direct exercise of the sovereignty. The principle of
exhaustion of administrative remedies yields in order to protect this fundamental
right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In Chua
v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed
with and judicial action may be validly resorted to immediately: (a) when there is a
violation of due process; (b) when the issue involved is purely a legal question; (c)
when the administrative action is patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part ofthe administrative agency
concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and
assumed approval of the latter; (g) when to require exhaustion of administrative
remedies would be unreasonable; (h) when it would amount to a nullification of a
claim; (i) when the subject matter is a private land in land case proceedings; (j)
whenthe rule does not provide a plain, speedy and adequate remedy; or (k) when
there are circumstances indicating the urgency of judicial intervention."111 (Emphasis
supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First,
petitioners allegethat the assailed issuances violated their right to freedom of
expression and the principle of separation of church and state. This is a purely legal
question. Second, the circumstances of the present case indicate the urgency of
judicial intervention considering the issue then on the RH Law as well as the
upcoming elections. Thus, to require the exhaustion of administrative remedies in
this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the
rules or to except a case from their operation when compelling reasons so warrant,
or whenthe purpose of justice requires it, [and when] [w]hat constitutes [as] good
and sufficient cause that will merit suspension of the rules is discretionary upon the
court".112Certainly, this case of first impression where COMELEC has threatenedto
prosecute private parties who seek to participate in the elections by calling attention
to issues they want debated by the publicin the manner they feel would be effective
is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position
that they had the power to regulate the tarpaulin.113 However, all of these provisions
pertain to candidates and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the authority to regulate
the enjoyment of the preferred right to freedom of expression exercised by a non-
candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the
plebiscite for the creation of the Cordillera Autonomous Region.116 Columnist
Pablito V. Sanidad questioned the provision prohibiting journalists from covering
plebiscite issues on the day before and on plebiscite day.117 Sanidad argued that the
prohibition was a violation of the "constitutional guarantees of the freedom of
expression and of the press. . . ."118 We held that the "evil sought to be prevented by
this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the franchise holders nor the
candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor
candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
functions:
....
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidates. (Emphasis supplied) Based on the enumeration made on
actsthat may be penalized, it will be inferred that this provision only affects
candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC.
This was followed bythe assailed letter regarding the "election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list
groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only
mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
parties and party-list groups to erect common poster areas for their candidates in not
more than ten (10) public places such as plazas, markets, barangay centers and the
like, wherein candidates can post, display or exhibit election propaganda: Provided,
That the size ofthe poster areas shall not exceed twelve (12) by sixteen (16) feet or its
equivalent. Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10) public places, the
size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates
may post any lawful propaganda material in private places with the consent of the
owner thereof, and in public places or property which shall be allocated equitably
and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any
lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these Rules and
the like is prohibited. Persons posting the same shall be liable together with the
candidates and other persons who caused the posting. It will be presumed that the
candidates and parties caused the posting of campaign materials outside the
common poster areas if they do not remove the same within three (3) days from
notice which shall be issued by the Election Officer of the city or municipality where
the unlawful election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the
Election Officeror other officials of the COMELEC shall apprehend the violators
caught in the act, and file the appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The
above provisions regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that
these are "allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party-list elections and for all bona
fide candidates seeking national and local elective positions subject to the limitation
on authorized expenses of candidates and political parties. . . ." Section 6 of
COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of coordination with
the candidates and political parties for whom the election propaganda are released
would ensure that these candidates and political parties maintain within the
authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no
allegation that petitioners coordinated with any of the persons named in the
tarpaulin regarding its posting. On the other hand, petitioners posted the tarpaulin
as part of their advocacy against the RH Law. Respondents also cite National Press
Club v. COMELEC126 in arguing that its regulatory power under the Constitution, to
some extent, set a limit on the right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and
time for political advertisements, limiting political advertisements to COMELEC-
designated space and time. This case was brought by representatives of mass media
and two candidates for office in the 1992 elections. They argued that the prohibition
on the sale and donation of space and time for political advertisements is
tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National
Press Club. However, this case does not apply as most of the petitioners were
electoral candidates, unlike petitioners in the instant case. Moreover, the subject
matter of National Press Club, Section 11(b) of Republic Act No. 6646,129 only refers
to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon
the right of reporters or broadcasters to air their commentaries and opinions
regarding the candidates, their qualifications, and program for government.
Compared to Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice and letter.
It was not merelya regulation on the campaigns of candidates vying for public office.
Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or candidates to
a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign
for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews
for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a public office by a political
party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan election activity. Public expressions or opinions or discussions
of probable issues in a forthcoming electionor on attributes of or criticisms against
probable candidates proposed to be nominated in a forthcoming political party
convention shall not be construed as part of any election campaign or partisan
political activity contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is that the act
must be "designed to promote the election or defeat of a particular candidate or
candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a
statement of either appreciation or criticism on votes made in the passing of the RH
law. Thus, petitioners invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin
violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda
subject to their regulation pursuant to their mandate under Article IX-C, Section 4 of
the Constitution. Thus, the assailed notice and letter ordering itsremoval for being
oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of the
Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the
Revised Ordinances of 1927 of Manila for the public meeting and assembly
organized by petitioner Primicias.134 Section 1119 requires a Mayors permit for the
use of streets and public places for purposes such as athletic games, sports, or
celebration of national holidays.135 What was questioned was not a law but the
Mayors refusal to issue a permit for the holding of petitioners public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of
speech, to peaceful assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor to issue the
permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit surveys.139 The right to
freedom of expression was similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on speech must
be weighed against a compelling state interest clearly allowed in the Constitution.
The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate
and in addition to the freedom of speech and of the press provided in the US
Constitution. The word "expression" was added in the 1987 Constitution by
Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9,
page 2, line 29, it says: "No law shall be passed abridging the freedom of speech." I
would like to recommend to the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it would refer to means of
expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging
the freedom of speech, expression or of the press . . . ."141 Speech may be said to be
inextricably linked to freedom itself as "[t]he right to think is the beginning of
freedom, and speech must be protected from the government because speech is the
beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication
exists when "(1) a speaker, seeking to signal others, uses conventional actions
because he orshe reasonably believes that such actions will be taken by the audience
in the manner intended; and (2) the audience so takes the actions."144 "[I]n
communicative action[,] the hearer may respond to the claims by . . . either accepting
the speech acts claims or opposing them with criticism or requests for
justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of
speech sometimes referred to as symbolic speech[,]"146 such that "when speech
and nonspeech elements are combined in the same course of conduct, the
communicative element of the conduct may be sufficient to bring into play the
[right to freedom of expression]."147
The right to freedom of expression, thus, applies to the entire continuum of speech
from utterances made to conduct enacted, and even to inaction itself as a symbolic
manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who
were members of the religious sect Jehovahs Witnesses were to be expelled from
school for refusing to salute the flag, sing the national anthem, and recite the
patriotic pledge.149 In his concurring opinion, Justice Cruz discussed how the salute
is a symbolic manner of communication and a valid form of expression.150 He adds
that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill
of Rights that guarantees to the individual the liberty to utter what is in his mind
also guarantees to him the liberty not to utter what is not in his mind. The salute is a
symbolic manner of communication that conveys its messageas clearly as the written
or spoken word. As a valid form of expression, it cannot be compelled any more
than it can be prohibited in the face of valid religious objections like those raised in
this petition. To impose it on the petitioners is to deny them the right not to speak
when their religion bids them to be silent. This coercion of conscience has no place in
the free society.
The democratic system provides for the accommodation of diverse ideas, including
the unconventional and even the bizarre or eccentric. The will of the majority
prevails, but it cannot regiment thought by prescribing the recitation by rote of its
opinions or proscribing the assertion of unorthodox or unpopular views as inthis
case. The conscientious objections of the petitioners, no less than the impatience of
those who disagree with them, are protected by the Constitution. The State cannot
make the individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the
present Constitution,this court has applied its precedent version to expressions other
than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the
classification of the motion picture "Kapit sa Patalim" as "For Adults Only." They
contend that the classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the communication of ideas and the
expression of the artistic impulse."154 It adds that "every writer,actor, or producer, no
matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Boards] perception of what constitutes
obscenity appears to be unduly restrictive."156 However, the petition was dismissed
solely on the ground that there were not enough votes for a ruling of grave abuse of
discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms
part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts
which make it easier to view its messages from greater distances. Furthermore, a
larger tarpaulin makes it easier for passengers inside moving vehicles to read its
content. Compared with the pedestrians, the passengers inside moving vehicles have
lesser time to view the content of a tarpaulin. The larger the fonts and images, the
greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to
the reader. From an ordinary persons perspective, those who post their messages in
larger fonts care more about their message than those who carry their messages in
smaller media. The perceived importance given by the speakers, in this case
petitioners, to their cause is also part of the message. The effectivity of
communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may
tend to be more convinced of the point made by authoritative figures when they
make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate
to more opportunities to amplify, explain, and argue points which the speakers
might want to communicate. Rather than simply placing the names and images of
political candidates and an expression of support, larger spaces can allow for brief
but memorable presentations of the candidates platforms for governance. Larger
spaces allow for more precise inceptions of ideas, catalyze reactions to advocacies,
and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability
in our government.
These points become more salient when it is the electorate, not the candidates or the
political parties, that speaks. Too often, the terms of public discussion during
elections are framed and kept hostage by brief and catchy but meaningless sound
bites extolling the character of the candidate. Worse, elections sideline political
arguments and privilege the endorsement by celebrities. Rather than provide
obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate,
the former have better incentives to avoid difficult political standpoints and instead
focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect
the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including
the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining, feature of
a good polity."159 This theory may be considered broad, but it definitely "includes [a]
collective decision making with the participation of all who will beaffected by the
decision."160 It anchors on the principle that the cornerstone of every democracy is
that sovereignty resides in the people.161 To ensure order in running the states
affairs, sovereign powers were delegated and individuals would be elected or
nominated in key government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of the people to make
government accountable. Necessarily, this includes the right of the people to criticize
acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate; that
hate menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance
of good government demand a full discussion of public affairs."163 This court has,
thus, adopted the principle that "debate on public issues should be uninhibited,
robust,and wide open . . . [including even] unpleasantly sharp attacks on
government and public officials."164
Second, free speech should be encouraged under the concept of a market place of
ideas. This theory was articulated by Justice Holmes in that "the ultimate good
desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas - that the best test of
truth is the power of the thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes safely can be
carried out.166
The way it works, the exposure to the ideas of others allows one to "consider, test,
and develop their own conclusions."167 A free, open, and dynamic market place of
ideas is constantly shaping new ones. This promotes both stability and change where
recurring points may crystallize and weak ones may develop. Of course, free speech
is more than the right to approve existing political beliefs and economic
arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free
speech may "best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger."169 It
is in this context that we should guard against any curtailment of the peoples right
to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right
is "a means of assuring individual self-fulfillment,"170 among others. In Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to
his full and complete fulfillment.Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through their suffrage but
also in the administration of public affairs as well as in the discipline of abusive
public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations
perform [an] important democratic role [in providing] forums for the development
of civil skills, for deliberation, and for the formation of identity and community
spirit[,] [and] are largely immune from [any] governmental interference."173 They
also "provide a buffer between individuals and the state - a free space for the
development of individual personality, distinct group identity, and dissident ideas -
and a potential source of opposition to the state."174 Free speech must be protected as
the vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and
minorities against majoritarian abuses perpetrated through [the] framework [of
democratic governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry at large -
majorities - who might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According
to Madison, "[i]t is of great importance in a republic not only to guard the society
against the oppression of its rulers, but to guard one part of the society against the
injustice of the other part."178 We should strive to ensure that free speech is protected
especially in light of any potential oppression against those who find themselves in
the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides
that "nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A]
dam about to burst . . . resulting in the banking up of a menacing flood of sullen
anger behind the walls of restriction"181 has been used to describe the effect of
repressing nonviolent outlets.182 In order to avoid this situation and prevent people
from resorting to violence, there is a need for peaceful methods in making passionate
dissent. This includes "free expression and political participation"183 in that they can
"vote for candidates who share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech
must, thus, be protected as a peaceful means of achieving ones goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means just
to drive a point.
II.B.5
Every citizens expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by COMELEC
under its constitutional mandate.187 Election propaganda is defined under Section
1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any matter
broadcasted, published, printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif, initials, and other symbol
or graphic representation that is capable of being associated with a candidate or
party, and is intended to draw the attention of the public or a segment thereof to
promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take
the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements
used by commercial advertisers. Political advertising includes matters, not falling
within the scope of personal opinion, that appear on any Internet website, including,
but not limited to, social networks, blogging sites, and micro-blogging sites, in return
for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation of the named public
officials act of voting against the RH Law, and their criticism toward those who
voted in its favor.189 It was "part of their advocacy campaign against the RH
Law,"190 which was not paid for by any candidate or political party.191 Thus, "the
questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in
our scheme of constitutional values."193 These rights enjoy precedence and
primacy.194 In Philippine Blooming Mills, this court discussed the preferred position
occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the
Bill of Rights is a useless attempt to limit the power of government and ceases to be
an efficacious shield against the tyranny of officials, of majorities, ofthe influential
and powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of
our civil and political institutions; and such priority "gives these liberties the sanctity
and the sanction not permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed
is the dissemination of information to make more meaningful the equally vital right
of suffrage."196 A similar idea appeared in our jurisprudence as early as 1969, which
was Justice Barredos concurring and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others
miss, that genuine democracy thrives only where the power and right of the people
toelect the men to whom they would entrust the privilege to run the affairs of the
state exist. In the language of the declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in the people and all
government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because
the people in it can be governed only by officials whom they themselves have placed
in office by their votes. And in it is on this cornerstone that I hold it tobe self-evident
that when the freedoms of speech, press and peaceful assembly and redress of
grievances are being exercised in relation to suffrage or asa means to enjoy the
inalienable right of the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of public affairs by
our officials must be allowed to suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power in our government
must be ready to undergo exposure any moment of the day or night, from January to
December every year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who would regard public
dissection of the establishment as an attribute to be indulged by the people only at
certain periods of time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of suffrage, as the
very means by which the right itself to vote can only be properly enjoyed.It stands to
reason therefore, that suffrage itself would be next to useless if these liberties cannot
be untrammelled [sic] whether as to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that
some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its
pervasive police power, in order that it may not be injurious to the equal right of
others or those of the community or society. The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech, may vary
from those of another, e.g., obscene speech. Distinctionshave therefore been made in
the treatment, analysis, and evaluation ofthe permissible scope of restrictions on
various categories of speech. We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled
to constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to
speech "both intended and received as a contribution to public deliberation about
some issue,"200 "foster[ing] informed and civicminded deliberation."201 On the other
hand, commercial speech has been defined as speech that does "no more than
propose a commercial transaction."202 The expression resulting from the content of
the tarpaulin is, however, definitely political speech. In Justice Brions dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its
posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No.
9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an
electoralmatter, the slant that the petitioners gave the issue converted the non-
election issue into a live election one hence, Team Buhay and Team Patay and the
plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates
and political parties, this does not necessarily mean it is election propaganda. The
tarpaulin was not paid for or posted "in return for consideration" by any candidate,
political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules
and regulations implementing Republic Act No. 9006 as an aid to interpret the law
insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter
broadcasted, published, printed, displayed or exhibited, in any medium, which
contain the name, image, logo, brand, insignia, color motif, initials, and other symbol
or graphic representation that is capable of being associated with a candidate or
party, and is intended to draw the attention of the public or a segment thereof to
promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take
the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements
used by commercial advertisers. Political advertising includes matters, not falling
within the scope of personal opinion, that appear on any Internet website, including,
but not limited to, social networks, blogging sites, and micro-blogging sites, in return
for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included, while
sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or candidates to
a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall
not be considered acts of election campaigning or partisan politicalactivity unless
expressed by government officials in the Executive Department, the Legislative
Department, the Judiciary, the Constitutional Commissions, and members of the
Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and
parameters should be deemed narrowly tailored only in relation to the facts and
issues in this case. It also appears that such wording in COMELEC Resolution No.
9615 does not similarly appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full
discussion of public affairs. We acknowledged that free speech includes the right to
criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of official dom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for redress
of grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of
Espuelas v. People,208 this court noted every citizens privilege to criticize his or her
government, provided it is "specific and therefore constructive, reasoned or
tempered, and not a contemptuous condemnation of the entire government set-
up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election
Law provision "penaliz[ing] the anonymous criticism of a candidate by means of
posters or circulars."211 This court explained that it is the posters anonymous
character that is being penalized.212 The ponente adds that he would "dislike very
muchto see this decision made the vehicle for the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to
vent their views. According to this court, "[i]ts value may lie in the fact that there
may be something worth hearing from the dissenter [and] [t]hat is to ensurea true
ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their
government contributes to every societys goal for development. It puts forward
matters that may be changed for the better and ideas that may be deliberated on to
attain that purpose. Necessarily, it also makes the government accountable for acts
that violate constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646, which
prohibits mass media from selling print space and air time for campaign except to
the COMELEC, to be a democracy-enhancing measure.216This court mentioned how
"discussion of public issues and debate on the qualifications of candidates in an
election are essential to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in
the context of elections when the free exercise thereof informs the people what the
issues are, and who are supporting what issues."218 At the heart of democracy is
every advocates right to make known what the people need to know,219 while the
meaningful exercise of ones right of suffrage includes the right of every voter to
know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on
public issues, and the freedom of expression especially in relation to information
that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited,
robust, and wide open and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on government and public officials. Too many
restrictions will deny to people the robust, uninhibited, and wide open debate, the
generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage.221(Emphasis supplied,
citations omitted)
Speech with political consequences isat the core of the freedom of expression and
must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which
all other rights and even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of
protected speech are still subjectto some restrictions. The degree of restriction may
depend on whether the regulation is content-based or content-neutral.223 Content-
based regulations can either be based on the viewpoint of the speaker or the subject
of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based
as it applies only to political speech and not to other forms of speech such as
commercial speech.225 "[A]ssuming arguendo that the size restriction sought to be
applied . . . is a mere time, place, and manner regulation, its still unconstitutional for
lack of a clear and reasonable nexus with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or content-
based.227 Regardless, the disposition of this case will be the same. Generally,
compared with other forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the elections
because they deliver opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of
non-candidates will be adjudged as "election paraphernalia." There are no existing
bright lines to categorize speech as election-related and those that are not. This is
especially true when citizens will want to use their resources to be able to raise
public issues that should be tackled by the candidates as what has happened in this
case. COMELECs discretion to limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the
tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions
imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive,
extremely serious and the degree of imminence extremely high."230 "Only when the
challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming the
presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered by the
posting of the tarpaulinas to justify curtailment of the right of freedom of expression.
There is no reason for the state to minimize the right of non-candidate petitioners to
post the tarpaulin in their private property. The size of the tarpaulin does not affect
anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject
matter of the utterance or speech."232 In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as time, place, or manner of the
speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948
case of Primicias v. Fugoso.234 The ordinance in this case was construed to grant the
Mayor discretion only to determine the public places that may be used for the
procession ormeeting, but not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free speech and peaceful
assembly are "not absolute for it may be so regulated that it shall not beinjurious to
the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission
resolution that prohibited the passing of animal-drawn vehicles along certain roads
at specific hours.238 This court similarly discussed police power in that the assailed
rules carry outthe legislative policy that "aims to promote safe transit upon and
avoid obstructions on national roads, in the interest and convenience of the
public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder
will mark the public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement. . . ."241 It is with this backdrop that the state is justified in
imposing restrictions on incidental matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that
permit applicants must follow which include informing the licensing authority
ahead of time as regards the date, public place, and time of the assembly.242 This
would afford the public official time to inform applicants if there would be valid
objections, provided that the clear and present danger test is the standard used for
his decision and the applicants are given the opportunity to be heard.243 This ruling
was practically codified in Batas Pambansa No. 880, otherwise known as the Public
Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-
neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how
Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their
time, place, and manner.245 In 2010, this court found in Integrated Bar of the
Philippines v. Atienza246 that respondent Mayor Atienza committed grave abuse of
discretion when he modified the rally permit by changing the venue from Mendiola
Bridge to Plaza Miranda without first affording petitioners the opportunity to be
heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size
limit for tarpaulins are content-neutral regulations as these "restrict the mannerby
which speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC
will not pass the three requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its validity,"250 and it is
subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several
cases.252 A content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incident restriction on
alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to
regulate the tarpaulin. As discussed earlier, this is protected speech by petitioners
who are non-candidates. On the second requirement, not only must the
governmental interest be important or substantial, it must also be compelling as to
justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the States
mandate to protect and care for them, as parens patriae,254 constitute a substantial
and compelling government interest in regulating . . . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding of a
free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among candidates, as
allowing posters with different sizes gives candidates and their supporters the
incentive to post larger posters[,] [and] [t]his places candidates with more money
and/or with deep-pocket supporters at an undue advantage against candidates with
more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the
right of [a private citizen] to freely express his choice and exercise his right of free
speech."258 In any case, faced with both rights to freedom of speech and equality, a
prudent course would be to "try to resolve the tension in a way that protects the
right of participation."259
Second, the pertinent election lawsrelated to private property only require that the
private property owners consent be obtained when posting election propaganda in
the property.260 This is consistent with the fundamental right against deprivation of
property without due process of law.261 The present facts do not involve such
posting of election propaganda absent consent from the property owner. Thus, this
regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C, Section
2(7) provides:
functions:
....
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidates. (Emphasis supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the preferred right to
freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2)
by three feet (3) size limitation under Section 6(c) of COMELEC Resolution No.
9615. This resolution implements the Fair Election Act that provides for the same
size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest
of the State in guaranteeing freedom of expression, any financial considerations
behind the regulation are of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective of minimizing election
spending considering there is no limit on the number of tarpaulins that may be
posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or
motive in imposing the restriction, but more so at the effects of such restriction, if
implemented. The restriction must not be narrowly tailored to achieve the purpose.
It must be demonstrable. It must allow alternative avenues for the actor to make
speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners
message and violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be encouraged,
more so when exercised to make more meaningful the equally important right to
suffrage.
The restriction in the present case does not pass even the lower test of intermediate
scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators
that this will cause a "chilling effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of
Marshall McLuhan, "the medium is the message."266 McLuhans colleague and
mentor Harold Innis has earlier asserted that "the materials on which words were
written down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals
for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials
in the form of tarpaulins, posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate or political party. This
skirts the constitutional value that provides for equal opportunities for all
candidates.
However, as agreed by the parties during the oral arguments in this case, this is not
the situation that confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to
any political candidate should not be held hostage by the possibility of abuse by
those seeking to be elected. It is true that there can be underhanded, covert, or illicit
dealings so as to hide the candidates real levels of expenditures. However, labelling
all expressions of private parties that tend to have an effect on the debate in the
elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more
effective enforcement will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate,
others will spend their own resources in order to lend support for the campaigns.
This may be without agreement between the speaker and the candidate or his or her
political party. In lieu of donating funds to the campaign, they will instead use their
resources directly in a way that the candidate or political party would have doneso.
This may effectively skirt the constitutional and statutory limits of campaign
spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and
political parties will carry in their election posters or media ads. The message of
petitioner, taken as a whole, is an advocacy of a social issue that it deeply believes.
Through rhetorical devices, it communicates the desire of Diocese that the positions
of those who run for a political position on this social issue be determinative of how
the public will vote. It primarily advocates a stand on a social issue; only secondarily
even almost incidentally will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that
employs such devices as sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in society, private and
government alike. It seeks to effectively communicate a greater purpose, often used
for "political and social criticism"269 "because it tears down facades, deflates stuffed
shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in
this literary field, claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other rhetorical
devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it to
mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the intention of
those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the list of
"Team Buhay" that further emphasizes the theme of its author: Reproductive health
is an important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative
and descriptive and contain no sophisticated literary allusion to any social objective.
Thus, they usually simply exhort the public to vote for a person with a brief
description of the attributes of the candidate. For example "Vote for [x], Sipag at
Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of expression has always been
wary of censorship or subsequent punishment that entails evaluation of the
speakers viewpoint or the content of ones speech. This is especially true when the
expression involved has political consequences. In this case, it hopes to affect the
type of deliberation that happens during elections. A becoming humility on the part
of any human institution no matter how endowed with the secular ability to decide
legal controversies with finality entails that we are not the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the
weakest dissent. Tolerance has always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional heretics of yesterday that have
become our visionaries. Heterodoxies have always given us pause. The unforgiving
but insistent nuance that the majority surely and comfortably disregards provides us
with the checks upon reality that may soon evolve into creative solutions to grave
social problems. This is the utilitarian version. It could also be that it is just part of
human necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains
other provisions which, taken together with the guarantee of free expression,
enhances each others value. Among these are the provisions that acknowledge the
idea of equality. In shaping doctrine construing these constitutional values, this
court needs to exercise extraordinary prudence and produce narrowly tailored
guidance fit to the facts as given so as not to unwittingly cause the undesired effect
of diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech
that separate at the point of giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or equalize
speaking power, such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within societys ideological
ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may
drown out the messages of others. This is especially true in a developing or
emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones authentic
self or to participate in the self determination of ones communities is not new only
to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background
limitation, rendering freedoms exercised within such limitation as merely
"protect[ing] the already established machinery of discrimination."275 In his view,
any improvement "in the normal course of events" within an unequal society,
without subversion, only strengthens existing interests of those in power and
control.276
In other words, abstract guarantees of fundamental rights like freedom of expression
may become meaningless if not taken in a real context. This tendency to tackle rights
in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a tautology, but a tautology
which results from a whole series of synthetic judgments. It stipulates the ability to
determine ones own life: to be able to determine what to do and what not to do,
what to suffer and what not. But the subject of this autonomy is never the
contingent, private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free with the others.
And the problem of making possible such a harmony between every individual
liberty and the other is not that of finding a compromise between competitors, or
between freedom and law, between general and individual interest, common and
private welfare in an established society, but of creating the society in which man is
no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the
existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument with all opinions presented to
and deliberated by the people "implies a necessary condition, namely, that the
people must be capable of deliberating and choosing on the basis of knowledge, that
they must have access to authentic information, and that, on this basis, their
evaluation must be the result of autonomous thought."278 He submits that "[d]ifferent
opinions and philosophies can no longer compete peacefully for adherence and
persuasion on rational grounds: the marketplace of ideas is organized and
delimited by those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a natural right of resistance
for oppressed and overpowered minorities to use extralegal means if the legal ones
have proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks
away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive
tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political egalitarians.
Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when taken
together, produce bases for a system of stringent protections for expressive
liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice
Brandeis proposed that "public discussion is a political duty."284 Cass Sustein placed
political speech on the upper tier of his twotier model for freedom of expression,
thus, warranting stringent protection.285 He defined political speech as "both
intended and received as a contribution to public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair
access to opportunity is suggested to mean substantive equality and not mere formal
equalitysince "favorable conditions for realizing the expressive interest will include
some assurance of the resources required for expression and some guarantee that
efforts to express views on matters of common concern will not be drowned out by
the speech of betterendowed citizens."288 Justice Brandeis solution is to "remedy the
harms of speech with more speech."289 This view moves away from playing down
the danger as merely exaggerated, toward "tak[ing] the costs seriously and
embrac[ing] expression as the preferred strategy for addressing them."290 However,
in some cases, the idea of more speech may not be enough. Professor Laurence Tribe
observed the need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon adds that
"equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who are
dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the validity of
Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass
media from selling or giving free of charge print space or air time for campaign or
other political purposes, except to the Commission on Elections."294 This court
explained that this provision only regulates the time and manner of advertising in
order to ensure media equality among candidates.295 This court grounded this
measure on constitutional provisions mandating political equality:296 Article IX-C,
Section 4
Section 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that
protect and enhance the right of all the people to human dignity, reducesocial,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for more
substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a
bearing in free speech doctrine. Under this view, "members of the public are trusted
to make their own individual evaluations of speech, and government is forbidden to
intervene for paternalistic or redistributive reasons . . . [thus,] ideas are best left to a
freely competitive ideological market."297This is consistent with the libertarian
suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather
than affirmative language. It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free speech per se, indifferent
to the types, status, or associations of its speakers.299 Pursuant to this, "government
must leave speakers and listeners in the private order to their own devices in sorting
out the relative influence of speech."300
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this view
that freedom of speech includes "not only the right to express ones views, but also
other cognate rights relevant to the free communication [of] ideas, not excluding the
right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections
qualifications of voters and candidates, education, means of transportation, health,
public discussion, private animosities, the weather, the threshold of a voters
resistance to pressure the utmost ventilation of opinion of men and issues,
through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the
electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American case, if only to emphasize
free speech primacy such that"courts, as a rule are wary to impose greater
restrictions as to any attempt to curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the
First Amendment which was designed to "secure the widest possible dissemination
of information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market place of
ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of
the US Supreme Court in the campaign expenditures case of Buckley v. Valeo
"condemned restrictions (even if content-neutral) on expressive liberty imposed in
the name of enhanc[ing] the relative voice of others and thereby equaliz[ing] access
to the political arena."306 The majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the decision of
when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
profound national commitment that debate on public issues should be uninhibited,
robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been able to raise funds does
not ease the plight of those without funds in the first place . . . [and] even if ones
main concern isslowing the increase in political costs, it may be more effective torely
on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the skys the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays off in votes per
dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes the
ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will
have better access to media that reaches a wider audience than those who have less.
Those who espouse the more popular ideas will have better reception than the
subversive and the dissenters of society.To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation that
allows public officials to make judgments of the value of such viewpoint or message
content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by
candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmea v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken
as a whole, principally advocacies of a social issue that the public must consider
during elections is unconstitutional. Such regulation is inconsistent with the
guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in
the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which
will not amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches
into speech of persons who are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal object the endorsement of a
candidate only. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all
candidates to be heard and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive means to achieve that object.
The regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or censored
onthe basis of its content. For this purpose, it will notmatter whether the speech is
made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC
Resolution No. 9615 if applied to this case, will not pass the test of reasonability.
A fixed size for election posters or tarpaulins without any relation to the distance
from the intended average audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general public and, hence,
would render speech meaningless. It will amount to the abridgement of speech with
political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the
right to suffrage,312 the present case also involves ones right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of
regulations relating to election propaganda by applying such regulations to private
individuals.314 Certainly, any provision or regulation can be circumvented. But we
are not confronted with this possibility. Respondents agree that the tarpaulin in
question belongs to petitioners. Respondents have also agreed, during the oral
arguments, that petitioners were neither commissioned nor paid by any candidate or
political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the
private property of petitioners. Their right to use their property is likewise protected
by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property rights
is void, because it is repugnant to the constitutional guaranties of due process and
equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers
should be posted is "so broad that it encompasses even the citizens private
property."317 Consequently, it violates Article III, Section 1 of the Constitution which
provides thatno person shall be deprived of his property without due process of law.
This court explained:
Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790,
18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
persons acquisitions without control or diminution save by the law of the land. 1
Cooleys Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this
right is joined by a "liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable. The burden is not
met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or private,
except inthe common poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal poster on his own
front dooror on a post in his yard. While the COMELEC will certainly never require
the absurd, there are no limits to what overzealous and partisan police officers,
armed with a copy of the statute or regulation, may do.319 Respondents ordered
petitioners, who are private citizens, to remove the tarpaulin from their own
property. The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There
may be no expression when there is no place where the expression may be made.
COMELECs infringement upon petitioners property rights as in the present case
also reaches out to infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners property rights. Election laws and
regulations must be reasonable. It must also acknowledge a private individuals
right to exercise property rights. Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the
posting of election propaganda in private property without the consent of the
owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in their own
private property is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the
questioned notice and letter violated the right of petitioners to the free exercise of
their religion.
At the outset, the Constitution mandates the separation of church and state.320 This
takes many forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. Noreligious test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession and
worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any
other religious make such act immune from any secular regulation.324 The religious
also have a secular existence. They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
bishop amounts to religious expression. This notwithstanding petitioners claim that
"the views and position of the petitioners, the Bishop and the Diocese of Bacolod, on
the RH Bill is inextricably connected to its Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that
every act can be motivated by moral, ethical, and religious considerations. In terms
of their effect on the corporeal world, these acts range from belief, to expressions of
these faiths, to religious ceremonies, and then to acts of a secular character that may,
from the point of view of others who do not share the same faith or may not
subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this
court. Certainly, our powers of adjudication cannot be blinded by bare claims that
acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically" held
that the adherents ofa particular religion shall be the ones to determine whether a
particular matter shall be considered ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovahs Witnesses from participating in the flag ceremony
"out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay
seem to others."328 This court found a balance between the assertion of a religious
practice and the compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations
are government policies that take religion specifically intoaccount not to promote the
governments favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. Their purpose or effect therefore is to
remove a burden on, or facilitate the exercise of, a persons or institutions religion.
As Justice Brennan explained, the "government [may] take religion into account . . .
to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither advances
nor inhibits religion; and (3) it does not foster an excessive entanglement with
religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey
any religious doctrine of the Catholic church."332 That the position of the Catholic
church appears to coincide with the message of the tarpaulin regarding the RH Law
does not, by itself, bring the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates classified under "Team Patay" and
"Team Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal encyclicals to support their
claim that the expression onthe tarpaulin is an ecclesiastical matter. With all due
respect to the Catholic faithful, the church doctrines relied upon by petitioners are
not binding upon this court. The position of the Catholic religion in the Philippines
as regards the RH Law does not suffice to qualify the posting by one of its members
of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor
Relations Commission333 cited by petitioners finds no application in the present case.
The posting of the tarpaulin does not fall within the category of matters that are
beyond the jurisdiction of civil courts as enumerated in the Austriacase such as
"proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached religious
significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was
its duty in this case. However, it was misdirected.
COMELECs general role includes a mandate to ensure equal opportunities and
reduce spending among candidates and their registered political parties. It is not to
regulate or limit the speech of the electorate as it strives to participate inthe electoral
exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office.Their message may be construed generalizations of very
complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team
Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis
of a single issue and a complex piece of legislation at that can easily be
interpreted as anattempt to stereo type the candidates and party-list organizations.
Not all may agree to the way their thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of petitioners.
Some may have thought that there should be more room to consider being more
broad-minded and non-judgmental. Some may have expected that the authors
would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It
provides space for all to be guided by their conscience, not only in the act that they
do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in
the minority. This can often be expressed by dominant institutions, even religious
ones. That they made their point dramatically and in a large way does not
necessarily mean that their statements are true, or that they have basis, or that they
have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a
specie of expression protected by our fundamental law. It is an expression designed
to invite attention, cause debate, and hopefully, persuade. It may be motivated by
the interpretation of petitioners of their ecclesiastical duty, but their parishioners
actions will have very real secular consequences. Certainly, provocative messages do
matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It is a portion of the
electorate telling candidates the conditions for their election. It is the substantive
content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all
deserve. It is protected as a fundamental and primordial right by our Constitution.
The expression in the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order
previously issued is hereby made permanent. The act of the COMELEC in issuing
the assailed notice dated February 22, 2013 and letter dated February 27, 2013 is
declared unconstitutional.
SO ORDERED.
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in
behalf of their minor children, LUCIA CARLOS IMBONG and BERNADETTE
CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI],
represented by its President, Maria Concepcion S. Noche, Spouses Reynaldo S.
Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M.
Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante,
Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina
Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves
and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco
& Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z. Araneta &
Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for
themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R.
Racho & Zara Z. Racho for themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho,
Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas
and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R.
Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports, HON. CORAZON SOLIMAN,
Secretary, Department of Social Welfare and Development, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON.
ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented
by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President Eduardo Banzon,
THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T.
ONA, Secretary, Department of Education; and HON. MANUELA. ROXAS II,
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B.
Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member
of the school board and in his personal capacity, ROSEMARIE R. ALENTON,
IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC,
EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary,
HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II,
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON.
SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF
THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO,
DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented
by its National President, Atty. Ricardo M . Ribo, and in his own behalf, Atty.
Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael
Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero
Falcone, Petitioners,
vs.
Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary,
Department of Social Welfare and Development, HON. ARSENIO BALISACAN,
Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE
BOARD OF DIRECTORS, Philippine Health Insurance Corporation, and THE
BOARD OF COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T.
DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively
known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G.
MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO,
ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For
Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B.
ABAD, Secretary of the Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and HON. MANUELA.
ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F.
PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as
Executive Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT
Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A.
MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG,
RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary,
HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS
II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY.
CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA
CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.
LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and
LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS
ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-SARMIENTO,
AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE
VERONICA N. RODRIGO, Petitioners,
vs.
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA,
Secretary of the Department of Health, and HON. ARMIN A. LUISTRO,Secretary
of the Department of Budget and Management, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs , and to
live as he believes he ought to live, consistent with the liberty of others and with the
common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy
and unemployment. While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social services remains to
be a problem that concerns not only the poor, but every member of society. The
government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country
as a whole. The legislative branch, as the main facet of a representative government,
endeavors to enact laws and policies that aim to remedy looming societal woes,
while the executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly
distant is the judicial branch, oftentimes regarded as an inert governmental body
that merely casts its watchful eyes on clashing stakeholders until it is called upon to
adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society together - the supremacy of the
Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population
growth control, abortion and contraception. As in every democratic society,
diametrically opposed views on the subjects and their perceived consequences freely
circulate in various media. From television debates2 to sticker campaigns,3 from
rallies by socio-political activists to mass gatherings organized by members of the
clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of
the society. Despite calls to withhold support thereto, however, Republic Act (R.A.)
No. 10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to
wield the sword that strikes down constitutional disobedience. Aware of the
profound and lasting impact that its decision may produce, the Court now faces the
iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7 and
several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas,
Inc., and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task
Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,
Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY)
, an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes
cancer and other health problems.36
The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal
prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs to
other doctors; and 2] to provide full and correct information on reproductive health
programs and service, although it is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the
RH Law (RH-IRR),39 provides that skilled health professionals who are public
officers such as, but not limited to, Provincial, City, or Municipal Health Officers,
medical officers, medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are specifically charged with the
duty to implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious
beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present danger
test" and the "compelling state interest test" to justify the regulation of the right to
free exercise of religion and the right to free speech.42
The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona
services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a
medical practitioner would effectively be forced to render reproductive health
services since the lack of PhilHealth accreditation would mean that the majority of
the public would no longer be able to avail of the practitioners services.44
The RH Law violates the right to equal protection of the law. It is claimed
that the RH Law discriminates against the poor as it makes them the primary
target of the government program that promotes contraceptive use. The
petitioners argue that, rather than promoting reproductive health among the
poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation of the due process clause
of the Constitution. In imposing the penalty of imprisonment and/or fine for
"any violation," it is vague because it does not define the type of conduct to be
treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to
due process by removing from them (the people) the right to manage their own
affairs and to decide what kind of health facility they shall be and what kind of
services they shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance with their own
discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain
a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note
that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48
The RH Law intrudes into the zone of privacy of one's family protected by
the Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining
to the overall well-being of their family. In the same breath, it is also claimed that the
parents of a child who has suffered a miscarriage are deprived of parental authority
to determine whether their child should use contraceptives.50
The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to
the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision under Section
26( 1 ), Article VI of the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at
the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and
R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law. Aside
from the Office of the Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the
Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners,
pray for the dismissal of the petitions for the principal reasons that 1] there is no
actual case or controversy and, therefore, the issues are not yet ripe for judicial
determination.; 2] some petitioners lack standing to question the RH Law; and 3] the
petitions are essentially petitions for declaratory relief over which the Court has no
original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and implementation
of the assailed legislation for a period of one hundred and twenty (120) days, or until
July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the
parties to determine and/or identify the pertinent issues raised by the parties and
the sequence by which these issues were to be discussed in the oral arguments. On
July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of
the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back as
June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a duly
licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and devices."
Under Section 37 thereof, it was provided that "no drug or chemical product or
device capable of provoking abortion or preventing conception as classified by the
Food and Drug Administration shall be delivered or sold to any person without a
proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be considered as
the principal element for long-term economic development, enacted measures that
promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August 16,
1971, entitled "An Act Establishing a National Policy on Population, Creating the
Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and
effective means will be provided to couples desiring to space or limit family size;
mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued
Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others,
made "family planning a part of a broad educational program," provided "family
planning services as a part of over-all health care," and made "available all
acceptable methods of contraception, except abortion, to all Filipino citizens desirous
of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods
evolved from being a component of demographic management, to one centered on
the promotion of public health, particularly, reproductive health.69 Under that
policy, the country gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the commitments made
in the International Conference on Population and Development.70 Thus, on August
14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, "
which, among others, mandated the State to provide for comprehensive health
services and programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the year
2000 and over 92 million in 2010.72 The executive and the legislative, thus, felt that
the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that
its objective to provide for the peoples' right to reproductive health be achieved. To
make it more effective, the RH Law made it mandatory for health providers to
provide information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To put teeth
to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make
effective the current laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the right
to health of women and the sanctity of life, which the State is mandated to protect
and promote. Thus, ALFI prays that "the status quo ante - the situation prior to the
passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se.
As provided under Republic Act No. 5921 and Republic Act No. 4729, the sale and
distribution of contraceptives are prohibited unless dispensed by a prescription duly
licensed by a physician. What the Petitioners find deplorable and repugnant under
the RH Law is the role that the State and its agencies - the entire bureaucracy, from
the cabinet secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program to the
fullest extent possible using taxpayers' money. The State then will be the funder and
provider of all forms of family planning methods and the implementer of the
program by ensuring the widespread dissemination of, and universal access to, a full
range of family planning methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court
has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over
the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it
behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review
over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it
should submit to the legislative and political wisdom of Congress and respect the
compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and positive norms with the
political departments, in particular, with Congress.77 It further asserts that in view of
the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the remedies
of certiorari and prohibition utilized by the petitioners are improper to assail the
validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on its
face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of
the Executive and the Legislature, it is often sought that the Court temper its exercise
of judicial power and accord due respect to the wisdom of its co-equal branch on the
basis of the principle of separation of powers. To be clear, the separation of powers is
a fundamental principle in our system of government, which obtains not through
express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction and is
supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in
the Congress of the Philippines;82 (b) the executive power shall be vested in the
President of the Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.84 The
Constitution has truly blocked out with deft strokes and in bold lines, the allotment
of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other branches of government, in
striking down the acts of the Executive or the Legislature as unconstitutional. Verily,
the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated.87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch done
within its sphere of competence and authority, but at the same time, allows it to
cross the line of separation - but only at a very limited and specific point - to
determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion.88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH Law,
it may do so where an attendant unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review
may be limited, the Constitution makes no distinction as to the kind of legislation
that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the executive branches,
since its duty is not to review their collective wisdom but, rather, to make sure that
they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the
actions under review.90 This is in line with Article VIII, Section 1 of the Constitution
which expressly provides:
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. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal
v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94and countless others.
In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an
action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld. "
Once a "controversy as to the application or interpretation of constitutional provision
is raised before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the separation of
powers and the balancing of powers among the three great departments of
government through the definition and maintenance of the boundaries of authority
and control between them. To him, judicial review is the chief, indeed the only,
medium of participation - or instrument of intervention - of the judiciary in that
balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by
four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis
mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be implemented.97 They
claim that the questions raised by the petitions are not yet concrete and ripe for
adjudication since no one has been charged with violating any of its provisions and
that there is no showing that any of the petitioners' rights has been adversely
affected by its operation.98 In short, it is contended that judicial review of the RH
Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that courts
do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable-definite 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; that is, it must concern a
real, tangible 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.100
Corollary to the requirement of an actual case or controversy is the requirement of
ripeness.101 A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of
the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued
that the Court has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act
in question being not yet effective does not negate ripeness. Concrete acts under a
law are not necessary to render the controversy ripe. Even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that
the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to carry
out the law have already been passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but
also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is not a
speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the right
of the people to peaceably assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious freedom, freedom of the
press and peaceful assembly are but component rights of the right to one's freedom
of expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld
the application of facial challenges to strictly penal statues,108 it has expanded its
scope to cover statutes not only regulating free speech, but also those involving
religious freedom, and other fundamental rights.109 The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but
also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court has
authority to take cognizance of these kindred petitions and to determine if the RH
Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple
expedient that there exist no actual case or controversy, would diminish this Court
as a reactive branch of government, acting only when the Fundamental Law has
been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners cannot
prosper as the assailed law has yet to be enforced and applied against them,111 and
the government has yet to distribute reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite locus
standi.
Locus standi or legal standing is 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
challenged governmental act.113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult
constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of his own
rights. The rule prohibits one from challenging the constitutionality of the statute
grounded on a violation of the rights of third persons not before the court. This rule
is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as when
the matter is of transcendental importance, of overreaching significance to society, or
of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders although they had only
an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted liberally
on the locus s tandi requirement. It has accorded certain individuals standing to sue,
not otherwise directly injured or with material interest affected by a Government act,
provided a constitutional issue of transcendental importance is invoked. The rule on
locus standi is, after all, a procedural technicality which the Court has, on more than
one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any other
government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition
for prohibition, the transcendental importance of the issues involved in this case
warrants that we set aside the technical defects and take primary jurisdiction over
the petition at bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial justice, must
always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public,
but also to the bench and bar, the issues raised must be resolved for the guidance of
all. After all, the RH Law drastically affects the constitutional provisions on the right
to life and health, the freedom of religion and expression and other constitutional
rights. Mindful of all these and the fact that the issues of contraception and
reproductive health have already caused deep division among a broad spectrum of
society, the Court entertains no doubt that the petitions raise issues of transcendental
importance warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn which is primarily
at issue, the Court need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the
life of either the mother or her child is at stake, would lead to irreparable
consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.120 Suffice it to
state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it
has original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one subject-
one title rule. According to them, being one for reproductive health with responsible
parenthood, the assailed legislation violates the constitutional standards of due
process by concealing its true intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,124and that the concepts of "responsible parenthood" and
"reproductive health" are both interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
principally a population control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it claims to save lives and
keep our women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning
methods, natural or modem, however, are clearly geared towards the prevention of
pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the
number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal
care as well. A large portion of the law, however, covers the dissemination of
information and provisions on access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive health care services, methods, devices,
and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to contraception or are related to it
and the RH Law loses its very foundation.127 As earlier explained, "the other positive
provisions such as skilled birth attendance, maternal care including pre-and post-
natal services, prevention and management of reproductive tract infections
including HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G
Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to
employ in the title of the enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as to include the
general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed law
and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation."
[Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to
the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights
of all persons including their right to equality and nondiscrimination of these rights,
the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose
and make decisions for themselves in accordance with their religious convictions,
ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not
be "so uncertain that the average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its contents, or which is misleading,
either in referring to or indicating one subject where another or different one is really
embraced in the act, or in omitting any expression or indication of the real subject or
scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to believe
that Congress intentionally sought to deceive the public as to the contents of the
assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of
the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section
4(a) of the RH Law considers contraceptives that prevent the fertilized ovum to
reach and be implanted in the mother's womb as an abortifacient; thus, sanctioning
contraceptives that take effect after fertilization and prior to implantation, contrary
to the intent of the Framers of the Constitution to afford protection to the fertilized
ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies, medical research
shows that contraceptives use results in abortion as they operate to kill the fertilized
ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes natural law
and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and
Drug Administration (FDA) to certify that the product or supply is not to be used as
an abortifacient, the assailed legislation effectively confirms that abortifacients are
not prohibited. Also considering that the FDA is not the agency that will actually
supervise or administer the use of these products and supplies to prospective
patients, there is no way it can truthfully make a certification that it shall not be used
for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers
of the Constitution was simply the prohibition of abortion. They contend that the RH
Law does not violate the Constitution since the said law emphasizes that only "non-
abortifacient" reproductive health care services, methods, devices products and
supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law was
enacted with due consideration to various studies and consultations with the World
Health Organization (WHO) and other experts in the medical field, it is asserted that
the Court afford deference and respect to such a determination and pass judgment
only when a particular drug or device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's
right to life is not violated considering that various studies of the WHO show that
life begins from the implantation of the fertilized ovum. Consequently, he argues
that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1,
Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled
"An Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of male vasectomy and tubal
ligation,139 and the ratification of numerous international agreements, the country
has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the
years, however, the use of contraceptives and other family planning methods
evolved from being a component of demographic management, to one centered on
the promotion of public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights
and health and the overall promotion of the family's well-being. Thus, aside from
R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No.
9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program
has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are
not merely grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when
life begins is a scientific and medical issue that should not be decided, at this stage,
without proper hearing and evidence. During the deliberation, however, it was
agreed upon that the individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The natural
and primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because, amazingly, there
are quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous
with "fertilization" of the female ovum by the male sperm.142 On the other side of the
spectrum are those who assert that conception refers to the "implantation" of the
fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of Chavez
v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words
of a statute are clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. It is a well-settled principle
of constitutional construction that the language employed in the Constitution must
be given their ordinary meaning except where technical terms are employed. As
much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based
on the postulate that the framers and the people mean what they say. Verba legis
non est recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained; and second, because the Constitution is not primarily a
lawyer's document but essentially that of the people, in whose consciousness it
should ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable sources,
means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming
pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human life
capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality
first before he/she could die. Even a child inside the womb already has life. No less
than the Constitution recognizes the life of the unborn from conception, that the
State must protect equally with the life of the mother. If the unborn already has life,
then the cessation thereof even prior to the child being delivered, qualifies as death.
[Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme
Court, said that the State "has respect for human life at all stages in the pregnancy"
and "a legitimate and substantial interest in preserving and promoting fetal life."
Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from
the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of
human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question
that needs to be answered is: Is the fertilized ovum alive? Biologically categorically
says yes, the fertilized ovum is alive. First of all, like all living organisms, it takes in
nutrients which it processes by itself. It begins doing this upon fertilization.
Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of cell division. All these
processes are vital signs of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the
moment of conception, the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only -
and I repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if
the fertilized ovum is both alive and human, then, as night follows day, it must be
human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us
here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of
writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization; and
that would really be very, very, dangerous. It is now determined by science that life
begins from the moment of conception. There can be no doubt about it. So we should
not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed right
now states:
The State shall equally protect the life of the mother and the life of the unborn from
the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg
meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not because
it is a fact that some of the so-called contraceptives deter the rooting of the ovum in
the uterus. If fertilization has already occurred, the next process is for the fertilized
ovum to travel towards the uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the fertilized ovum to reach the
uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned under
this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and based
on the provision as it is now proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both the
mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to
ban all contraceptives for being unconstitutional. In fact, Commissioner Bernardo
Villegas, spearheading the need to have a constitutional provision on the right to life,
recognized that the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the courts to decide on
based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum
should be deemed an abortive and thus prohibited. Conversely, contraceptives that
actually prevent the union of the male sperm and the female ovum, and those that
similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the
point that I would like not only to protect the life of the unborn, but also the lives of
the millions of people in the world by fighting for a nuclear-free world. I would just
like to be assured of the legal and pragmatic implications of the term "protection of
the life of the unborn from the moment of conception." I raised some of these
implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this point in time. Is that the
sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive.
There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg which
has already been fertilized from taking route to the uterus. So if we say "from the
moment of conception," what really occurs is that some of these contraceptives will
have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even
admitted by petitioners during the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I
am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s
Medical, Nursing, and Allied Health Dictionary defines conception as "the beginning
of pregnancy usually taken to be the instant a spermatozoon enters an ovum and
forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote
from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by
medical schools in the Philippines, also concludes that human life (human person)
begins at the moment of fertilization with the union of the egg and the sperm
resulting in the formation of a new individual, with a unique genetic composition
that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells during
a process known as fertilization (conception). Fertilization is a sequence of events
that begins with the contact of a sperm (spermatozoon) with a secondary oocyte
(ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm
and ovum) and the mingling of their chromosomes to form a new cell. This fertilized
ovum, known as a zygote, is a large diploid cell that is the beginning, or
primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They
wrote: "Although life is a continuous process, fertilization is a critical landmark
because, under ordinary circumstances, a new, genetically distinct human organism
is thereby formed.... The combination of 23 chromosomes present in each pronucleus
results in 46 chromosomes in the zygote. Thus the diploid number is restored and
the embryonic genome is formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and therein
concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are sacred from the moment
of conception, and that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human embryology, a
human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human
being can be posited. Any philosophical, legal, or political conclusion cannot escape
this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism
and that the life of a new human being commences at a scientifically well defined
"moment of conception." This conclusion is objective, consistent with the factual
evidence, and independent of any specific ethical, moral, political, or religious view
of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism and
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon.
Lagman that life begins at implantation.165 According to him, "fertilization and
conception are two distinct and successive stages in the reproductive process. They
are not identical and synonymous."166 Citing a letter of the WHO, he wrote that
"medical authorities confirm that the implantation of the fertilized ovum is the
commencement of conception and it is only after implantation that pregnancy can be
medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus.
The fertilized ovum/zygote is not an inanimate object - it is a living human being
complete with DNA and 46 chromosomes.168 Implantation has been conceptualized
only for convenience by those who had population control in mind. To adopt it
would constitute textual infidelity not only to the RH Law but also to the
Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of
any drug or device that would prevent the implantation of the fetus at the uterine
wall. It would be provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the record
of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo
Villegas, the principal proponent of the protection of the unborn from conception,
explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at
this stage, when life begins, it finds that the RH Law itself clearly mandates that
protection be afforded from the moment of fertilization. As pointed out by Justice
Carpio, the RH Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe travel to the uterus
for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized
ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities,
services and supplies that contribute to reproductive health and well-being by
addressing reproductive health-related problems. It also includes sexual health, the
purpose of which is the enhancement of life and personal relations. The elements of
reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number, spacing
and timing of their children; to make other decisions concerning reproduction, free
of discrimination, coercion and violence; to have the information and means to do
so; and to attain the highest standard of sexual health and reproductive health:
Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction, administrative
order, rule or regulation contrary to or is inconsistent with the provisions of this Act
including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby
repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction
of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word " or," the RH Law prohibits not only
drugs or devices that prevent implantation, but also those that induce abortion and
those that induce the destruction of a fetus inside the mother's womb. Thus, an
abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law,
consistent with the Constitution, recognizes that the fertilized ovum already has life
and that the State has a bounden duty to protect it. The conclusion becomes clear
because the RH Law, first, prohibits any drug or device that induces abortion (first
kind), which, as discussed exhaustively above, refers to that which induces the
killing or the destruction of the fertilized ovum, and, second, prohibits any drug or
device the fertilized ovum to reach and be implanted in the mother's womb (third
kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to
reach and be implanted in the mother's womb is an abortifacient (third kind), the RH
Law does not intend to mean at all that life only begins only at implantation, as Hon.
Lagman suggests. It also does not declare either that protection will only be given
upon implantation, as the petitioners likewise suggest. Rather, it recognizes that:
one, there is a need to protect the fertilized ovum which already has life, and two,
the fertilized ovum must be protected the moment it becomes existent - all the way
until it reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized ovum implants -
there is nothing to prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the Court's
position that life begins at fertilization, not at implantation. When a fertilized ovum
is implanted in the uterine wall , its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier. And as defined by
the RH Law, any drug or device that induces abortion, that is, which kills or destroys
the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law
that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when
the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section 9,
as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the FDA
that said product and supply is made available on the condition that it cannot be
used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any
means emergency contraceptive pills, postcoital pills, abortifacients that will be used
for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely
abused their office when they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction
of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes
as "abortifacient" only those that primarily induce abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section 3.0l(a)
and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the
RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an "abortifacient" if its sole
known effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb, but also those that do not have the secondary action of acting the
same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in
Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity
of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that
have the primary effect of being an abortive would effectively "open the floodgates
to the approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the
Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the
constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires
the inclusion of hormonal contraceptives, intrauterine devices, injectables and family
products and supplies in the National Drug Formulary and the inclusion of the same
in the regular purchase of essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the petitioners posit that the risk of
developing breast and cervical cancer is greatly increased in women who use oral
contraceptives as compared to women who never use them. They point out that the
risk is decreased when the use of contraceptives is discontinued. Further, it is
contended that the use of combined oral contraceptive pills is associated with a
threefold increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex
lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not
self-executory, it being a mere statement of the administration's principle and policy.
Even if it were self-executory, the OSG posits that medical authorities refute the
claim that contraceptive pose a danger to the health of women.181
A component to the right to life is the constitutional right to health. In this regard,
the Constitution is replete with provisions protecting and promoting the right to
health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for
the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and other
social services available to all the people at affordable cost. There shall be priority for
the needs of the underprivileged, sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development, and
research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing.
Unless the provisions clearly express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for legislation to implement
these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
... in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed
implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do
not question contraception and contraceptives per se.184 In fact, ALFI prays that the
status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of
contraceptives are not prohibited when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact
the provisions of R.A. No. 4729. There is no intention at all to do away with it. It is
still a good law and its requirements are still in to be complied with. Thus, the Court
agrees with the observation of respondent Lagman that the effectivity of the RH Law
will not lead to the unmitigated proliferation of contraceptives since the sale,
distribution and dispensation of contraceptive drugs and devices will still require
the prescription of a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives that are safe are
made available to the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be
dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An
Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes" are not repealed by the RH
Law and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs
and devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,
dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a
qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female
ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act
shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether harmful or not, is completely
unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH
Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH
shall procure, distribute to LGUs and monitor the usage of family planning supplies
for the whole country. The DOH shall coordinate with all appropriate local
government bodies to plan and implement this procurement and distribution
program. The supply and budget allotments shall be based on, among others, the
current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As
pointed out by Justice De Castro, a heavy responsibility and burden are assumed by
the government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to their
use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines available to the public are safe for
public consumption. Consequently, the Court finds that, at this point, the attack on
the RH Law on this ground is premature. Indeed, the various kinds of contraceptives
must first be measured up to the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-abortifacient.
The first sentence of Section 9 that ordains their inclusion by the National Drug
Formulary in the EDL by using the mandatory "shall" is to be construed as operative
only after they have been tested, evaluated, and approved by the FDA. The FDA, not
Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of
the third sentence concerning the requirements for the inclusion or removal of a
particular family planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that
the gamut of contraceptives are "safe, legal, non-abortifacient and effective" without
the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical practitioners who essentially
claim that their beliefs prohibit not only the use of contraceptives but also the willing
participation and cooperation in all things dealing with contraceptive use. Petitioner
PAX explained that "contraception is gravely opposed to marital chastity, it is
contrary to the good of the transmission of life, and to the reciprocal self-giving of
the spouses; it harms true love and denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing
that the expenditure of their taxes on contraceptives violates the guarantee of
religious freedom since contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes upon
the conscientious objector the duty to refer the patient seeking reproductive health
services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious
objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred to
in Section 7; b) public officers involved in the implementation of the law referred to
in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the RH
Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the
requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They add
that compelling them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they tend
to disregard the religion of Filipinos. Authorizing the use of contraceptives with
abortive effects, mandatory sex education, mandatory pro-bono reproductive health
services to indigents encroach upon the religious freedom of those upon whom they
are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer
the person seeking reproductive health care services to another provider infringes on
one's freedom of religion as it forces the objector to become an unwilling participant
in the commission of a serious sin under Catholic teachings. While the right to act on
one's belief may be regulated by the State, the acts prohibited by the RH Law are
passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to
justify regulation of religious freedom because it mentions no emergency, risk or
threat that endangers state interests. It does not explain how the rights of the people
(to equality, non-discrimination of rights, sustainable human development, health,
education, information, choice and to make decisions according to religious
convictions, ethics, cultural beliefs and the demands of responsible parenthood) are
being threatened or are not being met as to justify the impairment of religious
freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to
obtain a certificate of compliance. They claim that the provision forces individuals to
participate in the implementation of the RH Law even if it contravenes their
religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim
that the RH Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck down as it runs
afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that
a specific mode or type of contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.196 They point out that the RH Law only
seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the
State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices,
which deprive others of their right to reproductive health.198 They assert that the
assailed law only seeks to guarantee informed choice, which is an assurance that no
one will be compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to
religious freedom, the same right they invoked to assail the constitutionality of the
RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on
the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that of the citizen who
needs access to information and who has the right to expect that the health care
professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient
accommodation to the right to freely exercise one's religion without unnecessarily
infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the
duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents
claim that it is a reasonable regulation providing an opportunity for would-be
couples to have access to information regarding parenthood, family planning,
breastfeeding and infant nutrition. It is argued that those who object to any
information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject
any information they do not agree with and retain the freedom to decide on matters
of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family
planning is the only method acceptable to Catholics and the Catholic hierarchy.
Citing various studies and surveys on the matter, they highlight the changing stand
of the Catholic Church on contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its followers in planning their
families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is
made up of people of diverse ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to
whom they call for guidance and enlightenment in crafting our fundamental law.
Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of independence
and democracy under the rule of law and a regime of truth, justice, freedom, love,
equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by tradition
and historical experience. As this is embodied in the preamble, it means that the
State recognizes with respect the influence of religion in so far as it instills into the
mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain
benevolent and accommodating provisions towards religions such as tax exemption
of church property, salary of religious officers in government institutions, and
optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1wphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot favor
one religion and discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are
good for the country.
Consistent with the principle that not any one religion should ever be preferred over
another, the Constitution in the above-cited provision utilizes the term "church" in
its generic sense, which refers to a temple, a mosque, an iglesia, or any other house
of God which metaphorically symbolizes a religious organization. Thus, the
"Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier
to protect the State from the pursuit of its secular objectives, the Constitution lays
down the following mandate in Article III, Section 5 and Article VI, Section 29 (2), of
the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees:
the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support or
prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by
law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965,
83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the state's secular goals,
the statute is valid despite its indirect burden on religious observance, unless the
state can accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S.
420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal-to promote freedom of individual religious beliefs
and practices. In simplest terms, the free exercise clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting religious belief with
rewards for religious beliefs and practices. In other words, the two religion clauses
were intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe,
and the freedom to act on one's belief. The first part is absolute. As explained in
Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State
and can be enjoyed only with proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts that affect the public
welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by the
Court in Estrada v. Escritor, (Escritor)214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution."215 In the same case, it was
further explained that"
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the
government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. "The purpose of accommodation is to
remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but an exemption from its application
or its 'burdensome effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.218Underlying the compelling state interest test is the notion
that free exercise is a fundamental right and that laws burdening it should be subject
to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society, the
Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom
is whether it violates the established institutions of society and law. The Victoriano
case mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano , German went
back to the Gerona rule. Ebralinag then employed the "grave and immediate danger"
test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the " clear and present danger" test in the maiden case of A merican Bible
Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another,
religious speech as this test is often used in cases on freedom of expression. On the
other hand, the Gerona and German cases set the rule that religious freedom will not
prevail over established institutions of society and law. Gerona, however, which was
the authority cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test . Victoriano was the only case that employed the
"compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However,
not any interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause
is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus
the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]
In the case at bench, it is not within the province of the Court to determine whether
the use of contraceptives or one's participation in the support of modem
reproductive health measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil courts."220 The jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only in this realm where it
has authority. Stated otherwise, while the Court stands without authority to rule on
ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the
following:
1. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the
right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and
the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2, Declaration of
Policy]
3. The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have
the number of children they desire with due consideration to the health, particularly
of women, and the resources available and affordable to them and in accordance
with existing laws, public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural beliefs,
taking into consideration the State's obligations under various human rights
instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and
people's organizations, civil society, faith-based organizations, the religious sector
and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the
needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can
do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to restrict
other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply because
the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the
State is not precluded to pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One cannot refuse to pay his taxes
simply because it will cloud his conscience. The demarcation line between Church
and State demands that one render unto Caesar the things that are Caesar's and unto
God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and 24
thereof. The said provisions commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health care and services under the
law to another accessible healthcare provider despite their conscientious objections
based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with the
Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than strict
scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates
the religious belief and conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at
the basis of the free exercise clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a
false compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot, in
conscience, do indirectly what they cannot do directly. One may not be the principal,
but he is equally guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience. This
in turn includes the right to be silent. With the constitutional guarantee of religious
freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind.223 While the RH Law
seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of individuals,
on one hand, and the interest of the State, on the other, to provide access and
information on reproductive health products, services, procedures and methods to
enable the people to determine the timing, number and spacing of the birth of their
children, the Court is of the strong view that the religious freedom of health
providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the
RH Law. If he would be compelled to act contrary to his religious belief and
conviction, it would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health
Board,225 that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate,
supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to
whether the person was taking part 'directly' or ' indirectly' this would actually
mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the
same - they could not be forced to assist abortions if it would be against their
conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers.
Considering that Section 24 of the RH Law penalizes such institutions should they
fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3),
the Court deems that it must be struck down for being violative of the freedom of
religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and
services and in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of others and with the
common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to
ensure compliance. Without set consequences for either an active violation or mere
inaction, a law tends to be toothless and ineffectual. Nonetheless, when what is
bartered for an effective implementation of a law is a constitutionally-protected right
the Court firmly chooses to stamp its disapproval. The punishment of a healthcare
service provider, who fails and/or refuses to refer a patient to another, or who
declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among others,
who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors.
This is discriminatory and violative of the equal protection clause. The conscientious
objection clause should be equally protective of the religious belief of public health
officers. There is no perceptible distinction why they should not be considered
exempt from the mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical practitioners without
distinction whether they belong to the public or private sector. After all, the freedom
to believe is intrinsic in every individual and the protective robe that guarantees its
free exercise is not taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in
the secular or religious sphere, to give expression to its beliefs by oral discourse or
through the media and, thus, seek other candid views in occasions or gatherings or
in more permanent aggrupation. Embraced in such concept then are freedom of
religion, freedom of speech, of the press, assembly and petition, and freedom of
association.229
The discriminatory provision is void not only because no such exception is stated in
the RH Law itself but also because it is violative of the equal protection clause in the
Constitution. Quoting respondent Lagman, if there is any conflict between the RH-
IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52,
you mentioned RH Law is replete with provisions in upholding the freedom of
religion and respecting religious convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law.
But in the IRR it says: " .... skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses, supervising midwives,
among others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered as
conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can
be conscientious objectors, skilled health professionals cannot be considered
conscientious objectors. Do you agree with this? Is this not against the constitutional
right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in
defense of the subject provisions, were able to: 1] demonstrate a more compelling
state interest to restrain conscientious objectors in their choice of services to render;
and 2] discharge the burden of proof that the obligatory character of the law is the
least intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain.
The OSG was curiously silent in the establishment of a more compelling state
interest that would rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During the oral arguments,
the OSG maintained the same silence and evasion. The Transcripts of the
Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling
State interest in imposing this duty to refer to a conscientious objector which refuses
to do so because of his religious belief?
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State
interest, this is an ordinary health legislation involving professionals. This is not a
free speech matter or a pure free exercise matter. This is a regulation by the State of
the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails
to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the
freedom to act or not to act according to what one believes. And this freedom is
violated when one is compelled to act against one's belief or is prevented from acting
according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their children refers to a future
event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to
become pregnant at all. On the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment a patient seeks
consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the very
action being contested as violative of religious freedom, it behooves the respondents
to demonstrate that no other means can be undertaken by the State to achieve its
objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform
reproductive health-related procedures with open willingness and motivation.
Suffice it to say, a person who is forced to perform an act in utter reluctance deserves
the protection of the Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure
that the right to health is protected. Considering other legislations as they stand
now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The Population Act
of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation to health services and
programs. The pertinent provision of Magna Carta on comprehensive health services
and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The
State shall, at all times, provide for a comprehensive, culture-sensitive, and gender-
responsive health services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and morbidity:
Provided, That in the provision for comprehensive health services, due respect shall
be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from hazardous
drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and
health services without prejudice to the primary right and duty of
parents to educate their children;
(5) Prevention and management of reproductive tract infections,
including sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like
breast and cervical cancers, and other gynecological conditions and
disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and
children victims and survivors shall be provided with comprehensive
health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction
pursuant to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health
problems of women and girls. In addition, healthy lifestyle activities
are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate information
and education on all the above-stated aspects of women's health in government
education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of
the youth and the development of moral character and the right of
children to be brought up in an atmosphere of morality and rectitude
for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity;
and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He, however, failed to
substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that
the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such revelation, the
proponents still insist that such number of maternal deaths constitute a compelling
state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare
programs for Filipino women, they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in
the law. While generally healthcare service providers cannot be forced to render
reproductive health care procedures if doing it would contravene their religious
beliefs, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the right to life of the
mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing
the life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we are objecting on
grounds of violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor
is morally obliged always to try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH
Bill in the House of Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child and
the life of the mother, the doctor is morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the
above principles are observed, the loss of the child's life or the mother's life is not
intentional and, therefore, unavoidable. Hence, the doctor would not be guilty of
abortion or murder. The mother is never pitted against the child because both their
lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering
the life of the child may be resorted to even if is against the religious sentiments of
the medical practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than justified considering the
life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of
a marriage license, the Court finds the same to be a reasonable exercise of police
power by the government. A cursory reading of the assailed provision bares that the
religious freedom of the petitioners is not at all violated. All the law requires is for
would-be spouses to attend a seminar on parenthood, family planning breastfeeding
and infant nutrition. It does not even mandate the type of family planning methods
to be included in the seminar, whether they be natural or artificial. As correctly
noted by the OSG, those who receive any information during their attendance in the
required seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain the
freedom to decide on matters of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It
argues that it cultivates disunity and fosters animosity in the family rather than
promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the
basic social institution. In fact, one article, Article XV, is devoted entirely to the
family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It
bars the husband and/or the father from participating in the decision making
process regarding their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is already a parent or
had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation
and vasectomy which, by their very nature, should require mutual consent and
decision between the husband and the wife as they affect issues intimately related to
the founding of a family. Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a family." One person cannot
found a family. The right, therefore, is shared by both spouses. In the same Section 3,
their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By
giving absolute authority to the spouse who would undergo a procedure, and
barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger the
marriage and the family, all for the sake of reducing the population. This would be a
marked departure from the policy of the State to protect marriage as an inviolable
social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would reach
would affect their future as a family because the size of the family or the number of
their children significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as one cohesive unit
as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State
should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall have
equal rights in all matters relating to marriage and family relations, including the
joint decision on the number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health
procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of spousal
privacy guaranteed by the Constitution. In our jurisdiction, the right to privacy was
first recognized in Marje v. Mutuc,243 where the Court, speaking through Chief
Justice Fernando, held that "the right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in
Griswold v. Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for
as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance.
Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor,
who will be undergoing a procedure, is already a parent or has had a miscarriage.
Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access to
modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the decision
making process of the minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because there is a need to
tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice,
and guidance of her own parents. The State cannot replace her natural mother and
father when it comes to providing her needs and comfort. To say that their consent is
no longer relevant is clearly anti-family. It does not promote unity in the family. It is
an affront to the constitutional mandate to protect and strengthen the family as an
inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents.
It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control
over their minor-child or the right of the spouses to mutually decide on matters
which very well affect the very purpose of marriage, that is, the establishment of
conjugal and family life, would result in the violation of one's privacy with respect to
his family. It would be dismissive of the unique and strongly-held Filipino tradition
of maintaining close family ties and violative of the recognition that the State affords
couples entering into the special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in
the care and custody of a minor child, whether or not the latter is already a parent or
has had a miscarriage. Only a compelling state interest can justify a state substitution
of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the
second paragraph of Section 7 or with respect to the consenting spouse under
Section 23(a)(2)(i), a distinction must be made. There must be a differentiation
between access to information about family planning services, on one hand, and
access to the reproductive health procedures and modern family planning methods
themselves, on the other. Insofar as access to information is concerned, the Court
finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would
enable her to take proper care of her own body and that of her unborn child. After
all, Section 12, Article II of the Constitution mandates the State to protect both the
life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance
of ones' health, access to such information with respect to reproductive health must
be allowed. In this situation, the fear that parents might be deprived of their parental
control is unfounded because they are not prohibited to exercise parental guidance
and control over their minor child and assist her in deciding whether to accept or
reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In such
cases, the life of the minor who has already suffered a miscarriage and that of the
spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care urgently
needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck
down. By effectively limiting the requirement of parental consent to "only in elective
surgical procedures," it denies the parents their right of parental authority in cases
where what is involved are "non-surgical procedures." Save for the two exceptions
discussed above, and in the case of an abused child as provided in the first sentence
of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional right
of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive Health
Education under threat of fine and/or imprisonment violates the principle of
academic freedom . According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education even if they believe
that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-of-
wedlock births; divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion of
promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH
Law is premature because the Department of Education, Culture and Sports has yet
to formulate a curriculum on age-appropriate reproductive health education. One
can only speculate on the content, manner and medium of instruction that will be
used to educate the adolescents and whether they will contradict the religious beliefs
of the petitioners and validate their apprehensions. Thus, considering the premature
nature of this particular issue, the Court declines to rule on its constitutionality or
validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural
and primary right and duty of parents in the rearing of the youth for civic efficiency
and development of moral character shall receive the support of the Government.
Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms
the State recognition of the invaluable role of parents in preparing the youth to
become productive members of society. Notably, it places more importance on the
role of parents in the development of their children by recognizing that said role
shall be "primary," that is, that the right of parents in upbringing the youth is
superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the
moral development of the youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and
teen pregnancy; physical, social and emotional changes in adolescents; women's
rights and children's rights; responsible teenage behavior; gender and development;
and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and
Section 4(t) of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among adolescents
- the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral
development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health
education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very well
be said that it will be in line with the religious beliefs of the petitioners. By imposing
such a condition, it becomes apparent that the petitioners' contention that Section 14
violates Article XV, Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious beliefs,
the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates
the due process clause of the Constitution. According to them, Section 23 (a)(l)
mentions a "private health service provider" among those who may be held
punishable but does not define who is a "private health care service provider." They
argue that confusion further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health service
and modern family planning methods. It is unclear, however, if these institutions are
also exempt from giving reproductive health information under Section 23(a)(l), or
from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due 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.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain
meaning alone, but also in relation to other parts of the statute. It is a rule that every
part of the statute must be interpreted with reference to the context, that is, every
part of it must be construed together with the other parts and kept subservient to the
general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care
service provider," reference must be made to Section 4(n) of the RH Law which
defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution,
which is duly licensed and accredited and devoted primarily to the maintenance and
operation of facilities for health promotion, disease prevention, diagnosis, treatment
and care of individuals suffering from illness, disease, injury, disability or deformity,
or in need of obstetrical or other medical and nursing care; (2) public health care
professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO
and who voluntarily renders primarily health care services in the community after
having been accredited to function as such by the local health board in accordance
with the guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law,
instead of "private health care service provider," should not be a cause of confusion
for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the providing of information
and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health
care service providers who intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and services. For ready
reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range
of legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a
copy or model or with established rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to Section 23(a)(l), they
connote a sense of malice and ill motive to mislead or misrepresent the public as to
the nature and effect of programs and services on reproductive health. Public health
and safety demand that health care service providers give their honest and correct
medical information in accordance with what is acceptable in medical practice.
While health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive health, their
right must be tempered with the need to provide public health and safety. The
public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under
the Constitution as it discriminates against the poor because it makes them the
primary target of the government program that promotes contraceptive use . They
argue that, rather than promoting reproductive health among the poor, the RH Law
introduces contraceptives that would effectively reduce the number of the poor.
Their bases are the various provisions in the RH Law dealing with the poor,
especially those mentioned in the guiding principles259 and definition of terms260 of
the law.
They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution.
The equal protection of the laws is embraced in the concept of due process, as every
unfair discrimination offends the requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice,
the sharper weapon to cut it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst itutions
to treat similarly situated individuals in a similar manner." "The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of
a statue or by its improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to
existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should
possess the same characteristics in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does
not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted
as to preclude addition to the number included in the class. It must be of such a
nature as to embrace all those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that should otherwise fall
into a certain classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing that they be
given priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and other
social services available to all the people at affordable cost. There shall be priority for
the needs of the underprivileged, sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only seeks to target the poor to
reduce their number. While the RH Law admits the use of contraceptives, it does
not, as elucidated above, sanction abortion. As Section 3(1) explains, the "promotion
and/or stabilization of the population growth rate is incidental to the advancement
of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have
and does not impose conditions upon couples who intend to have children. While
the petitioners surmise that the assailed law seeks to charge couples with the duty to
have children only if they would raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks to do is to simply provide priority
to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory
reproductive health education program under Section 14, suffice it to state that the
mere fact that the children of those who are less fortunate attend public educational
institutions does not amount to substantial distinction sufficient to annul the assailed
provision. On the other hand, substantial distinction rests between public
educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions
especially with respect to religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the
constitutional prohibition against involuntary servitude. They posit that Section 17
of the assailed legislation requiring private and non-government health care service
providers to render forty-eight (48) hours of pro bono reproductive health services,
actually amounts to involuntary servitude because it requires medical practitioners
to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17
can hardly be considered as forced labor analogous to slavery, as reproductive
health care service providers have the discretion as to the manner and time of giving
pro bono services. Moreover, the OSG points out that the imposition is within the
powers of the government, the accreditation of medical practitioners with PhilHealth
being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with
public interest that it is both a power and a duty of the State to control and regulate
it in order to protect and promote the public welfare. Like the legal profession, the
practice of medicine is not a right but a privileged burdened with conditions as it
directly involves the very lives of the people. A fortiori, this power includes the
power of Congress263 to prescribe the qualifications for the practice of professions or
trades which affect the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades, even to the point
of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes
the presence of force, threats, intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however, reveals that it only
encourages private and non- government reproductive healthcare service providers
to render pro bono service. Other than non-accreditation with PhilHealth, no penalty
is imposed should they choose to do otherwise. Private and non-government
reproductive healthcare service providers also enjoy the liberty to choose which kind
of health service they wish to provide, when, where and how to provide it or
whether to provide it all. Clearly, therefore, no compulsion, force or threat is made
upon them to render pro bono service against their will. While the rendering of such
service was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive
imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long as
their religious beliefs and convictions do not allow them to render reproductive
health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and
highly proficient to do so. It should be understood that health services and methods
fall under the gamut of terms that are associated with what is ordinarily understood
as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be
called the Food and Drug Administration (FDA) in the Department of Health
(DOH). Said Administration shall be under the Office of the Secretary and shall have
the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules
and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug outlets, and other
establishments and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products
to report to the FDA any incident that reasonably indicates that said product
has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint
for health products, whether or not registered with the FDA Provided, That
for registered health products, the cease and desist order is valid for thirty
(30) days and may be extended for sixty ( 60) days only after due process has
been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any
health product found to have caused death, serious illness or serious injury to
a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the
appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are
specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and medicines
available to the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of necessary implication, the
mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be
given only those medicines that are proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and created
peculiar and sophisticated problems that the legislature cannot be expected
reasonably to comprehend. Specialization even in legislation has become necessary.
To many of the problems attendant upon present day undertakings, the legislature
may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under Section
17 of the Local Government Code. Said Section 17 vested upon the LGUs the duties
and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently
vested upon them. They shall also discharge the functions and responsibilities
of national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge
such other functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the
functions and responsibilities that have already been devolved upon them
from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving nationally-funded projects,
facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by
the National Government under the annual General Appropriations Act,
other special laws, pertinent executive orders, and those wholly or partially
funded from foreign sources, are not covered under this Section, except in
those cases where the local government unit concerned is duly designated as
the implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is that,
unless an LGU is particularly designated as the implementing agency, it has no
power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing
basic facilities and services cannot be implied as the Local Government Code itself
weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the national
government that will provide for the funding of its implementation. Local autonomy
is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the
RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to
provide these services. There is nothing in the wording of the law which can be
construed as making the availability of these services mandatory for the LGUs. For
said reason, it cannot be said that the RH Law amounts to an undue encroachment
by the national government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can
be equally applied to the ARMM. The RH Law does not infringe upon its autonomy.
Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the
ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of
the RH Law in the autonomous region, refer to the policy statements for the
guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional
government, which can, in no manner, be characterized as an abdication by the State
of its power to enact legislation that would benefit the general welfare. After all,
despite the veritable autonomy granted the ARMM, the Constitution and the
supporting jurisprudence, as they now stand, reject the notion of imperium et
imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary
power to legislate on all subjects which extends to all matters of general concern or
common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law enacted
by man emanated from what is perceived as natural law, the Court is not obliged to
see if a statute, executive issuance or ordinance is in conformity to it. To begin with,
it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and
theologists. The jurists of the philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or present.277 Unless, a natural
right has been transformed into a written law, it cannot serve as a basis to strike
down a law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners,
it was explained that the Court is not duty-bound to examine every law or action
and whether it conforms with both the Constitution and natural law. Rather, natural
law is to be used sparingly only in the most peculiar of circumstances involving
rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of
life. It does not allow abortion in any shape or form. It only seeks to enhance the
population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks
to provide access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of society cannot be
trampled upon in pursuit of what the law hopes to achieve. After all, the
Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and pluralism. As such, everyone
should be tolerant and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial issues
is not the large population but the unequal distribution of wealth. Even if population
growth is controlled, poverty will remain as long as the country's wealth remains in
the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run.
The European and Asian countries, which embarked on such a program generations
ago , are now burdened with ageing populations. The number of their young
workers is dwindling with adverse effects on their economy. These young workers
represent a significant human capital which could have helped them invigorate,
innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is
failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young able-
bodied workers. What would happen if the country would be weighed down by an
ageing population and the fewer younger generation would not be able to support
them? This would be the situation when our total fertility rate would go down below
the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should
not use coercive measures (like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is
to say what the law is as enacted by the lawmaking body. That is not the same as
saying what the law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the wisdom of the
law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation if
that would be necessary in the premises. But as always, with apt judicial caution and
cold neutrality, the Court must carry out the delicate function of interpreting the
law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the
lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but
with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed
legislation. All the same, the principle of "no-abortion" and "non-coercion" in the
adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court
declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or
guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any healthcare service
provider who fails and or refuses to disseminate information regarding
programs and services on reproductive health regardless of his or her
religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as
they allow a married individual, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar
as they limit the requirement of parental consent only to elective surgical
procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any healthcare service
provider who fails and/or refuses to refer a patient not in an emergency or
life-threatening case, as defined under Republic Act No. 8344, to another
health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra
vires and, therefore, null and void for contravening Section 4(a) of the RH
Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its
Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No.
10354 which have been herein declared as constitutional.
SO ORDERED.
THE MUNICIPALITY OF TANGKAL, PROVINCE OF LANAO DEL
NORTE, Petitioner, v. HON. RASAD B. BALINDONG, IN HIS CAPACITY AS
PRESIDING JUDGE, SHARI'A DISTRICT COURT, 4THJUDICIAL DISTRICT,
MARAWI CITY, AND HEIRS OF THE LATE MACALABO ALOMPO,
REPRESENTED BY SULTAN DIMNANG B.ALOMPO, Respondents.
DECISION
JARDELEZA, J.:
The Code of Muslim Personal Laws of the Philippines (Code of Muslim Personal
1
Laws) vests concurrent jurisdiction upon Shari'a district courts over personal and
real actions wherein the parties involved are Muslims, except those for forcible entry
and unlawful detainer. The question presented is whether the Shari'a District Court
of Marawi City has jurisdiction in an action for recovery of possession filed by
Muslim individuals against a municipality whose mayor is a Muslim. The
respondent judge held that it has. We reverse.
I
The private respondents, heirs of the late Macalabo Alompo, filed a Complaint2 with
the Shari'a District Court of Marawi City (Shari'a District Court) against the
petitioner, Municipality of Tangkal, for recovery of possession and ownership of a
parcel of land with an area of approximately 25 hectares located at Barangay
Banisilon, Tangkal, Lanao del Norte. They alleged that Macalabo was the owner of
the land, and that in 1962, he entered into an agreement with the Municipality of
Tangkal allowing the latter to "borrow" the land to pave the way for the construction
of the municipal hall and a health center building. The agreement allegedly imposed
a condition upon the Municipality of Tangkal to pay the value of the land within 35
years, or until 1997; otherwise, ownership of the land would revert to Macalabo.
Private respondents claimed that the Municipality of Tangkal neither paid the value
of the land within the agreed period nor returned the land to its owner. Thus, they
prayed that the land be returned to them as successors-in-interest of Macalabo.
The Municipality of Tangkal filed an Urgent Motion to Dismiss3 on the ground of

improper venue and lack of jurisdiction. It argued that since it has no religious
affiliation and represents no cultural or ethnic tribe, it cannot be considered as a
Muslim under the Code of Muslim Personal Laws. Moreover, since the complaint for
recovery of land is a real action, it should have been filed in the appropriate Regional
Trial Court of Lanao del Norte.
In its Order4 dated March 9, 2010, the Shari'a District Court denied the Municipality
of Tangkal's motion to dismiss. It held that since the mayor of Tangkal, Abdulazis
A.M. Batingolo, is a Muslim, the case "is an action involving Muslims, hence, the
court has original jurisdiction concurrently with that of regular/civil courts." It
added that venue was properly laid because the Shari'a District Court has territorial
jurisdiction over the provinces of Lanao del Sur and Lanao del Norte, in addition to
the cities of Marawi and Iligan. Moreover, the filing of a motion to dismiss is a
disallowed pleading under the Special Rules of Procedure in Shari'a Courts.5
The Municipality of Tangkal moved for reconsideration, which was denied by the
Shari'a District Court. The Shari'a District Court also ordered the Municipality of
Tangkal to file its answer within 10 days.6 The Municipality of Tangkal timely filed
its answer7 and raised as an affirmative defense the court's lack of jurisdiction.
Within the 60-day reglementary period, the Municipality of Tangkal elevated the
case to us via petition for certiorari, prohibition, and mandamus with prayer for a
temporary restraining order8 (TRO). It reiterated its arguments in its earlier motion
to dismiss and answer that the Shari'a District Court has no jurisdiction since one
party is a municipality which has no religious affiliation.
In their Comment,9 private respondents argue that under the Special Rules of
Procedure in Shari'a Courts, a petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the district court is a prohibited pleading.
Likewise, the Municpality of Tangkal's motion to dismiss is disallowed by the rules.
They also echo the reasoning of the Shari'a District Court that since both the
plaintiffs below and the mayor of defendant municipality are Muslims, the Shari'a
District Court has jurisdiction over the case.
In the meantime, we issued a TRO10 against the Shari'a District Court and its
presiding judge, Rasad Balindong, from holding any further proceedings in the case
below.
II
In its petition, the Municipality of Tangkal acknowledges that generally,

neither certiorari nor prohibition is an available remedy to assail a court's
interlocutory order denying a motion to dismiss. But it cites one of the exceptions to
the rule, i.e., when the denial is without or in excess of jurisdiction to justify its
remedial action.11 In rebuttal, private respondents rely on the Special Rules of
Procedure in Shari'a Courts which expressly identifies a motion to dismiss and a
petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court as prohibited pleadings.12
A
Although the Special Rules of Procedure in Shari'a Courts prohibits the filing of a
motion to dismiss, this procedural rule may be relaxed when the ground relied on is
lack of jurisdiction which is patent on the face of the complaint. As we held
in Rulona-Al Awadhi v. Astih:13
Instead of invoking a procedural technicality, the respondent court should have
recognized its lack .of jurisdiction over the parties and promptly dismissed the
action, for, without jurisdiction, all its proceedings would be, as they were, a futile
and invalid exercise. A summary rule prohibiting the filing of a motion to dismiss
should not be a bar to the dismissal of the action for lack of jurisdiction when the
jurisdictional infirmity is patent on the face of the complaint itself, in view of the
fundamental procedural doctrine that the jurisdiction of a court may be challenged
at anytime and at any stage of the action.14ChanRoblesVirtualawlibrary
Indeed, when it is apparent from the pleadings that the court has no jurisdiction
over the subject matter, it is duty-bound to dismiss the case regardless of whether
the defendant filed a motion to dismiss.15 Thus, in Villagracia v. Fifth Shari'a District
Court,16 we held that once it became apparent that the Shari'a court has no
jurisdiction over the subject matter because the defendant is not a Muslim, the court
should have motu proprio dismissed the case.17
B
An order denying a motion to dismiss is an interlocutory order which neither

terminates nor finally disposes of a case as it leaves something to be done by the
court before the case is finally decided on the merits. Thus, as a general rule, the
denial of a motion to dismiss cannot be questioned in a special civil action
for certiorari which is a remedy designed to correct errors of jurisdiction and not
errors of judgment.18 As exceptions, however, the defendant may avail of a petition
for certiorari if the ground raised in the motion to dismiss is lack of jurisdiction over
the person of the defendant or over the subject matter,19 or when the denial of the
motion to dismiss ts tainted with grave abuse of discretion.20
The reason why lack of jurisdiction as a ground for dismissal is treated differently
from others is because of the basic principle that jurisdiction is conferred by law, and
lack of it affects the very authority of the court to take cognizance of and to render
judgment on the action21 to the extent that all proceedings before a court without
jurisdiction are void.22 We grant certiorari on this basis. As will be shown below, the
Shari'a District Court's lack of jurisdiction over the subject matter is patent on the
face of the complaint, and therefore, should have been dismissed outright.
III
The matters over which Shari'a district courts have Jurisdiction are enumerated in
the Code of Muslim Personal Laws, specifically in Article 143.23 Consistent with the
purpose of the law to provide for an effective administration and enforcement of
Muslim personal laws among Muslims,24 it has a catchall provision granting Shari'a
district courts original jurisdiction over personal and real actions except those for
forcible entry and unlawful detainer.25cralawred The Shari'a district courts'
jurisdiction over these matters is concurrent with regular civil courts, i.e., municipal
trial courts and regional trial courts.26 There is, however, a limit to the general
jurisdiction of Shari'a district courts over matters ordinarily cognizable by regular
courts: such jurisdiction may only be invoked if both parties are Muslims. If one
party is not a Muslim, the action must be filed before the regular courts.27
The complaint below, which is a real action28 involving title to and possession of the
land situated at Barangay Banisilon, Tangkal, was filed by private respondents
before the Shari'a District Court pursuant to the general jurisdiction conferred by
Article 143(2)(b). In determining whether the Shari'a District Court has jurisdiction
over the case, the threshold question is whether both parties are Muslims. There is
no disagreement that private respondents, as plaintiffs below, are Muslims. The only
dispute is whether the requirement is satisfied because the mayor of the defendant
municipality is also a Muslim.
When Article 143(2)(b) qualifies the conferment of jurisdiction to actions "wherein

the parties involved are Muslims," the word "parties" necessarily refers to the real
parties in interest. Section 2 of Rule 3 of the Rules of Court defines real parties in
interest as those who stand to be benefited or injured by the judgment in the suit, or
are entitled to the avails of the suit. In this case, the parties who will be directly
benefited or injured are the private respondents, as real party plaintiffs, and the
Municipality of Tangkal, as the real party defendant. In their complaint, private
respondents claim that their predecessor-in-interest, Macalabo, entered into an
agreement with the Municipality of Tangkal for the use of the land. Their cause of
action is based on the Municipality of Tangkal's alleged failure and refusal to return
the land or pay for its reasonable value in accordance with the agreement.
Accordingly, they pray for the return of the land or the payment of reasonable
rentals thereon. Thus, a judgment in favor of private respondents, either allowing
them to recover possession or entitling them to rentals, would undoubtedly be
beneficial to them; correlatively, it would be prejudicial to the Municipality of
Tangkal which would either be deprived possession of the land on which its
municipal hall currently stands or be required to allocate funds for payment of rent.
Conversely, a judgment in favor of the Municipality of Tangkal would effectively
quiet its title over the land and defeat the claims of private respondents.
It is clear from the title and the averments in the complaint that Mayor Batingolo
was impleaded only in a representative capacity, as chief executive of the local
government of Tangkal. When an action is defended by a representative, that
representative is not-and neither does he become-a real party in interest. The person
represented is deemed the real party in interest;29 the representative remains to be a
third party to the action.30 That Mayor Batingolo is a Muslim is therefore irrelevant
for purposes of complying with the jurisdictional requirement under Article
143(2)(b) that both parties be Muslims. To satisfy the requirement, it is the real party
defendant, the Municipality of Tangkal, who must be a Muslim. Such a proposition,
however, is a legal impossibility.
The Code of Muslim Personal Laws defines a "Muslim" as "a person who testifies to
the oneness of God and the Prophethood of Muhammad and professes
Islam."31 Although the definition does not explicitly distinguish between natural and
juridical persons, it nonetheless connotes the exercise of religion, which is a
fundamental personal right.32 The ability to testify to the "oneness of God and the
Prophethood of Muhammad" and to profess Islam is, by its nature, restricted to
natural persons. In contrast, juridical persons are artificial beings with "no
consciences, no beliefs, no feelings, no thoughts, no desires."33 They are considered
persons only by virtue of legal fiction. The Municipality of Tangkal falls under this
category. Under the Local Government Code, a municipality is a body politic and
corporate that exercises powers as a political subdivision of the national government
and as a corporate entity representing the inhabitants of its territory.34
Furthermore, as a government instrumentality, the Municipality of Tangkal can only

act for secular purposes and in ways that have primarily secular effects35-consistent
with the non-establishment clause.36Hence, even if it is assumed that juridical
persons are capable of practicing religion, the Municipality of Tangkal is
constitutionally proscribed from adopting, much less exercising, any religion,
including Islam.
The Shari'a District Court appears to have understood the foregoing principles, as it
conceded that the Municipality of Tangkal "is neither a Muslim nor a
Christian."37 Yet it still proceeded to attribute the religious affiliation of the mayor to
the municipality. This is manifest error on the part of the Shari'a District Court. It is
an elementary principle that a municipality has a personality that is separate and
distinct from its mayor, vice-mayor, sanggunian, and other officers composing
it.38 And under no circumstances can this corporate veil be pierced on purely
religious considerations-as the Shari'a District Court has done-without running afoul
the inviolability of the separation of Church and State enshrined in the
Constitution.39
In view of the foregoing, the Shari'a District Court had no jurisdiction under the law
to decide private respondents' complaint because not all of the parties involved in
the action are Muslims. Since it was clear from the complaint that the real party
defendant was the Municipality of Tangkal, the Shari'a District Court should have
simply applied the basic doctrine of separate juridical personality and motu
proprio dismissed the case.
WHEREFORE, the petition is GRANTED. The assailed orders of the Shari'a District
Court of Marawi City in Civil Case No. 201-09 are REVERSED and SET ASIDE.
Accordingly, Civil Case No. 201-09 is DISMISSED.
SO ORDERED.
KALIPUNAN NG DAMAY ANG MAHIBIRAP, INC., represented by its Vice-

President, CARLITO BADION, CORAZON DE JESUS HOMEOWNERS
ASSOCIATION, represented by its President, ARNOLD REPIQUE, FERNANDO
SEVILLA as President of Samahang Pamata sa Kapatirang Kr.istiyano,
ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, and DELIA FRA
YRES, Petitioners,
vs.
JESSIE ROBREDO, in his capacity as Secretary, Department of Interior and Local
Government, Hon. GUIA GOMEZ, in her capacity as MAYOR OF THE CITY. OF
SAN JUAN, Hon. HERBERT BAUTISTA, in his capacity as the MAYOR OF
QUEZON CITY, Hon. JOHN REY TIANGCO, in his capacity as MAYOR OF
NAVOTAS CITY, and the GENERAL MANAGER of the NATIONAL HOUSING
AUTHORITY, Respondents.
DECISION
BRION, J.:
This is a petition for prohibition and mandamus to enjoin the public respondents
from evicting the individual petitioners as well as the petitionerassociations
members from their dwellings in the cities of San Juan, Navotas and Quezon without
any court order, and to compel the respondents to afford them judicial process prior
to evictions and demolitions. The petition primarily seeks to declare
asunconstitutional Section 28 (a) and (b) of Republic Act No. 7279 (RA 7279),
otherwise known as Urban Development Housing Act, which authorizes evictions
and demolitions under certain circumstances without any court order.
The Factual Antecedents
The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon
de Jesus Homeowners Association as well as the individual petitioners, Fernando
Sevilla, Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol and Delia Frayres, were/are
occupying parcels of land owned by and located in the cities of San Juan, Navotas
and Quezon (collectively, the LGUs1). These LGUs sent the petitioners notices of
eviction and demolition pursuant to Section 28 (a) and (b) of RA 7279 in order to
give way to the implementation and construction of infrastructure projects2 in the
areas illegally occupied by the petitioners.3
Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions without any
court order when: (1) persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public
places suchas sidewalks, roads, parks, and playgrounds; and (2) persons or entities
occupy areas where government infrastructure projects with available funding are
about to be implemented.
The Petition
On March 23, 2012, the petitionersdirectly filed a petition for prohibition and
mandamus before the Court, seeking to compel the Secretary of Interior and Local
Government, et al. (the public respondents)to first secure an eviction and/or
demolition order from the court prior to their implementation of Section 28 (a) and
(b) of RA 7279.
The petitioners justify their directrecourse before this Court by generally averring
that they have no plain, speedy and adequate remedy in the ordinary course of
law.4 They also posit that the respondents gravely abused their discretion in
implementing Section 28 (a) and (b) of RA 7279 which are patently unconstitutional.
They likewise insist that they stand to be directly injured by the respondentsthreats
of evictions and demolitions. In the alternative, they contend that the transcendental
public importance of the issues raised in this case clothes them with legal standing.5
The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their
constitutional right to due process because they warrant evictions and demolitions
without any court order. Theypoint out that Section 6, Article 3 of the 1987
Constitution expressly prohibits the impairment of liberty of abode unless there is a
court order. Moreover, Section 28 (a) and (b) of RA 7279 violate their right to
adequate housing, a universal right recognized in Article 25 of Universal Declaration
ofHuman Rights and Section 2 (a) of RA 7279. The petitioners further complain that
the respondents had previously conducted evictions and demolitions in a violent
manner, contrary to Section 10, Article 13 of the 1987 Constitution.6
The Respondents Case
A. The Position of the Mayor of Navotas
The Mayor of Navotas prays for the outright dismissal of the petition for its serious
procedural defects. First, the petitioners ignored the hierarchy of courts when they
directly filed a Rule 65 petition before the Court.7 Second, the petitioners incorrectly
availed themselves of a petition for prohibition and mandamus in assailing the
constitutionality of Section 28 (a) and (b) of RA 7279. According to the Mayor of
Navotas, the office of a writ of prohibition is merely to prevent the public
respondents usurpation of power or improper assumption of jurisdiction. On the
other hand, a writ of mandamus only commands the public respondent to perform
his ministerial functions. Third, the petitioners failed to particularly state the grave
abuse of discretion that the Mayor of Navotas allegedly committed. Fourth, the
petition does not present any justiciable controversy since the City of Navotas had
already successfully evicted the petitioners in San Roque, Navotas on November 28,
2011. Fifth, the petition was filed out of time since the petitioners were personally
notified of the intended eviction and demolition on September 23, 2011.8
The Mayor argues that Section 10, Article 13 of the 1987 Constitution allows
evictions and demolitions to beconducted even without a court order provided they
are done in accordance withthe law and in a just and humane manner. According to
him, RA 7279 isprecisely the law referred to by Section 10, Article 13 of the 1987
Constitution. The Mayor also disputes the petitioners claim that RA 7279 does
notafford the informal settlers procedural due process prior to evictions and
demolitions. He points out that Section 28 of RA 7279 and its implementing rules
and regulations (IRR) mandate that the affected persons or entities shall be given
notice at least thirty (30) days prior to the date of eviction or demolition. The
respondents are likewise required to consult with the duly designated
representatives of the affected families and communities with respect to their
relocation. He further asserts that his faithful implementation of Section 28 (a) and
(b) of RA 7279, which are presumed to be constitutional, cannotbe equated to grave
abuse of discretion. Lastly, the Mayor of Navotas insists that the petitioners
invocation of their right to freely choose their abode is misplaced since they have no
vested right to occupy properties that they do not own.9
B. The Position of the Mayor of San Juan
The Mayor of San Juan similarly argues that the petitioners improperly availed
themselves of a petition for prohibition and mandamus before the Court. She
contends thatshe performed neither judicial nor ministerial functions in
implementing RA 7279, the enabling law of Section 10, Article 13 of the 1987
Constitution. She also maintains that the petition has been rendered moot and
academic by the successful eviction of some of the petitioners in Pinaglabanan,
Corazon de Jesus, San Juan. The Mayor of San Juan further stresses that Section 28
(a) and (b) of RA 7279 already lay down the procedure in evicting informal settlers in
a just and humane manner.10C. The Position of the Mayor of Quezon
The Mayor of Quezon City holds that the petitioners premature invocation of the
Courts power of judicial review and their violation of the principle of hierarchy of
courts are fatal to their cause of action. Moreover, the petitioners failed to
substantiate the material allegations in the petition. He additionally argues that his
faithful implementation of RA 7279, which the legislature enacted inthe exercise of
police power, does not amount to grave abuse of discretion.11
D. The Position of the Secretary ofInterior and Local Government
and the General Manager of the National Housing Authority
The Secretary of Interior and Local Government and the National Housing
Authority (NHA)General Manager adopt the Mayor of Navotas position that the
petition is procedurally infirm. They further argue that the liberty of abode is not
illimitable and does not include the right to encroach upon other person properties.
They also reiterate that Section 28 of RA 7279 provides sufficient safeguards in
ensuring that evictions and demolitions are carried out in a just and humane
manner.12
The Issues
This case presents to us the following issues:
(1) Whether the petition should be dismissed for serious procedural defects;
and
(a) Whether the petitioners violated the principle of hierarchy of courts;
(b) Whether the petitioners correctlyavailed themselves of a petition for
prohibition and mandamus;
(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6,
Article 3 of the 1987 Constitution.
The Courts Ruling
We dismiss the petition.
The petitioners violated the principle of hierarchy of courts when they directly filed
the petition before the Court.
The petitioners have unduly disregarded the hierarchy of courts by coming directly
to the Court withtheir petition for prohibition and mandamus. The petitioners
appear to have forgotten that the Supreme Court is a court of last resort, not a court
offirst instance. The hierarchy of courts should serve as a general determinant of the
appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does
not give the petitioners the unrestricted freedom of choice of forum. By directly
filing Rule 65 petitions before us, the petitioners have unduly taxed the Courts time
and attention which are better devoted to matters within our exclusive jurisdiction.
Worse, the petitioners only contributed to the overcrowding of the Court's docket.
We also wish to emphasize that the trial court is better equipped to resolve cases
ofthis nature since this Court is not a trier of facts and does not normallyundertake
an examination of the contending parties evidence.13
The petitioners wrongly availed themselves of a petition for prohibition and
mandamus.
We cannot also ignore the petitioners glaring error in using a petition for
prohibition and mandamus in the current case.
The petitioners seem to have forgotten that a writ of prohibition only lies against the
tribunal, corporation, board, officer or persons exercise of judicial, quasi-judicial or
ministerial functions.14 We issue a writ of prohibition to afford the aggrieved party a
relief against the respondents usurpation or grave abuse of jurisdiction or power.15
On the other hand, a petition for mandamus is merely directed against the tribunal,
corporation, board, officer, or person who unlawfully neglects the performance of an
act which the law enjoins as a duty resulting from an office, trust or station or who
unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled.16 Thus, a writ of mandamus will only issue to compel an
officer to perform a ministerial duty. It will not control a public officers exercise of
discretion as where the law imposes upon him the duty to exercisehis judgment in
reference to any manner in which he is required to actprecisely because it is his
judgment that is to be exercised, not that of the court.17
In the present case, the petitionersseek to prohibit the respondents from
implementing Section 28 (a) and (b) of RA 7279 without a prior court order of
eviction and/or demolition. In relation to this, paragraph 1, Section 28 of RA 7279
provides:
Sec. 28. Eviction and Demolition. Eviction or demolition as a practice shall be
discouraged. Eviction or demolition, however, maybe allowed under the following
situations:
(a) When persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways, and other public
placessuch as sidewalks, roads, parks, and playgrounds;
(b) When government infrastructure projects with available funding are about
to be implemented;or
(c) When there is a court order for eviction and demolition. (emphasis and
underline ours)
A reading of this provision clearly shows that the acts complained of are beyond the
scope of a petition for prohibition and mandamus. The use of the permissive word
"may" implies that the public respondents have discretion when their duty to
execute evictions and/or demolitions shall be performed. Where the words of a
statute are clear, plain, and free from ambiguity, it must be given its literal meaning
and applied without attempted interpretation.18
Consequently, the time when the public respondents shall carry out evictions
and/or demolitions under Section 28 (a), (b), and (c) of RA 7279 is merely
discretionary, and not ministerial, judicial or quasi-judicial. The duty is discretionary
if the law imposesa duty upon a public officer and gives him the right to decide
when the duty shall be performed.
In contrast, a ministerial duty is one which an officer or tribunal performs in a given
state of facts,in a prescribedmanner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done.19
On the other hand, both judicial and quasi-judicial functions involve the
determination of what the law is, and what the legal rights of the contending parties
are, with respect tothe matter in controversy and, on the basis thereof and the facts
obtaining, the adjudication of their respective rights.20
The resolution of the constitutionality of Section 28 (a) and (b) of RA 7279 is not the
lis motaof the case.
Even if we treat the present petition as one for certiorari since it assails the
constitutionality of Section 28 (a) and (b) of RA 7279, the petition must necessarily
fail for failure to show the essential requisites that would warrant the Courts
exercise of judicial review. It is a rule firmly entrenched in our jurisprudence thatthe
courts will not determine the constitutionality of a law unless the following
requisites are present: (1) the existence of an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination; (2) the existence of
personal and substantial interest on the part ofthe party raising the constitutional
question; (3) recourse to judicial review is made at the earliest opportunity; and (4)
the resolution of the constitutional question must be necessary to the decision of the
case.21
Save for the petition pertaining to the City of Quezons threat of eviction and
demolition, this case no longer presents a justiciable controversy with respect to the
Mayors of Navotas and San Juan. We take note of the Comments of these Mayors
who alleged that they had already successfully evicted the concerned petitioners in
their respective cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of constitutionality is
the fact that this issue is not the lis mota of this case. Lis motaliterally means "the
cause of the suit or action"; it is rooted in the principle of separation of powers and is
thus merely an offshoot of the presumption of validity accorded the executive and
legislative acts of our coequal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law has the
burden of showing first that the case cannot be resolved unless the disposition of the
constitutional question that he raised is unavoidable. If there is some other ground
upon which the court may rest its judgment, that course will be adopted and the
question of constitutionality should be avoided.22 Thus, to justify the nullification ofa
law, there must be a clear and unequivocal breach of the Constitution, and not one
that is doubtful, speculative or argumentative.23
We carefully read the petitions and we conclude that they fail to compellingly show
the necessity ofexamining the constitutionality of Section 28 (a) and (b) of RA 7279 in
the light of Sections 1 and 6, Article 3 of the 1987 Constitution.24 In Magkalas v.
NHA,25 this Court had already ruled on the validity of evictions and demolitions
without any court order. In that case, we affirmed the validity ofSection 2 of
Presidential Decree No. 1472 which authorizes the NHA to summarily eject all
informal settlers colonies on government resettlement projects as well as any illegal
occupant in any homelot, apartment or dwelling unit owned or administered by the
NHA. In that case, we held that Caridad Magkalas illegal possession of the property
should not hinder the NHAs development of Bagong Barrio Urban Bliss Project. We
further stated that demolitions and evictions may be validly carried out even
without a judicial order in the following instances: (1) when the property involved is
an expropriated property xxx pursuant to Section 1 of P.D. No. 1315;
(2) when there are squatters on government resettlement projects and illegal
occupants in any homelot, apartment or dwelling unit owned or administered
by the NHA pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways and other public
places such as sidewalks, roads, parks and playgrounds, pursuant toSection
28(a) of R.A. No. 7279;
(4) when government infrastructure projects with available funding are about
to be implemented pursuant to Section 28(b) of R.A. No. 7279.26 (emphasis
ours)
We note that Section 10, Article13 of the 1987 Constitution provides that urban or
rural poor dwellers shall not be evicted nor their dwelling demolished, except in
accordance withlaw and in a just and humane manner. Paragraph 1, Section 28 of
RA 7279 allows summary evictions and demolition in cases where persons orentities
occupy danger areas and when persons or entities occupy areas where government
infrastructure projects with available funding are about to be implemented.
To ensure that evictions and demolitions are conducted in a just and humane
manner, paragraph 2, Section 28 of RA 7279 commands the public respondents to
comply with the following prescribed procedure in executing eviction and/or
demolition orders:
In the execution of eviction or demolition orders involving underprivileged and
homeless citizens, the following shall be mandatory:
(1) Notice upon the effected persons orentities at least thirty (30) days prior to
the date of eviction or demolition;
(2) Adequate consultations on the matter of settlement with the duly
designated representatives of the families to be resettled and the affected
communities in the areas where they are to be relocated;
(3) Presence of local government officials or their representatives during
eviction or demolition;
(4) Proper identification of all persons taking part in the demolition;
(5) Execution of eviction or demolition only during regular office hours from
Mondays to Fridays and during good weather, unless the affected families
consent otherwise;
(6) No use of heavy equipment for demolition except for structures that are
permanent and of concrete materials;
(7) Proper uniforms for members ofthe Philippine National Police who shall
occupy the first line of law enforcement and observe proper disturbance
control procedures; and
(8) Adequate relocation, whether temporary or permanent: Provided,
however, That in cases of eviction and demolition pursuant to a court order
involving underprivileged and homeless citizens, relocation shall be
undertaken by the local government unit concerned and the National
Housing Authority with the assistance of other government agencies within
forty-five (45) days from service of notice of final judgment by the court, after
which period the said order shall be executed: Provided, further, That should
relocation not be possible within the said period, financial assistance in the
amount equivalent to the prevailing minimum daily wage multiplied by sixty
(60) days shall be extended to the affected families by the local government
unit concerned.
This Department of the Interior and Local Government and the Housing and Urban
Development Coordinating Council shall jointly promulgate the necessary rules and
regulations to carry out the above provision.
Lastly, the petitioners failed to substantiate their allegations that the public
respondents gravely abused their discretion in implementing Section 28 (a) and (b)
of RA 7279. Instead, theymerely imputed jurisdictional abuse to the public
respondents through general averments in their pleading, but without any basis to
support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court.1wphi1 To the point of being repetitive, we (xxx source text
missing)
Lastly, the petitioners failed to substantiate their allegations that the public
respondents gravely abused their discretion in implementing Section 28 (a) and (b)
of RA 7279. Instead, they merely imputed jurisdictional abuse to the public
respondents through general averments in their pleading, but without any basis to
support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court. To the point of being repetitive, we emphasize that we are not trier
of facts and this applies with greater force to Rule 65 petitions which are original and
independent actions. To justify judicial intrusion into what is fundamentally the
domain of the executive department, the petitioners must establish facts that are
necessarily linked to the jurisdictional problem they presented in this case, i.e.,
whether the public respondents exercised their power in an arbitrary and despotic
manner by reason of passion or personal hostility in implementing Section 28 (a) and
(b) of RA 7279.
Since the petitioners failed to establish that the public respondents' alleged abuse of
discretion was so patent and gross as to amount to an evasion or to a unilateral
refusal to perform the duty enjoined or to act in contemplation of law, this petition
must necessarily fail.27
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious
procedural defects. No costs.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
EN BANC
G. R. No. 199034 GLORIA MACAPAGAL-ARROYO V. HON. LEILA M. DE LIMA,
in her capacity as SECRETARY OF THE DEPARTMENT OF JUSTICE and
RICARDO A. DAVID, JR., in his capacity as COMMISSIONER OF THE BUREAU
OF IMMIGRATION
G. R. No. 199046 JOSE MIGUEL T. ARROYO V. HON. LEILA M. DE LIMA, in her
capacity as SECRETARY OF THE DEPARTMENT OF JUSTICE, RICARDO V.
PARAS, III, in his capacity as CHIEF STATE COUNSEL, and RICARDO A.
DAVID, JR., in his capacity as COMMISSIONER OF THE BUREAU OF
IMMIGRATION
Promulgated:
December 13, 2011
x--------------------------------------------------x
DISSENTING OPINION
SERENO, J.:
Despite serious efforts from my end to advise an officer of the Supreme Court
that no action of the Court should be interpreted, such behavior has continued. This
opinion is thus rendered in part to remedy the present deficit in truth.
To recall, my Dissenting Opinion of 18 November 2011 consisted of two parts:

(1) a narration of the voting that took place in the morning; and (2) the reason why my
Dissent to the Decision of the majority to grant the temporary restraining order (TRO)
in favor of petitioners continues. My narration was a first-hand account rendered by
a member of the Court who took part in the deliberations; it was not a relayed message
and neither was it hearsay. To this day, none of my colleagues has called my attention
to any inaccuracy in my 18 November 2011 account, despite the En Banc having
physically met on the 22nd, 24th, and 29th of November; and despite all the available
means of electronic communication with which any of them could call me.
What Took Place on the 18th, 22nd, 23rd, 24th,
and 29th of November 2011
What took place in the En Banc morning sessions of the 18th and 22nd of November
2011, and what steps were taken thereafter by Chief Justice Renato C. Corona, Senior
Associate Justice Antonio T. Carpio, and Justice Presbitero J. Velasco, Jr. have been put
on record by Justice Antonio T. Carpio in a letter to Chief Justice Renato C. Corona
and circulated to all the members of the Court on the morning of 24 November 2011.
The letter reads:

24 November 2011
The CHIEF JUSTICE

Supreme Court
May I suggest that the issuance of the attached Resolution dated 22

November 2011, which is supposed to clarify the Resolution dated 18
November 2011, be held in abeyance until the En Banc has a chance to
go over the same. Instead of clarifying the Resolution dated 18
November 2011, the attached Resolution compounds the error in the
Resolution dated 18 November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November
2011, the En Banc, after a long discussion, voted on the following issues:
1
1. That petitioners did not comply with condition (ii) for the
issuance of the TRO (voting was 7-6 with Carpio, Abad,
Villarama, Mendoza, Sereno, Reyes and Bernabe as the majority);
2. That there is no need to state in the Resolution that the TRO is
suspended until petitioners comply with condition (ii), that is,
petitioners will simply be directed to comply with condition (ii)
for the issuance of the TRO (voting was 7-6, with Corona, Velasco,
Brion, Peralta, Bersamin, Abad, and Perez as the majority). This
vote was taken after Justice Abad stated that since condition (ii)
for the issuance of the TRO was not complied with, there was no
need to state that the TRO is suspended since it is common sense
that the TRO cannot take effect unless all the conditions are
satisfied. I had earlier proposed that the Court recall the TRO for
non-compliance of condition (ii) but Justice Abads response was
that it need not be recalled because its effectivity is deemed
suspended pending compliance with condition (ii). After all,
Justice Abad said, it will take only 10 minutes for the amended
Special Power of Attorney to be submitted by Atty. Topacio.
However, the Resolution dated 18 November 2011 did not reflect
at all item 1. The Resolution merely stated that petitioners are directed
to comply with condition (ii) for the issuance of the TRO, which correctly
reflects item 2. Thus, in the En Banc meeting last 22 November 2011, I
suggested that the En Banc clarify the Resolution dated 15 November
2011 to reflect item 1 above. The En Banc agreed, and no one objected.
Justice Velasco was designated to draft the clarificatory Resolution.
Yesterday, 23 November 2011, Justice Velasco submitted his draft

of the first three sentences to the first paragraph of the attached
Resolution, which sentences reflect correctly item 1 above, but not item
2. Through my Chief of Staff, I called the attention of the Clerk of Court
and sent her a correction to Justice Velascos draft to reflect correctly item
2. I also called up Justice Velasco to inform him of my correction. Justice
Velasco and I agreed that this draft correctly reflected item 1. On item 2,
Justice Velasco explained that he did not get the nuance that there was
no need to state in the Resolution that the TRO is suspended, as his draft
in fact states the opposite that the TRO is not suspended pending
compliance with condition (ii), a statement not found in the Resolution
dated 18 November 2011
However, the clarificatory Resolution that came out late
yesterday afternoon, and which the Clerk of Court was instructed to
promulgate is the attached clarificatory Resolution dated 22 November
2011, which states:
1. There was substantial compliance with condition (ii) for the issuance
of the TRO;
2. The TRO was not suspended and continued to be in force pending
full compliance with the condition (ii).
The attached clarificatory Resolution compounds the error of the
Resolution dated 18 November 2011. In fact, the attached clarificatory
Resolution states the opposite of what was approved by the En Banc in
its meeting of 15 November 2011, and what was agreed in the En
Banc meeting of 22 November 2011.
I am informed by the Clerk of Court, through my Chief of Staff, that the
attached clarificatory Resolution is your version of the clarification. For
ready reference, I am attaching Justice Velascos version of the
clarification, as well as my own version.
In view of the foregoing, I suggest that the release of the attached

Resolution 22 November 2011 be held in abeyanceuntil the same is
taken up by the En Banc today before the 2 p. m. oral argument
Very truly yours,
Antonio T. Carpio (sgd.)
Copy Furnished:
All Associate Justices
Clerk of Court
The letter of Justice Carpio was taken up on the morning of 29 November 2011.
While one of the justices, as described in Justice Carpios letter, had argued on 18
November 2011 that the suspensive effect of non-compliance with condition (ii) no
longer needed to be stated, as it was common sense, this time he voted unequivocably
that despite non-compliance with condition (ii), the TRO was nevertheless not
suspended. The Resolution that was issued pursuant to the 29 November 2011 voting
reads in relevant part as follows:
Please take notice that the Court en banc issued a Resolution

dated NOVEMBER 22, 2011, which reads as follows:
G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. Leila M. De

Lima, in her capacity as Secretary of the Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of
Immigration) and G.R. No. 199046(Jose Miguel T. Arroyo v. Hon. Leila
M. de Lima, in her capacity as Secretary, Department of Justice, Ricardo
V. Paras III, in his capacity as Chief State Counsel, Department of Justice
and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of
Immigration). On November 18, 2011, the Court, by a vote of 7-6, found
that there was no sufficient compliance with the second condition of the
Temporary Restraining Order issued on November 15, 2011. However,
by a vote of 7-6, the Court ruled that the TRO was not suspended
pending compliance with the second condition. Thus, the Court
resolved to CLARIFYthat the TRO was not suspended even with the
finding that there was no full compliance with the conditions of the TRO.
Contrary to statements made by the Acting Chief of the Public Information Office
(PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the effectivity
of the TRO despite non-compliance with condition (ii). The above Resolution
categorically identified the voting ratio as 7-6 in favor of a declaration of non-
compliance, and another 7-6 in favor of non-suspension of the TRO despite non-
compliance with a condition.
The voting taken on 29 November 2011 was of the same composition as that of
the 18 November 2011 voting. Justices Carpio, Roberto A. Abad, Martin S. Villarama,
Jr., Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes and Estela M.
Perlas-Bernabe as the first majority group maintained that there was no compliance
with condition (ii). Then the majority grouping shifted when Justice Abad as he did
on 18 November joined Chief Justice Corona and Justices Velasco, Arturo D. Brion,
Diosdado M. Peralta, Lucas P. Bersamin, and Jose P. Perez to comprise the majority.
This time, however, the majority categorically voted to declare the non-suspension of
the TRO despite non-compliance with condition (ii). There was therefore, in every
sense of the word, a revision of the second majority groups vote, which now has the
effect of reversing their earlier ruling. This is not strange, as any clarification of an
earlier vote can result in a very substantive revision of that earlier vote. I requested
two (2) days to write my Dissent.
Justice Teresita J. Leonardo-De Castro who was on official business and Justice
Mariano C. del Castillo who was on leave on November 15 and 18 were both present
on 29 November 2011. As expected, they did not participate in the voting and
discussion on the issues of compliance and the effect of non-compliance with the
conditions of the November 15 Resolution because they were not present in the said
two previous meetings.
It must be understood that while I was writing the 18 November 2011 Dissenting
Opinion, the unsigned Resolution of the same date was also being written by
the ponente designated by the Chief Justice. When the Resolution came out, it was not,
with all due respect, a fully accurate reflection of what took place. This incident
demonstrates an existing gap between the actual discussion and the voting results that
take place in an En Banc session and their reflection in written form via an unsigned
resolution. Unsigned resolutions, it must be emphasized, are usually not circulated to
the justices for their approval before they are promulgated, as happened with the 18
November 2011 Resolution.
It was from my actual participation in the 15 November 2011 Session that I was
calling the attention of the Acting Chief of the PIO in my 18 November 2011 Dissenting
Opinion to desist from interpreting our actions. That Dissent, the letter of Justice
Carpio, and the need for a re-voting by the En Banc on 29 November 2011 should have
stopped the PIO from further wrongly interpreting our actions. Atty. Marquez was
propounding on the legal status of the TRO without the benefit of any written
document from this Court.
The Order Not To Immediately Promulgate

My 2 December 2011 Dissenting Opinion
After the voting on 29 November 2011, I informed my colleagues that I would

write a Dissenting Opinion on the clarificatory Resolution. They asked me when I
could submit my Dissent, and I requested two (2) days to finish it even though the
Internal Rules of the Supreme Court give me at least a week to write a Dissenting
Opinion (Rule 13, Section 7, A.M. No. 10-4-20 SC). During the oral argument in the
afternoon of the same day, the Court decided to continue the proceedings in the
afternoon of 01 December 2011, on which date I fell ill. Thus, I was unable to attend
the oral argument and to submit my Opinion.
On the following day, 02 December 2011 at 3 p. m., my office called the Office of the
Clerk of Court to advise it that a Dissenting Opinion from me would shortly be
submitted for promulgation. Under the same Internal Rules, the Clerk of Court has
the ministerial duty to promulgate such opinion. At 4 p. m., a member of my staff
personally delivered to the Office of the Clerk of Court the hard copy of my signed
Dissenting Opinion in official Gilbert bond paper the kind used in the Court for final
signed copies of Decisions, Opinions or Resolutions coming from the justices together
with two diskette copies thereof. Atty. Enriqueta Vidal, the Clerk of Court, who was
on the telephone at that time, directed my staff to one of her subordinates. The said
subordinate from the Office of the Clerk of Court duly received my opinion and the
two diskettes. Immediately thereafter, that same person together with my staff went
to the PIO to hand both diskettes containing an electronic copy of my Opinion for
uploading in the Supreme Court website. The person in charge of uploading decisions
and opinions received the diskettes and promised my staff that it would be uploaded
in ten minutes.
When I asked my staff to check if my Dissenting Opinion had indeed been uploaded,
they found to my dismay that it had not been uploaded despite the lapse of time. My
staff called the PIO to inquire about the status of the uploading. The person in charge,
however, had already left the office and none of the other employees were authorized
to upload the opinion. When that authorized personnel was reached through mobile
phone, he told my staff that he was not able to upload the Opinion in the website
because the soft copies had been earlier retrieved from him by the same person from
the Office of the Clerk of Court who received it.
Thereafter, my staff succeeded in contacting the Clerk of Court, who by then had left
the office as well. When asked for an explanation for the non-promulgation of the
Opinion, she reasoned that there was no process server who could have served the
Opinion on the parties anyway since it was already late Friday afternoon.
On the following Monday or on 5 December 2011, two members of my staff had a

serious talk with Atty. Vidal. She admitted that she could not tell my staff the real
reason for the non-promulgation of my opinion that actually, Justice Velasco gave her
the instruction, as confirmed by the Chief Justice, that my opinion should not be
promulgated, but rather, that it should be taken up in the agenda of the 6 December
2011 En Banc session. She also disclosed that she would be issuing a memorandum to
this effect. When they asked about the two diskettes of the Opinion, the Clerk of Court
summoned another staff member from her office, who explained that one of the
diskettes was with their Office and the other copy was given to the Court
Administrator, Atty. Jose Midas P. Marquez.
True enough, Atty. Vidal circulated to the members of the Court a letter that reads:
Memorandum for:
The Hon. Chief Justice
The Hon. Associate Justices
Re: G.R. No. 199034 GLORIA MACAPAGAL-ARROYO V.

HON. LEILA M. DE LIMA, in her capacity as
SECRETARY OF THE DEPARTMENT OF JUSTICE and
RICARDO A. DAVID, JR., in his capacity as
COMMISSIONER OF THE BUREAU OF
IMMIGRATION
G.R. No. 199046 JOSE MIGUEL T. ARROYO V. HON.

LEILA M. DE LIMA, in her capacity as SECRETARY OF
THE DEPARTMENT OF JUSTICE, RICARDO V.
PARAS, III, in his capacity as CHIEF STATE COUNSEL,
and RICARDO A. DAVID, JR., in his capacity as
COMMISSIONER OF THE BUREAU OF
IMMIGRATION
Per instruction of Associate Justice Presbitero J. Velasco, Jr., the

dissenting opinion of Associate Justice Maria Lourdes P.A. Sereno in the
Resolution dated November 22, 2011 in the above-entitled cases shall be
taken up in the session of the En Banc on Tuesday, December 6, 2011.
December 5, 2011
Enriqueta E. Vidal (sgd.)

Clerk of Court
The following day, I formalized my request that I be apprised of the legal basis for the
decision of the Chief Justice to affirm the instruction of Justice Velasco to the Clerk of
Court to withhold the promulgation of my Dissenting Opinion. My letter, which I
circulated to the other justices and the Clerk of Court, reads as follows:
6 December 2011
HON. RENATO C. CORONA

The Chief Justice
Re: Dissenting Opinion of Justice Maria Lourdes P. A. Sereno to the Resolution dated
29 November 2011 in G.R. Nos. 199034 and 199046
Dear Mister Chief Justice:
My office was informed by Atty. Enriqueta E. Vidal, Clerk of Court, that

you had confirmed the instruction given to her by Justice Presbitero J.
Velasco, Jr. that the Dissenting Opinion as described above that I
submitted last December 2, 2011, should not be promulgated. I attach
my signed Dissenting Opinion for your reference.
Inasmuch as your instruction constitutes a prevention of my exercise of

my constitutional duty as a member of the Court, please apprise me of
the legal basis for such instruction.
Thank you very much.

Sincerely,
MARIA LOURDES P. A. SERENO (Sgd.)
cc: Associate Justices

Clerk of Court
I know of no precedent in the entire history of the Supreme Court when the
promulgation of a Dissenting Opinion was withheld at the instruction of a fellow
Associate Justice or even of a Chief Justice. The language of the Constitution in Article
VIII, Section 13, is clear and I quote in relevant part: Any Member [of the Supreme
Court] who took no part, or dissented, or abstained from a decision or resolution, must
state the reason therefor. It is a constitutional right of any Member of the Court to
issue his or her Dissenting Opinion; and in cases wherein the issue of compliance with
a TRO and the efficacy of that TRO, is being subjected to intense national scrutiny, as
in this case, such issuance is also a constitutional duty.
Further, I know of no precedent in the entire history of the Supreme Court where the
promulgation of a signed Dissenting Opinion has been withheld because it would be
the subject of discussion in a next Court session.
In the 06 December 2011 session, I was asked by a colleague why I have been writing
my Dissenting Opinions the way I do; and in the case of my unpromulgated but
signed 2 December 2011 Dissenting Opinion, why I broadcast to the whole world the
Courts internal discussions. He shared his view that it created a chilling effect on the
freedom of his opinions. I said I was not introducing anything new, and that since
1958 to as late as 2009, this Court has had Decisions and Opinions disclosing the
process and the content of its internal discussions. Those disclosures were so detailed
as to state who opined what, and who changed their vote at the last minute from one
position to another. In all those instances, the Court never took action against the
disclosure itself by withholding promulgation, or against its author by disciplining
the same.
One justice undertook to counter my Dissenting Opinion. Justice Carpio indicated that
he would in turn answer that proposed contra-Dissent. That contra-Dissent, was to be
premised on the theory that the conditions imposed on 15 November 2011 were all
resolutory and not suspensive.2 The Court agreed to give all the Members until 13
December 2011 within which to write their Concurring or Dissenting Opinions. I
continued to insist on my constitutional right to have my Dissent immediately
promulgated and that any of them could just easily follow with his Opinion to counter
mine anyway. I received no positive response.
Justice Carpio submitted his own Dissenting Opinion six (6) days later, on 12
December 2011.
The Continuing Non-Promulgation of My

Dissenting Opinion
On 13 December 2011, my Dissenting Opinion was again subject to discussion in the

En Banc Session. The justice who undertook to write a counter-Dissent withdrew that
proposed initiative but Justice Carpios Dissenting Opinion to answer that counter-
Dissent is not withdrawn. One of the justices who was not present in the 06 December
2011 Session raised my supposed violation of the confidentiality rule in Rule 10,
Section 2 of the Internal Rules of the Supreme Court, which reads:
Confidentiality of Court Sessions Court sessions are executive in character,

with only the Members of the Court present. Court deliberations are
confidential and shall not be disclosed to outside parties, except as may
be provided herein or as authorized by the Court.
The Chief Justice or the Division Chairperson shall record the action or
actions taken in each case for transmittal to the Clerk of Court or
Division Clerk of Court after each session. The notes of the Chief Justice
and the Division Chairperson, which the Clerk of Court and the Division
Clerks of Court must treat with strict confidentiality, shall be the bases
of the minutes of the sessions.
This justice informed the Court that he would be writing an Opinion to counter my
Dissenting Opinion. Two other members also intimated that they would write
contrary Opinions to mine.
In all likelihood, I will not have a chance to see the drafts of the Opinions of my three
fellow justices who will be writing Opinions to counter this Dissent. So the following
paragraphs have been crafted anticipating the arguments they expounded on in our
13 December 2011 session. Other than one of them opining that I am breaching the
rule on confidentiality and another claiming that my Dissent has a chilling effect on
the Court, I have no idea what the new objections to my Dissent would be.
Rule 10, Section 2 cannot be interpreted to diminish the constitutional duties and
rights of the Members of the Supreme Court.
Rule 1, Section 2 of the same Rules emphasize the hierarchy of the sources of law to
which the Internal Rules of the Supreme Court themselves are subject to. It reads:
Interpretation The Internal Rules of the Supreme Court shall be interpreted

in accordance with the mandates of the Supreme Court under the
Constitution, applicable laws, and the Rules of Court to ensure a just,
fair and efficient administration of justice. Nothing in these Rules shall
be interpreted to preclude or limit the exercise of the power and
authority of the Court as provided in the Constitution, the applicable
laws, and the Rules of Court.
This Dissenting Opinion is written in the spirit of discharging the constitutional

duty of a dissenting Member of the Court to explain herself under Article VIII, Section
13 of the Constitution.3 It is only by our Decisions and Opinions that we, as Members
of this Court, are able to account for our actions. Any attempt to muzzle the opinion
of a dissenting Justice for the sole reason that the majority will find such writing
inconvenient is unconstitutional. This is especially true when the account of the voting
and the reasons for the votes are being contested, as the 18 November 2011 vote on
the TRO was.
I do not believe that a disclosure of the internal deliberations of the Court is warranted
in each and every case. My 18 November 2011 Dissenting Opinion, as well as my
unpromulgated 2 December 2011 Dissenting Opinion which has now been
superseded by this Dissenting Opinion finalized and signed this 19th of December
2011 made the disclosures only because (1) the promulgated Resolution of 18
November 2011 did not reflect that days voting and the reasons for that vote; and (2)
the Acting Chief of the PIO continues to misinform the public.
When the accuracy and the content of the deliberations of the Courts
confidential session are being disputed, it is the constitutional duty of the Members of
the Court, especially the minority, to speak up and put on record what actually took
place. This duty becomes especially necessary when an officer of the judiciary, who
has been clothed with apparent authority by the Chief Justice, continues to misinform
the public, and such behavior is not being corrected. As is highly obvious from the
organizational constraints within the Supreme Court, the minority Members of the
Court have a limited opportunity to correct the misinforming officer. The minority
will also not have a fair chance to correct the resolution, in this case drafted by
a ponente designated by the Chief Justice, until after its promulgation. To keep quiet
in such times and not make use of opportunities available to the minority to present
the truth through Dissenting Opinions would be a disservice to the country.
The majority decided that all the justices would be given until 5 p.m. of 19 December
2011 to submit their individual opinions. I continued to assert that my Dissent should
nevertheless be immediately promulgated, because Atty. Marquez has been
continuing his misstatements on the TRO unabated, effectively making it appear that
some of my statements in my 18 November 2011 Dissent were untrue. This latter
assertion was unheeded.
This Dissenting Opinion has created a very strange situation. A simple Dissent
to a Resolution is not being allowed immediate promulgation while the Resolution it
is dissenting from had been promulgated 20 days ago, specifically on 29 November
2011. Instead, the Dissent has become the subject of a debate in two En Banc sessions.
The treatment of my Dissent raises fundamental questions on the right of the Members
of this Court, in a case of intense national interest, to explain their votes.
Continuing Misinformation on the 15, 18
and 29 November 2011 Voting and
Summative Timeline
The public continues to be fed information that distorts the facts and the legal import
of the voting that took place on the above dates.
First, the clear sense of the 15 November resolution was to impose as a condition
precedent the filing of the cash bond and the submission of a Special Power of
Attorney (SPA) to a common legal representative designated to receive summons.
There is no other logical position.
Second, the Court did not rule in the 18 November 2011 Resolution that the TRO was
in full force and effect, nor that it was not suspended. To the contrary, the voting, in
which a second majority group prevailed, resulted in a decision to remain silent on
the matter, as it was common sense anyway, and basic knowledge to all lawyers, that
the nonfulfillment of a condition means that the TRO cannot be made use of.
Third, on 29 November 2011, while the second majority revised its earlier vote for
silence to a vote for a categorical pronouncement of the non-suspension of the TRO,
this later pronouncement does not mean there was any inaccuracy in my 18 November
2011 Dissenting Opinion. As earlier stated, that Dissent has never been assailed by any
Member of the Court until now.
Fourth, there was no 9-4 voting, sustaining the non-suspension of the TRO, contrary
to what is being claimed by the Acting Chief of the PIO.
Fifth, while my Dissenting Opinion of 18 November 2011 gives the reason for my
continuing dissent from the majoritys decision to grant the TRO, the Dissent was also
a participants record of what transpired on 18 November 2011.
Below is a summative timeline of what has been taking place since 15 November 2011
with respect to the issue of petitioners compliance with the TRO.
DATE EVENT
15 November 2011 Voting on the grant of the TRO takes place in the morning;
conditions are imposed; all justices present, except JJ.
Leonardo-De Castro and Del Castillo.
The Resolution is issued in the afternoon together with the

Dissent of J. Carpio. Both documents are immediately
uploaded on the Supreme Court website.
The TRO was subject to three conditions, namely:

(i) The petitioners shall post a cash bond of Two
Million Pesos (P2,000,000.00) payable to this
Court within five (5) days from notice hereof.
Failure to post the bond within the aforesaid
period will result in the automatic lifting of the
temporary restraining order;
(ii) The petitioners shall appoint a legal
representative common to both of them who will
receive subpoena, orders and other legal
processes on their behalf during their absence.
The petitioners shall submit the name of the legal
representative, also within five (5) days from
notice hereof; and
(iii) If there is a Philippine embassy or consulate
in the place where they will be traveling, the
petitioners shall inform said embassy or
consulate by personal appearance or by phone of
their whereabouts at all times.
16 November 2011 J. Sereno submits her Dissenting Opinion the following

day; it is immediately uploaded on the website.
17 November 2011 J. Reyes submits his Dissenting Opinion the following day;
it is immediately uploaded on the website.
18 November 2011 Voting on the compliance with the conditions of the TRO
takes place in the morning; 7-6 in favor of non-compliance
(the first majority grouping); the earlier majority is
defeated in the second 7-6 voting, which has swung in
favor of keeping silent on the legal effect of non-compliance
(the second majority grouping). Again, JJ. Leonardo-De
Castro and Del Castillo are absent.
While the Resolution has not yet even been written, Atty.
Marquez tells the public that the TRO is in full force and
effect and, as far as the SC is concerned, petitioners can
travel out of the country immediately.
Promulgated late in the afternoon and released to the

parties, the Resolution together with the Dissenting
Opinion of J. Sereno is immediately uploaded on the
website.
22 November 2011 J. Carpio proposes, and the Court agrees, to clarify the 18
November 2011 Resolution. It also agrees to have JJ.
Velasco and Carpio confer with each other on the language
of the clarification.
23 November 2011 J. Velasco sends the Clerk of Court and J. Carpio his
typewritten version of the clarificatory Resolution.
J. Carpio sends J. Velasco and the Clerk of Court his

modifications of J. Velascos version of the clarificatory
Resolution by making, in his own handwriting, correction
marks on the draft Resolution. The two justices agree that J.
Velascos clarification of the first item, i.e., the non-
compliance, is accurate. They disagree on the second item,
however. J. Velasco maintains that, from the 18 November
2011 Resolution, he did not get the sense that the TRO is
suspended pending compliance, contrary to J. Carpios
clear understanding that it is so suspended pending
compliance, but that the Resolution need not spell out this
legal effect, considering that it is common sense in the
words of a member of the winning second majority
grouping.
The Clerk of Court informs J. Carpio that CJ Corona sent in

his own handwritten corrections on the typewritten draft
Resolution from J. Velasco with the instruction that the
Chief Justices version is to be immediately
promulgated. CJ Coronas version is to the effect that
petitioners have complied with the conditions for the
issuance of the TRO, and that it is in full force and effect.
J. Carpio requests the Clerk of Court to hold the

promulgation in abeyance while he formally writes his
request to that effect.
24 November 2011 J. Carpio requests, in a formal letter (see above) addressed

to the Chief Justice, that the promulgation of the version of
the clarificatory Resolution sent by the Chief Justice to the
Clerk of Court, be held in abeyance until the justices are
able to meet on the matter. He states that the version sent
by the Chief Justice compounds the error of the 18
November 2011 Resolution.
29 November 2011 The Court votes again on the 18 November Resolution

regarding petitioners non-compliance with a condition of
the TRO.
While the voting on the non-compliance by petitioners
with one of the conditions for the issuance of the TRO is
maintained, 7-6 (the first majority grouping), the second
majority grouping revises its winning vote on the 18
November 2011 Resolution to categorically state that the
TRO is not suspended despite non-compliance with a
condition.
Early that same afternoon, while the Resolution has not yet
even been written, the Acting Chief of the PIO restates his
claim that the Court has always considered the TRO to
have not been suspended, and that this ruling was clarified
by a 9-4 vote.
The Resolution comes out late in the afternoon, reflecting

the fact that the voting to sustain the effectivity of the TRO
was 7-6, not 9-4.
2 December 2011 J. Sereno submits her Dissenting Opinion at 4 p.m. It is not

promulgated, neither is it uploaded on the SC website. The
persons authorized to promulgate her opinion and upload
it on the website is missing, and no satisfactory explanation
is given.
5 December 2011 Clerk of Court admits to the staff of J. Sereno the real reason
for the non-promulgation of the latters Dissent the
instruction of J. Velasco as affirmed by the Chief Justice. An
officer from the Clerk of Court likewise admits that one of
the diskettes was given to Atty. Jose Midas P. Marquez.
A memo addressed to all the justices is circulated by Atty.

Vidal to the effect that, upon the instruction of J. Velasco,
the Dissenting Opinion of J. Sereno would be taken up in
the following days En Banc session. (See above.)
6 December 2011 The Dissenting Opinion of J. Sereno is discussed in the En

Banc session. She cites the existence of precedents as early
as 1958 and as late as 2009 as justification for her disclosure
of internal deliberations in her opinion and points out that
the Court never took any action to prevent such
disclosures.
Some Justices manifested that they will answer J. Serenos

Dissent in their own opinions. One Justice manifested he
would write another Dissenting Opinion.
In a letter, J. Sereno formally requests the Chief Justice to
apprise her of the legal basis of his instruction to not
promulgate her Dissenting Opinion on 2 December 2011,
and says that she views this move as a prevention of her
constitutional duty to explain the reason for her Dissent.
(See above.)
As of the rewriting of this Dissenting Opinion, no reply to

the letter has been received by J. Sereno from the Chief
Justice.
12 December 2011 J. Carpio circulates his Dissenting Opinion.
13 December 2011 Other than the separate Dissenting Opinions of J. Carpio

and J. Sereno, and contrary to what was manifested in
the En Banc session of 6 December 2011, no other opinion
has been circulated. The justice who undertook to submit a
Counter-Dissent, did not, and manifested that no such
opinion would be forthcoming. Three other justices
indicated that they would submit their counter-Dissents,
presumably in the form of Concurring Opinions.
Why I Dissent from the Majority Vote to

Declare the Non-Suspension of the TRO
Despite Non-Compliance with Condition (
ii)
In the 15 November 2011 En Banc session at which petitioners prayer for a TRO was
granted by a vote of 8-5, a part of the highly animated discussion focused on what
kind of conditions should be imposed on petitioners to allay the concerns of those
objecting. Some Members of the Court, including from the eight (8) who voted to grant
the TRO, insisted that a common legal representative should be denominated to
receive processes on behalf of petitioners, so that the latter could continue to be bound
by the outcome of the preliminary investigation and other similar processes. The 15
November 2011 Resolution thus reads:
WHEREAS, the Supreme Court, on November 15, 2011, adopted a

resolution in the above-entitled case, to wit:
xxxxxxxxx
c) ISSUE a TEMPORARY RESTRAINING

ORDER in the consolidated petitions, enjoining the
respondents from enforcing or implementing DOJ
Department Circular No. 41 and Watchlist Order Nos.
ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011 and 2011-573 dated October 27, 2011,
subject to the following conditions:
i. The petitioners shall post a cash bond of Two Million

Pesos (P2,000,000.00) payable to this Court within five (5)
days from notice hereof. Failure to post the bond within
the aforesaid period will result in the automatic lifting of
the temporary restraining order;
ii. The petitioners shall appoint a legal representative
common to both of them who will receive subpoena,
orders and other legal processes on their behalf during
their absence. The petitioners shall submit the name of the
legal representative, also within five (5) days from notice
hereof; and
iii. If there is a Philippine embassy or consulate in the
place where they will be traveling, the petitioners shall
inform said embassy or consulate by personal appearance
or by phone of their whereabouts at all times; and x x x
(Emphasis supplied.)
On the same day, petitioners executed a SPA dated 15 November 2011 in favor of Atty.
Ferdinand Topacio, appointing him to produce summons or receive documentary
evidence.
On 18 November 2011, the Court En Banc convened in a special session to discuss, in

relation to this case, six issues that arose in the interim after the TRO was issued. The
second issue was whether the SPA submitted by petitioners in favor of Atty. Topacio
complied with the conditions imposed by the Court for the issuance of the TRO.
Justice Carpio explained that the TRO issued by the Clerk of Court pursuant to the 15
November 2011 Resolution should be recalled, since there was a failure to comply
with one of the Resolutions conditions. He compared the wording of the second
condition imposed by the said Resolution with the provisions of the SPA submitted
by petitioners. Obviously, the authority of an agent to receive subpoena, orders and
other legal processes as required by the Courts Resolution is the opposite of an agency
to produce summons, which was given by petitioners to Atty. Topacio.
One justice argued that there was substantial compliance with the conditions for the
issuance of the TRO notwithstanding the language of the Arroyos-to-Topacio SPA,
but strong objections to this proposition were immediately raised. A justice countered
that there could be no substantial compliance when no person has been designated by
petitioners to receive summons. He reasoned that the failure to comply with the
second condition was as defective as if no cash bond were filed.
Another argued that, anyway, the SPA had a provision that designated Atty. Topacio
to do all things necessary.4 This general clause would thus suffice for purposes of
complying with the second condition. In response, another justice countered that the
general clause could not be considered as sufficient if the Court itself specifically
required a Special, and not a General, Power of Attorney.
The justice who shifted his vote from the first majority to the second majority agreed
with the observations of Justice Carpio with respect to the defect of the SPA and noted
that it was a jurisdictional defect. The pivotal justice who shifted his vote, added that,
anyway, the defect could easily be remedied by petitioners who in 10 minutes could
simply amend the SPA to reflect condition (ii).
After the discussion, the Court, voting 7-6, ruled that petitioners had failed to
comply with the second condition imposed by the 15 November 2011 Resolution for
the issuance of a TRO.
The Court then proceeded to discuss the legal effects of this non-compliance. Justice
Carpio argued for the recall of the TRO, considering the defective SPA. However,
several justices objected to the recall of the TRO and said that it was unnecessary. It
was proposed instead that the TRO be deemed suspended pending compliance with
the second condition.
Justice Carpio agreed to the proposed amendment of his motion. He proceeded to

reformulate the issue to be voted upon: namely, whether the TRO was suspended
pending compliance with condition (ii).
Instead of accepting Justice Carpios reformulated motion, the pivotal justice pointed
out that there was no need for the Court to expressly declare that the TRO was
suspended pending compliance. He thus effectively put forth a motion for the
Resolution to just remain silent on the matter. But Justice Carpio insisted on his motion
that the Court explicitly declare that the TRO was suspended. The justice concerned
opposed the proposal, saying that the Resolution need not expressly declare the TRO
suspended pending compliance, since the legal effect of non-compliance was common
sense anyway. He quipped that every lawyer knows that a TRO does not become
effective until the conditions for its issuance are complied with.
The Court voted in favor of the pivotal justices proposal and ruled by a vote of 7-6
that it was not necessary for the Resolution to express that the TRO was deemed
suspended pending compliance.
A Partys Compliance with the Conditions of
the Resolution Granting the TRO Required
Before a TRO Becomes Effective
The Court in granting the TRO imposed conditions on petitioner for its availment.
One of the conditions was not met. Until that condition is met, the TRO is perforce
suspended.
Our own Rules of Court clearly state that the grant of a TRO or preliminary
injunction hinges on the courts discretion, as evidenced by the use of the word
may.5 Hence, availment of the provisional remedy is not a statutory right; it subjects
the litigant to the conditions thereof. In conformity with this reasoning, the Court has
consistently held that the term may is indicative of a mere possibility, an opportunity
or an option. The grantee of that opportunity is vested with a right or faculty which
he has the option to exercise. If he chooses to exercise the right, he must comply with
the conditions attached thereto.6
In Marquez v. Judge Sanchez,7 the Court noted the extraordinary and preemptive
nature of a TRO and the need to grant it only upon the Courts full satisfaction that the
law permits it, and that an emergency demands it:
It is an extraordinary, preemptory remedy available only on the

grounds expressly provided by law, specifically Section 3, Rule 58 of the
Rules of Court. Moreover, extreme caution must be observed in the
exercise of such discretion. It should be granted only when the court is
fully satisfied that the law permits it and the emergency demands it. The
very foundation of the jurisdiction to issue a writ of injunction rests in
the existence of a cause of action and in the probability of irreparable
injury, inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. Where facts are not shown to bring the case within
these conditions, the relief of injunction should be refused.
In the instant case, the 7-6 re-voting that occurred during the 29 November 2011
session overturned such elementary understanding of conditional TROs, which
practitioners, judges, and even law students may now find hard to comprehend.
In essence, the new ruling would have permitted petitioners to take advantage of the
TRO without even complying with a very substantive condition the Court itself had
imposed. If, as one Justice has posited, petitioners failed to deposit the cash bond or it
was insufficient, could the TRO have been validly issued by the Clerk of Court?
It takes no stretch of the imagination to think of the havoc that would be
wreaked on the judicial system by the unfortunate disposition that the Court has
introduced today in favor of petitioners. The whole country will be confused about
the meaning of conditions imposed by courts for the availment of judicial writs. This
Court must reverse its course expeditiously.
MARIO JOSE E. SERENO, EXECUTIVE DIRECTOR OF THE ASSOCIATION OF
PETROCHEMICAL MANUFACTURERS OF THE PHILIPPINES, INC.
(APMP), Petitioner, v. COMMITTEE ON TRADE AND RELATED MATTERS
(CTRM) OF THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY
(NEDA), COMPOSED OF THE DIRECTOR-GENERAL OF THE NEDA
SECRETARIAT, THE EXECUTIVE SECRETARY, THE SECRETARIES OF
TRADE AND INDUSTRY, FINANCE, FOREIGN AFFAIRS, AGRICULTURE,
ENVIRONMENT AND NATURAL RESOURCES, BUDGET AND
MANAGEMENT, TRANSPORTATION AND COMMUNICATION, LABOR
AND EMPLOYMENT, AGRARIAN REFORM, THE GOVERNOR OF THE
BANGKO SENTRAL NG PILIPINAS AND THE CHAIRMAN OF THE TARIFF
COMMISSION, AND BRENDA R. MENDOZA IN HER CAPACITY AS
DIRECTOR OF THE TRADE, INDUSTRY & UTILITIES STAFF, Respondents.
DECISION
BERSAMIN, J.:
The constitutional guarantee to information does not open every door to any and all
information, but is rather confined to matters of public concern. It is subject to such
limitations as may be provided by law. The State's policy of full public disclosure is
restricted to transactions involving public interest, and is tempered by reasonable
conditions prescribed by law.
The Case
The petitioner appeals the decision rendered on October 16, 2006 by the Regional
Trial Court (RTC), Branch 268, in Pasig City1 dismissing the petition for mandamus he
had filed in his capacity as a citizen and as a stakeholder in the Philippine
petrochemical industry to compel respondent Committee on Tariff and Related
Matters (CTRM) to provide him a copy of the minutes of its May 23, 2005 meeting; as
well as to provide copies of all official records, documents, papers and government
research data used as basis for the issuance of Executive Order No. 486.2
Antecedents
On May 23, 2005, the CTRM, an office under the National Economic Development
Authority (NEDA), held a meeting in which it resolved to recommend to President
Gloria Macapagal-Arroyo the lifting of the suspension of the tariff reduction
schedule on petrochemicals and certain plastic products, thereby reducing the
Common Effective Preferential Tariff (CEPT) rates on products covered by Executive
Order (E.O.) No. 161 from 7% or 10% to 5% starting July 2005.3
On June 9, 2005, Wilfredo A. Paras (Paras), then the Chairman of the Association of
Petrochemical Manufacturers of the Philippines (APMP), the main industry
association in the petrochemical sector, wrote to the CTRM Secretariat, through its
Director Brenda Mendoza (Director Mendoza), to request a copy of the minutes of
the meeting held on May 23, 2005.
Director Mendoza denied the request through her letter of June 20, 2005,4 to wit:
With reference to your request for a copy of the minutes and resolution of the
Committee on Tariff and Related Matters (CTRM) meeting held on 23 May 2005, our
Legal Staff advised that we cannot provide the minutes of the meeting detailing the
position and views of different CTRM member agencies. We may, however, provide
you with the action taken of the CTRM as follows:
"The CTRM agreed to reduce the CEPT rates on petrochemical resins and plastic
products covered under EO 161 from 7% / 10% to 5% starting July 2005, and to
revert the CEPT rates on these products to EO 161 levels once the proposed naphtha
cracker plant is in commercial operation."
The CTRM has yet to confirm the minutes including the action taken during the said
meeting since it has not met after 23 May 2005.
The CTRM, again through Director Mendoza, sent a second letter dated August 31,
2005 as a response to the series of letter-requests from the APMP, stating:
The CTRM during its meeting on 14 July 2005 noted that Section 3, Rule IV of the
Implementing Rules and Regulations of Republic Act 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides that every
department, office or agency shall provide official information, records or
documents to any requesting public (sic). However, the section also provides
exceptions to the rules, such as if '...(c) such information, record or document south
(sic) falls within the concepts of established privileged or recognized exceptions as
may be provided by law or settled policy or jurisprudence...' The acknowledged
limitations to information access under Section 3 (c) include diplomatic
correspondence, closed-door Cabinet meetings and executive sessions of either
House of Congress, as well as internal deliberations of the Supreme Court (Chavez
vs. Presidential Commission on Good Government, 299 SCRA 744)
The CTRM is of the view that the limitation pertaining to closed-door cabinet
meetings under Section 3 (c) of the IRR applies to the minutes of the meeting
requested by APMP. In view thereof, the CTRM is constrained [not] to provide the
said minutes to the APMP.5ChanRoblesVirtualawlibrary
The APMP sent another letter-request dated October 27, 2005 to the CTRM through
Director Mendoza reminding about the legal implications of the refusal to furnish
copies of the minutes as in violation of the petitioner's Constitutional right of access
to information on matters of public concern. However, the CTRM continued to
refuse access to the documents sought by the APMP.6
The attitude of the CTRM prompted the petitioner and the APMP to bring the
petition for mandamus in the RTC to compel the CTRM to provide the copy of the
minutes and to grant access to the minutes. The case was docketed as SCA No. 2903.
The APMP, through Paras and Concepcion I. Tanglao, respectively its Chairman and
President at the time, sent letters dated December 12, 20057 and January 10, 20068 to
the Office of the President (OP), stating the reasons why the recommendation of the
CTRM should be rejected, but the OP did not respond to the letters.
Thereafter, the petitioner filed an Urgent Motion for the Issuance of a Writ of Preliminary
Mandatory Injunction dated January 3, 2006, to which the respondent filed
its Opposition dated January 26, 2006 and Motion to Dismiss dated February 16, 2006.9
Meanwhile, President Arroyo signed Executive Order No. 486,10 dated January 12,
2006, to lift the suspension of the tariff reduction on petrochemical resins and other
plastic products under the ASEAN Free Trade Area - Common Effective Preferential
Tariff (AFTA-CEPT) Scheme. The relevant portions of E.O. No. 486 read:
WHEREAS, Executive Order 234 dated 27 April 2000, which implemented the 2000-
2003 Philippine schedule of tariff reduction of products transferred from the
Temporary Exclusion List and the Sensitive List to the Inclusion List of the
accelerated CEPT Scheme for the AFTA, provided that the CEPT rates on
petrochemicals and certain plastic products will be reduced to 5% on 01 January
2003;
WHEREAS, Executive Order 161 issued on 9 January 2003 provides for the
suspension of the application of the tariff reduction schedule on petrochemicals and
certain products in 2003 and 2004 only;
WHEREAS, the government recognizes the need to provide an enabling

environment for the naphtha cracker plant to attain international competitiveness;
WHEREAS, the NEDA Board approved the lifting of the suspension of the aforesaid
tariff reduction schedule on petrochemicals and certain plastic products and the
reversion of the CEPT rates on these products to EO 161 (s.2003) levels once the
naphtha cracker plant is in commercial operation;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the

Republic of the Philippines, pursuant to the powers vested in me under Section 402
of the Tariff and Customs Code of 1978 (Presidential Decree No. 1464), as amended,
do hereby order:
SECTION 1. The articles specifically listed in Annex "A" (Articles Granted

Concession under the CEPT Scheme for the AFT A) hereof, as classified under
Section 104 of the Tariff and Customs Code of 1978, as amended shall be subject to
the ASEAN CEPT rates in accordance with the schedule indicated in Column 4
of Annex "A". The ASEAN CEPT rates so indicated shall be accorded to imports
coming from ASEAN Member States applying CEPT concession to the same product
pursuant to Article 4 of the CEPT Agreement and its Interpretative Notes.
In its order of May 9, 2006, the RTC denied the Urgent Motion for the Issuance of a Writ
of Preliminary Mandatory Injunction but directed the parties to file their respective
memorandums after noting that the controversy involved a pure question of law.11
Subsequently, the RTC rendered its assailed decision on October 16,

200612 dismissing the petition for mandamus for lack of merit. It relied on the relevant
portions of Section 3 of Rule IV of the Implementing Rules and Regulations of R.A.
No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), to
wit:
Sec 3. Every department, office or agency shall provide official information, records
and documents to any requesting public except if:
xxxx
(c) the information, record or document sought falls within the concepts of
established privilege or recognized exceptions as may be provided by law or settled
policy or jurisprudence;
(d) such information, record or document comprises drafts or decisions, orders,

rulings, policies, memoranda, etc.
and relevant portions of Section 7 (c) of the same law, viz.:
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of
public officials and employees now prescribed in the Constitution and existing laws,
the following shall constitute prohibited acts and transactions of any public official
and employee and are hereby declared unlawful:
xxxx
(c) Disclosure and/or misuse of confidential information - Public officials and

employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public either:
xxxx
(2) To the prejudice of public interest.13ChanRoblesVirtualawlibrary

The RTC declared that the "CTRM is an advisory body composed of various
department heads or secretaries and is classified as cabinet meetings and inter-
agency communications;"14 and that the record of the communications of such body
"falls under the category of privileged information because of the sensitive subject
matter which could seriously affect public interest."15
Hence, this appeal directly to the Court on questions of law.16

Issues
The petitioner submits the following issues for resolution, namely:

I. Are meetings of the CTRM and the minutes thereof exempt from the
Constitutional right of access to information?
II. Assuming arguendo that the minutes of CTRM meetings are privileged
or confidential, is such privilege or confidentiality absolute?
III. Can privilege or confidentiality be invoked to evade public
accountability, or worse, to cover up incompetence and malice?17
In short, the issue is whether or not the CTRM may be compelled by mandamus to
furnish the petitioner with a copy of the minutes of the May 23, 2005 meeting based
on the constitutional right to information on matters of public concern and the State's
policy of full public disclosure. The request for information was motivated by his
desire to understand the basis for the CTRM's recommendation that allegedly
caused tremendous losses to the petrochemical industry through the issuance of E.O.
No. 486.
In seeking the nullification of the assailed decision of the RTC, and the consequent
release of the minutes and the disclosure of all official records, documents, papers
and government research data used as the basis for the issuance of E.O. No. 486, the
petitioner invokes the following provisions of the 1987 Constitution and R.A. No.
6713, thusly:
Section 28 of Article II of the 1987 Constitution:

Section 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
Section 7 of Article III of the 1987 Constitution:
Section 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Section 1 of Article XI of the 1987 Constitution:
Section 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
Section 5 of R.A. No. 6713:
Section 5. Duties of Public Officials and Employees. - In the performance of their
duties, all public officials and employees are under obligation to:
xxxx
(e) Make documents accessible to the public. - All public documents must be made
accessible to, and readily available for inspection by, the public within reasonable
working hours.
Ruling of the Court
The dismissal of the petition for mandamus by the RTC is affirmed.
The constitutional guarantee of the right to information on matters of public concern

enunciated in Section 7 of Article III of the 1987 Constitution complements the State's
policy of full public disclosure in all transactions involving public interest expressed
in Section 28 of Article II of the 1987 Constitution. These provisions are aimed at
ensuring transparency in policy-making as well as in the operations of the
Government, and at safeguarding the exercise by the people of the freedom of
expression. In a democratic society like ours, the free exchange of information is
necessary, and can be possible only if the people are provided the proper
information on matters that affect them. But the people's right to information is not
absolute. According to Legaspi v. Civil Service Commission,18 the constitutional
guarantee to information "does not open every door to any and all information."19 It
is limited to matters of public concern, and is subject to such limitations as may be
provided by law.20 Likewise, the State's policy of full public disclosure is restricted to
transactions involving public interest, and is further subject to reasonable conditions
prescribed by law.21
Two requisites must concur before the right to information may be compelled by
writ of mandamus. Firstly, the information sought must be in relation to matters of
public concern or public interest. And, secondly, it must not be exempt by law from
the operation of the constitutional guarantee.
As to the first requisite, there is no rigid test in determining whether or not a

particular information is of public concern or public interest.22 Both terms cover a
wide-range of issues that the public may want to be familiar with either because the
issues have a direct effect on them or because the issues "naturally arouse the
interest of an ordinary citizen."23 As such, whether or not the information sought is
of public interest or public concern is left to the proper determination of the courts
on a case to case basis.
In his capacity as a citizen and as the Executive Director of the APMP, the petitioner
has sought to obtain official information dealing with the policy recommendation of
the CTRM with respect to the reduction of tariffs on petrochemical resins and plastic
products. He has asserted that the recommendation, which would be effected
through E.O. No. 486, not only brought significant losses to the petrochemical
industry that undermined the industry's long-term viability and survival, but also
conflicted with official government pronouncements, policy directives, and
enactments designed to support and develop an integrated petrochemical industry.
He has claimed that the implementation of E.O. No. 486 effectively deprived the
industry of tariff support and market share, thereby jeopardizing large investments
without due process of law.24
The Philippine petrochemical industry centers on the manufacture of plastic and

other related materials, and provides essential input requirements for the
agricultural and industrial sectors of the country. Thus, the position of the
petrochemical industry as an essential contributor to the overall growth of our
country's economy easily makes the information sought a matter of public concern
or interest.
The second requisite is that the information requested must not be excluded by law
from the constitutional guarantee. In that regard, the Court has already declared that
the constitutional guarantee of the people's right to information does not cover
national security matters and intelligence information, trade secrets and banking
transactions and criminal matters.25 Equally excluded from coverage of the
constitutional guarantee are diplomatic correspondence, closed-door Cabinet
meeting and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court.26 In Chavez v. Public Estates Authority,27 the Court
has ruled that the right to information does not extend to matters acknowledged as
"privileged information under the separation of powers," which include
"Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings."28 Likewise exempted from the right to information are
"information on military and diplomatic secrets, information affecting national
security, and information on investigations of crimes by law enforcement agencies
before the prosecution of the accused."29
The respondents claim exemption on the ground that the May 23, 2005 meeting was
classified as a closed-door Cabinet meeting by virtue of the committee's composition
and the nature of its mandate dealing with matters of foreign affairs, trade and
policy-making. They assert that the information withheld was within the scope of
the exemption from disclosure because the CTRM meetings were directly related to
the exercise of the sovereign prerogative of the President as the Head of State in the
conduct of foreign affairs and the regulation of trade, as provided in Section 3 (a) of
Rule IV of the Rules Implementing R.A. No. 6713.30
The authority of the CTRM as the advisory body of the President and the NEDA is
set forth in E.O. No. 230, series of 1987 (Reorganization Act of the National Economic and
Development Authority), to wit:
SECTION 6. National Economic and Development Authority Inter-agency
Committees. - To assist the NEDA Board in the performance ol its functions, there
are hereby created the following committees which shall nereafter be under the
direct control of the NEDA Board and shall submit all their recommendations to the
President for approval on matters involving their respective concerns. The Chairman
of these committees shall be designated by the President. The NEDA Board shall
likewise determine where the technical staff of the said committees shall be based.
xxxx
(e) Committee on Tariff and Related Matters (TRM) - The TRM to be composed of
the Director-General of the National Economic and Development Authority
Secretariat, the Executive Secretary, the Secretaries of Trade and Industry, Foreign
Affairs, Agriculture, Environment and Natural Resources and of Budget and
Management, the Governor of the Central Bank and the Chairman of the Tariff
Commission shall have the following functions:
(i) Advise the President and the NEDA Board on tariff and related matters, and on
the effects on the country of various international developments;
(ii) Coordinate agency positions and recommend national positions for international
economic negotiations;
(iii) Recommend to the President a continuous rationalization program for the country's
tariff structure. (underlining supplied)
The respondents are correct. It is always necessary, given the highly important and
complex powers to fix tariff rates vested in the President,31 that the
recommendations submitted for the President's consideration be well-thought out
and well-deliberated. The Court has expressly recognized in Chavez v. Public Estates
Authority32 that "a frank exchange of exploratory ideas and assessments, free from
the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power." In Almonte v. Vasquez33the Court has stressed the need for
confidentiality and privacy, stating thusly: "A President and those who assist him
must be free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except
privately."34 Without doubt, therefore, ensuring and promoting the free exchange of
ideas among the members of the committee tasked to give tariff recommendations to
the President were truly imperative.
Every claim of exemption, being a limitation on a right constitutionally granted to

the people, is liberally construed in favor of disclosure and strictly against the claim
of confidentiality. However, the claim of privilege as a cause for exemption from the
obligation to disclose information must be clearly asserted by specifying the grounds
for the exemption.35 In case of denial of access to the information, it is the
government agency concerned that has the burden of showing that the information
sought to be obtained is not a matter of public concern, or that the same is exempted
from the coverage of the constitutional guarantee.36 We reiterate, therefore, that the
burden has been well discharged herein.
The respondents further assert that the information sought fell within the concept of
established privilege provided by jurisprudence under Section 3 (c) of Rule IV of the
Rules Implementing R.A. No. 6713, the May 23, 2005 meeting being regarded as a
closed-door Cabinet meeting.37 The petitioner, disagreeing, posits that R.A. No. 6713,
by itself, neither provides exceptions to the constitutional right to information nor
specifies limitations on the State policy of full public disclosure; that the
Implementing Rules and Regulations went beyond the scope of R.A. No. 6713 in
providing exceptions not covered by the law; that the alleged closed-door Cabinet
meeting exception, so as to fall within the ambit of Section 3(c) of the Rules
Implementing R.A. No. 6713, was not established under settled policy or
jurisprudence; that the reliance on the rulings in Chavez v. PCGG and Chavez v. PEA-
Amari that declared the closed-door Cabinet meeting as an exception to the right to
information was misplaced considering that the exception was not squarely in issue
in those cases; that the pronouncement could only be regarded as obiter dicta; that the
closed-door Cabinet meeting exception, assuming though not admitting the same to
have been established by law or settled jurisprudence, could not be automatically
applied to all the CTRM meetings because the CTRM was different from the Cabinet
inasmuch as two of its members, namely, the Governor of the Bangko Sentral ng
Pilipinas and the Chairman of the Tariff Commission, were not members of the
President's Cabinet; and that the deliberations of the CTRM as a body merely akin to
the Cabinet could not be given the privilege and confidentiality not expressly
provided for by law or jurisprudence, most especially considering that only by
legislative enactment could the constitutional guarantee to the right to information
be restricted.
We cannot side with the petitioner.
In Senate of the Philippines v. Ermita,38 we have said that executive privilege is

properly invoked in relation to specific categories of information, not to categories of
persons. As such, the fact that some members of the committee were not part of the
President's Cabinet was of no moment. What should determine whether or not
information was within the ambit of the exception from the people's right to access
to information was not the composition of the body, but the nature of the
information sought to be accessed. A different holding would only result to the
unwanted situation wherein any concerned citizen, like the petitioner, invoking the
right to information on a matter of public concern and the State's policy of full public
disclosure, could demand information from any government agency under all
conditions whenever he felt aggrieved by the decision or recommendation of the
latter.
In case of conflict, there is a need to strike a balance between the right of the people
and the interest of the Government to be protected. Here, the need to ensure the
protection of the privilege of non-disclosure is necessary to allow the free exchange
of ideas among Government officials as well as to guarantee the well-considered
recommendation free from interference of the inquisitive public.chanrobleslaw
WHEREFORE, the Court DENIES the petition for review on certiorari;

and AFFIRMS the decision of the Regional Trial Court in Special Civil Action No.
2903, without pronouncement on costs of suit.
SAMAHAN NG MANGGAGAWA SA HANJIN SHIPYARD REP. BY ITS

PRESIDENT, ALFIE ALIPIO, Petitioner, v. BUREAU OF LABOR RELATIONS,
HANJIN HEAVY INDUSTRIES AND CONSTRUCTION CO., LTD. (HHIC-
PHIL.), Respondents.
DECISION
MENDOZA, J.:
The right to self-organization is not limited to unionism. Workers may also form or
join an association for mutual aid and protection and for other legitimate purposes.
This is a petition for review on certiorari seeking to reverse and set aside the July 4,
2013 Decision1 and the January 28, 2014 Resolution2 of the Court of Appeals (CA) in
CA-G.R. SP No. 123397, which reversed the November 28, 2011 Resolution3 of the
Bureau of Labor Relations (BLR) and reinstated the April 20, 2010 Decision4 of the
Department of Labor and Employment (DOLE) Regional Director, cancelling the
registration of Samahan ng Manggagawa sa Hanjin Shipyard (Samahan) as a
worker's association under Article 243 (now Article 249) of the Labor Code.
The Facts
On February 16, 2010, Samahan, through its authorized representative, Alfie F.

Alipio, filed an application for registration5 of its name "Samahan ng Mga
Manggagawa sa Hanjin Shipyard" with the DOLE. Attached to the application were the
list of names of the association's officers and members, signatures of the attendees of
the February 7, 2010 meeting, copies of their Constitution and By-laws. The
application stated that the association had a total of 120 members.
On February 26, 2010, the DOLE Regional Office No. 3, City of San Fernando,
Pampanga (DOLE-Pampanga), issued the corresponding certificate of registration6 in
favor of Samahan.
On March 15, 2010, respondent Hanjin Heavy Industries and Construction Co., Ltd.
Philippines (Hanjin), with offices at Greenbeach 1, Renondo Peninsula, Sitio Agustin,
Barangay Cawag, Subic Bay Freeport Zone, filed a petition7 with DOLE-Pampanga
praying for the cancellation of registration of Samahan's association on the ground
that its members did not fall under any of the types of workers enumerated in the
second sentence of Article 243 (now 249).
Hanjin opined that only ambulant, intermittent, itinerant, rural workers, self-
employed, and those without definite employers may form a workers' association. It
further posited that one third (1/3) of the members of the association had definite
employers and the continued existence and registration of the association would
prejudice the company's goodwill.
On March 18, 2010, Hanjin filed a supplemental petition,8 adding the alternative
ground that Samahan committed a misrepresentation in connection with the list of
members and/or voters who took part in the ratification of their constitution and by-
laws in its application for registration. Hanjin claimed that Samahan made it appear
that its members were all qualified to become members of the workers' association.
On March 26, 2010, DOLE-Pampanga called for a conference, wherein Samahan
requested for a 10-day period to file a responsive pleading. No pleading, however,
was submitted. Instead, Samahan filed a motion to dismiss on April 14, 2010.9
The Ruling of the DOLE Regional Director
On April 20, 2010, DOLE Regional Director Ernesto Bihis ruled in favor of Hanjin.
He found that the preamble, as stated in the Constitution and By-Laws of Samahan,
was an admission on its part that all of its members were employees of Hanjin, to
wit:
KAMI, ang mga Manggagawa sa HANJIN Shipyard (SAMAHAN) ay naglalayong na
isulong ang pagpapabuti ng kondisyon sa paggawa at katiyakan sa hanapbuhay sa
pamamagitan ng patuloy na pagpapaunlad ng kasanayan ng para sa mga kasapi nito.
Naniniwala na sa pamamagitan ng aming mga angking lakas, kaalaman at kasanayan ay
anting maitataguyod at makapag-aambag sa kaunlaran ng isang lipunan. Na mararating at
makakamit ang antas ng pagkilala, pagdakila at pagpapahalaga sa mga tulad naming mga
manggagawa.
x x x10
The same claim was made by Samahan in its motion to dismiss, but it failed to
adduce evidence that the remaining 63 members were also employees of Hanjin. Its
admission bolstered Hanjin's claim that Samahan committed misrepresentation in its
application for registration as it made an express representation that all of its
members were employees of the former. Having a definite employer, these 57
members should have formed a labor union for collective bargaining.11 The
dispositive portion of the decision of the Dole Regional Director, reads:
WHEREFORE, premises considered, the petition is hereby GRANTED.
Consequently, the Certificate of Registration as Legitimate Workers Association
(LWA) issued to the SAMAHAN NG MGA MANGGAGAWA SA HANJIN
SHIPYARD (SAMAHAN) with Registration Numbers R0300-1002-WA-009 dated
February 26, 2010 is hereby CANCELLED, and said association is dropped from the
roster of labor organizations of this Office.
SO DECIDED.12
The Ruling of the Bureau of Labor Relations
Aggrieved, Samahan filed an appeal13 before the BLR, arguing that Hanjin had no
right to petition for the cancellation of its registration. Samahan pointed out that the
words "Hanjin Shipyard," as used in its application for registration, referred to a
workplace and not as employer or company. It explained that when a shipyard was
put up in Subic, Zambales, it became known as Hanjin Shipyard. Further, the
remaining 63 members signed the Sama-Samang Pagpapatunay which stated that they
were either working or had worked at Hanjin. Thus, the alleged misrepresentation
committed by Samahan had no leg to stand on.14
In its Comment to the Appeal,15 Hanjin averred that it was a party-in-interest. It

reiterated that Samahan committed misrepresentation in its application for
registration before DOLE Pampanga. While Samahan insisted that the remaining 63
members were either working, or had at least worked in Hanjin, only 10 attested to
such fact, thus, leaving its 53 members without any workplace to claim.
On September 6, 2010, the BLR granted Samahan's appeal and reversed the ruling of
the Regional Director. It stated that the law clearly afforded the right to self-
organization to all workers including those without definite employers.16 As an
expression of the right to self-organization, industrial, commercial and self-
employed workers could form a workers' association if they so desired but subject to
the limitation that it was only for mutual aid and protection.17 Nowhere could it be
found that to form a workers' association was prohibited or that the exercise of a
workers' right to self-organization was limited to collective bargaining.18
The BLR was of the opinion that there was no misrepresentation on the part of
Samahan. The phrase, "KAMI, ang mga Manggagawa sa Hanjin Shipyard" if translated,
would be: "We, the workers at Hanjin Shipyard." The use of the preposition "at"
instead of "of " would indicate that "Hanjin Shipyard" was intended to describe a
place.19 Should Hanjin feel that the use of its name had affected the goodwill of the
company, the remedy was not to seek the cancellation of the association's
registration. At most, the use by Samahan of the name "Hanjin Shipyard" would
only warrant a change in the name of the association.20 Thus, the dispositive portion
of the BLR decision reads:
WHEREFORE, the appeal is hereby GRANTED. The Order of DOLE Region III
Director Ernesto C. Bihis dated 20 April 2010 is REVERSED and SET ASIDE.
Accordingly, Samahan ng mga Manggagawa sa Hanjin Shipyard shall remain in the

roster of legitimate workers' association.21
On October 14, 2010, Hanjin filed its motion for reconsideration.22
In its Resolution,23 dated November 28, 2011, the BLR affirmed its September 6, 2010
Decision, but directed Samahan to remove the words "Hanjin Shipyard" from its
name. The BLR explained that the Labor Code had no provision on the use of trade
or business name in the naming of a worker's association, such matters being
governed by the Corporation Code. According to the BLR, the most equitable relief
that would strike a balance between the contending interests of Samahan and Hanjin
was to direct Samahan to drop the name "Hanjin Shipyard" without delisting it from
the roster of legitimate labor organizations. The fallo reads:
WHEREFORE, premises considered, our Decision dated 6 September 2010 is hereby
AFFIRMED with a DIRECTIVE for SAMAHAN to remove "HANJIN SHIPYARD"
from its name.
SO RESOLVED.24
Unsatisfied, Samahan filed a petition for certiorari25 under Rule 65 before the CA,
docketed as CA-G.R. SP No. 123397.
In its March 21, 2012 Resolution,26 the CA dismissed the petition because of
Samahan's failure to file a motion for reconsideration of the assailed November 28,
2011 Resolution.
On April 17, 2012, Samahan filed its motion for reconsideration27 and on July 18,
2012, Hanjin filed its comment28 to oppose the same. On October 22, 2012, the CA
issued a resolution granting Samahan's motion for reconsideration and reinstating
the petition. Hanjin was directed to file a comment five (5) days from receipt of
notice.29
On December 12, 2012, Hanjin filed its comment on the petition,30 arguing that to
require Samahan to change its name was not tantamount to interfering with the
workers' right to self-organization.31 Thus, it prayed, among others, for the dismissal
of the petition for Samahan's failure to file the required motion for reconsideration.32
On January 17, 2013, Samahan filed its reply.33
On March 22, 2013, Hanjin filed its memorandum.34

On July 4, 2013, the CA rendered its decision, holding that the registration of
Samahan as a legitimate workers' association was contrary to the provisions of
Article 243 of the Labor Code.35 It stressed that only 57 out of the 120 members were
actually working in Hanjin while the phrase in the preamble of Samahan's
Constitution and By-laws, "KAMI, ang mga Manggagawa sa Hanjin Shipyard" created
an impression that all its members were employees of HHIC. Such unqualified
manifestation which was used in its application for registration, was a clear proof of
misrepresentation which warranted the cancellation of Samahan's registration.
It also stated that the members of Samahan could not register it as a legitimate
worker's association because the place where Hanjin's industry was located was not
a rural area. Neither was there any evidence to show that the members of the
association were ambulant, intermittent or itinerant workers.36
At any rate, the CA was of the view that dropping the words "Hanjin Shipyard" from
the association name would not prejudice or impair its right to self-organization
because it could adopt other appropriate names. The dispositive portion reads:
WHEREFORE, the petition is DISMISSED and the BLR's directive, ordering that the
words "Hanjin Shipyard" be removed from petitioner association's name, is
AFFIRMED. The Decision dated April 20, 2010 of the DOLE Regional Director in
Case No. R0300-1003-CP-001, which ordered the cancellation of petitioner
association's registration is REINSTATED.
SO ORDERED.37
Hence, this petition, raising the following
ISSUES
I. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
SAMAHAN CANNOT FORM A WORKERS' ASSOCIATION OF EMPLOYEES
IN HANJIN AND INSTEAD SHOULD HAVE FORMED A UNION, HENCE
THEIR REGISTRATION AS A WORKERS' ASSOCIATION SHOULD BE
CANCELLED.
II. THE COURT OF APPEALS SERIOUSLY ERRED IN ORDERING THE

REMOVAL/DELETION OF THE WORD "HANJIN" IN THE NAME OF THE
UNION BY REASON OF THE COMPANY'S PROPERTY RIGHT OVER THE
COMPANY NAME "HANJIN."38
Samahan argues that the right to form a workers' association is not exclusive to
intermittent, ambulant and itinerant workers. While the Labor Code allows the
workers "to form, join or assist labor organizations of their own choosing" for the
purpose of collective bargaining, it does not prohibit them from forming a labor
organization simply for purposes of mutual aid and protection. All members of
Samahan have one common place of work, Hanjin Shipyard. Thus, there is no reason
why they cannot use "Hanjin Shipyard" in their name.39
Hanjin counters that Samahan failed to adduce sufficient basis that all its members
were employees of Hanjin or its legitimate contractors, and that the use of the name
"Hanjin Shipyard" would create an impression that all its members were employess
of HHIC.40
Samahan reiterates its stand that workers with a definite employer can organize any
association for purposes of mutual aid and protection. Inherent in the workers' right
to self-organization is its right to name its own organization. Samahan referred
"Hanjin Shipyard" as their common place of work. Therefore, they may adopt the
same in their association's name.41
The Court's Ruling
The petition is partly meritorious.
Right to self-organization includes right to form a union, workers' association and labor
management councils
More often than not, the right to self-organization connotes unionism. Workers,
however, can also form and join a workers' association as well as labor-management
councils (LMC). Expressed in the highest law of the land is the right of all workers to
self-organization. Section 3, Article XIII of the 1987 Constitution states:
Section 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all. It shall guarantee the rights of all workers to
self-organization,
collective bargaining and negotiations, and peaceful concerted activities, including

the right to strike in accordance with law. xxx
[Emphasis Supplied]
And Section 8, Article III of the 1987 Constitution also states:
Section 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not contrary to
law shall not be abridged.
In relation thereto, Article 3 of the Labor Code provides:
Article 3. Declaration of basic policy. The State shall afford protection to labor, promote
full employment, ensure equal work opportunities regardless of sex, race or creed
and regulate the relations between workers and employers. The State shall assure
the rights of workers to self-organization, collective bargaining, security of tenure,
and just and humane conditions of work.
[Emphasis Supplied]
As Article 246 (now 252) of the Labor Code provides, the right to self-organization
includes the right to form, join or assist labor organizations for the purpose of
collective bargaining through representatives of their own choosing and to engage in
lawful concerted activities for the same purpose for their mutual aid and protection.
This is in line with the policy of the State to foster the free and voluntary
organization of a strong and united labor movement as well as to make sure that
workers participate in policy and decision-making processes affecting their rights,
duties and welfare.42
The right to form a union or association or to self-organization comprehends two

notions, to wit: (a) the liberty or freedom, that is, the absence of restraint which
guarantees that the employee may act for himself without being prevented by law;
and (b) the power, by virtue of which an employee may, as he pleases, join or refrain
from joining an association.43
In view of the revered right of every worker to self-organization, the law expressly
allows and even encourages the formation of labor organizations. A labor
organization is defined as "any union or association of employees which exists in
whole or in part for the purpose of collective bargaining or of dealing with
employers concerning terms and conditions of employment."44 A labor organization
has two broad rights: (1) to bargain collectively and (2) to deal with the employer
concerning terms and conditions of employment. To bargain collectively is a right
given to a union once it registers itself with the DOLE. Dealing with the employer,
on the other hand, is a generic description of interaction between employer and
employees concerning grievances, wages, work hours and other terms and
conditions of employment, even if the employees' group is not registered with the
DOLE.45
A union refers to any labor organization in the private sector organized for collective
bargaining and for other legitimate purpose,46 while a workers' association is an
organization of workers formed for the mutual aid and protection of its members or
for any legitimate purpose other than collective bargaining.47
Many associations or groups of employees, or even combinations of only several

persons, may qualify as a labor organization yet fall short of constituting a labor
union. While every labor union is a labor organization, not every labor organization
is a labor union. The difference is one of organization, composition and operation.48
Collective bargaining is just one of the forms of employee participation. Despite so

much interest in and the promotion of collective bargaining, it is incorrect to say that
it is the device and no other, which secures industrial democracy. It is equally
misleading to say that collective bargaining is the end-goal of employee
representation. Rather, the real aim is employee participation in whatever form it
may appear, bargaining or no bargaining, union or no union.49 Any labor
organization which may or may not be a union may deal with the employer. This
explains why a workers' association or organization does not always have to be a
labor union and why employer-employee collective interactions are not always
collective bargaining.50
To further strengthen employee participation, Article 255 (now 261)51 of the Labor
Code mandates that workers shall have the right to participate in policy and
decision-making processes of the establishment where they are employed insofar as
said processes will directly affect their rights, benefits and welfare. For this purpose,
workers and employers may form LMCs.
A cursory reading of the law demonstrates that a common element between

unionism and the formation of LMCs is the existence of an employer-employee
relationship. Where neither party is an employer nor an employee of the other, no
duty to bargain collectively would exist.52 In the same manner, expressed in Article
255 (now 261) is the requirement that such workers be employed in the
establishment before they can participate in policy and decision making processes.
In contrast, the existence of employer-employee relationship is not mandatory in the

formation of workers' association. What the law simply requires is that the members
of the workers' association, at the very least, share the same interest. The very
definition of a workers' association speaks of "mutual aid and protection."
Right to choose whether to form or join a union or workers' association belongs to workers
themselves
In the case at bench, the Court cannot sanction the opinion of the CA that Samahan
should have formed a union for purposes of collective bargaining instead of a
workers' association because the choice belonged to it. The right to form or join a
labor organization necessarily includes the right to refuse or refrain from exercising
the said right. It is self-evident that just as no one should be denied the exercise of a
right granted by law, so also, no one should be compelled to exercise such a
conferred right.53 Also inherent in the right to self-organization is the right to choose
whether to form a union for purposes of collective bargaining or a workers'
association for purposes of providing mutual aid and protection.
The right to self-organization, however, is subject to certain limitations as provided
by law. For instance, the Labor Code specifically disallows managerial employees
from joining, assisting or forming any labor union. Meanwhile, supervisory
employees, while eligible for membership in labor organizations, are proscribed
from joining the collective bargaining unit of the rank and file employees.54 Even
government employees have the right to self-organization. It is not, however,
regarded as existing or available for purposes of collective bargaining, but simply for
the furtherance and protection of their interests.55
Hanjin posits that the members of Samahan have definite employers, hence, they
should have formed a union instead of a workers' association. The Court disagrees.
There is no provision in the Labor Code that states that employees with definite
employers may form, join or assist unions only.
The Court cannot subscribe either to Hanjin's position that Samahan's members
cannot form the association because they are not covered by the second sentence of
Article 243 (now 249), to wit:
Article 243. Coverage and employees' right to self-organization. All persons employed in
commercial, industrial and agricultural enterprises and in religious, charitable,
medical, or educational institutions, whether operating for profit or not, shall have
the right to self-organization and to form, join, or assist labor organizations of their
own choosing for purposes of collective bargaining. Ambulant, intermittent and
itinerant workers, self-employed people, rural workers and those without any
definite employers may form labor organizations for their mutual aid and
protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980)
[Emphasis Supplied]
Further, Article 243 should be read together with Rule 2 of Department Order (D.O.)
No. 40-03, Series of 2003, which provides:
RULE II
COVERAGE OF THE RIGHT TO SELF-ORGANIZATION
Section 1. Policy. - It is the policy of the State to promote the free and responsible
exercise of the right to self-organization through the establishment of a simplified
mechanism for the speedy registration of labor unions and workers associations,
determination of representation status and resolution of inter/intra-union and other
related labor relations disputes. Only legitimate or registered labor unions shall have
the right to represent their members for collective bargaining and other purposes.
Workers' associations shall have the right to represent their members for purposes
other than collective bargaining.
Section 2. Who may join labor unions and workers' associations. - All persons
employed in commercial, industrial and agricultural enterprises, including
employees of government owned or controlled corporations without original
charters established under the Corporation Code, as well as employees of religious,
charitable, medical or educational institutions whether operating for profit or not,
shall have the right to self-organization and to form, join or assist labor unions for
purposes of collective bargaining: provided, however, that supervisory employees
shall not be eligible for membership in a labor union of the rank-and-file employees
but may form, join or assist separate labor unions of their own. Managerial
employees shall not be eligible to form, join or assist any labor unions for purposes
of collective bargaining. Alien employees with valid working permits issued by the
Department may exercise the right to self-organization and join or assist labor
unions for purposes of collective bargaining if they are nationals of a country which
grants the same or similar rights to Filipino workers, as certified by the Department
of Foreign Affairs.
For purposes of this section, any employee, whether employed for a definite period
or not, shall beginning on the first day of his/her service, be eligible for membership
in any labor organization.
All other workers, including ambulant, intermittent and other workers, the self-
employed, rural workers and those without any definite employers may form labor
organizations for their mutual aid and protection and other legitimate
purposes except collective bargaining.
[Emphases Supplied]
Clearly, there is nothing in the foregoing implementing rules which provides that
workers, with definite employers, cannot form or join a workers' association for
mutual aid and protection. Section 2 thereof even broadens the coverage of workers
who can form or join a workers' association. Thus, the Court agrees with Samahan's
argument that the right to form a workers' association is not exclusive to ambulant,
intermittent and itinerant workers. The option to form or join a union or a workers'
association lies with the workers themselves, and whether they have definite
employers or not.
No misrepresentation on the part of Samahan to warrant cancellation of registration
In this case, Samahan's registration was cancelled not because its members were
prohibited from forming a workers' association but because they allegedly
committed misrepresentation for using the phrase, "KAMI, ang mga Manggagawa sa
HAN JIN Shipyard."
Misrepresentation, as a ground for the cancellation of registration of a labor

organization, is committed "in connection with the adoption, or ratification of the
constitution and by-laws or amendments thereto, the minutes of ratification, the list
of members who took part in the ratification of the constitution and by-laws or
amendments thereto, and those in connection with the election of officers, minutes of
the election of officers, and the list of voters, xxx."56
In Takata Corporation v. Bureau of Relations,57 the DOLE Regional Director granted the
petition for the cancellation of certificate of registration of Samahang Lakas
Manggagawa sa Takata (Salamat) after finding that the employees who attended the
organizational meeting fell short of the 20% union registration requirement. The
BLR, however, reversed the ruling of the DOLE Regional Director, stating that
petitioner Takata Corporation (Takata) failed to prove deliberate and malicious
misrepresentation on the part of respondent Salamat. Although Takata claimed that
in the list of members, there was an employee whose name appeared twice and
another was merely a project employee, such facts were not considered
misrepresentations in the absence of showing that the respondent deliberately did so
for the purpose of increasing their union membership. The Court ruled in favor of
Salamat.
In S.S. Ventures International v. S.S. Ventures Labor Union,58 the petition for
cancellation of certificate of registration was denied. The Court wrote:
If the union's application is infected by falsification and like serious
irregularities, especially those appearing on the face of the application and its
attachments, a union should be denied recognition as a legitimate labor
organization. Prescinding from these considerations, the issuance to the Union of
Certificate of Registration No. RO300-00-02-UR-0003 necessarily implies that its
application for registration and the supporting documents thereof are prima facie
free from any vitiating irregularities. Another factor which militates against the
veracity of the allegations in the Sinumpaang Petisyon is the lack of particularities on
how, when and where respondent union perpetrated the alleged fraud on each
member. Such details are crucial for in the proceedings for cancellation of union
registration on the ground of fraud or misrepresentation, what needs to be
established is that the specific act or omission of the union deprived the complaining
employees-members of their right to choose.
[Emphases Supplied]
Based on the foregoing, the Court concludes that misrepresentation, to be a ground
for the cancellation of the certificate of registration, must be done maliciously and
deliberately. Further, the mistakes appearing in the application or attachments must
be grave or refer to significant matters. The details as to how the alleged fraud was
committed must also be indubitably shown.
The records of this case reveal no deliberate or malicious intent to commit

misrepresentation on the part of Samahan. The use of such words "KAMI, ang mga
Manggagawa sa HANJIN Shipyard" in the preamble of the constitution and by-laws
did not constitute misrepresentation so as to warrant the cancellation of Samahan's
certificate of registration. Hanjin failed to indicate how this phrase constitutes a
malicious and deliberate misrepresentation. Neither was there any showing that the
alleged misrepresentation was serious in character. Misrepresentation is a devious
charge that cannot simply be entertained by mere surmises and conjectures.
Even granting arguendo that Samahan's members misrepresented themselves as

employees or workers of Hanjin, said misrepresentation does not relate to the
adoption or ratification of its constitution and by-laws or to the election of its
officers.
Removal of the word "Hanjin Shipyard" from the association's name, however, does not
infringe on Samahan's right to self-organization
Nevertheless, the Court agrees with the BLR that "Hanjin Shipyard" must be
removed in the name of the association. A legitimate workers' association refers to
an association of workers organized for mutual aid and protection of its members or
for any legitimate purpose other than collective bargaining registered with the
DOLE.59 Having been granted a certificate of registration, Samahan's association is
now recognized by law as a legitimate workers' association.
According to Samahan, inherent in the workers' right to self-organization is its right

to name its own organization. It seems to equate the dropping of words "Hanjin
Shipyard" from its name as a restraint in its exercise of the right to self-organization.
Hanjin, on the other hand, invokes that "Hanjin Shipyard" is a registered trade name
and, thus, it is within their right to prohibit its use.
As there is no provision under our labor laws which speak of the use of name by a
workers' association, the Court refers to the Corporation Code, which governs the
names of juridical persons. Section 18 thereof provides:
No corporate name may be allowed by the Securities and Exchange Commission if
the proposed name is identical or deceptively or confusingly similar to that of any
existing corporation or to any other name already protected by law or is patently
deceptive, confusing or contrary to existing laws. When a change in the corporate
name is approved, the Commission shall issue an amended certificate of
incorporation under the amended name.
[Emphases Supplied]
The policy underlying the prohibition in Section 18 against the registration of a
corporate name which is "identical or deceptively or confusingly similar" to that of
any existing corporation or which is "patently deceptive" or "patently confusing" or
"contrary to existing laws," is the avoidance of fraud upon the public which would
have occasion to deal with the entity concerned, the evasion of legal obligations and
duties, and the reduction of difficulties of administration and supervision over
corporations.60
For the same reason, it would be misleading for the members of Samahan to use
"Hanjin Shipyard" in its name as it could give the wrong impression that all of its
members are employed by Hanjin.
Further, Section 9, Rule IV of D.O. No. 40-03, Series of 2003 explicitly states:
The change of name of a labor organization shall not affect its legal personality. All
the rights and obligations of a labor organization under its old name shall continue
to be exercised by the labor organization under its new name.
Thus, in the directive of the BLR removing the words "Hanjin Shipyard," no
abridgement of Samahan's right to self-organization was committed.
WHEREFORE, the petition is PARTIALLY GRANTED. The July 4, 2013 Decision

and the January 28, 2014 Resolution of the Court of Appeals are
hereby REVERSED and SET ASIDE. The September 6, 2010 Resolution of the
Bureau of Labor Relations, as modified by its November 28, 2011 Resolution,
is REINSTATED.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ADRIAN GUTING Y

TOMAS, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
For Our consideration is an appeal from the Decision1 dated May 23, 2012 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 04596, which affirmed the
Decision2 dated June 24, 2010 of the Regional Trial Court (RTC), Camiling, Tarlac,
Branch 68, in Criminal Case No. 06-93, finding accused-appellant Adrian Guting y
Tomas guilty of the crime of Parricide under Article 246 of the Revised Penal Code.
In an Information3 dated August 1, 2006, docketed as Criminal Case No. 06-93,

accused-appellant was charged before the RTC with Parricide, allegedly committed
as follows:
That on or about 4:50 in the rainy afternoon of July 30, 2006 at Plaridel St., Poblacion
B. Camiling, Tarlac, Philippines and within the jurisdiction of this Honorable Court,
the said accused, did then and there willfully, unlawfully and feloniously, and with
evident premeditation, that is, having conceived and deliberated to kill his own
father Jose Guting y Ibarra, 67 years old, married, while inside their residential
house, and armed with a bladed weapon, suddenly and unexpectedly stabbed
several times the victim, employing means, manner and form in the execution
thereof which tender directly and specially to insure its commission without danger
to the person of said accused, the result of which attack was that said victim received
multiple stab wounds on his body which directly caused his instantaneous death.
When arraigned on September 19, 2006, accused-appellant pleaded not guilty to the
crime charged.4Thereafter, pre-trial and trial on the merits ensued.
Below is a summary of the prosecution witnesses' testimonies.
Police Officer (PO1) Fidel Torre (Torre) testified that on the rainy afternoon of July
30, 2005, at around 5:00 o'clock, he and PO1 Alexis Macusi (Macusi) were standing in
front of the Camiling Police Station when accused-appellant, all wet from the rain
and with a bladed weapon in his hand, suddenly approached them and told them
that he had stabbed his father. Hearing accused-appellant's statement, PO1 Torre
immediately got the bladed weapon from accused-appellant and turned it over to
PO1 Macusi for proper disposition.5
PO1 Macusi corroborated PO1 Torre's testimony. PO1 Macusi narrated that accused-
appellant suddenly appeared before them at the Police Station, all wet and holding a
knife. Accused-appellant proclaimed that his father was already dead. Unsuspecting,
PO1 Macusi asked who killed accused-appellant's father. Accused-appellant
answered, "Sinaksak ko po yong tatay ko! Napatay ko na po!" PO1 Torre then got the
knife from accused-appellant and gave it to PO1 Macusi. PO1 Macusi placed the
knife in the custodian cabinet in the Police Station. Thereafter, PO1 Macusi, Senior
Police Officer (SPO) 2 Eliseo Hermosado (Hermosado), and SPO2 Noli Felipe
(Felipe) went to the residence of Jose Guting (Jose), accused-appellant's father, to
verify the reported crime, while other police officers informed Flora Guting (Flora),
Jose's wife (also accused-appellant's mother), who was still in the market with
Emerlito Guting (Emerlito), Jose and Flora's other son (accused-appellant's brother),
who was then driving a tricycle for hire. While waiting for Flora and Emerlito, PO1
Macusi, SPO2 Hermosado, and SPO2 Felipe inquired from the neighbors if anybody
had witnessed the crime, but no one did. When Flora and Emerlito arrived, they
entered the house and saw Jose's lifeless body with blood still oozing from his
wounds. Immediately, Flora and Emerlito brought Jose to the hospital where he was
pronounced dead on arrival. Subsequently, Flora and Emerlito executed their
respective Sinumpaang Salaysay and filed a case for Parricide against accused-
appellant.6
On cross-examination, PO1 Macusi divulged that when the knife was given to him
by PO1 Torre for safekeeping, he did not ask accused-appellant if it was the knife he
used to kill his father. Neither did accused-appellant mention to PO1 Macusi that it
was the knife he used in stabbing Jose. All that accused-appellant said was, "Sinaksak
ko po yong tatay ko! Napatay ko na po!" PO1 Macusi also admitted that he did not
request for the examination of the knife because it was clean; any trace or stain of
blood on it would have been washed away by the rains at that time. PO1 Macusi was
further questioned as to why he did not put into writing accused-appellant's
admission that he killed his father, and PO1 Macusi explained that it escaped his
mind as he was still new at the job then and he was carried away by the fast flow of
events.7
Flora conceded that she was not present when Jose, her husband, was killed by
accused-appellant, their son. Flora only learned of the stabbing incident and
accused-appellant's surrender from the police officers of the Camiling Police Station.
Flora declared that she spent for the wake and burial of Jose and that Jose, who was
a tricycle driver, had been earning around P200.00 a day at the time of his death.8
Doctor Valentin Theodore Lomibao (Dr. Lomibao) conducted the autopsy of Jose's
body. Dr. Lomibao reported that Jose suffered around 39 stab wounds on the head,
neck, thorax, abdomen, and extremities. Jose's internal organs were heavily
damaged by the stab wounds, resulting in his instantaneous death. Dr. Lomibao also
showed several pictures of Jose's body which were taken before he conducted the
autopsy.9
Accused-appellant opted not to present any evidence in his defense.
The RTC promulgated its Decision on June 24, 2010 finding accused-appellant guilty
of Parricide based on his verbal admission that he killed his father, Jose. Even
assuming that accused-appellant's admission was inadmissible in evidence, the RTC
adjudged that the prosecution was still able to establish sufficient circumstantial
evidence which, taken collectively, pointed to accused-appellant as the perpetrator
of the brutal killing of his father. The dispositive portion of the RTC judgment reads:
WHEREFORE, accused Adrian Guting y Tomas is hereby found guilty beyond
reasonable doubt of the offense of Parricide punishable under Article 246 of the
Revised Penal Code, as amended and hereby sentences him to a penalty of Reclusion
Perpetua.
Accused is likewise ordered to pay the heirs of the victim the amount of P50,000.00
as civil indemnity, another amount of P50,000.00 as moral damages, and still another
amount of P30,000.00 as temperate damages.10
Accused-appellant appealed his conviction before the Court of Appeals, docketed as
CA-G.R. CR.-H.C. No. 04596. The appellate court promulgated its Decision on May
23, 2012, decreeing thus:
WHEREFORE, the appeal is DENIED. The Decision of the Regional Trial Court of
Camiling, Tarlac, Branch 68 convicting herein accused-appellant Adrian Guting y
Tomas for the crime of Parricide under Article 246 of the Revised Penal Code
is AFFIRMED.11
Hence, accused-appellant comes before us via the instant appeal with the same
assignment of errors he raised before the Court of Appeals, to wit:
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT ON THE BASIS OF HIS EXTRAJUDICIAL ADMISSION.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT ON THE BASIS OF INSUFFICIENT CIRCUMSTANTIAL EVIDENCE.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED DESPITE THE PROSECUTION'S FAILURE TO OVERTHROW THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS FAVOR.12
We find no merit in accused-appellant's appeal.
Accused-appellant argues that his oral confession to PO1 Torre and PO1 Macusi,
without the assistance of counsel, is inadmissible in evidence for having been made
in blatant violation of his constitutional right under Article III, Section 12 of the 1987
Constitution.
Section 12, paragraphs 1 and 3, Article III (Bill of Rights) of the 1987 Constitution
mandate that:
SEC. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.13
The "investigation" in Section 12, paragraph 1, Article III of the 1987 Constitution
pertains to "custodial investigation." Custodial investigation commences when a
person is taken into custody and is singled out as a suspect in the commission of a
crime under investigation and the police officers begin to ask questions on the
suspect's participation therein and which tend to elicit an admission.14 As we
expounded in People v. Marra15:
Custodial investigation involves any questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way. It is only after the investigation ceases to be a general
inquiry into an unsolved crime and begins to focus on a particular suspect, the
suspect is taken into custody, and the police carries out a process of interrogations that lends
itself to eliciting incriminating statements that the rule begins to operate. (Citation
omitted.)
Applying the foregoing definitions, accused-appellant was not under custodial
investigation when he admitted, without assistance of counsel, to PO1 Torre and
PO1 Macusi that he stabbed his father to death. Accused-appellant's verbal
confession was so spontaneously and voluntarily given and was not elicited through
questioning by the police authorities. It may be true that PO1 Macusi asked accused-
appellant who killed his father, but PO1 Macusi only did so in response to accused-
appellant's initial declaration that his father was already dead. At that point, PO1
Macusi still had no idea who actually committed the crime and did not consider
accused-appellant as the suspect in his father's killing. Accused-appellant was also
merely standing before PO1 Torre and PO1 Macusi in front of the Camiling Police
Station and was not yet in police custody.
Accused-appellant cites in support of his argument People v. Cabintoy,16 where we

held that an uncounselled extrajudicial confession without a valid waiver of the right
to counsel - that is, in writing and in the presence of counsel - is inadmissible in
evidence. The situation of accused-appellants in Cabintoy is not similar to that of
accused-appellant herein. The accused-appellants in Cabintoy, when they executed
their extrajudicial confessions without assistance of counsel, were already suspects
under custodial investigation by the San Mateo Police for robbery with homicide
committed against a taxi driver. Accused-appellant in the instant case, on his own
volition, approached unsuspecting police officers standing in front of the police
station with a knife in his hand and readily confessed to stabbing his father to death.
Accused-appellant was arrested and subjected to custodial investigation by the
police officers only after his confession.
Hence, herein accused-appellant's confession, even if done without the assistance of
a lawyer, is not in violation of his constitutional right under Section 12, paragraph 1,
Article III of the 1987 Constitution. The present case is more akin to People v.
Andan17 wherein we allowed into evidence the uncounselled confession of therein
accused-appellant given under the following circumstances:
Under these circumstances, it cannot be successfully claimed that appellant's
confession before the mayor is inadmissible. It is true that a municipal mayor has
"operational supervision and control" over the local police and may arguably be-
deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of
Article III of the Constitution. However, appellant's confession to the mayor was not
made in response to any interrogation by the latter. In fact, the mayor did not
question appellant at all. No police authority ordered appellant to talk to the mayor.
It was appellant himself who spontaneously, freely and voluntarily sought the
mayor for a private meeting. The mayor did not know that appellant was going to
confess his guilt to him. When appellant talked with the mayor as a confidant and
not as a law enforcement officer, his uncounselled confession to him did not violate
his constitutional rights. Thus, it has been held that the constitutional procedures on
custodial investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby appellant
orally admitted having committed the crime. What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The rights under Section
12 are guaranteed to preclude the slightest use of coercion by the state as would lead
the accused to admit something false, not to prevent him from freely and voluntarily
telling the truth. Hence, we hold that appellant's confession to the mayor was
correctly admitted by the trial court.
Moreover, accused-appellant's verbal confession that he stabbed his father to death
made to PO1 Torre and PO1 Macusi, established through the testimonies of said
police officers, falls under Rule 130, Section 26 of the Rules of Court, which provides
that "[t]he act, declaration or omission of a party as to a relevant fact may be given in
evidence against him." This rule is based upon the notion that no man would make
any declaration against himself, unless it is true.18 Accused-appellant's declaration is
admissible for being part of the res gestae. A declaration is deemed part of the res
gestae and admissible in evidence as an exception to the hearsay rule when these
three requisites concur: (1) the principal act, the res gestae, is a startling occurrence;
(2) the statements were made before the declarant had time to contrive or devise;
and (3) the statements concern the occurrence in question and its immediately
attending circumstances.19 All the requisites are present in this case. Accused-
appellant had just been through a startling and gruesome occurrence, that is, his
father's death. Accused-appellant made the confession to PO1 Torre and PO1 Macusi
only a few minutes after and while he was still under the influence of said startling
occurrence, before he had the opportunity to concoct or contrive a story. In fact,
accused-appellant seemed to still be in shock when he walked to the Police Station
completely unmindful of the rain and the knife in his hand, and headed directly to
PO1 Torre and PO1 Macusi, who were standing in front of the Police Station, to
confess to stabbing his father to death. The police officers who immediately went to
the house of Jose, accused-appellant's father, found Jose's lifeless body with blood
still oozing from his stab wounds. As res gestae, accused-appellant's spontaneous
statement is admissible in evidence against him.
Accused-appellant's confession was further corroborated by the circumstantial

evidence.
To justify a conviction upon circumstantial evidence, the combination of

circumstances must be such as to leave no reasonable doubt in the mind as to the
criminal liability of the accused.20 Rule 133, Section 4 of the Rules of Court
enumerates the conditions when circumstantial evidence is sufficient for conviction,
thus:
SEC. 4. Circumstantial Evidence, when sufficient. - Circumstantial evidence is sufficient
for conviction if:chanRoblesvirtualLawlibrary
(a) There is more than one circumstance;ChanRoblesVirtualawlibrary
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all circumstances is such as to produce conviction beyond

reasonable doubt.
The RTC, affirmed by the Court of Appeals, found that the aforequoted requisites
have been satisfied in this case given the following circumstantial evidence:
1. On or about 4:50 o'clock in the afternoon of July 30, 2006, the victim was stabbed to
death.
2. Thirty minutes later, [accused-appellant] personally went to Camiling Police

Station and surrendered himself and the bladed weapon he used in killing his father
to the police authorities of the said police station.
3. When his mother learned about the incident, [accused-appellant] did nothing to
appease his responding mother. "It has always been said that criminal case are
primarily about human nature." Here is a case of a son doing nothing to explain the
death of his father to his grieving mother. Such inaction is contrary to human nature.
4. When he was detained after police investigation, [accused-appellant] did not

object to his continued detention.
These circumstances constitute an unbroken chain which leads to one fair and
reasonable conclusion that points to accused-appellant, to the exclusion of all others,
as the guilty person.21 The incriminating collage of facts against accused-appellant
was created by circumstantial evidence anchored on the credible and unbiased
testimony of the prosecution's witnesses. We will not disturb but shall accord the
highest respect to the findings of the RTC on the issue of credibility of the witnesses
and their testimonies, it having had the opportunity to observe their deportment and
manner of testifying during the trial.22
Article 246 of the Revised Penal Code defines Parricide as follows:

Art. 246. Parricide. - Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse,
shall be guilty of parricide and shall be punished by the penalty of reclusion
perpetua to death.
Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the
accused; and (3) the deceased is the father, mother, or child, whether legitimate or
illegitimate, or a legitimate other ascendant or other descendant, or the legitimate
spouse of the accused. The key element in Parricide - other than the fact of killing - is
the relationship of the offender to the victim.23 All the elements are present in this
case. Jose, the victim, was killed by accused-appellant, his own son. Accused-
appellant's birth certificate, which was presented before the RTC, establishes that
accused-appellant was the legitimate son of Jose and Flora.
The crime of Parricide is punishable by the indivisible penalties of reclusion

perpetua to death. With one mitigating circumstance, namely, voluntary surrender,
and no aggravating circumstance, the imposition of the lesser penalty of reclusion
perpetua on accused-appellant was proper.
We modify though the monetary awards imposed by the RTC and affirmed by the
Court of Appeals. When death occurs due to a crime, the following damages may be
awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and (5)
temperate damages.24
Prevailing jurisprudence pegs the amount of civil indemnity and moral damages
awarded to the heirs of the victim of Parricide at P75,000.00 each.25 The temperate
damages awarded by the RTC in the amount of P30,000.00 should be decreased to
P25,000.00 to also conform with the latest jurisprudence.26 It is fitting to additionally
award exemplary damages in the sum of P30,000.00 considering the presence of the
qualifying circumstance of relationship.
Damages for the loss of earning capacity of Jose should be awarded as well given the
testimony of his wife, Flora, on this particular fact. We refer to our pronouncements
in People v. Verde27 that:
The heirs are also entitled to damages for the loss of earning capacity of the deceased
Francisco Gealon. The fact that the prosecution did not present documentary
evidence to support its claim for damages for loss of earning capacity of the
deceased does not preclude recovery of said damages. The testimony of the victim's
wife, Delia Gealon, as to the earning capacity of her husband Francisco Gealon
sufficiently establishes the basis for making such an award. It was established that
Francisco Gealon was 48 years old at the time of his death in 1991. His average
income was P200.00 a day. Hence, in accordance with the American Expectancy
Table of Mortality adopted in several cases decided by this Court, the loss of his
earning capacity is to be calculated as follows:
To be able to claim damages for loss of earning capacity despite the non-availability
of documentary evidence, there must be oral testimony that: (a) the victim was self-
employed earning less than the minimum wage under current labor laws and
judicial notice was taken of the fact that in the victim's line of work, no documentary
evidence is available; or (b) the victim was employed as a daily wage worker earning
less than the minimum wage under current labor laws.28
In the case at bar, Jose was 67 years old at the time of his death and was earning a
daily wage of P200.00 as a tricycle driver, which was below the P252.00 to P263.50
minimum wage rate for non-agriculture under Wage Order No. 11 dated June 16,
2005 for Region III. We take judicial notice that there is no documentary evidence
available to establish the daily earning capacity of a tricycle driver. We thus compute
the award of damages for the loss of Jose's earning capacity as follows:
Net Gross
life less living expenses (50% of gross annual
earning = x annual -
expectancy income)
capacity (x) income
x= 2(80-67) x [73,000.00-36,500.00]
3
= 8.67 x 36,500.00
= P316,455.00
Finally, in conformity with current policy, we impose interest on all monetary
awards for damages at the rate of six percent (6%) per annum from the date of
finality of this Decision until fully paid.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 04596,
finding accused-appellant, Adrian Guting y Tomas, GUILTY beyond reasonable
doubt of the crime of Parricide, is hereby AFFIRMED with MODIFICATIONS.
Accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay
the heirs of the victim the amounts of P75,000.00 as civil indemnity, P75,000.00 as
moral damages, P25,000.00 as temperate damages, P30,000.00 as exemplary
damages, and P316,455.00 as compensation for loss of earning capacity. All
monetary awards for damages shall be subject to interest of six percent (6%) per
annum from date of finality of this Decision until they are fully paid.
SO ORDERED.chanroblesvirtuallawlibrary
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,

~vs~
NIEVES CONSTANCIO Y BACUNGAY, ERNESTO BERRY Y BACUNGAY,
ACCUSED-APPELLANTS.
DECISION
DEL CASTILLO, J.:
This is an appeal from the February 24, 2012 Decision[1] of the Court of Appeals (CA)
in CA-G.R. CR-H.C. No. 02709 which affirmed the January 22, 2007 Decision[2] of the
Regional Trial Court (RTC), Branch 258, Paraaque City, finding the appellants Nieves
Constancio y Bacungay (Constancio) and Ernesto Berry y Bacungay (Berry) guilty of
the crime of Rape with Homicide and sentencing them to surfer the penalty of reclusion
perpetua.
Factual Antecedents
Constancio and Berry, along with co-accused Donardo Pagkalinawan
(Pagkalinawan), Danny Darden (Darden), and alias Burog, were charged with the
crime of Rape with Homicide committed against AAA[3] on the night of March 11,
2001.
The Information states:
That on or about the 11th day of March 2001, in the City of Paraaque,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating and all of them mutually
helping and aiding one another, by means of force and intimidation, did then
and there willfully, unlawfully and feloniously have carnal knowledge [of
AAA] against her will and consent.
That on said occasion, all the above-named accused, did then and there
willfully, unlawfully and feloniously attack, assault and strangle and gang
up on her thereby inflicting upon the latter traumatic injuries which caused
her death.[4]
Constancio and Berry pleaded not guilty during their arraignment on May 3,2001.
Trial on the merits subsequently followed.
Version of the Prosecution
The prosecution presented the following witnesses:
1. BBB, the mother of the victim AAA, testified that on March 11, 2001, AAA
was forcibly abducted, raped, brutally beaten, and strangled to death. Her body was
later found at a creek under a bridge in San Antonio Valley 3, Brgy. San Antonio,
Paraaque City. BBB further testified on the amount they spent for the wake and
funeral expenses of AAA.
2. Myra Katrina Dacanay (Dacanay) testified that she was a high school classmate of
AAA. On the night before AAA was killed, she and AAA planned to watch a
movie at the Alabang Town Center but since they were late for the last full show, they
went to Cinnzeo instead where they were later joined by another friend, Tara Katrina
Golez (Golez). After exchanging pleasantries, Golez left first. Thereafter, she
(Dacanay) and AAA proceeded to the parking lot to get AAAs black Mazda 323
with plate number URN 855. AAA then brought her (Dacanay) home at Ayala
Alabang. Dacanay testified that she tried to contact AAA to make sure that she
arrived home safely but she could not be reached.
At around 5:30 in the morning, Dacanay received a call from AAAs father asking
about AAAs whereabouts. She also, received a call from Golez who told her that
AAA was not yet home. Dacanay stated that she was shocked when she learned
about AAAs death.
3. Golez testified that AAA was her classmate and that they had been friends for
about 10 years; that on March 10, 2001 at around 10:00 oclock in the evening, she met
with AAA and Dacanay at the Cinnzeo, Alabang Town Center, and stayed with
them for about 30 to 40 minutes.
Golez added that at around 6:00 oclock on the morning of March 11, 2001, AAAs
father went to her house to inquire about AAAs whereabouts. Golez told him that
she was with AAA and with Dacanay,the night before but that she left earlier than
these two. Golez said that she learned about AAAs death at about 4:00 oclock on
the afternoon of the same day.
4. Janette Bales (Bales) testified that at around 3:00 oclock in the early morning of
March 12, 2001, she. was at Unioil gas station in front of the Multinational Village,
Ninoy Aquino Avenue, Brgy. Sto. Nino, Paraaque City waiting for a ride home when
a black Mazda car suddenly stopped in front of her and a male person then alighted
from the back seat and immediately grabbed her arm; that she was able to recognize
the face of the person as the appellant Berry whom she identified in open court. Bales
further testified that Berrys face was not covered at the time he grabbed her arm and
that Berry attempted to pull her inside the black Mazda car and abduct her; that she
shouted for help and tried to free herself from Berrys hold on her arm; that she then
saw another man who was about to alight from the same black Mazda car but
fortunately, a barangay tanod from behind the car shouted, Hoy! and Berry was not
able to abduct her (Bales); and that Berry was however able to forcibly take her
shoulder bag which contained her wallet, cellphone, necklace, and other personal
belongings. On the same date, she reported the incident to the Paraaque Police
Station and executed a sworn statement. When Berry was arrested on March 30,2001,
Bales identified him as the person who grabbed her arm and took her shoulder bag.
5. Dr. Emmanuel Reyes (Dr. Reyes) is the Medico-Legal Officer at the Southern Police
District Crime Laboratory at Fort Bonifacio. He testified that he conducted an autopsy
examination on the cadaver of AAA. According to his Medico-Legal Report No. M-
072-2001, the cause of death is asphyxia by strangulation with traumatic head injuries,
with signs of drowning and recent loss of virginity. There was a fresh deep laceration
of the genitalia with hematoma. Dr. Reyes was able to recover samples of sperm cells
collected from the victim.
6. Chito Adarna[5] (Adarna) testified that he is a tricycle driver plying the San Antonio
Valley area in Paraaque City; that on March 11, 2001., he transported a male
passenger from the tricycle terminal to the corner of Sta. Escolastica and Sta. Teresa
streets in Paraaque City, where he saw a black Mazda car parked by the bridge of
San Antonio Valley; that he (Adarna) then saw two men carrying something that they
threw over the bridge where the body of AAA was eventually found; and that
thereafter, both men entered the Mazda car with its windows rolled down on the right
side. He identified these two men in open court as the appellants Constancio and
Berry.
7. P/Sr. Insp. Edgardo C. Ariate (PSI Ariate) testified that he is the Chief Investigator
of the Investigation Division of Precinct No. 2 of the Paraaque City Police Station;
that on March 11, 2001, he received a telephone call informing him about a body of a
female found hogtied and lifeless at the creek of San Antonio Valley; that he (PSI
Ariate) then ordered SPO2 Odeo Carino to conduct an investigation to verify the truth
of the information; that initially, the police officers did not have any suspects to the
crime; but a few weeks later, an informant surfaced and relayed to them the identities
of AAAs assailants. The informant came out after then-Paraaque Mayor Joey
Marquez (Mayor Marquez) offered a reward to anyone who could provide any lead
on the identities of AAAs assailants. PSI Ariate added that the informant identified
Berry and Constancio as the persons responsible for the crime. The informant also
gave the whereabouts of the suspects which led to Berrys arrest in Muntinlupa and
Constancys arrest in Cagayan province.
The informant positively identified Berry during the course of the arrest. At the police
station, Bales likewise positively identified Berry as the person who attempted to
abduct her and who also took off with her bag. PSI Ariate testified that Berry confessed
his participation in the crime and provided the names of his companions namely:
Pagkalinawan, one alias Burog, and Darden.
8. CCC is the father of AAA. He testified that during the preliminary
investigation, he was able to ask Berry what he did to his daughter. Berry replied that
it was better to not let him (CCC) know what happened as the details of the killing
would only hurt him. CCC added that the impression he got from speaking with
Berry was that the latter admitted to him that he and his companions were the ones
responsible for his daughters death. He also asked Berry why they had to kill his
daughter. To this Berry simply responded that he would help him (CCC).
9. Fernando Sanga y Amparo a.k.a. Dindo Amparo (Amparo) testified that he is a
reporter of the ABS-CBN Broadcasting Corporation; that he covered the news on the
murder case of AAA, and that he personally interviewed Berry.
Amparo declared that during his interview, Berry revealed that his co-accused
Constancio is his cousin, and his three companions were alias Burog, Pagkalinawan,
and Darden, all three of whom he just met that very night; that he and his cousin
Constancio, and their companions alias Burog, Pagkalinawan and Darden abducted
AAA outside the Alabang Town Center after poking her with a knife; that he (Berry)
at first thought that it would just be a hold-up; and that after threatening AAA with
a knife, they placed AAA at the back seat of her black Mazda car and they all rode
in her black car and drove to Constancio vacant house.
During the same interview, Berry further revealed that while parked in Constancio
garage in Luxemburg Street at the Better Living Subdivision, Paranaqe City, AAAs
car was shaking with Constancio inside with AAA; that this led him to suspect that
something was already happening inside the car. Berry also divulged that when the
car door was opened, he saw AAA already apparently lifeless, her private parts
exposed, and without her underwear. Then he (Berry) heard Constancio utter wala
na; that when asked whether by that phrase wala na he meant that AAA was
already dead, Berry replied, yes.
In the same interview, Berry also disclosed that AAAs body was placed inside the
trunk of her car and thrown over a bridge at San Antonio Valley III, Paraaque City;
that he was prompted to reveal such information because he felt guilty about what
happened. Berry claimed that he had nothing to do with AAAs killing and
promised her family that he would help them obtain justice by becoming a witness in
the case.
10. Atty. Rhonnel Suarez (Atty. Suarez) testified that he was the lawyer who assisted
Berry during the custodial investigation at the Paraaque police station; that it was
Berry himself who approached him at the police precinct and asked for his
professional assistance during the custodial investigation; and that he fully explained
to Berry and made the latter understand clearly his constitutional rights before the
latter executed the Sinumapaang Salaysay containing his extrajudicial confession. Berry
freely and voluntarily affixed his signature to the Sinumpaang Salaysay in the presence
of Atty. Suarez and two of Berrys relatives, Estrella Corate (Corate) and Florinda
Buenafe (Buenafe).
Version of the Defense
1. Pagkalinawan testified that he was surprised that Berry implicated him in this case
because he does not know him; that he only met Berry inside the police precinct 13
days after his arrest; and that Berry might have been subjected to torture to give the
names of other persons involved in the case.
With regard to Constancio, Pagkalinawan testified that he has known him for less than
a year as he was a neighbor in Bayanan, Muntinlupa; but that several months before
the case, he (Pagkalinawan) and Constancio were no longer neighbors because he
(Pagkalinawan) transferred to another place.
Pagkalinawan claimed that he went into hiding because he was afraid that police
officers were searching for him after a reward for information concerning his
whereabouts was offered.
2. Napoleon Pagkalinawan (Napoleon) is Pagkalinawans father. He testified that on
the night of March 10, 2001, at around 8:00 oclock in the evening, he was watching
television with his children, including Pagkalinawan; and that after watching
television until 11:00 oclock that evening, he (Napoleon) claimed that Pagkalinawan
went to his room to sleep.
Napoleon also averred that Pagkalinawan had been living with him since birth and
that Constancio was not their neighbor. He said that Pagkalinawan transferred to the
house of his in-laws which was less than a kilometer away from his house.
3. Aida R. Viloria-Magsipoc (Magsipoc) testified that she is a Forensic Chemist of the
National Bureau of Investigation (NBI); and that she took the buccal swabs from the
inner lining of Pagkalinawans mouth. Her final report concluded that the vomit and
hair samples from AAAs car did not match the profile of the suspects. Magsipoc
however could not say whether Pagkalinawan and the other suspects were inside the
car or not since their profile was not found in the car based on the submitted specimen.
4. Constancio testified that on February 24, 2001, his neighbor, the wife of his co-
accused Pagkalinawan, informed him that NBI agents were looking for him regarding
a kidnapping with murder case of a certain Calupig; that for fear of apprehension, he
(Constancio) went to his cousin and co-accused Berry and stayed in the latters house;
that he then contacted his girlfriend Aiko Tiu (Aiko) and told her to stay in his house
in Bayanan, Muntinlupa in the meantime; that Aiko later went to see him (Constancio)
and informed him that his house had been ransacked; that his personal belongings
had been taken including his wallet which contained his identification cards; that on
February 27, 2001, he (Constancio) went to Baguio City to hide; that Aiko visited him
there on March 14, 2001 as it was his birthday; that the next day, Aiko returned to
Manila and they communicated only through text messages; that about a week later
he (Constancio) was informed that his face was flashed on television with a reward
offered to any person who could provide information regarding his whereabouts; that
this prompted him (Constancio) to head further up north to Aparri, Cagayan on
March 24, 2001; and that on March 29, 2001, he was arrested and brought to the office
of Mayor Marquez where he saw his cousin Berry.
5. Aiko testified that Constancio is her live-in partner with whom she has two children;
that from February 27, 2001 to March 14, 2001, while Constancio was in Baguio she
called him everyday to make sure he was safe; that on March 14, 2001, she visited him
in Baguio as this was his birthday; that upon her return to Manila, she learned that
Constancio had been arrested; and that this surprised her since she believes that
Constancio did not have anything to do with AAAs murder.
6. Berry testified that on March 10, 2001, he went home after work as a welder and did
not go back to work the next day; that on March 29, 2001, two men in civilian clotliing
came to his house and informed him that they were police officers; that after opening
the door, the police officers kicked him in the chest and thereafter handcuffed him;
that he asked them what crime he committed and if they were armed with a warrant
of arrest but the alleged police officers failed to show him any document; that he was
then brought to the Office of Mayor Marquez where he was asked about his cousin
Constancio; that thereafter, he was brought to the Coastal Police Headquarters of
Paraaque where he was threatened by PSI Ariate and forced to sign a Sinumpaang
Salaysay, and that said sinumpaang salaysay is false.
Berry further testified that Atty. Suarez assisted him in the execution of his affidavit;
that his relatives Corate and Buenafe also signed the affidavit; and that nonetheless he
was not able to narrate the threats made by PSI Ariate on his life and the lives of his
family. Berry stressed that he does not know who prepared the statements in
his Sinumpang Salaysay.
7. Corate testified that Berry is her son-in-law; that while she was at the police station,
police officers asked her to sign a document without informing her of its contents.
Summary of Facts
It appears that on March 10, 2001, AAA went to Alabang Town Center with her
friends Dacanay and Golez. After parting ways with them, AAA was about to board
her car when she found herself confronted by Berry then armed with a knife, who was
then in the company of Constancio, Pagkalinawan, Darden and alias Burog. These
five forcibly seized AAAs car and drove her to Constancio house where she was
raped and killed.
In the course of an interview with ABS-CBN Reporter Amparo, Berry revealed that
while AAAs car was parked in Constancio garage, the said car was moving and
shaking with AAA inside.[6] This led him to suspect that something was already
happening; that when the door of the car was opened, (Berry) saw that AAA was
without her underwear; and that Constancio then uttered the words, wala na,
indicating that AAA was already dead.[7]
AAAs body was then placed inside the trunk of her car. Adarna, a tricycle driver,
saw Berry, Constancio, and their other companions, throw something over a bridge
which turned out to be AAAs body upon investigation by the authorities.
On the evening of March 12, 2001, Bales almost became the next victim when Berry
and his companions who were still using AAAs car, attempted to abduct her.
Fortunately for Bales, a barangay tanod was present at the scene and was able to foil the
abduction when he shouted at the malefactors and startled them. Nonetheless, Bales
bag was taken during this incident.
Eventually, Berry and Constancio were arrested after an informant surfaced and
identified them as AAAs assailants. The informant came out after Mayor Marquez
offered a reward for information leading to the identity of persons responsible for
AAAs rape-slay.
During the custodial investigation, where Atty. Suarez advised him of his
constitutional rights and the consequences of his statements, Berry executed an
extrajudicial confession which was embodied in a Sinumpaang Salaysay. Berry also
confessed to Amparo during an interview that he did take part in the execution of the
crime.
At the trial, however, Berry denounced the Sinumpaang Salaysay as false, and claimed
that he was coerced into signing the same.
For his part, Constancio contended that he was in Baguio at the time of the commission
of the crime. Both appellants denied the charges against them. These two also asserted
that Berrys extrajudicial confession was inadmissible in evidence.
Ruling of the Regional Trial Court
On January 23, 2007 the RTC of Paraaque City, Branch 258 rendered its Decision
finding Constancio and Berry guilty beyond reasonable doubt of the crime of Rape
with Homicide and sentenced them to suffer the penalty of reclusion perpetua.
As for Pagkalinawan, the RTC acquitted him of the crime for failure of the prosecution
to prove his guilt beyond reasonable doubt. The RTC held that the prosecution
witnesses were not at all able to positively identify Pagkalinawan as a participant in
the crime, thus, he must be absolved of the crime charged.
The dispositive part of the Decision of the RTC reads:
WHEREFORE, premises considered, considering that the prosecution was
able to prove the guilt of accused NIEVES CONSTANCIO y BACUNGAY
and ERNESTO BERRY y BACUNGAY beyond reasonable doubt, both
accused are hereby sentenced to suffer the penalty of RECLUSION
PERPETUA pursuant to Republic Act 9346 which repealed the death penalty
law. However pursuant to Section 3 thereof, they are not eligible for parole.
Accused, NIEVES CONSTANCIO y BACUNGAY and ERNESTO BERRY y
BACUNGAY are also hereby ordered to jointly and severally pay the heirs of
[AAA] the following amounts, to wit:
1. P92,290.00 as actual damages;
2. P50,000.00 as civil indemnity ex-delicto;
3. P50,000.00 as moral damages; and
4. P50,000.00 as exemplary damages;
For failure of the prosecution to prove the guilt of accused DONARDO
PAGKALINAWAN y VILLANUEVA, he is hereby ACQUITTED of the crime
charged against him.
Let alias warrant of arrest issue against Danny Darden and @ Burog, which
need not be returned until after they have been arrested.
The City Jail Warden, this jurisdiction is hereby ordered to immediately
release accused, DONARDO PAGKALINAWAN from further detention
unless he is being held for some other cause or causes.
No pronouncement as to cost.
SO ORDERED.[8]
In its Decision of February 24, 2012, the CA affirmed the RTC. The CA found that
Constancio and Berry conspired to abduct, rape, and kilt AAA. The CA accorded
credence to the testimonies of prosecution witnesses Adarna and Bales, both of whom
in the opinion of the CA positively established the identities of Constancio and Berry.
The CA upheld the RTCs assessment of the credibility of these witnesses, because of
the trial courts unique opportunity to observe their deportment and demeanor while
on the witness stand.
Also, the CA gave credence to Berrys extrajudicial confession as contained in
the Sinumpaang Salaysay which he executed with the assistance of Atty. Suarez. Berrys
extrajudicial confession was admitted as corroborative evidence of facts that likewise
tend to establish the guilt of his co-accused and cousin, Constancio as shown by the
circumstantial evidence extant in the records.
Invariably therefore, the CA rejected the defences of alibi and denial interposed by
Constancio in light of the positive identification by the prosecution witnesses.
The CA disposed as follows:
WHEREFORE, premises considered, the assailed Decision. finding accused-
appellants Nieves Constancio y Bacungay and Ernesto Berry y Bacungay
guilty of the crime charged is hereby AFFIRMED.
SO ORDERED.[9]
From the CAs Decision, Berry filed his notice of appeal [10] on March 8, 2012 while
Constancio filed his own notice of appeal[11] on September 12, 2012.
Both appellants filed separate briefs. Berry opted hot to file a Supplemental Brief and
instead, adopted the arguments raised in the Appellants Brief[12] that he filed before
the CA. Constancio, on the other hand, filed a Supplemental Brief[13] raising
substantially the same issues as those raised by Berry.
The issues raised by the appellants can be summarized as follows:
I. Whether the CA erred in lending credence to the testimonies of the
prosecution witnesses.
II. Whether the CA erred in declaring Berrys extrajudicial confession
admissible in evidence and in considering it against his co-accused
Constancio.
III. Whether the CA erred in finding the appellants guilty beyond reasonable
doubt of the crime charged.
Our Ruling
Credibility of the Prosecutions Witnesses
Appellants claim that the testimonies of the prosecution witnesses, specifically those
of Bales and Adarna, were unreliable and should not have been given credit by the
CA in affirming the RTCs Decision; and that the identification of the appellants made
by these witnesses was not believable given the circumstances of the case.
Constancio, in particular, assails the testimony of Adarna. He argues that, [t]he
distance of several meters between [Adarna] and accused-appellant at the time he
allegedly saw the latter riding in the victims car, as well as the position of [Adarnas]
tricycle relative to the vehicle wherein accused-appellant was riding in, the negligible
lighting, time of day, and other circumstances make it impossible for [Adarna] to
positively identify accused-appellant.[14]
Berry, on the other hand, flays Baless testimony, calling it unreliable since her
description of the suspect, i.e. 55 to 56 in height, with brush-up hair,[15] allegedly
failed to match his own features. Berry harps on the fact that Bales was unable to state
in court what the suspect was wearing at the time. Likewise, Berry labels Adarnas
testimony as mere afterthoughts and of doubtful veracity.[16]
The appellants assaults upon the credibility of the prosecution witnesses will not
succeed. Firmly settled is the rule that when factual findings of the RTC are affirmed
by the CA, such factual findings should not be disturbed on appeal, unless some
material facts or circumstances had been overlooked or their significance
misconstrued as to radically affect the outcome of the case. We find no cogent reason
to set aside the factual findings of the RTC as affirmed by the CA because these factual
findings are in accord with the evidence on record. What is more, the appellants have
not shown that either or both the RTC and the CA had overlooked some material facts
or circumstances or had misappreciated their import or significance as to radically
affect the outcome of the case.
Admissibility of Berrys Extrajudicial Confession
Both appellants also argue that Berrys extrajudicial confession is inadmissible in
evidence against them.
Berry insists that when he executed his extrajudicial confession, he was not provided
with a competent and independent counsel of his own choice in violation of Section
12, Article III of the Constitution which provides:
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or the preceding
section shall be inadmissible in evidence against him.
xxxx
Berry contends that Atty. Suarez does not qualify as a competent and independent
counsel since the circumstances surrounding this lawyers presence at the precinct
during the custodial investigation was suspect. Berry specifically challenges, the
competence and independence of Atty. Suarez and questions his presence at the police
precinct at the very moment he underwent custodial investigation.
After a close reading of the records, this Court believes that Berrys confession is
admissible because it was voluntarily executed with the assistance of a competent and
independent counsel in the person of Atty. Suarez. In point of fact Atty. Suarez
testified that he thoroughly explained to Berry his constitutional rights and the
consequences of any statements he would give. Atty. Suarez testified as follows:
ATTY. ANTONIO:
Q: So, what did you do upon your arrival at the police station?
A: Upon my arrival there, I went to the desk and it so happened that there
was another case, I identified myself to the police officer who was
manning the desk. And there was another case, a small case between two
(2) parties who also requested my assistance so, I assisted them. And
then, I told the police that I was actually looking for an accused of a rape
incident, and it was at that time that someone approached me and
requested my assistance.
Q: And who is this person that approached you, Mr. witness?
A: It was the accused, Berry.
Q: When he approached you what did he tell you, if any?
A: He told me, Sir, pwede ho bang tulungan ninyo ako? Thats what I recalled
him saying.
xxx
x
Q: So, in short, Mr. witness, it was Ernesto Berry who initially approached
you and asked you to represent him?
A: That is correct because I was there in the precinct, I was infront I was
there in the front desk of the police precinct and when I arrived, he was
not there in the general holding area or lobby. I dont know where he
came from but he was the one who approached me.
Q: Did you, in fact, represent this Ernesto Berry during his custodial
investigation?
A: Yes
Q: There is testimony of Ernesto Berry during the time that he took the
witness stand, Mr. witness, that he was tortured, coerced and/or forced
to sign this extra-judicial confession. What can you say about that?
A: What I can say is during the entire time that I was there, I made sure that
we were alone first and foremost, and I explained to him his rights under
our laws. I also remember that his relatives were present. Before I allowed
the police to go inside the room, I asked that I be left alone with the
accused together with his relatives, and I talked to him for a few minutes
before anything happen.
xxx
x
Q: How was the extra-judicial confession taken, Mr. witness? In your
presence or without your presence?
A: I recall that I was there present from the start up to the end, and never left
him precisely to protect his interest.[17]
It is clear from the foregoing testimony that Atty. Suarez is a competent and
independent counsel and that he was in fact chosen by Berry himself during the
custodial investigation; and that he was no stranger.at all to the processes and
methods of a custodial investigation. In default of proof that Atty. Suarez- was remiss
in his duties, as in this case, this Court rriust hold that the custodial investigation of
Berry was regularly conducted. For this reason, Berrys extrajudicial confession is
admissible in evidence against him.
As expected, Berry now assails the extrajudicial confession he made to Amparo. Berry
claims he was under a very intimidating atmosphere where he was coerced by the
police to confess and to even name names.[18] Berry insists that the only
incriminating part of his confession was his admission that he was present at the scene
of the crime. Nonetheless, he claims that he was never privy to any of the plans
involving the raping or killing of AAA.
Berrys argument does not persuade. The CA correctly held:
It is already settled that statements spontaneously made by a suspect to news
reporters on a televised interview are deemed voluntary and are admissible
in evidence. In this case, there was no ample proof to show that appellant
Berrys narration of events to ABS-CBN reporter Dindo Amparo was the
product of intimidation or coercion, thus making the same admissible in
evidence.[19]
Berrys confession is admissible in evidence because it was-voluntarily made to a news
reporter and not to the police authority or to an investigating officer. Amparo testified
that he requested Berry for an interview in connection with his confession, and that
the latter freely acceded. Hence, Berrys confession to Amparo, a news reporter, was
made freely and voluntarily and is admissible in evidence.
In an attempt to escape liability as a co-conspirator, Berry argues that although he was
present at the scene of the crime, he was not at all privy to any plans to rape and kill
AAA.
This argument will not hold.
A closer examination of the prosecutions evidence compels the conclusion that Berry
was a co-conspirator in the rape and killing AAA. In People v. Foncardas,[20] the Court
held that:
Conspiracy exists when two or more persons come to an agreement to
commit an unlawful act. There is, however, no need to prove a previous
agreement to commit the crime if by their overt acts, it is clear that all the
accused acted in concert in the pursuit of their unlawful design. It may even
be inferred from the conduct of the accused before, during and after the
commission of the crime.
In this case, while there was no direct proof of a previous agreement to rape and kill
AAA, it was nonetheless clear from Berrys conduct that he acted in concerted effort
and was united in intent, aim and purpose in executing the groups criminal design.
This was established by Adarnas testimony stating that he saw Berry throw the body
of AAA over a bridge and that he was in AAAs car the night she was killed. By
helping his cousin and co-accused Constahcio dispose of the body of AAA, Berry
became a co-conspirator by direct participation. It is immaterial that Berry was merely
present at the scene of the crime since it is settled that in conspiracy, the act of one is
the act of all. If it is true that Berry was not privy to the plan of raping and killing
AAA, he should have prevented the same from happening or at the very least, left
the group and reported the crime to the authorities. Berry did neither and he even
helped Constancio dispose of AAAs body. Clearly, Berry, by his overt acts, became
a co-conspirator by directly participating in the execution of the criminal design.
On the other hand, Constancio argues that Berrys confession is inadmissible in
evidence against him under the principle of res inter alios acta found in Section 28, Rule
130 of the Rules of Court, which provides that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another. Our ruling in Tamargo v.
Awingan[21] pertinently explains the reason for this rule:
[O]n a principle of good faith and mutual convenience, a mans own acts are
binding upon himself, and are evidence against him. So are his conduct and
declarations. Yet it would not only be rightly inconvenient, but also
manifestly unjust, that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to be bound by the acts of
strangers, neither ought their acts or conduct be used as evidence against
him.
The general rule is that an extra-judicial confession is binding only on the confessant
and is inadmissible in evidence against his co-accused since it is considered hearsay
against them.[22] However, as an exception to this rule, the Court has held that an
extra-judicial confession is admissible against a co-accused when it is used as
circumstantial evidence to show the probability of participation of said co-accused in
the crime.[23]
In People v. Aquino,[24] this Court held that in order that an extra-judicial confession
may be used against a co-accused of the confessant, there must be a finding of other
circumstantial evidence which when taken together with the confession would
establish the guilt of a co-accused beyond reasonable doubt. Applying the rule to
Constancys case, the Court finds that the prosecution was able to show circumstantial
evidence to implicate him in the crime.
Significantly, Constancio was positively identified as among those who threw the
body of AAA over a bridge. It is significant to note that eyewitness Adarna also
attests that Constancio was riding in the very same car where AAA was raped and
killed. This fact leaves this Court without a doubt that Constancio is guilty of the crime
charged as the same qualifies as circumstantial evidence showing his participation in
the execution of the crime.
Short shrift must be given to Constancios alibi because he was not able to establish
that it was physically impossible for him to be at the scene of the crime the night
AAA was abducted, raped, and killed. As correctly held by the trial court:
xxx However, assuming arguendo that he went up to Baguio City on
February 27,2001, there is no physical impossibility for the said accused to go
down from Baguio City and proceed to Manila which will only take him at
least [sic] six (6) hours to reach and then go up again after committing the
crime, x x x[25]
In line with prevailing jurisprudence, this Court hereby modifies the awards of civil
indemnity moral damages, and exemplary damages to P100,000.00 each.[26] In
addition, interest is imposed on all damages awarded at the rate of 6% per annum.
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals dated
February 24, 2012 in CA-G.R. CR-H.C. No. 02709 is AFFIRMED subject to
the MODIFICATIONS that appellants are ordered to solidarity pay the heirs of
AAA civil indemnity, moral damages, and exemplary damages in the increased
amounts of P100,000.00 each. All damages awarded shall earn interest at the rate of
6% per annum from finality of this Decision until fully paid.
SO ORDERED.
MARIETA DE CASTRO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
The court should prescribe the correct penalties in complex crimes in strict
observance of Article 48 of the Revised Penal Code. In estafa through falsification of
commercial documents, the court should impose the penalty for the graver offense in
the maximum period. Otherwise, the penalty prescribed is invalid, and will not
attain finality.chanroblesvirtuallawlibrary
Antecedents
The petitioner, a bank teller of the BPI Family Savings Bank (BPI Family) at its
branch in Malibay, Pasay City, appeals the affirmance of her conviction for four
counts of estafa through falsification of a commercial document committed on
separate occasions in October and November 1993 by forging the signatures of bank
depositors Amparo Matuguina and Milagrosa Cornejo in withdrawal slips, thereby
enabling herself to withdraw a total of P65,000.00 and P2,000.00 from the respective
savings accounts of Matuguina and Cornejo.
The antecedent facts were summarized in the assailed decision of the Court of
Appeals (CA),1 as follows:chanRoblesvirtualLawlibrary
As culled from the evidence, Matuguina and Cornejo left their savings account
passbooks with the accused within the space of a week in October November 1993
when they went to the banks Malibay branch to transact on their
accounts. Matuguina, in particular, withdrew the sum of P500 on October 29 and
left her passbook with the accused upon the latters instruction. She had to return
two more times before the branch manager Cynthia Zialcita sensed that something
wrong was going on. Learning of Matuguinas problem, Zialcita told the accused to
return the passbook to her on November 8. On this day, the accused came up with
the convenient excuse that she had already returned the passbook. Skeptical,
Zialcita reviewed Matuguinas account and found three withdrawal slips dated
October 19, 29 and November 4, 1993 containing signatures radically different from
the specimen signatures of the depositor and covering a total of P65,000. It was
apparent that the accused had intervened in the posting and verification of the slips
because her initials were affixed thereto. Zialcita instructed her assistant manager
Benjamin Misa to pay a visit to Matuguina, a move that led to the immediate
exposure of the accused. Matuguina was aghast to see the signatures in the slips and
denied that the accused returned the passbook to her. When she went back to the
bank worried about the unauthorized withdrawals from her account, she met with
the accused in the presence of the bank manager. She insisted that the signatures in
the slips were not her, forcing the accused to admit that the passbook was still with
her and kept in her house.
Zialcita also summoned Juanita Ebora, the teller who posted and released the
November 4 withdrawal. When she was asked why she processed the transaction,
Ebora readily pointed to the accused as the person who gave to her the slip. Since
she saw the accuseds initials on it attesting to having verified the signature of the
depositor, she presumed that the withdrawal was genuine. She posted and released
the money to the accused.
On the same day, November 8, Zialcita instructed Misa to visit another depositor,
Milagrosa Cornejo, whom they feared was also victimized by the accused. Their
worst expectations were confirmed. According to Cornejo, on November 3, she
went to the bank to deposit a check and because there were many people there at the
time, she left her passbook with the accused. She returned days later to get it back,
but the accused told her that she left it at home. Misa now showed to her a
withdrawal slip dated November 4, 1993 in which a signature purporting to be hers
appeared. Cornejo denied that it was her signature. As with the slips affecting
Matuguina, the initials of the accused were unquestionably affixed to the paper.
Zialcita reported her findings posthaste to her superiors. The accused initially
denied the claims against her but when she was asked to write her statement down,
she confessed to her guilt. She started crying and locked herself inside the
bathroom. She came out only when another superior Fed Cortez arrived to ask her
some questions. Since then, she executed three more statements in response to the
investigation conducted by the banks internal auditors. She also gave a list of the
depositors accounts from which she drew cash and which were listed methodically
in her diary.
The employment of the accused was ultimately terminated. The bank paid
Matuguina P65,000, while Cornejo got her refund directly from the accused. In the
course of her testimony on the witness stand, the accused made these further
admissions:
(a) She signed the withdrawal slips Exhibits B, C, D and H which contained the fake
signatures of Matuguina and Cornejo;ChanRoblesVirtualawlibrary
(b) She wrote and signed the confession letter Exhibit K;ChanRoblesVirtualawlibrary
(c) She wrote the answers to the questions of the branch cluster head Fred Cortez
Exhibit L, and to the auditors questions in Exhibit M, N and
O;ChanRoblesVirtualawlibrary
(d) Despite demand, she did not pay the bank.2cralawlawlibrary
Judgment of the RTC
On July 13, 1998, the Regional Trial Court in Pasay City (RTC) rendered its
judgment,3 finding the petitioner guilty as charged, and sentencing her to suffer as
(a) In Criminal Case No. 94-5524, involving the withdrawal of P20,000.00 from the
account of Matuguina, the indeterminate sentence of two years, 11 months and
10 days of prison correccional, as minimum, to six years, eight months and 20
days of prision mayor, as maximum, and to pay BPI Family P20,000.00 and the
costs of suit;
(b) In Criminal Case No. 94-5525, involving the withdrawal of P2,000.00 from
Cornejos account, the indeterminate sentence of three months of arresto mayor,
as minimum, to one year and eight months of prision correccional, as maximum,
and to pay BPI Family P2,000.00 and the costs of suit;
(c) In Criminal Case No. 94-5526, involving the withdrawal of P10,000.00 from the
account of Matuguina, the indeterminate sentence of four months and 20 days
of arresto mayor, as minimum, to two years, 11 months and 10 days of prision
correccional, as maximum, and to pay BPI Family P10,000.00 and the costs of suit;
and
(d) In Criminal Case No. 94-5527, involving the withdrawal of P35,000 from
Matuguinas account, the indeterminate sentence of two years, 11 months and 10
days of prision correccional, as minimum, to eight years of prision mayor, as
maximum, and to pay BPI Family P35,000.00 and the costs of suit.
cralawlawlibrary
Decision of the CA
On appeal, the petitioner contended in the CA that: (1) her conviction should be set
aside because the evidence presented against her had been obtained in violation of
her constitutional right against self-incrimination; (2) her rights to due process and
to counsel had been infringed; and (3) the evidence against her should be
inadmissible for being obtained by illegal or unconstitutional means rendering the
evidence as the fruit of the poisonous tree.
On August 18, 2005, the CA promulgated its decision4 affirming the judgment of the
RTC, to wit:chanRoblesvirtualLawlibrary
In summary, we find no grounds to disturb the findings of the lower court, except
the provision of the dispositive portion in case 94-5525 requiring the accused to pay
BPI Family P2,000. This must be deleted because the accused had already paid the
amount to the depositor.
IN VIEW OF THE FOREGOING, the decision appealed from is AFFIRMED, with the
modification that the award of P2,000 to the complainant in case 94-5525 be deleted.
SO ORDERED.
cralawlawlibrary
Issues
In this appeal, the petitioner still insists that her conviction was invalid because her
constitutional rights against self-incrimination, to due process and to counsel were
denied. In behalf of the State, the Office of the Solicitor General counters that she
could invoke her rights to remain silent and to counsel only if she had been under
custodial investigation, which she was not; and that the acts of her counsel whom
she had herself engaged to represent her and whom she had the full authority to
replace at any time were binding against her.chanroblesvirtuallawlibrary
Ruling of the Court
The appeal lacks merit.
We first note that the petitioner has accepted the findings of fact about the
transactions that gave rise to the accusations in court against her for four counts
of estafa through falsification of a commercial document. She raised no challenges
against such findings of fact here and in the CA, being content with limiting herself
to the supposed denial of her rights to due process and to counsel, and to the
inadmissibility of the evidence presented against her. In the CA, her main objection
focused on the denial of her right against self-incrimination and to counsel, which
denial resulted, according to her, in the invalidation of the evidence of her guilt.
Debunking the petitioners challenges, the CA stressed that the rights against self-
incrimination and to counsel guaranteed under the Constitution applied only during
the custodial interrogation of a suspect. In her case, she was not subjected to any
investigation by the police or other law enforcement agents. Instead, she underwent
an administrative investigation as an employee of the BPI Family Savings Bank, the
investigation being conducted by her superiors. She was not coerced to give
evidence against herself, or to admit to any crime, but she simply broke down bank
when depositors Matuguina and Cornejo confronted her about her crimes. We quote
with approval the relevant portions of the decision of the
CA, viz:chanRoblesvirtualLawlibrary
The accused comes to Us on appeal to nullify her conviction on the ground that the
evidence presented against her was obtained in violation of her constitutional right
against self-incrimination. She also contends that her rights to due process and
counsel were infringed. Without referring to its name, she enlists one of the most
famous metaphors of constitutional law to demonize and exclude what she believes
were evidence obtained against her by illegal or unconstitutional means evidence
constituting the fruit of the poisonous tree. We hold, however, that in the particular
setting in which she was investigated, the revered constitutional rights of an accused
to counsel and against self-incrimination are not apposite.
The reason is elementary. These cherished rights are peculiarly rights in the context
of an official proceeding for the investigation and prosecution for crime. The right
against self-incrimination, when applied to a criminal trial, is contained in this terse
injunction no person shall be compelled to be a witness against himself. In other words,
he may not be required to take the witness stand. He can sit mute throughout the
proceedings. His right to counsel is expressed in the same laconic style: he shall
enjoy the right to be heard by himself and counsel. This means inversely that the criminal
prosecution cannot proceed without having a counsel by his side. These are the
traditional rights of the accused in a criminal case. They exist and may be invoked
when he faces a formal indictment and trial for a criminal offense. But since
Miranda vs Arizona 384 US 436, the law has come to recognize that an accused
needs the same protections even before he is brought to trial. They arise at the very
inception of the criminal process when a person is taken into custody to answer to
a criminal offense. For what a person says or does during custodial investigation will
eventually be used as evidence against him at the trial and, more often than not, will
be the lynchpin of his eventual conviction. His trial becomes a parody if he cannot
enjoy from the start the right against self-incrimination and to counsel. This is the
logic behind what we now call as the Miranda doctrine.
The US Supreme Court in Miranda spells out in precise words the occasion for the
exercise of the new right and the protections that it calls for. The occasion is when an
individual is subjected to police interrogation while in custody at the station or otherwise
deprived of his freedom in a significant way. It is when custodial investigation is
underway that the certain procedural safeguards takes over the person must be
warned prior to any questioning that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any
questioning.
We must, therefore, be careful to note what the Miranda doctrine does not say. It was
never intended to hamper the traditional law-enforcement function to investigate
crime involving persons not under restraint. The general questioning of citizens in the
fact-finding process, as the US Supreme Court recognizes, which is not preceded by
any restraint on the freedom of the person investigated, is not affected by the
holding, since the compelling atmosphere inherent in in-custody interrogation is not
present.
The holding in Miranda is explicitly considered the source of a provision in our 1987
bill of rights that any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel, a provision identical in language and spirit to the earlier Section 20, Article
IV of the 1973 Constitution. People vs. Caguioa 95 SCRA 2. As we can see, they
speak of the companion rights of a person under investigation to remain silent and
to counsel, to ensure which the fruit of the poisonous tree doctrine had also to be
institutionalized by declaring that any confession or admission obtained in violation
of these rights is inadmissible. But to what extent must the rights to remain silent
and to counsel be enforced in an investigation for the commission of an offense? The
answer has been settled by rulings of our Supreme Court in Caguoia and in the
much later case of Navallo vs Sandiganbayan 234 SCRA 175 incorporating in toto the
Miranda doctrine into the above-cited provisions of our bill of rights. Thus, the right
to remain silent and to counsel can be invoked only in the context in which
the Miranda doctrine applies when the official proceeding is conducted under the
coercive atmosphere of a custodial interrogation. There are no cases extending them
to a non-coercive setting. In Navallo, the Supreme Court said very clearly that the
rights are invocable only when the accused is under custodial investigation. A
person undergoing a normal audit examination is not under custodial investigation
and, hence, the audit examiner may not be considered the law enforcement officer
contemplated by the rule.
By a fair analogy, the accused in the case before us may not be said to be under
custodial investigation. She was not even being investigated by any police or law
enforcement officer. She was under administrative investigation by her superiors in
a private firm and in purely voluntary manner. She was not restrained of her
freedom in any manner. She was free to stay or go. There was no evidence that she
was forced or pressured to say anything. It was an act of conscience that compelled
her to speak, a true mental and moral catharsis that religion and psychology
recognize to have salutary effects on the soul. In this setting, the invocation of the
right to remain silent or to counsel is simply irrelevant.
The accused makes a final argument against her conviction by contending that she
did not get effective legal representation from her former counsel who was already
old and feeble when the case was being heard. In fact, the records show, her counsel
died during the pendency of the case, an octogenarian at that. One can truly make a
case from ones lack of a competent and independent counsel, but we are not
prepared to say that the accused was so poorly represented that it affected her
fundamental right to due process. Except for the several postponements incurred by
her counsel, there is really no showing that he committed any serious blunder
during the trial. We have read the transcripts of the trial and failed to get this
impression. The evidence against the accused was simply too overwhelming. We
may take note that once, the trial court admonished the accused to replace her
counsel due to his absences, but she did not. She must live by that.5cralawlawlibrary
Considering that the foregoing explanation by the CA was justly supported by the
records, and that her investigation as a bank employee by her employer did not
come under the coverage of the Constitutionally-protected right against self-
incrimination, right to counsel and right to due process, we find no reversible error
committed by the CA in affirming the conviction of the petitioner by the RTC.
The guilt of the petitioner for four counts of estafa through falsification of a
commercial document was established beyond reasonable doubt. As a bank teller,
she took advantage of the bank depositors who had trusted in her enough to leave
their passbooks with her upon her instruction. Without their knowledge, however,
she filled out withdrawal slips that she signed, and misrepresented to her fellow
bank employees that the signatures had been verified in due course. Her
misrepresentation to her co-employees enabled her to receive the amounts stated in
the withdrawal slips. She thereby committed two crimes, namely: estafa, by
defrauding BPI Family Savings, her employer, in the various sums withdrawn from
the bank accounts of Matuguina and Cornejo; and falsification of a commercial
document, by forging the signatures of Matuguina and Cornejo in the withdrawal
slips to make it appear that the depositor concerned had signed the respective slips
in order to enable her to withdraw the amounts. Such offenses were complex crimes,
because the estafa would not have been consummated without the falsification of the
withdrawal slips.
Nonetheless, there is a need to clarify the penalties imposable.
According to Article 48 of the Revised Penal Code,6 the penalty for a complex crime is
that corresponding to the most serious crime, the same to be applied in its maximum
period. Otherwise, the penalty will be void and ineffectual, and will not attain
finality.
In the four criminal cases involved in this appeal, the falsification of commercial
documents is punished with prision correccional in its medium and maximum periods
(i.e., two years, four months and one day to six years) and a fine of P5,000.00.7 In
contrast, the estafa is punished according to the value of the defraudation, as follows:
with the penalty of prision correccional in its maximum period to prision mayor in its
minimum period (i.e., four years, two months and one day to eight years) if the
amount of the fraud is over P12,000.00 but does not exceed P22,000.00, and if such
amount exceeds P22,000.00, the penalty is imposed in the maximum period, adding
one year for each additional P10,000.00, but the total shall not exceed 20 years, in
which case the penalty shall be termed prision mayor or reclusion temporal, as the case
may be, in connection with the accessory penalties that may be imposed and for the
purpose of the other provisions of the Revised Penal Code; with the penalty
of prision correccional in its minimum and medium periods (i.e., six months and one
day to four years and two months) if the amount of the fraud is over P6,000.00 but
does not exceed P12,000.00; with the penalty of arresto mayor in its maximum period
to prision correccional in its minimum period (i.e., four months and one day to two
years and four months) if the amount of the fraud is over P200.00 but does not
exceed P6,000.00; and with the penalty of arresto mayor in its medium and maximum
periods (i.e., two months and one day to six months) if the amount of the fraud does
not exceed P200.00.8cralawred
In Criminal Case No. 94-5524, estafa was the graver felony because the amount of the
fraud was P20,000.00; hence, the penalty for estafa is to be imposed in its maximum
period. However, the RTC and the CA fixed the indeterminate sentence of two
years, 11 months and 10 days of prison correccional, as minimum, to six years, eight
months and 20 days of prision mayor, as maximum. Such maximum of the
indeterminate penalty was short by one day, the maximum period of the penalty
being six years, eight months and 21 days to eight years. Thus, the indeterminate
sentence is corrected to three years of prison correccional, as minimum, to six years,
eight months and 21 days of prision mayor, as maximum.
In Criminal Case No. 94-5525, involving P2,000.00, the estafa is punished with four
months and one day of arresto mayor in its maximum period to two years and four
months of prision correccional in its minimum period. The falsification of commercial
document is penalized with prision correccional in its medium and maximum periods
(i.e., two years, four months and one day to six years) and a fine of P5,000.00. The
latter offense is the graver felony, and its penalty is to be imposed in the maximum
period, which is from four years, nine months and 11 days to six years plus fine of
P5,000.00. The penalty next lower in degree is arresto mayor in its maximum period
to prision correccional in its minimum period (i.e., four months and one day to two
years and four months). Thus, the indeterminate sentence of three months of arresto
mayor, as minimum, to one year and eight months of prision correccional, as maximum
that both the RTC and the CA fixed was erroneous. We rectify the error by
prescribing in lieu thereof the indeterminate sentence of two years of prision
correccional, as minimum, to four years, nine months and 11 days of prision
correccional plus fine of P5,000.00, as maximum.
In Criminal Case No. 94-5526, involving P10,000.00, the RTC and the CA imposed
the indeterminate sentence of four months and 20 days of arresto mayor, as minimum,
to two years, 11 months and 10 days of prision correccional, as maximum. However,
the penalty for the falsification of commercial documents is higher than that for
the estafa. To accord with Article 48 of the Revised Penal Code, the penalty for
falsification of commercial documents (i.e., prision correccional in its medium and
maximum periods and a fine of P5,000.00) should be imposed in the maximum
period. Accordingly, we revise the indeterminate sentence so that its minimum is
two years and four months of prision correccional, and its maximum is five years
of prision correccional plus fine of P5,000.00.
In Criminal Case No. 94-5527, where the amount of the fraud was P35,000.00, the
penalty for estafa (i.e., prision correccional in its maximum period to prision mayor in its
minimum period, or four years, two months and one day to eight years) is higher
than that for falsification of commercial documents. The indeterminate sentence of
two years, 11 months and 10 days of prision correccional, as minimum, to eight years
of prision mayor, as maximum, was prescribed. Considering that the maximum
period ranged from six years, eight months and 21 days to eight years, the CA
should have clarified whether or not the maximum of eight years of prision mayor
already included the incremental penalty of one year for every P10,000.00 in excess
of P22,000.00. Absent the clarification, we can presume that the incremental penalty
was not yet included. Thus, in order to make the penalty clear and specific, the
indeterminate sentence is hereby fixed at four years of prision correccional, as
minimum, to six years, eight months and 21 days of prision mayor, as maximum, plus
one year incremental penalty. In other words, the maximum of the indeterminate
sentence is seven years, eight months and 21 days of prision mayor.
The CA deleted the order for the restitution of the P2,000.00 involved in Criminal
Case No. 94-5525 on the ground that such amount had already been paid to the
complainant, Milagrosa Cornejo. There being no issue as to this, the Court affirms
the deletion.
The Court adds that the petitioner is liable to BPI Family for interest of 6% per
annum on the remaining unpaid sums reckoned from the finality of this judgment.
This liability for interest is only fair and just.
WHEREFORE, the Court AFFIRMS the decision promulgated by the Court of

Appeals on August 18, 2005, subject to the following MODIFICATIONS, to wit:
(1) In Criminal Case No. 94-5524, the petitioner shall suffer the indeterminate
penalty of three years of prison correccional, as minimum, to six years,
eight months and 21 days of prision mayor, as maximum;
penalty of two years of prision correccional, as minimum, to four years,
nine months and 11 days of prision correccional plus fine of P5,000.00,
as maximum;
penalty of two years and four months of prision correccional, as the
minimum, to five years of prision correccional plus fine of P5,000.00, as
the maximum; and
penalty of four years of prision correccional, as minimum, to seven
years, eight months and 21 days of prision mayor, as maximum.
The Court ORDERS the petitioner to pay to BPI Family Saving Bank interest of
6% per annum on the aggregate amount of P65,000.00 to be reckoned from the finality
of this judgment until full payment.
The petitioner shall pay the costs of suit.
JUAN PONCE ENRILE, Petitioner, v. SANDIGANBAYAN (THIRD DIVISION),

AND PEOPLE OF THE PHILIPPINES., Respondents.
RESOLUTION
BERSAMIN, J.:
The People of the Philippines, represented by the Office of the Special Prosecutor of
the Office of the Ombudsman, have filed their Motion for Reconsideration to assail the
decision promulgated on August 18, 2015 granting the petition for certiorari of the
petitioner, and disposing thusly:ChanRoblesVirtualawlibrary
WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the writ
of certiorariANNUL[L]ING and SETTING ASIDE the Resolutions issued by the
Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on July 14, 2014 and
August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce
Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of P1,000,000.00 in
the Sandiganbayan; and DIRECTS the immediate release of petitioner Juan Ponce
Enrile from custody unless he is being detained for some other lawful cause.
No pronouncement on costs of suit.
SO ORDERED.1chanroblesvirtuallawlibrary
The People rely on the following grounds for the reversal of the decision of August
18, 2015, to wit:ChanRoblesVirtualawlibrary
I. THE DECISION GRANTING BAIL TO PETITIONER WAS PREMISED
ON A FACTUAL FINDING THAT HE IS NOT A FLIGHT RISK, ON A
DETERMINATION THAT HE SUFFERS FROM A FRAGILE STATE
OF HEALTH AND ON OTHER UNSUPPORTED GROUNDS
UNIQUE AND PERSONAL TO HIM. IN GRANTING BAIL TO
PETITIONER ON THE FOREGOING GROUNDS,
THE DECISION UNDULY AND RADICALLY MODIFIED
CONSTITUTIONAL AND PROCEDURAL PRINCIPLES
GOVERNING BAIL WITHOUT SUFFICIENT CONSTITUTIONAL,
LEGAL AND JURIS PRUDENTIAL BASIS.
A. THE DECISION OPENLY IGNORED AND ABANDONED THE
CONSTITUTIONALLY-MANDATED PROCEDURE FOR
DETERMINING WHETHER A PERSON ACCUSED OF A
CRIME PUNISHABLE BY RECLUSION PERPETUA OR LIFE
IMPRISONMENT SUCH AS PLUNDER CAN BE GRANTED
BAIL.
B. THE DECISION ALSO DISREGARDED CONSTITUTIONAL
PRINCIPLES AND RELEVANT COURT PROCEDURES WHEN
IT GRANTED PETITIONER'S REQUEST FOR BAIL ON THE
GROUND THAT HE IS NOT A FLIGHT RISK, PREMISED ON
A LOOSE FINDING THAT THE PRINCIPAL PURPOSE OF
BAIL IS MERELY TO SECURE THE APPEARANCE OF AN
ACCUSED DURING TRIAL.
C. CONTRARY TO THE STRICT REQUIREMENTS OF THE 1987
CONSTITUTION ON THE MATTER OF GRANTING BAIL TO
PERSONS ACCUSED OF CRIMES PUNISHABLE
BY RECLUSION PERPETUA OR LIFE IMPRISONMENT,
THE DECISION ERRONEOUSLY HELD THAT PETITIONER
SHOULD BE GRANTED BAIL BECAUSE OF HIS FRAGILE
STATE OF HEALTH, AND BECAUSE OF OTHER
UNSUPPORTED AND DEBATABLE GROUNDS AND
CIRCUMSTANCES PURELY PERSONAL AND PECULIAR TO
HIM, WITHOUT REFERENCE TO THE STRENGTH OF THE
PROSECUTION'S EVIDENCE AGAINST HIM.
II. THE DECISION VIOLATES THE PEOPLE'S CONSTITUTIONAL

RIGHT TO DUE PROCESS OF LAW SINCE IT WAS BASED ON
GROUNDS NOT RAISED IN THE PETITION AND THEREFORE
NEVER REFUTED OR CONTESTED.
III. THE DECISION GAVE PREFERENTIAL TREATMENT AND UNDUE
FAVOR TO PETITIONER IN A MANNER INCONSISTENT WITH
THE EQUAL PROTECTION CLAUSE OF THE 1987
CONSTITUTION.2
The People argue that the decision is inconsonant with deeply-embedded
constitutional principles on the right to bail; that the express and unambiguous
intent of the 1987 Constitution is to place persons accused of crimes punishable
by reclusion perpetua on a different plane, and make their availment of bail a matter
of judicial discretion, not a matter of right, only upon a showing that evidence of
their guilt is not strong; and that the Court should have proceeded from the general
proposition that the petitioner had no right to bail because he does not stand on
equal footing with those accused of less grave crimes.
The People contend that the grant of provisional liberty to a person charged with a
grave crime cannot be predicated solely on the assurance that he will appear in
court, but should also consider whether he will endanger other important interests
of the State, the probability of him repeating the crime committed, and how his
temporary liberty can affect the prosecution of his case; that the petitioner's fragile
state of health does not present a compelling justification for his admission to bail;
that age and health considerations are relevant only in fixing the amount of bail; and
that even so, his age and health condition were never raised or litigated in
the Sandiganbayan because he had merely filed thereat a Motion to Fix Bail and did
not thereby actually apply for bail.
Lastly, the People observe that the decision specially accommodated the petitioner,
and thus accorded him preferential treatment that is not ordinarily enjoyed by
persons similarly situated.
Ruling of the Court
The Court finds no compelling or good reason to reverse its decision of August 18,
2015.
To start with, the People were not kept in the dark on the health condition of the
petitioner. Through his Omnibus Motion dated June 10, 2014 and his Motion to Fix
Bail dated July 7, 2014, he manifested to the Sandiganbayan his currently frail health,
and presented medical certificates to show that his physical condition required
constant medical attention.3 The Omnibus Motion and his Supplemental
Opposition dated June 16, 2014 were both heard by the Sandiganbayan after the filing
by the Prosecution of its Consolidated Opposition.4 Through his Motion for
Reconsideration, he incorporated the findings of the government physicians to
establish the present state of his health. On its part, the Sandiganbayan, to satisfy itself
of the health circumstances of the petitioner, solicited the medical opinions of the
relevant doctors from the Philippine General Hospital.5 The medical opinions and
findings were also included in the petition for certiorari and now form part of the
records of the case.
Clearly, the People were not denied the reasonable opportunity to challenge or refute
the allegations about his advanced age and the instability of his health even if the
allegations had not been directly made in connection with his Motion to Fix Bail.
Secondly, the imputation of "preferential treatment" in "undue favor" of the

petitioner is absolutely bereft of basis.6 A reading of the decision of August 18, 2015
indicates that the Court did not grant his provisional liberty because he was a sitting
Senator of the Republic. It did so because there were proper bases - legal as well as
factual - for the favorable consideration and treatment of his plea for provisional
liberty on bail. By its decision, the Court has recognized his right to bail by
emphasizing that such right should be curtailed only if the risks of flight from this
jurisdiction were too high. In our view, however, the records demonstrated that the
risks of flight were low, or even nil. The Court has taken into consideration other
circumstances, such as his advanced age and poor health, his past and present
disposition of respect for the legal processes, the length of his public service, and his
individual public and private reputation.7There was really no reasonable way for the
Court to deny bail to him simply because his situation of being 92 years of age when
he was first charged for the very serious crime in court was quite unique and very
rare. To ignore his advanced age and unstable health condition in order to deny his
right to bail on the basis alone of the judicial discretion to deny bail would be
probably unjust. To equate his situation with that of the other accused indicted for a
similarly serious offense would be inherently wrong when other conditions
significantly differentiating his situation from that of the latter's unquestionably
existed.8chanrobleslaw
Section 2, Rule 114 of the Rules of Court expressly states that one of the conditions of
bail is for the accused to "appear before the proper court whenever required by the
court or these Rules." The practice of bail fixing supports this purpose. Thus,
in Villaseor v. Abao,9 the Court has pronounced that "the principal factor
considered (in bail fixing), to the determination of which most factors are directed, is
the probability of the appearance of the accused, or of his flight to avoid
punishment."10 The Court has given due regard to the primary but limited purpose
of granting bail, which was to ensure that the petitioner would appear during his
trial and would continue to submit to the jurisdiction of the Sandiganbayan to answer
the charges levelled against him.11chanrobleslaw
Bail exists to ensure society's interest in having the accused answer to a criminal
prosecution without unduly restricting his or her liberty and without ignoring the
accused's right to be presumed innocent. It does not perform the function of
preventing or licensing the commission of a crime. The notion that bail is required to
punish a person accused of crime is, therefore, fundamentally misplaced. Indeed, the
practice of admission to bail is not a device for keeping persons in jail upon mere
accusation until it is found convenient to give them a trial. The spirit of the
procedure is rather to enable them to stay out of jail until a trial with all the
safeguards has found and adjudged them guilty. Unless permitted this conditional
privilege, the individuals wrongly accused could be punished by the period of
imprisonment they undergo while awaiting trial, and even handicap them in
consulting counsel, searching for evidence and witnesses, and preparing a
defense.12 Hence, bail acts as a reconciling mechanism to accommodate both the
accused's interest in pretrial liberty and society's interest in assuring his presence at
trial.13chanrobleslaw
Admission to bail always involves the risk that the accused will take flight.14 This is
the reason precisely why the probability or the improbability of flight is an
important factor to be taken into consideration in granting or denying bail, even in
capital cases. The exception to the fundamental right to bail should be applied in
direct ratio to the extent of the probability of evasion of prosecution. Apparently, an
accused's official and social standing and his other personal circumstances are
considered and appreciated as tending to render his flight
improbable.15chanrobleslaw
The petitioner has proven with more than sufficient evidence that he would not be a
flight risk. For one, his advanced age and fragile state of health have minimized the
likelihood that he would make himself scarce and escape from the jurisdiction of our
courts. The testimony of Dr. Jose C. Gonzales, Director of the Philippine General
Hospital, showed that the petitioner was a geriatric patient suffering from various
medical conditions,16 which, singly or collectively, could pose significant risks to his
life. The medical findings and opinions have been uncontested by the Prosecution
even in their present Motion for Reconsideration.
WHEREFORE, the Court DENIES the Motion for Reconsideration for lack of merit.
Sereno, C.J., I join J. Leonen's dissent.

Velasco, Jr., Leonardo-De Castro, Peralta, Perez, and Mendoza, JJ., concur.
Carpio, J., I join the dissenting opinion of J. Leonen.
Brion, J., see separate concurring opinion
Del Castillo, J., I join the dissent of J. Leonen.
Reyes, J., on official leave.
Perlas-Bernabe, J., I join J. Leonen's dissent.
Leonen, J., I dissent. see separate opinion.
Jardeleza, J., no part.
Caguioa, J., I join the dissent of J. Leonen.
Endnotes:
1Rollo, pp. 624-625.
2 Id. at 686-687.
3 Id. at 152, 160-162, 253.

4 Id. at 611.
5 Id. at 309-311.
6 Id. at 712.
7 Id. at 620.
8E.g.,Stack v. Boyle, 342 U.S. 1 ("Since the function of bail is limited, the fixing of bail
for any individual defendant must be based upon standards relevant to the purpose
of assuring the presence of that defendant. The traditional standards, as expressed
in the Federal Rules of Criminal Procedure, are to be applied in each case to each
defendant.").
In his concurring opinion in Stack v. Boyle, Justice Jackson

reminded:ChanRoblesVirtualawlibrary
It is complained that the District Court fixed a uniform blanket bail chiefly by
consideration of the nature of the accusation, and did not take into account the
difference in circumstances between different defendants. If this occurred, it is a
clear violation of Rule 46(c). Each defendant stands before the bar of justice as an
individual. Even on a conspiracy charge, defendants do not lose their separate-
ness or identity. While it might be possible that these defendants are identical in
financial ability, character, and relation to the charge elements Congress has
directed to be regarded in fixing bail I think it violates the law of probabilities.
Each accused is entitled to any benefits due to his good record, and misdeeds or a
bad record should prejudice only those who are guilty of them. The question when
application for bail is made relates to each one's trustworthiness to appear for trial
and what security will supply reasonable assurance of his appearance.
(Bold Emphasis supplied.)
9 L-23599, September 29, 1967, 21 SCRA 312.
10 Id. at 317.
11 See Basco v. Rapatalo, A.M. No. RTJ-96-1335, March 5, 1997, 269 SCRA 220, 224.
12Stack v. Boyle, supra note 8.
13Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 628.
14 See Justice Jackson's concurring opinion in Stack v. Boyle, supra note 8.
15 See Montana v. Ocampo, L-6352, January 29, 1953, 49 O.G. 1855.
16(1) Chronic Hypertension with fluctuating blood pressure levels on multiple drug
therapy;
(2) Diffure atherosclerotic cardiovascular disease composed of the
following:ChanRoblesVirtualawlibrary
a. Previous history of cercbrovascular disease with carotid and vertebral artery
disease;
b. Heavy coronary artery classifications;
c. Ankle Brachial Index suggestive of arterial classifications.

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by Holter
monitoring;
(4) Asthma-COPD Overlap Syndrome (ACOS) and postnasal drip syndrome;
(5) Ophthalmology:ChanRoblesVirtualawlibrary
a. Age-related mascular degeneration, neovascular s/p laser of the Retina, s/p
Lucentis intra-ocular injections;
b. S/p Cataract surgery with posterior chamber intraocular lens.

(6) Historical diagnoses of the following:ChanRoblesVirtualawlibrary
a. High blood sugar/diabetes on medications;
b. High cholesterol levels/clyslipidemia;
c. Alpha thalassemia;
d. Gait/balance disorder;
e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;
f. Benign prostatic hypertrophy (with documented enlarged prostate on recent

ultrasound).
SEPARATE CONCURRING OPINION

BRION, J.:
I write this Separate Opinion to reflect my view and explain my vote on the
deliberations of the Court En Banc on August 18, 2015 on the issue of the provisional
release of petitioner Juan Ponce Enrile from detention. I also explain in this Opinion
why I vote to deny the motion for reconsideration filed by the People of the
Philippines.
On August 18, 2015, the Court, voting 8-4, granted the petition for certiorari filed by
Enrile to assail and annul the resolutions dated July 14, 2014 and August 8, 2014
issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238. The
dispositive portion of this decision provides:ChanRoblesVirtualawlibrary
WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the writ
of certiorariANNULING and SETTING ASIDE the Resolutions issued by the
Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on July 14, 2014 and
August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce
Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of P1,000,000.00 in
the Sandiganbayan; and DIRECTS the immediate release of petitioner Juan Ponce
Enrile from custody unless he is being detained for some other lawful cause.
SO ORDERED.
The People, through the Office of the Special Prosecutor, moved to reconsider this
decision, and claimed that the grant of bail to Enrile "unduly and radically modified
constitutional and procedural principles governing bail without sufficient
constitutional, legal and jurisprudential basis."1 It argued that since Enrile was
charged with a grave crime punishable by reclusion perpetua to death, he cannot be
admitted to bail as a matter of right unless it had been determined that evidence of
his guilt was not strong.
The People further alleged that the ponencia erred in granting Enrile provisional
liberty on the erroneous premise that the principal purpose of bail is to ensure the
appearance of the accused during trial. It maintained that the grant of provisional
liberty must be counter-balanced with the legitimate interests of the State to continue
placing the accused under preventive detention when circumstances warrant.
The People further claimed that there is no obligation on the part of the State to allow
Enrile to post bail even under international law since the latter's detention was an
incident of a lawful criminal prosecution. It added that age and health are not
relevant in the determination of whether the evidence of guilt against Enrile is
strong; and that "there is no provision in the 1987 Constitution, in any statute or in
the Rules of Court"2 that allows the grant of bail for humanitarian considerations.
The People likewise claimed that its constitutional right to due process had been
violated since the Court granted provisional liberty to Enrile based on grounds that
were not raised by Enrile in connection with his bail request.
Finally, the People alleged that the ponencia violated the equal protection clause of
the 1987 Constitution when it "gave preferential treatment and undue favor"3 to
Enrile.
My Position:
I reiterate that Enrile should be admitted to bail. I likewise vote to deny the motion
for reconsideration filed by the Office of the Special Prosecutor.
The Right to Bail and the Court's Equity Jurisdiction

Our Constitution zealously guards every person's right to life and liberty against
unwarranted state intrusion; indeed, no state action is permitted to invade this
sacred zone except upon observance of due process of law.
Like the privilege of the writ of habeas corpus, the right to bail provides complete
substance to the guarantee of liberty under the Constitution; without it, the right to
liberty would not be meaningful, while due process would almost be an empty
slogan.4 A related right is the right to be presumed innocent from where, the right to
bail also draws its strength.
Bail is accorded to a person under the custody of the law who, before conviction
and while he enjoys the presumption of innocence, may be allowed provisional liberty
upon the filing of a bond to secure his appearance before any court, as required
under specified conditions.5 State interest is recognized through the submitted bond
and by the guarantee that the accused would appear before any court as required
under the terms of the bail.
In Leviste v. Court of Appeals,6 the Court explained the nature of bail in the following
manner:ChanRoblesVirtualawlibrary
Bail, the security given by an accused who is in the custody of the law for his release
to guarantee his appearance before any court as may be required, is the answer of
the criminal justice system to a vexing question: what is to be done with the accused,
whose guilt has not yet been proven, in the "dubious interval," often years long,
between arrest and final adjudication. Bail acts as a reconciling mechanism to
accommodate both the accused's interest in pretrial liberty and society's interest in
assuring the accused's presence at trial.
The constitutional mandate is that "[a]ll persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance as may
be provided by law. x x x."7chanrobleslaw
Under this provision, bail is clearly a demandable constitutional right; it only ceases to
be so recognized when evidence of guilt of the person - charged with a crime that
carries the penalty of reclusion perpetua, life imprisonment, or death - is found to be
strong. From the perspective of innocence, this degree of evidence apparently renders
less certain the presumption of innocence that the accused enjoys before conviction.
But while bail is separately treated for those charged with a crime that carries the
penalty of reclusion perpetua or higher, the Constitution does not expressly and
absolutely prohibit the grant of bail even for the accused who are so charged.
If the evidence of guilt is not strong, as the courts may determine in their discretion,
then the accused may be demanded still as of right.
If the evidence of guilt, on the other hand, is strong, this preliminary evaluation,
made prior to conviction, may render the presumption of innocence lighter in its effects,
but does not totally negate it; constitutionally, the presumption of innocence that the
accused enjoys still exists as only final conviction erases it.
Hand in hand with these thoughts, I have considered the judicial power that the
courts have been granted under the Constitution. This power includes the duty to
settle actual controversies involving rights which are legally demandable and
enforceable. It likewise encompasses the protection and enforcement of
constitutional rights, through promulgated rules that also cover pleading, practice
and procedure.8chanrobleslaw
I hold the view that judicial power, by its express terms, is inclusive rather than
exclusive: the specific powers mentioned in the Constitution do not. constitute the
totality of the judicial power that the Constitution grants the courts. Time and again,
the Supreme Court has given this constitutional reality due recognition by acting,
not only within the clearly defined parameters of the law, but also within
that penumbral area not definitively defined by the law but not excluded from the Court's
authority by the Constitution and the law.
The Court has particularly recognized its authority to so act if sufficiently

compelling reasons exist that would serve the ends of the Constitution - the higher
interests of justice, in this case, the protection and recognition of the right to liberty
based on the special circumstances of the accused.
A prime example of an analogous Court action would be in the case of Leo Echagaray
where the Court issued a temporary restraining order (TRO) to postpone the
execution of Echegaray and asserted its authority to act even in the face of the clear
authority of the President to implement the death penalty.
In Echegaray v. Secretary of Justice,9 the public respondents (Secretary of Justice, et al.)

questioned the Court's resolution dated January 4, 1999 temporarily restraining the
execution of Leo Echegaray and argued, among others, that the decision had already
become final and executory, and that the grant of reprieve encroaches into the
exclusive authority of the executive department to grant reprieve.
In ruling that it had jurisdiction to issue the disputed TRO, the Court essentially held
that an [a]ccused who has been convicted by final judgment still possesses collateral
rights and these rights can be claimed in the appropriate courts. We further reasoned
out that the powers of the Executive, the Legislative and the Judiciary to save the life
of a death convict do not exclude each other for the simple reason that there is no
higher right than the right to life.10chanrobleslaw
While Echegaray did not involve the right to bail, it nonetheless shows that the Court
will not hesitate to invoke its jurisdiction to effectively safeguard constitutional
rights and liberties.
In Secretary of Justice v. Hon. Lantion,11 the Court applied what it termed as "rules of
fair play" so as not to deny due process to Mark Jimenez during the evaluation
process of an extradition proceeding.
In this case, the United States Government requested the Philippine Government for
the extradition of Mark Jimenez to the United States. The Secretary of Foreign Affairs
forwarded this request to the Department of Justice. Pending the evaluation of the
extradition documents by the DOJ, Jimenez requested for copies of the official
extradition request and all pertinent documents, and the holding in abeyance of the
proceedings.
When the DOJ denied his request for being premature, Jimenez filed an action for
mandamus, certiorari and prohibition before the Regional Trial Court, Branch 25,
Manila. The RTC issued an order directing the Secretary of Justice, the Secretary of
Foreign Affairs, and the NBI to maintain the status quo by refraining from conducting
proceedings in connection with the extradition request of the US Government. The
Secretary of Justice questioned the RTC's order before this Court.
In dismissing this petition, the Court ruled that although the Extradition Law does
not specifically indicate whether the extradition proceeding is criminal, civil, or a
special proceeding, the evaluation process - understood as the extradition
proceedings proper - belongs to a class by itself; it is sui generis. The Court thus
characterized the evaluation process to be similar to a preliminary investigation in
criminal cases so that certain constitutional rights are available to the prospective
extraditee. Accordingly, the Court ordered the Secretary of Justice to furnish Jimenez
copies of the extradition request and its supporting papers, and lo grant him a
reasonable time within which to file his comment with supporting evidence.
The Court explained that although there was a gap in the provisions of the RP-US
Extradition Treaty regarding the basic due process rights available to the prospective
extradite at. the evaluation stage of the proceedings, the prospective extraditee faces
the threat of arrest, not only after the extradition petition is filed in court, but even
during, the evaluation proceeding itself by virtue of the provisional arrest allowed
under the treaty and the implementing law. It added that the Rules of Court
guarantees the respondent's basic due process rights in a preliminary investigation,
granting him the right to be furnished a copy of the complaint, the affidavits and
other supporting documents, and the right to submit counter-affidavits and other
supporting documents, as well as the right to examine all other evidence submitted
by the complainant.
While the Court in Lantion applied the "rules of fair play" and not its equity
jurisdiction, the distinction between the two with respect to this case, to me, is just
pure semantics. I note in this case that the Court still recognized Jimenez's right to
examine the extradition request and all other pertinent documents pertaining to his
extradition despite the gap in the law regarding the right to due process of the
person being extradited during the evaluation stage.
Based on these constitutional considerations, on the dictates of equity and the need
to serve the higher interest of justice, I believe that it is within the authority of the
Court to inquire if the special circumstances the accused submitted are sufficiently
compelling reasons for the grant of bail to Enrile.
Equity jurisdiction is used to describe the power of the court to resolve issues
presented in a case in accordance with natural rules of fairness and justice in the absence
of a clear, positive law governing the resolution of the issues posed.12 Equity jurisdiction
aims to do complete justice in cases where a court of law is unable to adapt its
judgments to the special circumstances of a case because of the inflexibility of its
statutory or legal jurisdiction. Equity is the principle by which substantial justice
may be attained in cases where the prescribed or customary forms of ordinary law
are inadequate.13chanrobleslaw
In Daan v. Hon. Sandiganbayan (Fourth Division),14 we further expounded on this

concept as follows:ChanRoblesVirtualawlibrary
Equity as the complement of legal jurisdiction seeks to reach and do complete justice
where courts of law, through the inflexibility of their rules and want of power to
adapt their judgments to the special circumstances of cases, are incompetent so to
do. Equity regards the spirit of and not the letter, the intent and not the form, the
substance rather than the circumstance, as it is variously expressed by different
courts.
I am not unaware that courts exercising equity jurisdiction must still apply the law
and have no discretion to disregard the law.15 Equitable principles must always
remain subordinate to positive law, and cannot be allowed to subvert it, nor do these
principles give to the Courts authority to make it possible to do so.16Thus, where the
law prescribes a particular remedy with fixed and limited boundaries, the court
cannot, by exercising equity jurisdiction, extend the boundaries further than the law
allows.17 As the Court explained in Mangahas v. Court of Appeals:18
For all its conceded merits, equity is available only in the absence of law and not as
its replacement. Equity is described as justice outside legality, which simply means
that it cannot supplant although it may, as often happens, supplement the law. x x x
all abstract arguments based only on equity should yield to positive rules, which
pre-empt and prevail over such persuasions. Emotional appeals for justice, while
they may wring the heart of the Court, cannot justify disregard of the mandate of the
law as long as it remains in force.
Similarly, in Phil. Rabbit Bus Lines, Inc. v. Judge Arciaga,19 the Court held [t]hat there
are instances, indeed, in which a court of equity gives a remedy, where the law gives
none; but where a particular remedy is given by the law, and that remedy is
bounded and circumscribed by particular rules, it would be very improper for the
court to take it up where the law leaves it and to extend it further than the law
allows.
Where the libertarian intent of the Constitution, however, is beyond dispute; where
this same Constitution itself does not substantively prohibit the grant of provisional
liberty even to those charged with crimes punishable with reclusion perpetua where
evidence of guilt is strong; and where exceptional circumstances are present as
compelling reasons for humanitarian considerations, I submit that the Court does
not stray from the parameters of judicial power if it uses equitable considerations in
resolving a case.
I note in this regard that together with Section 13, Article III of the Constitution
which provides that:ChanRoblesVirtualawlibrary
[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. x x x
Section 7 of Rule 114 of the Revised Rules of Court states that no person charged
with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment when the evidence of guilt is strong, shall be admitted to bail
regardless of the stage of the criminal action. Thus, seemingly, there exists a law or,
to be exact, a remedial rule, that forecloses the grant of bail to an accused who falls
within the exception identified under Section 13, Article III of the Constitution.
Rule 114 of the Revised Rules of Court, however, cannot foreclose the exercise by the
Court of a discretionary grant of bail because the constitutional provision on bail
speaks only of bail as a matter of right and does not prohibit a discretionary grant by
the courts, particularly by the Supreme Court which is the fountainhead of all rules
of procedure and which can, when called for, suspend the operation of a rule of
procedure. In hierarchal terms, the constitutional provision on bail occupies a very
much higher plane than a procedural rule.
Notably, Rule 114 directly addresses the grant of a right under the constitutional
provision - a situation where no equitable considerations are taken into account. In
this situation, the Court's hands are in fact tied as it must comply with the direct
command of the Constitution.
But when compelling circumstances exist, as has been described above, the situation
cannot but change and shifts into that penumbral area that is not covered by the
exact parameters of the express words of the Constitution yet is not excluded by it.
In this domain, when compelling reasons exist to carry into effect the intent of the
Constitution, equity can come into play.
I reiterate that the fundamental consideration in confining an accused before

conviction is to assure his presence at the trial. The denial of bail in capital offense is
on the theory that the proof being strong, the defendant would flee, if he has the
opportunity, rather than face a verdict in court. Hence, the exception to the
fundamental right to be bailed should be applied in direct ratio to the extent of the
probability of the evasion of the prosecution.20chanrobleslaw
As the ponencia recognized, these circumstances are Enrile's advanced age (91), his
state of health (he has been in and out of hospital before and since his arrest, a
condition that is not surprising based on his age alone), and the almost nil chance
that Enrile would evade arrest.
Dr. Jose C. Gonzales, the Director of the PGH, testified that Enrile underwent clinical
and laboratory examinations, as well as pulmonary evaluation and pulmonary
function tests on various dates on August 2014, and was found to be suffering from
the following conditions:ChanRoblesVirtualawlibrary
(1) Chronic Hypertension with fluctuating blood pressure levels on multiple
drug theraphy;
(2) Diffuse atherosclerotic cardiovascular disease composed of the following:
a. Previous history of cerebrovascular disease with carotid and vertebral

artery disease;
b. Heavy coronary artery calcifications;
c. Ankle Brachial Index suggestive of arterial calcifications.
(3) Atrial and ventricular Arrhythmia (irregular heartbeat) documented by

Holter monitoring;
(4) Asthma-COPD Overlap Syndrome and postnasal drip syndrome;
(5) Ophthalmology:
a. Age-related macular degeneration, neovascular s/p laser of the Retina,

s/p Lucentis intra-ocular injections
b. S/p Cataract surgery with posterior chamber intraocular lens

(6) Historical diagnoses of the following:
a. High blood sugar/diabetes on medications;
b. High cholesterol levels/dyslipidemia;
c. Alpha thalassemia;
d. Gait/balance disorder;
e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;
f. Benign prostatic hypertrophy (with documented enlarged prostate on

recent ultrasound).
In his Manifestation and Compliance, Dr. Gonzales further added that "the following
medical conditions of Senator Enrile pose a significant risk for life-threatening
events": (1) fluctuating hypertension, which may lead to brain or heart
complications, including recurrence of stroke; (2) arrhythmias, which may lead to
fatal or nonfatal cardiovascular events; (3) diffuse atherosclerotic vascular disease
may indicate a high risk for cardiovascular events; (4) exacerbations of asthma-
COPD Overlap Syndrome may be triggered by certain circumstances (excessive heat,
humidity, dust or allergen exposure) which may cause a deterioration in patients
with Asthma or COPD.
During the July 14, 2014 hearing, the witness-cardiologist expounded on the delicate
and unpredictable nature of Enrile's arrhythmia under the following exchange with
the court:ChanRoblesVirtualawlibrary
AJ MARTIRES:
Q: So, the holter monitoring was able to record that the accused is suffering from
arrhythmia?
What is arrhythmia, Doctor?

CARDIOLOGIST:
A: Arrhythmia is an irregular heartbeat. We just reviewed the holter of Senator

Enrile this morning again, prior to coming here, and we actually identified
the following irregularities:
There were episodes of atrial fibrillation, which is a very common arrhythmia in

elderly individuals, pre-disposing elderly dangers for stroke;
There were episodes of premature ventricular contractions of PVCs; and episodes of

QT tachy cardia.
xxxx
Q: So, what are these different types of arrhythmia?
A: Okay, Senator Enrile actually has three (3) different types of arrhythmia, at
least, based on our holter.
One is atrial fibrillation. I would say that it is the most common arrhythmia found in
our geriatric patients. It is a very important arrhythmia, because it is a risk factor for
stroke, and Senator Enrile actually already has one documentation of previous stroke
based on an MRI study.
Second, he has premature ventricular contractions (PVCs). Again, very normal in

patients who are in his age group; and cralawlawlibrary
Third, is the atrial tachy cardia, which is another form of atrial fibrillation. He has
these three types of irregular heartbeat.
Q: These three types are all dangerous?
A: Yes, your Honor. These arrhythmias are dangerous under stressful

conditions. There is no way we can predict when these events occur which
can lead to life-threatening events.
x x x x.21 (Emphasis supplied)

Dr. Gonzales likewise classified Enrile as a patient "under pharmacy medication"
owing to the fact that for arrhythmia alone, he is taking the following medications:
cilostazol; telmisartan; amlodipine; Coumadin; norvasc; rosuvastin; pantoprazole;
metformin; glycoside; centrum silver; nitramine and folic acid.
The records further disclosed that: (1) Enrile has "diabetes mellitus, dyslipidemia,
essential hypertension, extensive coronary artery calcification in the right coronary,
left anterior descending and left circumflex, multifocal ventricular premature beats,
episodes of bradycardia, colonic diverticulosis, thoracic and lumbar spondylosis L4-
L5, alpha thalassemia and mucular degeneration, chronic lacunar ischemic zones,
scattered small luminal plaques of proximal middle segments of basilar artery, both
horizontal and insular opercural branches of middle cerebral arteries," and that he
takes approximately 20 medicines a day; and (2) Enrile needs to undergo "regular
opthlamologic check-up, monitoring and treatment for his sight threatening
condition;" and that since 2008, he has been receiving monthly intravitreal injections
to maintain and preserve his vision.
Notably, when Dr. Gonzales (PGH Medical Director) was asked during the July 14,
2014 hearing on whether Enrile - based on his observation - was capable of escaping,
he replied that Enrile "has a problem with ambulation;" and that "even in sitting
down, he needs to be assisted."
Significantly, the use of humanitarian considerations in the grant of bail on the basis
of health is not without precedent.
In Dela Rama v. People,22 accused Francisco Dela Rama filed a motion before the
People's Court asking for permission to be confined and treated in a hospital while
his bail petition was being considered. The People's Court ordered that the Dela
Rama be temporarily confined and treated at the Quezon Institute. It also rejected
Dela Rama's bail application.
During Dela Rama's stay in the hospital. Dr. Miguel Canizares of the Quezon
Institute submitted a report to the People's Court stating that Dela Rama suffered
from a minimal, early, unstable type of pulmonary tuberculosis, and chronic
granular pharyngitis. He also recommended that Dela Rama continue his stay in the
sanatorium for purposes of proper management, treatment and regular periodic
radiographic check-up up of his illness.23chanrobleslaw
Dela Rama re-applied for bail on the grounds of poor health, but the People Court
rejected his petition for bail was again rejected. Instead, it ordered that Dela Rama be
further treated at the Quezon Institute, and that the Medical Director of the Quezon
Institute submit monthly reports on the patient's condition.
Acting on Dela Rama's second petition for certiorari, this Court ruled that the
People's Court had acted with grave abuse of discretion by refusing to release Dela
Rama on bail. It reasoned out as follows:ChanRoblesVirtualawlibrary
The fact that the denial by the People's Court of the petition for bail is accompanied
by the above quoted order of confinement of the petitioner in the Quezon Institute
for treatment without the letter's consent, does not in any way modify or qualify the
denial so as to meet or accomplish the humanitarian purpose or reason underlying
the docfrine adopted by modern trend of courts decision which permit bail to
prisoners, irrespective of the nature and merits of the charge against them, if their
continuous confinement during the pendency of their case would be injurious to
their health or endanger their life.
xxxx
Considering the report of the Medical Director of the Quezon Institute to the effect
that the petitioner "is actually suffering from minimal, early, unstable type of
pulmonary tuberculosis, and chronic, granular pharyngitis," and that in said
institute they "have seen many similar cases, later progressing into advance stages
when treatment and medicine are no longer of any avail;" taking into consideration
that the petitioner's previous petition for bail was denied by the People's Court on
the ground that the petitioner was suffering from quieseent and not active
tuberculosis, and the implied purpose of the People's Court in sending the petitioner
to the Quezon Institute for clinical examination and diagnosis of the actual condition
of his lungs, was evidently to verify whether the petitioner is suffering from active
tuberculosis, in order to act accordingly in deciding his petition for bail; and
considering further that the said People's Court has adopted and applied the well-
established doctrine cited in our above quoted resolution, in several cases, among
them, the cases against Pio Duran (case No. 3324) and Benigno Aquino (case No.
3527), in which the said defendants were released on bail on the ground that they
were ill and their continued confinement in New Bilibid prison would be
injurious to their health or endanger their life; it is evident and we consequently
hold that the People's Court acted with grave abuse of discretion in refusing to
release the petitioner on bail. (Emphasis ours).
Contrary to what the People insinuated in its motion, there has been no Court
decision expressly abandoning Dela Rama. That the amendments to Rule 114 did not
incorporate the pronouncement in Dela Rama (that bail may be granted if continued
confinement in prison would be injurious to their health or endanger their life) did
not ipso facto mean that the Court was precluding an accused from citing
humanitarian considerations as a ground for bail.
In United States v. Jones,24 the United States Circuit Court held that [w]here an
application for bail showed that the prisoner's health was bad, his complaint
pulmonary, and that, in the opinion of his physician, confinement during the
summer might so far increase his disorder as to render it ultimately dangerous, x x x
[t]he humanity of our laws, not less than the feelings of the court, favor the liberation
of a prisoner upon bail under such circumstances. According to the court, it is not
necessary that the danger which may arise from his confinement should be either
immediate or certain. If, in the opinion of a skillful physician, the nature of his
disorder is such that the confinement must be injurious and may be fatal, the
prisoner "ought to be bailed."
I also point out that per the testimony of Dr. Servillano, the facilities of the PNP
General Hospital (where Enrile had been detained) were inadequate to address
emergency situations, such as when Enrile's condition suddenly worsens. Thus,
Enrile's continued confinement at this hospital endangered his life.
While it could be argued that Enrile could have been transferred to another, better-
equipped, hospital, this move does not guarantee that his health would improve.
The dangers associated with a prolonged hospital stay were revealed in court by the
government's own doctor, Dr. Gonzales. To directly quote from the
records:ChanRoblesVirtualawlibrary
AJ QUIROZ:
Q: Being confined in a hospital is also stressful, right?
DIRECTOR GONZALES:
A: Yes, your Honor, you can also acquire pneumonia, hospital intensive
pneumonia, if you get hospital acquired pneumonia, these are bacteria or
micro organisms that can hit you, such that we don't usually confine a
patient.
If it is not really life threatening, such that it is better to have a community

acquired pneumonia, because you don't have to use sophisticated antibiotics.
But if you have a prolonged hospital stay, definitely, you would get the
bacteria in there, which will require a lot of degenerational antibiotics.
x x x x25cralawredcralawred
I therefore reiterate, to the point of repetition, that Enrile is already 91- years old, and
his immune system is expectedly weak. His body might not adjust anymore to
another transfer to a different medical facility.
To be sure, Enrile's medical condition was not totally unknown to the

prosecution. To recall, Enrile filed his Motion for Detention at the PNP General
Hospital and his Motion to Fix Bail before the Sandiganbayan on July 4, 2014 and July
7, 2014, respectively. In the former motion, Enrile claimed that that "his advanced
age and frail medical condition" merited hospital arrest in the Philippine National
Police General Hospital under such conditions that may be prescribed by the
Sandiganbayan. He additionally prayed that in the event of a medical emergency
that cannot be addressed by the Philippine National Police General Hospital, he may
be allowed to access an outside medical facility. In his motion to fix bail, Enrile
argued that his age and voluntary surrender were mitigating and extenuating
circumstances. The Office of the Ombudsman filed its Opposition to the Motion to
Fix Bail on July 9, 2014; the prosecution also submitted its Opposition to the Motion
for Detention at the PNP General Hospital. To be sure, the prosecution had not been
kept in the dark as regards the medical condition of Enrile.
I also submit, on the matter of evasion, that we can take judicial notice that Enrile
had been criminally charged in the past and not once did he attempt to evade the
jurisdiction of the courts; he submitted himself to judicial jurisdiction and met the
cases against him head-on.26chanrobleslaw
The People's insinuation that Enrile has shown "propensity to take exception to the
laws and rules that are otherwise applicable to all, perhaps out of a false sense of
superiority or entitlement" due to his refusal to enter a plea before the
Sandiganbayan; his act of questioning the insufficiency of the details of his
indictment; a motion to fix bail that he filed instead of a petition for bail; and his act of
seeking detention in a hospital instead of in a regular facility, were uncalled for.
Enrile was well within his right to avail of those remedies or actions since they were
not prohibited by the Rules.
We are well aware that Enrile, after posting bail, immediately reported for work in
the Senate. This circumstance, however, does not ipso facto mean that he is not
suffering from the ailments we enumerated above (as found and testified to by the
physicians).
To be fair, the majority did not hold that Enrile was so weak and ill that he was
incapacitated and unable to perform his duties as Senator; it merely stated that he
should be admitted to bail due to his old age and ill health.
Surely, one may be ill, and yet still opt to report for work. We note that Enrile told
the media that he reported to work "to earn my pay," adding that, "I will perform my
duty for as long as I have an ounce of energy."27 If Enrile chose to continue reporting
for work despite his ailments, that is his prerogative.
Misplaced reliance on the equal protection clause
Contrary to the Ombudsman's claim, the grant of provisional liberty to Enrile did
not violate the equal protection clause under the Constitution.
The guarantee of equal protection of the law is a branch of the right to due process
embodied in Article III, Section 1 of the Constitution. It is rooted in the same concept
of fairness that underlies the due process clause. In its simplest sense, it requires
equal treatment, i.e., the absence of discrimination, for all those under the same
situation.28chanrobleslaw
In Biraogo v. Philippine Truth Commission of 2010,29 the Court explained this concept as
x x x [E]qual protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly situated individuals in a
similar manner. The purpose of the equal protection clause is to secure every person
within a state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution through the
state's duly constituted authorities. In other words, the concept of equal justice
under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a
legitimate governmental objective.
Hence, any claim of violation of the equal protection clause must convincingly show
that there exists a classification that is blatantly arbitrary or capricious, and that there
is no rational basis for the differing treatment. The present motion for
reconsideration had not shown that there were other nonagenarian charged with a
capital offense who are currently behind bars.
We note in this regard that Resolution No. 24-4-10 (Re: Amending and Repealing
Certain Rules and Sections of the Rules on Parole and Amended Guidelines for
Recommending Executive Clemency of the 2006 Revised Manual of the Board of
Pardons and Parole) directs the Board to recommend to the President the grant of
executive clemency of, among other, inmates who are seventy (70) years old and
above whose continued imprisonment is inimical to their health as recommended
by a physician of the Bureau of Corrections Hospital and certified under oath by a
physician designated by the Department of Health. If convicted persons (i.e.,
persons whose guilt have been proven with moral certainty) are allowed to be
released on account of their old age and health, then there is no reason why a mere
accused could not be released on bail based on the same grounds.
The Joint Resolution of the Ombudsman did nor show any direct link of Enrile to the so-
called PDAF scam
As the ponente of another Enrile case, I also made a painstaking cross-reference to the
144-page Joint Resolution of the Office of the Ombudsman dated March 28, 2014
(which became the basis of Enrile's indictment before the Sandiganbayan), but did
not see anything there to show that Enrile received kickbacks and/or commissions
from Napoles or her representatives.
This Joint Resolution contained an enumeration of the amounts of Special Allotment

Release Order (SARO) released by the DBM; the projects and activities; the intended
beneficiaries/LGUs; the total projects/activities cost; the implementing agency; the
project partners/NGOs; the disbursement vouchers and their respective amounts
and dates; the check numbers; the paying agencies/claimant or payee; the
signatories of the vouchers; and the signatories of the Memorandum of Agreement
(MOA).
Notably, Enrile's signature did not appear in any of the documents listed by the
prosecution. The sworn statements of the so-called whistleblowers, namely Benhur
Luy, Marina Sula, Merlina Suas, as well as Ruby Tuason's Counter-Affidavit, also
did not state that Enrile personally received money, rebates, kickbacks or
commissions. In her affidavit, Tuason also merely presumed that whatever Reyes "was
doing was with Senator Enrile's blessing" since there were occasions when "Senator
Enrile would join us for a cup of coffee when he would pick her up." Luy's records
also showed that that the commissions, rebates, or kickbacks amounting to at least
P172,834,500.00 (the amount alleged in the plunder charge) were received by either
Reyes or Tuason.
My findings were verified by recent news reports stating that the prosecutors
admitted that they had no evidence indicating that Enrile personally received
kickbacks from the multi-billion-peso pork barrel scam during the oral summation
for the petition to post bail of alleged pork scam mastermind Janet Lim-Napoles
before the Sandiganbayan Third Division. These reports also stated that prosecutor
Edwin Gomez admitted that the endorsement letters identifying the Napoles-linked
foundations as the beneficiaries of Enrile's PDAF were not signed by Enrile (Gomez
said six of the endorsement letters were signed by Reyes while the rest were signed
by Enrile's other chief of staff, Atty. Jose Antonio Evangelista).30chanrobleslaw
I make it clear that I am not in any way prejudging the case against Enrile before the
Sandiganbayan. I am simply pointing out that based on the records available to me as
the ponente of a related Enrile case, there was no showing that Enrile received
kickbacks or commissions relating to his PDAF. Whether Enrile conspired with his
co-accused is a matter that needs to be threshed out by the Anti-Graft Court.
WHEREFORE, premises considered, I vote to DENY the present motion for

reconsideration.
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of
the Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY.
LEVITO D. BALIGOD, Respondents.
DECISION
CARPIO, J.:
present but without the right to examine or crossexamine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents
Office of the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the
Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod
(Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been
resolved with finality; and (2) this Courts declaration that petitioner Senator Jinggoy
Ejercito Estrada (Sen. Estrada)was denied due process of law, and that the Order of
the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013
and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged
27 March 2014 Order are void.
OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D.
Baligod v. Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder
as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4 entitled
Field Investigation Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-
Estrada, et al., refers to the complaint for Plunder as defined underRA No. 7080 and
for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-
13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed,
among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and
for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen.
Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estradas co-respondents in the two complaints filed their counter-
affidavits between 9 December 2013 and 14 March 2014.5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and
Other Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for
copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other
respondents and/or additional witnesses for the Complainants.6
Sen. Estradas request was made "[p]ursuant to the right of a respondent to examine
the evidence submitted by the complainant which he may not have been furnished
(Section 3[b], Rule 112 of the Rules of Court) and to have access to the evidence on
record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman)."7
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313.
The pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining to
Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman] do not entitle respondent [Sen.
Estrada]to be furnished all the filings of the respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaintshall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause
xxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter
affidavit and that of his witnesses and other supporting documents relied
upon for his defense. The counter affidavits shall be subscribed and sworn to
and certified as provided in paragraph (a) of this section, with copies thereof
furnished by him to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules
of Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative
Order No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue
an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondents to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof
of service thereof on the complainant. The complainant may file reply
affidavits within ten (10) days after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to
furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and
documents; and this Office complied with this requirement when it furnished [Sen.
Estrada] with the foregoing documents attached to the Orders to File Counter-
Affidavit dated 19 November 2013 and 25 November 2013.
It is to be noted that there is noprovision under this Offices Rules of Procedure
which entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court
as well as the Rules of Procedure of the Office of the Ombudsman, the respondents
are only required to furnish their counter-affidavits and controverting evidence to
the complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based
on whatever rights he believes [that] he is entitled to or those that may be derived
from the phrase "due process of law." Thus, this Office cannot grant his motion to be
furnished with copies of all the filings by the other parties. Nevertheless, he should
be furnished a copy of the Reply of complainant NBI as he is entitled thereto under
the rules; however, as of this date, no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and
Other Filingsis DENIED. He is nevertheless entitled to be furnished a copy of the
Reply if complainant opts to file such pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-
0397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and his
co-respondents with one count of plunder and 11 counts of violation of Section 3(e)
of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint
Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the
issuance of a new resolution dismissing the charges against him. Without filing a
Motion for Reconsideration of the Ombudsmans 27 March 2014 Order denying his
Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and
sought to annul and set aside the 27 March 2014 Order.
THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER
DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen. Estrada also
claimed that under the circumstances, he has "no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, except through this
Petition."11Sen. Estrada applied for the issuance of a temporary restraining order
and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally,
Sen. Estrada asked for a judgment declaring that (a) he has been denied due process
of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as
the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and
affected bythe issuance of the 27 March 2014 Order, are void.12
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and
OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits
of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura,
and Alexis Sevidal, and directing him to comment thereon within a non-extendible
period of five days fromreceipt of the order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived
him of his right to procedural due process, and he has filed the present Petition
before thisCourt. The Ombudsman denied Sen. Estradas motion to suspend in an
Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.
As of 2 June 2014,the date of filing of the Ombudsmans Comment to the present
Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished to
him. On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 denying, among other motions filed by the other respondents,
Sen. Estradas motion for reconsideration dated 7 April 2014. The pertinent portion
of the 4 June 2014 Joint Order stated:
While it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidals affidavits was denied by Order
dated 27 March 2014 and before the promulgation of the assailed Joint Resolution,
this Office thereafter reevaluated the request and granted it byOrder dated 7 May
2014 granting his request. Copies of the requested counter-affidavits were appended
to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.
This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a period of
five days from receipt of the 7 May 2014 Order to formally respond to the above-
named co-respondents claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived of
his right to procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Officeof the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF
LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY
IN THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY
INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty.
Baligod stated that Sen. Estradas resort to a Petition for Certiorari under Rule 65 is
improper. Sen. Estrada should have either filed a motion for reconsideration of the
27 March 2014 Order or incorporated the alleged irregularity in his motion for
reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of
Sen. Estradas right to due process because there is no rule which mandates that a
respondent such as Sen. Estrada be furnished with copies of the submissions of his
corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment.
Sen. Estrada insisted that he was denied due process. Although Sen. Estrada
received copies of the counter-affidavits of Cunanan, Amata, Relampagos,
Buenaventura, Figura, Sevidal, as well as one of Tuasons counter-affidavits,
heclaimed that he was not given the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;
e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013
(to the FIO Complaint);
f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to
the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14
March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013;
and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen.
Estrada argues that the Petition isnot rendered moot by the subsequent
issuance of the 7 May 2014 Joint Order because there is a recurring violation
of his right to due process. Sen. Estrada also insists that there is no forum
shopping as the present Petition arose from an incident in the main
proceeding, and that he has no other plain, speedy, and adequate remedy in
the ordinary course of law. Finally, Sen. Estrada reiterates his application for
the issuance of a temporary restraining order and/or writ of preliminary
injunction to restrain public respondents from conducting further
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
This Courts Ruling
Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014
Order of Sen. Estradas Request did not constitute grave abuse of discretion. Indeed,
the denial did not violate Sen. Estradas constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a
respondent with copies of the counter-affidavits of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of
the Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation
Section 3. Procedure. The preliminary investigation shall be conducted in the
following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause. They shall be in such
number of copies as there are respondents, plus two (2) copies for the official
file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy of
the complaint and its supporting affidavits and documents. The respondent
shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense. If the
evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available
for examination, copying, or photographing at the expense of the requesting
party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting documents
relied upon for his defense. The counter-affidavits shall be subscribed and
sworn to and certified as provided in paragraph (a) of this section, with copies
thereof furnished by him to the complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the investigating
officer shall resolve the complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are facts and issues to
be clarified from a party ora witness. The parties can be present at the hearing
but without the right to examine or cross-examine. They may, however,
submit to the investigating officer questions which may be asked to the party
or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for
trial. Section 4. Resolution of investigating prosecutor and its review. If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman orhis deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but
his recommendation is disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information against the respondent,
or direct any other assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution
of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. From the Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7, Rule II: Procedure in Criminal Cases
Section 1. Grounds. A criminal complaint may be brought for an offense in
violation of R.A. 3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII,
Chapter II, Section 2 of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to office.
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction
over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation
may be conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary
investigations; or
5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in
the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the
following provisions:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue
an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof
of service thereof on thecomplainant. The complainant may file reply
affidavits within ten (10) days after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer
may consider the comment filed by him, if any, as his answer to the
complaint. In any event, the respondent shall have access to the evidence on
record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained. If respondent
desires any matter in the complainants affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning
in the manner provided in paragraph (f) of this section.
e) If the respondent cannot be served with the order mentioned in paragraph
6 hereof, or having been served, does not comply therewith, the complaint
shall be deemed submitted for resolution on the basis of the evidence on
record.
f) If, after the filing of the requisite affidavits and their supporting evidences,
there are facts material to the case which the investigating officer may need to
be clarified on, he may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be present but without the right to
examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to
be asked by the investigating officer or a party shall be reduced into writing
and served on the witness concerned who shall be required to answer the
same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating
officer shall forward the records of the case together with his resolution to the
designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other
cases.
xxxx
Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution
as finally approved by the Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration or
reinvestigation of anapproved order or resolution shall be allowed, the same to be
filed within fifteen (15) days from notice thereof with the Office of the Ombudsman,
or the proper deputy ombudsman as the case may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing
of the corresponding Information in court on the basis of the finding of probable
cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada, however,
fails to specify a law or rule which states that it is a compulsory requirement of due
process in a preliminary investigation that the Ombudsman furnish a respondent
with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of
the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estradas claim. What the
Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman
to furnish the respondent with a copy of the complaint and the supporting affidavits
and documents at the time the order to submit the counter-affidavit is issued to the
respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of the
Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant
and his witnesses] have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing
the respondent to submit, within ten (10) days from receipt thereof, his counter-
affidavits x x x." At this point, there is still no counter-affidavit submitted by any
respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the
complainant. No grave abuse of discretion can thus be attributed to the Ombudsman
for the issuance of the 27 March 2014 Order which denied Sen. Estradas Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent "shall have access to the evidence on
record," this provision should be construed in relation to Section 4(a) and (b) of the
same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states
that "theinvestigating officer shall require the complainant or supporting witnesses
to execute affidavits to substantiate the complaint." The "supporting witnesses" are
the witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer shall issue an order
attaching thereto a copy of the affidavits and all other supporting documents,
directing the respondent" tosubmit his counter-affidavit. The affidavits referred to in
Section 4(b) are the affidavits mentioned in Section
4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the
complainant and his supporting witnesses. The provision in the immediately
succeeding Section 4(c) of the same Rule II that a respondent shall have "access to the
evidence on record" does not stand alone, but should be read in relation to the
provisions of Section 4(a and b) of the same Rule II requiring the investigating officer
to furnish the respondent with the "affidavits and other supporting documents"
submitted by "the complainant or supporting witnesses." Thus, a respondents
"access to evidence on record" in Section 4(c), Rule II of the Ombudsmans Rules of
Procedure refers to the affidavits and supporting documents of "the complainant or
supporting witnesses" in Section 4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides
that "[t]he respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense." A respondents right to examine refers only to "the evidence submitted by
the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under
Rule II of the Ombudsmans Rules of Procedure, there is no requirement whatsoever
that the affidavits executed by the corespondents should be furnished to a
respondent. Justice Velascos dissent relies on the ruling in Office of the
Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a different set
of rules of procedure and standards apply. Sen. Estradas Petition, in contrast,
involves the preliminary investigation stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules of Procedure of the Office of the
Ombudsman applies in the Reyes case, while Rule II on the Procedure in Criminal
Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen.
Estradas Petition. In both cases, the Rules of Court apply in a suppletory character
or by analogy.16
In the Reyescase, the complainant Acero executed an affidavit against Reyes and
Pealoza, who were both employees of the Land Transportation Office. Pealoza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted
his counter-affidavit in another case before the Ombudsman as it involved the same
parties and the same incident. None of the parties appeared during the preliminary
conference. Pealoza waived his right to a formal investigation and was willing to
submit the case for resolution based on the evidence on record. Pealoza also
submitted a counter-affidavit of his third witness. The Ombudsman found Reyes
guilty of grave misconduct and dismissed him from the service. On the other hand,
Pealoza was found guilty of simple misconduct and penalized with suspension
from office without pay for six months. This Court agreed with the Court of
Appeals finding that Reyes right to due process was indeed violated. This Court
remanded the records of the case to the Ombudsman, for two reasons: (1) Reyes
should not have been meted the penalty of dismissal from the service when the
evidence was not substantial, and (2) there was disregard of Reyes right to due
process because he was not furnished a copy of the counter-affidavits of Pealoza
and of Pealozas three witnesses. In the Reyes case, failure to furnish a copy of the
counter-affidavits happened in the administrative proceedings on the merits, which
resulted in Reyes dismissal from the service. In Sen. Estradas Petition, the denial of
his Request happened during the preliminary investigation where the only issue is
the existence of probable cause for the purpose of determining whether an
information should be filed, and does not prevent Sen. Estrada from requesting a
copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial.
We should remember to consider the differences in adjudicating cases, particularly
an administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary
depending on whether the cases to which they are meant to apply are criminal, civil
or administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction;in civil actions and proceedings, preponderance of evidence,
as support for a judgment; and in administrative cases, substantial evidence, as basis
for adjudication. In criminal and civil actions, application of the Rules of Court is
called for, with more or less strictness. In administrative proceedings, however, the
technical rules of pleadingand procedure, and of evidence, are not strictly adhered
to; they generally apply only suppletorily; indeed, in agrarian disputes application
of the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for
the determination of probable cause, and "probable cause merely implies probability
of guilt and should be determined in a summary manner. A preliminary
investigation is not a part of the trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence."18Thus, the rights of a respondent in
a preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief
that a crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to
"engender a well founded belief" as tothe fact of the commission of a crime and the
respondent's probable guilt thereof. A preliminary investigation is not the occasion
for the full and exhaustive display of the parties evidence; it is for the presentation
of such evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. We are in accord
with the state prosecutors findings in the case at bar that there exists prima facie
evidence of petitioners involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioners argument that the testimonies of Galarion
and Hanopol are inadmissible as to him since he was not granted the opportunity of
cross-examination.
present but without the right to examine or cross-examine. Thus, even if petitioner
was not given the opportunity to cross-examine Galarion and Hanopol atthe time
they were presented to testify during the separate trial of the case against Galarion
and Roxas, he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the
trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by
the trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and
the trial court can rule on the admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of Galarion and Hanopol for
purposes of cross-examination.19 (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital
portion of the Court of Appeals reasoning. This Court quoted from the Court of
Appeals decision: "x x x [A]dmissions made by Pealoza in his sworn statement are
binding only on him. Res inter alios act a alteri nocere non debet. The rights of a
party cannot be prejudiced by an act, declaration or omission of another." In OMB-C-
C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estradas co-respondents
can in no way prejudice Sen. Estrada. Even granting Justice Velascos argument that
the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-
039720mentioned the testimonies of Sen. Estradas corespondents like Tuason and
Cunanan, their testimonies were merely corroborative of the testimonies of
complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were not
mentioned in isolation from the testimonies of complainants witnesses.
Moreover, the sufficiency of the evidence put forward by the Ombudsman against
Sen. Estrada to establish its finding of probable cause in the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially confirmed by
the Sandiganbayan, when it examined the evidence, found probable cause, and
issued a warrant of arrest against Sen. Estrada on 23 June 2014.
We likewise take exception to Justice Brions assertion that "the due process
standards that at the very least should be considered in the conduct of a preliminary
investigation are those that this Court first articulated in Ang Tibay v. Court of
Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay guidelines for
administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have
absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang
Tibay described as the "fundamental and essential requirements of due process in
trials and investigations of an administrative character."22 These requirements are
"fundamental and essential" because without these, there isno due process as
mandated by the Constitution. These "fundamental and essential requirements"
cannot be taken away by legislation because theyare part of constitutional due
process. These "fundamental and essential requirements" are:
(1) The first of these rights is the right to a hearing, which includes the right of
the party interested or affected to present his own case and submit evidence
in support thereof. x x x.
(2) Not only must the party be given an opportunity to present his case and
adduce evidence tending to establish the rights which he asserts but the
tribunal must consider the evidence presented. x x x.
(3) "While the duty to deliberatedoes not impose the obligation to decide
right, it does imply a necessity which cannot be disregarded, namely, that of
having something to support its decision. A decision with absolutely nothing
to support it is a nullity, x x x."
(4) Not only must there be some evidence to support a finding or conclusion,
but the evidence must be "substantial." "Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act
on its or his own independent consideration of the law and facts of the
controversy, and not simply accept the views of a subordinate in arriving at a
decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions,
render its decision in sucha manner that the parties to the proceeding can
know the various issues involved, and the reasons for the decisions rendered.
The performance of this duty is inseparable from the authority conferred
upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS):
"what Ang Tibay failed to explicitly state was, prescinding from the general
principles governing due process, the requirement of an impartial tribunalwhich,
needless to say, dictates that one called upon to resolve a dispute may not sit as
judge and jury simultaneously, neither may he review his decision on appeal."25 The
GSIS clarification affirms the non applicability of the Ang Tibay guidelines to
preliminary investigations in criminal cases: The investigating officer, which is the
role that the Office of the Ombudsman plays in the investigation and prosecution of
government personnel, will never be the impartial tribunal required in Ang Tibay, as
amplified in GSIS. The purpose of the Office of the Ombudsman in conducting a
preliminary investigation, after conducting its own factfinding investigation, is to
determine probable cause for filing an information, and not to make a final
adjudication of the rights and obligations of the parties under the law, which is the
purpose of the guidelines in Ang Tibay. The investigating officer investigates,
determines probable cause, and prosecutes the criminal case after filing the
corresponding information.
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person
from the travails of a needless prosecution.26 The Ombudsman and the prosecution
service under the control and supervision of the Secretary of the Department of
Justice are inherently the fact-finder, investigator, hearing officer, judge and jury of
the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing
unconstitutional with this procedure because this is merely an Executive function, a
part of the law enforcement process leading to trial in court where the requirements
mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the
procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay,
as amplified in GSIS, should apply to preliminary investigations will mean that all
past and present preliminary investigations are in gross violation of constitutional
due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present
case when he filed his Request, is not yet an accused person, and hence cannot
demand the full exercise of the rights of an accused person:
A finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt. As well put in Brinegar v. United States,
while probable cause demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding
of probable cause, wealso hold that the DOJ Panel did not gravely abuse its
discretion in refusing to call the NBI witnesses for clarificatory questions. The
decision to call witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand
already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part of trial and
it is only in a trial where an accused can demand the full exercise of his rights, such
as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been
adduced to establish probable cause and clarificatory hearing was unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the "rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend upon the provisions of
law by which such rights are specifically secured, rather than upon the phrase due
process of law." This reiterates Justice Jose P. Laurels oft-quoted pronouncement in
Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not
constitutional." In short, the rights of a respondent ina preliminary investigation are
merely statutory rights, not constitutional due process rights. An investigation to
determine probable cause for the filing of an information does not initiate a criminal
action so as to trigger into operation Section 14(2), Article III of the Constitution.30 It
is the filing of a complaint or information in court that initiates a criminal action.31
The rights to due process in administrative cases as prescribed in Ang Tibay,as
amplified in GSIS, are granted by the Constitution; hence, these rights cannot be
taken away by merelegislation. On the other hand, as repeatedly reiterated by this
Court, the right to a preliminary investigation is merely a statutory right,32 not part
of the "fundamental and essential requirements" of due process as prescribed in Ang
Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by
legislation. The constitutional right of an accused to confront the witnesses against
him does not apply in preliminary investigations; nor will the absence of a
preliminary investigation be an infringement of his right to confront the witnesses
against him.33 A preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause to a
fair trial.34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than
the evidenceneeded in a preliminary investigation to establish probable cause, or to
establish the existence of a prima facie case that would warrant the prosecution of a
case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than bare suspicion, or less than evidence which would
justify . . . conviction." In the United States, from where we borrowed the concept of
probable cause,35 the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities.These are not technical; they are the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal technicians, act.
The standard of proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for
belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the
Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would
justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a
century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshalls time, at
any rate, it has come to mean more than bare suspicion: Probable cause exists where
"the facts and circumstances within their [the officers] knowledge and of which they
had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that" an offense has been or is being
committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime. They
also seek to give fair leeway for enforcing the law in the communitys protection.
Because many situations which confront officers in the course of executing their
duties are more or less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable cause is a practical,
non technical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly
hamper law enforcement. To allow less would be to leave law-abiding citizens at the
mercy of the officers whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and
should be held for trial. A preliminary investigation is required before the
filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without
regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a
warrant of arrest or a commitment order, if the accused has already been
arrested, shall be issued and that there is a necessity of placing the respondent
under immediate custody in order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search
warrant shall be issued, and only upon probable cause in connection with one
specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the things
to be seized which may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based
only on the likelihood, or probability, of guilt. Justice Brion, in the recent case of
Unilever Philippines, Inc. v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that
more likely than not, a crime has been committed and there is enough reason to
believe that it was committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing absolute certainty of
guilt. What is merely required is "probability of guilt." Its determination, too, does
not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of
constitutes the very offense charged.
It is also important to stress that the determination of probable cause does not
depend on the validity or merits of a partys accusation or defense or on the
admissibility or veracity of testimonies presented. As previously discussed, these
matters are better ventilated during the trial proper of the case. As held in
Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted. x x x. The term does not mean "actual or positive cause"
nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of the
charge. (Bold facing and italicization supplied)
Justice Brions pronouncement in Unilever that "the determination of probable cause
does not depend on the validity or merits of a partys accusation or defense or on the
admissibility or veracity of testimonies presented" correctly recognizes the doctrine
in the United States that the determination of probable cause can rest partially, or
even entirely, on hearsay evidence, as long as the person making the hearsay
statement is credible. In United States v. Ventresca,38 the United States Supreme
Court held:
While a warrant may issue only upon a finding of "probable cause," this Court has
long held that "the term probable cause . . . means less than evidence which would
justify condemnation," Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a
finding of "probable cause" may rest upon evidence which is not legally competent
in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court
stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference
between the two things tobe proved (guilt and probable cause), as well as between
the tribunals which determine them, and therefore a like difference in the quanta
and modes of proof required to establish them." Thus, hearsay may be the basis for
issuance of the warrant "so long as there . . . [is] a substantial basis for crediting the
hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we
recognized that "an affidavit may be based on hearsay information and need not
reflect the direct personal observations of the affiant," so long as the magistrate is
"informed of some of the underlying circumstances" supporting the affiants
conclusions and his belief that any informant involved "whose identity need not be
disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at
378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is "substantial evidence" which
cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the
same as substantial evidence because substantial evidence excludes hearsay
evidence while substantial basis can include hearsay evidence. To require the
application of Ang Tibay, as amplified in GSIS, in preliminary investigations will
change the quantum of evidence required in determining probable cause from
evidence of likelihood or probability of guilt to substantial evidence of guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed
rights of an accused and the right to a preliminary investigation. To treat them the
same will lead toabsurd and disastrous consequences.
All pending criminal cases in all courts throughout the country will have to be
remanded to the preliminary investigation level because none of these will satisfy
Ang Tibay, as amplified in GSIS. Preliminary investigations are conducted by
prosecutors, who are the same officials who will determine probable cause and
prosecute the cases in court. The prosecutor is hardly the impartial tribunal
contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be necessary if Ang
Tibay, as amplified in GSIS, were to be applied. This will require a new legislation.
In the meantime, all pending criminal cases in all courts will have to be remanded
for reinvestigation, to proceed only when a new law is in place. To require Ang
Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily
change the concept of preliminary investigation as we know it now. Applying the
constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary
investigation will necessarily require the application of the rights of an accused in
Section 14(2), Article III of the 1987 Constitution. This means that the respondent can
demand an actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary
investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with
pending preliminary investigations but even to those convicted by final judgment
and already serving their sentences. The rule is well-settled that a judicial decision
applies retroactively if it has a beneficial effect on a person convicted by final
judgment even if he is already serving his sentence, provided that he is not a
habitual criminal.39 This Court retains its control over a case "until the full
satisfaction of the final judgment conformably with established legal
processes."40 Applying Ang Tibay, as amplified in GSIS, to preliminary
investigations will result in thousands of prisoners, convicted by final judgment,
being set free from prison.
Second. Sen. Estradas present Petition for Certiorari is premature.
Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the rigors of a
criminal prosecution incourt" because there is "a pending question regarding the
Ombudsmans grave abuse of its discretion preceding the finding of a probable
cause to indict him." Restated bluntly, Justice Velascos dissent would like this Court
to conclude that the mere filing of the present Petition for Certiorari questioning the
Ombudsmans denial of Sen. Estradas Request should have, by itself, voided all
proceedings related to the present case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estradas Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnishedSen.
Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina
Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and
AlexisSevidal, and directed him to comment within a non-extendible period of five
days from receipt of said Order. Sen. Estrada did not file any comment, as noted in
the 4 June 2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen.
Estradas Motion for Reconsideration ofits 28 March 2014 Joint Resolution which
found probable cause toindict Sen. Estrada and his corespondents with one count of
plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4
June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of
its grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named respondents claims."
We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order
inOMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this Petition for
Certiorari before this Court. Sen. Estradas resort to a petitionfor certiorari before this
Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The
present Petition for Certiorari is premature.
A motion for reconsideration allows the public respondent an opportunity to correct
its factual and legal errors. Sen. Estrada, however, failed to present a compelling
reason that the present Petition falls under the exceptions41to the general rule that
the filing of a motion for reconsideration is required prior to the filing of a petition
for certiorari. This Court has reiterated in numerous decisions that a motion for
reconsideration is mandatory before the filing of a petition for certiorari.42
Justice Velascos dissent faults the majority for their refusal to apply the Reyes case
to the present Petition. Justice Velascos dissent insists that "this Court cannot neglect
to emphasize that, despite the variance in the quanta of evidence required, a uniform
observance of the singular concept of due process is indispensable in all
proceedings."
As we try to follow Justice Velascos insistence, we direct Justice Velasco and those
who join him in his dissent to this Courts ruling in Ruivivar v. Office of the
Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no longer help one
who had been given ample opportunity to be heard but who did not take full
advantage of the proffered chance."
The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar
administratively liable for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand. Petitioner filed a motion for
reconsideration of the decision on the ground that she was not furnished copies of
the affidavits of the private respondents witnesses. The Ombudsman subsequently
ordered that petitioner be furnished with copies of the counter-affidavits of private
respondents witnesses, and that petitioner should "file, within ten (10) days from
receipt of this Order, such pleading which she may deem fit under the
circumstances." Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the
deprivation of her right to due process or cure the irregularity in the Ombudsmans
decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondents witnesses
afterthe Ombudsman rendered a decision against her. We disposed of petitioners
deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the
petitioner failed to exhaust all the administrative remedies available to her before the
Ombudsman. This ruling is legallycorrect as exhaustion of administrative remedies
is a requisite for the filing of a petition for certiorari. Other than this legal
significance, however, the ruling necessarily carries the direct and immediate
implication that the petitioner has been granted the opportunity to be heard and has
refused to avail of this opportunity; hence, she cannot claim denial of due process. In
the words of the CA ruling itself: "Petitioner was given the opportunity by public
respondent to rebut the affidavits submitted by private respondent. . . and had a
speedy and adequate administrative remedy but she failed to avail thereof for
reasons only known to her."
For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due
process embody linked and related principles. The "exhaustion" principle applies
when the ruling court or tribunal is not given the opportunity tore-examine its
findings and conclusions because of an available opportunity that a party seeking
recourse against the court or the tribunals ruling omitted to take. Under the concept
of "due process," on the other hand, a violation occurs when a court or tribunal rules
against a party without giving him orher the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while
due process is considered from the point of view of the litigating party against
whom a ruling was made. The commonality they share is in the same"opportunity"
that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioners counter-statement offacts was denied the
Ombudsman; hence, the petitioner is barred from seeking recourse at the CA
because the ground she would invoke was not considered at all at the Ombudsman
level. At the same time, the petitioner who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondents witnesses was not denied
and cannot now claim denial of due process because she did not take advantage of
the opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondents failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence
on record. The Ombudsman acted on this motion by issuing its Order of January 17,
2003 belatedly furnishing her with copies of the private respondents witnesses,
together with the "directive to file, within ten (10) days from receipt of this Order,
such pleading which she may deem fit under the circumstances."
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner
simply chose to file a "Manifestation" where she took the position that "The order of
the Ombudsman dated 17 January 2003 supplying her with the affidavits of the
complainant does not cure the 04 November 2002 order," and on this basis prayed
that the Ombudsmans decision "be reconsidered and the complaint dismissed for
lack of merit."
For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioners
motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the
petitioners failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by this Office with copies
of the affidavits, which she claims she has not received. Furthermore, the respondent
has been given the opportunity to present her side relative thereto, however, she
chose not to submit countervailing evidence orargument. The respondent, therefore
(sic), cannot claim denial of due process for purposes of assailing the Decision issued
in the present case. On this score, the Supreme Court held in the case of People v.
Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had
the opportunity to present his side". This becomes all the more important since, as
correctly pointed out by the complainant, the decision issued in the present case is
deemed final and unappealable pursuant to Section 27 of Republic Act 6770, and
Section 7, Rule III of Administrative Order No. 07. Despite the clear provisions of the
law and the rules, the respondent herein was given the opportunity not normally
accorded, to present her side, but she opted not to do so which is evidently fatal to
her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioners cause
is a lost one, not only for her failure to exhaust her available administrative remedy,
but also on due process grounds. The law can no longer help one who had been
given ample opportunity to be heard but who did not take full advantage of the
proffered chance.45
Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estradas co-respondents were furnished to him beforethe
Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the Ombudsman issued a decision.
Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and
Duterte v. Sandiganbayan47(Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do not stand on all fours with
the present case. In Tatad, this Court ruled that "the inordinate delay in terminating
the preliminary investigation and filing the information [by the Tanodbayan] in the
present case is violative of the constitutionally guaranteed right of the petitioner to
due process and to a speedy disposition of the cases against him."48 The Tanod
bayan took almost three years to terminate the preliminary investigation, despite
Presidential Decree No. 911s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where
the petitioners were merely asked to comment and were not asked to file counter-
affidavits as isthe proper procedure in a preliminary investigation. Moreover, in
Duterte, the Ombudsman took four years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velascos dissent, it becomes more apparent
that Sen. Estradas present Petition for Certiorari is premature for lack of filing of a
motion for reconsideration before the Ombudsman. When the Ombudsman gave
Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the
given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estradas failure cannot in
any way be construed as violation of due process by the Ombudsman, much less of
grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses
not to.
Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.
In his verification and certification of non-forum shopping in the present petition
filed on 7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April
2014 in OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of
probable cause in the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution
prayed that the Ombudsman reconsider and issue a new resolution dismissing the
charges against him. However, in this Motion for Reconsideration, Sen. Estrada
assailed the Ombudsmans 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule
112, Section 4 of the Rules of Court] and principles. A reading of the Joint Resolution
will reveal that various pieces of evidence which Senator Estrada was not furnished
with hence, depriving him of the opportunity to controvert the same were
heavily considered by the Ombudsman in finding probable cause to charge him with
Plunder and with violations of Section 3(e) of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of
New Witnesses and Other Filings," pursuant to the right of a respondent "to examine
the evidence submitted by the complainant which he may not have been furnished"
(Section 3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on
record" (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator
Estrada and the laws vigilance in protecting the rights of an accused, the Special
Panel of Investigators, in an Order dated 27 March 2014, unceremoniously denied
the request on the ground that "there is no provision under this Offices Rules of
Procedure which entitles respondent to be furnished all the filings by the other
parties x x x x." (Order dated 27 March 2013, p. 3)
As such, Senator Estrada was not properly apprised of the evidence offered against
him, which were eventually made the bases of the Ombudsmans finding of
probable cause.50
The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June 2014
Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration
with the Ombudsman the violation of his right to due process, the same issue he is
raising in this petition. In the verification and certification of non-forum shopping
attached to his petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen.
Estrada disclosed the pendency of the present petition, as well as those before the
Sandiganbayan for the determination of the existence of probable cause. In his
petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsmans 27
March 2014 Joint Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding of
probable cause, which he maintains is without legal or factual basis, but also
thatsuch finding of probable cause was premised on evidence not disclosed tohim,
including those subject of his Request to be Furnished with Copiesof Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings
dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint Resolution the
following documents
i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February
2014;
ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;
iii. Francisco B. Figuras Counter-Affidavit dated 08 January 2014;
iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;
v. Gregoria G. Buenaventuras Counter-Affidavit dated 06 March 2014; and
vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy
upstages Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio,
published on 06 March 2014, none of which were ever furnished Sen. Estrada
prior to the issuance of the challenged Joint Resolution, despite written
request.
xxxx
II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT
RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER
DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADAS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL
PROTECTION OF THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estradas comment to the voluminous documents
comprisingthe documents it furnished Sen. Estrada to a "non-extendible" period
offive (5) days, making it virtually impossible for Sen. Estrada to adequately study
the charges leveled against him and intelligently respond to them. The Joint Order
also failed to disclose the existence of other counter-affidavits and failed to furnish
Sen. Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of
probable cause was the "sole issue" he raised before the Ombudsman in his Motion
for Reconsideration dated 7 April 2014 is obviously false.
Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans
4 June 2014 Joint Order which denied his motion for reconsideration of the 28 March
2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order
stated that the Ombudsman "held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to [Sen. Estrada] a period of
five days from receipt of the 7 May 2014 [Joint] Order to formally respond to the
abovenamed co-respondents claims."
Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited tothe fulfillment of the requisites of
litis pendentia.52 To determine whether a party violated the rule against forum
shopping, the most important factor to ask is whether the elements of litis pendentia
are present, or whether a final judgment in one case will amount to res judicatain
another.53Undergirding the principle of litis pendentia is the theory that a party isnot
allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same
matter should not be the subject of controversy in court more than once in order that
possible conflicting judgments may be avoided, for the sake of the stability in the
rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a
recourse that in the usual course and because of its nature and purpose is not
covered by the rule on forum shopping. The exception from the forum shopping
rule, however, is true only where a petition for certiorari is properly or regularly
invoked in the usual course; the exception does not apply when the relief sought,
through a petition for certiorari, is still pending with or has as yet to be decided by
the respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g.,
a motion for reconsideration of the order assailed via a petition for certiorari under
Rule 65, as in the present case. This conclusion is supported and strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the availability
of a remedy in the ordinary course of law precludes the filing of a petition for
certiorari; under this rule, the petitions dismissal is the necessary consequence if
recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in possible
conflicting rulings, or at the very least, to complicated situations, between the RTC
and the Court of Appeals. An extreme possible result is for the appellate court to
confirm that the RTC decision is meritorious, yet the RTC may at the same time
reconsider its ruling and recall its order of dismissal. In this eventuality, the result is
the affirmation of the decision that the court a quo has backtracked on. Other
permutations depending on the rulings of the two courts and the timing of these
rulings are possible. In every case, our justice system suffers as this kind of sharp
practice opens the system to the possibility of manipulation; to uncertainties when
conflict of rulings arise; and at least to vexation for complications other than conflict
of rulings. Thus, it matters not that ultimately the Court of Appeals may completely
agree with the RTC; what the rule on forum shopping addresses are the possibility
and the actuality of its harmful effects on our judicial system.55
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging
violation of due process by the Ombudsman even as his Motion for Reconsideration
raising the very same issue remained pending with the Ombudsman. This is plain
and simple forum shopping, warranting outright dismissal of this Petition.
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its
supporting affidavits and documents, fully complied with Sections 3 and 4 of Rule
112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of
Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the
Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies
of the affidavits of the complainant and affidavits of his supporting witnesses.
Neither of these Rules require the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents. The right of the respondent is
only "to examine the evidence submitted by the complainant," as expressly stated in
Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has
unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of
Criminal Procedure expressly provides that the respondent shall only have the right
to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine." Moreover, Section 4 (a, b and c) of
Rule II of the Ombudsmans Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses.1wphi1 There is no law or rule requiring
the investigating officer to furnish the respondent with copies of the affidavits of his
co-respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents
whom he specifically named, as well as the counteraffidavits of some of other co-
respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in
abeyancethe disposition of the motions for reconsideration because the Ombudsman
granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully
complied with the existing Rules on preliminary investigation and even
accommodated Sen. Estrada beyond what the Rules required. Thus, the
Ombudsman could not be faulted with grave abuse of discretion. Since this is a
Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse
of discretion on the part of the Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as amplified in
GSIS, are not applicable to preliminary investigations which are creations of
statutory law giving rise to mere statutory rights. A law can abolish preliminary
investigations without running afoul with the constitutional requirements of
dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The present procedures
for preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate
with finality rights and obligations of parties, while administrative investigations
governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay,as amplified
in GSIS, requires substantial evidencefor a decision against the respondent in the
administrative case.In preliminary investigations, only likelihood or probability of
guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary
investigations will change the quantum of evidence required to establish probable
cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the
witnesses against him. In preliminary investigations, the respondent has no such
rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the
hearing officer must be impartial and cannot be the fact-finder, investigator, and
hearing officer atthe same time. In preliminary investigations, the same public officer
may be the investigator and hearing officer at the same time, or the fact-finder,
investigator and hearing officer may be under the control and supervisionof the
same public officer, like the Ombudsman or Secretary of Justice. This explains why
Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To
now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental
and essential requirements in preliminary investigations will render all past and
present preliminary investigations invalid for violation of constitutional due process.
This will mean remanding for reinvestigation all criminal cases now pending in all
courts throughout the country. No preliminary investigation can proceeduntil a new
law designates a public officer, outside of the prosecution service, to determine
probable cause. Moreover, those serving sentences by final judgment would have to
be released from prison because their conviction violated constitutional due process.
Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in
OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition.
He should have filed a Motion for R econsideration, in the same manner that he filed
a Motion for Reconsideration of the 15 May 2014 Order denying his motion to
suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will
lie only if there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law against the acts of the public respondent.56 The plain, speedy
and adequate remedy expressly provided by law is a Motion for Reconsideration of
the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure to file a Motion
for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the
Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue
that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition for
Certiorari is not only premature, it also constitutes forum shopping. WHEREFORE,
we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Appellee, v. CHI CHAN LIU A. K. A. CHAN QUE
AND HUI LAO CHUNG A.K.A. LEOFE SENGLAO, Appellants.
DECISION
PERALTA, J.:
For this Courts consideration is the Decision1 dated January 9, 2009 and
Resolution2 dated April 24, 2009 of the Court of Appeals (CA) in CA-G. R. CR HC
No. 00657 affirming the Decision3 dated June 21, 2004 of the Regional Trial Court
(RTC), Branch 44, Mamburao, Occidental Mindoro, in Criminal Case No. Z-1058,
finding appellants guilty beyond reasonable doubt of violating Section 14, Article III,
in relation to Section 21 (a), Article IV of Republic Act (RA) No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended by RA No. 7659.
The facts, as culled from the records, are the following:
At 10:00 a.m. of December 3, 1998, SPO2 Lazaro Paglicawan and SPO3 Isagani
Yuzon, the officers-on-duty at the Philippine National Police (PNP) Station, Looc,
Occidental Mindoro, received a radio message from the Barangay Captain of Ambil
Island, Looc, Maximo Torreliza, that a suspicious looking boat was seen somewhere
within the vicinity of said island.4 Immediately thereafter, the police officers headed
towards the specified location wherein they spotted two (2) boats anchored side by
side, one of which resembled a fishing boat and the other, a speedboat. They noticed
one (1) person on board the fishing boat and two (2) on board the speed boat who
were transferring cargo from the former to the latter. As they moved closer to the
area, the fishing boat hurriedly sped away. Due to the strong waves, the police
officers were prevented from chasing the same and instead, went towards the speed
boat, which seemed to be experiencing engine trouble. On board the speed boat, the
officers found the appellants Chi Chan Liu a.k.a. Chan Que and Hui Lao Chung
a.k.a. Leofe Senglao with several transparent plastic bags containing a white,
crystalline substance they instantly suspected to be the regulated drug,
methamphetamine hydrochloride, otherwise known as shabu. They requested the
appellants to show their identification papers but appellants failed to do so.5 Thus,
the police officers directed appellants to transfer to their service boat and thereafter
towed appellants speed boat to the shore behind the Municipal Hall of Looc,
Occidental Mindoro. On their way, the police officers testified that appellant Chi
Chan Liu repeatedly offered them big, big amount of money which they
ignored.6chanRoblesvirtualLawlibrary
Upon reaching the shore, the police officers led the appellants, together with the
bags containing the crystalline substance, to the police station. In the presence of the
appellants and Municipal Mayor Felesteo Telebrico, they conducted an inventory of
the plastic bags which were forty-five (45) in number, weighing about a kilo
each.7 Again, SPO3 Yuson requested proper documentation from the appellants as
to their identities as well as to the purpose of their entry in the Philippine
territory.8 However, the appellants did not answer any of SPO3 Yusons
questions.9 Immediately thereafter, SPO3 Yuson reported the incident to their
superiors, PNP Provincial Command in San Jose, Occidental Mindoro and PNP
Regional Command IV in Camp Vicente Lim, Calamba, Laguna. The PNP Regional
Director General Reynaldo Acop advised them to await his arrival the following
day.10chanRoblesvirtualLawlibrary
On December 4, 1998, General Acop arrived together with Colonel Damian on a

helicopter. They talked with Mayor Telebrico and the arresting officers and then
brought the appellants with the suspected illegal drugs to Camp Vicente Lim,
Calamba, Laguna, for further investigation.11 There, the appellants and the
suspected prohibited drugs were turned over to Police Inspector Julieto B. Culili, of
the Intelligence and Investigation Division, PNP, Regional Office IV, who attempted
to communicate with the appellants using broken English. According to Inspector
Culili, appellant Chi Chan Liu only kept saying the phrase call China, big money,
giving him a certain cellular phone number.12 He allowed appellants to call said
number in which they spoke with someone using their native language, which he
could not understand.13 Because of this difficulty, Inspector Culili sought the
assistance of Inspector Carlito Dimalanta in finding an interpreter who knew either
Fookien or Cantonese.
On December 5, 1998, the interpreter arrived. With the assistance of said interpreter,
Inspector Culili informed and explained to the appellants their rights under
Philippine laws inclusive of the right to remain silent, the right to counsel, as well as
the right to be informed of the charges against them, and the consequences
thereof.14 Inspector Culili also requested the interpreter to ask the appellants
whether they wanted to avail of said constitutional rights. However, appellants only
kept repeating the phrase big money, call China. Apart from their names, aliases
and personal circumstances, the appellants did not divulge any other
information.15 Inspector Culili, with the assistance of the arresting officers, then
prepared the Booking Sheet and Arrest Report of the appellants, requested for their
physical and medical examination, as well as the laboratory examination of the
white, crystalline substance in the bags seized from them.16 He also assisted the
arresting officers in the preparation of their affidavits.17 According to Inspector
Culili, moreover, he was able to confirm that the appellants are Chinese nationals
from Guandong, China, based on an earlier intelligence report that foreign nationals
on board extraordinary types of vessels were seen along the sealine of Lubang Island
in Cavite, and Quezon Province.18chanRoblesvirtualLawlibrary
Thereafter, Police Inspector Mary Jean Geronimo, PNP Chief Forensic

Chemist/Physical Examiner assigned at the PNP Regional Crime Laboratory Service
Office, Camp Vicente Lim, Laguna conducted an examination of the white,
crystalline substance in the forty-five (45) bags seized from the appellants.19After
performing three (3) tests thereon, she positively confirmed in her Chemistry Report
that the same is, indeed, methamphetamine hydrochloride, otherwise known as
shabu.20chanRoblesvirtualLawlibrary
On December 8, 1998, the Office of the Provincial Prosecutor of Occidental Mindoro

filed an Information21with the RTC of Mamburao, Occidental Mindoro, against
appellants for violation of Section 14, Article III, in relation to Section 21 (a), Article
IV of RA No. 6425 as amended by RA No. 7659, committed as
follows:chanroblesvirtuallawlibrary
That on or about 1:00 oclock in the afternoon of December 3, 1998 at the coast of
Brgy. Tambo, Ambil Island in the Municipality of Looc Province of Occidental
Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused being then the persons not authorized by law conspiring and
mutually helping one another, did then and there wilfully, unlawfully, feloniously
import and bring through the use of sea vessel into the above-mentioned place,
Methamphetamine Hydrochloride known as Shabu contained in forty-five (45) heat-
sealed transparent plastic bags having a total weight of 46,600 grams (46.60
kilograms) placed inside another forty-five (45) separate self-seling (sic) transparent
plastic bags which is prohibited by law, to the damage and prejudice of public
interest.
Appellants pleaded not guilty to the charges against them. Thereafter, trial on the
merits ensued, where the facts earlier stated were testified to by the witnesses for the
prosecution, specifically: SPO2 Paglicawan, SPO3 Yuson, Police Inspector Culili, and
Police Inspector Geronimo.
The testimonies of the witnesses for the defense, namely: Jesus Astorga and
Fernando Oliva, both residents of Ambil Island, Leopoldo S. J. Lozada, a former
Supervising Crime Photographer of the PNP, and Godofredo de la Fuente Robles, a
Member of the Looc Municipal Council, essentially maintain that the subject
crystalline substance was merely recovered by the apprehending police officers from
the house of Barangay Captain Maximo Torreliza and not actually from the speed
boat the appellants were on.22chanRoblesvirtualLawlibrary
The trial court found appellants guilty beyond reasonable doubt in its Decision
dated June 21, 2004, the dispositive portion of which
reads:chanroblesvirtuallawlibrary
WHEREFORE, finding both accused CHI CHAN LIU @ CHAN QUE AND HIU
LAO CHUNG @ LEOFE SENG LAO GUILTY BEYOND REASONABLE DOUBT
OF VIOLATING Section 14, Article III, in relation to Section 21 (a), Article IV as
amended by R. A. 7659 known as the Dangerous Drugs Act of 1972, as amended, the
Court hereby sentences each of them to suffer the penalty of IMPRISONMENT OF
RECLUSION PERPETUA and to each pay the FINE of One Million (Php1,000,000.00)
Pesos Philippine Currency, with cost de officio.
SO ORDERED.23
On appeal, the CA affirmed in toto the Decision of the RTC in its Decision dated
January 9, 2009. On April 24, 2009, it further denied the appellants Motion for
Reconsideration in its Resolution finding no cogent reason to make any revision,
amendment, or reversal of its assailed Decision. Hence, the present appeal raising
the following issues:chanroblesvirtuallawlibrary
I.
WHETHER OR NOT ALL THE ELEMENTS OF THE CRIME OF IMPORTATION

OF REGULATED DRUGS PUNISHABLE UNDER SECTION 14, ARTCILE III, IN
RELATION TO SECTION 21 (A), ARTICLE IV OF REPUBLIC ACT 6425, AS
AMENDED BY REPUBLIC ACT 7659, ARE PRESENT IN THIS CASE.cralawred
II.
WHETHER OR NOT THE CORPUS DELICTI OF THE CRIME CHARGED HAS

BEEN ESTABLISHED BEYOND REASONABLE DOUBT.cralawred
III.
WHETHER OR NOT THE PRESUMPTION OF REGULARITY IN THE

PERFORMANCE OF OFFICIAL DUTIES CAN PREVAIL OVER THE
GUARANTEES ENSHRINED AND KEPT SACRED BY THE PHILIPPINE
CONSTITUTION IN THIS CASE.cralawred
IV.
WHETHER OR NOT THE ARRAIGNMENT OF ACCUSED-APPELLANTS IS

VALID.cralawred
V.
WHETHER OR NOT THE GUILT OF ACCUSED-APPELLANTS WAS PROVEN
BEYOND REASONABLE DOUBT.24
Appellants maintain that there is no importation of regulated drugs in the instant

case since the elements of the crime of importation, namely: (1) the importation or
bringing into the Philippines of any regulated or prohibited drug; and (2) the
importation or bringing into the Philippines of said drugs was without authority of
law, were not established herein. Appellants assert that unless there is proof that a
ship on which illegal drugs came from a foreign country, the offense does not fall
within the ambit of illegal importation of said drugs. Thus, considering the
prosecutions failure to prove the place of origin of the boat on which appellants
were apprehended, appellants cannot be convicted of the crime charged herein.
Appellants also claim that the prosecution failed to substantiate beyond reasonable
doubt the corpus delicti of the crime charged for the chain of custody of the illegal
drugs subject of this case was not sufficiently established. In addition, they
emphasize the irregularities attendant in their arrest and seizure of the illegal drugs
in violation of their constitutionally protected rights. Appellants further call
attention to the invalidity of their arraignment for they were not represented by a
counsel of their choice.
This Court finds merit on appellants first argument.
The information filed by the prosecutor against appellants charged appellants with
violation of Section 14, Article III, in relation to Section 21 (a), Article IV of RA No.
6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA No.
7659, which provide:chanroblesvirtuallawlibrary
ARTICLE III
Regulated Drugs
Section 14. Importation of Regulated Drugs. The penalty of imprisonment ranging

from six years and one day to twelve years and a fine ranging from six thousand to
twelve thousand pesos shall be imposed upon any person who, unless authorized by
law, shall import or bring any regulated drug into the Philippines.
xxxx
ARTICLE IV
Provisions of Common Application to Offenses Penalized
under Articles II and III
xxxx
Section 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the
commission of the offense shall be imposed in case of any attempt or conspiracy to
commit the same in the following cases:
a) importation of dangerous drugs;
On the basis of the foregoing provisions, the crime of importation of regulated drugs
is committed by importing or bringing any regulated drug into the Philippines
without being authorized by law. According to appellants, if it is not proven that the
regulated drugs are brought into the Philippines from a foreign origin, there is no
importation. In support of this, they cite our ruling in United States v. Jose,25 wherein
We said that:chanroblesvirtuallawlibrary
There can be no question that, unless a ship on which opium is alleged to have
been illegally imported comes from a foreign country, there is no importation. If
the ship came to Olongapo from Zamboanga, for example, the charge that opium
was illegally imported on her into the port of Olongapo, i.e., into the Philippine
Islands, could not be sustained no matter how much opium she had on board or
how much was discharged. In order to establish the crime of importation as
defined by the Opium Law, it must be shown that the vessel from which the
opium is landed or on which it arrived in Philippine waters came from a foreign
port. Section 4 of Act No. 2381 provides that:ChanRoblesVirtualawlibrary
Any person who shall unlawfully import or bring any prohibited drug into the
Philippine Islands, or assist in so doing, shall be punished . . . .
It is clear that a breach of this provision involves the bringing of opium into the
Philippine Islands from a foreign country. Indeed, it is a prime essential of the
crime defined by that section. Without it, no crime under that section can be
established.26
Moreover, the Blacks Law Dictionary defines importation as the act of bringing
goods and merchandise into a country from a foreign country.27 As used in our
tariff and customs laws, imported articles, those which are brought into the
Philippines from any foreign country, are subject to duty upon each
importation.28 Similarly, in a statute controlling the entry of toxic substances and
hazardous and nuclear wastes, importation was construed as the entry of products
or substances into the Philippines through the seaports or airports of
entry.29 Importation then, necessarily connotes the introduction of something into a
certain territory coming from an external source. Logically, if the article merely
came from the same territory, there cannot be any importation of the same.
The CA, in finding that there was importation in the present case,
stated:chanroblesvirtuallawlibrary
The prosecution was able to prove beyond reasonable doubt that appellants were,
indeed, guilty of importing regulated drugs into the country in violation of aforesaid
law. Appellants were caught by police authorities in flagrante delicto on board a
speedboat carrying forty-five (45) plastic bags of shabu. The drugs seized were
properly presented and identified in court. Appellants admission that they were
Chinese nationals and their penchant for making reference during custodial
investigation to China where they could obtain money to bribe the police officers
lead this Court to no other reasonable conclusion but that China is the country of
origin of the confiscated drugs. All elements of the crime of illegal importation of
regulated drugs being present in this case, conviction thereof is in order.30
We disagree. The mere fact that the appellants were Chinese nationals as well as
their penchant for making reference to China where they could obtain money to
bribe the apprehending officers does not necessarily mean that the confiscated drugs
necessarily came from China. The records only bear the fact that the speed boat on
which the appellants were apprehended was docked on the coast of Ambil Island in
the Municipality of Looc, Occidental Mindoro. But it could have easily come from
some other locality within the country, and not necessarily from China or any
foreign port, as held by the CA. This Court notes that for a vessel which resembles a
speed boat, it is rather difficult to suppose how appellants made their way to the
shores of Occidental Mindoro from China. Moreover, an earlier intelligence report
that foreign nationals on board extraordinary types of vessels were seen along the
sealine of Lubang Island in Cavite, and Quezon Province, does not sufficiently prove
the allegation that appellants herein were, in fact, importing illegal drugs in the
country from an external source. This, notwithstanding, had the prosecution
presented more concrete evidence to convince this Court that the prohibited drugs,
indeed, came from a source outside of the Philippines, the importation contention
could have been sustained.
Appellants exoneration from illegal importation of regulated drugs under Section

14, Article III of RA No. 6425 does not, however, free them from all criminal liability
for their possession of the same is clearly evident.
At the outset, appellants may argue that as We have ruled in United States v.
Jose,31 possession is not necessarily included in the charge of importation and thus,
they cannot be held liable thereof, to wit:chanroblesvirtuallawlibrary
Counsel for neither of the parties to this action have discussed the question whether,
in case the charge of illegal importation fails, the accused may still be convicted,
under the information, of the crime of illegal possession of opium. We, therefore,
have not had the aid of discussion of this proposition; but, believing that it is a
question which might fairly be raised in the event of an acquittal on the charge of
illegal importation, we have taken it up and decided it. Section 29 of the Code of
Criminal Procedure provides that:ChanRoblesVirtualawlibrary
The court may find the defendant guilty of any offense, or of any frustrated or
attempted offense, the commission of which is necessarily included in the charge in
the complaint or information.
As will be seen from this provision, to convict of an offense included in the charge
in the information it is not sufficient that the crime may be included, but it must
necessarily be included. While, the case before us, the possession of the opium by
the appellants was proved beyond question and they might have been convicted
of that offense if they have been charged therewith, nevertheless, such possession
was not an essential element of the crime of illegal importation and was not
necessarily included therein. The importation was complete, to say the least, when
the ship carrying it anchored in Subic Bay. It was not necessary that the opium be
discharged or that it be taken from the ship. It was sufficient that the opium was
brought into the waters of the Philippine Islands on a boat destined for a Philippine
port and which subsequently anchored in a port of the Philippine Islands with intent
to discharge its cargo. That being the case it is clear that possession, either actual or
constructive, is not a necessary element of the crime of illegal importation nor is it
necessarily included therein. Therefore, in acquitting the appellants of the charge
of illegal importation, we cannot legally convict them of the crime of illegal
possession.32
However, in our more recent ruling in People v. Elkanish,33 this Court held that
possession is inherent in importation. In that case, the accused, who was suspected
of being the owner of sixty-five (65) large boxes of blasting caps found aboard a ship
of American registry docked inside Philippine territory, was charged with illegal
importation of the articles under Section 2702 of the Revised Administrative Code
and illegal possession of the same articles under Section 1 of Act No. 3023, in two (2)
separate informations. Ruling that double jeopardy exists in view of the fact that
possession is necessarily included in importation, this Court affirmed the dismissal
of the information on illegal importation, in the following
wise:chanroblesvirtuallawlibrary
Section 9 of Rule 113 of the Rules of Court reads:ChanRoblesVirtualawlibrary
When a defendant shall have been convicted or acquitted, or the case against him
dismissed or otherwise terminated without the express consent of the defendant, by
a court of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction, and after the
defendant had pleaded to the charge, the conviction or acquittal of the defendant or
the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense charged
in the former complaint or information.
With reference to the importation and possession of blasting caps, it seems plain
beyond argument that the latter is inherent in the former so as to make them
juridically identical. There can hardly be importation without possession. When
one brings something or causes something to be brought into the country, he
necessarily has the possession of it. The possession ensuing from the importation
may not be actual, but legal, or constructive, but whatever its character, the
importer, in our opinion, is a possessor in the juristic sense and he is liable to
criminal prosecution. If he parts with the ownership of interest in the article before
it reaches Philippine territory, he is neither an importer nor a possessor within the
legal meaning of the term, and he is not subject to prosecution for either offense
under the Philippine Laws. The owner of the merchandise at the time it enters
Philippine water is its importer and possessor. He who puts merchandise on board a
vessel and alienates the title thereto while it is in transit does not incur criminal
liability. Possession on ownership of a prohibited article on a foreign vessel on the
high seas outside the jurisdiction of the Philippines does not constitute a crime
triable by the courts of this country. (U.S. vs. Look Chaw, 18 Phil., 573).34
As We have explained in our more recent ruling above, there is double jeopardy
therein since the offense charged in the information on possession is necessarily
included in the information on importation in view of the fact that the former is
inherent in the latter. Thus, this Court sustained the dismissal of one of the two
informations which charged the accused with importation to avoid the implications
of double jeopardy for possession is necessarily included in the charge of
importation.
Applying the aforequoted ruling, this Court finds that while appellants cannot be
held liable for the offense of illegal importation charged in the information, their
criminal liability for illegal possession, if proven beyond reasonable doubt, may
nevertheless be sustained. As previously mentioned, the crime of importation of
regulated drugs is committed by importing or bringing any regulated drug into the
Philippines without being authorized by law. Indeed, when one brings something
or causes something to be brought into the country, he necessarily has possession of
the same. Necessarily, therefore, importation can never be proven without first
establishing possession, affirming the fact that possession is a condition sine qua
non for it would rather be unjust to convict one of illegal importation of regulated
drugs when he is not proven to be in possession thereof.
At this point, this Court notes that charging appellants with illegal possession when
the information filed against them charges the crime of importation does not violate
their constitutional right to be informed of the nature and cause of the accusation
brought against them. The rule is that when there is a variance between the offense
charged in the complaint or information, and that proved or established by the
evidence, and the offense as charged necessarily includes the offense proved, the
accused shall be convicted of the offense proved included in that which is
charged.35 An offense charged necessarily includes that which is proved, when some
of the essential elements or ingredients of the former, as this is alleged in the
complaint or information, constitute the latter.36chanRoblesvirtualLawlibrary
Indeed, We have had several occasions in the past wherein an accused, charged with
the illegal sale of dangerous drugs, was convicted of illegal possession thereof. In
those cases, this Court upheld the prevailing doctrine that the illegal sale of
dangerous drugs absorbs the illegal possession thereof except if the seller was also
apprehended in the illegal possession of another quantity of dangerous drugs not
covered by or not included in the illegal sale, and the other quantity of dangerous
drugs was probably intended for some future dealings or use by the
accused.37 Illegal possession of dangerous drugs is therefore an element of and is
necessarily included in illegal sale. Hence, convicting the accused with the former
does not violate his right to be informed of the accusation against him for it is an
element of the latter.
In a similar manner, considering that illegal possession is likewise an element of and

is necessarily included in illegal importation of dangerous drugs, convicting
appellants of the former, if duly established beyond reasonable doubt, does not
amount to a violation of their right to be informed of the nature and cause of
accusation against them. Indeed, where an accused is charged with a specific crime,
he is duly informed not only of such specific crime but also of lesser crimes or
offenses included therein.38chanRoblesvirtualLawlibrary
Thus, in view of the fact that illegal possession is an element of and is necessarily
included in the illegal importation of regulated drugs, this Court shall determine
appellants culpability under Section 16,39 Article III of RA No. 6425.
The elements of illegal possession of regulated drugs are as follows: (a) the accused
is in possession of an item or object which is identified to be a regulated drug; (b)
such possession is not authorized by law; and (c) the accused freely and consciously
possessed the regulated drug.40chanRoblesvirtualLawlibrary
The evidence on record clearly established that appellants were in possession of the
bags containing the regulated drugs without the requisite authority. As mentioned
previously, on the date of appellants arrest, the apprehending officers were
conducting a surveillance of the coast of Ambil Island in the Municipality of Looc,
Occidental Mindoro, upon being informed by the Municipalitys Barangay Captain
that a suspicious-looking boat was within the vicinity. Not long after, they spotted
two (2) boats anchored side by side, the persons on which were transferring cargo
from one to the other. Interestingly, as they moved closer to the area, one of the
boats hurriedly sped away. Upon reaching the other boat, the police officers found
the appellants with several transparent plastic bags containing what appeared to be
shabu which were plainly exposed to the view of the officers. Clearly, appellants
were found to be in possession of the subject regulated drugs.
Moreover, this Court is not legally prepared to accept the version of the appellants
that they had nothing to do with the incident and that they were being framed up as
the drugs seized from them were merely planted by the apprehending officers. At
the outset, this Court observes that appellants did not provide any explanation as to
how the apprehending officers were actually able to plant forty-five (45) bags of
regulated drugs weighing about one (1) kilo each in the speed boat of appellants in
the middle of the ocean without their knowledge. Also, as the trial court noted, they
did not even give any explanation as to the purpose of their presence in the coast of
Ambil, Looc, Occidental Mindoro. More importantly, aside from saying that the
confiscated bags of regulated drugs were merely implanted in their speed boat, they
did not provide the court with sufficient evidence to substantiate their claim. In the
words of the lower court:chanroblesvirtuallawlibrary
Moreover, the story of defense witnesses Jesus Astorga, Fernando Oliva, and
Godofredo Robles that the subject shabu were taken only by the police authority
from the house of Barangay Captain Maximo Torreliza taxes only ones credulity.
Their testimonies appear to be merely a product of an [afterthought]. They have not
executed any prior affidavit on the matters concerning their testimonies unlike the
prosecution witnesses SPO3 Yuson and SPO2 Paglicawan who executed their joint
affidavit almost immediately after their arrest. It is so apparent from the testimonies
of these three (3) above-named defense witnesses that they [did not] know anything
about the case. What is even worse is that Atty. Evasco, the former counsel of the
accused, procured the testimonies of Jesus Astorga, Fernando Oliva, and Godofredo
Reyes. Clear enough their intent or motivation is not for the truth to come out but for
the monetary consideration in exchange of their testimony.41
This Court has consistently noted that denial or frame up is a standard defense ploy
in most prosecutions for violations of the Dangerous Drugs Law. This defense has
been invariably viewed with disfavor for it can easily be concocted. In order to
prosper, the defense of denial and frame-up must be proved with strong and
convincing evidence.42 Without proof of any intent on the part of the police officers
to falsely impute to appellants the commission of a crime, the presumption of
regularity in the performance of official duty and the principle that the findings of
the trial court on the credibility of witnesses are entitled to great respect, deserve to
prevail over the bare denials and self-serving claims of frame up by
appellants.43chanRoblesvirtualLawlibrary
Going now to appellants arguments that their criminal liability is negated by certain
irregularities in the proceedings of this case. First and foremost, appellants allege a
violation of their constitutional rights against unreasonable searches and
seizures. Due to the absence of probable cause, their warrantless arrest and
consequent search and seizure on their persons and possession is unjustified and
hence, the confiscated bags of regulated drugs therefrom are inadmissible against
them.
Section 2, Article III of the Philippine Constitution

provides:chanroblesvirtuallawlibrary
Section 2. The right of the people to be secure in their persons, houses, papers, and
A settled exception, however, to the above guaranteed right is an arrest made during
the commission of a crime, which does not require a previously issued warrant,
under Section 5(a), Rule 113 of the Revised Rules on Criminal Procedure, to
wit:chanroblesvirtuallawlibrary
Sec. 5. Arrest without warrant; when lawful. A peace officer of a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
This Court has ruled that for an arrest to fall under the above exception, two (2)
elements must be present: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or within the view of
the arresting officer.44chanRoblesvirtualLawlibrary
In this case, appellants were actually committing a crime and were caught by the
apprehending officers in flagrante delicto. As previously stated, the records reveal
that on the date of their arrest, the apprehending officers, while acting upon a report
from the Barangay Captain, spotted appellants transferring cargo from one boat to
another. However, one of the boats hastily sped away when they drew closer to the
appellants, naturally arousing the suspicion of the officers. Soon after, the police
officers found them with the illegal drugs plainly exposed to the view of the officers.
When they requested appellants to show proper documentation as to their identity
as well as their purpose for being there, appellants refused to show them anything
much less respond to any of their questions. In fact, when the officers were
transporting appellants and the illegal drugs to the shore, the appellant Chi Chan
Liu even repeatedly offered the arresting officers big, big amount of money.
Hence, the circumstances prior to and surrounding the arrest of appellants clearly
show that they were arrested when they were actually committing a crime within
the view of the arresting officers, who had reasonable ground to believe that a crime
was being committed.
In addition, this Court does not find the consequent warrantless search and seizure
conducted on appellants unreasonable in view of the fact that the bags containing
the regulated drugs were in plain view of the arresting officers, one of the judicially
recognized exceptions to the requirement of obtaining a search warrant.
Under the plain view doctrine, objects falling in the "plain view" of an officer, who
has a right to be in the position to have that view, are subject to seizure and may be
presented as evidence.45 It applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion
or is in a position from which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; and (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband, or
otherwise subject to seizure. The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from which he can particularly view the
area. In the course of such lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be open to eye and hand, and
its discovery inadvertent.46chanRoblesvirtualLawlibrary
In the case at hand, the apprehending officers were performing their duty of
ascertaining whether a criminal activity was indeed happening at the time and place
reported by the Barangay Captain. In broad daylight, appellants were seen in the act
of transferring bags of illegal drugs from one boat to another and thereafter caught
in possession of the same, which became inadvertently and immediately apparent
from the point of view of the arresting officers. It is undeniably clear, therefore, that
the seizure of illegal drugs conducted by the officers falls within the purview of the
plain view doctrine. Consequently, the confiscated drugs are admissible as
evidence against appellants.
As to appellants assignment of failure on the part of the prosecution to substantiate

beyond reasonable doubt the corpus delicti of the crime charged for the chain of
custody of the illegal drugs was not sufficiently established, the same cannot be
sustained as a review of the records of the case provides otherwise. From the time of
appellants arrest, the seized bags of regulated drugs were properly marked and
photographed. Proper inventory was also conducted in the presence of the
appellants and Mayor Telebrico, who signed a receipt evidencing that the
confiscated drugs were turned over to the PNP Regional Headquarters.47 There, the
evidence was sent to the Regional Crime Laboratory Service Office for an
examination which yielded positive results. The laboratory report, photographs,
and receipts were all made part of the records of this case. In fact, the bags
containing the crystalline substance were presented before the trial court during the
hearing held on October 12, 1999 which was identified by SPO3 Yuson, the officer
who confiscated the same. Evidently, an unbroken chain of custody of the
confiscated drugs was established by the prosecution.
Appellants also assail the legality of their detention for being formally charged in an
Information on December 8, 1998 or five (5) days after their arrest on December 3,
1998, beyond the thirty-six (36)-hour period in Article 12548 of the Revised Penal
Code. But while the law subjects such public officers who detain persons beyond the
legal period to criminal liability, it must be remembered that the proceeding taken
against the detained persons for the act they committed remains unaffected, for the
two acts are distinct and separate.49 This Court is nevertheless mindful of the
difficult circumstances faced by the police officers in this case, such as the language
barrier, the unresponsiveness of the appellants, the fact that one of the days fell on a
Sunday, as well as the disparity in the distances between the different offices. But
even assuming that the police officers intentionally delayed the filing of the
Information, appellants should have taken steps to report or file charges against the
officers. Unfortunately, they cannot now rely on administrative shortcomings of
police officers to get a judgment of acquittal for these do not diminish the fact that
illegal drugs were found in appellants possession.50chanRoblesvirtualLawlibrary
Anent appellants claim that their constitutional rights were further violated for
during custodial investigation, they did not have counsel of their choice nor were
they provided with one, this deserves scant consideration since the same is relevant
and material only when an extrajudicial admission or confession extracted from an
accused becomes the basis of his conviction.51 In this case, neither one of the
appellants executed an admission or confession. In fact, as the records clearly show,
appellants barely even spoke and merely kept repeating the phrase call China, big
money. The trial court convicted them not on the basis of anything they said during
custodial investigation but on other convincing evidence such as the testimonies of
the prosecution witnesses. Verily, there was no violation of appellants constitutional
right to counsel during custodial investigation.
In this relation, appellants further criticize the legality of the proceedings in saying
that during their arraignment, they were not represented by a counsel of their choice
but were merely represented by a court-appointed government lawyer. Appellants
assert that the trial court likewise appointed a special interpreter, who merely
understood a little Chinese language. As such, considering the absence of any
assurance that the interpreter was able to explain to appellants the charges against
them in the language they understood, appellants therefore did not validly enter
their plea.
The facts borne by the records of the case, however, militate against the contention of
the appellants. This Court does not find a violation of appellants right to counsel for
even in their own narration of facts, appellants stated that when they appeared
without counsel when the case was called for arraignment on January 19, 1999, the
trial court gave appellants time to secure the services of counsel of their choice. It
was only when appellants again appeared without counsel on February 23, 1999 that
the court appointed a counsel from the Public Attorneys Office.52 It is clear,
therefore, that appellants had ample opportunity to secure the services of a counsel
of their own choice. They cannot now assign error in the proceedings conducted by
the trial court for the fact remains that they were appointed with counsel in full
compliance with the law.
In much the same way, appellants had every opportunity to secure the services of a
Chinese interpreter with such competence at par with their standards. As pointed
out by the CA, the trial court gave appellants the authorization to seek, through their
counsel, the Chinese Embassys assistance for purposes of procuring a Chinese
interpreter.53 Appellants were even given time, through several postponements, to
properly secure the services of one. If appellants were unsatisfied with the
competence of the court-appointed interpreter, it should have taken the
opportunities given by the trial court. In this relation, the trial courts observations
are worth mentioning, to wit:chanroblesvirtuallawlibrary
Another factor that militates against the accused is their failure to testify on their
own behalf, the defense is trying to justify for want of Chinese interpreter. The
instant case has been filed in Court since December 8, 1998 or six years more or less
until now. It is highly unbelievable that for such period of time that this case has
been pending in court, accused could not still secure the services of a Chinese
interpreter when as borne out by the records, they were able to secure the services
of several lawyers one after the other. The accused on two (2) occasions have even
submitted written requests in English (Exhibit N and Exhibit O) which were
granted by the Court allowing them to call their relatives but still they failed to
secure the services of an interpreter. To the mind of the Court, accused can also
understand English as proven by their letters. x x x 54
Indeed, this Court accords the highest degree of respect to the findings of the lower
court as to appellants guilt of the offense charged against them, especially when
such findings are adequately supported by documentary as well as testimonial
evidence. It is a settled policy of this Court, founded on reason and experience, to
sustain the findings of fact of the trial court in criminal cases, on the rational
assumption that it is in a better position to assess the evidence before it, having had
the opportunity to make an honest determination of the witnesses deportment
during the trial.55chanRoblesvirtualLawlibrary
Moreover, in view of the well-entrenched rule that the findings of facts of the trial
court, as affirmed by the appellate court, are conclusive on this Court, absent any
evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and
circumstances of substance which, if considered, would warrant a modification or
reversal of the outcome of the case, this Court finds no cogent reason to deviate from
the above findings.56 It is clear, therefore, that based on the findings of the courts
below, appellants were, in fact, in possession of regulated drugs without the
requisite authority.
As to the penalty imposed on appellants, Sections 16 and 17 of RA No. 7659,

amending RA No. 6425, otherwise known as the Dangerous Drugs Act of 1972,
provide:chanroblesvirtuallawlibrary
Sec. 16. Section 16 of Article III of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is amended to read as
Section 16. Possession or Use of Regulated Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos shall be imposed upon any person who shall possess or use any regulated
drug without the corresponding license or prescription, subject to the provisions of
Section 20 hereof.
xxxx
Section 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, is hereby amended to read as
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. - The penalties for offenses under Section 3, 4, 7, 8 and 9 of
Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if
the dangerous drugs involved is in any of the following quantities:
xxxx
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
From the foregoing, considering that appellants were found to have possessed forty-
five (45) kilograms of methylamphetamine hydrochloride, which is more than the
two hundred (200) grams stipulated above, the imposable penalty is reclusion
perpetua, in accordance with R.A. No. 9346, otherwise known as An Act Prohibiting
the Imposition of Death Penalty in the Philippines. As regards the fine, We find
that the amount of One Million Pesos (P1,000,000.00) for each appellant imposed by
the RTC is proper, in view of the quantity seized from them.chanrobleslaw
WHEREFORE, premises considered, the instant appeal is DENIED. The Decision

dated January 9, 2009 and Resolution dated April 24, 2009 of the Court of Appeals in
CA-G.R. CR HC No. 00657 is AFFIRMED with MODIFICATION that appellants
herein are found GUILTY of the crime of illegal possession of regulated drugs.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BEVERLY VILLANUEVA Y

MANALILI @ BEBANG, Accused-Appellant.
DECISION
PEREZ, J.:
On appeal is the Decision dated 10 May 2013 of the Court of Appeals (CA) in CA-
1
G.R. CR-H.C. No. 05027. The CA affirmed the 28 January 2011 Decision2 of the
Regional Trial Court (RTC) of Las Pinas City, Branch 254 in Criminal Case No. 07-
0417, finding accused-appellant, Beverly Villanueva y Manalili, guilty beyond
reasonable doubt of violation of Section 6 of Republic Act (R.A.) No. 9208.
On 18 May 2007, an Information for the violation of Sec. 6 of R.A. 9208 was filed
against accused-appellant. The accusatory portion of the Information
reads:ChanRoblesVirtualawlibrary
That sometime during the period from April 25, 2007 up to May 17, 2007, in the city
of Las Pinas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being the owner/manager of ON TAP VIDEOKE, did then
and there willfully, unlawfully and feloniously recruit and hire [AAA],3 a 13- year
old minor, to work as a Guest Relations Officer (GRO) of said establishment, thereby
exploiting and taking advantage of her vulnerability as a
child.4chanroblesvirtuallawlibrary
On arraignment, accused-appellant entered a plea of NOT GUILTY.5 A Petition for
Bail was granted and accused-appellant was allowed to post bail. The public
prosecutor manifested that they will adopt the evidence presented during the
hearing of the Petition for Bail as the same evidence in the main case, with the
further manifestation that other witnesses will be presented by the
prosecution.6 Trial on the merits ensued thereafter.
The Facts
The antecedent facts as culled from the CA decision and records of the case are
summarized as follows:
chanRoblesvirtualLawlibraryOn 25 April 2007, AAA ran away from home after

finding out that she was adopted and after being scolded by her mother, who
became the private complainant in this case. The friends of AAA informed private
complainant that AAA was staying at the On Tap Videoke Bar, working as a Guest
Relations Officer. Private complainant sought assistance from the Channel 2 TV
program "XXX" to regain custody over AAA. Private complainant, accompanied by
the TV crew, lodged a preliminary complaint with the Southern Police District (SPD)
Headquarters of Taguig City against On Tap Videoke Bar and a task force was
created for the rescue of AAA. Police Officer 1 Ariel Sullano (PO1 Sullano),
accompanied by private complainant was tasked to go inside the videoke bar to talk
to AAA. PO2 Thaddeus Abas (PO2 Abas) and the other police officers were
stationed outside the bar, awaiting the predetermined signal. After the operation,
AAA was taken to the SPD headquarters, together with accused-appellant and five
(5) other videoke bar employees who were without the necessary Mayor's and
Health Permits. Private complainant executed a complaint-affidavit against On Tap
Videoke Bar and AAA was endorsed to the Social Development Center of the
Department of Social Welfare and Development (DSWD)-Las Pinas. Accused-
appellant and the five (5) apprehended employees were booked, investigated and
underwent medical examinations.
On 17 May 2007, accused-appellant and the five (5) employees were referred to the
inquest prosecutor with charges for violation of R.A. No. 76107 and working without
Mayor's/ Health Permit, respectively. The Office of the City Prosecutor charged
accused-appellant with human trafficking under R.A. 9208, instead of violation of
R.A. 7610 for the reason that accused-appellant "recruited and exploited AAA, a 13-
year old minor, to work as a GRO in her bar by taking advantage of her vulnerability
as a child."8chanrobleslaw
On 24 May 2007, a Petition for Bail was filed by accused-appellant, alleging that the
evidence of guilt was not strong. The prosecution presented the testimonies of PO2
Abas and the private complainant to prove otherwise.
Meanwhile, on 31 May 2007, an Affidavit of Desistance9 was executed by private

complainant, which formed part of the exhibits. The Affidavit of Desistance was
executed after the private complainant had the opportunity to talk to AAA after the
rescue operation and after AAA revealed that she was merely allowed to stay at the
videoke bar after she ran away from home.10chanrobleslaw
PO2 Abas testified as to the filing of the complaint and the entrapment and rescue
operation conducted. He narrated that during the operation, he was stationed a
couple of blocks from the videoke bar;11 and that upon the execution of the pre-
arranged signal, he and his companion officers rushed to the bar to take custody of
AAA and other girls working without permits.12 On cross-examination, PO2 Abas
admitted that he was only acting based on the preliminary complaint filed by private
complainant;13 and that he was not aware of why AAA was in the viedoke bar or
who had custody over AAA.14 When asked about the other details of the
investigation and the operation, he failed to give coherent answers and insisted that
his only designation was to secure the GROs and the other persons in the videoke
bar.15chanrobleslaw
The prosecution then presented private complainant as the second witness. She
recounted the details of the rescue operation and the subsequent filing of the
complaint against accused-appellant. On cross-examination, she clarified that she
had never been to the videoke bar before the rescue operation;16 and that when she
saw her daughter in the videoke bar, she was neither drinking, singing, nor
smoking.17When asked about the conversation she had with her daughter after the
rescue, private complainant revealed that AAA claimed that she was neither hired
nor recruited as a GRO at the videoke bar.18Private complainant further narrated
that she signified her lack of intention to pursue her complaint against accused-
appellant after hearing the side of her daughter.19 Unfortunately, while the trial was
ongoing, AAA absconded from DSWD custody, resulting in the prosecution's failure
to obtain her testimony.
The Petition for Bail was granted by the court and accused-appellant was allowed to
post bail. To supplement the testimonies of the witnesses presented during the bail
hearing, the prosecution offered the testimony of P/Chief Insp. Jerome Balbontin
(PCI Balbontin). He narrated that on May 16, 2007, the private complainant,
accompanied by the TV crew, reported that her missing 13-year old daughter was
seen working as a GRO at the On Tap Videoke Bar.20 According to the witness, he
was not present during the operation21 but he sent SPO1 Camaliga, PO2 Andador,
PO1 Sullano, PO2 Abas, PO2 Espinosa, among others, to conduct the surveillance
and rescue.22 He further narrated that after the rescue operation, the TV crew
interviewed the child at the police station;23 and that unfortunately, the footage of
said interview and the rescue operation could not be obtained.24chanrobleslaw
The defense presented Wilfred Aquino (Aquino), the videoke bar waiter, as first
witness. He testified as to the events which transpired during the rescue operation.
He narrated that two male individuals asked him to call AAA; that AAA
approached their table to speak with them; and that after five minutes, the
policemen announced the rescue operation.25cralawred The witness insisted that
accused-appellant was not aware of AAA's stay in the videoke bar because it was
her father, Rosito Villanueva, Sr., who allowed AAA to stay in the videoke
bar.26 Wilfred also insisted that AAA has been staying in the videoke bar for two
weeks before the rescue operation; and that during such stay; she was always in the
kitchen helping therh wash glasses.27 On cross-examination, he testified that his
immediate superior was Rosito Villanueva, Jr., (Villanueva, Jr.) accused-appellant's
brother, who was the one managing the videoke bar.28chanrobleslaw
Villanueva, Jr. was the second witness for the defense. He testified as to the
circumstances surrounding AAA's stay in the videoke bar. He claimed that while he
was on vacation, his father took over the management of the videoke bar and
allowed the temporary stay of AAA, upon the request of their employee.29 Like
Aquino, Villanueva, Jr. claimed that accused-appellant was unaware of AAA's stay
in the videoke' bar because accused-appellant had no hand in the daily operations
and management. On cross-examination, he testified that the videoke bar was
merely registered under his sister's name; and that all earnings belonged to him
because the videoke bar was put up by his sister for him.30chanrobleslaw
Accused-appellant maintained that at the time the raid was conducted, she was at
her sister's house. Her brother called her to apprise her of the situation, prompting
her to rush to the bar to handle the situation. She went with the authorities to the
SPD Headquarters and presented herself as the registered owner of the videoke bar.
Accused-appellant vehemently denied hiring and/or recruiting AAA as a GRO,
insisting that she was not involved in the day-to-day operations. Asserting that she
was unaware that AAA was staying at the bar, accused-appellant explained that she
merely provided capital for the business and that her brother, Villanueva, Jr., was
the one managing the same. Both accused-appellant and her brother aver that it was
their father who allowed AAA to stay at the videoke bar upon the request of one of
the waiters.
Ruling of the Regional Trial Court
The RTC found accused-appellant's denial unavailing and incredible, considering

that the corroborating testimonies came from witnesses who were not disinterested.
The court found it impossible for accused-appellant unaware of AAA's stay in the
videoke bar, given that she was the registered owner thereof. The RTC gave weight
on the successful rescue operation conducted by the police and the TV crew. In sum,
the court ruled that despite the failure of
the prosecution to present AAA in court, the circumstantial pieces of evidence
were sufficient to establish accused-appellant's guilt beyond reasonable doubt, for
the reason that a direct link between accused-appellant's commission of the crime
and the minor victim was established.31 The dispositive portion of the decision
reads:ChanRoblesVirtualawlibrary
WHEREFORE, finding accused BEVERLY VILLANUEVA y MANALILI @
"BEBANG" GUILTY of Qualified Trafficking in Persons under Section 6 of Republic Act
9208, the Court hereby sentences her to suffer the penalty of Life Imprisonment and to
pay a fine of 3 Million pesos. Her license/permit to operate the ON TAP VIDEOKE
BAR is ordered cancelled.32chanroblesvirtuallawlibrary
Accused-appellant challenged the RTC decision on appeal, alleging that the lower
court relied on the weakness of the defense rather than on the strength of the
evidence for the prosecution. Accused-appellant argued that the same set of
evidence, which was the basis for granting the petition for bail, was merely adopted
in the main case. Thus, accused-appellant contends that there can be no conclusion
other than that the prosecution failed to substantiate the allegations in the
Information. Moreover, accused-appellant insisted that the lower court erred in not
giving the private complainant's Affidavit of Desistance due weight and
consideration.
The appellate court found the appeal bereft of merit. Enumerating the different
circumstantial evidence presented, the CA ruled that the conviction was warranted.
The appellate court held that the "[affidavit of desistance is] not the sole
consideration that can result to an acquittal"33 hence, in view of the lack of
circumstances to support the Affidavit of Desistance, acquittal was not warranted.
The pertinent and dispositive portions of the decision
read:ChanRoblesVirtualawlibrary
Thus, the trial court did not err in imposing upon accused-appellant the penalty of
life imprisonment and fine of P3,000,000.00. The order for the cancellation of her
permit to operate the ON TAP VIDEOKE BAR is also correct, x x x
xxxx
WHEREFORE, the trial court's Decision dated January 28, 2011

is AFFIRMED.34chanroblesvirtuallawlibrary
In a Resolution35 dated 3 October 2013, the Court of Appeals gave due course to
accused-appellant's Notice of Appeal.
On 19 February 2014,36 we required the parties to submit their

respective supplemental briefs. Accused-appellant filed a supplemental
brief;37 whereas the Office of the Solicitor General adopted all the arguments raised
in its brief, in lieu of filing a supplemental brief.
Our Ruling
The crux of the controversy is whether the circumstantial pieces of evidence

presented by the prosecution inexorably lead to the conclusion that accused-
appellant is guilty beyond reasonable doubt of the crime of Qualified Trafficking.
After a thorough review of the facts and evidence on record, we rule for accused-
appellant's acquittal.
Qualified Trafficking
The elements of trafficking in persons, derived from the expanded definition found
in Section 3(a) of R.A. No. 9208 as amended by R.A. No. 10364, are as
(1) The act of "recruitment, obtaining, hiring, providing, offering, transportation,
transfer, maintaining, harboring, or receipt of persons with or without the victim's
consent or knowledge, within or across national borders;"
(2) The means used include "by means of threat, or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of payments
or benefits to achieve the consent of a person having control over another person;"
and
(3) The purpose of trafficking includes "the exploitation or the prostitution of

others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs."
The recruitment, transportation, transfer, harboring or receipt of a child for the
purpose of exploitation shall still be considered "trafficking in persons" even if it
does not involve any of the means set forth in the first paragraph of Sec. 3(a) of R.A.
No. 9208.38 Given that the person allegedly trafficked in the case at bar is a child, we
may do away with discussions on whether or not the second element was actually
proven.
In an attempt to prove the first element, the prosecution stresses the fact that
accused-appellant is the registered owner of the On Tap Videoke Bar. The
prosecution insists that by merely being the registered owner, accused-appellant
necessarily committed the act of recruiting, maintaining or harboring AAA. Such
contention is misplaced. Recruiting, harboring, or maintaining a person for the
purpose of exploitation are acts performed by persons who may or may not be
registered owners of establishments. Thus, being the registered owner per se does not
make one criminally liable for the acts of trafficking committed in the establishment.
What the prosecution should have done was to prove the act of trafficking by other
means, and not by mere showing that accused-appellant was the registered owner.
The defense, on the other hand, countered the allegation by presenting testimonies
of Aquino, an employee of the videoke bar; Villanueva, Jr., manager of the videoke
bar and brother of accused-appellant; and accused-appellant herself. The RTC found
accused-appellant's denial and the corroborating testimonies as unavailing and
incredible, for the reason that such testimonies did not come from disinterested
witnesses. This Court is not unaware of the longstanding doctrine that findings of
facts and assessment of credibility of witnesses are matters best left to the trial court,
which is in the best position to observe the witnesses' demeanor while being
examined.39 However, we take exception from such rule, considering that there are
facts and circumstances which if properly appreciated, could alter the outcome of
the case. That the defense witnesses are closely related to accused-appellant one
being the brother and manager of the videoke bar and the other being an
employeeis not a sufficient reason to disregard their testimonies. The declaration
of interested witnesses is not necessarily biased and incredible.40 More importantly,
there was no evidence suggesting that the testimonies of the witnesses were
untruthful to begin with.
The prosecution likewise failed to prove the third elementthat the recruiting,
maintaining or harboring of persons is for the purpose of exploitation. Curiously,
AAA was seen by the prosecution witnesses at the videoke bar only on the day the
rescue operation was conducted. That AAA was exploited could not be proven by
her mere presence at the videoke bar during the rescue operation. The prosecution
should have presented evidence as to the nature of work done by AAA, if any.
Testimonies as to how often AAA was seen in the bar while entertaining customers
could have also lent credence to the prosecution's contention that she was in the
videoke bar because she was being exploited.
Lack of Direct Evidence
Since AAA was not presented in court, the prosecution was not able to offer direct
evidence showing that accused-appellant actually recruited, harbored or maintained
AAA in the videoke bar for the purpose of exploiting her. Neither can private
complainant's testimony which merely revolved around the filing of the complaint
be considered direct evidence. Private complainant's testimony, if considered in light
of all the other evidence, is weak. Private complainant testified roughly a month
after the Affidavit of Desistance was executed and filed; thus, she had every
opportunity to deny the execution of the Affidavit during the cross-examination.
Instead of denying the veracity of such Affidavit, private complainant confirmed its
truthfulness and accuracy.41 Though it can be said that private complainant's
affirmative answers were only prompted by the leading questions asked by the
defense lawyer during cross-examination, it cannot be denied that the prosecution
did not even bother to rebuild its case during re-direct examination. On re-direct
examination, private complainant merely testified as to matters regarding AAA's
adoption.42 She also claimed that she came to know of accused-appellant's trafficking
activities through AAA's friends whose identities she cannot remember.43 However,
on re-cross examination, private complainant admitted that she did not validate such
information before she reached out to the TV program and the
authorities.44chanrobleslaw
A review of the scarce jurisprudence on human trafficking would readily show that
a successful prosecution for human trafficking, to a certain extent, relies greatly on
the entrapment operation.45 In entrapment, ways and means are resorted to by the
authorities for the purpose of capturing the perpetrator in flagrante delicto.46 Thus, it
can be said that testimonies of the apprehending officers regarding the entrapment
operation are crucial for a conviction, most especially in cases where the victim is
unable to testify. In People v. Casio,47 the conviction for Qualified Trafficking was
brought about by the categorical testimonies of the authorities who conducted the
entrapment, on top of the victim's testimony. In the said case, the police operatives
testified as to the actual unfolding of circumstances which led. them to believe that a
crime was being committed in flagrante delicto, to wit:
During trial, PO1 Luardo and PO1 Velosa testified that their conversation with
accused went as follows:
Accused: Chicks mo dongl (Do you like girls, guys?)
PO1 Unya mga bag-o? Kanang batan-on kay naa mi guests naghulal sa motel.
Luardo: (Are they new? They must be young because we have guests waiting at
the motel)
Accused: Naa, hulal kay magkuha ko. (Yes, just wait and I'll get them)
At that point, PO1 Luardo sent a text message to PSI Ylanan that they found
prospective subject.
After a few minutes, accused returned with AAA and BBB, private complainants
in this case.
Accused: Kining duha kauyon mo anil? (Are you satisfied with these two?)
PO1 Maayo man na kaha na sila modala ug kayaf?(Well, are they good in sex?)
Veloso:
Similarly, the prosecution in the case at bar built their case around the entrapment
operation and the successful rescue of AAA; but unfortunately for the prosecution,
both PO2 Abas and PCI Balbontin are incompetent to testify as to matters which
occurred during the actual execution of the rescue and entrapment because both
witnesses were not present during the operation. The testimonies of PO2 Abas and
the Chief Inspector pale in comparison with the testimonies of the police operatives
in Casio.48 Oddly, the prosecution failed to present witnesses who could testify as to
the actual conversation that transpired between the undercover authorities and
AAA. The testimony of defense witness Aquino, the waiter, is the only evidence on
record which narrated certain details surrounding the unfolding of the rescue
operation. Aquino merely observed that upon being called by the two men, who
turned out to be undercover policemen, AAA approached their table and after five
minutes, policemen announced the operation.49AAA's act of approaching the table of
the customers after being called is not unequivocal enough as to dispel any other
possible scenarios that could have occurred during their 5-minute conversation. In
the absence of any evidence categorically showing that a crime was being committed
in flagrante delicto or that AAA was performing the tasks of a GRO when she
approached the table, this Court cannot uphold accused-appellant's conviction based
on the rescue operation alone.
Circumstantial evidence did not

establish guilt beyond reasonable doubt
While it is recognized that the lack of direct evidence does not ipso facto bar the
finding of guilt,50 we still hold that acquittal is in order for the reason that the
circumstantial evidence presented does not lead to the inescapable conclusion that
accused-appellant committed the crime. Circumstantial evidence is deemed
sufficient for conviction only if: (1) there is more than one circumstance; (2) the facts
from which the inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.51 It is
essential that the circumstantial evidence presented constitutes an unbroken chain
which leads to only one fair and reasonable conclusion pointing to the accused, to
the exclusion of others, as the guilty person.52 The appellate court anchored accused-
appellant's conviction on the following circumstantial evidence:
chanRoblesvirtualLawlibraryFirstly, AAA was at the On Tap Videoke when the

police, accompanied by private complainant and the crew of the TV program XXX,
conducted its rescue operation on May 16, 2007.
Secondly, while accused-appellant denied recruiting AAA, she was wearing a sexy
attire at the time of the rescue. Even defense witnesses Rosito Villanueva, Jr. and
Wilfred Aquino admitted that AAA wore sexy attires at the videoke bar.
Notably, AAA's attire was similar to the uniform of the videoke bar's GROs. x x x
xxxx
Thirdly, accused-appellant showed propensity of hiring workers without permits.

Although the purpose of the rescue operation was to recover AAA, five other (5)
workers of the videoke bar were also arrested and booked because they were
working thereat without the requisite Mayor's /Health permits.
Fourthly, it appeared that AAA was doing some kind of work at the videoke bar. As
testified by defense witness Willfred Aquino and Rosito Villanueva, Jr.:
Q:
What was she doing there aside from
staying there, Mr. Witness?
A:
She was helping in the washing of the
glasses in the kitchen, Sir.
xxxx
Q:
When the police arrived, AAA was there
inside the Videoke Bar?
Witness:
A:
She was at the back of the kitchen.
COURT:
What was she doing at the kitchen wearing that seductive dress,
washing the dishes?
No, your honor. During that times she

A:
was just standing at the back and
whenever we needed something like
glass, she would hand us the glass.53
We rule that the circumstantial evidence cited by the appellate court does not lead to
the inescapable conclusion that accused-appellant committed the crime, let alone
that a crime was actually committed. As previously mentioned, the mere presence of
AAA at the videoke bar does not prove that accused-appellant was maintaining or
harboring her for the purpose of exploitation. In fact, such was the holding of the
RTC when it granted accused-appellant's petition for bail. Nowhere in the text of
R.A. No. 9208 can it be inferred that a presumption arises by the mere fact of
presence of a child in a videoke bar or similar establishment. Our survey of
jurisprudence likewise does not reveal such established presumption. More to the
point, the constitutive crime of trafficking through harboring or receipt of a person
must be specifically for purposes of exploitation. In other words, establishing mere
presence without establishing the purpose therefor cannot be considered as an
element of trafficking. In this case, the private complainant's affidavit of desistance
categorically explained the child's presence in the videoke barfor humanitarian
reasons of providing shelter to a runaway minor.
That AAA was wearing skimpy clothing similar to those worn by the GROs at the
videoke bar during the rescue operation is not inconsistent with the defense's
position that AAA merely sought refuge and shelter at the bar after she ran away
from home. It is highly possible that AAA borrowed clothes from the videoke bar
employees, considering that she ran away from home and was unable to take all her
belongings with her. That accused-appellant showed propensity for hiring workers
without permits is irrelevant in the case at bar. One may be equipped with the
proper permits and yet still be guilty of trafficking. Accused-appellant's propensity
for not following ordinances does not necessarily prove commission of the crime of
human trafficking. Lastly, even if it be conceded that AAA was washing dishes at
the back of the kitchen, such circumstance is still not inconsistent with the defense's
position. As a token of gratitude for allowing her to temporarily stay at the bar, AAA
could have voluntarily done the chores. From the foregoing, it is obvious that the
totality of circumstantial evidence will not lead to an inescapable conclusion that
accused-appellant committed the crime charged. It bears stressing that "where the
inculpatory facts and circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the other consistent with
his guilt, then the evidence does not meet or hurdle the test of moral certainty
required for conviction."54chanrobleslaw
Reproduction at trial of evidence

presented in the bail hearing
The prosecution manifested that they will adopt the evidence presented during the
hearing of the Petition for Bail as the same evidence in the main case, with a further
manifestation that other witnesses will be presented during the trial. In fact, a side
by side comparison of the RTC Order granting accused-appellant's petition for bail
and the RTC Decision convicting accused-appellant would reveal that summaries of
witnesses' testimonies contained in the former were merely lifted and copied
verbatim in the latter.
After an evaluation of the evidence and after hearing the testimonies of PO2 Abas
and private complainant, the Petition for Bail was granted by the RTC, to
wit:ChanRoblesVirtualawlibrary
At this moment the prosecution failed to substantiate the allegations in the
information that accused recruited and hired minor [AAA] to work as Guest
Relations Officer (GRO) of her establishment, thereby exploiting and taking
advantage of her vulnerability as a child. The mere presence of the minor at the
establishment, cannot by itself, prove the fact of hiring and recruitment. It is
unfortunate at this juncture, none of the prosecution witnesses was able to testify on
this regard, and was only able to confirm the minor's presence at the videoke bar.
Even the alleged mother of the minor testified that she never saw [AAA] drinking,
smoking or singing at the establishment. She further testified that the minor
admitted to her that she was never hired to work at the establishment and the she
was only there in order for her to have a place to stay and reside.
xxx This court is bound by the principle that in all criminal cases, all doubts should
be resolved in favor of the accused, xxx From the evidence presented so far, without
touching on the actual merits and proceedings of the instant case, this court cannot
at this point say that the evidence against the accused is strong."55
It should be noted that when the prosecution witnesses were presented during the
bail hearing, they were subjected to cross, re-direct and re-cross-examinations, as
well as inquiries by the court; thus, as expected, the court no longer recalled the
witnesses for additional examination during the trial. Unfortunately for the
prosecution, they were only able to present one more witness, PCI Balbontin, before
they finally rested their case.
While the Court is aware that a bail hearing is merely for the purpose if determining
whether the evidence of guilt is strong and that the same is not an adjudication upon
the merits, we note that in the case at bar, the RTC Order granting the petition for
bail casts doubt upon accused-appellant's conviction. In its Order granting the
petition for bail, the RTC noted that none of the prosecution witnesses testified as to
the fact of hiring and recruitment. Considering that the only additional witness the
prosecution presented during trial was PCI Balbontin, it baffles this Court why the
RTC found accused-appellant guilty beyond reasonable doubt when the Chief
Inspector's testimony was limited to procedural details regarding the filing of the
complaint, forming of the task force and the interview conducted by the TV crew. If
the Chief Inspector's additional testimony was only limited to those matters, it
follows that when the prosecution rested its case, not one of their witnesses testified
as to the fact of hiring and recruitment and neither did the documentary evidence
submitted establish the same. Before this Court is essentially the same set of
evidence that was evaluated by the RTC when it ruled that the evidence of guilt was
not strong; we thus see no reason why the same set of evidence, only supplemented
by a testimony regarding irrelevant procedural matters, would warrant a finding of
guilt beyond reasonable doubt.
Ei incumbit probatio qui elicit,

non qui negat -- he who asserts,
not he who denies, must prove
Nothing is more settled in criminal law jurisprudence than that the Constitution
presumes a person is innocent until he is proven guilty by proof beyond reasonable
doubt.56 Countless times, this Court has elucidated that the evidence of the
prosecution must stand on its own weight and not rely on the weakness of the
defense. The prosecution cannot be allowed to draw strength from the weakness of
the defense's evidence for it has the onus probandi in establishing the guilt of the
accused. In this case, the circumstantial evidence presented by the prosecution failed
to pass the test of moral certainty necessary to warrant accused-appellant's
conviction. From the foregoing, we rule that the prosecution failed to discharge its
burden of proving accused-appellant's guilt beyond reasonable doubt.
WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals

dated 10 May 2013 in CA-G.R. CR-H.C. No. 05027 is hereby REVERSED and SET
ASIDE. For failure of the prosecution to prove her guilt beyond reasonable doubt,
BEVERLY VILLANUEVA y MANALILI @ BEBANG is hereby ACQUITTED of the
charge of violation of Section 6 of Republic Act No. 9208 or Qualified Trafficking.
Her immediate RELEASE from detention is hereby ORDERED, unless she is being
held for another lawful cause.
Let a copy of this Decision be furnished the Director of the Correctional Institution
for Women, Mandaluyong City, by personal service, for immediate implementation.
The Director shall submit to this Court, within five (5) days from receipt of the copy
of the Decision, the jaction taken thereon.
Carpio,*J., Velasco, Jr., (Chairperson), Del Castillo, ** and Reyes, JJ., concur.
ORDER OF RELEASE
TO: The Director

Bureau of Corrections
1770 Muntinlupa City
Thru: Superintendent
CORRECTIONAL INSTITUTION FOR WOMEN
1550 Mandaluyong City
GREETINGS:
chanRoblesvirtualLawlibraryWHEREAS, the Supreme Court on September

14, 2016 promulgated a Decision in the above-entitled case, the dispositive
portion of which reads:ChanRoblesVirtualawlibrary
"WHEREFORE, the appeal is GRANTED. The Decision of the Court of
Appeals dated 10 May 2013 in CA-G.R. CR-H.C. No. 05027 is
hereby REVERSED and SET ASIDE. For failure of the prosecution to prove her
guilt beyond breasonable doubt, BEVERLY VILLANUEVA y MANALILI @
BEBANG is hereby ACQUITTED of the charge of violation of Section 6 of Republic
Act No. 9208 or Qualified Trafficking.
Her immediate RELEASE from detention is hereby ORDERED, unless she
is being held for another lawful cause.
Let a copy of this Decision be furnished the Director of the Correctional Institution
for Women, Mandaluyong City, by personal service, for immediate implementation.
The Director shall submit to this Court, within five (5) days from receipt of the copy
of the Decision, the action taken thereon.
SO ORDERED."
NOW, THEREFORE, You are hereby ordered to immediately release BEVERLY
VILLANUEVA y MANALILI @ BEBANG unless there are other causes for which
she should be further detained, and to return this Order with the certificate of your
proceedings within five (5) days from notice hereof.
GIVEN by the Honorable PRESBITERO J. VELASCO, JR., Chairperson of the

Third Division of the Supreme Court of the Philippines, this 14th day of September
2016.
Very truly yours,
(SGD)WILFREDO V. LAPITAN
Division Clerk of Court
By:
(SDG)MISAEL DOMINGO C. BATTUNG III
Deputy Division Clerk of Court
GUILBEMER FRANCO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
The Constitution presumes a person innocent until proven guilty by proof beyond
reasonable doubt. The prosecution cannot be allowed to draw strength from the
weakness of the defense's evidence for it has the onus probandi in establishing the
guilt of the accused - ei incumbit probatio qui elicit, non que negat he who asserts, not
he who denies, must prove.1chanRoblesvirtualLawlibrary
Nature of the Case
Before the Court is a Petition for Review on Certiorari2 under Rule 45 of the Rules of
Court where petitioner Guilbemer Franco (Franco) assails the Decision3 dated
September 16, 2009 of the Court of Appeals (CA), in CA-G.R. CR No. 31706,
affirming the Decision4 dated February 27, 2008 of the Regional Trial Court (RTC) of
Manila, Branch 15, in Criminal Case No. 05-238613. The RTC convicted Franco of the
crime of Theft under an Information, which reads as
That on or about November 3, 2004, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously, with intent to gain
and without the knowledge and consent of the owner thereof, take, steal and carry
away one (1) Nokia 3660 Model cellular phone worth Php 18,500.00 belonging
to BENJAMIN JOSEPH NAKAMOTO Y ERGUIZA to the damage and prejudice of
the said owner in the aforesaid amount of Php 18,500.00, Philippine Currency.
Contrary to law.5chanroblesvirtuallawlibrary
On September 5, 2005, Franco, assisted by counsel, pleaded not guilty to the crime
charged.6chanRoblesvirtualLawlibrary
The Facts
The evidence for the prosecution established the following facts:
On November 3, 2004 at around 11:00 a.m., Benjamin Joseph Nakamoto (Nakamoto)

went to work out at the Body Shape Gym located at Malong Street, Tondo, Manila.
After he finished working out, he placed his Nokia 3660 cell phone worth PI8,500.00
on the altar where gym users usually put their valuables and proceeded to the
comfort room to change his clothes. After ten minutes, he returned to get his cell
phone, but it was already missing. Arnie Rosario (Rosario), who was also working
out, informed him that he saw Franco get a cap and a cell phone from the altar.
Nakamoto requested everyone not to leave the gym, but upon verification from the
logbook, he found out that Franco had left within the time that he was in the
shower.7chanroblesvirtuallawlibrary
The gym's caretaker, Virgilio Ramos (Ramos), testified that he saw Franco in the gym
but he was not working out and was just going around the area. In fact, it was just
Franco's second time at the gym. Ramos even met him near the door and as Franco
did not log out, he was the one who indicated it in their logbook. When Nakamoto
announced that his cell phone was missing and asked that nobody leaves the place,
he put an asterisk opposite the name of Franco in the logbook to indicate that he was
the only one who left the gym after the cell phone was declared
lost.8chanroblesvirtuallawlibrary
Nakamoto, together with Jeoffrey Masangkay, a police officer who was also working
out at the gym, tried to locate Franco within the gym's vicinity but they failed to find
him. They proceeded to the police station and while there, a report was received
from another police officer that somebody saw Franco along Coral Street, which is
near the gym and that he was holding a cell phone. They went to Coral Street but he
was already gone. A vendor told them that he saw a person who was holding a cell
phone, which was then ringing and that the person was trying to shut it off. When
they went to Franco's house, they were initially not allowed to come in but were
eventually let in by Franco's mother. They talked to Franco who denied having taken
the cell phone.9chanroblesvirtuallawlibrary
Nakamoto then filed a complaint with the barangay but no settlement was arrived
thereat; hence, a criminal complaint for theft was filed against Franco before the City
Prosecutor's Office of Manila, docketed as I.S. No. 04K-
25849.10chanroblesvirtuallawlibrary
In his defense, Franco denied the charge, alleging that if Nakamoto had indeed lost
his cell phone at around 1:00 p.m., he and his witnesses could have confronted him
as at that time, he was still at the gym, having left only at around 2:45 p.m.11 He also
admitted to have taken a cap and cell phone from the altar but claimed these to be
his.12chanRoblesvirtualLawlibrary
Ruling of the RTC
In its Decision dated February 27, 2008, the RTC convicted Franco of theft, the
dispositive portion of which reads:ChanRoblesVirtualawlibrary
IN VIEW OF THE FOREGOING, this Court finds [Franco], GUILTY beyond
reasonable doubt of the crime of theft penalized in paragraph I of Article 309 in
relation to Article 308 of the Revised Penal Code and hereby imposes upon him the
penalty of imprisonment of two (2) years, four (4) months and one (1) day as
minimum to seven (7) years and four (4) months as maximum and to pay the
complainant Php 18,500.00.
The RTC did not find Franco's defense credible and ruled that his denial cannot be
given evidentiary value over the positive testimony of
Rosario.14chanroblesvirtuallawlibrary
Franco then appealed to the CA.15chanRoblesvirtualLawlibrary

Ruling of the CA
In affirming the RTC decision, the CA found the elements of theft to have been duly
established. It relied heavily on the "positive testimony" of Rosario who declared to
have seen Franco take a cap and a cell phone from the altar. The CA likewise gave
credence to the testimony of Ramos who confirmed that it was only Franco who left
the gym immediately before Nakamoto announced that his cell phone was missing.
Ramos also presented the logbook and affirmed having put an asterisk opposite the
name "ELMER," which was entered by the accused upon logging in. The CA stated
that taken together, the foregoing circumstances are sufficient to support a moral
conviction that Franco is guilty, and at the same time, inconsistent with the
hypothesis that he is innocent.16 The CA further ruled that the RTC cannot be faulted
for giving more weight to the testimony of Nakamoto17 and Rosario,18 considering
that Franco failed to show that they were impelled by an ill or improper motive to
falsely testify against him.19chanroblesvirtuallawlibrary
In his petition for review, Franco presented the following issues for resolution, to
wit:ChanRoblesVirtualawlibrary
I.
WHETHER THE HONORABLE [CA] ERRED IN GIVING WEIGHT AND

CREDENCE TO THE PROSECUTION WITNESSES' INCONSISTENT AND
IRRECONCILABLE TESTIMONIES.chanRoblesvirtualLawlibrary
II.
WHETHER THE HONORABLE [CA] ERRED IN AFFIRMING [FRANCO'S]

CONVICTION DESPITE THE FACT THAT THE SAME WAS BASED ON
FABRICATIONS AND PRESUMPTIONS.chanRoblesvirtualLawlibrary
III.
WHETHER. THE HONORABLE [CA] ERRED IN ACCEPTING THE VALUE OF

THE ALLEGEDLY STOLEN CELLULAR PHONE WITHOUT SUBSTANTIATING
EVIDENCE.20chanroblesvirtuallawlibrary
Ruling of the Court
Preliminarily, the Court restates the rule that only errors of law and not of facts are
reviewable by this Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court. This rule applies with greater force when the factual
findings of the CA are in full agreement with that of the
RTC.21chanroblesvirtuallawlibrary
The rule, however, is not ironclad. A departure therefrom may be warranted when it
is established that the RTC ignored, overlooked, misconstrued or misinterpreted
cogent facts and circumstances, which, if considered, will change the outcome of the
case. Considering that what is at stake here is liberty, the Court has carefully
reviewed the records of the case22 and finds that Franco should be acquitted.
Failure of the prosecution to prove Franco's guilt beyond reasonable doubt

The burden of such proof rests with the prosecution, which must rely on the strength
of its case rather than on the weakness of the case for the defense. Proof beyond
reasonable doubt, or that quantum of proof sufficient to produce a moral certainty
that would convince and satisfy the conscience of those who act in judgment, is
indispensable to overcome the constitutional presumption of
innocence.23chanroblesvirtuallawlibrary
In every criminal conviction, the prosecution is required to prove two things beyond
reasonable doubt: first, the fact of the commission of the crime charged, or the
presence of all the elements of the offense; and second, the fact that the accused was
the perpetrator of the crime.24chanroblesvirtuallawlibrary
Under Article 308 of the Revised Penal Code, the essential elements of the crime of
theft are: (1) the taking of personal property; (2) the property belongs to another; (3)
the taking away was done with intent to gain; (4) the taking away was done without
the consent of the owner; and (5) the taking away is accomplished without violence
or intimidation against person or force upon things.25cralawred
The corpus delicti in theft has two elements, to wit: (1) that the property was lost by
the owner; and (2) that it was lost by felonious taking.26 In this case, the crucial issue
is whether the prosecution has presented proof beyond reasonable doubt to establish
the corpus delicti of the crime. In affirming Franco's conviction, the CA ruled that the
elements were established. Moreover, the RTC and the CA apparently relied heavily
on circumstantial evidence.
To sustain a conviction based on circumstantial evidence, Section 4, Rule 133 of the

Rules of Court provides that the following requisites must concur: (1) there must be
more than one circumstance to convict; (2) the facts on which the inference of guilt is
based must be proved; and (3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. With respect to the third requisite, it
is essential that the circumstantial evidence presented must constitute an unbroken
chain, which leads one to a fair and reasonable conclusion pointing to the accused, to
the exclusion of others, as the guilty person.27chanroblesvirtuallawlibrary
The prosecution presented three (3) witnesses - Nakamoto, the complainant; Ramos,
the gym's caretaker; and Rosario, another gym user.
Their testimonies established the following circumstances: (1) Nakamoto placed his
cell phone on the altar,28 left and went to change his clothes, and alter ten minutes,
returned to get his cell phone but the same was already missing;29 (2) Rosario saw
Franco get a cap and a cell phone from the same place;30and (3) Ramos saw Franco
leave the gym at 1:15 p.m. and the latter failed to log out in the logbook.31The RTC
and the CA wove these circumstances in order to arrive at the "positive
identification" of Franco as the perpetrator.32chanroblesvirtuallawlibrary
A perusal of their testimonies, however, shows that certain facts have been
overlooked by both courts.
For one, it was only Rosario who saw Franco get a cap and a cell phone from the
altar. His lone testimony, however, cannot be considered a positive identification of
Franco as the perpetrator.33chanroblesvirtuallawlibrary
In People v. Pondivida,34 the Court held:ChanRoblesVirtualawlibrary

Positive identification pertains essentially to proof of identity and not per se to that
of being an eyewitness to the very act of commission of the crime. There are two
types of positive identification. A witness may identify a suspect or accused in a
criminal case as the perpetrator of the crime as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually seen the very act of
commission of a crime, he may still be able to positively identify a suspect or
accused as the perpetrator of a crime as for instance when the latter is the person or
one of the persons last seen with the victim immediately before and right after the
commission of the crime. This is the second, type of positive identification, which
forms part of circumstantial evidence, which, when taken together with other pieces
of evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that the accused is the author of the crime to the exclusion of all
others. x x x.35 (Emphasis omitted and underscoring ours)
Rosario's testimony definitely cannot fall under the first category of positive
identification. While it may support the conclusion that Franco took a cell phone
from the altar, it does not establish with certainty that what Franco feloniously took,
assuming that he did, was Nakamoto's cell phone. Rosario merely testified that
Franco took "a cell phone." He stated:ChanRoblesVirtualawlibrary
Q: How did you know that the said cell phone was taken by the accused?
A: [W]e were then in a conversation when I asked him to spot or assist me with
the weights that I intended to carry. We were then situated in an area very
near the altar where his cap and cell phone were placed. After assisting me,
he went to the area and took the cell phone and the cap at the same time.
Q: [W]ho were you talking [sic] at that time?
A: Guilbemer Franco.
Q: It was also [G]uilbemer Franco who helped or spot you in the work out?
A: Yes, sir.
Q: And after assisting you, what did Franco do?

A: He took the cell phone of Mr. Nakamoto and his cap at the same time and
covered the cell phone by his cap and left the place.
Q: Where was that cell phone of the private complainant placed at that time?
A: At the top of the altar where is [sic] cap is also located.
Q: How far was that altar from where you were working?
A: Only inches.
Q: It was directly in front of you?
A: Yes, sir.
Q: What did you do when the accused took the cap as well as the cell phone
of the private complainant?
A: None, sir. I thought the cap and cell phone was his.
Q: How did you know that the cell phone belongs to the private complainant?
A: After Mr. Nakamoto came out from the shower, he went directly to the
altar to get his cell phone which was not there anymore and asked us
where his cell phone and I told him that I saw Mr. Franco get a cell phone
from that area.36 (Emphasis ours)
On cross-examination, Rosario also stated that he did not actually see Franco take
Nakamoto's cell phone37 but on re-direct, he clarified that he did not see the cell
phone of Nakamoto because he thought that the cell phone was owned by
Franco.38chanroblesvirtuallawlibrary
What was firmly established by Rosarios testimony is that Franco took a cell phone
from the altar. But Franco even admitted such fact.39 What stands out from Rosario's
testimony is that he was unable to particularly describe at first instance what or
whose cell phone Franco took from the altar. lie only assumed that it was
Nakamoto's at the time the latter announced that his cell phone was missing. This
was, in tact, observed by the RTC in the course of Rosario's testimony,
thus:ChanRoblesVirtualawlibrary
COURT: What you actually saw was, [G]uilbemer Franco was taking his cap
together with the cell phone placed beside the cap but you do not
know that [the] cell phone was Bj's or Nakamoto's?
A: [Y]es, Your Honor.
COURT: You just presumed that the cell phone taken by Guilbemer Franco
was his?
A: Yes, Ma'am.40 (Emphasis ours)

Moreover, it must be noted that save for Nakamoto's statement that he placed his
cell phone at the altar, no one saw him actually place his cell phone there. This was
confirmed by Rosario -
COURT:
Q: And on that day, you were able to see that Nakamoto on four incidents,
when he logged-in, during work-out and when he went inside the C.[R].?
A: Yes, sir.
Q: Therefore, you did not see Nakamoto place his cell phone at the Altar?
A: Yes, sir.41 (Emphasis ours)

Ramos, the gym caretaker, also testified that he did not see Franco take Nakamoto's
cell phone and only assumed that the cell phone on the altar was Nakamoto's, thus -
Q: And do you know who owns that cell phone put [sic] over the altar?
A: Benjamin Nakamoto.
Q: How do you know that it belongs to Benjamin Nakamoto?
A: He is the only one who brings a cell phone to the gym.
xxxx
Q: [D]id you actually see him take the cell phone of Nakamoto?
A: I did not see him take the [cell] phone but as soon as the cell phone was lost,
he was the only one who left the gym.42chanroblesvirtuallawlibrary
Neither can the prosecution's testimonial evidence fall under the second category of
positive identification, that is, Franco having been identified as the person or one of
the persons last seen immediately before and right after the commission of the theft.
Records show that there were other people in the gym before and after Nakamoto
lost his cell phone. In fact, Nakamoto himself suspected Rosario of having taken his
cell phone, thus:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:
Q: You said that you stayed inside the rest room for more or less 10 minutes?
A: [Y]es, sir.
Q: After 10 minutes, you don't know whether aside from Franco somebody
went out from the gym because you were inside the c.r.?
A: Yes. sir.
xxxx
Q: As a matter of fact, one of your witness[es] who went near the place where
your cell phone was placed was this Arnie Rosario?
A: Yes, sir.
Q: And it was only the accused and [Rosario] who were near the place where
you said you placed the cell phone?
A: Yes, sir.
Q: You did not suspect [Rosario] to have taken the cell phone?
A: I also suspected, sir.43 (Emphasis ours)

Moreover, the prosecution witnesses confirmed that the altar is the usual spot where
the gym users place their valuables. According to
Rosario:ChanRoblesVirtualawlibrary
ATTY. SANCHEZ:
Q: And in that place, you said there was a Sto. Nino?
A: At the Altar.
Q: Those who work-out in that gym usually place their things [on top of] the
altar.
A: Yes, sir.
Q: Therefore, there were people who place their cell phones on top [of] the
Altar?
A: Yes, sir.
Q: Aside from Nakamoto, other people place their things on top [of] the
Altar?
A: Yes, sir.44 (Emphasis ours)

The prosecution's evidence does not rule out the following possibilities: one, that
what Franco took was his own cell phone; two, even on the assumption that Franco
stole a cell phone from the altar, that what he feloniously took was Nakamoto's cell
phone, considering the feet that at the time Nakamoto was inside the changing
room, other people may have placed their cell phone on the same spot; and three,
that some other person may have taken Nakamoto's cell phone.
It must be emphasized that "[c]ourts must judge the guilt or innocence of the accused
based on facts and not on mere conjectures, presumptions, or suspicions."45 It is
iniquitous to base Franco's guilt on the presumptions of the prosecution's witnesses
for the Court has, time and again, declared that if the inculpatory facts and
circumstances are capable of two or more interpretations, one of which being
consistent with the innocence of the accused and the other or others consistent with
his guilt, then the evidence in view of the constitutional presumption of innocence
has not fulfilled the test of moral certainty and is thus insufficient to support a
conviction.46chanroblesvirtuallawlibrary
Franco also asserts that the logbook from which his time in and time out at the gym
was based was not identified during the trial and was only produced after Ramos
testified.47 Ramos testified that when Nakamoto announced that his cell phone was
missing and asked that nobody leaves the place, he put an asterisk opposite the
name of Franco in the logbook to indicate that he was the only one who left the gym
after the cell phone was declared lost.48chanroblesvirtuallawlibrary
Under the Rules on Evidence, documents are either public or private. Private
documents are those that do not fall under any of the enumerations in Section 19,
Rule 132 of the Rules of Court.49 Section 20 of the same Rule, in turn, provides that
before any private document is received in evidence, its due execution and
authenticity must be proved either by anyone who saw the document executed or
written, or by evidence of the genuineness of the signature or handwriting of the
maker.50chanroblesvirtuallawlibrary
In this case, the foregoing rule was not followed. The testimony of Ramos shows that
the logbook, indeed, was not identified and authenticated during the course of
Ramos' testimony. At the time when Ramos was testifying, he merely referred to the
log in and log out time and the name of the person at page 104 of the logbook that
appears on line 22 of the entries for November 3, 2004. This was photocopied and
marked as Exhibit "C-1."51 Meanwhile, when Nakamoto was presented as rebuttal
witness, a page from the logbook was again marked as Exhibit "D."52 The logbook or
the particular page referred to by Ramos was neither identified nor confirmed by
him as the same logbook which he used to log the ins and outs of the gym users, or
that the writing and notations on said logbook was his.
The prosecution contends, meanwhile, that the RTC's evaluation of the witnesses'
credibility may no longer be questioned at this stage.53 The Court is not unmindful of
the rule that the assignment of value and weight to the testimony of a witness is best
left to the discretion of the RTC. But an exception to that rule shall be applied in this
ease where certain facts of substance and value, if considered, may affect the
result.54 In Lejano v. People,55 the Court stated:ChanRoblesVirtualawlibrary
A judge must keep an open mind. He must guard against slipping into hasty
conclusion, often arising from a desire to quickly finish the job of deciding a case. A
positive declaration from a witness that he saw the accused commit the crime should
not automatically cancel out the accused's claim that he did not do it. A lying
witness can make as positive an identification as a truthful witness can. The lying
witness can also say as forthrightly and unequivocally, "He did it!" without blinking
an eye.56chanroblesvirtuallawlibrary
The facts and circumstances proven by the prosecution, taken together, are not
sufficient to justify the unequivocal conclusion that Franco feloniously took
Nakamoto's cell phone. No other convincing evidence was presented by the
prosecution that would link him to the theft.57 The fact Franco took a cell phone from
the altar does not necessarily point to the conclusion that it was Nakamoto's cell
phone that he took. In the appreciation of circumstantial evidence, the rule is that
the circumstances must be proved, and not themselves presumed. The
circumstantial evidence must exclude the possibility that some other person has
committed the offense charged.58chanroblesvirtuallawlibrary
Franco, therefore, cannot be convicted of the crime charged in this case. There is not
enough evidence to do so. As a rule, in order to support a conviction on the basis of
circumstantial evidence, all the circumstances must be consistent with the
hypothesis that the accused is guilty. In this case, not all the facts on which the
inference of guilt is based were proved. The matter of what and whose cell phone
Franco took from the altar still remains uncertain.chanRoblesvirtualLawlibrary
Franco's defense of denial
The evidence of the prosecution must stand on its own weight and not rely on the
weakness of the defense.59 In this case, Franco did not deny that he was at the Body
Shape Gym on November 3, 2004, at around 1:00 p.m. and left the place at around
2:45 p.m.60 He did not even deny that he took a cell phone from the altar together
with his cap. What he denied is that he took Nakamoto's cell phone and instead,
claimed that what he took is his own cell phone.61 Denial may be weak but courts
should not at once look at them with disfavor. There are situations where an accused
may really have no other defenses but denial, which, if established to be the truth,
may tilt the scales of justice in his favor, especially when the prosecution evidence
itself is weak.62chanroblesvirtuallawlibrary
While it is true that denial partakes of the nature of negative and self-serving
evidence and is seldom given weight in law,63 the Court admits an exception
established by jurisprudence that the defense of denial assumes: significance when
the prosecution's evidence is such that it does not prove guilt beyond reasonable
doubt.64 The exception applies in the case at hand. The prosecution failed to produce
sufficient evidence to overturn the constitutional guarantee that Franco is presumed
to be innocent.chanRoblesvirtualLawlibrary
Value of the cell phone
It is also argued by Franco that the value of the cell phone must be duly proved with
reasonable degree of certainty. On the other hand, the people contended that there
has been a judicial admission of the same.65 This issue, however, is now moot and
academic considering Franco's acquittal.chanRoblesvirtualLawlibrary
Conclusion
The circumstantial evidence proven by the prosecution in this case failed to pass the
test of moral certainty necessary to warrant Franco's conviction. Accusation is not
synonymous with guilt.66 Not only that, where the inculpatory facts and
circumstances are capable of two or more explanations or interpretations, one of
which is consistent with the innocence of the accused and the other consistent with
his guilt, then the evidence does not meet or hurdle the test of moral certainty
required for conviction.67chanroblesvirtuallawlibrary
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals

dated September 16, 2009 in CA-GR. CR No. 31706 is hereby REVERSED and SET
ASIDE. Petitioner Guilbemer Franco is ACQUITTED of the crime of Theft charged
in Criminal Case No. 05-238613 because his guilt was not proven beyond reasonable
doubt.
No costs.
RONALD IBAEZ, EMILIO IBAEZ, and DANIEL "BOBOT"

IBAEZ, Petitioners,
vs.
DECISION
PEREZ, J.:
On appeal is the September 25, 2009 Decision1 of the Court of Appeals (CA) in CA-
G.R. CR. No. 31285 which affirmed with modifications the July 17, 2007 Decision2 of
the Regional Trial Court (RTC), Branch 255 of Las Pias City, convicting Ronald
Ibaez (Ronald), Emilio Ibaez (Emilio) and Daniel "Bobot" Ibaez (Bobot)
(collectively, petitioners) of the crime of frustrated homicide.
The Facts
For allegedly stoning, hitting and stabbing Rodolfo M. Lebria (Rodolfo), the
petitioners together with their co-accused, Boyet Ibaez (Boyet) and David Ibaez
(David), who have remained at large, were charged with the crime of frustrated
homicide in an Information3 dated October 11, 2001. The accusatory portion thereof
reads:
"That on or about 15th day of July, 2001, in the City of Las Pias, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together, acting in common accord and mutually
helping and aiding one another, with intent to kill and without justifiable cause, did
then and there willfully, unlawfully and feloniously attack, assault, stone, hit with
an spade and stab with bladed weapons one RODOLFO M. LEBRIA, thereby
inflicting upon him physical injuries, thus performing all the acts of execution which
would produce the crime of Homicide as a consequence but which, nevertheless, did
not produce it by reason of causes independent of the will of the accused, that is, by
the timely and able medical assistance rendered to said RODOLFO M. LEBRIA,
which prevented his death.
CONTRARY TO LAW."
After posting their bail bond at P24,000.00 each, Ronald, Bobot and Emilio were
released on bail.4 Arraignment of Ronald and Bobot was held on May 9, 2002. Emilio
was, in turn, arraigned on December 10, 2002. All the petitioners entered a plea of
not guilty to the crime charged.5 After termination of pre-trial on April 23, 2003,6 trial
on the merits immediately followed. In the course of trial, two versions of what
transpired on the early morning of July 15, 2001 surfaced. These conflicting versions
of the incident, as culled from the records, are as follows:
In his narration, Rodolfo claimed that Ronald and his sons Emilio, Bobot, Boyet and
David were his neighbors in CAA, Las Pias City. Rodolfo recalled that he had
visitors on the day of the incident. When his guests left at around 1:00 a.m. of July 15,
2001, Rodolfo accompanied them outside his house. After about thirty minutes and
as he was about to go inside, Rodolfo noticed some garbage in front of his house.
Addressing nobody in particular, Rodolfo uttered in the vernacular "bakit dito
tinambak ang basura sa harap ng aking bahay na malawak naman ang pagtataponan ng
basura?"7 Emilio and Boyet, who was then present and angered by what they heard,
threw stones at the private complainant hitting him twice on the forehead. With
blood oozing from his forehead, Rodolfo went inside his house to cleanse his face
obscured by blood and emerged again, this time, carrying a 2" x 2" (dos por dos)
piece of wood. Rodolfo was caught off guard when he was hit on the head with a
shovel by another accused, David.8 Then, Ronald held Rodolfo, rendering him
helpless, as Boyet and Bobot simultaneously stabbed him in the abdomen.9 At this
point, Rodolfo fell to the ground, lying flat and eventually lost consciousness. When
he regained consciousness, Rodolfo found himself at the Las Pias District Hospital
(LPDH) but was later on transferred to the Philippine General Hospital (PGH) for
the much-needed surgical procedure. At the PGH, Rodolfo was operated on,
confined for nine days and incurred hospital expenses amounting to P30,000.00.10
PO2 Sulit testified that he was the investigating police officer who took the
statements of Rodolfos daughter Ruth Ann Lebria (Ruth) and Rodolfos wife,
Salvacion Lebria (Salvacion) when they went to the police station to complain about
the incident. PO2 Sulit disclosed that when he asked Ruth and Salvacion why
Rodolfo was not with them, he was informed that Rodolfo was still undergoing
medication and treatment for the injuries suffered from the petitioners. PO2 Sulit
also testified that he endorsed the complaint against the petitioners to the Office of
the City Prosecutor of Las Pias for proper disposition.11
To corroborate Rodolfos testimony, the prosecution presented Ruth and Salvacion
as witnesses.
Ruth testified that she actually witnessed the entire incident which she admitted was
preceded by the utterance made by his father.12 Her testimony on how Ronald,
Emilio, Bobot, Boyet and David ganged up on her father and who among them
stoned, hit, held and stabbed Rodolfo perfectly matched the latters sworn
declarations.13
Salvacion, who was also home on that fateful morning, confirmed the beating and
stabbing her husband endured in the hands of the petitioners and their co-accused.
Salvacion also submitted receipts in the total amount of P2,174.80, representing the
medical expenses incurred for the treatment of Rodolfos injuries resulting from the
incident.14
The prosecution presented the Medico-Legal Certificate issued by the Records
Division of the PGH showing that Rodolfo suffered multiple stab wounds in the
abdomen and underwent an exploratory laparotomy,15 the standard surgery in
abdominal trauma cases involving life-threatening injuries.16
To refute the accusations against them, the petitioners offered an entirely different
scenario.
Not only did he deny the allegations against him but Ronald even claimed that he
was the one who was stabbed by Rodolfo. Ronald averred that the incident
happened within the vicinity of his home, which was about four meters away from
the house of Rodolfo.17 When Ronald heard Rodolfo shouting at around 2:00 a.m., he
tried pacifying Rodolfo by telling him that they would just talk later in the day.
Unappeased, Rodolfo allegedly destroyed the bicycle belonging to Ronalds son-in-
law. Rodolfo then attacked Ronald by stabbing him on his right arm. It was during
this time that Ronalds son, Bobot, came to his rescue but was prevented from doing
so as Bobot was also struck with a knife by Rodolfo. Ronald and his son instituted a
criminal complaint against Rodolfo for attempted homicide but nothing came out of
it. In support of his testimony, Ronald presented a picture taken the day after the
incident showing a slipper purportedly belonging to Rodolfo and a balisong. Ronald
further insisted that all the other accused were not around as they were residing
elsewhere at that crucial time.
Bobot testified that he immediately rushed outside his house, which is located beside
his fathers, upon hearing Ronald shout, "Tulungan mo ako, ako'y
sinaksak."18 However, he was not able to save his father as he himself was stabbed
twice with a knife by Rodolfo. A struggle for the possession of the knife between
Bobot and Rodolfo ensued and in the process, the latter accidentally sustained a stab
wound in the abdomen. Still, Bobot asserted that it was Rodolfo who ran away from
the scene of the crime. Meanwhile, Ronald had already left for the nearby police
detachment to seek help.
Accused Emilio, for his part, interposed denial and alibi as his defenses. He
emphatically denied that he threw a stone at Rodolfo. On the date and time of the
incident, Emilio claimed that he was working overtime as a laborer in Moonwalk,
Las Pias City, which is one kilometer away from the crime scene. He argued that he
was just unfortunately dragged into this case which had nothing to do with him at
all.19
The defense likewise proffered two medical certificates to support the petitioners
claims. The July 15, 2001 medical certificate issued by Dr. Ma. Cecilia Leyson (Dr.
Leyson), of the Ospital ng Maynila, declared that Ronalds body bore lacerations and
hematoma at the time she attended to him. Nevertheless, Dr. Leyson acknowledged
that she had no idea how the injuries were sustained by Ronald. The other medical
certificate dated March 20, 2006 was issued by Dr. Renato Borja (Dr. Borja), a
physician affiliated with the Paraaque Community Hospital where Bobot was
taken after getting injured. Based on the hospital records, Dr. Borja testified that
Bobot had sustained wounds on the head and chest, possibly caused by a sharp
instrument.20
Petitioners Representation in the Trial Court Proceedings
In view of the petitioners allegation that they were denied of right to counsel, a
narration of petitioners representation in the trial court proceedings is imperative.
During the arraignment on May 9, 2002, Ronald and Bobot were assisted by Atty.
Bibiano Colasito, who was selected as their counsel de oficio only for that occasion. At
his arraignment on December 10, 2002, Emilio appeared with the assistance of Atty.
Antonio Manzano (Atty. Manzano), who was then appointed by the trial court as
counsel de oficio for all the accused. In the pre-trial conference that followed, Atty.
Manzano appeared for the petitioners. Atty. Manzano was informed that the trial for
the presentation of prosecution evidence was set on June 18, 2003.
Both Rodolfo and PO2 Sulit completed their respective testimonies during the June
18, 2003 hearing. However, Atty. Manzano failed to appear at the said hearing
despite prior notice. Likewise, Ronald, one of the petitioners, absented himself from
the same hearing. As a result, the RTC issued the June 18, 2003 Order,21 the pertinent
portion of which reads:
Due to the failure of Atty. Manzano to appear in todays proceeding despite due
notice and so as not to delay the proceedings herein, his right to cross-examine the
said two (2) witnesses is deemed waived. At the same time, Atty. Manzano is hereby
fined the amount of P2,000.00 for his absence in todays proceedings despite the fact
that the same has been previously set and known to him, without even filing any
motion or pleading regarding his inability to appear herein which clearly indicates a
show of disrespect to the authority of this Court.
Let a warrant of arrest be issued against accused Ronald Ibaez for failing to appear
in todays hearing despite notice and the bond posted by him for his provisional
liberty confiscated in favor of the government. As such, the bondsman BF General
Insurance Company, Inc., is hereby directed to produce the body of the said accused
within thirty (30) days from receipt of this Order and to show cause why no
judgment should be rendered against the bond.
The Director of the National Bureau of Investigation and the Director of the Criminal
Investigation Service Command, PNP, Camp Crame, are hereby directed to explain
within five (5) days from receipt of this Order why the warrants of arrest issued
against Boyet Ibaez and David Ibaez remain unimplemented and/or no return
submitted to this Court.
Thereafter, Atty. Manzano withdrew as petitioners counsel de oficio. In its
Order22 dated September 3, 2003, the trial court appointed Atty. Gregorio Caeda, Jr.
(Atty. Caeda) as the new counsel de oficio of the petitioners. On the same date, Atty.
Caeda conducted the cross-examination of Ruth and even expressed his desire to
continue with the cross-examination of said witness on the next scheduled hearing.
In the hearing of September 17, 2003, Atty. Caeda appeared for the petitioners but
Bobot and Emilio did not show up. This prompted the trial court to issue the
corresponding warrants for their arrest and the bonds posted by them for their
provisional liberty were ordered confiscated in favor of the government. Despite the
continued absence of his clients, Atty. Caeda religiously attended the succeeding
hearings. On November 5, 2003, upon his request, the trial court relieved Atty.
Caeda of his designation as counsel de oficio for the petitioners.
Per the trial courts Order23 dated February 10, 2004, Atty. Ma. Teresita C. Pantua
(Atty. Pantua), of the Public Attorneys Office, was designated as the petitioners
counsel de oficio. However, Atty. Pantuas designation was recalled upon her
manifestation that she had previously assisted Rodolfo in initiating the present case.
In her stead, the trial court appointed the petitioners current counsel de oficio, Atty.
Juan Sindingan (Atty. Sindingan).
Since then, Atty. Sindingan has been representing the petitioners. With his help, all
three petitioners finally appeared before the trial court on May 5, 2005. Atty.
Sindingan handled the cross-examination of another prosecution witness, Salvacion,
as well as the presentation of evidence for the defense.
After both parties had rested their case, they were required to submit their
respective memoranda in thirty (30) days. Atty. Sindingan submitted the
Memorandum for the petitioners while no memorandum was ever filed by the
prosecution. Thereafter, the case was deemed submitted for decision.
The RTCs Ruling
The RTC accorded more weight to the positive testimonies of the prosecution
witnesses over the declarations of the defense, thus, the dispositive portion of its
judgment reads:
WHEREFORE, the foregoing considered, the Court finds accused Ronald Ibaez,
Emilio Ibaez and Daniel "Bobot" Ibaez GUILTY beyond reasonable doubt of the
crime of frustrated homicide and hereby sentences them to each suffer the penalty of
imprisonment of SIX (6) YEARS AND ONE (1) DAY of prision mayor, as minimum,
up to EIGHT (8) YEARS of prision mayor, as maximum, as well as to suffer the
accessory penalties provided for by law.
Also, accused Ronald Ibaez, Emilio Ibaez and Daniel "Bobot" Ibaez are ordered
to pay to private complainant or victim Rodolfo Lebria the sum of P2,174.80
representing his actual medical expenses.
With costs de officio.
SO ORDERED.24
The petitioners filed a motion for reconsideration of the RTC Decision but this was
denied in an Order25 dated October 11, 2007. Undaunted, the petitioners elevated
their case to the CA. They faulted the trial court for totally disregarding their claim
that Rodolfo was the aggressor and for not recognizing that Bobot was merely acting
in self-defense when Rodolfo was stabbed. The petitioners also asserted that they
were deprived of their constitutional right to counsel.
The CAs Ruling
The CA agreed with the trial courts judgment of conviction but modified the
penalty imposed. The appellate court sentenced the petitioners to suffer the
indeterminate penalty of six (6) years of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor as maximum. The CA also found it proper to
award P15,000.00 as temperate damages and P30,000.00 as moral damages to
Rodolfo. The petitioners sought a reconsideration of the CAs decision. Still, their
motion was denied in the Resolution26 of December 28, 2009.
The Issue
Hence, the present petition for review on certiorari raising the lone issue of whether
the petitioners were deprived of their constitutionally guaranteed right to counsel.
The Court's Ruling
The Court sustains the conviction of the petitioners with modification.
No Deprivation of Right to Counsel
The right invoked by the petitioners is premised upon Article III, Section 14 of the
Constitution which states that:
Section 14. (1) No person shall be held to answer for a criminal offense without due
process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, x x
x.
Guided by the constitutionally guaranteed right of an accused to counsel and
pursuant to its rule-making authority, the Court, in promulgating the Revised Rules
of Criminal Procedure, adopted the following provisions:
Rule 115, SEC. 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled to the following rights:
xxxx
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. x x x
xxxx
Rule 116 of the same Rules makes it mandatory for the trial court to designate a
counsel de oficio for the accused in the absence of private representation. It provides:
SEC. 6. Duty of court to inform accused of his right to counsel. Before arraignment, the
court shall inform the accused of his right to counsel and ask him if he desires to
have one. Unless the accused is allowed to defend himself in person or has
employed counsel of his choice, the court must assign a counsel de officio to defend
him.
SEC. 7. Appointment of counsel de officio. The court, considering the gravity of the
offense and the difficulty of the questions that may arise, shall appoint as counsel de
officio such members of the bar in good standing who, by reason of their experience
and ability, can competently defend the accused. But in localities where such
members of the bar are not available, the court may appoint any person, resident of
the province and of good repute for probity and ability, to defend the accused.
The right to be assisted by counsel is an indispensable component of due process in
criminal prosecution.27 As such, right to counsel is one of the most sacrosanct rights
available to the accused.28 A deprivation of the right to counsel strips the accused of
an equality in arms resulting in the denial of a level playing field.29 Simply put, an
accused without counsel is essentially deprived of a fair hearing which is
tantamount to a grave denial of due process.30
On the basis of this ratiocination and as a last ditch effort to be exculpated, the
petitioners insisted that they were denied of their right to counsel when their
counsel de oficio failed to appear on the June 18, 2003 trial court hearing during
which Rodolfo and PO2 Sulit gave their testimonies. As a consequence, the
petitioners argued that they were divested of the opportunity to cross-examine the
said two prosecution witnesses.
The Office of the Solicitor General (OSG), for its part, disputed the petitioners claim
that they were deprived of their constitutional right to counsel. In their May 5, 2010
Comment31 on the instant petition, the OSG pointed out that since the beginning of
the proceedings in the trial court until the filing of the present petition before this
Court, three (3) counsel de oficio were appointed and represented the
petitioners32 and to which designation the latter did not raise any protest.33 The OSG
opined that the trial court judge made sure that the petitioners were adequately
assisted by a counsel de oficio when they failed to engage the services of a lawyer of
their own choice. Thus, the OSG recommended the dismissal of the petition.
The Court agrees with the position taken by the OSG.
There was no denial of right to counsel as evinced by the fact that the petitioners
were not only assisted by a counsel de oficio during arraignment and pre-trial but
more so, their counsel de oficio actively participated in the proceedings before the
trial court including the direct and cross-examination of the witnesses.34 As aptly
found by the CA, the petitioners were duly represented by a counsel de oficio all
throughout the proceedings except for one hearing when their court appointed
lawyer was absent and Rodolfo and PO2 Sulit presented their testimonies.35 As
previously stated, it was during said hearing when the trial court declared that the
cross-examination of the said two prosecution witnesses was deemed waived.
Mere opportunity and not actual cross-examination is the essence of the right to cross-
examine.36 The case of Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et
al. thoroughly explained the meaning and substance of right to cross-examine as an
integral component of due process with a colatilla that the same right may be
expressly or impliedly waived, to quote:
The right of a party to confront and cross-examine opposing witnesses in a judicial
litigation, be it criminal or civil in nature, or in proceedings before administrative
tribunals with quasi-judicial powers, is a fundamental right which is part of due
process. However, the right is a personal one which may be waived expressly or
impliedly, by conduct amounting to a renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to cross-examine a witness but failed to
avail himself of it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be received or allowed to
remain in the record.37
Such is the scenario in the present case where the reason why Rodolfo and PO2 Sulit
were not subjected to cross-examination was not because the petitioners were not
given opportunity to do so. Noticeably, the petitioners counsel de oficio omitted to
mention that in the June 18, 2003 hearing, Ronald, one of the accused, did not show
up despite prior notice. Thus, the bail bond posted for his provisional liberty was
ordered confiscated in favor of the government. Ironically, Ronald comes to this
Court asserting the very right he seemingly waived and abandoned for not
attending the scheduled hearing without justifiable cause. Moreover, neither did the
petitioners interpose any objection to the presentation of testimony of the
prosecution witnesses during the June 18, 2003 hearing nor did their counsel de
oficio subsequently seek a reconsideration of the June 18, 2003 Order.
Further, the trial court judge, when he issued the June 18, 2003 Order, was merely
exercising a judicial prerogative. No proof was presented by the defense showing
that the exercise of such discretion was either despotic or arbitrary.
Going by the records, there is no indication that any of the counsel de oficio had been
negligent in protecting the petitioners interests. As a matter of fact, the counsel de
oficio kept on attending the trial court hearings in representation of the petitioners
despite the latters unjustified absences.
In sum, the Court is not persuaded that the absence of the counsel de oficio in one of
the hearings of this case amounts to a denial of right to counsel. Nor does such
absence warrant the nullification of the entire trial court proceedings and the
eventual invalidation of its ruling. In People v. Manalo, the Court held that the fact that
a particular counsel de oficio did not or could not consistently appear in all the hearings of
the case, is effectively a denial of the right to counsel, especially so where, as in the instant
case, there is no showing that the several appointed counsel de oficio in any way neglected to
perform their duties to the appellant and to the trial court and that the defense had suffered in
any substantial sense therefrom.38
Guilt Proven Beyond Reasonable Doubt
At any rate, the factual findings of the RTC as affirmed by the CA, which are backed
up by substantial evidence on record, led this Court to no other conclusion than that
the petitioners are guilty of frustrated homicide.
The elements of frustrated homicide are: (1) the accused intended to kill his victim,
as manifested by his use of a deadly weapon in his assault; (2) the victim sustained
fatal or mortal wound/s but did not die because of timely medical assistance; and (3)
none of the qualifying circumstance for murder under Article 248 of the Revised
Penal Code, as amended, is present.39 There being no prior determination by both
the trial and appellate courts of any qualifying circumstance that would elevate the
homicide to murder, the Court will simply limit its discussion to the first two
elements.
In ascertaining whether intent to kill exists, the Court considers the presence of the
following factors: (1) the means used by the malefactors; (2) the nature, location and
number of wounds sustained by the victim; (3) the conduct of the malefactors before,
during, or immediately after the killing of the victim; and (4) the circumstances
under which the crime was committed and the motives of the accused.40
Here, intent to kill Rodolfo was evident in the manner in which he was attacked, by
the concerted actions of the accused, the weapon used and the nature of wounds
sustained by Rodolfo.
Both the RTC and CA correctly appreciated the presence of conspiracy. Conspiracy
presupposes unity of purpose and unity of action towards the realization of an
unlawful objective among the accused.41 Its existence can be inferred from the
individual acts of the accused, which if taken as a whole are in fact related, and
indicative of a concurrence of sentiment.42 In this case, conspiracy was manifested in
the spontaneous and coordinated acts of the accused, where two of them delivered
the initial attack on Rodolfo by stoning, while another struck him with a shovel and
the third held him so that the other two can simultaneously stab Rodolfo. It was only
when Rodolfo laid helpless on the ground and had lost consciousness that the
accused hurriedly left the scene. This chain of events leading to the commission of
the crime adequately established a conspiracy among them.
Plainly, the kind of weapon used for the attack, in this case, a knife and the vital
parts of Rodolfos body at which he was undeniably stabbed demonstrated
petitioners intent to kill. The medico-legal certificate revealed that Rodolfo
sustained multiple stab wounds in the epigastrium, left upper quadrant of the
abdomen resulting to internal injuries in the transverse colon (serosal), mesentery
and left kidney.43 Given these injuries, Rodolfo would have succumbed to death if
not for the emergency surgical intervention.
With respect to the petitioners defenses of denial and alibi, the Court concurs with
the lower courts rejection of these defenses. An assessment of the defenses of denial
and alibi necessitates looking into the credibility of witnesses and their testimonies.
Well-settled is the rule that in determining who between the prosecution and
defense witnesses are to be believed, the evaluation of the trial court is accorded
much respect for the simple reason that the trial court is in a better position to
observe the demeanor of the witnesses as they deliver their testimonies.44 As such,
the findings of the trial court is accorded finality unless it has overlooked substantial
facts which if properly considered, could alter the result of the case.45
In the instant case, the Court finds no cogent reason to deviate from this rule
considering the credibility of the prosecution witnesses.
The trial and appellate courts were right in not giving probative value to petitioners
denial. Denial is an intrinsically weak defense that further crumbles when it comes
face-to-face with the positive identification and straightforward narration of the
prosecution witnesses.46 Between an affirmative assertion which has a ring of truth
to it and a general denial, the former generally prevails.47 The prosecution witnesses
recounted the details of the crime in a clear, detailed and consistent manner, without
any hint of hesitation or sign of untruthfulness, which they could not have done
unless they genuinely witnessed the incident. Besides, the prosecution witnesses
could not have mistakenly identified the petitioners as Rodolfos perpetrators
considering there is so much familiarity among them. The records are also bereft of
any indication that the prosecution witnesses were actuated by ill motives when
they testified against the petitioners. Thus, their testimonies are entitled to full faith
and credit.
In contrast, the petitioners testimonies are self-serving and contrary to human
reason and experience.
The Court notes that the defense presented no witnesses, other than themselves, who
had actually seen the incident and could validate their story. Additionally, aside
from the medical certificates of Ronald and that of Bobot which was issued almost
five (5) years since the incident occurred, the defense have not submitted any
credible proof that could efficiently rebut the prosecutions evidence.
Further, the Court finds it contrary to human reason and experience that Ronald,
would just leave his son Bobot, while the latter was being stabbed and struggling for
the possession of the knife with Rodolfo, to go to a police station for assistance. Logic
dictates that a father would not abandon a son in the presence of actual harm.
For the defense of alibi to prosper, the petitioners must not only prove by clear and
convincing evidence that he was at another place at the time of the commission of
the offense but that it was physically impossible for him to be at the scene of the
crime.48 Emilio himself admitted that he was just one kilometer away from the crime
scene when the incident happened during the unholy hour of 1:00 a.m. of July 15,
2001. As such, Emilio failed to prove physical impossibility of his being at the crime
scene on the date and time in question. Just like denial, alibi is an inherently weak
defense that cannot prevail over the positive identification by the witnesses of the
petitioners as the perpetrators of the crime.49 In the present case, Emilio was
positively identified by the prosecution witnesses as one of the assailants. Moreover,
alibi becomes less credible if offered by the accused himself and his immediate
relatives as they are expected to make declarations in his favor,50 as in this case,
where Emilio, his father and brother insisted that the former was somewhere else
when the incident occurred. For these reasons, Emilios defense of alibi will not hold.
Anent Bobot's claim of self-defense, it is undeserving of any serious consideration or
credence. Basic is the rule that the person asserting self-defense must admit that he
inflicted an injury on another person in order to defend himself.51 Here, there is
nothing on record that will show that Bobot categorically admitted that he wounded
Rodolfo.
Based on the foregoing, the Court upholds the trial and appellate courts' conviction
of the petitioners for frustrated homicide.1wphi1
Penalty and Civil Liability
Article 249 of the Revised Penal Code provides that the imposable penalty for
homicide is reclusion temporal. Article 50 of the same Code states that the imposable
penalty upon principals of a frustrated crime shall be the penalty next lower in
degree than that prescribed by law for the consummated felony. Hence, frustrated
homicide is punishable by prision mayor. Applying the Indeterminate Sentence Law,
there being no aggravating or mitigating circumstances present in this case, the
minimum penalty to be meted on the petitioners should be anywhere within the
range of six (6) months and one (1) day to six (6) years of prision correccional and the
maximum penalty should be taken from the medium period of prision mayor ranging
from eight (8) years and one (1) day to ten (10) years. Thus, the imposition by the CA
of imprisonment of six (6) years of prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor, as maximum, is proper.
As regards the civil liability of the petitioners, the Court sustains the award of moral
and temperate damages with modification as to the latter's amount.
Pursuant to Article 2224 of the Civil Code, temperate damages may be recovered
when some pecuniary loss has been suffered but the amount of which cannot be
proven with certainty. In People v. Villanueva52 and Serrano v. People,53 the Court ruled
that in case the amount of actual damages, as proven by receipts during trial is less
than P25,000.00, the victim shall be entitled to P25,000.00 temperate damages, in lieu
of actual damages of a lesser amount. In the instant case, only the amount of
P2,174.80 was supported by receipts. Following the prevailing jurisprudence, the
Court finds it necessary to increase the temperate damages from P15,000.00 to
P25,000.00.
The award of moral damages is justified under Article 2219 of the Civil Code as
Rodolfo sustained physical injuries which were the proximate effect of the
petitioners' criminal offense. As the amount is left to the discretion of the court,
moral damages should be reasonably proportional and approximate to the degree of
the injury caused and the gravity of the wrong done.54 In light of the attendant
circumstances in the case, the Court affirms that P30,000.00 is a fair and reasonable
grant of moral damages.
WHEREFORE, the assailed Court of Appeals Decision dated September 25, 2009 in
CA-G.R. CR. No. 31285
is AFFIRMED with MODIFICATION. Petitioners RONALD IBAEZ, EMILIO
IBAEZ and DANIEL "BOBOT" IBAEZ are found guilty of frustrated homicide
and sentenced to a prison term of six (6) years of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum. They are also ordered
to pay RODOLFO LEBRIA Twenty Five Thousand Pesos (P25,000.00) as temperate
damages and Thirty Thousand Pesos (P30,000.00) as moral damages.
SO ORDERED.
MARIANO LIM, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO JR., J.:
The Case
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeking the reversal of the Decision1 dated July 30, 2013 and Resolution2 dated
February 28, 2014 of the Court of Appeals (CA), which affirmed the Decision3 dated
February 17, 2009 of the Regional Trial Court (RTC), Branch 8 in Davao City,
convicting petitioner Mariano Lim (Lim) for violating Presidential Decree No. 1612
(PD 1612), otherwise known as the Anti-Fencing Law of 1979.
The Facts
An Information dated June 27, 1997 charged Lim with the following:
That on or about January 16, 1997, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, being then the
proprietor of Basco Metal Supply located at Matina, Davao City, with intent to gain
for himself, wilfully (sic), unlawfully and feloniously purchased and received for
P400,000.00 one (1); unit komatsu Road Grader with Chassis Model and Serial No.
GD-51R-100049 and bearing an (sic) Engine Serial Number 6D951-55845 owned by
Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan
Kudarat, being lodged for repair at the Facoma Compound of Poblacion Norala,
South Cotabato, and possessed the same, knowing that said Komatsu Road Grader
was stolen, thereby committing an act of fencing in violation of the Anti-Fencing
Law of 1979, to the damage and prejudice of the aforesaid complainant in its true
value of P2,000[,]000.00.
CONTRARY TO LAW.4
Upon arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits
ensued.5chanrobleslaw
The prosecution presented two witnesses: (1) Engr. Herminio Gulmatico, the project
engineer of the Second Rural Road Improvement Project (SRRIP) PMO-DPWH of
Isulan, Sultan Kudarat; and (2) SPO4 Alfredo T. Santillana. The testimonies of the
prosecution witnesses were summarized by the trial court, as follows:
SPO4; Santillana testified that i. [S]ometime in January 1997, he was an investigator
of the theft and robbery section of Police Precinct No. 3, Talomo, Davao City; ii. [I]n
the afternoon of January 31, 1997, Engr. Herminio Gulmatico went to his office to
seek assistance in the recovery of a Komatsu Road Grader bearing Engine Serial
Number 6D951-55 845 and Chassis No. GD-51R-100[0]49; iii. [H]e was informed by
Gulmatico that said heavy equipment could be found at Basco Metal Metal (sic)
Supply along Me Arthur Highway, Davao City; iv. [T]his information was caused to
be verified by the station commander of said Police Precinct and after finding out
that it was accurate, a search warrant was applied for; and v. [T]he search warrant
was served on Basco Metal Supply where the aforedescribed heavy equipment was
found.
Engr. Gulmatico for his part testified that: i. [H]e is the project engineer of the
[SRRIP] PMO-DPWH of Isulan, Sultan Kudarat; ii. [O]n July 1, 1996, he received
from Engineer Ireneo Veracion, the former project engineer, the aforesaid heavy
equipment; iii. [S]ometime in June of 1997 the heavy equipment was in the Facoma
Compound in Norala, South Cotabato undergoing repairs; iv. [Ajround the third
week of January, ; 1997, he was. informed that the heavy equipment was removed
from that n compound by-Petronilo Banosing; v. [H]e was also told that the heavy
equipment was loaded on a ten wheeler truck and brought to DaVao City
particularly at Km. 3 Me Arthur Highway; vi. [A]rmed with this information tie
proceeded to Davao City and sought the assistance of Talomo Police Precinct; vii.
[T]he consequent search warrant applied for by the police officers of that precinct
was served on Basco Metal Supply where the heavy equipment was found.6
On the other hand, petitioner was presented as the sole witness for the defense. The
trial court summarized petitioner's testimony, to wit:
Accused Mariano Lim did not present testimonial evidence other than his and
testified, thus: i. [H]e bought the heavy equipment from Petronilo Banosing for Four
Hundred Thousand (P400,000.00) Pesos; ii. Banosingsshowed him a Certificate of
Ownership that stated that the heavy equipment is his; and, iii. [H]e checked with
the DPWH in Manila and found out that the subject heavy equipment is not
included in the inventory ofequipmentoftheDPWH.7chanroblesvirtuallawlibrary
Ruling of the RTC
The RTC found Lim guilty beyond reasonable doubt of the crime of fencing under
PD 1612, to wit:
FOR THE FOREGOING[,] this Court finds accused[,] MARIANO LIM[,] GUILTY
beyond reasonable doubt for violation of Presidential Decree No. 1612 otherwise
known as the Anti-Fencing Law of 1979 and applying the Indeterminate Sentence
Law, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of
from TWELVE (12) YEARS of PRISION MAYOR as Minimum to EIGHTEEN (18)
YEARS of RECLUSION TEMPORAL as Maximum. Accused is also directed to
indemnify the DPWH the amount of One Hundred Thousand (P100,000.00) Pesos.
SO ORDERED.8
In imposing the penalty, the trial court applied the Indeterminate Sentence Law in
relation to Section 3(a) of PD 1612, based on its own valuation of the heavy
equipment considering that the prosecution did not present any evidence on this
matter. The trial court set the value of the heavy equipment at one hundred
thousand pesos (P100,000) after finding that essential parts of the engine were
already removed at the time of its discovery.
Aggrieved, petitioner appealed the case to the CA.

Ruling of the CA
On July 30, 2013, the appellate court rendered the assailed Decision upholding me
filings of the trial court, the dispositive portion of which reads:
WHEREFORE, premises considered, the decision appealed from is
hereby AFFIRMED in toto.
Petitioner filed a Motion for Reconsideration but the CA denied the same in the
assailed Resolution, ruling that the arguments raised had already been considered
and thoroughly discussed in the assailed Decision.
Hence, the present petition.

The Issues
Petitioner raised the following assignment of errors:
I.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN

CONVICTING THE PETITIONER FOR VIOLATION OF PRESIDENTIAL DECREE
NO. 1612, OTHERWISE KNOWN AS THE ANTI-FENCING LAW OF 1979
BECAUSE THE CRIME OF THEFT HAS NOT BEEN PROVEN IN COURT AND
THE PERSON ACCUSED OF THEFT IS AT-LARGE OR A FUGITIVE FROM
JUSTICE.
II.

CONVICTING THE PETITIONER NOTWITHSTANDING THE FACT THAT HE IS
A PURCHASER FOR VALUE AND IN GOOD FAITH, WITHOUT INTENT TO
GAIN.
III.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED WHEN IT
CONSIDERED THE MEMORANDUM RECEIPT OF THE DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS AS EVIDENCE OF OWNERSHIP OF THE
KOMATSU ROAD GRADER.
IV.

CONVICTING THE PETITIONER EVEN IF HIS GUILT WAS NOT PROVEN
BEYOND REASONABLE DOUBT.10
In its Comment,11 public respondent raised the following issues:
I.
ALL THE ELEMENTS FOR THE OFFENSE OF VIOLATION OF THE ANTI-

FENCING LAW AND THE GUILT OF PETITIONER WERE ESTABLISHED AND
PROVED BY THE PROSECUTION BEYOND REASONABLE DOUBT.
II.
THE FACTUAL ISSUES RAISED BY PETITIONER DO NOT FALL UNDER THE

RECOGNIZED EXCEPTIONS TO THE RULE THAT ONLY QUESTIONS OF LAW
MAY BE ENTERTAINED IN A PETITION FOR REVIEW ON CERTIORARI UNDER
RULE 45 OF THE RULES OF COURT.
The basic issue in the instant case is whether or not the CA erred in sustaining the
petitioner's conviction. Central to resolving this issue is determining whether or not
the elements of the crime of fencing were established by the prosecution.
The Court's Ruling
The petition is impressed with merit.
The following are the essential elements of the crime of fencing:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of the crime
of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or
disposes, or buys and sells, or in any manner deals in any article, item, object or
anything of value, which has been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or
theft; and:
chanRoblesvirtualLawlibrary4. There is on the part of the accused, intent to gain for

himself or for another.12
In the present case, the trial court relied heavily on the testimony of Engr. Gulmatico
in finding that all elements of fencing exist. The trial court said:
In the instant case the Court finds that the prosecution has established the existence
of the first, second, third and fourth elements. A theft was committed when
Petronilo Banosing took subject (sic) heavy equipment from Facoma Compound in
Norala, South Cotabato on January 16, 1997 and a Case for Theft or Criminal Case
No. 275 was filed. The stolen heavy Equipment, after a search warrant was issued,
was found in the premises of Basco Metal Supply owned by the accused, Mariano
Lim, located at Km 3, Matina, Davao City. Basco Metal Supply is in the business of
buying used equipment.13chanroblesvirtuallawlibrary
This Court has honored the principle that an appeal in a criminal case opens the
whole action for review on any question including those not raised by the parties.
The reason for this rule is that every circumstance in favor of the accused should be
considered.14chanrobleslaw
After a careful and thorough review of the records, we are convinced that the trial
court erred in convicting herein petitioner.
On the first element, we find that the prosecution failed to establish that theft had
been committed.
Theft tinder Article 308 of the Revised Penal Code has been defined as the taking of
someone's property without the owner's consent, for his personal gain, and Without
committing any violence against or intimidation of persons or force, upon things.
The elements of theft are: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that
the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the Use of violence against or intimidation of persons or force
upon things.15chanrobleslaw
While the CA correctly ruled that conviction of the principal in the crime of theft is
not necessary for an accused to be found guilty of the crime of fencing, we disagree
with its ruling that the prosecution sufficiently proved the DPWH's ownership of the
Komatsu Grader.
During trial, the prosecution presented the testimony of Engr. Gulmatico, the project
engineer for the SRRIP of the DPWH. Engr. Gulmatico testified on his discovery of
the theft of one unit lyomatsu Road Grader with engine number GD95L-558I45
allegedly owned by the DPWH. However, except for his statement that the subject'
grader was procured by his office, Engr. Gulmatico failed to establish his or his
office's ownership over the subject grader. Thus:
PROS. BELO
Q The subject of this case for violation of Anti Fencing law against the person of
Mr. Mariano Lim is a one unit Komatsu Road Grader with engine number
GD95L-55845, can you tell us if you are familiar with this particular unit?
A Actually, this grader was assigned to us sometime [in] 1989 it [was] lost 10
years after.
Q Tell us who was the accountable officer of this particular unit when it was
lost?
A It was already M.R. to me during that time.
Q Do you have any evidence that the same unit (sic) or there was a
Memorandum Receipt already issued to you?
A Yes, sir.
Q I am showing to you a document already marked as Exhibit "A" for the

prosecution, tell us if this is the document, [M]emorandum Receipt you are
referring to?
A Yes, sir.
Q May we pray, Your Honor, that the item indicated/described in this

Memorandum Receipt be ordered marked as Exhibit "A-1". (So marked)
Q From whom did you receive this unit of which a Memorandum Receipt was
issued to you?
A From the previous project engineer, sir.
Q There is a signature appearing over the name GERMENIO GULMATICO, tell

us whose signature that, is that your signature?
A Yes, sir, that is my signature.
Q This signature indicates that you received the item under your accountability?
A Yes, sir.16
On cross-examination, Engr. Gulmatico admitted that he received no confirmation

from the DPWH Manila office as to who purchased the subject grader:
ATTY. CHUA
Q You [are] also aware Mr. Witness that there are no markings because the unit
was originally purchased by the World Bank?
A Actually, sir, there are markings we have engraved before but because the
equipment was continuously used, it got erased, sir, we have three dump
trucks, we have many equipments and we have marked it DPWH but because
of the time that had past it got erased and considering the manner and the job
that we are using it. Actuary, the front of the grader [is] marked SRRIP,
during that time but at that time that it was lost, it was erased when it was
turned over to us.
Q But [can you] reiterate the fact that when it was MR to you there was no
identification marks?
A Yes.
Q And of course you are not the person who erased those marks?
A Yes.
Q And you also admit going back to my earlier question that this unit was
purchased by the World Bank?
A I don't know, sir what was the condition with our Office at Manila but as far
as I know that our project was funded by the World Bank and I mink the
procurement was done in Manila, so it might be the World Bank or at the
request of our office as funded by the World Bank.
Q But you will admit that this particular SRRIP project was funded by the
World Bank?
A Yes, sir.
Q Did you try to check with your DEPO in Cotabato City or in your Port Area
Office in Manila whether this particular unit was one of those listed in the
inventory of the DPWH, did you check?
A Actually, sir, I have some request in Manila that they will furnish u^ the
original acquisition cost but the people in Manila do hot give us time to that
thing (sic), perhaps this might be the third time that I will have to request so
that our Office can avail of those things and we can say further about it, sir.
Q Did you not try to write or inquire from the Project Director Paliamen
Mamaente of the Project Management Office of your department in port area
whether this unit w,as actually purchased by the World Bank?
A Yes, I have, sir.
Q What was the reply of project Director Mamaente, if any?
A I did not receive any [reply], sir.17 x x x
Even the Memorandum Receipt submitted by the prosecution and relied upon by
the trial court is wanting. Nowhere in the Memorandum Receipt does it state that
the subject grader is owned by the DPWH. The portions which should show the date
acquired, property number, classification number, and unit value for the grader,
were left blank. At best, the Memorandum Receipt is a mere indicator that the
subject grader was received by Engr. Gulmatico for his safekeeping arid
responsibility.
Being the government agency in charge of construction projects, the DPWH is

expected to have a database of all equipment and materials it uses for easy reference
of its employees. The prosecution's failure to present a sufficient proof of ownership
of the grader despite the many opportunities it had to do so places doubt on the
DPWH's claim of ownership. Thus, it cannot be said that the first element of fencing
had been established.
In fact, the prosecution even failed to conclusively establish that the grader had been
stolen. Engr. Gulmatico's testimony on the alleged act of theft should not be given
any weight considering that he had no personal knowledge of the actual theft. Most,
if not his entire testimony, consisted of hearsay evidence as he relied mostly on the
information given to him by various persons, to wit:
PROS. BELO
Q While under your accountability, can you recall if anything happened [with]
this particular unit?
A On January 26, 1997, I was informed by my driver that this said grader was
previously lodged for repair in the compound of Petronilo Banosing in the
evening of January 26, 1997.
Q Can you still recall who informed you of the taking of this unit by one
Petronilo Banosing?
A Yes, sir, it was my driver because I [told] him to visit once in a while our area
in Nohralla.
Q Can you tell us what is the name of the driver?
A Yes, Venecio Calderon.

xxxx
Q After you were informed of the fact that the item subject of this case was
stolen, what action if any, did you take?
A During, the filing of the case, we [waited] for almost two days and during that
time, Mr. Basilio Elaga, owner of the Pakoma Compound informed me that
a Ten Wheeler Truck coming from Isulan was the transportation used in
taking that grader, so after two days of filing, we contacted all operators in
Isulan and we found out a ten wheeler truck with plate no. MB8116 driven by
Mr. Ricardo Mamon and being assisted by Mr. Digdigan as the grader was
being transported to [an] unknown place.
Q Were you able to determine thereafter as to where the item was brought?
A When I conducted a thorough investigation and inquiries to the truck helper,

he informed me that said grader was transported to Davao City, particularly
it was dropped down at Km. 3, Mac Arthur Highway, Matina, Davao City.18x
x x (Emphasis supplied)
Even upon clarificatory questioning by the trial court judge, Engr. Gulmatico's
answers were still based on information provided to him by third persons, as
follows:
COURT
Q You said that you first learned of the fact of its having been stolen
when your driver informed you that it was so stolen?
A Yes.
Q After you received this information from your driver, ybu made
inquiries as regards how it was stolen from the Pacoma Compound?
A Yes.
Q And the results of your inquiries showed that it was taken by a [ten]
wheeler driven by Ricardo Mamon who [was] accompanied by Ronnie
Digdigan?
Q After receiving this information, you were able to talk to this people?
A No, it was only Ronnie Digdigan, the helper.
Q This Digdigan informed you that the grader was transported to

Davao City?
A Yes.
Q He specified to whom it was delivered?
A Yes, he told us that he dropped it at the compound near Robin

Marketing at Km. 3, Matina, Davao City.
Q Did you ask from Digdigan who hired them to transport this grader?
A Yes.
Q What did Digdigan tell you?
A He told me that it was Nilo Banosing who, hired them to get it from
Pacoma.19 x x x (Emphasis supplied)
Sec. 36, Rule 130 of the Rules of Court provides that witnesses can testify only with
regard to facts of which they have personal knowledge; otherwise, their testimonies
would be inadmissible for being hearsay.20 Evidence is hearsay when its probative
force depends on the competency and credibility of some persons other than the
witness by whom it is sought to be produced. The exclusion of hearsay evidence is
anchored on three reasons: (1) absence of cross-examination; (2) absence of
demeanor evidence; and (3) absence of oath.21chanrobleslaw
Consequently, hearsay evidence, whether objected to or not, has no probative value

unless it is shown that the evidence falls within any of the exceptions to the hearsay
rule as provided in the Rules of Court.22 However, none of the exceptions applies to
the present case.
A cursory reading of Engr. Gulmatico's testimony shows that his statements

pertaining to the alleged theft are all based on information which he claims to have
received from third persons, all of whom were never presented to testify under oath
in court. Thus, it was erroneous for the trial court to give probative value on Engr.
Gulmatico's testimony considering that the truth and credibility of such statements
cannot be ascertained for being mere hearsay.
Even assuming arguendo that theft had been committed, the third element of fencing
is wanting in this case.
In ruling that petitioner knew or should have known that the grader was the object
of theft, the trial court held that petitioner was unable to rebut the presumption
under PD 1612, thus:
Accused was unable to rebut the presumption under PD1612. The Certificate of
Ownership executed by seller is unavailing. Suffice it to state that said document
being self-serving should not have been relied upon by the accused. It might even be
stated that this document should have made him even more wary that the seller did
not own the heavy equipment sold to him. The unauthenticated list of equipment
purportedly prepared by the DPWH that did not include the heavy equipment and
submitted by the accused as part of his defense is also unavailing. Put simply, he
verified with the DPWH its ownership of the heavy equipment long after the instant
case was filed. What is more, the list he presented was merely a photocopy whose
authenticity is doubtful. Under Section 6 of PD 1612, what he should have done was
to secure a clearance/permit from the police.23
The trial court ruled that petitioner should not have relied upon the Certificate of
Ownership presented by Banosing as it is self-serving. Instead, petitioner should
have secured a clearance or permit from the police, in compliance with Sec. 6 of PD
1612.
The CA went even further and placed the burden on petitioner, stating:
In this, case, the accused-appellant is engaged in buying and selling equipment as[
the proprietor of Basco Metal Supply. As a businessman who regularly engaged in
buying and selling equipment, the accused-appellant should have exercised more
diligence and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the
real owner of the Komatsu Grader. Moreover, the circumstances of the sale should
have put the accused-appellant on guard and should have impelled him to exercise
more caution in dealing with Petronilo Ban[o]sing who was selling not an ordinary
run down equipment but a heavy duty Komatsu grader which can only be owned by
a select few who engage in land development. Instead, the accused-appellant simply
relied on the Affidavit of Ownership and the representations of Petronilo Ban[o]sing
that he was a contractor, which is but a last ditch attempt, albeit futile, to exculpate
himself from criminal liability.24
We disagree.
On the presumption that fencing had been committed as provided by Sec. 5 of PD

1612, we rule that petitioner was able to overcome the same upon his presentation of
the Affidavit of Ownership which he secured from, Petronilo Banosing.
Both the RTC and the CA failed to consider that the Affidavit of Ownership given by
Petronilo Banosing to petitioner was a duly notarized document which, by virtue of
its notarization, enjoys a presumption of regularity, as elaborated in Ocampo v. Land
Bank of the Philippines:
It is well settled that a document acknowledged before a notary public is a public
document that enjoys the presumption of regularity. It is a prima facie evidence of the
truth of the facts stated therein and a conclusive presumption of its existence and
due execution. To overcome this presumption, there must be presented evidence
that is clear and convincing. Absent such evidence, the presumption must be upheld.
In addition, one who denies the due execution of a deed where one's signature
appears has the burden of proving that contrary to the recital in the jurat, one never
appeared before the notary public arid acknowledged the deed to be a voluntary act.
We have also held that a notarized instrument is admissible in evidence without
further proof of its due execution and is Conclusive as to the truthfulness of Its
contents, and has in its favor the presumption of regularity.25cralawred (citations
omitted)
Respondent argues that the presumption of regularity of the notarized Affidavit of

Ownership had been overturned. We rule otherwise. As pointed out by respondent,
to overcome the presumption of regularity of notarized documents, it is necessary to
contradict it with "evidence that is clear, convincing and more than merely
preponderant." Contrary to respondent's assertion, the ownership of the subject
grader was not conclusively established by the prosecution As earlier stated, Engr.
Gulmatico was unable to confirm its ownership in his testimony. Further, the
Memorandum Receipt also failed to establish this. Despite the many opportunities to
submit additional proof of ownership, the prosecution failed to do so.
The trial court also erred in applying Sec. 6 of PD 1612 to the present case:
While one who is in possession of the proceeds of robbery or theft is presumed to
have knowledge of the fact that said items were Stolen or (sic) PD 1612 provides a
safeguard or a protection for a would be buyer of second hand articles. Thus, Section
6 of said law provides:ChanRoblesVirtualawlibrary
"SEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this
Act, all stores, establishments or entities dealing in the buy and sell of any good,
article item, object of anything of value obtained from an unlicensed dealer or
supplier thereof, shall before offering the same for sale to the public, secure the
necessary clearance or permit from the station commander of the Integrated
National Police in the town or city where such store, establishment or entity is
located. The Chief of Constabulary/Director General, Integrated National Police
shall promulgate such rules and regulations to carry out the provisions of this
section. Any person who fails to secure the clearance or permit required by this
section or who violates any of the provisions of the rules and regulations
promulgated thereunder shall upon conviction be punished as a fence."
The aforequoted section simply means that a person who is engaged in the buying
and selling of an item from an unlicensed dealer or supplier shall, before offering the
same for sale to the public[,] secure the necessary clearance or permit from the
station commander of the Integrated National Police in the town or city where such
establishment or entity is located and any person who fails to secure the clearance or
permit required by |his section, shall upon conviction be punished as a fence,
(underscoring in the original)
x x x Under Section 6 of PD 1612, what he should have done was to secure a

clearance/permit from the police.26
It appears that both the RTC and the CA ruled that petitioner should have first
secured a Clearance or a permit from the police, in compliance with Sec. 6 of PD
1612. However, said provision is inapplicable to the present case.
Sec. 6 of PD 1612 provides:
chanRoblesvirtualLawlibrarySEC. 6. Clearance/Permit to Sell/Used Second Hand

Articles. For purposes of this Act, all stores, establishments or entities dealing in
the buy and sell of any good, article, item, object or anything of value obtained
from an unlicensed dealer or supplier thereof, shall before offering the same for
sale to the public, secure the necessary clearance or permit from the station
commander of the Integrated National Police in" the town or city where such store,
establishment or entity is located. The Chief of Constabulary/Director General,
Integrated National Police shall promulgate such rules and regulations to carry out
the provisions of this section. Any person who fails to secure the clearance or permit
required by this, section or who violates any of the provisions of the rules and
regulations promulgated thereunder shall upon conviction be punished as a fence,
(Emphasis supplied)
Clearly, the clearance stated in Sec. 6 of PD 1612 is only required if several

conditions, are met: first, that the person, store, establishment or entity is in the
business of buying and selling of any good, articles item object, or anything of
value; second, that such thing of value was obtained from an unlicensed dealer or
supplier thereof; and third, that such thing of value is to be offered for sale to the
public.
In the present case, the first and third requisites were not met. Nowhere was it
established that petitioner was engaged in the business of buy and sell. Neither was
the prosecution able to establish that petitioner intended to sell or was actually
selling the subject grader to the public.
During his cross-examination, petitioner testified:
PROS. SEPULVEDA
Q What business are you engaged in?
A I am buying used equipment.
Q Such as grader?
A Yes.27
Despite the lack of evidence supporting such conclusion, the CA even made a
presumption that petitioner was engaged in the business of buy and sell in the
assailed Decision, thereby erroneously applying Sec. 6, to wit:
In this case, the accused-appellant is engaged in buying and selling equipment as
the proprietor of Basco Metal Supply. As a businessman who regularly engaged in
buying and selling equipment, the accused-appellant should have exercised more
diligence and prudence in ascertaining whether Petronilo Ban[o]sing was indeed the
real owner of the Komatsu Grader, x x x
xxx The accused-appellant, who is engaged in the business of buying and selling
equipment, clearly purchased the Komatsu Grader (sic) with the intention of re-
selling the grader and its parts for profit.28
It is puzzling how the CA arrived at this conclusion when nowhere in the

testimonies of the witnesses was it shown that petitioner intended to resell the
subject grader to the public. The fact that the subject grader was not intended to be
sold to the public is even further bolstered by the prosecution's witnesses' discovery
that the grader was found in several pieces and in different locations within
petitioner's compound. Thus, it was erroneous for the CA to make such a conclusion
when the evidence presented does not support it.
Furthermore, requiring petitioner to secure the police certification is an act of futility

considering that at the time when the subject grader was being offered to petitioner,
no police report of the alleged theft has yet been made. To recall, petitioner
purchased the subject grader from Petronilo Banosing on January 17, 1997, as
evidenced by the Deed of Sale of the same date.29 Yet, it was only on January 26, 1997
that Engr. Gulmatico discovered the alleged theft:
PROS. BELO
Q While under your accountability, can you recall if anything happened in this
particular unit?
A On January 26, 1997, Iwas informed by my driver that this said graderr was
previously lodged for repair in the compound of Petronilo Banosing in the
evening of January 26, 1997.30
Engr. Gulrriatico further testified that he only reported the matter to the police on
January 27, 1997, or 10 days after the subject grader was already sold to herein
petitioner, as follows:
PROS. BELO
Q After you were informed that this was taken by somebody, what action, if
any, did you take?
A January 26 was a Monday so I went to the district the next day to file a case or
gather information (sic) about the Nohralla and after the inquest there we
found out that one Petronilo Banosing was the culprit and we filefd] a case
against him before Judge Ayko.31
Thus, 'even if petitioner had secured -the police clearance in compliance with Sec. 6
of PD 1612, it would not have shown that the grader was stolen since no theft had
yet been reported at that time.
It is also worthy to note that, due to the prosecution's failure to present any evidence
on the grader's actual value, the trial court assessed its value at one hundred
thousand pesos (P100,000) since parts of the engine were already, missing at the time
of its recovery. However, petitioner testified that he paid Petronilo Banosing the
amount of four hundred thousand pesos (P400,000). The disparity in the assessed
value of the grader and the amount paid by petitioner would show that petitioner
believed in good faith in the representations of Petronilo Banosing. Indeed, it is
contrary to common human experience for a businessman to pay a consideration
much higher than the actual value of an item unless he was made to believe
otherwise.
Finally, we- find that the conviction of petitioner violated his constitutional right to
be informed of the nature and cause of tne accusation against him.
In Ariddya v. People of the Philippines,32 we ruled that:
It is fundamental that every element constituting Jhe offense must be alleged in the
information. The main purpose of requiring the various elements of a crime to be set
out in the information is to enable the accused to suitably prepare his defense
because he is presumed to have no independent knowledge of the facts that
constitute the offense. The allegations of facts constituting the offense charged are
substantial matters and an accused's right to question his conviction based on facts
not alleged in the information cannot be waived. No matter how conclusive and
convincing the evidence of guilt may be, an accused cannot be convicted of any
offense unless it is charged in the information on which he is tried or is necessarily
included therein. To convict him of a ground not alleged while he is concentrating
his defense against the ground alleged would plainly be unfair and underhanded.
The rule is that a variance between the allegation in the information and proof
adduced during trial shall be fatal to the criminal case if it is material and prejudicial
to the accused so much so that it affects his substantial rights.
The Information charging petitioner reads:

That on or about January 16, 1997, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, being then the
proprietor of Basco Metal Supply located at Matina, Davao City, with intent to gain
for himself, wilfully (sic), unlawfully and feloniously purchased and received for
P400,000.00 one (1) unit Komatsu Road Grader with Chassis Model and Serial No.
GD-51R-100049 and bearing an (sic) Engine Serial Number 6D951-55845 owned by
Second Rural Road Improvement Project (SRRIP) PMO-DPWH of Isulan, Sultan
Kudarat, being lodged for repair at the' Facoma Compound of Poblacion Norala,
South Cotobato, and possessed the same, knowing that said Komatsu Road Grader
was stolen, thereby committing an act of fencing in violation of the Anti-Fencing
Law of 1979, to the damage and prejudice of the aforesaid complainant in its true
value of P2,000[,]000.00.
CONTRARY TO LAW.33 (Emphasis supplied)
The Information presumes that petitioner knew of the alleged theft of the subject
grader, pertaining to the first part of the third element of the crime of fencing, to wit:
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from, the proceeds of the crime of robbery or
theft.34(Emphasis supplied)
The trial court, however, convicted petitioner on the ground that he should have
known that the subject grader was derived from the proceeds of theft, pertaining to
the second part of the third element:
Accused was unable to rebut the presumption under PD1612. The Certificate of
Ownership executed by seller is unavailing. Suffice it to state that said document
being self-serving should not have been relied upon by the Reused. It might even be
stated that this document should have made him even more wary that the seller
did not own the heavy equipment sold to him. The unauthenticated list of
equipment purportedly prepared by the DPWH that did not include the heavy
equipment aid submitted by the accused as part of his defense is also unavailing. Put
simply, he verified with the DPWH its ownership of the heavy equipment long after
the instant case was filed. What is more, the list he presented was merely a
photocopy whose authenticity is doubtful. Under Section 6 of PD 1612, what he
should have done was to secure a clearance/permit from the police.35(Emphasis
supplied)
From the foregoing, we find that the CA erred in affirming the trial court's findings
and in convicting herein petitioner. It is necessary to remember that in all criminal
prosecutions, the burden of proof is on the prosecution to establish the guilt of the
accused beyond reasonable doubt. It has the duty to prove each and every element
of the crime charged in the information to warrant a finding of guilt for the said
crime.36 Furthermore, the information must correctly reflect the charges against the
accused before any conviction may be made.
In the case at bar, the prosecution failed to prove the first and third essential element
of the crime charged in the information. Thus, petitioner should be acquitted due to
insufficiency of evidence and reasonable doubt.
WHEREFORE, the Decision dated July 30, 2013 and the Resolution dated February
28, 2014 of the Court of Appeals in CA-G.R. CR No. 00740-MIN, affirming the
Decision dated February 17, 2009 issued by the Regional Trial Court of Davao City,
Branch 8, which found petitioner Mariano Lim guilty beyond reasonable doubt of
violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law of
1979, are hereby REVERSED and SET ASIDE. Petitioner Mariano Lim is
hereby ACQUITTED based on insufficiency of evidence and reasonable doubt.
NELSON LAI y BILBAO, Petitioner,

vs.
DECISION
BERSAMIN, J.:
The accused assails the affirmance of his conviction for homicide through the
assailed decision promulgated on May 27, 2005 by the Court of Appeals (CA).1 The
conviction had been handed down by Judge Fernando R. Elumba of the Regional
Trial Court, Branch 42, in Bacolod City (RTC) in Criminal Case No. 17446 entitled
People of the Philippines v. Nelson Lai y Bilbao.2
Antecedents
The Prosecution's version was summarized by the RTC as follows:
On December 16, 1995, at around 9 o'clock in the evening, the victim Enrico
Villanueva, Jr. together with his friends Burnie Fuentebella (a prosecution witness),
Butsoy Arenas, Raffy Gustilo, Nonoy Martinez, and Mark Anthony Merre, were
seated inside the passenger jeepney owned by the accused, Nelson Lai y Bilbao,
which was parked at the back of Pala-pala, Brgy. 6, comer North Capitol Road - San
Juan Streets, Bacolod City, where they were waiting for a female friend of theirs who
was supposed to arrive at 9:30 o'clock of the same evening per their agreement.
While they were waiting for their friend to arrive, the accused Nelson Lai y Bilbao
suddenly approached the vehicle and ordered all the persons who were seated
inside (including the deceased Enrico Villanueva, Jr.) to alight therefrom. After all of
them have alighted from the jeepney, the accused instantaneously grabbed the
victim by the latter's left arm and accused him (the deceased) of having stolen the
antenna of his (Lai's) vehicle. Denying that he was responsible for the theft of the
antenna, the victim was able to free himself from the hold of the accused and ran
away towards the direction of the house of Christopher Padigos located at Purok
Narra Bukid North, Brgy. 8, Bacolod City, across the Pala-pala. Upon arriving at the
house of Christopher Padigos, the victim ran all the way to the second floor room he
shared with Jemuel V. Gepaya (a prosecution witness). Finding his roommate inside
the room, the victim confided to the former that Nelson Lai had just accused him of
stealing his (Lai's) car antenna and that he (the deceased) was grabbed and hit by the
accused at the neck but that he (the victim) was able to retaliate by kicking the
accused. There the victim remained until about 11 :00 o'clock of the same evening
when he left the house of Christopher Padigos to go to the dancehall located at
nearby Purok Azucena, Barangay 6, Bacolod City where a benefit dance was being
held.
At around 11 :00 o'clock of the same evening, both the accused and the victim were
inside the dancehall, the latter being seated on a bench together with his friends
while the former was dancing to the tune of the cha-cha. After dancing the accused
stood immediately in front at about one and a half arms length (sic.) from where the
victim was seated. Thereafter, the accused stepped towards where the victim was
seated. As the accused was about to approach the victim, a brownout suddenly
occurred. Immediately after the lights went out, a spark was seen and a gunshot
rang out right in front where the victim was seated. Suddenly, the victim fell down
bloodied. Immediately thereafter, the victim was rushed to the provincial hospital by
his friends led by Burnie Fuentebella, a prosecution witness, for treatment. Similarly,
Jemuel V. Gepaya, a cousin of the victim, also followed to the hospital after hearing
the news that the victim was shot.
Inside the Emergency Room of the Provincial Hospital, while the victim lay (sic)
bleeding from a gunshot wound in the neck and awaiting medical attention, he was
able to tell Burnie Fuentebella and Jemuel Gepaya, both prosecution witnesses, that
the accused Nelson Lai was the one who shot him. Moreover, the victim likewise
shouted the name "Nelson Lai" when he was asked by PO3 Homer Vargas who shot
him. Likewise, when Enrico Villanueva, Sr., the father of the victim, arrived at the
Emergency Room and asked the victim who shot him, the latter replied that it was
"Nelson Lai". (parenthetical citations omitted)3
In contrast, the CA summed up the Defense's own version in its assailed decision, to
wit:
Appellant Nelson Lai drives his own passenger jeep plying the Banago-Libertad
route. At around 8:30 o'clock in the evening of December 16, 1995, appellant parked
his jeepney at the back of his house located at Purok Azucena, Barangay 6, Bacolod
City. After resting for a while, he went to the house of their Purok President, Ramero
Jarabelo, where he drank three bottles of beer. Thereafter, he went home at around
9:00 o'clock, passing by the dancehall were (sic.) a benefit dance was being held as a
thanksgiving party for the Sangguniang Kabataan. There, he was invited by Merlyn
Rojo, who acted as emcee of the program, to open the first dance. Appellant acceded
and danced the first dance with Merlyn Rojo. After their dance, appellant went home
as he still had to work early the next morning.
When appellant arrived home, he noticed that eight (8) persons, including the.
victim, were seated inside his jeepney. He approached them and requested them not
to stay inside his jeepney. Thereafter, all of them went away without any untoward
incident. When the accused and his wife were about to have their late dinner at
around 11 :00 o'clock, a brownout occurred. About two seconds after the lights went
out; he heard a gunshot which he initially thought was merely a firecracker. Later,
when he overheard that someone was shot at the dancehall which was only 40
meters away from his house, he went out to look for his two sons. Along the way, he
met Daisy Panes, who, together with her husband, were also on their way to the
dancehall. At the dancehall, someone told appellant that his son, Windel, was the
one who carried the victim to the hospital. So appellant went home and proceeded to
eat his dinner. At around 11:45 o'clock of the same evening, while appellant was
already resting, three policemen came to his house and told him that the victim
mentioned his name as the one who shot him. Believing that he has done nothing
wrong, appellant volunteered to go with the policemen. Appellant claims that when
they arrived at the police station, he even asked that a paraffin test be conducted on
him, the result of which was negative.4
Judgment of the RTC
In its judgment dated August 22, 2001,5 the R TC, through Judge Elumba, disposed
as follows:
WHEREFORE, premises considered, this Court finds the accused NELSON LAI y
BILBAO guilty beyond reasonable doubt of the crime of Homicide defined and
penalized under Article 249 of the Revised Penal Code of the Philippines, as
amended, and, in the absence of neither mitigating nor aggravating circumstances
which may be considered in the imposition of the penalty thereof, this Court hereby
sentences the said accused to suffer the indeterminate penalty of imprisonment of
eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, 8
months and one (1) day of reclusion temporal as maximum and orders the accused
to indemnify the heirs of the victim Enrico Villanueva, Jr. in the amount of Fifty
thousand (P50,000.00) Pesos only without subsidiary imprisonment in case of
insolvency as well as to suffer the accessory penalty provided for by law and to pay
the costs.
SO ORDERED.6
Decision of the CA
On appeal, the petitioner raised the following errors, to wit:
[T]hat the lower court:
1. ERRED in giving full credence to the alleged dying declaration of Enrico
Villanueva, Jr.;
2. ERRED in considering the alleged earlier untoward incident between
accused and the group of Enrico Villanueva, Jr. as sufficient to motivate the
former to kill the latter;
3. ERRED in discarding en (sic) toto the defense of alibi and the negative
result of the paraffin test conducted on the accused;
4. ERRED in failing to see that the entire evidence presented by both the
prosecution and defense engender a reasonable doubt which should be
resolved in favor of the accused;
5. ERRED as accused was deprived of due process when this case was
decided by the honorable presiding judge who acted as the public prosecutor
in this case before he was appointed to the bench;
6. ERRED when it completely disregarded appellant's motion for
reconsideration below with nary a look into any issue raised therein; and
7. ERRED when it denied appellant's motion for new trial.7
On May 27, 2005, the CA promulgated its decision,8 disposing:
WHEREFORE, the assailed Decision of the Regional Trial Court of Bacolod City,
Branch 42, in Criminal Case No. 17446 is hereby AFFIRMED in toto.
SO ORDERED.9
Ruling of the Court
In this appeal, the petitioner continues to assail the conviction, but the Court has
immediately noted that the right to due process of the petitioner had been denied to
him by Judge Elumba, the trial judge, by not disqualifying himself from sitting on
and trying Criminal Case No. 17446 despite having participated in the trial as the
public prosecutor. Thus, it is necessary for the Court to first determine if the non-
disqualification of Judge Elumba prejudiced the petitioner's right to a fair and
impartial trial.
As the records indicate, Judge Elumba had been assigned on March 23, 1998 as the
public prosecutor in Branch 42 of the RTC in Negros Occidental to replace the
previous public prosecutor,10 but became the Presiding Judge of Branch 42 on April
27, 2000.11 Branch 42 was the trial court hearing and ultimately deciding Criminal
Case No. 17446 against the petitioner. As such, Judge Elumba should have
disqualified himself from having anything to do with the case once he became the
trial judge because he was compulsorily disqualified. The petitioner pointed to the
need for Judge Elumba's disqualification in his Motion for Reconsideration,12 but the
latter ignored his concerns upon the excuse that he had appeared in Criminal Case
No. 17446 only after the Prosecution had rested its case. Judge Elumba argued that
he did not personally prosecute the case, and that, at any rate, the petitioner should
have sought his disqualification prior to the rendition of the judgment of
conviction.13
On appeal, the petitioner focused the CA's attention to the denial of due process to
him by the non-disqualification of Judge Elumba, but the CA upheld Judge Elumba's
justifications, stating: As to the fifth assigned error, appellant claims that he was
denied due process because the judge who rendered the assailed decision was also,
at one time, the public prosecutor of the instant case. First, the record of this case
shows that when the judge, who was then a public prosecutor, entered his
appearance, the prosecution had already long rested its case, more specifically, he
appeared therein only when the last witness for the defense was presented, not to
mention the fact that it was a private prosecutor who cross-examined the last
witness, Merlyn Rojo. Thus, it cannot be said that the presiding judge personally
prosecuted the instant case, nor supervised the prosecution thereof when the same
was still pending. Second, settled is the rule that a petition to disqualify a judge must
be filed before rendition of judgment by the judge. Having failed to move for the
disqualification of the judge, appellant cannot thereafter, upon a judgment
unfavorable to his cause, take a total turn about (sic.) and say that he was denied due
process. 'One surely cannot have his cake and eat it too.'14
It is not disputed that the constitutional right to due process of law cannot be denied
to any accused. The Constitution has expressly ordained that "no person shall be
deprived of life, liberty or property without due process of law."15 An essential part
of the right is to be afforded a just and fair trial before his conviction for any crime.
Any violation of the right cannot be condoned, for the impartiality of the judge who
sits on and hears a case, and decides it is an indispensable requisite of procedural
due process.16 The Court has said:
This Court has repeatedly and consistently demanded 'the cold neutrality of an
impartial judge' as the indispensable imperative of due process. To bolster that
requirement, we have held that the judge must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will be
just. The litigants are entitled to no less than that. They should be sure that when
their rights are violated they can go to a judge who shall give them justice. They
must trust the judge, otherwise they will not go to him at all. They must believe in
his sense of fairness, otherwise they will not seek his judgment. Without such
confidence, there would be no point in invoking his action for the justice they expect.
Due process is intended to insure that confidence by requiring compliance with
what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal
justice. There cannot be equal justice where a suitor approaches a court already
committed to the other party and with a judgment already made and waiting only to
be formalized after the litigants shall have undergone the charade of a formal
hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in
which the parties are supposed to make the motions and reach the denouement
according to a prepared script. There is no writer to foreordain the ending. The judge
will reach his conclusions only after all the evidence is in and all the arguments are
filed, on the basis of the established facts and the pertinent law.17
The adoption of rules governing the disqualification of the judges from hearing and
deciding cases should there be any cause that diminishes or negates their
impartiality is a firm means of ensuring their impartiality as judges. In particular,
Section 1, Rule 137 of the Rules of Court embodies the rule on self-disqualification by
a sitting judge, viz.:
Section 1. Disqualification of judges. - No judge or judicial officer shall sit in any case
in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any
inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the
record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting
in a case, for just or valid reasons other than those mentioned above.
Section 1 of Rule 137, supra, contemplates two kinds of self-disqualification. The first
paragraph enumerates the instances when the judge is prohibited and disqualified
from sitting on and deciding a case.18 The prohibition is compulsory simply because
the judge is conclusively presumed to be incapable of impartiality.19 The second
paragraph speaks of voluntary inhibition; whether or not the judge can sit in and try
the case is left to his discretion, depending on the existence of just and valid reasons
not included in the first paragraph, but in exercising the discretion, he must rely only
on his conscience.20
Reprising Section 1 of Rule 137 is Section 5, Canon 3 of the New Code of Judicial
Conduct for the Philippine Judiciary,21 which pertinently demands the
disqualification of a judge who has previously served as a lawyer of any of the
parties, to wit:
Section 5. Judges shall disqualify themselves from participating in any proceedings
in which they are unable to decide the matter impartially or in which it may appear
to a reasonable observer that they are unable to decide the matter impartially. Such
proceedings include, but are not limited to instances where:
xxxx
(d) The judge served as executor, administrator, guardian, trustee or lawyer in the
case or matter in controversy, or a former associate of the judge served as counsel
during their association, or the judge or lawyer was a material witness therein; x x x.
Given the foregoing, the CA's justifications directly contravened the letter and spirit
of Section 1 of Rule 137, supra, and Section 5 of Canon 3 of the New Code of Judicial
Conduct for the Philippine Judiciary, supra. The words counsel in the first
paragraph of Section 1 of Rule 137, supra, and lawyer in Section 5 of Canon 3, supra,
are understood in their general acceptation because their usage by the rules has not
been made subject of any qualifications or distinctions. As such, the mere
appearance of his name as the public prosecutor in the records of Criminal Case No.
17446 sufficed to disqualify Judge Elumba from sitting on and deciding the case.
Having represented the State in the prosecution of the petitioner, he could not
sincerely claim neutrality or impartiality as the trial judge who would continue to
hear the case. Hence, he should have removed himself from being the trial judge in
Criminal Case No. 17446.
To be clear, that Judge Elumba's prior participation as the public prosecutor was
passive, or that he entered his appearance as the public prosecutor long after the
Prosecution had rested its case against the petitioner did not really matter. The evil
sought to be prevented by the rules on disqualification had no relation whatsoever
with the judge's degree of participation in the case before becoming the judge. He
must be reminded that the same compulsory disqualification that applied to him
could similarly be demanded of the private prosecutor or the defense lawyer, if
either of them should be appointed as the trial judge hearing the case. The purpose
of this stricture is to ensure that the proceedings in court that would affect the life,
liberty and property of the petitioner as the accused should be conducted and
determined by a judge who was wholly free, disinterested, impartial and
independent. As the Court has amplified in Garcia v. De la Pena:22
The rule on compulsory disqualification of a judge to hear a case where, as in the
instant case, the respondent judge is related to either party within the sixth degree of
consanguinity or affinity rests on the salutary principle that no judge should preside
in a case in which he is not wholly free, disinterested, impartial and independent. A
judge has both the duty of rendering a just decision and the duty of doing it in a
manner completely free from suspicion as to its fairness and as to his integrity. The
law conclusively presumes that a judge cannot objectively or impartially sit in such a
case and, for that reason, prohibits him and strikes at his authority to hear and
decide it, in the absence of written consent of all parties concerned. The purpose is to
preserve the people's faith and confidence in the courts of justice.23 (Emphasis
supplied) Moreover, to say that Judge Elumba did not personally prosecute or
supervise the prosecution of Criminal Case No. 17446 is to ignore that all criminal
actions were prosecuted under the direction and control of the public prosecutor.
That a private prosecutor had appeared in the case was of no consequence, for such
private prosecutor still came under the direct control and supervision of the public
prosecutor. In this connection, we note that it was only on May 1, 2002, or two years
after Judge Elumba's appointment in the Judiciary, when Section 5,24 Rule 110 of the
Rules of Court, was amended by A.M. No. 02-2-07-SC in order to expressly authorize
the intervention of the private prosecutor to prosecute a criminal case in case of
heavy work load or lack of the public prosecutor, provided that the private
prosecutor was authorized in writing for the purpose by the Chief of the Prosecution
Office or the Regional State Prosecutor. Even so, the records do not indicate that the
private prosecutor who appeared in Criminal Case No. 17446 had been duly
authorized in writing by the Chief of the Prosecution Office or the Regional State
Prosecutor to prosecute the case by himself.
We have also observed that the CA appeared too eager to sustain the refusal of
Judge Elumba to disqualify himself as the trial judge. Such overeagerness was
uncharacteristic of the CA as an appellate court in a criminal case whose
unmistakable duty was to thoroughly sift and scrutinize the records of the trial court
to search for errors that would reverse or modify the judgment in favor of the
accused. Had it done its duty, it would have quickly noticed a hard indication
existing in the trial records of Criminal Case No. 17446 exposing Judge Elumba to
have actually taken an active participation in the trial. The indication was in the form
of the Motion to Present Rebuttal Evidence that then Public Prosecutor Elumba had
filed on January 25, 2000, the text of which is reproduced herein:
MOTION TO PRESENT REBUTTAL EVIDENCE
xxxx
That the records of the above-entitled case would show that the accused rested his
case on October 29, 1999;
That, however, after going over the records of the case, the prosecution feels that
there is a need to present rebuttal evidence. (Emphasis supplied)
WHEREFORE, PREMISES CONSIDERED, it is most respectfully prayed of this
Honorable Court that the prosecution be allowed to present rebuttal evidence to
refute the evidence presented by the accused.
(Sgd.)
FERNANDO R. ELUMBA
Trial Prosecutor25
The text of the motion disclosed that then Public Prosecutor Elumba had come to the
conclusion that "there is a need to present rebuttal evidence" after his having gone
over the records of the case. Clearly, he had formed an opinion that was absolutely
adverse to the interest of the petitioner.
The CA's reliance on Lao v. Court of Appeals26 was inappropriate. In Lao, the Court
opined and declared that the petition to disqualify the trial judge must be filed prior
to the rendition of judgment.27 But the supposed disqualification of the judge in Lao
was premised on bias as perceived by a party.28 We should point out that perceived
bias was a ground covered by the second paragraph of Section 1 of Rule 3 7, supra,
and would justify only the voluntary inhibition of the judge. In contrast, Judge
Elumba's situation rested on a ground for mandatory disqualification because it
emanated from the conclusive presumption of his bias.29 Such a ground should have
been forthwith acknowledged upon Judge Elumba's assumption of the judgeship in
Branch 42, or, at the latest, upon the ground being raised to his attention, regardless
of the stage of the case.
Under the circumstances, Judge Elumba, despite his protestations to the contrary,
could not be expected to render impartial, independent and objective judgment on
the criminal case of the petitioner. His non-disqualification resulted in the denial of
the petitioner's right to due process as the accused. To restore the right to the
petitioner, the proceedings held against him before Judge Elumba and his ensuing
conviction have to be nullified and set aside, and Criminal Case No. 17446 should be
remanded to the R TC for a partial new trial to remove any of the prejudicial
consequences of the violation of the right to due process. The case shall be raffled to
a Judge who is not otherwise disqualified like Judge Elumba under Section 1, Rule
137 of the Rules of Court. For, as we said in Pimentel v. Salanga:30
This is not to say that all avenues of relief are closed to a party properly aggrieved. If
a litigant is denied a fair and impartial trial, induced by the judge's bias or prejudice,
we will not hesitate to order a new trial, if necessary, in the interest of justice. Such
was the view taken by this Court in Dais vs. Torres, 57 Phil. 897, 902-904. In that
case, we found that the filing of charges by a party against a judge generated
'resentment' or the judge's part that led to his "bias or prejudice, which is reflected in
the decision." We there discoursed on the 'principle of impartiality,
disinterestedness, and fairness on the part of the judge' which 'is as old as the history
of courts.' We followed this with the pronouncement that, upon the circumstances
obtaining, we did not feel assured that the trial judge's finding were not influenced
by bias or prejudice. Accordingly, we set
aside the judgment and directed a new trial.31
WHEREFORE, the Court ANNULS and SETS ASIDE the decision promulgated on
May 27, 2005 by the Court of Appeals and the judgment rendered on August 22,
2001 by the Regional Trial Court; REMANDS Criminal Case No. 17446 entitled
People of the Philippines v. Nelson Lai y Bilbao to the Regional Trial Court in
Bacolod City with instructions to the Executive Judge of the Regional Trial Court to
assign it to any Regional Trial Judge not disqualified under Section 1 of Rule 137 of
the Rules of Court; and INSTRUCTS the new trial judge to resume the trial in
Criminal Case No. 17446 starting from the stage just prior to the assumption of
Judge Fernando R. Elumba as the trial judge, and to hear and decide Criminal Case
No. 17446 with reasonable dispatch.
SO ORDERED.
PAZ T. BERNARDO, SUBSTITUTED BY HEIRS, MAPALAD G. BERNARDO,
EMILIE B. KO, MARILOU B. VALDEZ, EDWIN T. BERNARDO AND GERVY B.
SANTOS, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We resolve the Petition for Review on Certiorari filed by accused petitioner Paz T.
Bernardo (Bernardo) under Rule 45 of the Rules of Court, assailing the Court of
Appeals (CA) August 31, 2007 decision1 and the March 14, 2008 resolution2 in CA-
G.R. CR 28721, entitled "People of the Philippines v. Paz T. Bernardo." The appellate
court affirmed the decision of the Regional Trial Court (RTC), Branch 56, Makati
City, finding Bernardo guilty beyond reasonable doubt of five (5) counts of violation
of Batas Pambansa Blg. 22 (B.P. 22).
The Factual Antecedents
In June 1991, Bernardo obtained a loan from the private complainant Carmencita C.
Bumanglag (Bumanglag) in the amount of P460,000.00 payable on or before its
maturity on November 30, 1991. That loan was evidenced by a promissory
note3 Bernardo and her husband had executed, whereby the couple solidarity bound
themselves to pay the loan with corresponding interest at 12% per annum payable
upon default.4 As additional security, Bernardo gave Bumanglag the owner's
duplicate copy of Transfer Certificate of Title No. (T-1034) 151841.
Prior to the loan's maturity, Bernardo took back the title from Bumanglag to use as a
collateral in another transaction. In place of the title, Bernardo issued to Bumanglag
the following five (5) Far East Bank and Trust Company (FEBTC) checks,5 posted on
different dates in June 1992, covering the loan's aggregate amount:cralawlawlibrary
Check No. Amount Date
FEBTC No. 391033 Php 100,000.00 June 1, 1992
FEBTC No. 391034 Php 100,000.00 June 8, 1992
FEBTC No. 391035 Php 100,000.00 June 15, 1992
FEBTC No. 391036 Php 100,000.00 June 22, 1992
FEBTC No. 391037 Php 60,000.00 June 29, 1992
In September 1992, Bumanglag deposited these checks to Bernardo's account but
they were dishonored; the reason given was "Account Closed." Bumanglag thus sent
Bernardo a notice informing her of the dishonor of the checks. The demand went
unheeded, prompting Bumanglag to initiate a criminal complaint against Bernardo
with the Office of the City Prosecutor of Makati for five (5) counts of violation of B.P.
22.
After the requisite preliminary investigation, the Office of the City Prosecutor of
Makati City found probable cause to indict Bernardo for the offenses charged.
Bernardo entered a not guilty plea on arraignment.
The prosecution rested its case on September 21, 1994. Bernardo took the witness
stand only on May 9, 1996, to present her defense evidence.
In her testimony, Bernardo argued that she could not be held liable for violation of
B.P. 22 because the questioned checks were presented beyond the 90-day period
provided under the law. She also denied having received any notice of dishonor,
which she insisted was essential to prove the material element of knowledge of
insufficiency of funds.
In any case, she maintained that the checks were never meant to be presented as she
had always paid her loans in cash, which she claimed to have done in the aggregate
amount of P717,000.00. According to Bernardo, although Bumanglag returned to her
the title to the property after payment, Bumanglag never bothered to issue her
receipts. Bumanglag did not return the checks either.
Following Bernardo's cross-examination, the RTC reset the hearing for redirect
examination to September 4, 1996.6 That hearing, however, was again reset to April
3, 1997, in view of the absence of Bernardo's counsel. When Bernardo and her
counsel again failed to appear during the April 3, 1997 hearing, and in view of the
numerous previous postponements the defense had asked for, the RTC considered
her right to present additional evidence waived.
Bernardo moved for reconsideration but the RTC denied her motion. The RTC,
however, gave her ten (10) days within which to submit her formal offer of evidence,
which she failed to do. As a result, the RTC declared that Bernardo had waived her
right to submit her formal offer of evidence.
RTC Ruling
On May 28, 2003, the RTC issued its ruling finding Bernardo guilty of five counts of
violation of B.P. 22.7The RTC held that Bernardo failed to substantiate her claim of
payment. The RTC further ruled that it is not the nonpayment of the obligation but
the issuance of a worthless check that B.P. 22 punishes.
The RTC sentenced Bernardo to one (1) year imprisonment for each count of the
offense charged and ordered her to indemnify Bumanglag the amount of
P460,000.00, plus 12% interest and 5% penalty charges, from December 1, 1991, until
full payment.8
CA Ruling
On appeal, the CA affirmed Bernardo's conviction but deleted the penalty of

imprisonment and in lieu thereof, imposed a P460,000.00 fine.9 The CA also retained
the civil indemnity of P460,000.00 that the lower court imposed, plus 12% interest
from the time of the institution of the criminal charges until full payment.10
In denying Bernardo's appeal, the CA noted that Bernardo failed to adduce sufficient
evidence of payment. The CA further held that the 90-day period within which to
present a check under B.P. 22 is not an element of the crime.
The CA also did not recognize any merit in Bernardo's claim that she had been
denied due process, in view of the RTC's order waiving her right to present
additional evidence.11 To the CA, Bernardo had sufficient opportunity to present her
defense but did not avail of these opportunities. Instead, she and her counsel moved
for postponement at least nine (9) times, not to mention their subsequent failure to
appear four (4) times despite due notice of the scheduled hearings. These
developments led the RTC to consider Bernardo's right to present additional
evidence waived.12
Bernardo moved for reconsideration but the CA denied her motion;13 hence, the
present petition.14
The Petition and Comment
Bernardo insists in her present petition15 that the CA erred in finding that she had
been accorded due process; she was denied the full opportunity to present her
defense and was thus deprived of the chance to prove her innocence of the crime
charged.
She likewise avers that the CA erred in affirming her criminal and civil liabilities
because the prosecution failed to prove her knowledge of insufficiency of funds.
According to Bernardo, there was no violation of B.P. 22 because the checks were
presented beyond the mandatory 90-day period. Moreover, Bernardo claimed that
these subject checks were issued without consideration as she had already paid the
loan.
The Office of the Solicitor General (OSG) posits in its Comment that Bernardo was
given the opportunity to present her defense evidence.16 Citing Wong v. CA,17 the
OSG further points out that the 90-day period provided in the law is not an element
of the offense;18 it is simply one of the conditions to establish a prima
facie presumption of knowledge of lack of funds.19
The OSG also claims that Bumanglag failed to substantiate her claim that she had
settled the obligation.20In any event, the OSG asserted B.P. 22 penalizes the act of
making and issuing a worthless check, not the nonpayment of the obligation.21
Subsequent Developments
On March 14, 2011, Bernardo's counsel informed the Court of the petitioner's death
on February 3, 2011, and provided, as well, the names of her heirs (her widower,
Mapalad Bernardo, and children: Emilie B. Ko, Marilou B. Valdez, Edwin T.
Bernardo, and Gervy B. Santos), and their address (26 Magdiwang St., Real Village 2,
Tandang Sora, Quezon City). In due course, in our March 7, 2012 Resolution,22 we
required Bernardo's heirs to appear as substitutes for the deceased Bernardo in the
present petition for purposes of Bernardo's civil liability.
Bernardo's heirs moved to reconsider our March 7, 2012 resolution. They argued that
Bernardo's death extinguished her civil liability. In the alternative, they contended
that any civil liability should be settled in a separate civil case.
We denied the heirs' motion in our June 27, 2012 resolution. We explained that
Bernardo's civil liability survived her death as it is based on contract. Moreover, we
observed that it would be costly, burdensome, and time-consuming to dismiss the
present case and require the Bumanglags to file a separate civil action.
The Court's Ruling
We deny the petition for lack of merit. Preliminary Matters
Classes of Civil Liabilities
An act or omission causing damage to another may give rise to several distinct civil
liabilities on the part of the offender.23 If the conduct constitutes a felony, the
accused may be held civilly liable under Article 100 of the Revised Penal Code (ex
delicto).24 This particular civil liability due the offended party is rooted on facts that
constitute a crime.25 Otherwise stated, civil liability arises from the offense
charged.26It is not required that the accused be convicted to be entitled to civil
liability based on delict. As long as the facts constituting the offense charged are
established by preponderance of evidence, civil liability may be
awarded.27 Moreover, the civil liability based on delict is deemed instituted with the
criminal action unless the offended party waives the civil action, reserves the right to
institute it separately, or institutes the civil action prior to the criminal action.28
The same act or omission, however, may also give rise to independent civil
liabilities based on other sources of obligation. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise
as a result of the same act or omission: (a) law (b) contracts; (c) quasi-contracts, and
(d) quasi-delicts. Among these are the civil liabilities for intentional torts under
Articles 3229and 3430 of the Civil Code and for quasi-delicts under Article 2176 of Civil
Code.31 For conduct constituting defamation, fraud, and physical injuries, the Civil
Code likewise grants the offended party the right to institute a civil action
independently of the criminal action under Article-33 of the Civil Code.
Thus, it is entirely possible for one to be free from civil ability directly arising from a
violation of the penal law and to still be liable civilly based on contract or by laws
other than the criminal law.32 Such civil actions may proceed independently of the
criminal proceedings and regardless of the result of the criminal action,33 subject
however, to the caveat that the offended party cannot recover damages twice for the
same act or omission.34
Bernardo's civil liability may be enforced in the present case despite her death.
As a general rule, the death of an accused pending appeal extinguishes her criminal
liability and the corresponding civil liability based solely on the offense (delict). The
death amounts to an acquittal of the accused based on the constitutionally mandated
presumption of innocence in her favor, which can be overcome only by a finding of
guilt - something that death prevents the court from making.35 In a sense, death
absolves the accused from any earthly responsibility arising from the offense a
divine act that no human court can reverse, qualify, much less disregard.36 The
intervention of death of the accused in any case is an injunction by fate itself so that
no criminal liability and the corresponding civil liability arising from the offense
should be imposed on him.37
The independent civil liabilities, however, survive death and an action for recovery
therefore may be generally pursued but only by filing a separate civil action and
subject to Section 1, Rule 111 of the Rules on Criminal Procedure as amended.38 This
separate civil action may be enforced against the estate of the accused.39
In B.P. 22 cases, the criminal action shall be deemed to include the corresponding
civil actions. Instead of instituting two separate cases, only a single suit is filed and
tried.40 This rule was enacted to help declog court dockets, which had been packed
with B.P. 22 because creditors used the courts as collectors. As we observed in Hyatt
v. Asia Dynamic Electrix Corp.:41cralawlawlibrary
Because ordinarily no filing fee is charged in criminal cases for actual damages, the
payee uses the intimidating effect of a criminal charge to collect his credit gratis and
sometimes, upon being paid, the trial court is not even informed thereof. The
inclusion of the civil action in the criminal case is expected to significantly lower the
number of cases filed before the courts for collection based on dishonored checks. It
is also expected to expedite the disposition of these cases. Instead of instituting two
separate cases, one for criminal and another for civil, only a single suit shall be filed
and tried. It should be stressed that the policy laid down by the Rules is to
discourage the separate filing of the civil action.chanrobleslaw
As a necessary consequence of this special rule, the civil liabilities arising from the
issuance of a worthless check are deemed instituted in a case for violation of B.P. 22;
the death of Bernardo did not automatically extinguish the action. The independent
civil liability based on contract, which was deemed instituted in the criminal action
for B.P. 22, may still be enforced against her estate in the present case. We thus rule
on the present action to determine Bumanglag's civil liability.
Substantive Aspect
Bernardo was not denied due process.
We meticulously went over the entire record, and confirmed that Bernardo had not
at all been deprived of her day in court. She was afforded ample opportunity to
present evidence in her defense but she did not give this case the serious attention it
deserved. For good reason - i.e., the repeated absences of Bernardo and her counsel -
the trial court eventually considered her right to present defense evidence waived.
To be sure, the postponement of the trial of a case to allow the presentation of

evidence is a matter that lies with the discretion of the trial court; but it is a
discretion that must be exercised wisely, considering the peculiar circumstances of
each case and with a view to doing substantial justice.42 In the present case, the
records show that the RTC took all the steps necessary to safeguard Bernardo's
rights and to accord her the opportunity to present whatever evidence she had in her
defense.
In particular, the prosecution formally rested its case on September 21, 1994.
Bernardo, through counsel, thereupon moved for leave to file a demurrer to
evidence prompting the RTC to reset the hearing for initial presentation of defense
evidence to December 15 and 20, 1994.43 Bernardo filed her demurrer to evidence on
November 10, 1994,44 after previously requesting the RTC for a 10-day extension.
The pendency of the demurrer to evidence prompted several resettings until the
RTC finally denied it on March 30, 1995.45 The RTC then set the initial presentation
of defense evidence on April 11, 18, and 25, 1995,46 but these were reset to May 9, 18,
and 25, 1995,47 at the motion of Bernardo's counsel who expressed his desire to seek
relief from the CA for the denial of the demurrer.
Despite the RTC's accommodation, Bernardo's counsel failed to appear during the
May 9, 1995 hearing as he was busy attending to the canvassing of votes in
Quezon City.48 Eventually, the initial presentation of defense evidence was reset to
July 20, 1995, and August 3, 1995.49
Notably, during the July 20, 1995 hearing, Bernardo's counsel again moved for
another resetting as he was not prepared to conduct a direct examination.50 Despite
this flimsy ground, the RTC granted the request and allowed Bernardo to testify on
August 3, 1995.
Bernardo and her counsel, however, failed to appear during the August 3, 1995
hearing despite due notice, prompting the RTC to waive their right to present
defense evidence.51 Bernardo moved for reconsideration and the RTC granted her
motion in the interest of substantial justice.52 Thus, the hearing for the presentation
of defense evidence was reset to November 28, 1995.53chanroblesvirtuallawlibrary
Bernardo and her counsel again failed to appear during the November 28, 1995
hearing, despite due notice, prompting the RTC again to consider that Bernardo had
waived her right to present defense evidence.54chanroblesvirtuallawlibrary
Bernardo again moved for reconsideration on the ground that it was the first time
she and her counsel were absent at the same time.55 Despite this hollow excuse, the
RTC granted the motion in the spirit of compassionate justice and gave Bernardo
the final opportunity to present her defense evidence.56 The parties mutually agreed
to set the hearing for initial presentation of defense evidence on April 18,
1996.57chanroblesvirtuallawlibrary
Bernardo again failed to appear during the scheduled April 18, 1996 hearing.58
Although Bernardo did not offer any excuse for this absence,59 RTC exercised
compassion and permitted Bernardo to testify, as she did in fact testify, on May 9,
1996,60 - one (1) year and eight (8) months after the prosecution had rested its case.
At the conclusion of the cross-examination, the parties mutually agreed to adjourn
the hearing for September 4, 1996, for redirect examination.61
Bernardo's counsel, however, failed to appear during the scheduled September 4,

1996 hearing, prompting the RTC to consider her failure as a waiver on her part to
present additional evidence.62Bernardo moved for reconsideration; she claimed that
her counsel had to attend another hearing in a different sala. Why Bernardo's
counsel accepted another engagement on the same day, which was in conflict with
the RTC's hearing dates, was never properly explained. Nonetheless, the RTC
granted the motion to give her the last chance to complete the presentation of
evidence on April 3, 17, and 22, 1997.63chanroblesvirtuallawlibrary
Despite the RTC's warning, Bernardo and her counsel again failed to appear at the
April 3,1997 hearing.64 Instead, they filed a motion to reset because Bernardo's
counsel was to attend a wedding in the United States of America.65 This time, the
RTC, mindful that there should be a limit to postponements, ordered the case
submitted for decision sans the presentation of evidence from the defense.66
Under these facts, the RTC was clearly driven by Bernardo and her counsel's
repeated failure, without justifiable reason, to appear at the scheduled hearing
dates.67 The order considering Bernardo's right to present evidence waived, followed
as a necessary and unavoidable consequence. As we held in People v.
Angco:68cralawlawlibrary
His failure to appear with counsel of his choice at the hearing of the case,
notwithstanding repeated postponements and warnings that failure to so appear
would be deemed a waiver to present evidence in his defense, and that the case
would be deemed submitted for judgment upon the evidence presented by the
prosecution, was sufficient legal justification for the trial court to proceed and render
judgment upon the evidence before it.chanrobleslaw
The records show that the RTC leniently granted repeated continuances to safeguard
Bernardo's rights as an accused. But Bernardo obviously did not recognize the need
for expeditious handling of her case and was already trifling with judicial process.69
Bernardo failed to adduce sufficient

evidence of payment; thus she is civilly
liable.
Bernardo's death pending appeal converted the present action to purely an

enforcement of the civil liability incurred. In particular, the focal issue in the
present petition is no longer Bernardo's criminal liability for violation of B.P. 22
but her civil liability, which is principally based on contract and the
corresponding damage Bumanglag suffered due to Bernardo's failure to pay.
Under these circumstances, Bernardo's B.P. 22 defense (that the checks were
presented beyond the 90-day period and that she never received a notice of
dishonor) were no longer relevant.
Jurisprudence tells us that one who pleads payment carries the burden of proving
it.70 Indeed, once the existence of an indebtedness is established by evidence, the
burden of showing with legal certainty that the obligation has been discharged by
payment rests with the debtor.71 After the debtor introduces evidence of payment,
the burden of going forward with the evidence - as distinct from the general burden
of proof - again shifts to the creditor, who then labors under a duty to produce
evidence to show nonpayment.72
In the present case, the existence of the obligation to pay has sufficiently been
established through the promissory note73 and the checks74 submitted in evidence.
Notably, Bernardo even confirmed due execution of these instruments during her
testimony. During the offer of Bernardo's testimony, her counsel
stated:cralawlawlibrary
ATTY. MIRAVITE:chanRoblesvirtualLawlibrary
With the court's permission. Your Honor, we are presenting the witness for the
following purposes: to x x x show that she borrowed money from [Bumanglag] x x
x and that in 1991 her total obligation reached Php460,000.000; x x x that all the
checks issued by the accused were only as proof of her obligation to the private
complainant x x x.75 [emphasis supplied]chanrobleslaw
In the course of Bernardo's testimony, she even confirmed the issuance of the checks
and promissory note. In particular, she stated:cralawlawlibrary
ATTY. MIRAVITE:chanRoblesvirtualLawlibrary
Q: I am showing to you this promissory note marked as Exhibit H for the

prosecution and Exhibit 2 for the defense. There appears a signature over the name
Paz T. Bernardo at the middle portion thereof, do you know whose signature is that?
A: It is mine sir.
xxxx
Q: This document, Madame Witness, mentions of your loan obligations of Php

460,000.00. Can you tell us, Madame Witness, what is covered by this promissory
note?
xxxx
A: The promissory note covers the principal loan, plus interest and penalties, sir.
Q: So, are you saying that this promissory note of Php 460,000.00 was your total
obligation as of June 1991 and includes all other charges?
A: Yes, sir.
x xxx
Q: Madam Witness, can you remember when you issued the checks subject of these
cases?
A: It was on June 20, 1991, sir.76chanrobleslaw
Bernardo's principal defense rests on the supposition that she had settled the
obligation, which settlement led Bumanglag to return to her the title to the
property.77 A meticulous review, of the records, however, firmly dissuades us from
believing Bernardo's bare allegation.
At the outset, the handwritten note78 evidencing that transaction, which was
submitted by the prosecution in evidence, states that:cralawlawlibrary
10/28/91
Received original copy of Title No. T-151841 in the name of Mapalad Bernardo for loan
purposes to pay Mrs. Carmencita Bumanglag
Sgd
Paz T. Bernardo
10/28/91
chanrobleslaw
The document evidencing this transaction strongly suggests that she asked for the
title from Bumanglag to obtain another loan whose proceeds she would use to pay
Bumanglag. Notably, the defense even admitted the genuineness of Bernardo's
signature in this document.79 When Bernardo therefore failed to fulfill her promise to
pay, Bumanglag had to request for checks to secure the obligation, which checks
were eventually dishonored upon presentment.
Under the circumstances, we find that Bernardo's claim of payment was nothing
more than an allegation unsupported by adequate proof. If indeed there had been
payment, she should have redeemed or taken back the checks and the promissory
note, in the ordinary course of business.80 Instead, the checks and the promissory
note remained in the possession of Bumanglag, who had to demand the satisfaction
of Bernardo's obligation when the checks became due and were subsequently
dishonored by the drawee bank. Bumanglag's possession of the promissory note,
coupled with the dishonored checks, strongly buttresses her claim that Bernardo's
obligation had not been extinguished.81
We thus find that the weight of evidence preponderates in favor of Bumanglag's

position that Bernardo has not yet settled her
obligation.82chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the August 31, 2007 decision of the Court of
Appeals in CA-G.R.' CR No. 28721 is AFFIRMED with MODIFICATION. The heirs
of Paz T. Bernardo are ordered to pay the amount of P460,000.00, with interest at
12% per annum from the time of the institution of criminal charges in court.
The total amount adjudged shall earn interest at the rate of 6% per annum on the
balance and interest due, from the finality of this Decision until fully paid.
The fine in the amount of P460,000.00 is DELETED.
RE: PETITION FOR RADIO AND A.M. No. 10-11-5-SC

TELEVISION COVERAGE OF THE
MULTIPLE MURDER CASES
AGAINST MAGUINDANAO
GOVERNOR ZALDY
AMPATUAN, ET AL.,
x ----------------------------------- x
RE: PETITION FOR THE
CONSTITUTION OF THE A.M. No. 10-11-6-SC
PRESENT COURT HANDLING
THE TRIAL OF THE MASSACRE
OF 57 PERSONS, INCLUDING 32 Present:
JOURNALISTS, IN AMPATUAN,
MAGUINDANAO INTO A CORONA,* C.J.,
SPECIAL COURT HANDLING CARPIO,
THIS CASE ALONE FOR THE CARPIO MORALES,
PURPOSE OF ACHIEVING VELASCO, JR.,
GENUINE SPEEDY TRIAL and LEONARDO-DE CASTRO,
FOR THE SETTING UP OF BRION,
VIDEOCAM AND MONITOR PERALTA,
JUST OUTSIDE THE COURT FOR BERSAMIN,
JOURNALISTS TO COVER AND DEL CASTILLO,
FOR THE PEOPLE TO WITNESS ABAD,
THE TRIAL OF THE DECADE TO VILLARAMA, JR.,
MAKE IT TRULY PUBLIC AND PEREZ,
IMPARTIAL AS COMMANDED MENDOZA, and
BY THE CONSTITUTION, SERENO, JJ.
x ---------------------------------x
Promulgated:
RE: LETTER OF PRESIDENT June 14, 2011
BENIGNO S. AQUINO III FOR
THE LIVE MEDIA COVERAGE OF
THE MAGUINDANAO
MASSACRE TRIAL. A.M. No. 10-11-7-SC
x----------------------------------------------------------------------------------------x
RESOLUTION
CARPIO MORALES, J.:
On November 23, 2009, 57 people including 32 journalists and media practitioners

were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst
election-related violence and the most brutal killing of journalists in recent history, the
tragic incident which came to be known as the Maguindanao Massacre spawned
charges for 57 counts of murder and an additional charge of rebellion against 197
accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-09-162216-31, Q-10-
162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et
al. Following the transfer of venue and the reraffling of the cases, the cases are being
tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court
(RTC) of Quezon City inside Camp Bagong Diwa in Taguig City.
Almost a year later or on November 19, 2010, the National Union of Journalists of the
Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc.,
relatives of the victims,[1] individual journalists[2] from various media entities, and
members of the academe[3] filed a petition before this Court praying that live television
and radio coverage of the trial in these criminal cases be allowed, recording devices
(e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the
working journalists, and reasonable guidelines be formulated to govern the broadcast
coverage and the use of devices.[4]The Court docketed the petition as A.M. No. 10-11-
5-SC.
In a related move, the National Press Club of the Philippines[5] (NPC) and Alyansa ng
Filipinong Mamamahayag[6] (AFIMA) filed on November 22, 2010 a petition praying
that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus
only on the Maguindanao Massacre trial to relieve it of all other pending cases and
assigned duties, and allow the installation inside the courtroom of a sufficient
number of video cameras that shall beam the audio and video signals to the television
monitors outside the court.[7] The Court docketed the petition as A.M. No. 10-11-6-
SC.
President Benigno S. Aquino III, by letter of November 22, 2010[8]addressed to Chief

Justice Renato Corona, came out in support of those who have petitioned [this Court]
to permit television and radio broadcast of the trial." The President expressed earnest
hope that [this Court] will, within the many considerations that enter into such a
historic deliberation,
attend to this petition with the dispatch, dispassion and humaneness, such a petition
merits.[9] The Court docketed the matter as A.M. No. 10-11-7-SC.
By separate Resolutions of November 23, 2010,[10] the Court consolidated A.M. No. 10-
11-7-SC with A.M. No. 10-11-5-SC. The Court shall treat in a separate Resolution A.M.
No. 10-11-6-SC.
Meanwhile, various groups[11] also sent to the Chief Justice their respective resolutions
and statements bearing on these matters.
The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a
Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-
11-7-SC. The President, through the Office of the Solicitor General (OSG), and NUJP, et
al. filed their respective Reply of January 18, 2011 and January 20, 2011. Ampatuan
also filed a Rejoinder of March 9, 2011.
On Broadcasting the Trial of the Maguindanao Massacre Cases
Petitioners seek the lifting of the absolute ban on live television and radio coverage of
court proceedings. They principally urge the Court to revisit the 1991 ruling in Re: Live
TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case [12] and
the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the
Plunder Cases Against the Former President Joseph E. Estrada[13]which rulings, they
contend, violate the doctrine that proposed restrictions on constitutional rights are to
be narrowly construed and outright prohibition cannot stand when regulation is a
viable alternative.
Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense
media coverage due to the gruesomeness of the crime, prominence of the accused, and
the number of media personnel killed.They inform that reporters are being frisked
and searched for cameras, recorders, and cellular devices upon entry, and that under
strict orders of the trial court against live broadcast coverage, the number of media
practitioners allowed inside the courtroom has been limited to one reporter for each
media institution.
The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010
letter[14] to Judge Solis-Reyes, requested a dialogue to discuss concerns over media
coverage of the proceedings of the Maguindanao Massacre cases. Judge Solis-Reyes
replied, however, that matters concerning media coverage should be brought to the
Courts attention through appropriate motion.[15] Hence, the present petitions which
assert the exercise of the freedom of the press, right to information, right to a fair and
public trial, right to assembly and to petition the government for redress of grievances,
right of free access to courts, and freedom of association, subject to regulations to be
issued by the Court.
The Court partially GRANTS pro hac vice petitioners prayer for a live broadcast of
the trial court proceedings, subject to the guidelines which shall be enumerated
shortly.
Putts Law[16] states that technology is dominated by two types of people: those who
understand what they do not manage, and those who manage what they do not
understand. Indeed, members of this Court cannot strip their judicial robe and don
the experts gown, so to speak, in a pretense to foresee and fathom all serious
prejudices or risks from the use of technology inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is once again faced with the
same task of striking that delicate balance between seemingly competing yet
certainly complementary rights.
The indication of serious risks posed by live media coverage to the accuseds right to
due process, left unexplained and unexplored in the era obtaining
in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to
public information.
The rationale for an outright total prohibition was shrouded, as it is now, inside the
comfortable cocoon of a feared speculation which no scientific study in the
Philippine setting confirms, and which fear, if any, may be dealt with by safeguards
and safety nets under existing rules and exacting regulations.
In this day and age, it is about time to craft a win-win situation that
shall not compromise rights in the criminal administration of justice, sacrifice press
freedom and allied rights, and interfere with the integrity, dignity and solemnity of
judicial proceedings. Compliance with regulations, not curtailment of a right,
provides a workable solution to the concerns raised in these administrative matters,
while, at the same time, maintaining the same underlying principles upheld in the two
previous cases.
The basic principle upheld in Aquino is firm [a] trial of any kind or in any court is a
matter of serious importance to all concerned and should not be treated as a means of
entertainment[, and t]o so treat it deprives the court of the dignity which pertains to
it and departs from the orderly and serious quest for truth for which our judicial
proceedings are formulated.The observation that [m]assive intrusion of
representatives of the news media into the trial itself can so alter and destroy the
constitutionally necessary atmosphere and decorum stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's right to due process

as well as to the fair and orderly administration of justice, and
considering further that the freedom of the press and the right of the
people to information may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and television coverage of
court proceedings shall not be allowed. Video footages of court hearings
for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior
to the commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.
Accordingly, in order to protect the parties' right to due process, to
prevent the distraction of the participants in the proceedings and in the
last analysis, to avoid miscarriage of justice, the Court resolved to
PROHlBIT live radio and television coverage of court proceedings. Video
footage of court hearings for news purposes shall be limited and
restricted as above indicated.[17]
The Court had another unique opportunity in Estrada to revisit the question of live
radio and television coverage of court proceedings in a criminal case. It held that [t]he
propriety of granting or denying the instant petition involve[s] the weighing out of
the constitutional guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the accused, on the other
hand, along with the constitutional power of a court to control its proceedings in
ensuring a fair and impartial trial. The Court disposed:
The Court is not all that unmindful of recent technological and scientific
advances but to chance forthwith the life or liberty of any person in a
hasty bid to use and apply them, even before ample safety nets are
provided and the concerns heretofore expressed are aptly addressed, is
a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.[18]
In resolving the motion for reconsideration, the Court in Estrada, by Resolution of

September 13, 2001, provided a glimmer of hope when it ordered the audio-visual
recording of the trial for documentary purposes, under the following conditions:
x x x (a) the trial shall be recorded in its entirety, excepting such portions
thereof as the Sandiganbayan may determine should not be held public
under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall
be installed inconspicuously inside the courtroom and the movement of
TV crews shall be regulated consistent with the dignity and solemnity of
the proceedings; (c) the audio-visual recordings shall be made for
documentary purposes only and shall be made without comment except
such annotations of scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases against
the former President shall be prohibited under pain of contempt of court
and other sanctions in case of violations of the prohibition; (e) to ensure
that the conditions are observed, the audio-visual recording of the
proceedings shall be made under the supervision and control of the
Sandiganbayan or its Division concerned and shall be made pursuant to
rules promulgated by it; and (f) simultaneously with the release of the
audio-visual recordings for public broadcast, the original thereof shall be
deposited in the National Museum and the Records Management and
Archives Office for preservation and exhibition in accordance with
law.[19]
Petitioners note that the 1965 case of Estes v.

Texas[20] which Aquino and Estrada heavily cited, was borne out of the dynamics of a
jury system, where the considerations for the possible infringement of the impartiality
of a jury, whose members are not necessarily schooled in the law, are different from
that of a judge who is versed with the rules of evidence. To petitioners, Estes also does
not represent the most contemporary position of the United States in the wake of latest
jurisprudence[21] and statistical figures revealing that as of 2007 all 50 states, except
the District of Columbia, allow television coverage with varying degrees of openness.
Other jurisdictions welcome the idea of media coverage. Almost all the proceedings
of United Kingdoms Supreme Court are filmed, and sometimes broadcast.[22] The
International Criminal Court broadcasts its proceedings via video streaming in the
internet.[23]
On the media coverages influence on judges, counsels and witnesses, petitioners point
out that Aquino and Estrada, like Estes, lack empirical evidence to support the
sustained conclusion. They point out errors of generalization where the conclusion
has been mostly supported by studies on American attitudes, as there has been no
authoritative study on the particular matter dealing with Filipinos.
Respecting the possible influence of media coverage on the impartiality of trial court
judges, petitioners correctly explain that prejudicial publicity insofar as it undermines
the right to a fair trial must pass the totality of circumstances test, applied in People v.
Teehankee, Jr.[24]and Estrada v. Desierto,[25] that the right of an accused to a fair trial is
not incompatible to a free press, that pervasive publicity is not per seprejudicial to the
right of an accused to a fair trial, and that there must be allegation and proof of the
impaired capacity of a judge to render a bias-free decision. Mere fear of possible
undue influence is not tantamount to actual prejudice resulting in the deprivation of
the right to a fair trial.
Moreover, an aggrieved party has ample legal remedies. He may challenge the
validity of an adverse judgment arising from a proceeding that transgressed a
constitutional right. As pointed out by petitioners, an aggrieved party may early on
move for a change of venue, for continuance until the prejudice from publicity is
abated, for disqualification of the judge, and for closure of portions of the trial when
necessary. The trial court may likewise exercise its power of contempt and issue gag
orders.
One apparent circumstance that sets the Maguindanao Massacre cases apart from the
earlier cases is the impossibility of accommodating even the parties to the cases the
private complainants/families of the victims and other witnesses inside the
courtroom. On public trial, Estradabasically discusses:
An accused has a right to a public trial but it is a right that belongs to

him, more than anyone else, where his life or liberty can be held critically
in balance. A public trial aims to ensure that he is fairly dealt with and
would not be unjustly condemned and that his rights are not
compromised in secrete conclaves of long ago. A public trial is not
synonymous with publicized trial; it only implies that the court doors
must be open to those who wish to come, sit in the available seats,
conduct themselves with decorum and observe the trial process. In the
constitutional sense, a courtroom should have enough facilities for a
reasonable number of the public to observe the proceedings, not too
small as to render the openness negligible and not too large as to distract
the trial participants from their proper functions, who shall then be
totally free to report what they have observed during the
proceedings.[26] (underscoring supplied)
Even before considering what is a reasonable number of the public who may observe
the proceedings, the peculiarity of the subject criminal cases is that the proceedings
already necessarily entail the presence of hundreds of families. It cannot be gainsaid
that the families of the 57 victims and of the 197 accused have as much interest, beyond
mere curiosity, to attend or monitor the proceedings as those of the impleaded parties
or trial participants. It bears noting at this juncture that the prosecution and the
defense have listed more than 200 witnesses each.
The impossibility of holding such judicial proceedings in a courtroom that will

accommodate all the interested parties, whether private complainants or accused, is
unfortunate enough. What more if the right itself commands that a reasonable number
of the general public be allowed to witness the proceeding as it takes place inside the
courtroom.Technology tends to provide the only solution to break the inherent
limitations of the courtroom, to satisfy the imperative of a transparent, open and
public trial.
In so allowing pro hac vice the live broadcasting by radio and television of the
Maguindanao Massacre cases, the Court lays down the following guidelines toward
addressing the concerns mentioned in Aquino and Estrada:
(a) An audio-visual recording of the Maguindanao massacre cases may

be made both for documentary purposes and for transmittal to live radio
and television broadcasting.
(b) Media entities must file with the trial court a letter of application,
manifesting that they intend to broadcast the audio-visual recording of
the proceedings and that they have the necessary technological
equipment and technical plan to carry out the same, with an undertaking
that they will faithfully comply with the guidelines and regulations and
cover the entire remaining proceedings until promulgation of judgment.
No selective or partial coverage shall be allowed. No media entity

shall be allowed to broadcast the proceedings without an application
duly approved by the trial court.
(c) A single fixed compact camera shall be installed inconspicuously

inside the courtroom to provide a single wide-angle full-view of the sala
of the trial court. No panning and zooming shall be allowed to avoid
unduly highlighting or downplaying incidents in the proceedings. The
camera and the necessary equipment shall be operated and controlled
only by a duly designated official or employee of the Supreme Court. The
camera equipment should not produce or beam any distracting sound or
light rays. Signal lights or signs showing the equipment is operating
should not be visible. A limited number of microphones and the least
installation of wiring, if not wireless technology, must be unobtrusively
located in places indicated by the trial court.
The Public Information Office and the Office of the Court

Administrator shall coordinate and assist the trial court on the physical
set-up of the camera and equipment.
(d) The transmittal of the audio-visual recording from inside the
courtroom to the media entities shall be conducted in such a way that the
least physical disturbance shall be ensured in keeping with the dignity
and solemnity of the proceedings and the exclusivity of the access to the
media entities.
The hardware for establishing an interconnection or link with the

camera equipment monitoring the proceedings shall be for the account
of the media entities, which should employ technology that can (i) avoid
the cumbersome snaking cables inside the courtroom, (ii) minimize the
unnecessary ingress or egress of technicians, and (iii) preclude undue
commotion in case of technical glitches.
If the premises outside the courtroom lack space for the set-up of
the media entities facilities, the media entities shall access the audio-
visual recording either via wireless technology accessible even from
outside the court premises or from one common web broadcasting
platform from which streaming can be accessed or derived to feed the
images and sounds.
At all times, exclusive access by the media entities to the real-time
audio-visual recording should be protected or encrypted.
(e) The broadcasting of the proceedings for a particular day must be

continuous and in its entirety, excepting such portions thereof where Sec.
21 of Rule 119 of the Rules of Court[27] applies, and where the trial court
excludes, upon motion, prospective witnesses from the courtroom, in
instances where, inter alia, there are unresolved identification issues or
there are issues which involve the security of the witnesses and the
integrity of their testimony (e.g., the dovetailing of corroborative
testimonies is material, minority of the witness).
The trial court may, with the consent of the parties, order only the
pixelization of the image of the witness or mute the audio output, or both.
(f) To provide a faithful and complete broadcast of the proceedings, no

commercial break or any other gap shall be allowed until the days
proceedings are adjourned, except during the period of recess called by
the trial court and during portions of the proceedings wherein the public
is ordered excluded.
(g) To avoid overriding or superimposing the audio output from the on-
going proceedings, the proceedings shall be broadcast without any voice-
overs, except brief annotations of scenes depicted therein as may be
necessary to explain them at the start or at the end of the scene. Any
commentary shall observe the sub judice rule and be subject to the
contempt power of the court;
(h) No repeat airing of the audio-visual recording shall be allowed until

after the finality of judgment, except brief footages and still images
derived from or cartographic sketches of scenes based on the recording,
only for news purposes, which shall likewise observe the sub judice rule
and be subject to the contempt power of the court;
(i) The original audio-recording shall be deposited in

the National Museum and the Records Management and Archives Office
for preservation and exhibition in accordance with law.
(j) The audio-visual recording of the proceedings shall be made under

the supervision and control of the trial court which may issue
supplementary directives, as the exigency requires, including the
suspension or revocation of the grant of application by the media entities.
(k) The Court shall create a special committee which shall forthwith
study, design and recommend appropriate arrangements, implementing
regulations, and administrative matters referred to it by the Court
concerning the live broadcast of the proceedings pro hac vice, in
accordance with the above-outlined guidelines. The Special Committee
shall also report and recommend on the feasibility, availability and
affordability of the latest technology that would meet the herein
requirements. It may conduct consultations with resource persons and
experts in the field of information and communication technology.
(l) All other present directives in the conduct of the proceedings of the
trial court (i.e., prohibition on recording devices such as still cameras,
tape recorders; and allowable number of media practitioners inside the
courtroom) shall be observed in addition to these guidelines.
Indeed, the Court cannot gloss over what advances technology has to offer in distilling
the abstract discussion of key constitutional precepts into the workable
context. Technology per se has always been neutral. It is the use and regulation thereof
that need fine-tuning. Law and technology can work to the advantage and furtherance
of the various rights herein involved, within the contours of defined guidelines.
WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY

GRANTS PRO HAC VICE the request for live broadcast by television and radio of
the trial court proceedings of the Maguindanao Massacre cases, subject to the
guidelines herein outlined.
SO ORDERED.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF DATUKAN

MALANG SALIBO, DATUKAN MALANG SALIBO, Petitioner,
vs.
WARDEN, QUEZON CITY JAIL ANNEX, BJMP BUILDING, CAMP BAGONG
DIWA, TAGUIG CITY and all other persons acting on his behalf and/or having
custody of DATUKAN MALANG SALIBO, Respondents.
DECISION
LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken
identity. In such cases, the person is not under any lawful process and is
continuously being illegally detained.
This is a Petition for Review1 on Certiorari of the Court of Appeals
Decision2 reversing the Decision3 of the Regional Trial Court, Branch 153, Pasig City
(Taguig Hall of Justice) granting Datukan Malang Salibos Petition for Habeas
Corpus.
From November 7, 2009 to December 19, 2009, Datukan Malang Salibo (Salibo) and
other Filipinos were allegedly in Saudi Arabia for the Hajj Pilgrimage.4 "While in
Saudi Arabia, . . . Salibo visited and prayed in the cities of Medina, Mecca, Arpa,
Mina and Jeddah."5 He returned to the Philippines on December 20, 2009.6
On August 3, 2010, Salibo learned that police officers of Datu Hofer Police Station in
Maguindanao suspected him to be Butukan S. Malang.7
Butukan S. Malang was one of the 197 accused of 57 counts of murder for allegedly
participating in the November 23, 2009 Maguindanao Massacre. He had a pending
warrant of arrest issued by the trial court in People of the Philippines v. Datu Andal
Ampatuan, Jr., et al.8
Salibo presented himself before the police officers of Datu Hofer Police Station to
clear his name. There, he explained that he was not Butukan S. Malang and that he
could not have participated in the November 23, 2009 Maguindanao Massacre
because he was in Saudi Arabia at that time.9
To support his allegations, Salibo presented to the police "pertinent portions of his
passport, boarding passes and other documents"10 tending to prove that a certain
Datukan Malang Salibo was in Saudi Arabia from November 7 to December 19,
2009.11
The police officers initially assured Salibo that they would not arrest him because he
was not Butukan S. Malang.12
Afterwards, however, the police officers apprehended Salibo and tore off page two
of his passport that evidenced his departure for Saudi Arabia on November 7, 2009.
They then detained Salibo at the Datu Hofer Police Station for about three (3) days.13
The police officers transferred Salibo to the Criminal Investigation and Detection
Group in Cotabato City, where he was detained for another 10 days. While in
Cotabato City, the Criminal Investigation and Detention Group allegedly made him
sign and affix his thumbprint on documents.14
On August 20, 2010, Salibo was finally transferred to the Quezon City Jail Annex,
Bureau of Jail Management and Penology Building, Camp Bagong Diwa, Taguig
City, where he is currently detained.15
On September 17, 2010, Salibo filed before the Court of Appeals the Urgent Petition
for Habeas Corpus16questioning the legality of his detention and deprivation of his
liberty.17 He maintained that he is not the accused Butukan S. Malang.18
In the Resolution19 dated September 21, 2010,the Court of Appeals issued a Writ of
Habeas Corpus, making the Writ returnable to the Second Vice Executive Judge of
the Regional Trial Court, Pasig City (Taguig Hall of Justice).20 The Court of Appeals
ordered the Warden of the Quezon City Jail Annex to file a Return of the Writ one
day before the scheduled hearing and produce the person of Salibo at the 10:00 a.m.
hearing set on September 27, 2010.21 Proceedings before the trial court
On September 27, 2010, the jail guards of the Quezon City Jail Annex brought Salibo
before the trial court. The Warden, however, failed to file a Return one day before
the hearing. He also appeared without counsel during the hearing.22
Thus, the trial court canceled the hearing and reset it to September 29, 2010 at 2:00
p.m.23
On September 28, 2010, the Warden filed the Return of the Writ. However, during
the September 29, 2010 hearing on the Return, the Warden appeared with Atty.
Romeo L. Villante, Jr., Legal Officer/Administering Officer of the Bureau of Jail
Management and Penology.24 Salibo questioned the appearance of Atty. Romeo L.
Villante, Jr. on behalf of the Warden and argued that only the Office of the Solicitor
General has the authority to appear on behalf of a respondent in a habeas corpus
proceeding.25
The September 29, 2010 hearing, therefore, was canceled. The trial court reset the
hearing on the Return to October 1, 2010 at 9:00 a.m.26
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel Salo and
Isar Pepito appeared on behalf of the Warden of the Quezon City Jail Annex and
argued that Salibos Petition for Habeas Corpus should be dismissed. Since Salibo
was charged under a valid Information and Warrant of Arrest, a petition for habeas
corpus was "no longer availing."27 Salibo countered that the Information, Amended
Information, Warrant of Arrest, and Alias Warrant of Arrest referred to by the
Warden all point to Butukan S. Malang, not Datukan Malang Salibo, as accused.
Reiterating that he was not Butukan S. Malang and that he was in Saudi Arabia on
the day of the Maguindanao Massacre, Salibo pleaded the trial court to order his
release from detention.28
The trial court found that Salibo was not "judicially charged"29 under any resolution,
information, or amended information. The Resolution, Information, and Amended
Information presented in court did not charge Datukan Malang Salibo as an accused.
He was also not validly arrested as there was no Warrant of Arrest or Alias Warrant
of Arrest against Datukan Malang Salibo. Salibo, the trial court ruled, was not
restrained of his liberty under process issued by a court.30
The trial court was likewise convinced that Salibo was not the Butukan S. Malang
charged with murder in connection with the Maguindanao Massacre. The National
Bureau of Investigation Clearance dated August 27, 2009 showed that Salibo has not
been charged of any crime as of the date of the certificate.31 A Philippine passport
bearing Salibos picture showed the name "Datukan Malang Salibo."32
Moreover, the trial court said that Salibo "established that [he] was out of the
country"33 from November 7, 2009 to December 19, 2009. This fact was supported by
a Certification34 from Saudi Arabian Airlines confirming Salibos departure from and
arrival in Manila on board its flights.35 A Flight Manifest issued by the Bureau of
Immigration and Saudi Arabian Airlines Ticket No. 0652113 also showed this fact.36
Thus, in the Decision dated October 29, 2010, the trial court granted Salibos Petition
for Habeas Corpus and ordered his immediate release from detention.
Proceedings before the Court of Appeals
On appeal37 by the Warden, however, the Court of Appeals reversed and set aside
the trial courts Decision.38Through its Decision dated April 19, 2011, the Court of
Appeals dismissed Salibos Petition for Habeas Corpus.
Contrary to the trial courts finding, the Court of Appeals found that Salibos arrest
and subsequent detention were made under a valid Information and Warrant of
Arrest.39 Even assuming that Salibo was not the Butukan S. Malang named in the
Alias Warrant of Arrest, the Court of Appeals said that "[t]he orderly course of trial
must be pursued and the usual remedies exhausted before the writ [of habeas
corpus] may be invoked[.]"40 According to the Court of Appeals, Salibos proper
remedy was a Motion to Quash Information and/or Warrant of Arrest.41
Salibo filed a Motion for Reconsideration,42 which the Court of Appeals denied in
the Resolution43 dated July 6, 2011.
Proceedings before this court
On July 28, 2011, petitioner Salibo filed before this court the Petition for Review
44
(With Urgent Application for a Writ of Preliminary Mandatory Injunction).

Respondent Warden filed a Comment,45 after which petitioner Salibo filed a Reply.46
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with 57
counts of murder before the Regional Trial Court, Branch 221, Quezon City. Thus,
contrary to the Court of Appeals finding, he, Datukan Malang Salibo, was not duly
charged in court. He is being illegally deprived of his liberty and, therefore, his
proper remedy is a Petition for Habeas Corpus.47 Petitioner Salibo adds that
respondent Warden erred in appealing the Decision of the Regional Trial Court,
Branch 153, Pasig City before the Court of Appeals. Although the Court of Appeals
delegated to the trial court the authority to hear respondent Warden on the Return,
the trial courts Decision should be deemed a Decision of the Court of Appeals.
Therefore, respondent Warden should have directly filed his appeal before this
court.48
As for respondent Warden, he maintains that petitioner Salibo was duly charged in
court. Even assuming that he is not the Butukan S. Malang named in the Alias
Warrant of Arrest, petitioner Salibo should have pursued the ordinary remedy of a
Motion to Quash Information, not a Petition for Habeas Corpus.49
The issues for our resolution are:
First, whether the Decision of the Regional Trial Court, Branch 153, Pasig City on
petitioner Salibos Petition for Habeas Corpus was appealable to the Court of
Appeals; and
Second, whether petitioner Salibos proper remedy is to file a Petition for Habeas
Corpus.
We grant the Petition.
I
Contrary to petitioner Salibos claim, respondent Warden correctly appealed before
the Court of Appeals.
An application for a writ of habeas corpus may be made through a petition filed
before this court or any of its members,50 the Court of Appeals or any of its members
in instances authorized by law,51 or the Regional Trial Court or any of its presiding
judges.52 The court or judge grants the writ and requires the officer or person having
custody of the person allegedly restrained of liberty to file a return of the writ.53 A
hearing on the return of the writ is then conducted.54
The return of the writ may be heard by a court apart from that which issued the
writ.55 Should the court issuing the writ designate a lower court to which the writ is
made returnable, the lower court shall proceed to decide the petition of habeas
corpus. By virtue of the designation, the lower court "acquire[s] the power and
authority to determine the merits of the [petition for habeas corpus.]"56 Therefore,
the decision on the petition is a decision appealable to the court that has appellate
jurisdiction over decisions of the lower court.57
In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was filed before this
Court . . . [o]n behalf of . . . Alfredo B. Saulo [(Saulo)]."59 This court issued a Writ of
Habeas Corpus and ordered respondent Commanding General of the Philippine
Constabulary to file a Return of the Writ. This court made the Writ returnable to the
Court of First Instance of Manila.60
After hearing the Commanding General on the Return, the Court of First Instance
denied Saulos Petition for Habeas Corpus.61
Saulo appealed before this court, arguing that the Court of First Instance heard the
Petition for Habeas Corpus "not by virtue of its original jurisdiction but merely
delegation[.]"62 Consequently, "this Court should have the final say regarding the
issues raised in the petition, and only [this courts decision] . . . should be regarded
as operative."63
This court rejected Saulos argument and stated that his "logic is more apparent than
real."64 It ruled that when a superior court issues a writ of habeas corpus, the
superior court only resolves whether the respondent should be ordered to show
cause why the petitioner or the person in whose behalf the petition was filed was
being detained or deprived of his or her liberty.65 However, once the superior court
makes the writ returnable to a lower court as allowed by the Rules of Court, the
lower court designated "does not thereby become merely a recommendatory body,
whose findings and conclusion[s] are devoid of effect[.]"66 The decision on the
petition for habeas corpus is a decision of the lower court, not of the superior court.
In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this court a
Petition for Habeas Corpus. This court issued a Writ of Habeas Corpus, making it
returnable to the Court of First Instance of Rizal, Quezon City. After trial on the
merits, the Court of First Instance granted Medinas Petition for Habeas Corpus and
ordered that Medina be released from detention.68 The Office of the Solicitor General
filed a Notice of Appeal before the Court of Appeals.69 Atty. Amelito Mutuc, counsel
for Medina, filed before the Court of Appeals a "Motion for Certification of Appeal
to the Supreme Court." The Court of Appeals, however, denied the Motion.70
This court ruled that the Court of Appeals correctly denied the "Motion for
Certification of Appeal to the Supreme Court," citing Saulo as legal basis.71 The
Court of First Instance of Rizal, in deciding Medinas Petition for Habeas Corpus,
"acquired the power and authority to determine the merits of the
case[.]"72 Consequently, the decision of the Court of First Instance of Rizal on
Medinas Petition for Habeas Corpus was appealable to the Court of Appeals.73
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the Court of
Appeals. The Court of Appeals issued a Writ of Habeas Corpus, making it returnable
to the Regional Trial Court, Branch 153, Pasig City. The trial court then heard
respondent Warden on his Return and decided the Petition on the merits.
Applying Saulo and Medina, we rule that the trial court "acquired the power and
authority to determine the merits"74 of petitioner Salibos Petition. The decision on
the Petition for Habeas Corpus, therefore, was the decision of the trial court, not of
the Court of Appeals. Since the Court of Appeals is the court with appellate
jurisdiction over decisions of trial courts,75 respondent Warden correctly filed the
appeal before the Court of Appeals.
II
Called the "great writ of liberty[,]"76 the writ of habeas corpus "was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint,
and as the best and only sufficient defense of personal freedom."77 The remedy of
habeas corpus is extraordinary78 and summary79 in nature, consistent with the laws
"zealous regard for personal liberty."80 Under Rule 102, Section 1 of the Rules of
Court, the writ of habeas corpus "shall extend to all cases of llegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto."81 The primary
purpose of the writ "is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is
illegal."82 "Any restraint which will preclude freedom of action is sufficient."83
The nature of the restraint of liberty need not be related to any offense so as to entitle
a person to the efficient remedy of habeas corpus. It may be availed of as a post-
conviction remedy84 or when there is an alleged violation of the liberty of abode.85 In
other words, habeas corpus effectively substantiates the implied autonomy of
citizens constitutionally protected in the right to liberty in Article III, Section 1 of the
Constitution.86 Habeas corpus being a remedy for a constitutional right, courts must
apply a conscientious and deliberate level of scrutiny so that the substantive right to
liberty will not be further curtailed in the labyrinth of other processes.87
In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario Gumabon
(Gumabon), Blas Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito), Epifanio
Padua (Padua), and Paterno Palmares (Palmares) were convicted of the complex
crime of rebellion with murder. They commenced serving their respective sentences
of reclusion perpetua.89
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their
sentences, this court promulgated People v. Hernandez90 in 1956, ruling that the
complex crime of rebellion with murder does not exist.91
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and
Palmares filed a Petition for Habeas Corpus. They prayed for their release from
incarceration and argued that the Hernandez doctrine must retroactively apply to
them.92
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares properly
availed of a petition for habeas corpus.93 Citing Harris v. Nelson,94 this court said:
[T]he writ of habeas corpus is the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. . . . The scope and
flexibility of the writ its capacity to reach all manner of illegal detention its
ability to cut through barriers of form and procedural mazes have always been
emphasized and jealously guarded by courts and lawmakers. The very nature of the
writ demands that it be administered with the initiative and flexibility essential to
insure that miscarriages of justice within its reach are surfaced and corrected.95
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of Mindoro issued
Resolution No. 25, Seriesof 1917. The Resolution ordered the Mangyans removed
from their native habitat and compelled them to permanently settle in an 800-hectare
reservation in Tigbao. Under the Resolution, Mangyans who refused to establish
themselves in the Tigbao reservation were imprisoned.97
An application for habeas corpus was filed before this court on behalf of Rubi and all
the other Mangyans being held in the reservation.98 Since the application questioned
the legality of deprivation of liberty of Rubi and the other Mangyans, this court
issued a Writ of Habeas Corpus and ordered the Provincial Board of Mindoro to
make a Return of the Writ.99
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban.100 "[T]o
exterminate vice,"101 Mayor Justo Lukban of Manila ordered the brothels in Manila
closed. The female sex workers previously employed by these brothels were
rounded up and placed in ships bound for Davao. The women were expelled from
Manila and deported to Davao without their consent.102
On application by relatives and friends of some of the deported women, this court
issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, among others, to
make a Return of the Writ. Mayor Justo Lukban, however, failed to make a Return,
arguing that he did not have custody of the women.103
This court cited Mayor Justo Lukban in contempt of court for failure to make a
Return of the Writ.104 As to the legality of his acts, this court ruled that Mayor Justo
Lukban illegally deprived the women he had deported to Davao of their liberty,
specifically, of their privilege of domicile.105 It said that the women, "despite their
being in a sense lepers of society[,] are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are other
citizens[.]"106 The women had the right "to change their domicile from Manila to
another locality."107
The writ of habeas corpus is different from the final decision on the petition for the
issuance of the writ. It is the writ that commands the production of the body of the
person allegedly restrained of his or her liberty. On the other hand, it is in the final
decision where a court determines the legality of the restraint.
Between the issuance of the writ and the final decision on the petition for its
issuance, it is the issuance of the writ that is essential. The issuance of the writ sets in
motion the speedy judicial inquiry on the legality of any deprivation of liberty.
Courts shall liberally issue writs of habeas corpus even if the petition for its issuance
"on [its] face [is] devoid of merit[.]"108 Although the privilege of the writ of habeas
corpus may be suspended in cases of invasion, rebellion, or when the public safety
requires it,109 the writ itself may not be suspended.110
III
It is true that a writ of habeas corpus may no longer be issued if the person allegedly
deprived of liberty is restrained under a lawful process or order of the court.111 The
restraint then has become legal,112 and the remedy of habeas corpus is rendered
moot and academic.113
Rule 102, Section 4 of the Rules of Court provides:
SEC. 4. When writ not allowed or discharge authorized.If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under lawful
judgment.
In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine Constabulary-Integrated
National Police arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by virtue of a
Mission Order allegedly issued by then Minister of National Defense, Juan Ponce
Enrile (Minister Enrile). On the day of Atty. Ilagans arrest, 15 from the Integrated
Bar of the Philippines Davao Chapter visited Atty. Ilagan in Camp Catitipan, where
he was detained.115
Among Atty. Ilagans visitors was Atty. Antonio Arellano (Atty. Arellano). Atty.
Arellano, however, no longer left Camp Catitipan as the military detained and
arrested him based on an unsigned Mission Order.116
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military informed
the Integrated Bar of the Philippines Davao Chapter of the impending arrest of Atty.
Marcos Risonar (Atty. Risonar). To verify his arrest papers, Atty. Risonar went to
Camp Catitipan. LikeAtty. Arellano, the military did not allow Atty. Risonar toleave.
He was arrested based on a Mission Order signed by General Echavarria, Regional
Unified Commander.117
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism filed before this
court a Petition for Habeas Corpus in behalf of Attys. Ilagan, Arellano, and
Risonar.118
This court issued a Writ of Habeas Corpus and required Minister Enrile, Armed
Forces of the Philippines Acting Chief of Staff Lieutenant General Fidel V. Ramos
(General Ramos), and Philippine Constabulary-Integrated National Police Regional
Commander Brigadier General Dionisio Tan-Gatue (General Tan-Gatue) to make a
Return of the Writ.119 This court set the hearing on the Return on May 23, 1985.120
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue contended
that the privilege of the Writ of Habeas Corpus was suspended as to Attys. Ilagan,
Arellano, and Risonar by virtue of Proclamation No. 2045-A.121 The lawyers,
according to respondents, allegedly "played active roles in organizing mass actions
of the Communist Party of the Philippines and the National Democratic Front."122
After hearing respondents on their Return, this court ordered the temporary release
of Attys. Ilagan, Arellano, and Risonar on the recognizance of their counsels, retired
Chief Justice Roberto Concepcion and retired Associate Justice Jose B.L. Reyes.123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister Enrile,
General Ramos, and General Tan-Gatue filed a Motion for Reconsideration.124 They
filed an Urgent Manifestation/Motion stating that Informations for rebellion were
filed against Attys. Ilagan, Arellano, and Risonar. They prayed that this court
dismiss the Petition for Habeas Corpus for being moot and academic.125
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism opposed the
motion. According to them, no preliminary investigation was conducted before the
filing of the Information. Attys. Ilagan, Arellano, and Risonar were deprived of their
right to due process. Consequently, the Information was void.126
This court dismissed the Petition for Habeas Corpus, ruling that it became moot and
academic with the filing of the Information against Attys. Ilagan, Arellano, and
Risonar in court:127
As contended by respondents, the petition herein has been rendered moot and
academic by virtue of the filing of an Information against them for Rebellion, a
capital offense, before the Regional Trial Court of Davao City and the issuance of a
Warrant of Arrest against them. The function of the special proceeding of habeas
corpusis to inquire into the legality of ones detention. Now that the detained
attorneys incarceration is by virtue of a judicial order in relation to criminal cases
subsequently filed against them before the Regional Trial Court of Davao City, the
remedy of habeas corpus no longer lies. The Writ had served its
purpose.128 (Citations omitted)
This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural,Renato Villanueva, Amelia Roque, Wilfredo
Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple, Vicky A. Ocaya, Deogracias
Espiritu, and Narciso B. Nazareno were all arrested without a warrant for their
alleged membership in the Communist Party of the Philippines/New Peoples
Army.130
During the pendency of the habeas corpus proceedings, however, Informations
against them were filed before this court. The filing of the Informations, according to
this court, rendered the Petitions for habeas corpus moot and academic, thus:131
It is to be noted that, in all the petitions here considered, criminal charges have been
filed in the proper courts against the petitioners. The rule is, that if a person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a
court or judge, and that the court or judge had jurisdiction to issue the process or
make the order, or if such person is charged before any court, the writ of habeas
corpus will not be allowed.132(Emphasis in the original) In such cases, instead of
availing themselves of the extraordinary remedy of a petition for habeas corpus,
persons restrained under a lawful process or order of the court must pursue the
orderly course of trial and exhaust the usual remedies.133 This ordinary remedy is to
file a motion to quash the information or the warrant of arrest.134
At any time before a plea is entered,135 the accused may file a motion to quash
complaint or information based on any of the grounds enumerated in Rule 117,
Section 3 of the Rules of Court:
SEC. 3. Grounds.The accused may move to quash the complaint or information on
any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse
or justification; and (i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
In filing a motion to quash, the accused "assails the validity of a criminal complaint
or information filed against him [or her] for insufficiency on its face in point of law,
or for defects which are apparent in the face of the information."136 If the accused
avails himself or herself of a motion to quash, the accused "hypothetical[ly] admits
the facts alleged in the information."137 "Evidence aliunde or matters extrinsic from
the information are not to be considered."138
"If the motion to quash is based on an alleged defect of the complaint or information
which can be cured by amendment, the court shall order [the] amendment [of the
complaint or information]."139 If the motion to quash is based on the ground that the
facts alleged in the complaint or information do not constitute an offense, the trial
court shall give the prosecution "an opportunity to correct the defect by
amendment."140 If after amendment, the complaint or information still suffers from
the same defect, the trial court shall quash the complaint or information.141
IV
However, Ilagan and Umil do not apply to this case. Petitioner Salibo was not
142
arrested by virtue of any warrant charging him of an offense. He was not restrained
under a lawful process or an order of a court. He was illegally deprived of his
liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus.
The Information and Alias Warrant of Arrest issued by the Regional Trial Court,
Branch 221, Quezon City in People of the Philippines v. Datu Andal Ampatuan, Jr.,
et al.charged and accused Butukan S. Malang, not Datukan Malang Salibo, of57
counts of murder in connection with the Maguindanao Massacre.
Furthermore, petitioner Salibo was not validly arrested without a warrant. Rule 113,
Section 5 of the Rules of Court enumerates the instances when a warrantless arrest
may be made:
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraphs(a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang.
When petitioner Salibo was in the presence of the police officers of Datu Hofer Police
Station, he was neither committing nor attempting to commit an offense. The police
officers had no personal knowledge of any offense that he might have committed.
Petitioner Salibo was also not an escapee prisoner.
The police officers, therefore, had no probable cause to arrest petitioner Salibo
without a warrant. They deprived him of his right to liberty without due process of
law, for which a petition for habeas corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the
"disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty. Risonar went to Camp
Catitipan to verify and contest any arrest papers against him. Then and there, Atty.
Risonar was arrested without a warrant. In his dissenting opinion in Ilagan,145 Justice
Claudio Teehankee stated that the lack of preliminary investigation deprived Atty.
Risonar, together with Attys. Ilagan and Arellano, of his right to due process of law
a ground for the grant of a petition for habeas corpus:146 The majority decision
holds that the filing of the information without preliminary investigation falls within
the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal
Procedure. Again, this is erroneous premise. The fiscal misinvoked and misapplied
the cited rules. The petitioners are not persons "lawfully arrested without a warrant."
The fiscal could not rely on the stale and inoperative PDA of January 25, 1985.
Otherwise, the rules would be rendered nugatory, if all that was needed was to get a
PDA and then serve it at ones whim and caprice when the very issuance of the PDA
is premised on its imperative urgency and necessity as declared by the President
himself. The majority decision then relies on Rule 113, Sec. 5 which authorizes
arrests without warrant by a citizen or by a police officer who witnessed the arrestee
in flagrante delicto, viz. in the act of committing the offense. Quite obviously, the
arrest was not a citizens arrest nor were they caught in flagrante delicto violating
the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure
have tightened and made the rules more strict. Thus, the Rule now requires that an
offense "has in fact just been committed." This connotes immediacy in point of time
and excludes cases under the old rule where an offense "has in fact been committed"
no matter how long ago. Similarly, the arrestor must have "personal knowledge of
facts indicating that the [arrestee] has committed it" (instead of just "reasonable
ground to believe that the [arrestee] has committed it" under the old rule). Clearly,
then, an information could not just be filed against the petitioners without due
process and preliminary investigation.147 (Emphasis in the original, citation omitted)
Petitioner Salibos proper remedy is not a Motion to Quash Information and/or
Warrant of Arrest. None of the grounds for filing a Motion to Quash Information
apply to him. Even if petitioner Salibo filed a Motion to Quash, the defect he alleged
could not have been cured by mere amendment of the Information and/or Warrant
of Arrest. Changing the name of the accused appearing in the Information and/or
Warrant of Arrest from "Butukan S. Malang" to "Datukan Malang Salibo" will not
cure the lack of preliminary investigation in this case.
A motion for reinvestigation will not cure the defect of lack of preliminary
investigation. The Information and Alias Warrant of Arrest were issued on the
premise that Butukan S. Malang and Datukan Malang Salibo are the same person.
There is evidence, however, that the person detained by virtue of these processes is
not Butukan S. Malang but another person named Datukan Malang Salibo.
Petitioner Salibo presented in evidence his Philippine passport,148 his identification
card from the Office on Muslim Affairs,149 his Tax Identification Number card,150 and
clearance from the National Bureau of Investigation151 all bearing his picture and
indicating the name "Datukan Malang Salibo." None of these government-issued
documents showed that petitioner Salibo used the alias "Butukan S. Malang."
Moreover, there is evidence that petitioner Salibo was not in the country on
November 23, 2009 when the Maguindanao Massacre occurred.1wphi1
A Certification152 from the Bureau of Immigration states that petitioner Salibo
departed for Saudi Arabia on November 7, 2009 and arrived in the Philippines only
on December 20, 2009. A Certification153 from Saudi Arabian Airlines attests that
petitioner Salibo departed for Saudi Arabia on board Saudi Arabian Airlines Flight
SV869 on November 7, 2009 and that he arrived in the Philippines on board Saudi
Arabian Airlines SV870 on December 20, 2009.
V
People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the most
complex case pending in our courts. The case involves 57 victims154 and 197 accused,
two (2) of which have become state witnesses.155 As of November 23, 2014, 111 of the
accused have been arraigned, and 70 have filed petitions for bail of which 42 have
already been resolved.156 To require petitioner Salibo to undergo trial would be to
further illegally deprive him of his liberty. Urgency dictates that we resolve his
Petition in his favor given the strong evidence that he is not Butukan S. Malang.
In ordering petitioner Salibos release, we are prejudging neither his guilt nor his
innocence. However, between a citizen who has shown that he was illegally
deprived of his liberty without due process of law and the government that has all
the "manpower and the resources at [its] command"157 to properly indict a citizen
but failed to do so, we will rule in favor of the citizen. Should the government
choose to prosecute petitioner Salibo, it must pursue the proper remedies against
him as provided in our Rules. Until then, we rule that petitioner Salibo is illegally
deprived of his liberty. His Petition for Habeas Corpus must be granted.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Court of
Appeals Decision dated April 19, 2011 is REVERSED and SET ASIDE. Respondent
Warden, Quezon City Jail Annex, Bureau of Jail Management and Penology
Building,Camp Bagong Diwa, Taguig, is ORDERED to immediately RELEASE
petitioner Datukan Malang Salibo from detention.
The Letter of the Court of Appeals elevating the records of the case to this court is
hereby NOTED.
SO ORDERED.
CHAIRPERSON SIEGFRED B. MISON, in his capacity as Chairperson1 of Bureau
of Immigration and Deportation,2 Petitioner,
vs.
HON. PAULINO Q. GALLEGOS, in his capacity as Presiding Judge of the
Regional Trial Court-Manila, Branch 47 and JA HOON KU, Respondents.
x-----------------------x
G.R. No. 211403
CHAIRPERSON SIEGFRED B. MISON, as the Chairperson of Bureau of
Immigration and Deportation,Petitioner,
vs.
HON. PAULINO Q. GALLEGOS, as Presiding Judge of the Regional Trial Court-
Manila, Branch 47 and JAHOONKU, Respondents.
x-----------------------x
G.R. No. 211590
CHAIRPERSON SIEGFRED B. MISON, in his capacity as the Chairperson of
Bureau of Immigration and Deportation, Petitioner,
vs.
JA HOON KU, Respondent.
DECISION
PEREZ, J.:
The privilege of the writ of amparo is .an extraordinary remedy adopted to address
the special concerns of extra-legal killings and enforced disappearances.
Accordingly, the remedy ought to be resorted to and granted judiciously, lest the
ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate
filing of Amparo petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated allegations.3
For the consideration of the Court are three consolidated petitions assailing the
Orders dated 28 January 2014,429 January 2014,5 and 18 February 2014,6 as well as
the Resolution dated 14 March 2014,7 all issued by respondent Presiding Judge
Paulino Gallegos (Judge Gallegos) of the Regional Trial Court-Manila, Branch 47 in
SP. PROC. No. 14-131282.
The records show that on 23 December 2013, the International Criminal Police
Organization (Interpol) of Seoul, Republic of Korea sent a Notice8 to Interpol Manila
requesting assistance in the location and deportation of respondent Ja Hoon Ku (Ku)
for arbitrarily spending money allotted as reserve fund of Phildip Korea Co., Ltd.
Consequently, the Embassy of the Republic of Korea wrote a Letter-Request9 to
petitioner, Hon. Siegfred Mison, Chairperson of the Bureau of Immigration (BI), for
the immediate arrest and deportatio n of Ku to Korea for being an undesirable alien.
Meanwhile, on 1 January 2014, Kus visa expired.10
On 3 January 2014, Special Prosecutor Maria Antonette Bucasas-Mangrobang
charged Ku for being a risk to public interest pursuant to Sec. 69, Act No. 2711.11This
finding was approved by the BI Board of Commissioners which, on 16 January 2014,
issued a Summary Deportation Order.12
On the same day, 16 January 2014, BI officers, with the assistance of the Manila
Police District-Warrant and Subpoena Section, arrested Ku. Upon arrival at the BI
detention center, Ku was detained.13
On 17 January 2014, the Republic of Korea voided Kus passport.14
Also on 17 January 2014, Ku filed a Petition for the Issuance of a Writ of Amparo
with Interim Remedies, docketed as SP PROC. No. 14- 131282.15 On 22 January 2014,
he also filed a Supplemental Petition for the Issuance of a Writ of Amparo.16
Finding said supple mental petition to be sufficient in form and substance, Judge
Gallegos, in an Order dated 22 January 2014, issued a Writ of Amparo.17 On 24
January 2014, Ku filed a Motion for the Issuance of a Temporary Protection Order
(TPO).18 Judge Gallegos then set the hearing on the TPO on 27 January 2014 at 8:30
a.m.,19while he set the hearing on the petition for the issuance of a writ of amparo on
29 January 2014 at 8:30 a.m.20
In the afternoon of 27 January 2014, petitioner filed his Return of the Writ.21 He was
then notified that a hearing on the TPO was held earlier in the morning and that the
same was already submitted for resolution.22
Petitioner then filed an Opposition to the Motion for Issuance of TPO on 28 January
2014.23
On 28 January 2014, Judge Gallegos issued the first assailed Order granting the
motion for issuance of TPO, entrusting Kus custody to the Philippine National Red
Cross and/or its Chairman CEO Richard Gordon, and directing the Philippine
National Police-Police Security and Protection Group (PNP-PSPG) to protect Ku and
his immediate family.24 On 29 January 2014, Judge Gallegos issued the second
assailed Order directing the transfer of custody and protection of Ku to the PNP-
PSPG.25 Petitioner challenged these orders before the Court via a Petition for
Certiorari26 docketed as G.R. No. 210759.
On 4 February 2014, the Court issued a Resolution in G.R. No. 210759 issuing a
Temporary Restraining Order (TRO) enjoining the enforcement of the Orders dated
28 and 29 January 2014 and directing the BI to retain custody of Ku, as well as
requiring Ku to comment on the petition.27 In issuing this resolution, the Court
intimated the possibility of misuse by Ku of the writ of amparo given that he was
validly arrested and placed under the jurisdiction and custody of the BI; thus the
case cannot be categorized as one of extralegal killing or enforced disappearance.28
Owing to the Courts Resolution dated 4 February 2014, in the hearing set on 11
February 2014 before the trial court, petitioner verbally moved for the dismissal of
the amparo petition.29On 18 February 2014, however, Judge Gallegos issued the third
assailed order denying the motion to dismiss for lack of merit.30Thus, petitioner
appealed the matter to the Court via the Petition for Certiorari and
Prohibition31 docketed as G.R. No. 211403.
On 25 February 2014, Ku filed an appeal memorandum on his deportation order
addressed to the Office of the President (OP).32
On 14 March 2014, Judge Gallegos issued the assailed Resolution granting the
privilege of the writ of amparo, to wit:
WHEREFORE, the privilege of the Writ of Amparo is hereby GRANTED. [Ku] is
ordered immediately released from [petitioners] custody without prejudice to the
institution of the proper remedy to extradition. Moreover, the [petitioner] and/or
agents are ordered to cease and desist from further violating the right to liberty of
[Ku] and the members of his family by filing cases to legitimize his detention.33
Meanwhile, in the Resolution dated 18 March 2014 in G.R. No. 211403, the Court
issued a TRO enjoining the RTC from enforcing the Order dated 18 February 2014
and from further proceeding with the case.34
On 19 March 2014, the OP granted Ku provisional liberty only until 31 August 2014
or until his appeal was resolved, whichever came first.35Ku then moved for the
release of his passport before the RTC, which petitioner opposed and to which he
filed a counter-motion for the RTC to release said passport to the BI, given that such
was one of the conditions for the OPs grant of provisional liberty to Ku.36 In the
Order dated 26 March 2014, however, Judge Gallegos merely noted petitioners
motion for being moot, considering that he already released Kus passport on 20
March 2014, upon the personal request of Ku.37
Due to the complexities involved, petitioner filed the Petition for Review on
Certiorari in G.R. No. 211590, essentially assailing the Resolution dated 14 March
2014.
Condensing the various issues raised in these petitions,38 we come to the central
question of whether or not the privilege of the writ of amparo was properly granted
in the case at bar.
We rule in the negative.
Section 1 of the Rule on the Writ of Amparo (Amparo Rule)39 provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
On 25 September 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killings and enforced disappearances." It was an exercise for
the first time of the Courts expanded power to promulgate rules to protect our
people s constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. As the
Amparo Rule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these
two instances or to threats thereof. "Extralegal killings" are killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings."
On the other hand, "enforced disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a person by a government official
or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or where
about s of the person concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of law."40
This pronouncement on the coverage of the writ was further cemented in the latter
case of Lozada, Jr. v. Macapagal-Arroyo41 where this Court explicitly declared that
as it stands, the writ of amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof. As to what constitutes "enforced
disappearance," the Court in Navia v. Pardico42 enumerated the elements
constituting "enforced disappearances" as the term is statutorily defined in Section
3(g) of Republic Act (R.A.) No. 9851,43 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State or a political organization;
(c) that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and
(d) that the intention for such refusal is to remove the subject person from the
protection of the law for a prolonged period of time.44
As clarified in Navia, with the enactment of R.A. No. 9851, the Amparo Rule is now
a procedural law anchored, not only on the constitutional rights to life, liberty and
security, but on a concrete statutory definition as well of what an enforced or
involuntary disappearance is. Therefore, A.M. No. 07-9-12-SCs reference to
enforced disappearances should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of R.A. No. 9851. Meaning, in
probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in
relation to R.A. No. 9851.45
Guided by the parameters of R.A. No. 9851, we can readily discern that Kus
circumstance does not come under the statutory definition of an enforced or
involuntary disappearance. Indeed, Ku was arrested by agents of the BI, but there
was no refusal on the part of the BI to acknowledge such arrest nor was there any
refusal to give information on the whereabouts of Ku. Neither can it be said that the
BI had any intention to remove Ku from the protection of the law for a prolonged
time.
Although Ku claims that he was arbitrarily arrested and detained by agents of the BI,
that he was not read his rights under the constitution and was not informed of the
reason for hi s arrest, nor provided a copy of any document leading to his arrest and
detention,46 the arresting officers are all consistent in testifying that, upon Kus
arrest, they introduced themselves as agents of the BI, presented to Ku the Warrant
of Deportation, and informed him of his constitutional rights as well as the
expiration of his visa.47
More importantly, there was no attempt on the part of the BI to conceal Ku or his
whereabouts. Within the Bureau, Kus arrest and the fact that he was in their
custody was not obscured as, in fact, these were well-documented as evidenced by
the Return of Warrant of Deportation dated 20 January 201448 and the After-Mission
Report dated 17 January 2014.49
More importantly, in the Return of the Writ, petitioner readily disclosed to the trial
court that Ku was in the custody of the BI pursuant to a Warrant of Deportation and
a Summary Deportation Order.50
These documents and pleading show that there was never any intention on the part
of the BI to re move Ku from the protection of the law for a prolonged time. Besides,
when Ku was arrested at 9:30 p.m. on 16 January 2014, and received at the BI
Detention Center at 11:30 p.m. also on 16 January 2014,51 the following day or on 17
January 2014, Kus counsel was immediately able to file his Entry of Appearance
with Motion for Reconsideration before the BI,52 thereby showing that Kus legal
rights were amply guarded and that he was never removed from the protection of
the law.
Section 5 of the Amparo Rule enumerates what an amparo petition should contain,
among which is the right to life, liberty and security of the aggrieved party violated
or threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances detailed
in supporting affidavits, to wit:
SEC. 5. Contents of Petition. The petition shall be signed and verified and shall
allege the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for
the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.
Ku claims that he fears for his life and feels the serious danger of being detained for
a long period of time without any cause, and that he fears that the BI will fabricate
criminal cases against him to hold him under detention.53
According to Ku, what he seeks to obtain in filing an amparo petition is the
protection it will give to his person against the actions of some government officials
who will likely take advantage of their positions and use the power of the
government at their command. Ku adds that the longer he stays in confinement the
more he is exposed to life-threatening situations and the further the violation of his
guaranteed rights.54
The allegations of Ku, though, are specious. It is to be noted that the Amparo Rule
requires the parties to establish their claims by substantial evidence.55 Other than
making unfounded claims, however, Ku was not able to present evidence that he
was exposed to "life-threatening situations" while confined at the BI Detention
Center. On the contrary, the records show that he is afforded visitorial rights and
that he has access to his counsel.
Moreover, his primary fear, which prompted him to file the amparo petition, was
that the BI would trump up charges against him so as to justify his detention. The
fact remains, however, that even before his arrest, deportation charges against him
were already duly filed and ruled upon by the BI.
As such, it can readily be discerned that the RTCs grant of the privilege of the writ
of amparo was improper in this case as Ku and his whereabouts were never
concealed, and as the alleged threats to his life, liberty and security were unfounded
and unsubstantiated. It is to be emphasized that the fundamental function of the writ
of amparo is to cause the disclosure of details concerning the extrajudicial killing or
the enforced disappearance of an aggrieved party. As Ku and his whereabouts were
never hidden, there was no need for the issuance of the privilege of the writ of
amparo in the case at bar.
It is to be additionally observed that Ku is guilty of forum shopping. Being the
subject of a Warrant of Deportation and a Summary Deportation Order, Kus proper
recourse is with the BI and, thereafter, with the DOJ and the OP.56
Ku knows this and, in fact, he filed a Motion for Reconsideration before the BI and
an Appeal before the OP. When Ku, however, injudiciously filed a Petition and a
Supplemental Petition for the Issuance of a Writ of Amparo, he committed forum
shopping by seeking a remedy which he had already solicited from another tribunal.
In Kiani v. BID,57 where petitioner therein file d before the trial court a petition for a
writ of habeas corpus seeking to have the detention of her husband declared as
illegal and to order the latters release, and where her husband filed before the
Bureau of Immigration and Deportation (BID) an omnibus motion seeking to
question the summary deportation order issued against him, the Court held that
petitioner indulged in forum shopping.
The Court clarified that under Section 8, Chapter 3, Title I, Book III of Executive
Order No. 292, the power to deport aliens is vested in the President of the
Philippines, subject to the requirements of due process. The Immigration
Commissioner is vested with authority to deport aliens under Section 37 of the
Philippine Immigration Act of 1940, as amended. Thus, a party aggrieved by a
Deportation Order issued by the BOC is proscribed from assailing said Order in the
RTC even via a petition for a writ of habeas corpus . Conformably with ruling of the
Court in Domingo v. Scheer , such party may file a motion for the reconsideration
thereof before the BOC.58
Citing Balite v. Court of Appeals,59 the Court held that there is forum shopping
when a party seeks to obtain remedies in an action in one court, which had already
been solicited, and in other courts and other proceedings in other tribunals. While a
party may avail of the remedies prescribed by the Rules of Court, such party is not
free to resort to them simultaneously or at his/her pleasure or caprice. A party
should not be allowed to present simultaneous remedies in two different forums, for
it degrades and wreaks havoc to the rule on orderly procedure. A party must follow
the sequence and hierarchical order in availing of such remedies and not resort to
shortcuts in procedure or playing fast and loose with the said rules. Forum
shopping, an act of malpractice, is considered as trifling with the courts and abusing
their processes. It is improper conduct and degrades the administration of justice.
On a final note, the Court observes that Judge Gallegos knowingly disregarded the
Courts directives as regards this case. The records show that the Courts Resolution
dated 4 February 2014, wherein we issued a TRO enjoining the enforcement of the
Orders dated 28 and 29 January 2014 and intimated the impropriety of the amparo
petition, was received by the RTC on 5 February 2014.60 This should have alerted
Judge Gallegos to proceed with caution and restraint in granting the privilege of the
writ of amparo. And yet, despite having knowledge of the Courts pronouncements,
Judge Gallegos proceeded to grant the said privilege.
Also, the records show that the Courts Resolution dated 18 March 2014, wherein we
issued a TRO enjoining the enforcement of the Order dated 18 February 2014 and
enjoining the RTC from further proceeding with the case, was received by the RTC
on 20 March 2014 at 9:00 a.m.61
Although by then, Judge Gallegos already issued the Resolution dated 14 March
2014 which granted the privilege of the writ of amparo, his receipt of the Courts
Resolution dated 18 Marc h 2014 should have forewarned him against releasing Kus
passport. That he did so demonstrates his resistance and unwillingness to follow the
Courts edicts.
It is well to note that a resolution of the Supreme Court should not be construed as a
mere request, and should be complied with promptly and completely.1wphi1 Such
failure to comply accordingly betrays not only a recalcitrant streak in character, but
al so disrespect for the Courts lawful order and directive.62
Judge Gallegos should know that judges must respect the orders and decisions of
higher tribunals, especially the Supreme Court from which all other courts take their
bearings. A resolution of the Supreme Court is not to be construed as a mere request
nor should it be complied with partially, inadequately or selectively.63
In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity. The
exacting standards of conduct demanded from judges are designed to promote
public confidence in the integrity and impartiality of the judiciary. When the judge
himself becomes the transgressor of the law which he is sworn to apply, he places
his office in disrepute, encourages disrespect for the law and impairs public
confidence in the integrity of the judiciary itself.64
WHEREFORE, premises considered, the Court hereby resolves to:
a) GRANT the present petitions, and REVERSE and SET ASIDE the
Resolution dated 14 March 2014 of the Regional Trial Court which granted the
privilege of the Writ of Amparo;
b) DENY the privilege of the Writ of Amparo sought via the Petition for the
Issuance of a Writ of Amparo and the Supplemental Petition for the Issuance
of Writ of Amparo in SP. PROC.No. 14131282 before the Regional Trial of
Manila, Branch 47; and
c) DIRECT the Office of the Court Administrator to file the appropriate
administrative charge/s against Judge Paulino Q. Gallegos in accordance
with the tenor of this Decision, and to forthwith submit to the Court its report
and recommendation thereon.
SO ORDERED.
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of
Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief,
Intelligence Division, PNP Provincial Office, Ilocos Norte, Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court)
filed pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2 seeking a review
of the 9 September 2010 Decision in Special Proc. No. 14979 of the Regional Trial
Court, First Judicial Region, Laoag City, Branch 13 (RTC Br. 13).3 The questioned
Decision denied petitioner the privilege of the writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa)
was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior
Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and
respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the
Provincial Investigation and Detective Management Branch, both of the Ilocos Norte
Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued
Administrative Order No. 275 (A.O. 275), "Creating an Independent Commission to
Address the Alleged Existence of Private Armies in the Country."7 The body, which
was later on referred to as the Zearosa Commission,8 was formed to investigate the
existence of private army groups (PAGs) in the country with a view to eliminating
them before the 10 May 2010 elections and dismantling them permanently in the
future.9 Upon the conclusion of its investigation, the Zearosa Commission released
and submitted to the Office of the President a confidential report entitled "A Journey
Towards H.O.P.E.: The Independent Commission Against Private Armies Report to
the President" (the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNPIlocos
Norte) conducted a series of surveillance operations against her and her aides,11 and
classified her as someone who keeps a PAG.12Purportedly without the benefit of
data verification, PNPIlocos Norte forwarded the information gathered on her to
the Zearosa Commission,13 thereby causing her inclusion in the Reports
enumeration of individuals maintaining PAGs.14 More specifically, she pointed out
the following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the status
of PAGs in the Philippines.15
(b) The Report stated that "x x x the PNP organized one dedicated Special
Task Group (STG) for each private armed group (PAG) to monitor and
counteract their activities."16
(c) Attached as Appendix "F" of the Report is a tabulation generated by the
PNP and captioned as "Status of PAGs Monitoring by STGs as of April 19,
2010," which classifies PAGs in the country according to region, indicates
their identity, and lists the prominent personalities with whom these groups
are associated.17 The first entry in the table names a PAG, known as the
Gamboa Group, linked to herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in
Malacaang on March 24, 2010 at which time, the Commission was also asked
to comment on the PNP report that out of one hundred seventeen (117)
partisan armed groups validated, twenty-four (24) had been dismantled with
sixty-seven (67) members apprehended and more than eighty-six (86)
firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were based on
PNP data but that the more significant fact from his report is that the PNP has
been vigilant in monitoring the activities of these armed groups and this
vigilance is largely due to the existence of the Commission which has
continued communicating with the Armed Forces of the Philippines (AFP)
and PNP personnel in the field to constantly provide data on the activities of
the PAGs. Commissioner Basbao stressed that the Commissions efforts have
preempted the formation of the PAGs because now everyone is aware that
there is a body monitoring the PAGs movement through the PNP.
Commissioner Lieutenant General Edilberto Pardo Adan also clarified that
the PAGs are being destabilized so that their ability to threaten and sow fear
during the election has been considerably weakened.19
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly reflective
of the situation in the field, the PNP complied with the Commissions
recommendation that they revise their validation system to include those PAGs
previously listed as dormant. In the most recent briefing provided by the PNP on
April 26, 2010, there are one hundred seven (107) existing PAGs. Of these groups,
the PNP reported that seven (7) PAGs have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the
portion of the Report naming Gamboa as one of the politicians alleged to be
maintaining a PAG.21 Gamboa averred that her association with a PAG also
appeared on print media.22 Thus, she was publicly tagged as someone who
maintains a PAG on the basis of the unverified information that the PNP-Ilocos
Norte gathered and forwarded to the Zearosa Commission.23 As a result, she
claimed that her malicious or reckless inclusion in the enumeration of personalities
maintaining a PAG as published in the Report also made her, as well as her
supporters and other people identified with her, susceptible to harassment and
police surveillance operations.24
Contending that her right to privacy was violated and her reputation maligned and
destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of
habeas data against respondents in their capacities as officials of the PNP-Ilocos
Norte.25 In her Petition, she prayed for the following reliefs: (a) destruction of the
unverified reports from the PNP-Ilocos Norte database; (b) withdrawal of all
information forwarded to higher PNP officials; (c) rectification of the damage done
to her honor; (d) ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13,
which issued the corresponding writ on 14 July 2010 after finding the Petition
meritorious on its face.27 Thus, the trial court (a) instructed respondents to submit all
information and reports forwarded to and used by the Zearosa Commission as
basis to include her in the list of persons maintaining PAGs; (b) directed
respondents, and any person acting on their behalf, to cease and desist from
forwarding to the Zearosa Commission, or to any other government entity,
information that they may have gathered against her without the approval of the
court; (c) ordered respondents to make a written return of the writ together with
supporting affidavits; and (d) scheduled the summary hearing of the case on 23 July
2010.28
In their Return of the Writ, respondents alleged that they had acted within the
bounds of their mandate in conducting the investigation and surveillance of
Gamboa.29 The information stored in their database supposedly pertained to two
criminal cases in which she was implicated, namely: (a) a Complaint for murder and
frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a
Complaint for murder, frustrated murder and direct assault upon a person in
authority, as well as indirect assault and multiple attempted murder, docketed as
NPS DOCKET No. 1-04-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing to comply
with the following requisites under the Rule on the Writ of Habeas Data: (a) the
manner in which the right to privacy was violated or threatened with violation and
how it affected the right to life, liberty or security of Gamboa; (b) the actions and
recourses she took to secure the data or information; and (c) the location of the files,
registers or databases, the government office, and the person in charge, in possession
or in control of the data or information.31 They also contended that the Petition for
Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced
disappearances, was not the proper remedy to address the alleged besmirching of
the reputation of Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition.33 The trial court categorically ruled that the inclusion of Gamboa in the list
of persons maintaining PAGs, as published in the Report, constituted a violation of
her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of persons
maintaining PAGs, Gamboas right to privacy indubitably has been violated. The
violation understandably affects her life, liberty and security enormously. The
untold misery that comes with the tag of having a PAG could even be
insurmountable. As she essentially alleged in her petition, she fears for her security
that at any time of the day the unlimited powers of respondents may likely be
exercised to further malign and destroy her reputation and to transgress her right to
life.
By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed
that there was certainly intrusion into Gamboas activities. It cannot be denied that
information was gathered as basis therefor. After all, under Administrative Order
No. 275, the Zearosa Commission was tasked to investigate the existence of private
armies in the country, with all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she
accused respondents, who are public officials, of having gathered and provided
information that made the Zearosa Commission to include her in the list.
Obviously, it was this gathering and forwarding of information supposedly by
respondents that petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the
ground that Gamboa failed to prove through substantial evidence that the subject
information originated from respondents, and that they forwarded this database to
the Zearosa Commission without the benefit of prior verification.35 The trial court
also ruled that even before respondents assumed their official positions, information
on her may have already been acquired.36 Finally, it held that the Zearosa
Commission, as the body tasked to gather information on PAGs and authorized to
disclose information on her, should have been impleaded as a necessary if not a
compulsory party to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September
2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zearosa Commission be impleaded
as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient
proof to link respondents as the informant to [sic] the Zearosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP
as an agency.39
On the other hand, respondents maintain the following arguments: (a) Gamboa
failed to present substantial evidence to show that her right to privacy in life, liberty
or security was violated, and (b) the trial court correctly dismissed the Petition on
the ground that she had failed to present sufficient proof showing that respondents
were the source of the report naming her as one who maintains a PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the
mandate to dismantle PAGs in the country should be done in accordance with due
process, such that the gathering and forwarding of unverified information on her
must be considered unlawful.41 She also reiterates that she was able to present
sufficient evidence showing that the subject information originated from
respondents.42
In determining whether Gamboa should be granted the privilege of the writ of
habeas data, this Court is called upon to, first, unpack the concept of the right to
privacy; second, explain the writ of habeas data as an extraordinary remedy that
seeks to protect the right to informational privacy; and finally, contextualize the
right to privacy vis--vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as a
constitutional right. This Court, in Morfe v. Mutuc,43 thus enunciated:
The due process question touching on an alleged deprivation of liberty as thus
resolved goes a long way in disposing of the objections raised by plaintiff that the
provision on the periodical submission of a sworn statement of assets and liabilities
is violative of the constitutional right to privacy. There is much to be said for this
view of Justice Douglas: "Liberty in the constitutional sense must mean more than
freedom from unlawful governmental restraint; it must include privacy as well, if it
is to be a repository of freedom. The right to be let alone is indeed the beginning of
all freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice
Brandeis "the most comprehensive of rights and the right most valued by civilized
men."
The concept of liberty would be emasculated if it does not likewise compel respect
for his personality as a unique individual whose claim to privacy and interference
demands respect. xxx.
xxx xxx xxx
x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for
five members of the Court, stated: "Various guarantees create zones of privacy. The
right of association contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the quartering of
soldiers in any house in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth Amendment provides: The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American
Supreme Court decisions, Justice Douglas continued: "These cases bear witness that
the right of privacy which presses for recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is particularly
apt: "The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited government,
safeguards a private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual has
become increasingly important as modern society has developed. All the forces of a
technological age industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the
right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. It is expressly
recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety, or
public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code
provides that "every person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons" and punishes as actionable torts several
acts by a person of meddling and prying into the privacy of another. It also holds a
public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, and recognizes the privacy of
letters and other private communications. The Revised Penal Code makes a crime
the violation of secrets by an officer, the revelation of trade and industrial secrets,
and trespass to dwelling. Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual
Property Code. The Rules of Court on privileged communication likewise recognize
the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state interest
and that it is narrowly drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be
protected from intrusion or constraint. However, in Standard Chartered Bank v.
Senate Committee on Banks,47 this Court underscored that the right to privacy is not
absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated,
suffice it to state that privacy is not an absolute right. While it is true that Section 21,
Article VI of the Constitution, guarantees respect for the rights of persons affected by
the legislative investigation, not every invocation of the right to privacy should be
allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have
held that the right of the people to access information on matters of public concern
generally prevails over the right to privacy of ordinary financial transactions. In that
case, we declared that the right to privacy is not absolute where there is an
overriding compelling state interest. Employing the rational basis relationship test,
as laid down in Morfe v. Mutuc, there is no infringement of the individuals right to
privacy as the requirement to disclosure information is for a valid purpose, in this
case, to ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities. Suffice it
to state that this purpose constitutes a reason compelling enough to proceed with the
assailed legislative investigation.48
Therefore, when the right to privacy finds tension with a competing state objective,
the courts are required to weigh both notions. In these cases, although considered a
fundamental right, the right to privacy may nevertheless succumb to an opposing or
overriding state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to protect
the image, privacy, honor, information, and freedom of information of an individual,
and to provide a forum to enforce ones right to the truth and to informational
privacy.49 It seeks to protect a persons right to control information regarding
oneself, particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends.50 It must be emphasized
that in order for the privilege of the writ to be granted, there must exist a nexus
between the right to privacy on the one hand, and the right to life, liberty or security
on the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data information regarding the
person, family, home and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and
jurisprudence. Considering that even the Latin American habeas data, on which our
own Rule on the Writ of Habeas Data is rooted, finds its origins from the European
tradition of data protection,51 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights (ECHR). Of
particular note is Leander v. Sweden,52 in which the ECHR balanced the right of
citizens to be free from interference in their private affairs with the right of the state
to protect its national security. In this case, Torsten Leander (Leander), a Swedish
citizen, worked as a temporary replacement museum technician at the Naval
Museum, which was adjacent to a restricted military security zone.53 He was refused
employment when the requisite personnel control resulted in an unfavorable
outcome on the basis of information in the secret police register, which was kept in
accordance with the Personnel Control Ordinance and to which he was prevented
access.54 He claimed, among others, that this procedure of security control violated
Article 8 of the European Convention of Human Rights55 on the right to privacy, as
nothing in his personal or political background would warrant his classification in
the register as a security risk.56
The ECHR ruled that the storage in the secret police register of information relating
to the private life of Leander, coupled with the refusal to allow him the opportunity
to refute the same, amounted to an interference in his right to respect for private
life.57 However, the ECHR held that the interference was justified on the following
grounds: (a) the personnel control system had a legitimate aim, which was the
protection of national security,58 and (b) the Personnel Control Ordinance gave the
citizens adequate indication as to the scope and the manner of exercising discretion
in the collection, recording and release of information by the authorities.59 The
following statements of the ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds to a
pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November
1986, Series A no. 109, p. 22, 55).
59. However, the Court recognises that the national authorities enjoy a margin
of appreciation, the scope of which will depend not only on the nature of the
legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting
its national security must be balanced against the seriousness of the
interference with the applicants right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national
security, for the Contracting States to have laws granting the competent domestic
authorities power, firstly, to collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders legitimate
interests through the consequences it had on his possibilities of access to certain
sensitive posts within the public service. On the other hand, the right of access to
public service is not as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, 34-35), and, apart from those
consequences, the interference did not constitute an obstacle to his leading a private
life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to
the respondent State in assessing the pressing social need in the present case, and in
particular in choosing the means for achieving the legitimate aim of protecting
national security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of national
security", as it is the very absence of such communication which, at least partly,
ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the
above-mentioned Klass and Others judgment, Series A no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the issue of the
Ordinance of 1969, including the Chancellor of Justice and the Parliamentary
Ombudsman, considered it desirable that the rule of communication to the person
concerned, as contained in section 13 of the Ordinance, should be effectively applied
in so far as it did not jeopardise the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards
contained in the Swedish personnel control system meet the requirements of
paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation
available to it, the respondent State was entitled to consider that in the present case
the interests of national security prevailed over the individual interests of the
applicant (see paragraph 59 above). The interference to which Mr. Leander was
subjected cannot therefore be said to have been disproportionate to the legitimate
aim pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific component
of the right to privacy, may yield to an overriding legitimate state interest. In similar
fashion, the determination of whether the privilege of the writ of habeas data, being
an extraordinary remedy, may be granted in this case entails a delicate balancing of
the alleged intrusion upon the private life of Gamboa and the relevant state interest
involved.
The collection and forwarding of information by the PNP vis--vis the interest of the
state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and other
armed groups not recognized by the duly constituted authority.60 It also provides for
the establishment of one police force that is national in scope and civilian in
character, and is controlled and administered by a national police commission.61
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with
the ultimate objective of dismantling them permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses,
administer oaths, take testimony or evidence relevant to the investigation and use
compulsory processes to produce documents, books, and records.62 A.O. 275
likewise authorized the Zearosa Commission to deputize the Armed Forces of the
Philippines, the National Bureau of Investigation, the Department of Justice, the
PNP, and any other law enforcement agency to assist the commission in the
performance of its functions.63
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce
all laws and ordinances relative to the protection of lives and properties; (b)
maintain peace and order and take all necessary steps to ensure public safety; and (c)
investigate and prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers
and functions accorded to the Zearosa Commission and the PNP, the latter
collected information on individuals suspected of maintaining PAGs, monitored
them and counteracted their activities.65 One of those individuals is herein petitioner
Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data
contained in the Report listing her as a PAG coddler came from the PNP. Contrary to
the ruling of the trial court, however, the forwarding of information by the PNP to
the Zearosa Commission was not an unlawful act that violated or threatened her
right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding PAGs
with the body specifically created for the purpose of investigating the existence of
these notorious groups. Moreover, the Zearosa Commission was explicitly
authorized to deputize the police force in the fulfillment of the formers mandate,
and thus had the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP
released information to the Zearosa Commission without prior communication to
Gamboa and without affording her the opportunity to refute the same cannot be
interpreted as a violation or threat to her right to privacy since that act is an inherent
and crucial component of intelligence-gathering and
investigation.1wphi1 Additionally, Gamboa herself admitted that the PNP had a
validation system, which was used to update information on individuals associated
with PAGs and to ensure that the data mirrored the situation on the field.66 Thus,
safeguards were put in place to make sure that the information collected maintained
its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to make
any further determination as to the propriety of sharing information during specific
stages of intelligence gathering. To do otherwise would supplant the discretion of
investigative bodies in the accomplishment of their functions, resulting in an undue
encroachment on their competence.
However, to accord the right to privacy with the kind of protection established in
existing law and jurisprudence, this Court nonetheless deems it necessary to caution
these investigating entities that information-sharing must observe strict
confidentiality. Intelligence gathered must be released exclusively to the authorities
empowered to receive the relevant information. After all, inherent to the right to
privacy is the freedom from "unwarranted exploitation of ones person or from
intrusion into ones private activities in such a way as to cause humiliation to a
persons ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but emphasized its
confidential nature.1wphi1 That it was leaked to third parties and the media was
regrettable, even warranting reproach. But it must be stressed that Gamboa failed to
establish that respondents were responsible for this unintended disclosure. In any
event, there are other reliefs available to her to address the purported damage to her
reputation, making a resort to the extraordinary remedy of the writ of habeas data
unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals maintaining PAGs made her and
her supporters susceptible to harassment and to increased police surveillance. In this
regard, respondents sufficiently explained that the investigations conducted against
her were in relation to the criminal cases in which she was implicated. As public
officials, they enjoy the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs
far outweighs the alleged intrusion on the private life of Gamboa, especially when
the collection and forwarding by the PNP of information against her was pursuant to
a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed Decision in
Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag
City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.
SO ORDERED.
RAFAEL L. COSCOLLUELA, Petitioner,
vs.
SANBIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 191871
EDWIN N. NACIONALES, ERNESTO P. MALVAS, and JOSE MA. G.
AMUGOD, Petitioners,
vs.
SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE
OMBUDSMAN, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated Petitions for Certiorari1 are the October 6, 20092 and
February 10, 20103Resolutions of public respondent First Division of Sandiganbayan
(SB), denying the Motion to Quash4 dated July 8, 2009 filed by petitioner Rafael L.
Coscolluela (Coscolluela). The said motion was adopted by petitioners Edwin N.
Nacionales (Nacionales), Dr. Ernesto P. Malvas (Malvas), and Jose Ma. G. Amugod
(Amugod), praying for the dismissal of Crim. Case No. SB-09-CRM-0154 for
violation of their right to speedy disposition of cases.
The Facts
Coscolluela served as governor of the Province of Negros Occidental (Province) for
three (3) full terms which ended on June 30, 2001. During his tenure, Nacionales
served as his Special Projects Division Head, Amugod as Nacionales subordinate,
and Malvas as Provincial Health Officer.5
On November 9, 2001, the Office of the Ombudsman for the Visayas (Office of the
Ombudsman) received a letter-complaint6 dated November 7, 2001 from Peoples
Graftwatch, requesting for assistance to investigate the anomalous purchase of
medical and agricultural equipment for the Province in the amount of P20,000,000.00
which allegedly happened around a month before Coscolluela stepped down from
office.
Acting on the letter-complaint, the Case Building Team of the Office of the
Ombudsman conducted its investigation, resulting in the issuance of a Final
Evaluation Report7 dated April 16, 2002 which upgraded the complaint into a
criminal case against petitioners.8 Consequently, petitioners filed their respective
counter-affidavits.9
On March 27, 2003, the assigned Graft Investigation Officer Butch E. Caares
(Caares) prepared a Resolution (March 27, 2003 Resolution), finding probable cause
against petitioners for violation of Section 3(e) of Republic Act No. (RA) 3019,
otherwise known as the "Anti-Graft and Corrupt Practices Act," and recommended
the filing of the corresponding information. On even date, the Information10 was
prepared and signed by Caares and submitted to Deputy Ombudsman for the
Visayas Primo C. Miro (Miro) for recommendation. Miro recommended the
approval of the Information on June 5, 2003. However, the final approval of Acting
Ombudsman Orlando C. Casimiro (Casimiro), came only on May 21, 2009, and on
June 19, 2009, the Information was filed before the SB.
Petitioners alleged that they learned about the March 27, 2003 Resolution and
Information only when they received a copy of the latter shortly after its filing with
the SB.11
On July 9, 2009, Coscolluela filed a Motion to Quash,12 arguing, among others, that
his constitutional right to speedy disposition of cases was violated as the criminal
charges against him were resolved only after almost eight (8) years since the
complaint was instituted. Nacionales, Malvas, and Amugod later adopted
Coscolluelas motion.
In reply, the respondents filed their Opposition to Motion to Quash13 dated August
7, 2009, explaining that although the Information was originally dated March 27,
2003, it still had to go through careful review and revision before its final approval. It
also pointed out that petitioners never raised any objections regarding the purported
delay in the proceedings during the interim.14
The Ruling of the Sandiganbayan
In a Resolution dated October 6, 2009, the SB denied petitioners Motion to Quash
15
for lack of merit. It held that the preliminary investigation against petitioners was
actually resolved by Caares on March 27, 2003, one (1) year and four (4) months
from the date the complaint was filed, or in November 9, 2001. Complying with
internal procedure, Caares then prepared the March 27, 2003 Resolution and
Information for the recommendation of the Miro and eventually, the final approval
of the Casimiro. As these issuances had to undergo careful review and revision
through the various levels of the said office, the period of delay i.e., from March 27,
2003 to May 21, 2009, or roughly over six (6) years cannot be deemed as
inordinate16 and as such, petitioners constitutional right to speedy disposition of
cases was not violated.17
Aggrieved, petitioners filed their respective Motions for Reconsideration18 dated
November 9, 2009 and November 6, 2009, similarly arguing that the SB erred in
making a distinction between two time periods, namely: (a) from the filing of the
complaint up to the time Caares prepared the resolution finding probable cause
against petitioners; and (b) from the submission of the said resolution to the Acting
Ombudsman for review and approval up to the filing of the Information with the SB.
In this regard, petitioners averred that the aforementioned periods should not be
compartmentalized and thus, treated as a single period. Accordingly, the delay of
eight (8) years of the instant case should be deemed prejudicial to their right to
speedy disposition of cases.19
The SB, however, denied the foregoing motions in its Resolution20 dated February
10, 2010 for lack of merit.
Hence, the instant petitions.
The Issue Before the Court
The sole issue raised for the Courts resolution is whether the SB gravely abused its
discretion in finding that petitioners right to speedy disposition of cases was not
violated.
The Courts Ruling
The petitions are meritorious.
A persons right to the speedy disposition of his case is guaranteed under Section 16,
Article III of the 1987 Philippine Constitution (Constitution) which provides:
SEC. 16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.
This constitutional right is not limited to the accused in criminal proceedings but
extends to all parties in all cases, be it civil or administrative in nature, as well as all
proceedings, either judicial or quasi-judicial. In this accord, any party to a case may
demand expeditious action to all officials who are tasked with the administration of
justice.21
It must be noted, however, that the right to speedy disposition of cases should be
understood to be a relative or flexible concept such that a mere mathematical
reckoning of the time involved would not be sufficient.22Jurisprudence dictates that
the right is deemed violated only when the proceedings are attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured; or even without cause or justifiable motive, a long period of
time is allowed to elapse without the party having his case tried.23
Hence, in the determination of whether the defendant has been denied his right to a
speedy disposition of a case, the following factors may be considered and balanced:
(1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to
assert such right by the accused; and (4) the prejudice caused by the delay.24
Examining the incidents in the present case, the Court holds that petitioners right to
a speedy disposition of their criminal case had been violated.
First, it is observed that the preliminary investigation proceedings took a protracted
amount of time to complete.
In this relation, the Court does not lend credence to the SBs position that the
conduct of preliminary investigation was terminated as early as March 27, 2003, or
the time when Caares prepared the Resolution recommending the filing of the
Information. This is belied by Section 4,
Rule II of the Administrative Order No. 07 dated April 10, 1990, otherwise known as
the "Rules of Procedure of the Office of the Ombudsman," which provides:
SEC. 4. Procedure The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in
the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the
following provisions:
xxxx
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other
cases. (Emphasis and underscoring supplied)
The above-cited provision readily reveals that there is no complete resolution of a
case under preliminary investigation until the Ombudsman approves the
investigating officers recommendation to either file an Information with the SB or to
dismiss the complaint. Therefore, in the case at bar, the preliminary investigation
proceedings against the petitioners were not terminated upon Caares preparation
of the March 27, 2003 Resolution and Information but rather, only at the time
Casimiro finally approved the same for filing with the SB. In this regard, the
proceedings were terminated only on May 21, 2009, or almost eight (8) years after
the filing of the complaint.
Second, the above-discussed delay in the Ombudsmans resolution of the case
largely remains unjustified.
To this end, the Court equally denies the SBs ratiocination that the delay in
proceedings could be excused by the fact that the case had to undergo careful review
and revision through the different levels in the Office of the Ombudsman before it is
finally approved, in addition to the steady stream of cases which it had to resolve.
Verily, the Office of the Ombudsman was created under the mantle of the
Constitution, mandated to be the "protector of the people" and as such, required to
"act promptly on complaints filed in any form or manner against officers and
employees of the Government, or of any subdivision, agency or instrumentality
thereof, in order to promote efficient service."25 This great responsibility cannot be
simply brushed aside by ineptitude. Precisely, the Office of the Ombudsman has the
inherent duty not only to carefully go through the particulars of case but also to
resolve the same within the proper length of time. Its dutiful performance should
not only be gauged by the quality of the assessment but also by the reasonable
promptness of its dispensation. Thus, barring any extraordinary complication, such
as the degree of difficulty of the questions involved in the case or any event external
thereto that effectively stymied its normal work activity any of which have not
been adequately proven by the prosecution in the case at bar there appears to be no
justifiable basis as to why the Office of the Ombudsman could not have earlier
resolved the preliminary investigation proceedings against the petitioners.
Third, the Court deems that petitioners cannot be faulted for their alleged failure to
assert their right to speedy disposition of cases.
Records show that they could not have urged the speedy resolution of their case
because they were unaware that the investigation against them was still on-going.
They were only informed of the March 27, 2003 Resolution and Information against
them only after the lapse of six (6) long years, or when they received a copy of the
latter after its filing with the SB on June 19, 2009.26 In this regard, they could have
reasonably assumed that the proceedings against them have already been
terminated. This serves as a plausible reason as to why petitioners never followed-
up on the case altogether. Instructive on this point is the Courts observation in
Duterte v. Sandiganbayan,27 to wit:
Petitioners in this case, however, could not have urged the speedy resolution of their
case because they were completely unaware that the investigation against them was
still on-going. Peculiar to this case, we reiterate, is the fact that petitioners were
merely asked to comment, and not file counter-affidavits which is the proper
procedure to follow in a preliminary investigation. After giving their explanation
and after four long years of being in the dark, petitioners, naturally, had reason to
assume that the charges against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible,
special or even novel reason which could justify the four-year delay in terminating
its investigation. Its excuse for the delay the many layers of review that the case
had to undergo and the meticulous scrutiny it had to entail has lost its novelty
and is no longer appealing, as was the invocation in the Tatad case. The incident
before us does not involve complicated factual and legal issues, specially (sic) in
view of the fact that the subject computerization contract had been mutually
cancelled by the parties thereto even before the Anti-Graft League filed its
complaint. (Emphasis and underscoring supplied)
Being the respondents in the preliminary investigation proceedings, it was not the
petitioners duty to follow up on the prosecution of their case. Conversely, it was the
Office of the Ombudsmans responsibility to expedite the same within the bounds of
reasonable timeliness in view of its mandate to promptly act on all complaints
lodged before it. As pronounced in the case of Barker v. Wingo:28
A defendant has no duty to bring himself to trial; the State has that duty as well as
the duty of insuring that the trial is consistent with due process.
Fourth, the Court finally recognizes the prejudice caused to the petitioners by the
lengthy delay in the proceedings against them.
Lest it be misunderstood, the right to speedy disposition of cases is not merely
hinged towards the objective of spurring dispatch in the administration of justice but
also to prevent the oppression of the citizen by holding a criminal prosecution
suspended over him for an indefinite time. Akin to the right to speedy trial, its
"salutary objective" is to assure that an innocent person may be free from the anxiety
and expense of litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose.30 This looming unrest as well as the
tactical disadvantages carried by the passage of time should be weighed against the
State and in favor of the individual. In the context of the right to a speedy trial, the
Court in Corpuz v. Sandiganbayan31 (Corpuz) illumined:
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.
x x x Prejudice should be assessed in the light of the interest of the defendant that the
speedy trial was designed to protect, namely: to prevent oppressive pre-trial
incarceration; to minimize anxiety and concerns of the accused to trial; and to limit
the possibility that his defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness
of the entire system. There is also prejudice if the defense witnesses are unable to
recall accurately the events of the distant past. Even if the accused is not imprisoned
prior to trial, he is still disadvantaged by restraints on his liberty and by living under
a cloud of anxiety, suspicion and often, hostility. His financial resources may be
drained, his association is curtailed, and he is subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the burden of proving its
case beyond reasonable doubt. The passage of time may make it difficult or
impossible for the government to carry its burden. The Constitution and the Rules
do not require impossibilities or extraordinary efforts, diligence or exertion from
courts or the prosecutor, nor contemplate that such right shall deprive the State of a
reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United
States, for the government to sustain its right to try the accused despite a delay, it
must show two things: (a) that the accused suffered no serious prejudice beyond that
which ensued from the ordinary and inevitable delay; and (b) that there was no
more delay than is reasonably attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification of the State for
such delay. Different weights should be assigned to different reasons or justifications
invoked by the State. For instance, a deliberate attempt to delay the trial in order to
hamper or prejudice the defense should be weighted heavily against the State. Also,
it is improper for the prosecutor to intentionally delay to gain some tactical
advantage over the defendant or to harass or prejudice him. On the other hand, the
heavy case load of the prosecution or a missing witness should be weighted less
heavily against the State. x x x (Emphasis and underscoring supplied; citations
omitted)
As the right to a speedy disposition of cases encompasses the broader purview of the
entire proceedings of which trial proper is but a stage, the above-discussed effects in
Corpuz should equally apply to the case at bar. As held in Dansal v. Fernandez, Sr.:32
Sec. 16, Article III of the 1987 Constitution, reads:
"Sec. 16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies."
Initially embodied in Section 16, Article IV of the 1973 Constitution, the aforesaid
constitutional provision is one of three provisions mandating speedier dispensation
of justice. It guarantees the right of all persons to "a speedy disposition of their case";
includes within its contemplation the periods before, during and after trial, and
affords broader protection than Section 14(2), which guarantees just the right to a
speedy trial. It is more embracing than the protection under Article VII, Section 15,
which covers only the period after the submission of the case. The present
constitutional provision applies to civil, criminal and administrative cases.
(Emphasis and underscoring supplied; citations omitted)
Thus, in view of the unjustified length of time miring the Office of the Ombudsmans
resolution of the case as well as the concomitant prejudice that the delay in this case
has caused, it is undeniable that petitioners constitutional right to due process and
speedy disposition of cases had been violated. As the institutional vanguard against
corruption and bureaucracy, the Office of the Ombudsman should create a system of
accountability in order to ensure that cases before it are resolved with reasonable
dispatch and to equally expose those who are responsible for its delays, as it ought
to determine in this case.
Corollarily, for the SBs patent and utter disregard of the existing laws and
jurisprudence surrounding the matter, the Court finds that it gravely abused its
discretion when it denied the quashal of the Information. Perforce, the assailed
resolutions must be set aside and the criminal case against petitioners be dismissed.
While the foregoing pronouncement should, as matter of course, result in the
acquittal of the petitioners, it does not necessarily follow that petitioners are entirely
exculpated from any civil liability, assuming that the same is proven in a subsequent
case which the Province may opt to pursue.
Section 2, Rule 111 of the Rules of Court provides that an acquittal in a criminal case
does not bar the private offended party from pursuing a subsequent civil case based
on the delict, unless the judgment of acquittal explicitly declares that the act or
omission from which the civil liability may arise did not exist.33 As explained in the
case of Abejuela v. People,34 citing Banal v. Tadeo, Jr.:35
The Rules provide: "The extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise did not exist. In other cases,
the person entitled to the civil action may institute it in the jurisdiction and in the
manner provided by law against the person who may be liable for restitution of the
thing and reparation or indemnity for the damage suffered."
xxxx
In Banal vs. Tadeo, Jr., we declared:
"While an act or omission is felonious because it is punishable by law, it gives rise to
civil liability not so much because it is a crime but because it caused damage to
another. Viewing things pragmatically, we can readily see that what gives rise to the
civil liability is really the obligation and moral duty of everyone to repair or make
whole the damage caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be punishable by
law."(Emphasis and underscoring supplied)
Based on the violation of petitioners right to speedy disposition of cases as herein
discussed, the present case stands to be dismissed even before either the prosecution
or the defense has been given the chance to present any evidence. Thus, the Court is
unable to make a definite pronouncement as to whether petitioners indeed
committed the acts or omissions from which any civil liability on their part might
arise as prescribed under Section 2, Rule 120 of the Rules of Court.36 Consequently,
absent this pronouncement, the Province is not precluded from instituting a
subsequent civil case based on the delict if only to recover the amount
of P20,000,000.00 in public funds attributable to petitioners alleged malfeasance.
WHEREFORE, the petitions are hereby GRANTED. The assailed Resolutions dated
October 6, 2009 and February 10, 2010 of the First Division of the Sandiganbayan are
ANNULLED and SET ASIDE. The Sandiganbayan is likewise ordered to DISMISS
Crim. Case No. SB-09-CRM-0154 for violation of the Constitutional right to speedy
disposition of cases of petitioners Rafael L. Coscolluela, Edwin N. Nacionales, Dr.
Ernesto P. Malvas, and Jose Ma. G. Amugod, without prejudice to any civil action
which the Province of Negros Occidental may file against petitioners.
SO ORDERED.
JAIME D. DELA CRUZ, Petitioner,
vs.
DECISION
SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz,
from the Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court
of Appeals (CA) and Resolution2 dated 2 February 2012 issued by the Former
Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of
Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002,
by the Graft Investigation and Prosecution Officer of the Office of the Ombudsman -
Visayas, in an Information3 dated 14 February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, JAIME D. DE LA
CRUZ, a public officer, having been duly appointed and qualified to such public
position as Police Officer 2 of the Philippine National Police (PNP) assigned in the
Security Service Group of the Cebu City Police Office, after having beenarrested by
agents of the National Bureau of Investigation (NBI) in an entrapment operation,
was found positive for use of METHAMPHETAMINE
HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a
confirmatory test conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the
agents and special investigators of the National Bureau of Investigation, Central
Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from
Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed
that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of
Corazon and son of Charito, was picked up by several unknown male persons
believed to be police officers for allegedly selling drugs. An errand boy gave a
number to the complainants, and when the latter gave the number a ring, they were
instructed to proceed to the Gorordo Police Office located along Gorordo Avenue,
Cebu City. In the said police office, they met "James" who demanded from
them P100,000, later lowered to P40,000, in exchange for the release of Ariel. After
the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and
narrate the circumstances of the meeting to the authorities. While at the NBI-
CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring
the money as soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received by
the complainants.1wphi1 A team was immediately formed to implement an
entrapment operation, which took place inside a Jollibee branch at the corner of Gen.
Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela
Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was
made part of the amount demanded by "James" and handed by Corazon. Petitioner
was later brought to the forensic laboratory of the NBI-CEVRO where forensic
examination was done by forensic chemist Rommel Paglinawan. Petitioner was
required to submit his urine for drug testing. It later yielded a positive result for
presence of dangerous drugs as indicated in the confirmatory test result labeled as
Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office, he was required to extract
urine for drug examination, but he refused saying he wanted it to be done by the
Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request
was, however, denied. He also requested to be allowed to call his lawyer prior to the
taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June
2007, found the accused guilty beyond reasonable doubt of violating Section 15,
Article II of R.A. 9165 and sentenced him to suffer the penalty of compulsory
rehabilitation for a period of not less than six (6) months at the Cebu Center for the
Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5
Petitioner filed an appeal assigning as error the RTCs validation of the result of the
urine test despite its dubiousness having been admitted in spite of the lack of legal
basis for itsadmission. First, he alleges that the forensic laboratory examination was
conducted despite the fact that he was not assisted by counsel, in clear violation of
his constitutional right. Secondly, he was allegedly held guilty beyond reasonable
doubt notwithstanding the lack of sufficient basis to convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA
overlooked prevailing jurisprudence, which states that drug testing conducted
under circumstancessimilar to his would violate a persons right to privacy. The
appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as
errors the use of hearsay evidence as basis for his conviction and the questionable
circumstances surrounding his arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its Comment,6 saying
that "petitioners arguments cannot be the subject of a petition for review on
certiorariunder Rule 45, as they involve questions of facts which may not be the
subject thereof; after his arraignment, he can no longer contest the validity of his
arrest, less so at this stage of the proceedings; his guilt has been adequately
established by direct evidence; and the manner in which the laboratory examination
was conducted was grounded on a valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the
issue of whether or not the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any
existing law or jurisprudence.
We gloss over petitioners non-compliance with the Resolution7 ordering him to
submit clearly legible duplicate originals or certified true copies of the assailed
Decision and Resolution. Petitioner was charged with use of dangerous drugs in
violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. A person apprehended or arrested, who is
found to be positive for use of any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of six (6) months rehabilitation in a government
center for the first offense, subject to the provisions of Article VIII of this Act. If
apprehended using any dangerous drug for the second time, he/she shall suffer the
penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12)
years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred
thousand pesos (P200,000.00): Provided,That this Section shall not be applicable
where the person tested is also found to have in his/her possession such quantity of
any dangerous drug provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply.8
The RTC subsequently convicted petitioner, ruling that the following elements of
Section 15 were established: (1) the accused was arrested; (2) the accused was
subjected to drug test; and (3) the confirmatory test shows that he used a dangerous
drug.
Disregarding petitioners objection regarding the admissibility of the evidence, the
lower court also reasoned that "a suspect cannot invoke his right to counsel when he
is required to extract urine because, while he is already in custody, he is not
compelled to make a statement or testimony against himself. Extracting urine from
ones body is merely a mechanical act, hence, falling outside the concept of a
custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent
affirmation by the CA, erroneous on three counts.
The drug test in Section 15 does not cover persons apprehended or arrested for any
unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person
apprehended or arrested for any crime.The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested
or apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the "importation,"9 "sale, trading, administration, dispensation,
delivery, distribution and transportation",10"manufacture"11 and "possession"12 of
dangerous drugs and/or controlled precursors and essential chemicals; possession
thereof "during parties, social gatherings or meetings"13 ; being "employees and
visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal
chemical diversion of controlled precursors and essential chemicals"16 ; "manufacture
or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled precursors and essential
chemicals; possession of dangerous drugs "during parties, social gatherings or
meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or
culture of plantsclassified as dangerous drugs or are sources thereof";22 and
"maintenance and keeping of original records of transactions on dangerous drugs
and/orcontrolled precursors and essential chemicals."23 To make the provision
applicable to all persons arrested or apprehended for any crime not listed under
Article II is tantamount to unduly expanding its meaning. Note thataccused
appellant here was arrested in the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of
the law to rehabilitate persons apprehended or arrested for the unlawful acts
enumerated above instead of charging and convicting them of other crimes with
heavier penalties. The essence of the provision is more clearly illustrated in People v.
Martinez24 as follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11
(Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No.
9165, withregard to the charges that are filed by law enforcers. This Court notes the
practice of law enforcers of filing charges under Sec. 11 in cases where the presence
of dangerous drugs as basis for possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec. 11. Although not incorrect, it
would be more in keeping withthe intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use, provided thatthere is
a positive confirmatory test result as required under Sec. 15.The minimum penalty
under the last paragraph of Sec. 11 for the possession of residue isimprisonment of
twelve years and one day, while the penalty under Sec. 15 for first time offenders of
drug use is a minimum of six months rehabilitation in a government center. To file
charges under Sec. 11 on the basis of residue alone would frustrate the objective of
the law to rehabilitate drug users and provide them with an opportunity to recover
for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of
residue on the drug paraphernalia, and the accused were found positive for use of
dangerous drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers should have filed
charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was
no residue at all, they should have been charged under Sec. 14 (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum
penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall
possess any equipment, instrument, apparatus and other paraphernalia for
dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four
years and a fine of P50,000.00. In fact, under the same section, the possession of such
equipment, apparatus or other paraphernalia is prima facieevidence that the
possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this
Court thus calls on law enforcers and prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges when the presence of dangerous drugs
isonly and solely in the form of residue and the confirmatory test required under
Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a
chance to be rehabilitated, the filing of charges for or involving possession of
dangerous drugs should only be done when another separate quantity of dangerous
drugs, other than mere residue, is found in the possession of the accused as provided
for in Sec. 15. (Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section 15
applicable to all persons arrested or apprehended for unlawful acts, not only under
R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all
persons apprehended or arrested for any crime. To overextend the application of
thisprovision would run counter to our pronouncement in Social Justice Society v.
Dangerous Drugs Board and Philippine Drug Enforcement Agency,25 to wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made defendants
in a criminal complaint. They are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the
bare fact of being haled before the prosecutors office and peaceably submitting
themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose mandatory drug testing
on the accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case
would violate a persons right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to incriminate
themselves. (Emphasis supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is deemed
to have waived his right to question the validity of his arrest curing whatever defect
may have attended his arrest.26 However, "a waiver of an illegal warrantless arrest
does not mean a waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest."27
We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of evidence obtained were all material to
the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use of
physical or moral compulsion to extort communications from the accused and not
the inclusion of his body in evidence when it may be material. Purely mechanical
acts are not included in the prohibition as the accused does not thereby speak his
guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs.
Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is
testimonial compulsion, that is, the giving of evidence against himself through a
testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235
SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held
that a woman charged with adultery may be compelled to submit to physical
examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920])
and an accused may be compelled to submit to physical examination and to have a
substance taken from his body for medical determination as to whether he was
suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23
Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil.
735 [1917]) to have the outline of his foot traced todetermine its identity with bloody
footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to
be photographed or measured, or his garments or shoes removed or replaced, or to
move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil.
244 [1950])28 (Emphasis supplied)
In the instant case, we fail to see howa urine sample could be material to the charge
of extortion.1wphi1 The RTC and the CA, therefore, both erred when they held that
the extraction of petitioners urine for purposes of drug testing was "merely a
mechanical act, hence, falling outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang v.
People,29 the petitioner therein and his companions were arrested in connection with
the enforcement of a search warrant in his residence. A PNP-NARCOM team found
and confiscated shabu materials and paraphernalias. The petitioner and his
companions in that case were also asked to give urine samples, which yielded
positive results. Later, the petitioner therein was found guilty of the crime of illegal
possession and use of prohibited drugs. Gutang claimed that the latters urine
sample was inadmissible in evidence, since it was derived in effect from an
uncounselled extrajudicial confession.
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is
the use of physical or moral compulsion to extort communication from the accused,
but not an inclusion of his body in evidence, when it may be material." The situation
in Gutangwas categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought tobe examined came from the body
of the accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant to
unearth undisclosedfacts but to ascertain physical attributes determinable by simple
observation. In fact, the record shows that petitioner and his co-accused were not
compelled to give samples of their urine but they in fact voluntarily gave the same
when they were requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are
inadmissible in evidence, we agree with the trial court that the record is replete with
other pieces of credible evidence including the testimonial evidence of the
prosecution which point to the culpability of the petitioner for the crimes charged.
We emphasize that the circumstances in Gutangare clearly different from the
circumstances of petitioner in the instant case.1awp++i1 First, Gutang was arrested in
relation to a drug case. Second, he volunteered to give his urine. Third, there were
other pieces of evidence that point to his culpability for the crimes charged. In the
present case, though, petitioner was arrested for extortion; he resisted having his
urine sample taken; and finally, his urine sample was the only available evidencethat
was used as basis for his conviction for the use of illegal drugs.
The drug test was a violation of petitioners right to privacy and right against self-
incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for
drugs. He also asked for a lawyer prior to his urine test. He was adamant in
exercising his rights, but all of his efforts proved futile, because he was still
compelled to submit his urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein their persons, houses, papers, and
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all
arrested persons regardless of the crime or offense for which the arrest is being
made.
While we express our commendation of law enforcement agents as they vigorously
track down offenders intheir laudable effort to curb the pervasive and deleterious
effects of dangerous drugs on our society, they must, however, be constantly
mindful of the reasonable limits of their authority, because it is not unlikely that in
their clear intent to purge society of its lawless elements, they may be knowingly or
unknowingly transgressing the protected rights of its citizens including even
members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued
by the Twentieth Division, and the Resolution dated 2 February 2012 issued by the
former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are
SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
LITO CORPUZ, Petitioner,
vs.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of
Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to
reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated
September 5, 2007 of the Court of Appeals (CA), which affirmed with modification
the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San
Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal
Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale
Casino in Olongapo City sometime in 1990. Private complainant was then engaged
in the business of lending money to casino players and, upon hearing that the former
had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry on commission basis.
Private complainant agreed, and as a consequence, he turned over to petitioner the
following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of P98,000.00, as
evidenced by a receipt of even date. They both agreed that petitioner shall remit the
proceeds of the sale, and/or, if unsold, to return the same items, within a period of
60 days. The period expired without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items
entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa, which reads
as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k,
worth P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1)
two-baht ladies' bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-
Eight Thousand Pesos (P98,000.00), Philippine currency, under expressed obligation
on the part of said accused to remit the proceeds of the sale of the said items or to
return the same, if not sold, said accused, once in possession of the said items, with
intent to defraud, and with unfaithfulness and abuse of confidence, and far from
complying with his aforestated obligation, did then and there wilfully, unlawfully
and feloniously misappropriate, misapply and convert to his own personal use and
benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite
repeated demands, the accused failed and refused to return the said items or to remit
the amount of Ninety- Eight Thousand Pesos (P98,000.00), Philippine currency, to
the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of
not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone testimony of
Danilo Tangcoy. On the other hand, the defense presented the lone testimony of
petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio Balajadia, who
is engaged in the financing business of extending loans to Base employees. For every
collection made, they earn a commission. Petitioner denied having transacted any
business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for which
he was made to sign a blank receipt. He claimed that the same receipt was then
dated May 2, 1991 and used as evidence against him for the supposed agreement to
sell the subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime
charged in the Information. The dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of
the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the
Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of
liberty consisting of an imprisonment under the Indeterminate Sentence Law of
FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium
period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of
Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount of P98,000.00 as actual damages, and to
pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner
and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30,
2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with
MODIFICATION on the imposable prison term, such that accused-appellant shall
suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each
additional P10,000.00, or a total of 7 years. The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court
the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE
ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION
EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES,
AS THIS VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER
COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS
NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE
OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT
-
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH
THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF
UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN
THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER
COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF]
JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD AN ELEMENT OF
THE OFFENSE WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER
COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND
REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE
STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated
the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry even
more weight when said court affirms the findings of the trial court, absent any
showing that the findings are totally devoid of support in the records, or that they
are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of
the opinion that the CA erred in affirming the factual findings of the trial court. He
now comes to this Court raising both procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court,
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its
submarkings, although the same was merely a photocopy, thus, violating the best
evidence rule. However, the records show that petitioner never objected to the
admissibility of the said evidence at the time it was identified, marked and testified
upon in court by private complainant. The CA also correctly pointed out that
petitioner also failed to raise an objection in his Comment to the prosecution's formal
offer of evidence and even admitted having signed the said receipt. The established
doctrine is that when a party failed to interpose a timely objection to evidence at the
time they were offered in evidence, such objection shall be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the formally defective
Information filed against him. He contends that the Information does not contain the
period when the pieces of jewelry were supposed to be returned and that the date
when the crime occurred was different from the one testified to by private
complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the
matters of form and substance in the Information cannot be made for the first time
on appeal. It is true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of
money or property received to the prejudice of the owner6 and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of the
period and the wrong date of the occurrence of the crime, as reflected in the
Information, do not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory
designation of the offense and the acts or omissions constitutive thereof. Then
Section 6, Rule 110 of the Rules of Court provides that a complaint or information is
sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of the
commission of the offense, and the place wherein the offense was committed. In the
case at bar, a reading of the subject Information shows compliance with the
foregoing rule. That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is
the appropriation or conversion of money or property received to the prejudice of
the offender. Thus, aside from the fact that the date of the commission thereof is not
an essential element of the crime herein charged, the failure of the prosecution to
specify the exact date does not render the Information ipso facto defective.
Moreover, the said date is also near the due date within which accused-appellant
should have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with the rules.
Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of Estafa under
Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the
means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or
any other personal property received by the offender in trust or on commission, or
for administration, or under any other obligation involving the duty to make
delivery of or to return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money, goods, or other
property; x x x
The elements of estafa with abuse of confidence are as follows: (a) that money, goods
or other personal property is received by the offender in trust, or on commission, or
for administration, or under any other obligation involving the duty to make
delivery of, or to return the same; (b) that there be misappropriation or conversion of
such money or property by the offender or denial on his part of such receipt; (c) that
such misappropriation or conversion or denial is to the prejudice of another; and (d)
that there is a demand made by the offended party on the offender.8
Petitioner argues that the last element, which is, that there is a demand by the
offended party on the offender, was not proved. This Court disagrees. In his
testimony, private complainant narrated how he was able to locate petitioner after
almost two (2) months from the time he gave the pieces of jewelry and asked
petitioner about the same items with the latter promising to pay them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could
have been finished on 5 July 1991, the question is what happens (sic) when the
deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him where the
items are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him partially or
full?
a No, sir.9
No specific type of proof is required to show that there was demand.10 Demand need
not even be formal; it may be verbal.11 The specific word "demand" need not even be
used to show that it has indeed been made upon the person charged, since even a
mere query as to the whereabouts of the money [in this case, property], would be
tantamount to a demand.12 As expounded in Asejo v. People:13
With regard to the necessity of demand, we agree with the CA that demand under
this kind of estafa need not be formal or written. The appellate court observed that
the law is silent with regard to the form of demand in estafa under Art. 315 1(b),
thus:
When the law does not qualify, We should not qualify. Should a written demand be
necessary, the law would have stated so. Otherwise, the word "demand" should be
interpreted in its general meaning as to include both written and oral demand. Thus,
the failure of the prosecution to present a written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money
entrusted to the accused, we held that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence
of the crime of embezzlement. It so happens only that failure to account, upon
demand for funds or property held in trust, is circumstantial evidence of
misappropriation. The same way, however, be established by other proof, such as
that introduced in the case at bar.14
In view of the foregoing and based on the records, the prosecution was able to prove
the existence of all the elements of the crime. Private complainant gave petitioner the
pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May
2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds of those
pieces of jewelry sold, or if no sale took place, failed to return the same pieces of
jewelry within or after the agreed period despite demand from the private
complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by
petitioner, the same is unmeritorious. Settled is the rule that in assessing the
credibility of witnesses, this Court gives great respect to the evaluation of the trial
court for it had the unique opportunity to observe the demeanor of witnesses and
their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is
even conclusive and binding if not tainted with arbitrariness or oversight of some
fact or circumstance of weight and influence, especially when such finding is
affirmed by the CA.16 Truth is established not by the number of witnesses, but by the
quality of their testimonies, for in determining the value and credibility of evidence,
the witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on this
case, the question of the continued validity of imposing on persons convicted of
crimes involving property came up. The legislature apparently pegged these
penalties to the value of the money and property in 1930 when it enacted the
Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to
the Court en banc for consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions on the matter.
Among those that graciously complied were Dean Jose Manuel Diokno, Dean
Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the
Speaker of the House of Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this Court
finds the following:
There seems to be a perceived injustice brought about by the range of penalties that
the courts continue to impose on crimes against property committed today, based on
the amount of damage measured by the value of money eighty years ago in 1932.
However, this Court cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure in amending
the penalties provided for in the said crimes cannot be remedied through this
Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any
remedy. It can be appropriately presumed that the framers of the Revised Penal
Code (RPC) had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but
which are not covered by the law, and in cases of excessive penalties. - Whenever a
court has knowledge of any act which it may deem proper to repress and which is
not punishable by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a
case which is not punishable by law and the court finds it proper to repress, the
remedy is to render the proper decision and thereafter, report to the Chief Executive,
through the Department of Justice, the reasons why the same act should be the
subject of penal legislation. The premise here is that a deplorable act is present but is
not the subject of any penal legislation, thus, the court is tasked to inform the Chief
Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is
already punishable by law but the corresponding penalty is deemed by the court as
excessive. The remedy therefore, as in the first paragraph is not to suspend the
execution of the sentence but to submit to the Chief Executive the reasons why the
court considers the said penalty to be non-commensurate with the act committed.
Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara
opined that in Article 5, the duty of the court is merely to report to the Chief
Executive, with a recommendation for an amendment or modification of the legal
provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena sige
lege," that is, that there can exist no punishable act except those previously and
specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it
necessary to prohibit its perpetration with penal sanction, the Court of justice will be
entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of a
sentence on the ground that the strict enforcement of the provisions of this Code
would cause excessive or harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief Executive with a recommendation for
an amendment or modification of the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief Justice
Ramon C. Aquino and retired Associate Justice Carolina C. Grio-Aquino, in their
book, The Revised Penal Code,21 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle that
justice must be tempered with mercy. Generally, the courts have nothing to do with
the wisdom or justness of the penalties fixed by law. "Whether or not the penalties
prescribed by law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators on the law may
fairly differ; but it is the duty of the courts to enforce the will of the legislator in all
cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be
addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against property be
based on the current inflation rate or at the ratio of P1.00 is equal to P100.00 .
However, it would be dangerous as this would result in uncertainties, as opposed to
the definite imposition of the penalties. It must be remembered that the economy
fluctuates and if the proposed imposition of the penalties in crimes against property
be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is
also improper to presume why the present legislature has not made any moves to
amend the subject penalties in order to conform with the present times. For all we
know, the legislature intends to retain the same penalties in order to deter the
further commission of those punishable acts which have increased tremendously
through the years. In fact, in recent moves of the legislature, it is apparent that it
aims to broaden the coverage of those who violate penal laws. In the crime of
Plunder, from its original minimum amount of P100,000,000.00 plundered, the
legislature lowered it to P50,000,000.00. In the same way, the legislature lowered the
threshold amount upon which the Anti-Money Laundering Act may apply,
from P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do
not seem to be excessive compared to the proposed imposition of their
corresponding penalties. In Theft, the provisions state that:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the
value of the thing stolen is more than 12,000 pesos but does not exceed 22,000
pesos, but if the value of the thing stolen exceeds the latter amount the
penalty shall be the maximum period of the one prescribed in this paragraph,
and one year for each additional ten thousand pesos, but the total of the
penalty which may be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may be imposed and for
the purpose of the other provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum periods, if
the value of the thing stolen is more than 6,000 pesos but does not exceed
12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if
the value of the property stolen is more than 200 pesos but does not exceed
6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property stolen is over 50 pesos but does not exceed
200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not
exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not
exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed
under the circumstances enumerated in paragraph 3 of the next preceding
article and the value of the thing stolen does not exceed 5 pesos. If such value
exceeds said amount, the provision of any of the five preceding subdivisions
shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
when the value of the thing stolen is not over 5 pesos, and the offender shall
have acted under the impulse of hunger, poverty, or the difficulty of earning a
livelihood for the support of himself or his family.
In a case wherein the value of the thing stolen is P6,000.00, the above-provision
states that the penalty is prision correccional in its minimum and medium periods (6
months and 1 day to 4 years and 2 months). Applying the proposal, if the value of
the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period (2 months and 1 day to 2
years and 4 months). It would seem that under the present law, the penalty imposed
is almost the same as the penalty proposed. In fact, after the application of the
Indeterminate Sentence Law under the existing law, the minimum penalty is still
lowered by one degree; hence, the minimum penalty is arresto mayor in its medium
period to maximum period (2 months and 1 day to 6 months), making the offender
qualified for pardon or parole after serving the said minimum period and may even
apply for probation. Moreover, under the proposal, the minimum penalty after
applying the Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far from the
minimum period under the existing law. Thus, it would seem that the present
penalty imposed under the law is not at all excessive. The same is also true in the
crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen
in the crime of Theft and the damage caused in the crime of Estafa, the gap between
the minimum and the maximum amounts, which is the basis of determining the
proper penalty to be imposed, would be too wide and the penalty imposable would
no longer be commensurate to the act committed and the value of the thing stolen or
the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be modified but
the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00,
punished by prision mayor minimum to prision mayor medium (6 years and
1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished
by prision correccional medium and to prision correccional maximum (2
years, 4 months and 1 day to 6 years).24
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by
prision correccional minimum to prision correccional medium (6 months and
1 day to 4 years and 2 months).
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto
mayor medium to prision correccional minimum (2 months and 1 day to 2
years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto
mayor (1 month and 1 day to 6 months).
6. P5.00 will become P500.00, punishable by arresto mayor minimum to
arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also be
modified but the penalties are not changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00,
punishable by prision correccional maximum to prision mayor minimum (4
years, 2 months and 1 day to 8 years).25
2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00,
punishable by prision correccional minimum to prision correccional medium
(6 months and 1 day to 4 years and 2 months).26
3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by
arresto mayor maximum to prision correccional minimum (4 months and 1
day to 2 years and 4 months).
4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum
(4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici
curiae, is that the incremental penalty provided under Article 315 of the RPC violates
the Equal Protection Clause.
The equal protection clause requires equality among equals, which is determined
according to a valid classification. The test developed by jurisprudence here and
yonder is that of reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on
substantial distinctions as P10,000.00 may have been substantial in the past, but it is
not so today, which violates the first requisite; the IPR was devised so that those
who commit estafa involving higher amounts would receive heavier penalties;
however, this is no longer achieved, because a person who steals P142,000.00 would
receive the same penalty as someone who steals hundreds of millions, which violates
the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law was promulgated, conditions that
no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and declares the
incremental penalty in Article 315 unconstitutional for violating the equal protection
clause, what then is the penalty that should be applied in case the amount of the
thing subject matter of the crime exceeds P22,000.00? It seems that the proposition
poses more questions than answers, which leads us even more to conclude that the
appropriate remedy is to refer these matters to Congress for them to exercise their
inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be struck down
as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is more
than Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the incremental
penalty rule unconstitutional, then that would ... the void should be filled by
Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred Thousand
(P100,000.00) Pesos ...
DEAN DIOKNO:
Well, my presen ... (interrupted)
JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two
Thousand (P22,000.00) Pesos you were suggesting an additional penalty of one (1)
year, did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory interpretation.
JUSTICE PERALTA:
Ah ...
DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:
But if we de ... (interrupted)
DEAN DIOKNO:
....then....
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court
cannot fix the amount ...
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two
Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:
Could not be.
JUSTICE PERALTA:
The only remedy is to go to Congress...
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
... and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of
Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes
cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the
United States Federal Supreme Court has expanded the application of a similar
Constitutional provision prohibiting cruel and unusual punishment, to the duration
of the penalty, and not just its form. The court therein ruled that three things must be
done to decide whether a sentence is proportional to a specific crime, viz.; (1)
Compare the nature and gravity of the offense, and the harshness of the penalty; (2)
Compare the sentences imposed on other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because
in Solem what respondent therein deemed cruel was the penalty imposed by the
state court of South Dakota after it took into account the latters recidivist statute and
not the original penalty for uttering a "no account" check. Normally, the maximum
punishment for the crime would have been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakotas recidivist statute because of his six prior
felony convictions. Surely, the factual antecedents of Solem are different from the
present controversy.
With respect to the crime of Qualified Theft, however, it is true that the imposable
penalty for the offense is high. Nevertheless, the rationale for the imposition of a
higher penalty against a domestic servant is the fact that in the commission of the
crime, the helper will essentially gravely abuse the trust and confidence reposed
upon her by her employer. After accepting and allowing the helper to be a member
of the household, thus entrusting upon such person the protection and safekeeping
of the employers loved ones and properties, a subsequent betrayal of that trust is so
repulsive as to warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are
dependent on the subject matter of the crime and which, by adopting the proposal,
may create serious implications. For example, in the crime of Malversation, the
penalty imposed depends on the amount of the money malversed by the public
official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation.
Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any other person to take
such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if
the amount involved in the misappropriation or malversation does not exceed
two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal
in its minimum period, if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if
the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government loses money
due to the unlawful acts of the offender. Thus, following the proposal, if the amount
malversed is P200.00 (under the existing law), the amount now becomes P20,000.00
and the penalty is prision correccional in its medium and maximum periods (2 years
4 months and 1 day to 6 years). The penalty may not be commensurate to the act of
embezzlement of P20,000.00 compared to the acts committed by public officials
punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and
Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the
government is not generally defined by any monetary amount, the penalty (6 years
and 1 month to 15 years)32under the Anti-Graft Law will now become higher. This
should not be the case, because in the crime of malversation, the public official takes
advantage of his public position to embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things
(inhabited or uninhabited) where the value of the thing unlawfully taken and the act
of unlawful entry are the bases of the penalty imposable, and also, in Malicious
Mischief, where the penalty of imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the
value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of
the penalty will now be the value of the thing unlawfully taken and no longer the
element of force employed in entering the premises. It may likewise cause an
inequity between the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision correccional in its
medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine
not exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main justification of the
penalty. Whereas in the crime of Robbery with force upon things, it is punished with
a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed
without the penalty of Fine despite the fact that it is not merely the illegal entry that
is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty
that can be imposed is arresto mayor in its medium and maximum periods (2
months and 1 day to 6 months) if the value of the damage caused exceeds P1,000.00,
but under the proposal, the value of the damage will now become P100,000.00
(1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And,
if the value of the damaged property does not exceed P200.00, the penalty is arresto
menor or a fine of not less than the value of the damage caused and not more
than P200.00, if the amount involved does not exceed P200.00 or cannot be
estimated. Under the proposal, P200.00 will now become P20,000.00, which simply
means that the fine of P200.00 under the existing law will now become P20,000.00.
The amount of Fine under this situation will now become excessive and afflictive in
nature despite the fact that the offense is categorized as a light felony penalized with
a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but changing the same
through Court decision, either expressly or impliedly, may not be legally and
constitutionally feasible.
There are other crimes against property and swindling in the RPC that may also be
affected by the proposal, such as those that impose imprisonment and/or Fine as a
penalty based on the value of the damage caused, to wit: Article 311 (Theft of the
property of the National Library and National Museum), Article 312 (Occupation of
real property or usurpation of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other forms of swindling), Article 317
(Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or damaging statues, public
monuments or paintings). Other crimes that impose Fine as a penalty will also be
affected, such as: Article 213 (Frauds against the public treasury and similar
offenses), Article 215 (Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure
of accountable officer to render accounts), Article 219 (Failure of a responsible public
officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect
crimes which are punishable by special penal laws, such as Illegal Logging or
Violation of Section 68 of Presidential Decree No. 705, as amended.34 The law treats
cutting, gathering, collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of qualified
theft.35 Under the law, the offender shall be punished with the penalties imposed
under Articles 309 and 31036 of the Revised Penal Code, which means that the
penalty imposable for the offense is, again, based on the value of the timber or forest
products involved in the offense. Now, if we accept the said proposal in the crime of
Theft, will this particular crime of Illegal Logging be amended also in so far as the
penalty is concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular law is
not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and
Special Laws, and other related provisions of these laws affected by the proposal, a
thorough study is needed to determine its effectivity and necessity. There may be
some provisions of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised Penal Code by
merely making a study of the applicability of the penalties imposable in the present
times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and
who, after due proceedings, can decide whether or not to amend or to revise the
questioned law or other laws, or even create a new legislation which will adopt to
the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised
Penal Code. During the oral arguments, counsel for the Senate informed the Court
that at present, fifty-six (56) bills are now pending in the Senate seeking to amend
the Revised Penal Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political, socio-economic,
and cultural settings were far different from todays conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way
that it shall not usurp legislative powers by judicial legislation and that in the course
of such application or construction, it should not make or supervise legislation, or
under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite
the law, or give the law a construction which is repugnant to its terms.38 The Court
should apply the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly put, the
Court should shy away from encroaching upon the primary function of a co-equal
branch of the Government; otherwise, this would lead to an inexcusable breach of
the doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine;
hence, it can be increased by the Court when appropriate. Article 2206 of the Civil
Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall
be at least three thousand pesos, even though there may have been mitigating
circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such
indemnity shall in every case be assessed and awarded by the court, unless
the deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of
Article 291, the recipient who is not an heir called to the decedent's
inheritance by the law of testate or intestate succession, may demand support
from the person causing the death, for a period not exceeding five years, the
exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of
monetary restitution or compensation to the victim for the damage or infraction that
was done to the latter by the accused, which in a sense only covers the civil aspect.
Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to
the penalty of imprisonment imposed to the offender, the accused is also ordered to
pay the victim a sum of money as restitution. Clearly, this award of civil indemnity
due to the death of the victim could not be contemplated as akin to the value of a
thing that is unlawfully taken which is the basis in the imposition of the proper
penalty in certain crimes. Thus, the reasoning in increasing the value of civil
indemnity awarded in some offense cannot be the same reasoning that would
sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that
the law only imposes a minimum amount for awards of civil indemnity, which
is P3,000.00. The law did not provide for a ceiling. Thus, although the minimum
amount for the award cannot be changed, increasing the amount awarded as civil
indemnity can be validly modified and increased when the present circumstance
warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also
does not fix the amount of damages that can be awarded. It is discretionary upon the
court, depending on the mental anguish or the suffering of the private offended
party. The amount of moral damages can, in relation to civil indemnity, be adjusted
so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed
as tantamount to cruel punishment. However, all penalties are generally harsh,
being punitive in nature. Whether or not they are excessive or amount to cruel
punishment is a matter that should be left to lawmakers. It is the prerogative of the
courts to apply the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios opinions is
that the incremental penalty provision should be declared unconstitutional and that
the courts should only impose the penalty corresponding to the amount
of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As
suggested, however, from now until the law is properly amended by Congress, all
crimes of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when every
accused convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the application of the
law has no legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of
criminal justice by the Ramos Administration by virtue of Republic Act No. 765940 in
December 1993. The said law has been questioned before this Court. There is,
arguably, no punishment more cruel than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in June 2006 by Republic Act No.
9346,41 the Court did not impede the imposition of the death penalty on the ground
that it is a "cruel punishment" within the purview of Section 19 (1),42Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition and not via the
intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot
declare the provision of the law from which the proper penalty emanates
unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the opportunity
to comment on the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must be pleaded
directly and not collaterally,43 more so in the present controversy wherein the issues
never touched upon the constitutionality of any of the provisions of the Revised
Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual punishments
is generally aimed at the form or character of the punishment rather than its severity
in respect of duration or amount, and applies to punishments which public
sentiment has regarded as cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like. Fine and imprisonment would not thus be within the
prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual. Expressed in other terms,
it has been held that to come under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock
the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and
adapt it to our modern time.
The solution to the present controversy could not be solved by merely adjusting the
questioned monetary values to the present value of money based only on the current
inflation rate. There are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said values could be
accurately and properly adjusted. The effects on the society, the injured party, the
accused, its socio-economic impact, and the likes must be painstakingly evaluated
and weighed upon in order to arrive at a wholistic change that all of us believe
should be made to our existing law. Dejectedly, the Court is ill-equipped, has no
resources, and lacks sufficient personnel to conduct public hearings and sponsor
studies and surveys to validly effect these changes in our Revised Penal Code. This
function clearly and appropriately belongs to Congress. Even Professor Tadiar
concedes to this conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the value of
Peso you have to take into consideration several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA:
Consumer price index.
PROFESSOR TADIAR:
Yeah.
JUSTICE PERALTA:
Inflation ...
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined
utilizing all of those economic terms.
JUSTICE PERALTA:
Yeah, but ...
PROFESSOR TADIAR:
And I dont think it is within the power of the Supreme Court to pass upon and peg
the value to One Hundred (P100.00) Pesos to ...
JUSTICE PERALTA:
Yeah.
PROFESSOR TADIAR:
... One (P1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court ...
JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust, to make
the adjustment that is a power that belongs to the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes
the view that the role of the Court is not merely to dispense justice, but also the
active duty to prevent injustice. Thus, in order to prevent injustice in the present
controversy, the Court should not impose an obsolete penalty pegged eighty three
years ago, but consider the proposed ratio of 1:100 as simply compensating for
inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the
validity of the substance of a statute. The issue is no different from the Courts
adjustment of indemnity in crimes against persons, which the Court had previously
adjusted in light of current times, like in the case of People v. Pantoja.47 Besides,
Article 10 of the Civil Code mandates a presumption that the lawmaking body
intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice and
my Colleagues, all the proposals ultimately lead to prohibited judicial legislation.
Short of being repetitious and as extensively discussed above, it is truly beyond the
powers of the Court to legislate laws, such immense power belongs to Congress and
the Court should refrain from crossing this clear-cut divide. With regard to civil
indemnity, as elucidated before, this refers to civil liability which is awarded to the
offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are
not only based on the value of money, but on several other factors. Further, since the
law is silent as to the maximum amount that can be awarded and only pegged the
minimum sum, increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA modified the
ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional in its medium period, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal in its minimum
period, as maximum. However, the CA imposed the indeterminate penalty of four
(4) years and two (2) months of prision correccional, as minimum, to eight (8) years
of prision mayor, as maximum, plus one (1) year for each additional P10,000.00, or a
total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v.
People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such case, and in connection with the accessory penalties which
may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in
which case, Article 65 of the same Code requires the division of the time included in
the penalty into three equal portions of time included in the penalty prescribed,
forming one period of each of the three portions. Applying the latter provisions, the
maximum, medium and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
To compute the maximum period of the prescribed penalty, prisin correccional
maximum to prisin mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period in accordance with
Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00,
which exceeds P22,000.00, thus, the maximum penalty imposable should be within
the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for
every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00
ceiling set by law, then, adding one year for each additional P10,000.00, the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for
the estafa charge against petitioner is prision correccional maximum to prision
mayor minimum, the penalty next lower would then be prision correccional in its
minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6
months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to perform its primordial
duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent
powers of making and enacting laws. While it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of
petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March
22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which
affirmed with modification the Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable
doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the
penalty imposed is the indeterminate penalty of imprisonment ranging from THREE
(3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as
minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be
furnished the President of the Republic of the Philippines, through the Department
of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the
Speaker of the House of Representatives.
SO ORDERED.
G.R. No. 198270, December 09, 2015
ARMILYN MORILLO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND
RICHARD NATIVIDAD, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision1 dated January 18, 2011 and
Resolution2 dated August 9, 2011 of the Court of Appeals (CA) in CA-G.R. CR No.
32723 which reversed and set aside the Decision3 dated February 23, 2009 and
Order4 dated July 13, 2009, of the Regional Trial Court (RTC) in Criminal Case Nos.
08-1876-77, which, in turn, affirmed the Joint Decision5 dated September 3, 2008 of
the Metropolitan Trial Court (MeTC) in Criminal Case Nos. 337902-03.
The antecedent facts are as follows:chanRoblesvirtualLawlibrary
Sometime in July 2003, respondent Richard Natividad, Milo Malong and Bing
Nanquil, introducing themselves as contractors doing business in Pampanga City
under the name and style of RB Custodio Construction, purchased construction
materials for their project inside the Subic Freeport Zone from petitioner Armilyn
Morillo, owner of Amasea General Merchandize and Construction Supplies. The
parties agreed that twenty percent (20%) of the purchases shall be paid within seven
(7) days after the first delivery and the remaining eighty percent (80%) to be paid
within thirty-five (35) days after the last delivery, all of which shall be via postdated
checks.6
Pursuant to the agreement, petitioner delivered construction materials amounting to

a total of P500,054.00 at the construction site where respondent and his partners
were undertaking their project. After the last delivery, respondent paid P20,000.00 in
cash and issued two (2) post-dated checks, drawn from Metrobank, Pampanga
branch, in the amounts of P393,000.00 and P87,054.00. Upon maturity, petitioner
attempted to deposit the checks in her savings account at Equitable PCI Bank, San
Lorenzo, Makati City. They were, however, dishonored by the drawee bank.
Immediately thereafter, petitioner communicated the dishonor to respondent and his
partners and demanded for payment. Again, respondent issued two (2) post-dated
Metrobank checks and assured petitioner that they will be honored upon maturity.
Upon deposit in her savings account at Equitable PCI Bank, Makati Branch, the
checks were once again dishonored for the reason that the account from which they
were drawn was already a closed account. Consequently, petitioner made several
demands from respondent and his partners, but to no avail, prompting her to file a
complaint with the City Prosecution Office, Makati City.7 Thus, on August 12, 2004,
two (2) Informations were filed against respondent and Milo Malong, the accusatory
portions of which read:
Criminal Case No. 337902
That on or about the 20th day of October 2003, or prior thereto, in the City of Makati,
Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, unlawfully and feloniously
make out, draw and issue to AMASEA GENERAL MERCHANDIZE AND
CONSTRUCTION SUPPLIES herein represented by ARMILYN MORILLO to apply
on account or for value the check described below:
Check
: 2960203217
No.
Drawn
: Metrobank
Against
In the :
amount Php434,430.00
Postdated : October 20,

/ Dated 2003
Payable : AMASEA GENERAL MERCHANDIZE AND CONSTRUCTION

to SUPPLIES
said accused well knowing that at the time of issue thereof, said accused did not
have sufficient funds in or credit with the drawee bank for the payment in full of the
face amount of such check upon its presentment which check when presented for
payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason "Account Closed" and despite receipt
of notice of such dishonor, the said accused failed lo pay said payee the face amount
of said check or to make arrangement for full payment thereof within five (5)
banking days after receiving notice.
CONTRARY TO LAW.
Criminal Case No. 337903
That on or about the 20th day of October 2003, or prior thereto, in the City of Makati,
Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, unlawfully and feloniously
make out, draw and issue to AMASEA GENERAL MERCHANDIZE AND
CONSTRUCTION SUPPLIES herein represented by ARMILYN MORILLO to apply
on account or for value the check described below:
Check
: 2960203218
No.
Drawn
: Metrobank
Against
In the :
amount Php13,032.00
Postdated : October 20,
/ Dated 2003
Payable : AMASEA GENERAL MERCHANDIZE AND CONSTRUCTION

to SUPPLIES
said accused well knowing that at the time of issue thereof, said accused did not
have sufficient funds in or credit with the drawee bank for the payment in full of the
face amount of such check upon its presentment which check when presented for
payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason "Account Closed" and despite receipt
of notice of such dishonor, the said accused failed to pay said payee the face amount
of said check or to make arrangement for full payment thereof within five (5)
banking days alter receiving notice.
CONTRARY TO LAW.8ChanRoblesVirtualawlibrary
On September 15, 2004, the Assistant City Prosecutor issued a Resolution
recommending that respondent and his partners be charged in court with the crime
of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code as well as for
Violation of Batas Pambansa No. 22 (BP 22), which was later docketed as Criminal
Case Nos. 337902-03.
On September 3, 2008, the MeTC rendered its Joint Decision, finding that the
prosecution had proven all the elements of violation of BP 22 as against respondent,
the dispositive portion of which reads:
WHEREFORE, judgment is rendered in Criminal Cases Nos. 337902-03 finding the
accused, RICHARD NATIVIDAD, GUILTY beyond reasonable doubt of the offense
of Violation of Batas Pambansa Blg. 22 and is sentenced to pay a fine equivalent to
Two Hundred Thousand Pesos (Php200,000.00), for Check No. 2960203217 and
Thirteen Thousand Thirty-Two Pesos for Check No. 2960203218 or a total penalty of
Two Hundred Thousand Thirteen Thousand Thirty Two Pesos (Php213,032.00), with
subsidiary imprisonment in case of insolvency. However, accused MILO MALONG,
is ACQUITTED on the ground of reasonable doubt. Both accused Malong and
Natividad are ordered to jointly pay the private complainant the total sum of Four
Hundred Forty-Seven Thousand Four Hundred Sixty-Two Pesos (Php447,462.00)
which are the face value of the two (2) checks issued, subject of these cases, with
interest at twelve percent (12%) per annum and three percent (3%) penalty per
month as stipulated in the invoices, reckoned from the date of receipt of the demand
on February 28, 2004, until the amount is fully paid, plus the costs of suit.
All other claims are DISMISSED for lack of evidence.
Respondent appealed the decision of the MeTC to the RTC arguing that the MeTC of
Makati City had no jurisdiction over the case. He asserted that since the subject
checks were issued, drawn, and delivered to petitioner in Subic, the venue of the
action was improperly laid for none of the elements of the offense actually
transpired in Makati City. Respondent also pointed out that during the retaking of
petitioner's testimony on March 14, 2008, the records of the case did not show that
the public prosecutor manifested his presence in court and that he delegated the
prosecution of the case to the private prosecutor. Thus, since there was no
appearance for the public prosecutor, nor was there a proper delegation of authority,
the proceedings should be declared null and void.10
On February 23, 2009, the RTC affirmed the MeTC ruling in the following wise:
Since accused Natividad failed to raise before the court [a quo] the issue of authority
of the private prosecutor to present witness Morillo in the absence of the public
prosecutor during the March 14, 2008 proceeding, and only did so after obtaining an
adverse judgment, it would be an injustice if all the proceedings had in the case
would be set aside.
The second issue raised on appeal also holds no ground. A violation of BP 22 is a

continuing or transitory offense, which is oft-repeated in our jurisprudence. Under
this doctrine, jurisdiction may be had in several places where one of the acts material
to the crime occurred.
Accused Natividnd postulates that since the checks were presented suid
dishonored in Makati City, which is not the place where it was issued and
delivered, the court [a quo] lacks jurisdiction. This argument is, at best, specious.
The fact remains that the bank where it was presented lor payment is in Makati
City. These checks passed through this bank for clearance, confirmation, and or
validation processes. Moreover, the eventual dishonour indeed took place or was
completed at the end of the collecting bank in Makati City, where the private
complainant maintains her account over which the court [a quo] has jurisdiction.
WHEREFORE, finding no merit on accused-appellant Natividad's appeal, the same

is hereby dismissed. Accordingly, the appealed decision of the court [a quo] is hereby
AFFIRMED in full.
On appeal, however, the Court of Appeals, in its January 18, 2011 Decision, reversed
the lower courts' rulings and dismissed the case without prejudice to its refiling in
the proper venue, the pertinent portions of said Decision state:
In this case, records will reveal that the first element of the offense happened in
Pampanga. It was indisputably established that the subject checks were issued to
private complainant at petitioner's office in Pampanga. Said checks were drawn
from petitioner's account in Metrobank, Pampanga branch.
The second element of the offense or the knowledge of dishonor of the checks by the
maker also transpired in Pampanga. After private complainant was informed of the
dishonor of the checks, she immediately proceeded to petitioner's office in
Pampanga, personally informed him and his companions of the dishonor of the
checks and tendered a demand letter for the payment of the construction materials.
Finally, the third element or dishonor of the checks by the drawee bank also
happened in Pampanga. Upon maturity of the subject checks, private complainant
deposited the same in her savings account at Equitable PCI Bank, Makati Branch.
Subsequently, she was informed by the latter bank that the subject checks were
dishonored by the drawee bank, Metrobank, Pampanga branch.
Clearly, all the essential elements of the offense happened in Pampanga.

Consequently, the case can only be filed in said place. Unfortunately, private
complainant filed the case in Makati City, under the erroneous assumption that
since she deposited the subject checks in Equitable PCI Bank, Makati City, and
was informed of lite dishonor of the checks by the same bank, the case may be
filed in Makati City. However, as correctly argued by the OSG, the act of
depositing the check is not an essential clement of BP 22. Likewise, the fact that
private complainant was informed of the dishonor of the checks at her bank in
Makuti City did not vest the MeTC, Makati City with jurisdiction to take
cognizance of the case. To reiterate, a transitory crime can only be tiled in any of
the places where its constitutive elements actually transpired. And, knowledge of
the payee of the dishonor of the checks is not an element of BP 22. The law speaks
only of the subsequent dishonor of the checks by the drawee bank and the
knowledge of the fact of dishonor by the maker. Consequently, none of the
elements of the offense can be considered to have transpired in Makati City. Thus,
the venue of the instant case was improperly laid.12ChanRoblesVirtualawlibrary
Aggrieved, petitioner filed the instant action invoking the following argument:
I.
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT THE

METROPOLITAN TRIAL COURT OF MAKATI CITY DID NOT HAVE
JURISDICTION OVER THE CASE DESPITE A CLEAR SHOWING THAT THE
OFFENSE WAS COMMITTED WITHIN THE JURISDICTION OF SAID
COURT.13ChanRoblesVirtualawlibrary
Petitioner maintains that the MeTC of Makati City, the place where the dishonored
checks were deposited, had jurisdiction over the instant case. In support of her
contention, petitioner cites the ruling in Nieva, Jr. v. Court of Appeals,14 wherein it was
held that since the check drawn in violation of BP 22 was deposited and presented
for encashment with the Angeles City Branch of the Bank of the Philippine Islands,
the RTC of Pam.pa.nga clearly had jurisdiction over the crime of which accused
therein was charged.15 Thus, petitioner asserts that the appellate court erred in ruling
that the Makati MeTC did not have jurisdiction to try the instant case. That none of
the essential elements of the crime of violation of BP 22 occurred in the City of
Makati is belied by the Nieva doctrine recognizing the jurisdiction of the court of the
place where the check was deposited and/or presented for encashment.
Petitioner went on lo state that all the elements of violation of BP 22 were duly
proven beyond reasonable doubt. First, the prosecution sufficiently established that
the respondent issued the subject checks as shown by the documentary evidence
submitted. They were issued for value, as payment for the construction supplies and
materials which petitioner delivered to the accused.
As to the second and third elements, petitioner posits that it was clearly shown that
respondent had knowledge of the insufficiency of funds in or credit with the drawee
bank, which subsequently dishonored the subject checks. Section 2 of BP 22 provides
that "the dishonor of a check when presented within ninety (90) days from the date
of the check shall be prima facie evidence of knowledge of insufficiency of funds or
credit unless such maker or drawer pays the holder thereof the amount due thereon,
or makes arrangements for payment in full by the drawee of such check within five
(5) banking days after receiving notice that such check has not been paid by the
drawee." In this case, petitioner states that the prosecution was able to sufficiently
show that the subject checks were presented within the time period required by law.
In fact, written demand relaying the fact that the drawee bank dishonored the
subject checks was even personally delivered by petitioner to respondent as
evidenced by the demand letter signed by respondent. Thus, respondent cannot
deny that he had knowledge of the insufficiency of funds in his account with the
drawee bank and that the subject checks were subsequently dishonored for the
reason that the account from which they were drawn was already a closed account.
For its part, the Office of the Solicitor General (OSG), representing the State, is in line
with the appellate court's and respondent's stance that the MeTC had no jurisdiction
over the instant case. According to the OSG, the act of depositing the check is not an
essential element of the offense under the Bouncing Checks Law. Citing the ruling
in Rigor v. People,16 the OSG posited that the place of deposit and the place of
dishonor are distinct from each other and that the place where the check was issued,
delivered, and dishonored is the proper venue, not the place where the check was
deposited, viz.:
The evidence clearly shows that the undated check was issued and delivered at the
Rural Bank of San Juan, Metro Manila. x x x The check was deposited with PS Bank,
San Juan Branch, Metro Manila. x x x The information at bar effectively charges San
Juan as the place of drawing and issuing. The jurisdiction of courts in criminal cases
is determined by the allegations of the complaint or information. Although the check
was dishonored by the drawee, Associated Bank, in its Tarlac Branch, appellant has
drawn, issued and delivered it at RBSJ, San Juan. The place of issue and delivery was
San Juan and knowledge, as an essential part of the offense, was also overtly
manifested in San Juan. There is no question that crimes committed in San Juan are
triable by the RTC stationed in Pasig.17ChanRoblesVirtualawlibrary
On the basis of the pronouncement in Rigor, the OSG thus claimed that the MeTC of
Makati City did not have jurisdiction over the instant case for none of the essential
elements of violation of BP 22 occurred therein.
The contention is untenable.
It is well settled that violations of BP 22 cases are categorized as transitory or

continuing crimes, meaning that some acts material and essential thereto and
requisite in their consummation occur in one municipality or territory, while some
occur in another. In such cases, the court wherein any of the crime's essential and
material acts have been committed maintains jurisdiction to try the case; it being
understood that the first court taking cognizance of the same excludes the other.
Thus, a person charged with a continuing or transitory crime may be validly tried in
any municipality or territory where the offense was in part committed.18
The OSG, relying on our ruling in Rigor v. People, concluded that "the Supreme Court
regarded the place of deposit and the place of dishonor as distinct from one another
and considered the place where the check was issued, delivered and dishonored,
and not where the check was deposited, as the proper venue for the filing of a B.P.
Blg. 22 case." The Court, however, cannot sustain such conclusion.
In said case, She accused therein obtained a loan from the Rural Bank of San Juan,
Metro Manila, and in payment thereof, he issued a check drawn against Associated
Bank of Tarlac. Thereafter, Rural Bank deposited the check at PS Bank, San Juan, but
the same was returned for the reason that it had been dishonored by Associated
Bank of Tarlac. When all other efforts to demand the repayment of the loan proved
futile, Rural Bank filed an action against the accused for violation of BP 22 at the
RTC of Pasig City, wherein crimes committed in. San Juan are triable. The accused,
however, contends that the RTC of Pasig had no jurisdiction thereon since no proof
had been offered to show that his check was issued, delivered, dishonored or that
knowledge of hmrfficiency of funds occurred in the Municipality of San Juan. The
Court, however, disagreed and held that while the check was dishonored by the
drawee. Associated Bank, in its Tarlac Branch, evidence clearly showed that the
accused had drawn, issued and delivered it at Rural Bank, San Juan, viz.:
Lastly, positioner contends thai the Regional Trial Court of Pasig h;ui no jurisdiction
over this case since no proofhas been offered that his check was issued, delivered,
dishonored or that knowledge of insufficiency of funds occurred in the Municipality
of San Juan, Metro Manila.
The contention is untenable.
x x x x.
The evidence clearly shows that the undated check was issued and delivered at the
Rural Bank of San Juan, Metro Manila on November 16, 1989, and subsequently the
check was dated February 16, 1990 thereat. On May 25, 1990, the check was
deposited with PS Bank, San Juan Branch, Metro Manila. Thus, the Court of Appeals
correctly ruled:
Violations of B.P. 22 are categorized as transitory or continuing crimes. A suit on the
check can be filed in any of the places where any of the elements of the offense
occurred, that is, where the check is drawn, issued, delivered or dishonored. x x x
The information at bar effectively charges San Jisars as the place of drawing and
issuing. The jurisdiction of courts in criminal cases is determined by the
allegations of the complaint or information. Although, the check was dishonored
by the drawee, Associated Baisk, sit its Tariac Branch, appellant has drawn, issued
and delivered it at RBSJ, San Juan. The place of issue airul delivery was San Juan
and knowledge, as an essential part of she offense, was also overtly manifested in
San Juan. There is no question that crimes committed in November, 1989 in San
Juan arc triable by the RTC stationed in Pasig. In short both allegation and proof
in this case sufficiently vest jurisdiction upon the RTC in Pasig
City.19ChanRoblesVirtualawlibrary
The bone of contention in Rigor, therefore, was whether the prosecution had offered
sufficient proof that the check drawn in violation of BP 22 was issued, delivered,
dishonored or that lcnowledge of insufficiency of funds occurred in the Municipality
of San Juan, thereby vesting jurisdiction upon the RTC of Pasig City. Nowhere in the
cited case, however, was it held, cither expressly or impliedly, that the place where
the check was deposited is not the proper venue for actions involving violations of
BP 22, it is true thai the Court, in Rigor, acknowledged the feet that the check was
issued and delivered at the Rural Bank of San Juan, while the same was deposited
wilts the PS Bank of San Juan. But such differentiation cannot be taken as basis
sufficient enough to conclude that the court of the place of deposit cannot exercise
jurisdiction over violations of BP 22. In the absence, thereiore, of any ground,
jurisprudential or otherwise, to sustain the OSG's arguments, the Court cannot take
cognizance of a doctrine that is simply inapplicable to the issue at hand.
In contrast, the ruling in Nieva, Jr. v. Court of Appeals20 cited by petitioner is more
squarely on point with the instant case. In Nieva, the accused delivered to Ramon
Joven a post-dated check drawn against the Commercial Bank of Manila as payment
for Joven's dump truck. Said check was deposited in the Angeles City Branch of the
Bank of Philippine Islands, joven was advised, however, that the Commercial Bank
of Manila returned the check for the reason that the account against which the check
was drawn is a "closed account." Consequently, the accused was charged with
violation of BP 22 before the RTC of Pampanga. On the contention of the accused
that said court had no jurisdiction to try the case, the Court categorically ruled:
As to petitioner's contention that the Regional Trial Court of Pampanga has no
jurisdiction to try the cases charged herein as none of the essential elements
thereof took place in Pampanga, suffice it to say that such contention has no basis.
The evidence discloses that the check was deposited and/or presented for
encashment with the Angeles City Branch of the Bank of the Philippine Islands.
This fact clearly confers jurisdiction upon the Regional Trial Court of Pampanga
over the crimes of which petitioner is charged. It must be noted that violations of
B.P. Blg. 22 are categorized as transitory or continuing crimes and so is the crime of
estafa. The rule is that a person charged with a transitory crime may be validly tried
in any municipality or territory where the offense was in part
committed.21ChanRoblesVirtualawlibrary
In fact, in the more recent Yalong v. People,22 wherein the modes of appeal and rules
of procedure were the issues at hand, the Court similarly inferred:
Besides, even discounting the above-discussed considerations, Yalong's appeal still
remains dismissible on the ground that, inter alia, the MTCC had properly acquired
jurisdiction over Criminal Case No. 45414. It is welksedled that violation of BP 22
cases is categorized as transitory or continuing crimes, which means that the acts
material and essential thereto occur in one municipality or territory, while some
occur in another. Accordingly, the court wherein any of the crime's essential and
material acts have been committed maintains jurisdiction to try the case; it being
understood that the first court taking cognizance of the same excludes the other.
Stated differently, a person charged with a continuing or transitory crime may be
validly tried in any municipality or territory where the offense was in part
committed. Applying these principles, a criminal case for violation of BP 22 may be
tiled in any of the places where any of its elements occurred - in particular, the place
where the check is drawn, issued, delivered, or dishonored.
In this case, while it is undisputed that the subject check was drawn, issued, and
delivered in Manila, records reveal that Ylagan presented the same for deposit and
encashment at the LBC Bank in Batangas City where she learned of its dishonor.
As such, the MTCC [of Batangas City] correctly took cognizance of Criminal Case
No. 45414 as It had the territorial jurisdiction to try and resolve the same. In this
light, the denial of the present petition remains
warranted.23ChanRoblesVirtualawlibrary
Guided by the foregoing pronouncements, there is no denying, therefore, that the
court of the place where the check was deposited or presented for encashment; can
be vested with jurisdiction to try cases involving violations of BP 22. Thus, the fact
that the check subject of the instant case was drawn, issued, and delivered in
Pampanga does not strip off the Makati MeTC of its jurisdiction over the instant case
for it is undisputed that the subject check was deposited and presented for
encashment at the Makati Branch of Equitable PC IBank. The MeTC of Makati,
therefore, correctly took cognizance of the instant case and rendered its decision in
the proper exercise of its jurisdiction.
It may be argued, however, that the instant petition ought to be dismissed outright
due to certain procedural infirmities. Section 35 (1), Chapter 12, Title III, Book IV of
the 1987 Administrative Code provides that the OSG shall represent the Government
of the Philippines, its agencies and instrumentalities and its officials and agents in
any litigation, proceeding, investigation or matter requiring the services of lawyers.
Specifically, it shall represent the Government in all criminal proceedings before the
Supreme Court and the Court of Appeals.24 Thus, as a general rule, if a criminal case
is dismissed by the trial court or if there is an acquittal, the appeal on the criminal
aspect of the case must be instituted by the Solicitor General on behalf of the
State.25cralawred
There have been instances, however, where the Court permitted an offended party
to file an appeal without the intervention of the OSG, such as when the offended
party questions the civil aspect of a decision of a lower court,26 when there is denial
of due process of law to the prosecution and the State or its agents refuse to act on
the case to the prejudice of the State and the private offended party,27 when there is
grave error committed by the judge, or when the interest of substantial justice so
requires.28
Corollary, a judgment of acquittal may be assailed through a petition

for certiorari under Rule 65 of the Rules of Court showing that the lower court, in
acquitting the accused, committed not merely reversible errors of judgment, but also
exercised grave abuse of discretion amounting to lack or excess of jurisdiction, or a
denial of due process, thereby rendering the assailed judgment null and void. If
there is grave abuse of discretion, granting the aggrieved party's prayer is not
tantamount to putting the accused in double jeopardy,29 in violation of the general
rule that the prosecution cannot appeal or bring error proceedings from a judgment
rendered in favor of the defendant in a criminal case. This is because a judgment of
acquittal is immediately final and executory, and the prosecution is barred from
appealing lest the constitutional prohibition against double jeopardy be violated.30
Thus, it may be argued that since the instant petition is one for review
on certiorari under Rule 45 of the Rules of Court, not under Rule 65, and was not filed
by the OSG representing the interest of the Republic, the same should be summarily
dismissed. The unique and special circumstances attendant in the instant petition,
however, justify an adjudication by the Court on the merits and not solely on
technical grounds.
First of all, the Court stresses that the appellate court's dismissal of the case is not an
acquittal of respondent. Basic is the rule that a dismissal of a case is different from an
acquittal of the accused therein. Except in a dismissal based on a Demurrer to
Evidence filed by the accused, or for violation of the right of the accused to a speedy
trial, the dismissal of a criminal case against the accused will not result in his
acquittal.31 In the oft-cited People v. Salico,32 the Court explained:
This argument or reasoning is predicated on a confusion of the legal concepts of
dismissal and acquittal. Acquittal is always based on the merits, that is, the
defendant is acquitted because the evidence does not show that defendant's guilt
is beyond a reasonable doubt; but dismissal does tint decide the case on the merits
or that the defendant is not gniity. Dismissal terminates the proceeding, either
because the court is not a court of competent jurisdiction, or the evidence does noi
show that the offense was committed within the territorial jurisdiction of the
court, or the complaint or information is not valid or sufficient in form and
substance, etc. The only case in which the word dismissal is commonly but not
correctly used, instead of the proper term acquittal, is when, after the prosecution
has presented all its: evidence, the defendant moves for me dismissal and the court
dismisses the ease on the ground that the evidence tails to show beyond a reasonable
doubt thai the defendant is guilty; for in such case the dismissal is in reality an
acquittal because the case is decided on the merits. If the prosecution fails to prove
that the offense was committed within the territorial jurisdiction of the court and
the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so
the defendant could not be again prosecuted before the court of competent
jurisdiction; and it is elemental that in such case, the defendant may again be
prosecuted for the same offense before a court of competent
jurisdiction.33ChanRoblesVirtualawlibrary
Thus, when the appellate court herein dismissed the instant case on the ground that
the MeTC lacked jurisdiction over the offense charged, it did not decide the same on
the merits, let alone resolve the issue of respondent's guilt or innocence based on the
evidence proffered by the prosecution.34 The appellate court merely dismissed the
case on the erroneous reasoning that none of the elements of BP 22 was committed
within the lower court's jurisdiction, and not because of any finding that the
evidence failed to show respondent's guilt beyond reasonable doubt. Clearly,
therefore, such dismissal did not operate as an acquittal, which, as previously
discussed, may be repudiated only by a petition for certiorari under Rule 65 of the
Rules of Court, showing a grave abuse of discretion.
Thus, petitioner's resort to Rule 45 of the Rules of Court cannot be struck down as
improper. In a petition for review on certiorari under Rule 45, the parties raise only
questions of law because the Court, in its exercise of its power of review, is not a
trier of facts. There is a question of law when the doubt or difference arises as to
what the law is on certain state of facts and which does not call for an existence of
the probative value of the evidence presented by the parties-litigants.35 In De Vera v.
Spouses Santiago,36 the Court categorically ruled that the issue of whether the
appellate court erred in annulling the RTC Decision for lack of jurisdiction is a
question of law, to wit:
Undeniably, the issue whether the CA erred in annulling the RTC Decision for
lack of jurisdiction is a question of law. The resolution of such issue rests solely
on what the law [B.P. Blg. 129, as amended] provides on the given set of
circumstances as alleged in petitioners' complaint for reconveyance of ownership
and possession with damages.37ChanRoblesVirtualawlibrary
In the instant case; the lone issue invoked by petitioner is precisely "whether the
Court of Appeals erred when it ruled that the Metropolitan Trial Court of Makati
City did not have jurisdiction over the case despite clear showing that the offense
was committed within the jurisdiction of said court." Evidently, therefore, the instant
petition was filed within the bounds of our procedural rules for the issue herein rests
solely on what the law provides on the given set of circumstances insofar as the
commission of the crime of BP 22 is concerned. In criminal cases, the jurisdiction of
the court is determined by the averments of the complaint or Information, in relation
to the law prevailing at the time of the filing of the complaint or Information, and the
penalty provided by law for the crime charged at the time of its commission.38 Thus,
when a case involves a proper interpretation of the rules and jurisprudence with
respect to the jurisdiction of courts to entertain complaints filed therewith, it deals
with a question of law that can be properly brought to this Court under Rule 45.39
More importantly, moreover, since the dismissal of the instant case cannot be
considered as an acquittal of respondent herein, he cannot likewise claim that his
constitutional right to protection against double jeopardy will be violated. In Paulin
v. Hon. Gimenez,40 the Court held:
Jurisprudence on double jeopardy as well as the exceptions thereto which finds
application to the case at bar has been laid down by this Court as follows:
. . . However, an appeal by the prosecution from the order of dismissal (of the
criminal case) by the trial court shall not constitute double jeopardy if (1) the
dismissal is made upon motion, or with the express consent of the defendant; (2)
the dismissal is not an acquittal or based upon consideration of the evidence or of
the merits of the case; and (3) the question to be passed upon by the appellate
court is purely legal so that should the dismissal he found incorrect, the case
would have to be remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant.41ChanRoblesVirtualawlibrary
A cursory review of the records would readily reveal the presence of the foregoing
requisites. First, as early as the stage of respondent's appeal of the MeTC's decision
to the RTC, respondent had already been moving for the dismissal of the case
alleging the ground of lack of jurisdiction. Accordingly, the CA's dismissal on said
ground can rightly be considered to have been with respondent's express
consent. Second, as earlier mentioned, the dismissal herein is not an acquittal or
based upon a consideration of the merits. Third, the question raised in this case is
based purely on a question of law. In view therefore of the presence of all three
requisites, the Court finds that petitioner's appeal of the appellate court's dismissal
cannot be barred by double jeopardy.
As to the issue of petitioner's legal standing to file the instant petition in the absence
of the OSG's participation, the circumstances herein warrant the Court's
consideration. In Narciso v. Sta. Romana-Cruz,42 the Court gave due regard to the ends
of substantial justice by giving due course to a petition filed before it by the private
offended party, viz.:
Citing the "ends of substantial justice," People v. Calo, however, provided an
exception to the above doctrines in this manner:
While the rule is, as held by the Court of Appeals, only the Solicitor General may
bring or defend actions on behalf of the Republic of the Philippines, or represent the
People or the State in criminal proceedings pending in this Court and the Court of
Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial
justice would be better served, and the issues in this action could be determined
in a more just, speedy and inexpensive manner, by entertaining the petition at bar.
As an offended party in a criminal case, private petitioner has sufficient
personality and a valid grievance against Judge Adao's order granting bail to the
alleged murderers of his (private petitioner's) father.
xxxx
The ends of substantial justice indeed require the affirmation of the appellate
court's ruling on this point. Clearly, the assailed Order of Judge Santiago was
issued in grave abuse of discretion amounting to lack of jurisdiction. A void order
is no order at all. It cannot confer any right or be the source of any relief. This Court
is not merely a court of law; it is likewise a court of justice.
To rule otherwise would leave the private respondent without any recourse to
rectify the public injustice brought about by the trial court's Order, leaving her
with only the standing to file administrative charges for ignorance of the law
against the judge and the prosecutor. A party cannot be left without recourse to
address a substantive issue in law.43ChanRoblesVirtualawlibrary
In a similar manner, the Court finds that in the interest of substantial justice, it must
give due course to the instant petition and consequently rule on the merits of the
same. The circumstances surrounding this case left petitioner with no other suitable
recourse but to appeal the case herself. Not only was there an absence of support
from the OSG, said government office also took a position in contrast to the rights
and interests of petitioner. Moreover, as discussed above, the arguments which ran
counter to petitioner's interest as well as the grounds used to support them were
simply inapplicable to the issue at hand. In fact, these erroneous contentions were
adopted by the appellate court in their entirety, dismissing the instant case in a
manner not in accord with law and applicable jurisprudence. For the Court, now, to
apply procedural rules in their strict and literal sense by similarly dismissing, as the
CA had, petitioner's action poses serious consequences tantamount to a miscarriage
of justice. To rule that the accused can postpone criminal prosecution and delay the
administration of justice at petitioner's expense on the erroneous ground of lack of
jurisdiction would create a hazardous precedent and open loopholes in our criminal
justice system.44
Indeed, the unique and exceptional circumstances in the instant case demand that
the Court forego a rigid application of the technicalities under
the law so as to prevent petitioner from suffering a grave injustice. As disclosed by

the records, petitioner had already fulfilled her end of the agreement in giving
respondent, as early as in the year 2003, construction materials amounting to half a
million pesos and yet up until now, she has not been paid therefor. In feet, after
having sufficiently proven to the satisfaction of both the MeTC and the RTC her
right allegedly violated by respondent, the CA simply dismissed, albeit without
prejudice to the re-filing of the case with the appropriate court, her action for the
incorrect ground of wrong venue. On the mistaken reasoning that the MeTC of
Makati City did not have jurisdiction over the instant case, the CA, without
providing any legal or jurisprudential basis, would have petitioner start from the
very beginning and refile her complaint before the same court which already had
jurisdiction in the first place.
Thus, when there exists meritorious grounds to overlook strict procedural matters,
the Court cannot turn a blind eye thereto lest the administration of justice be
derailed by an overly stringent application of the rules.45 Rules of procedure are
meant to be tools to facilitate a fair and orderly conduct of proceedings. Strict
adherence thereto must not get in the way of achieving substantial justice. As long as
their purpose is sufficiently met and no violation of due process and fair play takes
place, the rules should be liberally construed.46 Dismissal of appeals purely on
technical grounds is frowned upon where the policy of the court is to encourage
hearings of appeals on their merits and the rules of procedure ought not to be
applied in a very rigid, technical sense; rules of procedure are used only to help
secure, not override substantial justice. It is a far better and more prudent course of
action for the court to excuse a technical lapse and afford the parties a review of the
case on appeal to attain the ends of justice rather than dispose of the case on
technicality and cause a grave injustice to the parties, giving a false impression of
speedy disposal of cases while actually resulting in more delay, if not a miscarriage
of justice.47
WHEREFORE, premises considered, the instant petition is GRANTED. The
Decision dated January 18, 2011 and Resolution dated August 9, 2011 of the Court
Appeals in CA-G.R. CR No. 32723 are REVERSED and SET ASIDE. The Decision
dated February 23, 2009 and Order dated July 13, 2009, of the Regional Trial Court in
Criminal Case Nos. 08-1876-77, which affirmed the Joint Decision dated September
3, 2008 of the Metropolitan Trial Court in Criminal Case Nos. 337902-03 are
hereby REINSTATED.
PEOPLE OF THE PHILIPPINES, Plaintiffs-Appellees, v. MARISSA

BAYKER, Accused-Appellant.
DECISION
BERSAMIN, J.:
An illegal recruiter can be liable for the crimes of illegal recruitment committed in
large scale and estafa without risk of being put in double jeopardy, provided that the
accused has been so charged under separate informations.
The Case
The accused-appellant assails the decision promulgated on July 28, 2005,1 whereby
the Court of Appeals (CA) affirmed her conviction for illegal recruitment
and estafa, as follows:
WHEREFORE, for lack of merit, the petition is DISMISSED and the Joint Decision
dated August 27, 2002 of the Regional Trial Court, Branch 138 of Makati City
is AFFIRMED with MODIFICATIONS. In Criminal Case No. 01-1780 for Illegal
Recruitment, the fine imposed is hereby REDUCED to P100,000.00 and in Criminal
Case No. 01-1781 for Estafa, appellant is sentenced to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional as minimum to
nine (9) years of prision mayor as maximum.
Antecedents
The Office of the City Prosecutor of Makati filed in the Regional Trial Court (RTC) in
Makati the following amended informations against the accused-appellant and her
two co-accused, namely: Nida Bermudez and Lorenz Langreo, alleging thusly:
Criminal Case No. 01-1780
Illegal Recruitment
That in or about during the month of January, 2001 up to the 23r day of July, 2001, in
the City of Makati, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping and aiding one another, and who have no authority to recruit
workers for overseas employment, did then and there willfully, unlawfully and
feloniously promise and recruit complainants, Basilio T. Miparanum, Virgilio T.
Caniazares and Reynaldo E. Dahab, overseas job abroad and in consideration of said
promise, said complainants paid and delivered to accused the amount
of P52,000.00, P10,000.00 and P5,000.00, respectively as processing fees of their
papers, but on the promise[d] dates of departure, accused failed to send the
complainants abroad and despite demands to reimburse or return the amount
of P52,000.00, P10,000.00 and P5,000.00 which complainants paid as processing fees,
accused did then and there refuse and fail to reimburse or return to complainants the
aforesaid amounts of P52,000.00, P10,000.00 and P5,000.00.
CONTRARY TO LAW.3
Criminal Case No. 01-1781
Estafa
That on or about the 9th day of April, 2001 up to July 23, 2001, in the City of Makati,
Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually helping and
aiding one another, by means of false pretense and fraudulent misrepresentations,
defrauded Basilio T. Miparanum by previous of [sic] simultaneous act, that is; By
pretending to possess power, influence, qualification authority, transactions or
capacity to recruit and deploy said Basilio T. Miparanum for overseas job, which
representations or manifestations the accused knew to be false and fraudulent as
they have no authorities to recruit from the POEA and they have no principal
employer and was merely intended to convince Basilio T. Miparanum to part his
money in the amount of P52,000.00, in consideration thereof, as in fact complainant
Basilio T. Miparanum paid the said amount to the accused relying on such false
manifestation and/or representations to the damage and prejudice of complainant
Basilio T. Miparanum in the aforesaid amount of P52,000.00.
CONTRARY TO LAW.4ChanRoblesVirtualawlibrary
Only the accused-appellant and Langreo were arrested because Bermudez, who
eluded arrest, continues to remain at large. However, the trial proceeded only
against the accused-appellant because of the lack of notification of subsequent
proceedings to Langreo.5
The State presented four witnesses, namely: Virgilio Caniazares, Reynaldo Dahab,
Basilio Miparanum and PO3 Raul Bolido.
Caniazares testified that he and Dahab had met the accused-appellant at the house of
a friend in Makati City in January 2001, and she had then represented herself to be
recruiting workers for overseas employment, probably as hotel porters in
Canada;6 that on January 27, 2001, he had gone to her residence in Pembo, Makati
City to pay P4,000.00 for his medical examination, and she had then accompanied
him to the Medical Center in Ermita, Manila for that purpose;7 that on March 30,
2001, she had gone to his house to inform him that he would be deployed as a
seaman instead but that he had to pay P6,000.00 more; that he had paid the P6,000.00
to her, for which she had issued a receipt; that two weeks thereafter, she had called
him about his deployment on April 21, 2001; that on the promised date, he had gone
to her office at GNB Marketing in Makati but no one was around; that he had then
proceeded to her house, and she had then told him that his seaman's application
would not push through; that the two of them had then proceeded to her office
bringing all his certificates of employment, and that it was there that she had
introduced him to her manager, the accused Bermudez, who promised his
deployment in Hongkong within two weeks; that because he had not been deployed
as promised, he had gone to the Philippine Overseas Employment Administration
(POEA), where he had learned that the accused, Bermudez and Langreo, had not
been issued the license to recruit and place people overseas; and that he had then
decided to charge them all with illegal recruitment and estafa in the Philippine
National Police Crime Investigation and Detection Group (PNP-CIDG) in Camp
Crame, Quezon City.8
Dahab declared that on January 27, 2001, he had met the accused-appellant at the
Guadalupe Branch of Jollibee to pay P2,500.00 for his medical examination; that a
week later, he had undergone the three-day training in Mandaluyong City, for
which he paid P2,500.00; that she had then demanded from him the placement fee of
P25,000.00; and that after he had not been able to raise the amount, he never saw her
again; and that Caniazares soon called him to urge that he should complain against
the accused in the PNP-CIDG.9
According to Miparanum, he met the accused-appellant through Caniazares, who

was his cousin. Caniazares arrived at his house with her in tow in order to borrow
money for his placement fee. On that occasion, she told Miparanum that she could
help him find work abroad and even leave ahead of Caniazares if he had the money.
Convinced, Miparanum went to her residence on April 11, 2001 to apply as a
seaman. On April 17, 2001, he delivered to her P6,000.00 for his seaman's book. She
again asked an additional P6,000.00 for the seaman's book, and P40,000.00 as the
placement fee. On April 20, 2001, Miparanum went to her office where he met
Bermudez. There, he handed the P46,000.00 to the accused-appellant but it was
Bermudez who issued the corresponding receipt. The accused-appellant and
Bermudez told him to wait for his deployment to Hongkong as an ordinary seaman
within two weeks. Miparanum followed up on his application after two weeks, but
was instead made to undergo training, and he paid P2,700.00 for his certificate.
Sensing that he was being defrauded, Miparanum later proceeded to file his
complaint at the PNP-CIDG.10
PO3 Raul Bolido of the PNP-CIDG recalled that in July, 2001, the complainants went
to Camp Crame to file their complaints against the accused-appellant, Bermudez and
Langreo. PO3 Bolido, along with SPO4 Pedro Velasco and Team Leader Police
Inspector Romualdo Iringan, conducted an entrapment operation against the
accused. They prepared 10 marked PI00 bills dusted with ultraviolet powder and
gave the same to Miparanum. On July 23, 2001, the entrapment team proceeded with
Miparanum to Jollibce-Guadalupe where Miparanum was to meet the accused-
appellant. The team immediately arrested her upon her receiving the marked bills.
The PNP Crime Laboratory conducted its examination for traces of ultraviolet
powder on her person, and the results of the examination were positive for the
presence of ultraviolet powder.11
In contrast, the accused-appellant pointed to Langreo and Bermudez who had

operated GNB Marketing Agency. She claimed to have met Miparanum at Jollibee-
Guadalupe only for the purpose of bringing him to Bermudez. She refused to receive
the money being handed to her by Miparanum because she did not demand for it,
but the four policemen suddenly arrested her, and one of them rubbed his arm
against her forearm.12
The accused-appellant presented two witnesses, namely: Adelaida Castel and Edith
dela Cruz. Castel testified that she had known the accused-appellant for almost five
years; that being then present during the meeting between the accused-appellant
and Caniazares she did not hear the accused-appellant representing herself as a
legitimate recruiter to the latter; that she had been present when Miparanum
delivered the P40,000.00 to Bermudez; and that prior to the entrapment of the
accused-appellant, Caniazares had called their house three times to ask the accused-
appellant to accompany him to the house of Bermudez.13 On her part, dela Cruz
attested that she had known the accused-appellant since March, 2001 because they
had worked together in a handicraft factory; that she did not know if the accused-
appellant had been a recruiter; that it was Langreo who had been the recruiter
because he had recruited her own daughter; and that she did not know anything
about the transactions between the accused-appellant and the complaining
witnesses.14
Subsequently, Dahab recanted his testimony, and stated that he had only requested
assistance from the accused-appellant regarding his medical examination. He
insisted that he had voluntarily paid P5,000.00 to her, and she had then paid the
amount to the Medical Center for his medical examination.15
Ruling of the RTC
On August 27, 2002, the RTC rendered its ruling, disposing:

WHEREFORE, judgment is rendered as follows -
a) In Criminal Case No. 01-1780 the Court finds the evidence of the Prosecution
sufficient to establish the guilt of Marissa Bayker beyond reasonable doubt for
having violated Section 6(m) of Republic Act No. 8042 (The Migrant Workers and
Overseas Filipino Act of 1995) and applying Section 7 of the same Act, which directs
imposition of the maximum penalty if the offender is a non-licensee or non-holder of
authority, she is sentenced to suffer the penalty of life imprisonment and to pay a
fine of One Million Pesos. She is further ordered to indemnify Virgilio Caniazarcs of
P6,000.00, Reynaldo Dahab P2,500.00 and Basilio Miparanum of P12,000.00.
b) In Criminal Case No. 01-1781, the Court finds the evidence of the Prosecution
sufficient to establish the guilt of Marissa Bayker beyond reasonable doubt for the
crime of estafa defined and penalized under Article 315 2(a) of the Revised Penal
Code and she is sentenced to suffer the penalty of imprisonment for FOUR (4)
YEARS, NINE (9) MONTHS and ELEVEN (11) DAYS of prision correccional to
NINE (9)YEARS of prision mayor. She is further ordered to pay Basilio Miparanum
P40,000.00.
xxxx
Judgment of the CA
On July 28, 2005, the CA affirmed the convictions of the accused-appellant by the
RTC,17viz.:
WHEREFORE, for lack of merit, the petition is DISMISSED and the Joint decision
dated august 27, 2002 of the Regional Trial Court, Branch 138 of Makati City
is AFFIRMED with MODIFICATIONS. In Criminal Case No. 01-1780 for Illegal
Recruitment, the fine imposed is hereby REDUCED to P100,000.00 and in Criminal
Case No. 01-1781 for Estafa, appellant is sentenced to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional as minimum to
nine (9) years of prision mayor as maximum.
SO ORDERED.
The CA opined that the Prosecution had established the elements of illegal
recruitment in large scale by proving that the accused-appellant lacked the authority
or license to engage in recruitment and placement,18 and had promised the
complainants employment abroad and had then received money from them;19 and
that the Prosecution had also established the estafa by showing that she had
misrepresented to Miparanum about her power and authority to deploy him for
overseas employment, thereby inducing him to part with his money.
Hence, this appeal.

Issues
The accused-appellant assigns the following errors to the CA, to wit:

I
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED DESPITE THE
PATENT WEAKNESS OF THE PROSECUTION'S DEFENSE
II
THE LOWER COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE

DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT
III
THE LOWER COURT ERRED IN NOT GIVING WEIGHT AND CREDENCE TO

THE RETRACTIONS MADE BY COMPLAINANT REYNALDO DAHAB20
The accused-appellant insists on her innocence, and points to Langreo and

Bermudez as the persons who had directly engaged in illegal recruitment. She
argues that her participation had been limited to signing the receipts as a witness,
and to receiving payments for the medical examinations;21 that the CA and the RTC
had disregarded the recantation by Dahab; and that had the evidence been limited to
the testimonies of Caniazares and Miparanum, she would have only been liable for
simple illegal recruitment.22
Did the CA correctly affirm the conviction of the accused-appellant for the crimes of
illegal recruitment in large scale and estafa?
Ruling of the Court
We affirm the assailed judgment of the CA.

I
Illegal Recruitment Committed in Large Scale
Illegal recruitment is committed by a person who: (a) undertakes any recruitment

activity defined under Article 13(b) or any prohibited practice enumerated under
Article 34 and Article 38 of the Labor Code; and (b) does not have a license or
authority to lawfully engage in the recruitment and placement of workers.23 It is
committed in large scale when it is committed against three or more persons
individually or as a group.24
The CA properly affirmed the conviction of the accused-appellant by the RTC for
illegal recruitment committed in large scale because she had committed acts of
recruitment against at least three persons (namely: Canizares, Dahab, and
Miparanum) despite her not having been duly licensed or authorized by the
Philippine Overseas Employment Administration (POEA) for that purpose.
The accused-appellant's insistence on her very limited participation in the

recruitment of the complainants did not advance or help her cause any because the
State established her having personally promised foreign employment either as hotel
porters or seafarers to the complainants despite her having no license or authority to
recruit from the POEA. The records made it clear enough that her participation was
anything but limited, for she herself had accompanied them to their respective
medical examinations at their own expense. In addition, she herself brought them to
GNB Marketing and introduced them to her co-accused. In this regard, the CA
pointedly observed:
The evidence established that without any license or authority to do so, appellant
promised private complainants overseas employment in regard to which she
required them to undergo medical examination and training and collected fees or
payments from them, while repeatedly assuring that they would be deployed
abroad. On appellant's contention that it was Nida Bermudez and Lorenz Langreo
who received money from the complainants, even assuming arguendo that appellant
never received any payment from the complainants, actual receipt of a fee is not an
essential element of the crime of Illegal Recruitment, but is only one of the modes for
the commission thereof. Besides, all the private complainants positively identified
appellant as the person who recruited them and exacted money from them.
Appellant's bare denials and self-serving assertions cannot prevail over the positive
testimonies of the complainants who had no ill motive to testify falsely against her.25
The accused-appellant's denial of her participation in the illegal recruitment

activities of Bermudez and Langreo did not gain traction from her charging her co-
accused with the sole responsibility for the illegal recruitment of the complainants.
Based on the testimonial narration of the complainants regarding their recruitment,
she was unqualifiedly depicted as having the primary and instrumental role in
recruiting them for overseas placement from the inception. Also, her claim of having
been only casually associated with GNB Marketing did not preclude her criminal
liability for the crimes charged and proved. Even the mere employee of a company
or corporation engaged in illegal recruitment could be held liable, along with the
employer, as a principal in illegal recruitment once it was shown that he had actively
and consciously participated in illegal recruitment.26 This is because recruitment and
placement include any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring workers, as well as referrals, contract services,
promising or advertising for employment, locally or abroad, whether for profit or
not.
The accused-appellant protests that the RTC and the CA unreasonably disregarded
Dahab's recantation; and that the recantation would render her liable only for simple
illegal recruitment instead of illegal recruitment committed in large scale.
The protest of the accused-appellant is untenable.
Dahab's supposed recantation to the effect that he had only sought the assistance of
the accused-appellant for his medical examination by no means weakened or
diminished the Prosecution's case against her. Its being made after he had lodged his
complaint against her with the PNP-CIDG (in which he supplied the details of his
transactions with her) and after he had testified against her in court directly
incriminating her rendered it immediately suspect. It should not be more weighty
than his first testimony against her which that was replete with details. Its being the
later testimony of the Dahab did not necessarily cancel his first testimony on account
of the possibility of its being obtained by coercion, intimidation, fraud, or other
means to distort or bend the truth.
Recantation by a witness is nothing new, for it is a frequent occurrence in criminal

proceedings. As a general rule, it is not well regarded by the courts due to its nature
as the mere afterthought of the witness. To be given any value or weight, it should
still be subjected to the same tests for credibility in addition to its being subject of the
rule that it be received with caution.27 The criminal proceedings in which sworn
testimony has been given by the recanting witness would be rendered a mockery,
and put at the mercy of the unscrupulous witness if such testimony could be easily
negated by the witness's subsequent inconsistent declaration. The result is to leave
without value not only the sanctity of the oath taken but also the solemn rituals and
safeguards of the judicial trial. If only for emphasis, we reiterate that it is "a
dangerous rule to reject the testimony taken before the court of justice simply
because the witness who has given it later on changed his mind for one reason or
another, for such a rule will make a solemn trial a mockery and place the
investigation at the mercy of unscrupulous witnesses."28
II
Estafa
The conviction of the accused-appellant for illegal recruitment committed in large

scale did not preclude her personal liability for estafa under Article 315(2)(a) of
the Revised Penal Code on the ground of subjecting her to double jeopardy. The
elements of estafa as charged are, namely: (1) the accused defrauded another by
abuse of confidence or by means of deceit; and (2) the offended party, or a third
party suffered damage or prejudice capable of pecuniary estimation.29 In contrast,
the crime of illegal recruitment committed in large scale, as indicated earlier,
requires different elements. Double jeopardy could not result from prosecuting and
convicting the accused-appellant for both crimes considering that they were entirely
distinct from each other not only from their being punished under different statutes
but also from their elements being different.
The active representation by the accused-appellant of having the capacity to deploy

Miparanum abroad despite not having the authority or license to do so from the
POEA constituted deceit as the first element of estafa. Her representation induced
the victim to part with his money, resulting in damage that is the second element of
the estafa. Considering that the damage resulted from the deceit, the CA's affirmance
of her guilt for estafa as charged was in order.
III
Penalties
The penalty for illegal recruitment committed in large scale, pursuant to Section
7(b)30 of Republic Act No. 8042 (Migrant Workers' Act), is life imprisonment and a
fine of not less than P500,000.00 nor more than P1,000,000.00. In light of the
provision of the law, the CA patently erred in reducing the fine to P100,000.00.
Hence, we hereby increase the fine to P500,000.00.
Article 315 of the Revised Penal Code provides:

Article 315 Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years, in such case, and in connection with the accessory penalties which
may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be.
xxxx
Inasmuch as the prescribed penalty is prision correccional in its maximum period

to prision mayor in its minimum period, plus one year for each additional P10,000.00
over P22,000.00, provided that the total penalty shall not exceed 20 years, the penalty
to be imposed on the accused-appellant should depend on the amount defrauded.
We note that the RTC took into consideration only the sum of P40,000.00, and the CA
concurred with the RTC thereon. Yet, the records reveal that Miparanum paid to the
accused-appellant and her co-accused not only P40,000.00 but the aggregate sum of
P54/700.00 (i.e., the P6,000.00 for the seaman's book, the additional P6,000.00 for the
seaman's book, the P40,000.00 for placement fee, and P2,700 for his training
certificate). The amount of P54,700.00 is the determinant of the penalty to be
imposed.
Pursuant to Article 315 of the Revised Penal Code, the penalty prescribed for estafa in
which the amount of the fraud is over P12,000.00 but does not exceed P22,000.00
is prision correctional in its maximum period to prision mayor in its minimum period
(i.e., four years, two months and one day to eight years); if the amount of the fraud
exceeds P22,000.00, the penalty thus prescribed shall be imposed in its maximum
period, and one year shall be added for each additional P10,000.00 provided the total
penalty imposed shall not exceed 20 years. Considering that the penalty does not
consist of three periods, the prescribed penalty is divided into three equal portions,
and each portion shall form a period,31 with the maximum period being then
imposed.32 However, the floor of the maximum period - six years, eight months and
21 days - is fixed in the absence of any aggravating circumstance, or of any showing
of the greater extent of the evil produced by the crime,33 to which is then added the
incremental penalty of one year for every P10,000.00 in excess of P22,000.00, or three
years in all.34 The resulting total penalty is nine years, eight months and 21 days
of prision mayor, which shall be the maximum of the indeterminate sentence.
The minimum of the indeterminate sentence is taken from prision correctional in its
minimum period to prision correctional in its medium period (i.e., six months and one
day to four years and two months), the penalty next lower to that prescribed by
Article 315 of the Revised Penal Code. We note that the CA correctly fixed the
minimum of the indeterminate sentence at four years and two months of prision
correctional.
In view of the foregoing, the indeterminate sentence for the accused-appellant is
from four years and two months of prision correctional, as the minimum, to nine
years, eight months and 21 days of prision mayor.
IV
Civil Liabilities
The civil liabilities as decreed by the RTC and upheld by the CA are also corrected to
reflect the actual aggregate amount to be restituted to Miparanum at P54,700.00. In
addition, the accused-appellant shall be obliged to pay interest of 6% per annum on
the respective sums due to each of the complainants, to be reckoned from the finality
of this decision until full payment considering that the amount to be restituted
became determinate only through this adjudication.chanrobleslaw
WHEREFORE, the Court AFFIRMS the decision promulgated on July 28, 2005
subject to the following MODIFICATIONS, to wit:
1. In Criminal Case No. 01-1780, for illegal recruitment committed in
large scale, the penalty of life imprisonment and fine of P500,000.00 is
imposed on the accused- appellant;
2. In Criminal Case No. 01-1781, for estafa, the accused- appellant is
sentenced to suffer the indeterminate penalty of four years and two
months of prision correccional, as the minimum, to nine years, eight
months and 21 days of prision mayor, as the maximum;
3. The accused-appellant shall indemnify complainants Virigilio
Caniazares, Reynaldo Dahab and Basilio Miparanum in the respective
amounts of P6,000.00, P2,500.00, and P54,700.00 plus interest of 6% per
annum from the finality of this decision until full payment; and
4. The accused-appellant shall pay the costs of suit.
SO ORDERED.

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Facts:

When the names of the parents of a foundling cannot be discovered despite a

Senator Mary Grace Poe-Llamanzares (Senator Poe) is a foundling whose biological

On April 4, 1988, the Department of Foreign Affairs issued her a Philippine

November 1, 2006 SQ071

July 20, 2007 PR730

October 31, 2007 PR300

October 2, 2008 PR358

April 20, 2009 PR104

July 31, 2009 PR730

October 19, 2009 PR102

November 15, 2009 PR103

March 27, 2010 PR102

Arrivals Flight No.

November 4, 2006 SQ076

July 23, 2007 PR731

November 5, 2007 PR337

May 8, 2008 PR103

October 5, 2008 PR359

May 21, 2009 PR105

August 3, 2009 PR733

November 15, 2009 PR10361

chanRoblesvirtualLawlibraryI, MARY GRACE POE-LLAMANZARES, Filipino, of

Ako, si MARY GRACE POE LLAMANZARES, na itinalaga sa katungkulan

Kasihan nawa ako ng Diyos.

NILAGDAAN AT PINANUMPAAN sa harap ko ngayong ika-21 ng Oktubre 2010,

In light of our earlier pronouncement that Respondent is a natural-born Filipino

WHEREFORE, in view of the foregoing, the petition for quo warranto is

SO ORDERED.100 (Citations omitted)

Senator Poe filed her Comment/Opposition to the Motion for Reconsideration on

The Tribunal further resolves to CONFIRM Resolution No. 15-11 dated 24

SO ORDERED.105 (Emphasis in the original)

All constitutional provisionsunder the 1935 and 1987 Constitutionswhich

In Lazatin v. House Electoral Tribunal:118

A glaring misinterpretation of the constitutional text or of statutory provisions, as

At the heart of this controversy is a constitutional ambiguity. Definitely, foundlings

Discerning constitutional meaning is an exercise in discovering the sovereign's

The entire exercise of interpreting a constitutional provision must necessarily begin

Even as ordinary meaning is preeminent, a realistic appreciation of legal

Limited resort to contemporaneous construction is justified by the realization that

In the hierarchy of the means for constitutional interpretation, inferring meaning

(2) Those whose fathers or mothers are citizens of the Philippines;

(4) Those who are naturalized in accordance with law.150

Citizenship is a legal device denoting political affiliation. It is the "right to have

Tecson v. Commission on Elections154 reckoned with the historical development of our

(c) Foreigners who have obtained naturalization papers,

(3) Those whose fathers are citizens of the Philippines.

(5) Those who are naturalized in accordance with law.

(2) Those whose fathers or mothers are citizens of the Philippines.

(4) Those who are naturalized in accordance with law.

Article IV, Section 1 of the 1987 Constitution now reads:ChanRoblesVirtualawlibrary

(2) Those whose fathers or mothers are citizens of the Philippines;

(4) Those who are naturalized in accordance with law.174

One who desires to acquire Filipino citizenship by naturalization is generally

Therefore, petitioner's restrictive reliance on Section 1 and the need to establish

She did not.

At most, there have been suggestions likening a preferential approach to foundlings,

Natural-born citizenship is not concerned with being a human thoroughbred.

Section 2 defines "natural-born citizens." Section 1(2) stipulates that to be a citizen,

Section 1(2) requires citizenship, not identity. A conclusion of Filipino citizenship

Proving private respondent's biological parentage is now practically impossible. To

In lieu of direct evidence, facts may be proven through circumstantial evidence.

chanRoblesvirtualLawlibrary(a) There is more than one circumstances;