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Republic of the Philippines cases of invasion, insurrection, or rebellion, when the public safety requires

SUPREME COURT it, in any of which events the same may be suspended whenever during such
Manila period the necessity for such suspension shall exist. The power to suspend
the privileges of the writ of habeas corpus in case of invasion, insurrection, or
EN BANC rebellion, or imminent danger thereof, when the public safety requires it, has
been lodged by the Constitution (Article VII, Section 10, Paragraph 2) in the
President.
G.R. No. L-4855 October 11, 1951

On January 31, 1905, for the first time in Philippine history, the writ of habeas
JOSE M. NAVA ET AL., petitioners,
corpus was suspended in the provinces of Batangas and Cavite under the
vs.
HON. MAGNO GATMAITAN, ETC., respondent. following Executive Order issued by governor General Luke E. Wright:

x---------------------------------------------------------x WHEREAS, certain organized bands of ladrones exist in the


Provinces of Cavite and Batangas who are levying forced
contributions upon the people, who frequently require them, under
G.R. No. L-4964 October 11, 1951 compulsion, to join their bands, and who kill or maim the most
barbarous manner those who fail to respond to their unlawful
AMADO V. HERNANDEZ, petitioner, demands, and are therefore terrifying the law-abiding and inoffensive
vs. people of those provinces; and
HON, AGUSTIN P.MONTESA, ETC., respondent.
WHEREAS, these bands have in several instances attacked police
x---------------------------------------------------------x and constabulary detachments, and are in open insurrection against
the constituted authorities, and it is believed that the said bands have
G.R. No. L-5102 October 11, 1951 numerous agents and confederates living within the municipalities of
said provinces; and
EUGENIO ANGELES, ETC., petitioner,
vs. WHEREAS, because of the foregoing conditions there exists a state
HON. GAVINO S.ABAYA, ETC., respondent. of insecurity and terrorism among the people which makes it
impossible in the ordinary way to conduct preliminary investigations
Laurel, Sabido, Almario and Laurel, Antonio Barredo and Enrique Fernando before the justices of the peace and other judicial officers:
for petitioner Amado V. Hernandez.
Office of the Solicitor General Pompeyo Diaz, Solicitor Felix Makasiar and In the interest of public safety, it is hereby ordered that the writ
Solicitor Matriniano P. Vivo for respondent Judges Montesa and Gatmaitan. of habeas corpus is from this date suspended in the Provinces of
City fiscal Eugenio Angeles, in his own behalf. Cavite and Batangas.
Vicente A. Rafael and Macario L. Nicolas for the respondents in case L-5102
except the respondent judge. On October 22, 1950, for the second time in the Philippine history, the
Judge Gavino S. Abaya in his own behalf. suspension of the privilege of the writ of habeas corpus was decreed by
Abeto and Soriano and Fermin Z. Caram, Jr. for the petitioners in case L- virtue of the following Proclamation No. 210 issued by the President:
4855.
Claro M. Recto, Jose P. Laurel, and fred Ruiz castro as amici curaie. WHEREAS, lawless elements of the country have committed overt
acts of sedition, insurrection and rebellion for the purpose of
PARAS, C.J.: overthrowing the duly constituted authorities and, in pursuance
thereof, have created a state of lawlessness and disorder affecting
By express mandate of the Constitution (Article III, Section 1, Paragraph 14), public safety and the security of the state;
the privilege of the writ of habeas corpus shall not be suspended except in
WHEREAS, these acts of sedition, insurrection and rebellion suspects, but at an investigation (other than judicial) to determine whether
consisiting of armed raids, sorties and ambushes and the wanton there is evidence sufficient for the filing in court of the necessary information.
acts of murder, rape, spoilage, looting, arson, planned destruction of
public and private buildings, and attacks against civilian lives and The immediate cause for the issuance of Proclamation No. 210 on October
properties, as reported by the Commanding General of the Armed 22, 1950, was the apprehension and detention of 100 alleged leading
Forces, have seriously endangered and still continue to endanger members of lawless elements in whose possession strong and convincing
the public safety; evidence was allegedly found showing that they are engaged in rebellious,
seditious and otherwise subversive acts. The privilege of the writ of habeas
WHEREAS, these acts of sedition, insurrection and rebellion have corpus had to be suspended not only because it was desirable for the
been perpetrated by various groups of persons well organized for prosecuting officials to have sufficient time to investigate and file the
concerted action and well armed with machine guns, rifles, pistols necessary charges in court, but also because a public officer or employee
and other automatic weapons, by reason whereof there is actual who shall detain any person for some legal ground and shall fail to deliver
danger of rebellion which may extend throughout the country; such person to the proper judicial authorities within the period of six hours,
shall suffer the penalties provided in article 125 of the Revised Penal Code.
WHEREAS, 100 leading members of these lawless elements have In other words, the only effect of Proclamation No. 210 is that any person
been apprehended and are presently under detention, and strong detained thereunder has no right to have the cause of his detention
and convincing evidence has been found in their possession to show examined and determined by a court of justice through a writ of habeas
that they are engaged in rebellious, seditiuos and otherwise corpus.
subersive acts as above set forth; and
The important question is whether or not, after a person covered by the
WHEREAS, public safety requires that immediate and effective Proclamation has been formally indicted in court by the filing against him of
action be taken to insure the peace and security of the population an information charging rebellion with multiple murder, arson and robberies,
and to maintain the authority of the government; he may be entitled to bail.

NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Under paragraph 16, Section 1, Areticle II of the Constitution,all persons shall
Philippines, by virtue of the powers vested upon me by Article VII, before conviction be bailable by sufficientsureties, except those charged with
section 10, Paragraph (2) of the Constitution, do hereby suspend the capital offenses when evidence of guilt is strong. The crime of rebellion or
privilege of the writ of habeas corpus for the persons presently insurrection is certainly not a capital offense, because it is penalized only
detained, as well as all others who may be hereafter similarly by prision mayor and a fine not to exceed 20,000pesos. The privilege of the
detained for the crimes of sedition, insurrection or rebellion, and all writ of habeas corpus and the right to bail guaranteed under the Bill of Rights
other crimes and offenses committed by them in furtherance or on are separate and co-equal. If the intention of the framers of the Constitution
the occassion thereof, or incident thereto, or in connection therewith. was that the suspension of the privilege of the writ of habeas corpus carries
or implies the suspension of the right to bail, they would have very easily
The writ of habeas corpus was devised and exists as a speedy and effectual provided that all persons shall before conviction be bailable by sufficient
remedy to relive persons from unlawful restraint, and as the best and only sureties, except those charged with capital offenses when evidence of guilt is
strong and except when the privilege of the writ of habeas corpus is
sufficient defense of personal freedom. (Villavicencio vs, Lukban, 39 Phil.,
suspended. As stated in the case of Ex parte Miligan, 4 Wall. 2, 18 Law Ed.
778,788.) It secures to a prisoner the right to have the cause of his detention
297, the Constitution limited the suspension to only one great right, leaving
examined and determined by a court of justice, and to have ascertained if he
is held under lawful authority. (Quintos vs. Director of Prisons, 55 Phil., 304, the rest to remain forever inviolable.
306.)
It is essential to the safety of every government that, in a great crisis,
The necessity for suspending the writ of habeas corpus in 1905 arose like the one we have just passed through, there should be a power
somewhere of suspending the writ of habeas corpus. In every war,
obviously from the fact that it was "impossible in the ordinary way to conduct
there are men of previously good character, wicked enough to
preliminary investigations before the justice of the peace and other judicial
officers," so that undoubtedly it was never aimed at the indefinite detention of counsel their fellow citizens to resist the measures deemed
necessary by a good government to sustain its just authority and
overthrow its enemies; and their influence may lead to dangerous provisionally at liberty, it would a fortiori imply the suspension of all his other
combinations. In the emergency of the times, an immediate public rights (even the rights to be tried by a court) that may win for him ultimate
investigation according to law may not be possible; and yet, the peril acquittal and, hence, absolute freedom. The latter result is not insisted upon
to the country may be too imminent to suffer such persons to go at for being patently untenable. it is not correct to say that, if a person covered
large. Unquestionably, there is then an exigency which demands that by Proclamation No. 210 is not entitled to be released before he is indicted in
the government, if it should see fit, in the exercise of a proper court, there is more reason to hold that he should not be released after an
discretion, to make arrests, should not be required to produce the information is filed against him, because it is then logical to assume that the
person arrested in answer to a writ of habeas corpus. The Government holds sufficient evidence. If he cannot secure his release before
constitution goes no further. It does not say after a writ of habeas the filing of the information, it is because, in view of the suspension of the
corpus is denied a citizen, that he shall be tried otherwise than by the privilege of the writ of habeas corpus, the court cannot look into the legality of
course of common law. If it had intended this result, it was easy by his detention under an executive act, and not because he is assumed to be
the use of direct words to have accomplished it. The illustrious men guilty. As already stated, after the filing of the information, in granting to bail
who framed that instrument were guarding the foundations of civil in proper cases, the court does not determine the legality of his prior
liberty against the abuses of unlimited power; they were full of detention which has already been superseded by a detention underjudicial
wisdom, and the lessons of history informed them that a trial by an process, but merely proceeds with and carries into effect its jurisdiction over
established court, asisted by an impartial jury, was the only sure way the criminal case and grants a right guaranteed by the Constitution. Besides,
of protecting the citizen against oppression and wrong. Knowing this, it is significant that in all criminal prosecutions the accused shall be
they limited the suspension of one great right, and left the rest to presumed to be innocent (Article III, Section 1, Paragraph 17).
remain forever inviolable.
We are not insensitive to the proposition that the very nature of the crime of
The purpose of the proclamation has already been accomplished inrespect of rebellion suggests the likehood that a person accused thereof will jump his
those who are now facing charges in court, to be dealtwith necessarily in bail. The remedy, however, is unfortunately not in the hands of the court. The
accordance with the constitution and the law.The court, in passing upon lawmakers or the framers of the Constitution should have made the offense
petitions to bail and granting thesame in proper cases, does not inquire into capital or even unbailable.
the cause of their detention which is plainly under and by virtue of
commitmentsissued by the court upon the filing of the information forrebellion In the cases now before us, the accused have been charged with rebellion so
with multiple murder, arson and robberies. The court,therefore, cannot be complexed with other offenses as to make them capital. Their right to bail is
said to be interfering in an act of theExecutive, for it cannot be seriously accordingly not absolute and may be denied when evidence of guilt is strong.
contended that, after thefiling of the information, the accused continues to be The filing of the information implies that the prosecution holds sufficient
underdetention as a result of an executive commitment and stillcovered by evidence for conviction, and it is fair to suppose that the court will duly
the suspension of the privilege of the writ of habeas corpus. otherwise, the exercise its judgment when called upon to pass on the question of whether or
suspension will operate as a judgment of conviction, in violation of the not the evidence of guilt is strong. At any rate, on admission to bail, the
constitutional mandate that no person shall be held to answer for criminal accused is delivered to the custody of his sureties as a continuance of the
offense without due process of law (Article III, section 1, Paragraph 15). "The original detention. (U.S. vs. Sunico and Ng Chiong, 40 Phil. 826).
laws which protect the liberties of the whole people must not be violated or
set aside in order to inflict, even upon the guilty, unauthorized though merited And it should be borne in mind that if the worse comes to the worst — to the
justice." Ex parte Milligan, supra.
extent that the security of the State is in factimperiled and the regular
constitutional processes can no longerbe observed with general safety to the
The right to bail, along with the right of an accused to be heard by himself people, — the President isauthorized by the Constitution (Article VIII, Section
and counsel, to be informed of the nature and cause of the accusation 10,Paragraph 2) to "place the Philippines or any part thereof undermartial
against him, to have a speedy and public trial, to meet the witnesses face to law." Even then, the primordial objective should be a"regime of justice" as
face, and to have compulsory process to secure the attendance of witnesses contemplated in the Preamble of the Constitution. The stubborn fact,
in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends however, is that the meresuspension of the privilege of the writ of habeas
to aid the accused to prove his innocence and obtain acquittal. If it be corpus is anadmission that the courts can function and are
contended that the suspension of the privilege of the writ of habeas functioningnormal; otherwise, there is no need for the suspension as therewill
corpus includes the suspension of the distinct right to bail or to be be no court to grant the writ.
Reyes and Jugo, JJ., concur. The writ of habeas corpus may be had for purpose of letting prisoner
to bail in civil and criminal actions as authorized in Constitution." Ex
PABLO, J.: parte Womack, 71 Pac.2d (Okl. Cr. App. 1937), 494.

En tiempos normales la Constitucion de Filipinas rige en su totalidad. "Remedy of person in custody on criminal charge to secure release
Algunos de los derechos individuales, como el derecho del accusado a la on bail is by habeas corpus." Bennett v. State, 118 So. (Fla. 1928),
libertad provisional bajo fianza, se hace efectivo por los juzgados por orden 18.
perentoria. Cuando a un accusado se le detiene y no se resuelve su peticion
de libertad bajo fianza, puede acudir a un tribunal de superior categoria por "Prisoner denied bail or asked excessive bail has absolute right to
medio de un recurso de mandamus para obligarle a actuar en un sentido u invoke habeas corpus remedy, and court's duty to grant writ and to
otro, que es su deber imperativo. Un condenado por un juzgado sin admit to admit to bail is mandatory." Ex parte Stegman, 163 A. (N.J.
jurisdiccion acude en certiorari a un tribunal superior para pedir la anulacion Ch. 1933), 422.
de la condena. Un individuo ilegalmente detenido por alguna autoridad u otra
persona, puede acudir a los tribunales por medio de un recurso de habeas "Person under indictment for capital offense are entitled as of right to
corpus y pedir que se le ponga en libertad. Los mismos abogados en hearing by way of habeas corpus upon issue of bail." Ex parte
ejercicio indistintamente utilizan un recurso u otro. Existe confusion en Readhimer, 60 S.W. (2d) (Tex Cr. App. 1933), 788.
cuanto a que clase de recurso debe ejercitarse en cada caso. No es extraño.
El reglamento dice que "el mandamiento de Habeas corpus se hara "The use of the writ of habeas corpus to speedily determine whether
extensivo a todos los casos de confinamiento o detencion ilegales, en los a person charged with an offense is entitled to bail before trial and
cuales se prive a una persona de su libertad, o impida a una persona ejercer
conviction is authorized by law, so as to render effective the rights to
sus legitimos derechos en la custodia legal de otra." (Art. 1, Regla 102).
bail and to liberty as provided by the Constitution." Ex parte
Revisando los expedientes de este Tribunal, se vera que en algunos casos
McDaniel, 97 So. (Fla. 1923), 317.
se empleo el recurso de habeas corpuspara solicitar la libertad provisional
de un acusado mediante prestacion de fianza, como en Herras Teehanke
contra el Director de Prisiones, Juez Rovira y otros1 (43 Off. Gaz., 513); "The use of the writ of habeas corpus to speedily determine whether
otros utilizaron los remedios de certiorari y mandamus, como en el asunto de a person charged with an offense is entitled to bail before trial and
Marcos y Lizardo contra el Juez de Primera Instancia de Ilocos Norte (VII conviction is uthorized by law." Ex parte Hatcher, 98 So. (Fla. 1923),
Lawyers' Journal, 66); en Payao contra Juez Lesaca, el recurso 72. "A writ of habeas corpus is an appropriate and proper remedy in
de mandamus; en Herras Teehankee contra Rovira y otros2 (42 Off. Gaz., aid of bail." Mozorosky v. Hurlburt, 198 Pac. (Or. 1921), 556.
717), los recurso de certiorari y mandamus; y en el asunto de Montalbo
contra Juez Santamaria (54 Jur. Fil., 1026), el recurso de mandamus. Este "Where a lieutenant in a military posse, seeking a deserter,
Tribunal, desatendiendo tecnicismos, decidio los asuntos en el fondo; tuvo waswounded by a shot in the dark, and fired at the place where
en cuenta no el titulo sino la esencia de la solicitud, Galao y otro contra Juez hesaw the flash, and killed the shooter, who was found near anillicit
Diaz y otro3(41 Off. Gaz., 873). still, and, although the lieutenant was confinedthereafter by the
federal authorities for over a year, the stateauthorities had taken no
Estos recursos de certiorari y mandamus no son mas que remedios steps to bring the charge made againstthe lieutenant and another
derivativos del recurso de habeas corpus; los tres se dirigen a un mismo fin: member of the posse by indictment to ahearing conclusion, habeas
el obtener la libertad del que esta indebida o ilegalmente detenido. corpus would issue to release bothdefendants on bail." State of
Florida v. Tooher, 283 F. (U.S.D.C.Fla. 1922) 845."A person charged
with being an accessory before the fact to murder by counseling,
Es Estados Unidos el recurso de habeas coprpus se utiliza para la obtencion hiring, or otherwise procuring murder to be committed is charged
de libertad provisional bajo fianza:
with a capital offense under statutes if this state, and when held in
actual custody under a mittimus issued by a magistrate to await the
It is proper to use the writ of habeas corpus for the purpose of action of the grand jury has a right upon habeas corpus proceedings
securing admittance to bail. Ex parte Perkov, 45 F. Supp. (D.C. Cal. before a justice of the Supreme Court to show by all the evidence
1942), 864. proper in the case, including that for the prosecution, that the proof is
not evident and the presumption is not great of the guilt of the the light of the presumption of innocence, and remembering that to
accused of a capital offense, and that consequently the accused is grant bail is the rule and the refusal of it is the exception, petitioner is
entitled to bail under the Constitution." (Syllabus No. 1, Ex parte admitted to bail with sufficient sureties in such sum as may be
Nathan, 50 So., 38.). reasonable and just in view of all the circumstances of the case." In
re Haighler (Supreme Court of Arizona), 137 Pac., 423.
"On the lower court refusing bail on appeal being taken, habeas
corpus proceedings therefor in the Supreme Court is the proper "Petition for a writ of habeas corpus alleging that an appeal was
practice." (Syllabus No. 2, Packenham v. Reed, 79 Pac., 786.). taken by the relator from an order of the inferior court denying his
motion to vacate an order of arrest. It appears that one Amy D.
"Any one who is in custody on a criminal charge for want of bail is Bronson secured a judgment against the relator for damages for
entitled to a writ of habeas corpusadmission to bail, and the injury to person, and the judgment being unsatisfied, an execution
petitioner need only allege that he is confined for want of bail." (In re was issued against his person and was arrested and taken into
Haigler, 137 Pac., 423.). custody by the sheriff until the judgment is satisfied. The petition
prays for an order fixing bail pending determination of the appeal;
Held: The writ of habeas corpus is an appropriate and proper remedy
"Under Const. U. S. art. 1, section 9, and Const. Wash. art. 1,
in aid of bail. Writ of habeas corpus granted and relator released on
section 13, providing that the privilege of the writ of habeas
bail upon a bond of $3,000." State vs. Foster (Supreme Court of
corpus shall not be suspended unless, in case of rebellion or
Washington), 146 Pac., 169.
invasion, the public safety may require it; section 20, providing that
all persons charged with crime shall be bailable by sufficient sureties
except for capital offenses; and section 22, providing that in criminal "Petition for writ of habeas corpus to bail. Petitioner had been
prosecutions the accused shall havethe right to appeal; and Rem. committed to the reform school of the state of Washington until he
and Bal. Code, section 1077, providing relative to habeas corpus that should attain the age of 18 years, or until he should otherwise be
the writ may be had for the purpose of admitting to bail in civil and regularly discharged therefrom. Thereafter he gave notice of appeal.
criminal actions-habeas corpus will lie to procure the release on bail Bail was denied pending the hearing on appeal; Held: An infant has
of a person held under a body execution pending an appeal from an a right of appeal when committed to the reform school, and
order denying a motion to vacate the order for the issuance of such incidentally a right to be admitted to bail pending such
execution, notwithstanding Rem. and Bal. Code, section 1075, appeal. Habeas corpus is an appropriate remedy to bail."
providing relative to habeas corpus that no court or judge shall Packenham vs. Reed, 37 Wash., 258, 79 Pac., 786. "The
inquire into the legality of any judgment or process whereby the party writ habeas corpus lies where the imprisonment is illegal and no
is in custody or discharge him when the term of committment has not other remedy is available to secure a release therefrom. As in the
expired, when he is held upon any process issued on any final case of other extraordinary prerogative writs, the writ of habeas
judgment of a court of competent jurisdiction." (State v. Foster, 146 corpus will not ordinarily be granted where there is another adequate
Pac., 169.). remedy, by appeal or writ of error or otherwise. But, although another
remedy exists, it is not necessarily exclusive so as to oust a court of
"Application for a writ of habeas corpus by Kizzie Nathan alleging jurisdiction to grant relief on habeas corpus, and, in the exercise of
that she is unlawfully restrained of her liberty in the actual custody of its discretion, the writ may be granted notwithstanding the existence
of another remedy. Generally where another remedy is provided,
the sheriff of Leon county on a charge of accessory before the fact to
failure to take advantage of it until the expiration of the time within
murder, by being denied the right to bail; Held: Petitioner was
which relief may be had will not authorize relief in habeas corpus, but
permitted to give bail with sufficient sureties as required by law." Ex
in such cases the writ may issue in the discretion of the court.
parte Nathan (Before a Justice of the Supreme Court of Florida), 50
So., 38. Defenses which might have been made in an action cannot be
reserved as grounds of attack in habeas corpus upon the judgment
after rendition." (29 C.J., 17-18).
"Appeal from an order in habeas corpus refusing the petitioner
admission to bail who is held on a charge on murder in the first
"The fact of the existence of another remedy does not necessarily
degree; Held: Looking at all of the evidence offered and viewing in
preclude a resort of the writ of habeas corpus to obtain relief from
illegal detention. Thus, while there are decisions to the effect that, Estados Unidos por la detencion de un condenado por desacato, contra la
even when a judgment is wholly void, a defendant will not, except in Camara de Representantes de los Estados Unidos, contra cualquiera, ya
rare and extraordinary cases, br relieved from imprisonment sea un funcionario publico o no, que en una u otra forma detiene ilegalmente
thereunder if appropriate relief can be granted by writ of error or a alguna persona.
appeal, it is the well established general rule that one restrained of
his liberty by virtue of a judgment, order or sentence, void by reason En casos de invasion, rebelion o insurreccion, o peligro inminente de ellas,
of the court's want of jurisdiction to make the same, may be released cuando la seguridad publica lo requiera, el privilegio del mandamiento de
by a writ of habeas corpus. whether such release could have been habeas corpus se suspende, o se declara la ley marcial en cualquier parte o
secured by a writ of error or not. The existence of a statutory remedy en toda la nacion.
whereby a person restrained of his liberty may be released is usually
held to be cumulative and not exclusive. Thus it has been ruled that
En Estados Unidos no se determina quien puede suspenderlo. Su
the writ of habeas corpus may be issued to determine the legality of
Constitucion dice asi:
the confinement of a person in a state insane asylum, without first
compelling a resort to a statutory proceeding for that purpose-at least
where there is some doubt as to the effect of the statute. And it has "The Privilege of the Writ of Habeas Corpus shall not be suspended,
been held that a parent may have the writ issued for the prupose of unless when in Cases Of Rebellion or Invasion the public safety may
securing the release of his child from a benevolent institution require it.(Par. 2, Sec. 9, Art. I, Constitution of the United States).
although a remedy is given the parent by the act under which the
child was committed; the remedy so provided being merely En Filipinas la Asamblea Constituyente tuvo a bien confiarlo al Presidente. El
cumulative. The discretion of federal courts to issue writs of habeas Articulo III, parrafo 14 de la Constitucion dice textualmente:
corpus or to require the petitioner to resort to appeal of writ of error if
appropriate relief can be thereby obtained as treated eslewhere in "El Presidente sera el generalisimo de todas las fuerzas armadas, y,
this article." (12 R.C.L., 1186-1187.). siempre que fuere necesario, podra llamarlas para impedir o sofocar
toda manifestacion de violencia ilegal, invasion, insurreccion o
Y el Tribunal Supremo de los Estados Unidos en Ex parte Bollman y Ex rebelion. En caso de invasion, insurreccion o rebelion, o peligro
parte Swartwout, (2 Law. Ed., 554) dijo: inminente de ellas, cuando la seguridad publica lo requiera, podra
suspender el privilegio del mandamiento de habeas corpus o
"The appropriate process of bringing up a prisoner, not committed by declarar la ley marcial en todo el pais o en cualquier parte de el.
the court itself, to be bailed, is by the writ now applied for. Of
consequence, a court possessing the power to bail prisoners not En 22 de octubre de 1950, el Presidente suspendio el privilegio del habeas
committed by itself, may award a writ of habeas corpus for the corpus para aquellos detenidos por rebelion o insurreccion. La razon por que
exercise of that power." se toma esta medida descansa en la seguridad publica.

Si hemos de atenernos a la definicion del habeas corpus y a los precedentes No es un secreto para nadie las frecuentes matanzas a sangre fria de niños,
americanos citados, el recurso que tiene un acusado para pedir la libertad viejos y mujeres, las emboscadas de pasajeros inocentes, de la viuda del
bajo fianza es el de habeas corpus. Pero no debe confundirse el remedio de Presidente Quezon y comitiva, el robo a sangre y fuego, el secuestro de
habeas corpus con el que originariamente obtuvieron los que luchaban por particulares y de funcionarios publicos; el de inspectores de eleccion esta a
los derechos individuales contra las demasias del monarca. El habeas la orden del dia; son victimas del secuestro personas pertenecientes a
corpus de la legislacion vigente es mas amplio en su esfera de accion; no se diferentes partidos. No solamente existe el deseo de derrocar al gobierno
dirige solamente contra las detenciones del Ejecutivo; es un instrumento establecido sino tambien el de sembrar el terror y la anarquia en todas
procesal contra los juzgados que indebidamente ordenan la detencion de partes para irustrar la expresion libre del sufragio, que es el alma de la
una persona, contra la Comision de Inmigracion que detiene democracia. Para impedir la ola destructora de rebelion o insurreccion, el
provisionalmente a los que estan condenados a deportacion, contra el amo Poder Ejecutivo, como medida de propia preservacion, detiene a todos
que priva de su libertad al criado, contra la dueña de la casa de hetairas que cuantos tienen intervencion en ella. Si se suelta a los detenidos, pueden
priva a una pupila de su libertad, contra el superintendente de un hospital volver a las andadas, pueden reunirse con sus compañeros y reduplicar su
que detiene ilegalmente a un paciente, contra el Senado de Filipinas y de los obra de destruccion; de ahi la necesidad de suspender el recurso de habeas
corpus. El gobierno, escudado por la suspension del habeas corpus, podria Se arguye que el Poder Ejecutivo puede detener por todo el tiempo que
con facilidad suprimir la rebelion e insurreccion deteniendo indefinidamente a quiera sin necesidad de dar cuenta de la detencion, pero en cuanto los
todos los sospechosos; pero eso daria lugar a muchas injusticias, la detenidos se han colocado bajo la jurisdiccion de los tribunales, ya tienen
detencion de inocentes. Consciente de su obligacion de velar por los derecho a la libertad bajo fianza. Esta teoria fomenta el establecimiento de
derechos individuales, no se vale de este privilegio: detuvo pero entrego los un gobierno dictatorial y autocratico y no quisiera que en Filipinas se
detenidos a los tribunales de justicia para que fuesen juzgados. Eso es estableciese un gobierno de tal naturaleza.
motivo de satisfaccion. No quiere obrar solo; no quiere ser despota; solicita
la colaboracion de los tribunales. Desea que los juzgados — y no el — Si los tribunales ponen en libertad, bajo fianza, a los que atentan contra la
decidan quienes son los culpables y quienes son los injustamente acusados. seguridad del Estado, a pesar de la suspension del habeas corpus,
Pero debe entenderse que mientras no esten absueltos, no deben ser entonces, para afrontar la situacion, el Poder Ejecutivo no acusaria a los
puestos en libertad bajo fianza; su libertad pone en peligro la seguridad del detenidos ante los tribunales: los detendria indefinidamente por su propia
Estado. En muchos respectos la libertad de los acusados pone en peligro la cuenta. Aun mas, detendria a cualquier ciudadano; entonces hasta los
seguridad nacional, ya facilitando ayuda economica o provisiones de boca, inocentes estarian en peligro. Los tribunales no tendrian oportunidad de
proporcionando medicinas o trasmitiendo informes a los que estan en espera absolver a los inocentes. Esto seria el reinado de la fuerza y no de la ley. Y
del momento oportuno para dar el golpe de gracia y, lo que es peor aun, eso es precisamente lo que quiere evitar el Poder Ejecutivo al poner a
empleando el "sabotage." disposicion de los tribunales a los detenidos por rebelion. Los que pretenden
velar por los derechos individuales, alucinados por el oropel de la decantada
Si su detencion por el Poder Ejecutivo esta justificada por la seguridad libertad, son los que, tal vez sin quererlo, estan fomentando el
publica¿ por que no esta justificada tambien su detencion cuando esta se establecimiento de un regimen al estilo Nazi, la ereccion del Poder Ejecutivo
ordena por los tribunales de justicia? Es tan peligroso el detenido por en un despota.
rebelion e insurreccion puesto en libertad por el Poder Ejecutivo como el
acusado de los mismos delitos puesto en libertad por el Poder Judicial. Si el Tal como se desarrollan los acontecimientos, el Poder Ejecutivo entrega los
objeto de la suspension del recurso de habeas corpus es suprimir la rebelion detenidos a los tribunales de justicia para que puedan ser juzgados cuanto
e insurreccion,¿ no es un contrasentido conceder libertad a los que estan antes; si son culpables que se les condene, pero si son inocentes, que les
acusados de rebelion o insurreccion? Soltarlos es ayudarles: es poner en absuelva. No es esto un ordenado proceso legal y constitucional? Por que
peligro la salud del pueblo. obligar de una manera indirecta al Poder Ejecutivo a detener
indefinidamente a los acusados de rebelion sin colocarlos bajo la jurisdiccion
Mientras rige la suspension del recurso de habeas corpus, por tanto, los de los tribunales? Es mejor que continue acusandolos ante los tribunales
acusados de rebelion o insurreccion no tienen derecho a la libertad para que puedan ser juzgados prontamente. Es indispensable que los dos
provisional bajo fianza. Razon fundamental: para ponerles a buen recaudo. poderes, Ejecutivo y Judicial, actuen al unisono cuando la seguridad publica
lo requiere.
Se arguye que la suspension del privilegio de habeas corpus se aplica
solamente a las detenciones realizadas por el Poder Ejecutivo y no a los Si la suspension del privilegio de habeas corpus es infundada y arbitraria,
acusados ante los tribunales de justicia. que lo declare asi este Tribunal; que declare nula la suspension. Pero si los
acontecimientos aconsejan la medida por necesaria e indispensable, que los
La proclama no distingue para que clase de detencion esta suspendido el detenidos permanezcan detenidos hasta que hayan sido absueltos en
recurso: es aplicable, por tanto, no solamente a los detenidos por el Poder sentencia judicial.
Ejecutivo sino tambien a los detenidos por orden judicial. Seria el mayor de
los absurdos privar de este privilegio a los detenidos por el Poder Ejecutivo y Voto por la denegacion de las solicitudes en las causas Nos. L- 4855 y L-
no a los detenidos por los tribunales. No parece sino que los tribunales 4964 y por que se declare nula y de ningun valor la orden del Hon. Juez
tienen que regirse por la parte de la constitucion suspendida. Si es Abaya del 12 de septiembre de 1951, concediendo libertad bajo fianza a los
constitucional privar del recurso de habeas corpus a los detenidos por el acusados.
Poder Ejecutivo, con mayor razon se debe privar de ello a los acusados ante
los tribunales porque el ministerio fiscal posee pruebas que demuestran su
culpabilidad.
BENGZON, J.:. liberation of those who may be imprisoned without sufficient cause. It is in the
nature of a writ of error to examine the legality of the Commitment.".
I fully agree to the view of the Chief Justice.
Habeas corpus. Este auto es una orden de producir es decir de presentar el
This case (like the other cases of Jose M. Nava et al., vs. Hon. Magno cuerpo del detenido (habeas corpus, have the body ) ante el Tribuanal para
Gatmaittan G.R. No.L-4855 and Eugeenio Angeles v.s Hon. Gavino S. que este determine sobre la validez del arresto. Encyclopedia Juridica
Abaya G.R. No. L-5102) in volve the question whether the persidential Espanola Tomo XVII, p.406. .
proclamation suspention the privilege of the writ of habeas corpus for person
detained for rebellion insurrection has equally suspended their right to bail From the above description and many others of the general natureof the writ,
after the information has been filed against them. I deduce that when by Executive proclamtion theprivilege of the writ
of habeas corpus is suspended theJudicicary is thereby prevented from
For purposes of discussion of this central isssue I will assume that the interfering with theExecutive doing by inquiring into the legality of the
information against Hernandez describes the crimes of rebellion only detentionof prisoner held by the Executive department for rebellion
unattended by other crimes that make the offense a capital one. At the end of orinsurrection.
this opinion I shall explain my vote as to the disposition of petitioner's cause
the charge against him being rebellion with multiple murder arson and Here Hernandez does not ask for a writ of habeas corpus to inquire into the
robberies. . lagality of his detention. No need for such inquiry because he is now
detained by a judicial warrant of arrest. The Court knows the reason for the
Now inasmuch as the information does not describe a capital offense, detention. Hernandez assumes for the moment the legality of the restraint;
(rebellion is punished with prision mayor) the prisonae is entitled as a matter but files a motion in the case initiated against him (Criminal Case No. 15841)
of right to bail. This privilege is vouchsafed to him by the Constitution and the that he be allowed to go on bail. He did not petiton for habeas corpus.
Rule of Court.
In this Court he is not asking for habeas corpus he pleads
But it is alleged that the Executive proclamation suspending theprivilege of for mandamus and\or certiorari. The cases decided by this Court show that
the writ habeas corpus had the effect of suspendingthe right to bail of all his request should be granted.
person charged before the court withcrime of rebellion. I do not think so.
What the proclamationsuspended was the privilege of the writ - not the right Mandamus; Sy Guan vs. Amparo 45 off Gaz.,
to bail. 2447. Certiorari Ocampo vs. Bernabe 43 Off
1632. Certiorariand Mandamus; Teehankee vs. Rovira 422 Off Gaz.,
The writ of habeas corpus is of immemorial antiquity. Originally there were 717.
several form of writ: (1) habeas corpusad respondendumm (2) ad
stisfaciendum (3) ad prosequendum, testificandum deliberandum (4) ad For one thing the Contitution does not provide that all accused persons shall
faciendum et recipiendum and (5) the great writ of habeas corpus ad be guilt is strong or when the President has suspended the writ of habeas
subjiciendum. (Blackstone's Commentaried (Jones) p.1676). The writ corpus. .
mentioned in the U.S.; Constitution is the writ ad subjiciendum. The
American colonists brought it with them. (Ex parte Yerger 8 Wall [75 U.S.] 85 The proclamation of the Chief of Executive did not have the effect of
at p. 95.) And undoubtedly that is the same writ contemplated in our depriving the Court of their privilege to issue the writ of habeas corpus at the
fundamental laws the Philippines Bill the Jones Law and the Philippines request or on behalf of prisoners held for rebellion insurrection. The
Constitution. It is an order issued by the court directed to the person proclamation did not suspend all the constitution right of such prisoners. Only
detaining anothe and commanding him to produce the body of the prisoner the right to habeas corpus. Needless to say martial rule has not been
with the day and cause of his caption and detention, .. to do submit to and established, luckily for all. .
receive whatsoever the judge or court shall consider in that bahalf.
(Blackstone [Jones] p. 193) explained the character of the writ as " a highly The English themselves themselvees from whom Americans Inherited the
prerogative writ known to the common law the great object of which is the practice of the suspension believe that the so-called suspension of
the Habeas corpus Act is not in reality more than suspension of one
particular remedy for the protection of personal freedom. (Ennyc. pretended that the suspension of the writ also suspended the right of the
Britanica, Habeas corpus) Other remedies remain intact. The petition to go prisoners to defend themselves, to present witnesses, to face the accusers
on bail is one them. Pertinent excepts from American decision confirm this etc. because these rights would be ways to obtain their freedom?.
trend of thought.
An illustration will serve to emphasize the point. Hernandez like all accused
1. "The illustrious men who framed that instrument (Constitution) persons, is entitled to speedy trial. If the prosecution or the court should
limited the suspension to one great right and left the rest to remain unreasonably delay his trial, he may resort either to mandamus, or habeas
forever inviolable. "Ex parte Miligan 18 U.S. (Law Ed.) 281, 297. corpus(Conde vs. Rivera, 45 Phil., 650; Mercado vs. Santos, 66 Phil., 215).
Now, simply because the writ of habeas corpus(one of his remedies) has
2. "This clause (suspension of the writ) refers only to the writ been suspended, would it be reasonable to hold that Hernandez has also lost
of habeas corpus ad subjiciendum when a person stand commited or the right to speedy trial, and that he may not enforce such right
detained as a prisoner for a crime and does not include the other by mandamus? Quod erat demonstradum. Suspension of one of two
writ. This involved a construction of a similar clause in the contitution remedies does nto suspend the other.
of the Confederate states. "On so grave a subject every word used
must be supposed to have some import; and every word used in this Another example: Suppose after trial, Hernandez is sentenced to life
clause does not import that the power of suspension has reference imprisonment, although the Penal Code punishes rebellion with prision
only to the writ applicable in the case of persons imprisoned for mayor (I assume he is charged with rebellion only). Obviously that would be
crime. "The privilege." When one is committed to wait his trial for a plain error, which Hernandez may rectify either by habeas
crime, it is a privilege to be alowed a writ whereby the legality of his corpus (Cruz vs. Director of Prisons, 17 Phil., 269) or by an ordinary appeal
arrest may be inquired of, and he may be discharged or admitted to to this Court. Will anybody contend that simply because the writ has been
bail. But when one who has not committed and is not supposed to suspended, Hernandez may not apply to this court for correction of the
have committed a criminal offense is wrongfully restrained of his decision, thru an ordinary appeal?.
liberty, that he should be allowed to institute a civil siut to be relieved
from the confinement is a right which every state is bound to secure It is urged that bail should not be allowed those charged with rebellion,
at all times to its citizens; and these words must import that the because the moment they are released they will rejoin the dissidents and
power of suspension refers only to the former class of cases, resume their destructive activities against the established government
otherwise no meaning can be attached to them." Matter of Cain, organizations. But as long as the Legislature has not deemed it proper to
1864, 2 Winst. L., N.C., 145. (Note, United States Code Annotated, make rebellion a capital offense, we do not see how courts may refuse bail
Constitution Vol. I p. 747.). consistently with the constitutional precept that "All persons shall before
conviction be bailable by sufficient sureties, "except those charged with
3. "The suspension of the writ of habeas corpus does not legalizea capital offenses when evidence of guilt is strong.".
wrongful arrest and imprisonment; it only deprives the partythus
arrested of the means of producing his liberty, but does notexempt And in my opinion, one of the surest means to ease the uprising is a sincere
the person making illegal arrest from liability todamages, in civil demonstration of this Government's adherence to the principles of the
prosecution." Griffin vs. Wilcox, 1863, 21 Ind.732, (Note, United Constitution together with an impartial application thereof to all citizens,
States Code Annotated, Constitution Vol. Ip. 748.). whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinlupa 2,
4. "The suspension merely disturbed "one of the safeguards of civil without benefit of those fundamental privileges which the experience of the
liberty." (Sinclair vs. Hiatt 86 Fed. Supp. 828). ages has deemed essential for the protection of all persons accused of crime
before the tribunals of justice. Give them assurance that the judiciary, ever
It is contended that because habeas corpus is one of the remedies 1 to mindful of its sacred mission will not, thru faulty cogitation or mispalced
obtain personal freedom thru bail after the information has been presented, devotion, uphold any doubtful claims of Governmental power in diminution of
the suspension of the writ, suspended the right to bail. The answer is that the individual rights, but will always cling to the principle uttered long ago by
proclamation suspended only that particular remedy (habeas corpus) to Chief Justice Marshall that when in doubt as to the construction of the
obtain personal freedom. Not the other remedies to secure bail. It is Constitution, "the Courts will favor personal liberty" (Ex parte Burford 3
Cranch [7 U.S.] Law. Ed. Book 2 at p. 495). Under normal conditions-when
no suspension has been decreed-a person under detention may ask for a The strom center of these litigations has been represented as a clash
writ of habeas corpus to acquire into the legality of the restraint. If the courts between individual liberty and governmental security. A third aspect should
finds that he is illegally detained, it will order his release. If the courts finds not be overlooked: Curtailment of the power adjudication.
that he is legally held for a crime which is bailable, the court may permit him
to go on bail. Fundamentally the three great branches of the Government are independent,
and none may encroach upon territory of the other except in those few
When normalcy is disturbed and the Executive decrees a suspension of the instances specially allowed by the Constitutional structure. It should follow as
writ he thereby erects, so to speak, a fence around those detained for a matter of judicial dialectics that when the line of separation projectsinto the
rebellion or insurrection, a fence which the judiciary may not penetrate by the other's domain, and alternative choices are equallyavailable, the part of
writ of habeas corpus. The Executive thereby practically tells the judiciary: wisdom is to follow the course that,deflecting the angle of deviation, reduces
"Please do not meddle with these prisoners. I am holding them for the encroachment to aminimum consistent with the intention of the framers of
investigation or for purposes of quelling the rebellion." So long as the theConstitution. Now, the suspension of the writ undeniably effectsa
proclamation subsists, just so long will the Courts keep away in obedience to temporary invasion of normal judicial territory; yet it isauthorized by the
Constitutional inhibition. But when the Executive, thru the fiscals, files an Constitution for reasons of paramountnecessity. The metaphorical "fence"
information and requests the Court to punish a particular rebel, the reason for previously mentioned isconstructed on judicial realm. Therefore the Courts,
non-interference ceases, because he thereby takes the prisoner out of the in loyaltyto original apportionment, and the basic theories of
fenced premises and brings him into the Temple of Justice for trial republicaninstitutions, should not enlarge its area by approving theextension
andpunishment. Thereby he sets in motion a train consequences resulting ably but erroneously sponsored by the prosecution.Logical should be the
from the rituals of the Temple: the principles regulating criminal procedure, view that when the Executive submitted theinformation, he invited the Court
e.g., proceedings to obtain bail or to enforce other rights of the prisoner at to look into the case of theaccused here, and thereby waived the suspension
the bar. Indeed it would be preposterous and paradoxical for the Executive in of the writ,opening the fictional fence, in so far as this particulardetainee is
sopresenting the detainee expressly to stipulate, "Here is the prisoner, judge concerned. Unless it could be pretneded 6 that after this detainee is
him; but you may not release him for confinement.". acquitted by the Court of the charges of •rebellion, the Executive may still
legally detain him, keep him •within the enclosure, on the pretext that the
I admit that by virtue of the Presidential proclamation, personsdetained for remedy of habeas •corpus is not available to secure his release from
rebellion against whom no information has been filedmay not ask for bail. custody.
The admission must be made because, underthe rules, they may obtain bail
only by inquiring into the causeof detention i.e., by the writ of habeas corpus, I have heretofore mentioned two alternatives equally available. In thus
which is anabeyance. Sublata causa tollitur affectus. describing the situation I have favored the opposing school of thought. For in
truth the competing theories are not equal of validity. The one maintains that
But once the information is formulated, the circumstances change. The the right to bail has been impliedly suspended with the suspension of the
accused may ask bail by mere motion in the case-not necessarily by habeas writ; whereas the other asserts that the right to bail expressly guaranteed by
corpus proceedings. The suspension order does nto preclude that motion-it the Constitution, not only as individual privilege but also as judicial
only bars the remedy of habeas corpus. The suspension paralyzed one of prerogative. Express guarantee versus implied derogation. Considering that
the means to obtain freedom-it could not extinguish the ultimate objective. repeals by implication are never favored, the choice offers no doubt: the
And if his motion is denied where he is charged merely with rebellion-he will desired advantage to the prosecution should not outbalance the right of the
be entitled to mandamus to compel the judge to grant bail. 3 If he is booked prisoner nor the powers of the Court.
for a capital offense and the court, refusing to exercise its discretion to
determine whether the evidence is strong or not, flatly denies bail invoking Nevertheless the conflicting propositions may be, and are, coordinated and
the suspension, mandamus will lie to compel the judge to exercise his reconciled in the manner herein advocated: bail before the information is filed
discretion to determine whether or not the evidence is strong and act has been suspended; after the information is filed, the right to bail emerges in
accordingly. 4 However if such court, exercises its discretion, but without any full force and effect.
proof denies bail declaring that the evidence is strong or makes no finding on
that point certiorari will surely be available to redress judicial abuse of Before concluding I wish to touch upon argument that although the only
discretion. 5. exception expressly mentioned to the right to bail is "when the offense is
capital and the evidence of guilt is strong" another implied exception should
be "when the writ of habeas corpus is suspended." By its effect section 1 (14) in normal times or during period of normalcy in the life of the nation, for such
of Article III (about suspension) appears to be an exception to section 1(16) is the import of paragraph 14 if the exception is to be taken into account. The
(right to bail) of same Article III. But a little reflection will show that the exception has reference to the suspension of the privilege during such period
paragraph about suspension is complete in itself, containing the general rule as the necessity for it shall exist, which may be decreed by the President in
and exception: the general rule being "no suspension of the writ" and the cases of invasion, insurrecion or rebellion, or imminent danger thereof, when
exception, "cases of invasion" etc. Consequently it may not be deemed as an the public safety requires it (Article VII, section 10, paragraph 2, of the
exception to another paragraph, specially because it relates to procedure Constitution). It envisages and is intended to confront an abnormal situation
whereas the paragraph about bail is substantive right. And this paragraph pregnant with perils and dangers to the existence of the State. The exception
about bail is complete in itself, with the general rule and one exception. By in paragraph 16, unlike the one in paragraph 14, refers to the denial of bail
the way, "an express exception excludes others." In re Estate of Enriquez 29 during a period of normalcy.
Phil., 167. (See also Chartered Bank vs.Imperial 48 Phil., 931.).
Unless martial law has been declared and proclaimed by the President, any
My vote in this case:. citizen or inhabitant of the Republic may apply to the courts of a writ
of habeas corpus. However, if upon the face of the petition it appears that the
Amado V. Hernandez is actually charged with rebellion with multiple murder, person in whose behalf the writ is applied for is held, detained, or deprived of
arsons and robberies. That is a capital offense. But he is entitled to bail just his liberty by virtue of the proclamation suspending the privilege of the writ, or
the same unless the evidence of his guilt is strong. The lower court received if in return to the writ by the agent of the law holding or detaining a citizen or
no evidence, in the belief that the proclamation suspended bail. The error is inhabitant or depriving him of his liberty, he states that such citizen or
plain and the right of petitioner to bail should be upheld. The respondent inhabitant is being held, detained, or deprived of his liberty because he is
judge should therefore be directed to receive evidence for the People and suspected of having something to do with invasion, insurrection or rebellion
then, determining whether it is strong or not, should deny or grant bail and such allegation is found true, the court which the writ is returned need
accordingly. Needless to say, the burden of proof lies on the prosecution. not go further than to dismiss or deny the petition because of the suspension
(Moran Comments 3d. Vol. II, p. 676). by the President of the privilege of the writ of habeas corpus. If that is what
the Court could do in the case of a detained suspect, there would be no
cogent reason for the Court to act otherwise in the case of a detained person
already indicted or charged with the crime of rebellion or insurrection,
because then the detention of such person would be more justified.
Bengzon, J. (in L-4855):.
When the President decrees the suspension of the privilege of the writ, he
does it under and pursuant to a constitutional authority (Article VII, section
In view of my opinion in Amado V. Hernandez vs. Hon. Agustin P. Montesa 10, paragraph 2, of the Constitution). He must have reasons for the exercise
G.R. No. L-4964 I vote that the respondent judge be required to hear the of the power and authority with which he is clothed by the Constitution. The
evidence for the prosecution and act accordingly. What I said about Coordinate Judicial Department cannot inquire into the constitutionality and
Hernandez right to bail applies equally to the rights of herein petitioners. sufficiency of such reasons which led him to exercise the power. The
possibility of abuse of the power does not argue against it existence, does
not destroy or remove it and does not vest in the coordinate Judicial
Department the power or authority to inquire into the constitutionality,
propriety and sufficiency of the causes which prompted the President to
PADILLA, J.:. exercise the power conferred upon him by the Constitution. He, too, more
than anybody else, will be judged by posterity. And any citizen chosen by the
I am the opinion that paragraph 14, section 1, Article III, of the Constitution, people to hold such an exalted position is amenable also to the hearkenings
which prohibits the suspension of the privilege of the writ of habeas corpus, of his conscience and fearful of an adverse verdict of history. And he knows
and paragraph 16 of the same section and article, which grants to all persons too well that he cannot hold the office for more than eight year.
before conviction the right to be released on bail by sufficient sureties, except
to those charged with capital offenses when the evidence of guilt is strong, Those who contend that when the Executive Department turns over a
and enjoins that excessive bail be not required, may be invoked and applied detained person suspected of subversive activities to the Judicial
Department, the control of such person by the Executive ceases and the
jurisdiction of the competent court attaches and begins and the legal process
must be followed, such as the granting of bail before conviction, except to
those charged with capital offenses when evidence of guilt is strong, and TUASON, J.:.
those who claimed that if the competent court may acquit such person of the
charge of rebellion or insurrection, it also must be deemed to possess the
Under constitutional guaranty bail is a matter of right which no court or judge
authority to grant bail which is less than the power to acquit, lose sight of the
could properly refuse in all cases beyond the exceptions specified in the
fact that the decree suspending the privilege of the writ of habeas corpus is
Constitution. The meaning of this fundamental provision is that a party
authorized by the Constitution in times of abnormality and the right to be accused of any and every bailable offenses shall have the inestimable
released on bail may be secured and is granted only in times of normalcy.
privilege of giving security for his attendance at court and shall not be
The prosecution of a person detained under the terms of the proclamation
imprisoned. (6 C.J. 893.).
suspending the privilege of the writ or the turning over of such person to the
competent court does not mean that such court may ignore, disregard or
brush aside the terms of the proclamation or decree, because the latter has The Constitution will be searched in vain for any provision that abridges this
the effect of the law promulgated under and pursuant to a constitutional right. Any argument in support of the contention that the suspension of the
authority. The competent court must take into consideration and apply the writ of habeas corpus carries with the suspension of the right to bail, and has
terms of the proclamation to such detained person against whom an to be, based on interference. I do not believe that the curtailment of the right
information has been filed. The eventuality of an acquittal does not withdraw to bail is a normal, legal, or logical outcome of the suspensionof the writ. The
such person from the effects, force and vigor of the proclamation or decree. error, I am inclined to believe, arises from a confusion of terms and
The acquittal of such person upon the merits of the case means that he is misapprehension of the principles underlying the suspension of the writ.
innocent of the charge and hence entitled to his immediate release. His
acquittal on groundsother than upon the merits of the case entitles him to an The purpose of the suspension of the writ is to enable theexecutive, as a
immediate discharge by the trial court, but he may again be apprehended precautionary measure, to detain withoutinterference persons suspected of
and detained under and pursuant to the terms of the proclamation. The filing harboring design harmful topublic safety. (Ex Parte Simmerman, 132 F. 2nd,
of an information for rebellion of insurrection against such person is an act of 442, 446.) TheConstitution goes no further. (Ex Parte Milligan, 4 Wallace 2,
good faith on the part of the agents of the Executive Department which this 18Law. Ed. 281, 297.) If this is the purpose, the suspension cancontemplate
Court should encourage and not stifle, so that his guilt or innocence may be only cases which, without the suspension, are open tointerference; such
determined judicially. If this Court were to construe that, after the filing of the cases are arrests and detentions by theexecutive department. Since the
informations against such person, the proclamation or decree suspending the suspension of the writ isdesigned to prevent the issuance of this
privilege of the writ of habeas corpus ceases to have force and effect as to extraordinary remedy,and since the writ issues from the courts but never to
him, such a construction would have the effect of goading the agents of the thecourts, it necessarily follows that arrests and detentions byorder of the
Executive Department not to file an information and to detain him indefinitely courts are outside the purview of the constitutionalscheme.
or as long as they believe his detention is necessary. The filing of an
information only means that the competent court should proceed to try the As stated, the theory of the prosecution stems from a misconception of the
person charged with rebellion, or insurrection and, if found guilty, to impose ends pursued by the suspension of the writ. If it is to have any color or
upon him the penalty provided by law or, if found innocent, to direct his validity, this theory must assume that the Constitution directs positive action
immediate discharge. It cannot and does not mean that the competent court to be taken, orders arrests and detentions to be made. Unfortunately or
may order his release on bail by sufficient sureties, because that would be a fortunately, the Constitution does not do so. The intent of the Constitution in
violation of the proclamation or decree which has the effect of law. authorizing the suspension of the writ of habeas corpusno other than to give
tha authorities a free hand in dealing with persons bent on overthrowing the
For these reasons, I believe that after the filing of aninformation for rebellion Government. The effects of the suspension are negative, not positive;
or insurrection, the defendant chargedwith that crime is not entitled to be permissive, not mandatory nor even directory. By the suspension, arrests
released on bail during theeffectivity of the proclamation or decree and detentions beyond the period allowed under normal circumstances are
suspending theprivilege of the writ og habeas corpus. tolerated or legalized. The Constitution is not in the least concerned with the
disposition of persons accused of rebellion or inserrection, whether or how
long they should be kept in confinement, or whether they should be set at
large. In the nature of the governmental set-up under the Constitution, their well as statutes, leans heavily on the side of a narrow construction of an
immediate fate is left to the discretion, within reasonable and legal limits, of exception to the operation of the laws. (56 Am. Jur. Section 431.) And so is a
the proper departme. rule od strict construction generally applied to the interpretation of statutes in
derogation of rights, either of the public or of individuals, or in derogation of
With these distinctions in mind, the query is, on what department of their natural rights, or rights which had been enjoyed from time immemorial.
Government is entrusted the prerogative of deciding what is to be done with This rule has been applied to rights to life, liberty, and the pursuit of
the prisoners charged with or suspected of rebellion or insurrection? The happiness. The scope of each statutin derogation of rights, either of the
answer, as I shall endeavor presently to explain, is either the executive or the public or of individuals, or in derogation of their natural rights, or rights which
Court, depending on who has jurisdiction over them. had been enjoyed from time immemorial. This rule has been applied to rights
to life, liberty, and the pursuit of happiness. The scope of each statutes is not
to be extended beyond the usual meaning of their terms. No act should be
All persons detained for investigation by the executive department are under
construed as infringing an ordinary right except by unmistakbly clear,
executive control. It is here where the Constitution tells the courts to keep
unambiguous, and peremptory language bearing other construction. (Idem
their hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter. 397.).

The precept that the express mention or enumeration of conditions excludes,


By the same token, if and when formal complaint is presented, the court
by force of logic, conditions not mentioned or enumerated, should not be lost
steps in and executive steps out. The detention ceases to be an executive
sight of. And it should not be forgotten, as indicated in Ex Parte Milligan, that
and becomes a judicial concern. Thereupon the corresponding court
assumes its role and the judicial process takes its course to the exclusion of if the purpose of the Constitution was to suspend the right to bail of persons
the executive or the legislative departments. Henceforward, the accused is accused of rebellion or insurrection, it was easy to have accomplished it by
the use of direct words. Nor also that Article VII, section 10, paragraph 2, of
entitled to demand all the constitutional safeguards and privileges essential
the Constitution says the President may, not shall, suspend the privileges of
to due process. "The Constitution does not say that he shall be tried
the writ. In fact Article III, Section 14, is couched in negative terms. (The
otherwise than by the course of common law." (Ex parte Milligan, ante, 297.)
privilege of the writ of habeas corpus shall not be suspended except in cases
The Bill of rights, including the right to bail and the right to a fair trial, are
unaffected by the suspension of the writ of habeas corpus. The Constitution of invasion, insurrection, or rebellion, when the public safety requires it, in
any of which events the same may be suspended wherever during such
"suspended one great right and left the rest to remain forevinviolable." (Ex
period the necessity for sususpension shall exist.), which plainly conveys the
parte Milligan, ante, 297.
idea that the Constitution is for respecting individual liberty except in case of
necessity.
Section 1, paragraphs 14 and 16, Title III, and section 10, paragraph 2,
Article VII, of the Constitution are clear and specific requiring no construction.
To the plea that the security of the State would be jeopardized by the release
The two provisions pertain to different spheres of action devolving on
of the defendants on bail, the answer is that the existence of danger is never
different branches of the Government. To repeat, arrests and detentions for
a justification for courts to tamper with the fundamental rights expressly
investigation by the executive are executive affairs beyondthe reach of the
granted by the Constitution. These rights are immutable, inflexible, yielding to
courts. Arrests and detentions after the presentment of proper indictment, are
arrests effected by court warrant and are part of the judicial process with no pressure of convenience, expediency, or the so-called "judicial
which the other branches can not meddle. There are no discordant statemanship." The legislature itself can not infringe them, and no court
conscious of its responsibilities and limitations would do so. If the Bill of
provisions to reconcile, no conflict to adjust, no obscurity to clarify.
Rights are incompatible with stable government and a menace to the Nation,
let the Constitution be amended, or abolished. It is trite to say that, while the
But if we are to resort to construction, the provision which secures the right to Constitution stands, the courts of justice as the repository of civil liberty are
bail ought to prevail. This inestimable right, sanctified by tradition and ratified bound to protect and maintain undiluted individual right.
by express mandate of the Constitution, can not be abrogated by
implications, much less forced implications drawn from faulty premises. If
At this juncture a case not dissimilar to the cases under consideration in their
there be inconsistency between the clauses of the Constitution hereinbefore
animating principle came up before a United States (Second) Circuit Court. It
mentioned, which is not true, that which would impair the right to bail should
was an application for bail of ten communists who had been convicted by a
give a way. The rule, applicable to the interpretations of the constitutions as
lower court of advocacy of violent overthrow of the United States
Government. Among other grounds of opposition to the application, ideological weapon as it would have if this country should imprison
theGovernment stressed the perile of granting of applicants bail, judged by this handful of Communist leaders on a conviction that our highest
their past acts. Mr. Justice Robert H. Jackson, of the United States Supreme Court would confess to be illegal. Risks, of course, are involved in
Court, acting as Circuit Justice for the Second Circuit, overruled the either granting or refusing bail. I am not naive enough to
objections in an eloquent decision from which I quote the following underestimate the troublemaking propensities of the defendants. But,
passages:. with the Department of Justice alert to the dangers, the worst they
can accomplish in the short time it will take to end the litigation is
"The Government's alternative contention is that defendants, by preferable to the possibility of national embarrasment from a
misbehavior after conviction, have forfeited their claim to bail. Grave celebrated case of unjustified imprisonment of Communist leaders.
public danger is said to result from what they may be expected to do, Under no circumstances must we permit their symbolization of an
in addition to what they have done since their conviction. If I assume evil force in the world to be hallowed and glorified by any semblance
that defendants are disposed to commit every opportune disloyal act of martyrdom. The way to avoid that risk is not to jail these men until
helpful to Communist countries, it is still difficult to reconcile with it is finally decided that they should stay jailed.".
traditional American law the jailing of persons by the courts because
of anticipated but as yet uncommitted crimes. Imprisonment to Let us bear in mind that in the case just cited, the prisoners had already been
protect society from predicted but uncommitted offenses is so found guilty and sentenced, and their right to bail lay within the court's
unprecedented in this country and so fraught with danger of discretion. In the cases at bar the accused have not yet been tried and so,
excesses and injustice that I am loath to resort to it, even as a unless we accept the theses that the right to bail has been suspended, bail is
discretionary judicial technique to supplement conviction of such obligatory.
offenses as those of which defendants stand convicted.
There is no denying that risk is present in every case of granting liberty on
xxx xxx xxx. bail. The wise men who framed the Constitution did not overlook the
possibility of escape; it was and is a matter of common knowledge and
"But the right of every American to equal treatment before the law is occurrence. But the possible escape of accused was considered a lesser evil
wrapped up in the same constitutional bundle with those of these than the imprisonment of persons who may be innocent, and are
communists. If an anger or disgust with these defendants we throw presumedinnocent by law.
out the bundle, we also cast aside protection for the liberties of more
worthy critics who maybe in opposition to the government of some As a measure of expediency, denial of bail in the instant cases would not do
future day. away with the feared danger that the defendants might resume their
nefarious activities. Temporary liberty on bail is not as perilous to public
xxx xxx xxx. peace and order as complete freedom. The defendant's acquittal, which is by
no means a remote probability, would leave the door wide open to the
dreaded consequences. The point is, if the Government could afford the risk
"If, however, I were to be wrong on all of those abstract or theoretical
matters of principle, there is a very practical aspect of this application involved in acquittal, it could the risk that goes with conditional liberty during
which must not be overlooked or underestimated-that is the the short period that it takes to dispose of these cases.
disastrous effect on the reputation of American justice if I should now
send these men to jail and the full Court later decide that their The remark by the Judge Advocate General that by the reason of the
conviction is invalid. All experience with litigation teaches the suspension of the writ of habeas corpus the Army could lawfully re-arrest and
existence of a substantial question about a conviction implies a more re-jail the defendants if they were absolved, happily is not the law. We are
than negligible risk of reversal. Indeed this experience lies back of not to suppose that the courts are being made to work in vain, that their
our rule permitting and practice of allowing bail where such questions decisions could be ignored if they do not meet with the approval of one of the
exist, to avoid the hazard of unjustifiable imprisoning persons with parties.
consequent reproach to our system of justice. If that is prudent
judicial practice in the ordinary case, how much moreimportant to Rebellion is punishable by prision mayor and persona accused of this crime
avoid every chance of handing to the Communist world such an are of right entitled to bail. The inclusion of murders, arsons and kidnappings
in the information must be regarded as aggravating circumstances, as in vouchsafed to him by the Constitution has thereby been affected or impaired
treason, and would not authorize the imposition of a penalty higher than the which he is free to invoke in line with the processes prescribed by our
maximum provided for rebellion. Separate charges for murder, arson, and statutes. For, paraphrasing Justice Davis, "The illustrious men who framed
kidnapping ought to be instituted if the defendants are to be punished for that instrument (whose provisions are similar to ours on this point) limited the
these offenses. Murder, arson, or kidnapping is not an essential element of suspension to one great right, and left the rest to remain forever inviolable"
the definition of rebellion. There is no such creature known to law as the (Ex parte Milligan, 18 U.S. [Law. Ed.] 281, 297). And in our opinion this
complex crime of rebellion or insurrection with murder, etc. For this reason I limitation or restraint must continue so long as the Proclamation suspending
am of the opinion that Judge Abaya did not err in disregarding the offer- the privilege of the writ remains pending if it is to achieve its wholesome
granting there was such an offer-of the City Fiscal to show that the evidence purpose, or so long as the detainee is not pronounced innocent by our courts
against the accused is strong. of justice. If the person indicted is pronounced innocent, the Government has
no cause to hold him in confinement. His case does not come within the
purview of the Proclamatio.

Three fundamental reasons may be advanced in support of the view we have


BAUTISTA ANGELO, J.:. expressed in the preceding paragraph. These reasons are: (1) the express
terms of the Proclamation; (2) the purpose of the Proclamation; and (3) the
nature of the writ of habeas corpus. Tested under the force and strength of
The cases before us involve a fundamental issue which vitally concerns the
these reasons, the only logical conclusion that can be drawn in keeping with
security of the State and the welafare of our people. They involve a conflict
between the State and the individual. When the right of the individual sound rules of statutory construction is that the herein petitioner shoube
conflicts with the security of the State, the latter should be held paramount. denied the right to ba.
This is the self evident political shibboleth. The State is the political body that
stands for society and for the people to secure which individual rights must 1. The concluding paragraph of the Proclamation recites that the privilege of
give way and yield. For as Justice Holmes well said, "when it comes to a the writ of habeas corpus shall be suspended "for the persons presently
decision by the head of the State upon a matter involving its life, the ordinary detained, as well as all others who may be hereafter similarly detained for the
rights of individuals must yield to what he deems the necessities of the crimes of sedition, insurrection, or rebellion, and all other crimes and
moment" (Moyer vs. Peabody, 55 Law. Ed. 410). Only havingin mind this offenses committed by them in furthereance or on the occasion thereof,
fundamental point of view can we determine in its true light the important incident thereto, or in connection therewith". Note the word "detained"
case before us which has no precedent in the annals of our jurisprudence. employed in the Proclamation. It is employed without any qualification or
distinction. To detain is "to hold or to keep as in custody" (Webster's New
The President has issued the proclamation under consideration with one International Dictionary, 2nd ed.). A person detained for purposes of
investigation is no different from one detained after his arrest resulting from
primordial purpose: to promote, protect, and maintain the security of the
his indictment. One is held in custody or deprived of his liberty if he is
nation. To his attention was brought definite evidence showing that groups or
detained before or after he is actually indicted. The scope of the
bands of people have taken up arms against the Government, or have
Proclamation covers both. It is elementary in statutory construction that
engaged in subversive activities in several provinces, causing disturbances
and hampering the peace and tranquility and the normal pursuits of the where the law does not distinguish, we ought not to distinguish. This is too
people. Already many had been wounded and killed, and many more are obvious to require elaboration. It is, therefore, safe to conclude that in the
light of the very terms of the Proclamation the suspension of the privilege of
falling in the body trail. And the victims are civilians and military men alike.
the writ of habeas corpus applies alike to all persons detained for the
Stern measures had to be adopted to stave off a greater perile. The
offenses enumerated therein whether formal charges had been filed against
President saw no other course of action. A picture of the situation is well
them or not.
refected in several passages of the Proclamatio.

"The meaning of this provision in the constitution of the United States


In the light of the precepts of our Constitution, the issuance of the
would seem to be that, when the public safety is endangered by
Proclamation has no other legal consequence than the limitation of the right
rebellion, or invasion, the privilege of this writ (habeas corpus) may
of the individual to his liberty. This is the immediate effect of the suspension
of the privilege of the writ of habeas corpus. No other right or privilege be suspended as to persons suspected of or charged with aiding,
sustaining or promoting such rebellion or invasion, and thereby
endangering the public safety." (39 CJS754-755; People vs. Gaul, 44 therefore, an all-embracingremedy the purpose of which is to test the legality
Barb. 98, N.Y., underscoring and word in parenthesis supplied.). of restraint irrespective of its nature. If this is the only remedy available to
one deprived of his liberty it logically follows that the Proclamation denies him
2. As we have already adverted to, the paramount purpose behind the the right to bail.
issuance of the Proclamation is to protect and safeguard public safety or
national security or "to insure the peace and security of the population and to The power of the President to hold in custody indefinitely a person suspected
maintain the authority of the Government". This is the compelling objective of of any of the acts covered by the Proclamation is not disputed. In fact
the Proclamation. The reasons and motives that have compelled the opposing counsel are agreed that the President may so hold him so long as
President to issue it are well narrated therein all pointing in bold relief to the he believes it imperative to safeguard public safety. What they contend is
necessity of placing the persons affected under restraint to prevent them that while that is an untrammelled prerogative of the Chief Executive granted
from strengthening the forces of rebellion and increasing the danger to to him by the Constitution, his function ends the moment he submits the case
national security. If there is justification for their confinement while they are to the courts of justice. From that moment, they contend the executive
under investigation for the purpose of determining their participation or function ends and the judicial function begins. Since then the accused is
complicity in the acts for which they are held under suspicion, there is indeed placed under the absolute power and authority of the courts to be dealt with
more cogent and plausible reason, if not more, to keep them behind bars in accordance with law and the constitutio.
after they are indicted and turned over to the courts for the corresponding
prosecution. Before they are indicted and formally charged, the right to hold We have no quarrel with this pretense if carried to its logical conclusion. We
them is merely predicated on suspicion or at best on circumstancial evidence concede that once the case is brought to court the indictee is placed under
of doubtful probative value. But after formal charges are filed against them, the full command of the court who can exercise over him his plenary
the suspicion becomes strengthened and the evidence reinforced and jurisdiction. We also concede that the detainee, once indicted, can invoke in
secure. The military authorities could hold them in confinement indefinitely if his favor all the rights guaranteed to him by law and the Constitution if he
they so prefer, but they chose to turn them over to the courts not merely to deems it necessary to protect his interest. And in this sense, he can invoke
give them an opportunity to prove their innocence but as a proof of their his right to a speedy trial, to be defended by counsel, to be confronted by the
abiding faith in the processes of democracy. To release them on bail after cross-examine witnesses, to have compulsory process in his favor, to secure
their indictment would be to defeat the very purpose of the Proclamation the attendance of witnesses in his behalf, and to such other rights granted to
because its logical result would be to give freedom to those who, if before the accused in ordinary cases. He may even ask for time to prepare for trial.
were mere suspects, now a real menace because the evidence against them This right is not denied to him for the simple reason of his confinement for he
is stronger and more compelling. We are not prepared to adopt an can always confer with his counsel or witnesses if he so desires, and the jail
interpretation that would give such absurd and inconsistent result.3. authorities, to be sure, will not dare deny him this privilege. In other words,
Considering the very nature of the writ of habeas corpus in the light of law he is not denied due process of law simply because of his confinement. The
and precedents, the same conclusion can be reached. The law and only limitation on his right refers to his freedom which, as already stated, has
precedents on the matter reveal to us that that writ is the only remedy open been withheld from him by the Proclamation. The contention that to deny the
to a person held in confinement regardless of its nature. Section 1 of Rule accused the right to bail oncethe court has acquired jurisdiction over him
102, speaking of the scope of that writ, provides that it "shall extend to all would be a relinquishment of a judicial prerogative cannot stand in the light of
cases of illegal confinement or detention by which any person is deprived of what we have heretofore stated because that power has been obliterated as
his liberty". It refers to all cases of confinement, whether before indictment or a necessary consequence of the suspension of the privilege of the writ
thereafter. It does not make any distinction. Precedents available here and of habeas corpus. What is not possessed cannot be relinquished. Under the
elsewhere point to the same conclusion. They are all agreed that if a person same token the denial of bail is not a denial of a right because the same has
is deprived of his liberty, his only remedy is to invoke that the writ whether in been withheld by the Proclamation. And good reasons may be invoked in
the form of mandamus or certiorari. So we said in a case recently decided in support of this limitation of right.
this jurisdiction (People vs. Alano, No. L-1801, May 14, 1946; 45 Off. Gaz.,
No. 11, pp. 4935-4936). It has also been held that this privilege is not only It should be noted that the privilege of the writ of habeas corpus and the right
the right to be discharged from imprisonment, but also the right to give bail if
of an accused person to bail are both embodied in the Bill of Rights of our
the offense is bailable, and if not bailable, the right to a speedy trial and
Constitution. Section 1(14) of article III, refers to the first, and Section 1(16)
without arbitrary delay. (In re Dugan, 1865-6 D.C. 131, 139, see also in re
of the same Article refers to the second. It should also be noted that the
Fagan, D.C. Mass. 1863, 2 Sprague, 91, 8 Fed. Cases No. 4604). It is, suspension of the privilege of the writ of habeas corpus hasreference only to
cases of invasion, insurrection, and rebellion, whereas the right of an "It would be an absurdity to say that the action of theexecutive, under
accused person to bail refers to all offenses with the exception only of those such circumstance, may be negatived and set atnaught by the
involving capital punishment when evidence of guilt is strong. Paragraph 14 judiciary, or that the action of the executive maybe interfered with or
is, therefore, a provision which is special or specific in nature, whereas impugned by the judiciary. If the courtsare to be made a sanctuary, a
paragraph 16 is a general one. And it is a well known rule of statutory city of refuge .. they will sooncease to be that palladium of the rights
construction that "when general and special provisions of a constitution are in of the citizen ..".
conflict, the special provisions should be given effect to the extent of their
scope, leaving the general provisions to control in cases where the special It is not the province of the courts to hinder, delay, or
provisions do not apply" (16 C.J.S. p. 65); or "where there is a conflicting placeobstructions in the path of duty prescribed by law for
specific and general provision, or a particular intent which is incompatible theexecutive, but rather to render him all the aid and assistance
with a general intent, the specific provision or particular intent will be treated intheir power in his efforts to bring about the consummation
as an exception, and should receive a strict, but reasonable, construction. mostdevoutly prayed for by every good and law-abiding citizen in
The courts will neither curtail a general rule nor add to an exception by thestate." (In re Boyle, 45 L.R.A. 832, 836-837;
implication" (16 C.J.S. p. 66). Anunder this rule, the suspension of the underscoringsupplied.).
privilege of the writ of the habeas corpus should be treated as an exception
to the general clause providing for bail to all persons charged with offenses
Our country is in distress. Our individual and collective security in great peril.
not involving a capital punishment. Another rule is that, "in case of a conflict
Our Chief Executive has taken stock of the gravity of the situation and to
in the provisions of a constitution, if one or the other must yield, the one
avert the spread of the subversive movement, has issued the Proclamation
which, under the law, is the lesser right will yield" (16 C.J.S. p. 65). And
under consideration. It is our duty to find a way within the tenents of the law
speaking of the two conflicting provisions, there is no doubt that the to the end that this great and compelling objective may be brought to a happy
suspension of the privilege is a greater right because it involves the security and successful fruition.
of the State. The right to bail must, therefore, yield because it merely involves
the right of an individual. .
For all the foregoing reasons, I vote for denial of the right to bail.
There are other rules that may be invoked in support of our theory. Thus, it
was held that "in ascertaining both the intent and general purpose, as well as
the meaning, of a constitution or a part thereof, it should be construed as a
whole. As far as possible, each provision should be construed so as to
harmonize with all the others, (yet) with a view to giving effect to eachand BAUTISTA ANGELO, J., concurring in the result (in L-5102):.
every provision in so far as it shall be consistent with the construction of the
instrument as a whole" (16 C.J.S. p. 62). And "The presumption and legal In G.R. No. L-5102 entitled Eugenio Angeles, the City Fiscal of
intendment is that each and every clause in a written constitution has been Manila vs. Hon. Gavino S. Abaya, as Judge of the Court of First Instance of
inserted for some useful purpose, and courts should avoid a construction Manila, I vote for the granting of the petition that the respondent Judge be
which would render any portion of the constitution meaningless" (16 C.J.S., ordered to hear the evidence of the prosecution to enbale it to prove the
p. 64). strength of the evidence of guilt of the defendants as authorized by section 1
(16), Article III of our Constitution.I predicate my vote merely on a matter of
In the light of the foregoing rules no other conslusion can be reached, for to procedure which the respondent Judge has disregarded notwithstanding the
hold that because of the incidence of the filing of a formal charge the court express request to that effect by the prosecution. The reasons advanced for
can grant an indictee his liberty under bail as counsel now contend would be denying such request are in my opinion untenable because the order of
to render ineffective and nugatory the suspension of the privilege exercised September 12, 1951, granting bail was not yet final when the request to
by virtue of a mandate of the same constitution. That is an unreasonable present evidence was made and because estoppel does not operate against
interpretation. It is our duty to reconcile and harmonize themso that both law and the Constitution. When, therefore, the respondent Judge denied the
provisions can be given effect and validity. We should give them a fair, request of the prosecution to be given that opportunity considering the
consistent and harmonious interpretation. circumstances that had concurred in the incident regarding bail, he
committed an abuse of discretio.
The prosecution is entitled to be given an opportunity to present evidence as Section 2 of Rule 56, in connection with section 1 Rule 58 of the Rules of
to the guilt of the defendants because the information charges a capital Court, provides that "When he Supreme Court in banc is equally divided in
offense. There was, therefore, room for the respondent Judge to act on the opinion or the necessary majority can not be had, the case shall be reheard
petition to grant bail to defendants without passing on the controversial and if on rehearing no decision is reached, the action shall be dismissed if
question touching on the effect of the suspension of the privilege of the writ originally commenced in the court; in appealed cases the judgment or order
of habeas corpus on the right to bail. appealed from shall stand affirmed in civil cases;" and in criminal cases "the
judgment of conviction of the lower court shall be reversed, and the
On this question, I have already expressed my view in a separate decision. defendant acquitted according to section 12 of Rule 120. Said provisions of
The vote of the Court on this issue is divided and so far no decision has been the Rules of Court were relatively of more frequent application to cases to be
reached. My vote in this case is merely limited to a matter of procedure which decided by the Supreme Court at thetime and after said Rules were
in my opinion should be decided in favor of the prosecution. promulgated in 1940, because thenumber of Justices of the Supreme Court
was reduced to seven bythe Commonwealth Act No. 3 approved on
December 31, 1935, whichcreated the Court of Appeals although the second
paragraph ofsection 2 of said Commonwealth Act No. 3 contained
substantially the same provisions as those of the second paragraph above-
quoted of section 9 of the Judiciary Act of 1948. In People vs. Galang, No.
FIERA, J., dissenting (in L-4855 and L-4964):. 46787 decided on September 12, 1941, (73 Phil. 184, 201), Justices Paras
and Hontiveros of the Court of Appeals were designated by the President to
I dissent from the minute resolution which dismisses the petitions in these act as Justices of the Supreme Court in lieu of Justices Santos and Ozaeta
case under section 2 of Rule 56, on the ground that after the rehearing under section 2 of Commonwealth Act No. 3, and there were also several
thereof the necessary majority of six votes can not be had for the such designations after the occupation in cases decided by this Court.
pronouncement of a judgment or decision.
But after the new Judiciary Act of 1948 was approved increasing the number
In view of the result of the last deliberation and voting in these cases, five (5) of Justices from seven to eleven, the above quoted provisions of section 2 of
Justices to four (4), and the fact that there is one vacancy now in the Rule 56 and section 12 of Rule 120 became almost obsolete, because there
Supreme Court and the Justice Montemayor, one of the Justices, is absent will always be eleven (11) Justices of the Supreme Court present and
on vacation abroad, I submitted to the Supreme Court in banc the qualified to act, by the designation of sufficient number of Justices of the
proposition, which was not accepted, that a recommendation be made by the Court of Appeals or District Judges by the President of the Philippines upon
Honorable Chief Justice of this Court to the President of the Philippines for recommendation of the Chief Justice of the Supreme Court if necessary in
the designation of two Justices of the Court of Appeals or district judges to sit any given case until a judgment is reached according to section 9 of the
temporarily as Justices of the Supreme Court until a judgment in this case is above quoted of the Judiciary Act of 1948. With eleven qualified Justices of
reached by the concurrence of six Justices, under section 9 of Judiciary Act the Supreme Court present, the concurrence of six Justices necessary for
of 1948, Republic Act No.296. Said section 9 provides that "if on account of the pronouncement of a judgment may always be had, except in very
illness, absence, incapacity upon any of the frounds mentioned in section 1, exceptional cases in which, notwithstanding such designation of temporary
Rule 126, of the Rules of Court of any of the Justices of the Supreme Court, Justices ofthe President, the concurrence of six Justices can not be had, and
or wherever, by reason of temporary disability of any Justice thereof or said provisions of the Rules of Court may be applied.
vacancies occurring therein, the requisite number of six Justices necessary
to render or concurr in a judgment in any given case can not be had, the I am of the opinion that the provisions of section 2, Rule 56 of the Rules of
President of the Philippines, upon the recommendation of the Chief Justice, Court can not be applied to the present case, which is a very important one
may designate such number of Justices of the Court of Appeals or district and requires a decision on the merits by the majority of this Court, because
judges as may be necessary to sit temporarily as Justices of the Supreme no recommendation has been made by the Chief Justice to the President of
Court, until the judgment in said case is reached." Had the Chief Justice of the Philippines to designate two Justices of the Court of Appeals or district
this Court made that recommendation and the President designated two judges to sit temporarily as Justices of the Supreme Court, for as above
Justices of the Court of Appeals or District judges to sit temporarily as stated there is one vacancy in this Court and justice Mayor is absent on
Justices of the Supreme Court, a judgment in the present case must have vacation abroad.
necessarily been reached.
As there is no decision in the present case it is not necessary for the grave abuse of discretion in releasing the defendants on bail without
members of this Court to write their individual opinion or concur in the opinion giving the prosecution opportunity, asked by the City Fiscal of
of others, and for that reason I am not writing down my opinion on the merits. Manila, to present evidence to show that the evidence of guilt against
the defendants is strong and, therefore, they are not entitled to bail
Petition dismissed in L-4855 and L-4964. according to Judge Abaya's theory. But in the present case, as
Judge Montesa is of the opinion that all persons accused of rebellion
and insurrection can not be released on bail irrespective of whether
In L-5102 respondent Judge is ordered to hear the evidence to determine
whether it is strong and act accordingly. or not said crimes are capital and there is no strong evidence ofguilt
against them, said judge has not acted in excess of his jurisdiction or
with grave abuse of discretion in not allowing the defendants to
EXCERPT FROM THE MINUTES OF NOV. 6, 1951. present evidence to prove that evidence of guilt against them is not
strong. To compel judge Montesa to grant the petitioner's petition
"For lack of necessary vote, the motion for reconsideration and would be tantamount to assuming that his opinion is not in conformity
clarification filed by attorneys for petitioners in G.R. No. L-4964, with law or to compelling him without reason to adopt to their theory,
Amado V. Hernandez vs. Agustin P. Montesa, etc., is denied. The which is neithercorrect nor wrong since this Court has failed to lay
Justices see no reason to modify their stands. down adefinite ruling on the matter.".

"The Chief Justice, however, believs that, in accordance with the Republic of the Philippines
decision in G.R. No. L-5102, Eugenio Angeles, etc., et al., the SUPREME COURT
prosecution should be required to present proof as to the guilt of the Manila
petitioner, Amado V. Hernandez, to determine whether the evidence
of guilt is strong or not, because the offense with which he is charged FIRST DIVISION
is capital, after which the respondent Judge may pass on his right to
bail. There is no reason why the decision in the Abaya case,
G.R. No. 188550 August 19, 2013
sustained by a majority necessary to make it a binding precedent,
should not be applied in principle, since its effect is logically to
recognize the right to bail of accused charged with rebellion. The DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,
petition in the Abaya case should have been dismissed on the vs.
technical ground of lack of required vote, in order that the resolution COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
therein and its consequent implication may not have the force of
jurisprudence. DECISION

"Mr. Justice Feria concurs in the minute resolution denying the SERENO, CJ.:
petition for reconsideration on the following grounds: The ruling in
the resolution of this Court in Angeles vs. Hon. Abaya, G.R. No. L- This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch
5102, is not applicable in the present case. As this Supreme Court (petitioner) under Rule 45 of the 1997 Rules of Civil Procedure assailing the
has failed to lay down a definite ruling, in the present case, as to Court of Tax Appeals En Banc (CTA En Banc) Decision2 dated 29 May 2009
whether or not persons charged with rebellion or insurrection may be and Resolution3 dated 1 July 2009 in C.T.A. EB No. 456.
released on bail, in view of the suspension of the privilege of the writ
of habeas corpus by the President of the Philippines, Judges of First
THE FACTS
Instance are now free and would not err in sustaining one theory or
another. Judge Abaya in that case was of the opinion that he had
discretion to release on bail persons accused of said crimes with In accordance with Section 28(A)(5)4 of the National Internal Revenue Code
murder, arson, or kidnapping, punishable with capital punishment, if (NIRC) of 1997, petitioner withheld and remitted to respondent on 21 October
evidence of defendnat's guilt is not strong; and the majority of this 2003 the amount of PHP 67,688,553.51, which represented the fifteen
Court ruled that said Judge acted in excess of jurisdiction or with percent (15%) branch profit remittance tax (BPRT) on its regular banking unit
(RBU) net income remitted to Deutsche Bank Germany (DB Germany) for The CTA En Banc affirmed the CTA Second Division’s Decision dated 29
2002 and prior taxable years.5 August 2008 and Resolution dated 14 January 2009. Citing Mirant, the CTA
En Banc held that a ruling from the ITAD of the BIR must be secured prior to
Believing that it made an overpayment of the BPRT, petitioner filed with the the availment of a preferential tax rate under a tax treaty. Applying the
BIR Large Taxpayers Assessment and Investigation Division on 4 October principle of stare decisis et non quieta movere, the CTA En Banc took into
2005 an administrative claim for refund or issuance of its tax credit certificate consideration that this Court had denied the Petition in G.R. No. 168531 filed
in the total amount of PHP 22,562,851.17. On the same date, petitioner by Mirant for failure to sufficiently show any reversible error in the assailed
requested from the International Tax Affairs Division (ITAD) a confirmation of judgment.11 The CTA En Banc ruled that once a case has been decided in
its entitlement to the preferential tax rate of 10% under the RP-Germany Tax one way, any other case involving exactly the same point at issue should be
Treaty.6 decided in the same manner.

Alleging the inaction of the BIR on its administrative claim, petitioner filed a The court likewise ruled that the 15-day rule for tax treaty relief application
Petition for Review7 with the CTA on 18 October 2005. Petitioner reiterated under RMO No. 1-2000 cannot be relaxed for petitioner, unlike in CBK Power
its claim for the refund or issuance of its tax credit certificate for the amount Company Limited v. Commissioner of Internal Revenue.12 In that case, the
of PHP 22,562,851.17 representing the alleged excess BPRT paid on branch rule was relaxed and the claim for refund of excess final withholding taxes
profits remittance to DB Germany. was partially granted. While it issued a ruling to CBK Power Company
Limited after the payment of withholding taxes, the ITAD did not issue any
ruling to petitioner even if it filed a request for confirmation on 4 October
THE CTA SECOND DIVISION RULING8
2005 that the remittance of branch profits to DB Germany is subject to a
preferential tax rate of 10% pursuant to Article 10 of the RP-Germany Tax
After trial on the merits, the CTA Second Division found that petitioner indeed Treaty.
paid the total amount of PHP 67,688,553.51 representing the 15% BPRT on
its RBU profits amounting to PHP 451,257,023.29 for 2002 and prior taxable
ISSUE
years. Records also disclose that for the year 2003, petitioner remitted to DB
Germany the amount of EURO 5,174,847.38 (or PHP 330,175,961.88 at the
exchange rate of PHP 63.804:1 EURO), which is net of the 15% BPRT. This Court is now confronted with the issue of whether the failure to strictly
comply with RMO No. 1-2000 will deprive persons or corporations of the
benefit of a tax treaty.
However, the claim of petitioner for a refund was denied on the ground that
the application for a tax treaty relief was not filed with ITAD prior to the
payment by the former of its BPRT and actual remittance of its branch profits THE COURT’S RULING
to DB Germany, or prior to its availment of the preferential rate of ten percent
(10%) under the RP-Germany Tax Treaty provision. The court a quo held The Petition is meritorious.
that petitioner violated the fifteen (15) day period mandated under Section III
paragraph (2) of Revenue Memorandum Order (RMO) No. 1-2000. Under Section 28(A)(5) of the NIRC, any profit remitted to its head office
shall be subject to a tax of 15% based on the total profits applied for or
Further, the CTA Second Division relied on Mirant (Philippines) Operations earmarked for remittance without any deduction of the tax component.
Corporation (formerly Southern Energy Asia-Pacific Operations [Phils.], Inc.) However, petitioner invokes paragraph 6, Article 10 of the RP-Germany Tax
v. Commissioner of Internal Revenue9 (Mirant) where the CTA En Banc ruled Treaty, which provides that where a resident of the Federal Republic of
that before the benefits of the tax treaty may be extended to a foreign Germany has a branch in the Republic of the Philippines, this branch may be
corporation wishing to avail itself thereof, the latter should first invoke the subjected to the branch profits remittance tax withheld at source in
provisions of the tax treaty and prove that they indeed apply to the accordance with Philippine law but shall not exceed 10% of the gross amount
corporation. of the profits remitted by that branch to the head office.

THE CTA EN BANC RULING10 By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch
in the Philippines, remitting to its head office in Germany, the benefit of a
preferential rate equivalent to 10% BPRT.
On the other hand, the BIR issued RMO No. 1-2000, which requires that any of fact and legal conclusions, are deemed sustained. But what is its effect on
availment of the tax treaty relief must be preceded by an application with other cases?
ITAD at least 15 days before the transaction. The Order was issued to
streamline the processing of the application of tax treaty relief in order to With respect to the same subject matter and the same issues concerning the
improve efficiency and service to the taxpayers. Further, it also aims to same parties, it constitutes res judicata. However, if other parties or another
prevent the consequences of an erroneous interpretation and/or application subject matter (even with the same parties and issues) is involved, the
of the treaty provisions (i.e., filing a claim for a tax refund/credit for the minute resolution is not binding precedent. Thus, in CIR v. Baier-Nickel, the
overpayment of taxes or for deficiency tax liabilities for underpayment). 13 Court noted that a previous case, CIR v. Baier-Nickel involving the same
parties and the same issues, was previously disposed of by the Court thru a
The crux of the controversy lies in the implementation of RMO No. 1-2000. minute resolution dated February 17, 2003 sustaining the ruling of the CA.
Nonetheless, the Court ruled that the previous case "ha(d) no bearing" on the
Petitioner argues that, considering that it has met all the conditions under latter case because the two cases involved different subject matters as they
Article 10 of the RP-Germany Tax Treaty, the CTA erred in denying its claim were concerned with the taxable income of different taxable years.
solely on the basis of RMO No. 1-2000. The filing of a tax treaty relief
application is not a condition precedent to the availment of a preferential tax Besides, there are substantial, not simply formal, distinctions between a
rate. Further, petitioner posits that, contrary to the ruling of the CTA, Mirant is minute resolution and a decision. The constitutional requirement under the
not a binding judicial precedent to deny a claim for refund solely on the basis first paragraph of Section 14, Article VIII of the Constitution that the facts and
of noncompliance with RMO No. 1-2000. the law on which the judgment is based must be expressed clearly and
distinctly applies only to decisions, not to minute resolutions. A minute
Respondent counters that the requirement of prior application under RMO resolution is signed only by the clerk of court by authority of the justices,
No. 1-2000 is mandatory in character. RMO No. 1-2000 was issued pursuant unlike a decision. It does not require the certification of the Chief Justice.
to the unquestioned authority of the Secretary of Finance to promulgate rules Moreover, unlike decisions, minute resolutions are not published in the
and regulations for the effective implementation of the NIRC. Thus, courts Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks
cannot ignore administrative issuances which partakes the nature of a statute of a decision. Indeed, as a rule, this Court lays down doctrines or principles
and have in their favor a presumption of legality. of law which constitute binding precedent in a decision duly signed by the
members of the Court and certified by the Chief Justice. (Emphasis supplied)
The CTA ruled that prior application for a tax treaty relief is mandatory, and
noncompliance with this prerequisite is fatal to the taxpayer’s availment of Even if we had affirmed the CTA in Mirant, the doctrine laid down in that
the preferential tax rate. Decision cannot bind this Court in cases of a similar nature. There are
differences in parties, taxes, taxable periods, and treaties involved; more
importantly, the disposition of that case was made only through a minute
We disagree.
resolution.
A minute resolution is not a binding precedent
Tax Treaty vs. RMO No. 1-2000
At the outset, this Court’s minute resolution on Mirant is not a binding
Our Constitution provides for adherence to the general principles of
precedent. The Court has clarified this matter in Philippine Health Care
international law as part of the law of the land. 15The time-honored
Providers, Inc. v. Commissioner of Internal Revenue14 as follows:
international principle of pacta sunt servanda demands the performance in
good faith of treaty obligations on the part of the states that enter into the
It is true that, although contained in a minute resolution, our dismissal of the agreement. Every treaty in force is binding upon the parties, and obligations
petition was a disposition of the merits of the case. When we dismissed the under the treaty must be performed by them in good faith.16 More
petition, we effectively affirmed the CA ruling being questioned. As a result, importantly, treaties have the force and effect of law in this jurisdiction.17
our ruling in that case has already become final. When a minute resolution
denies or dismisses a petition for failure to comply with formal and
substantive requirements, the challenged decision, together with its findings Tax treaties are entered into "to reconcile the national fiscal legislations of
the contracting parties and, in turn, help the taxpayer avoid simultaneous
taxations in two different jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. discourages foreign investors. While the consequences sought to be
further clarifies that "tax conventions are drafted with a view towards the prevented by RMO No. 1-2000 involve an administrative procedure, these
elimination of international juridical double taxation, which is defined as the may be remedied through other system management processes, e.g., the
imposition of comparable taxes in two or more states on the same taxpayer imposition of a fine or penalty. But we cannot totally deprive those who are
in respect of the same subject matter and for identical periods. The apparent entitled to the benefit of a treaty for failure to strictly comply with an
rationale for doing away with double taxation is to encourage the free flow of administrative issuance requiring prior application for tax treaty relief.
goods and services and the movement of capital, technology and persons
between countries, conditions deemed vital in creating robust and dynamic Prior Application vs. Claim for Refund
economies. Foreign investments will only thrive in a fairly predictable and
reasonable international investment climate and the protection against
Again, RMO No. 1-2000 was implemented to obviate any erroneous
double taxation is crucial in creating such a climate."19
interpretation and/or application of the treaty provisions. The objective of the
BIR is to forestall assessments against corporations who erroneously availed
Simply put, tax treaties are entered into to minimize, if not eliminate the themselves of the benefits of the tax treaty but are not legally entitled thereto,
harshness of international juridical double taxation, which is why they are as well as to save such investors from the tedious process of claims for a
also known as double tax treaty or double tax agreements. refund due to an inaccurate application of the tax treaty provisions. However,
as earlier discussed, noncompliance with the 15-day period for prior
"A state that has contracted valid international obligations is bound to make application should not operate to automatically divest entitlement to the tax
in its legislations those modifications that may be necessary to ensure the treaty relief especially in claims for refund.
fulfillment of the obligations undertaken."20 Thus, laws and issuances must
ensure that the reliefs granted under tax treaties are accorded to the parties The underlying principle of prior application with the BIR becomes moot in
entitled thereto. The BIR must not impose additional requirements that would refund cases, such as the present case, where the very basis of the claim is
negate the availment of the reliefs provided for under international erroneous or there is excessive payment arising from non-availment of a tax
agreements. More so, when the RP-Germany Tax Treaty does not provide treaty relief at the first instance. In this case, petitioner should not be faulted
for any pre-requisite for the availment of the benefits under said agreement. for not complying with RMO No. 1-2000 prior to the transaction. It could not
have applied for a tax treaty relief within the period prescribed, or 15 days
Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which prior to the payment of its BPRT, precisely because it erroneously paid the
would indicate a deprivation of entitlement to a tax treaty relief for failure to BPRT not on the basis of the preferential tax rate under
comply with the 15-day period. We recognize the clear intention of the BIR in
implementing RMO No. 1-2000, but the CTA’s outright denial of a tax treaty the RP-Germany Tax Treaty, but on the regular rate as prescribed by the
relief for failure to strictly comply with the prescribed period is not in harmony NIRC. Hence, the prior application requirement becomes illogical. Therefore,
with the objectives of the contracting state to ensure that the benefits granted the fact that petitioner invoked the provisions of the RP-Germany Tax Treaty
under tax treaties are enjoyed by duly entitled persons or corporations. when it requested for a confirmation from the ITAD before filing an
administrative claim for a refund should be deemed substantial compliance
Bearing in mind the rationale of tax treaties, the period of application for the with RMO No. 1-2000.
availment of tax treaty relief as required by RMO No. 1-2000 should not
operate to divest entitlement to the relief as it would constitute a violation of Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy
the duty required by good faith in complying with a tax treaty. The denial of for tax recovery when there has been an erroneous payment of
the availment of tax relief for the failure of a taxpayer to apply within the tax.1âwphi1 The outright denial of petitioner’s claim for a refund, on the sole
prescribed period under the administrative issuance would impair the value ground of failure to apply for a tax treaty relief prior to the payment of the
of the tax treaty. At most, the application for a tax treaty relief from the BIR BPRT, would defeat the purpose of Section 229.
should merely operate to confirm the entitlement of the taxpayer to the relief.
Petitioner is entitled to a refund
The obligation to comply with a tax treaty must take precedence over the
objective of RMO No. 1-2000.1âwphi1 Logically, noncompliance with tax
It is significant to emphasize that petitioner applied – though belatedly – for a
treaties has negative implications on international relations, and unduly tax treaty relief, in substantial compliance with RMO No. 1-2000. A ruling by
the BIR would have confirmed whether petitioner was entitled to the lower Deutsche Bank AG Manila Branch the amount of TWENTY TWO MILLION
rate of 10% BPRT pursuant to the RP-Germany Tax Treaty. FIVE HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE
PESOS AND SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine
Nevertheless, even without the BIR ruling, the CTA Second Division found as currency, representing the erroneously paid BPRT for 2002 and prior taxable
follows: years.

Based on the evidence presented, both documentary and testimonial, SO ORDERED.


petitioner was able to establish the following facts:
MARIA LOURDES P. A. SERENO
a. That petitioner is a branch office in the Philippines of Deutsche Chief Justice, Chairperson
Bank AG, a corporation organized and existing under the laws of the
Federal Republic of Germany; WE CONCUR:

b. That on October 21, 2003, it filed its Monthly Remittance Return of TERESITA J. LEONARDO-DE CASTRO
Final Income Taxes Withheld under BIR Form No. 1601-F and Associate Justice
remitted the amount of ₱67,688,553.51 as branch profits remittance
tax with the BIR; and LUCAS P. BERSAMIN JOSE C. MENDOZA*
Associate Justice Associate Justice
c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having
issued a clearance, petitioner remitted to Frankfurt Head Office the
amount of EUR5,174,847.38 (or ₱330,175,961.88 at 63.804 BIENVENIDO L. REYES
Peso/Euro) representing its 2002 profits remittance.22 Associate Justice

The amount of PHP 67,688,553.51 paid by petitioner represented the 15% CERTIFICATION
BPRT on its RBU net income, due for remittance to DB Germany amounting
to PHP 451,257,023.29 for 2002 and prior taxable years.23 Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
Likewise, both the administrative and the judicial actions were filed within the the case was assigned, to the writer of the opinion of the Court's Division.
two-year prescriptive period pursuant to Section 229 of the NIRC.24
MARIA LOURDES P. A. SERENO
Clearly, there is no reason to deprive petitioner of the benefit of a preferential Chief Justice
tax rate of 10% BPRT in accordance with the RP-Germany Tax Treaty.

Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU
net income amounting to PHP 451,257,023.29 for 2002 and prior taxable
years, applying the 10% BPRT. Thus, it is proper to grant petitioner a refund Footnotes
ofthe difference between the PHP 67,688,553.51 (15% BPRT) and PHP
45,125,702.34 (10% BPRT) or a total of PHP 22,562,851.17. * Designated additional member in lieu of Associate Justice Martin S.
Villarama, Jr. per Special Order No. 1502.
WHEREFORE, premises considered, the instant Petition is GRANTED.
Accordingly, the Court of Tax Appeals En Banc Decision dated 29 May 2009 1 Rollo, pp. 12-60.
and Resolution dated 1 July 2009 are REVERSED and SET ASIDE. A new
one is hereby entered ordering respondent Commissioner of Internal 2Id. at 68-78; penned by Associate Justice Lovell R. Bautista and
Revenue to refund or issue a tax credit certificate in favor of petitioner concurred in by then Presiding Justice Ernesto D. Acosta, Associate
Justices Juanito C. Castaneda Jr., Erlinda P. Uy, Caesar A. Palanca-Enriquez. The case was affirmed by the Supreme Court in
Casanova and Olga Palanca-Enriquez. the Resolutions dated 12 November 2007 and 18 February 2008 in
G.R. No. 168531; (visited 5 June 2013). Pertinent portion of Mirant
3 Id. at 79-80. provides:

4 SEC. 28. Rates of Income Tax on Foreign Corporations.- "However, it must be remembered that a foreign corporation
wishing to avail of the benefits of the tax treaty should invoke
(A) Tax on Resident Foreign Corporations.- the provisions of the tax treaty and prove that indeed the
provisions of the tax treaty applies to it, before the benefits
may be extended to such corporation. In other words, a
xxxx resident or non-resident foreign corporation shall be taxed
according to the provisions of the National Internal Revenue
(5) Tax on Branch Profits Remittances. - Any profit remitted Code, unless it is shown that the treaty provisions apply to
by a branch to its head office shall be subject to a tax of the said corporation, and that, in cases the same are
fifteen percent (15%) which shall be based on the total applicable, the option to avail of the tax benefits under the
profits applied or earmarked for remittance without any tax treaty has been successfully invoked.
deduction for the tax component thereof (except those
activities which are registered with the Philippine Economic Under Revenue Memorandum Order 01-2000 of the Bureau
Zone Authority). The tax shall be collected and paid in the of Internal Revenue, it is provided that the availment of a tax
same manner as provided in Sections 57 and 58 of this treaty provision must be preceded by an application for a tax
Code: Provided, That interests, dividends, rents, royalties, treaty relief with its International Tax Affairs Division (ITAD).
including remuneration for technical services, salaries, This is to prevent any erroneous interpretation and/or
wages, premiums, annuities, emoluments or other fixed or application of the treaty provisions with which the Philippines
determinable annual, periodic or casual gains, profits, is a signatory to. The implementation of the said Revenue
income and capital gains received by a foreign corporation Memorandum Order is in harmony with the objectives of the
during each taxable year from all sources within the contracting state to ensure that the granting of the benefits
Philippines shall not be treated as branch profits unless the under the tax treaties are enjoyed by the persons or
same are effectively connected with the conduct of its trade corporations duly entitled to the same."
or business in the Philippines.
10 Supra note 2.
5 Rollo, pp. 69-70.
11SC Minute Resolutions dated 12 November 2007 and 18 February
6 Id. at 70. 2008.
7 Id. at 150-157. 12CBK Power Company Limited v. Commissioner of Internal
Revenue, C.T.A. Case Nos. 6699, 6884 & 7166, 12 February 1999,
8Id. at 109-125; CTA Second Division Decision dated 29 August penned by Associate Justice Caesar A. Casanova and concurred in
2008, penned by Associate Justice Erlinda P. Uy and concurred in by then Presiding Justice Ernesto D. Acosta and Associate Justice
by Associate Justices Juanito C. Castañeda, Jr. and Olga Palanca- Lovell R. Bautista.
Enriquez.
13 REVENUE MEMORANDUM ORDER NO. 01-00
9C.T.A. EB No. 40 (CTA Case No. 6382), 7 June 2005, penned by
Associate Justice Erlinda P. Uy and concurred in by then Presiding SUBJECT : Procedures for Processing Tax Treaty Relief
Justice Ernesto D. Acosta, and Associate Justices Juanito C. Application
Castañeda Jr., Lovell R. Bautista, Caesar A. Casanova and Olga
TO : All Internal Revenue Officers and Others Concerned 17Luna v. Court of Appeals, G.R. No. 100374-75, 27 November
1992, 216 SCRA 107, 111-112.
I. Objectives:
18 CIR v. S.C. Johnson and Son, Inc., 368 Phil. 388, 404 (1999).
This Order is issued to streamline the processing of the tax
treaty relief application in order to improve efficiency and 19 Id. at 404-405.
service to the taxpayers.
20 Tañada v. Angara, 388 Phil. 546, 592 (1997).
Furthermore, it is to the best interest of both the taxpayer
and the Bureau of Internal Revenue that any availment of 21 Section 229. Recovery of Tax Erroneously or Illegally Collected. -
the tax treaty provisions be preceded by an application for No suit or proceeding shall be maintained in any court for the
treaty relief with the International Tax Affairs Division (ITAD). recovery of any national internal revenue tax hereafter alleged to
In this way, the consequences of any erroneous have been erroneously or illegally assessed or collected, or of any
interpretation and/or application of the treaty provisions (i.e., penalty claimed to have been collected without authority, of any sum
claim for tax refund/credit for overpayment of taxes, or alleged to have been excessively or in any manner wrongfully
deficiency tax liabilities for underpayment) can be averted collected without authority, or of any sum alleged to have been
before proceeding with the transaction and or paying the tax excessively or in any manner wrongfully collected, until a claim for
liability covered by the tax treaty. refund or credit has been duly filed with the Commissioner; but such
suit or proceeding may be maintained, whether or not such tax,
xxxx penalty, or sum has been paid under protest or duress.

III. Policies: In any case, no such suit or proceeding shall be filed after
the expiration of two (2) years from the date of payment of
In order to achieve the above-mentioned objectives, the the tax or penalty regardless of any supervening cause that
following policies shall be observed: may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor,
xxxx refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to
have been erroneously paid.
2. Any availment of the tax treaty relief shall be preceded by
an application by filing BIR Form No. 0901 (Application for 22
Relief from Double Taxation) with ITAD at least 15 days Rollo. pp.114-115.
before the transaction i.e. payment of dividends, royalties,
23 Id. at 117-118.
etc., accompanied by supporting documents justifying the
relief. Consequently, BIR Form Nos. TC 001 and TC 002
prescribed under RMO 10-92 are hereby declared obsolete. 24 Id. at 117.

x x x x. Brown v. Board of Education of Topeka,


347 U.S. 483 (1954)
14 G.R. No. 167330, 18 September 2009, 600 SCRA 413, 446-447.
U.S. Supreme Court
15 Art. 2, Sec. 2.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
16 Vienna Convention on the Law on Treaties (1969), Art. 26.
Brown v. Board of Education of Topeka
Argued December 9, 1952 the 1952 Term, and reargument was heard this Term on certain questions
propounded by the Court. [Footnote 3]
Reargued December 8, 1953
[489]
Decided May 17, 1954*
Reargument was largely devoted to the circumstances surrounding the
APPEAL FROM THE UNITED STATES DISTRICT COURT adoption of the Fourteenth Amendment in 1868. It covered exhaustively
consideration of the Amendment in Congress, ratification by the states, then-
FOR THE DISTRICT OF KANSAS existing practices in racial segregation, and the views of proponents and
opponents of the Amendment. This discussion and our own investigation
convince us that, although these sources cast some light, it is not enough to
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. resolve the problem with which we are faced. At best, they are inconclusive.
The most avid proponents of the post-War Amendments undoubtedly
These cases come to us from the States of Kansas, South Carolina, Virginia, intended them to remove all legal distinctions among "all persons born or
and Delaware. They are premised on different facts and different local naturalized in the United States." Their opponents, just as certainly, were
conditions, but a common legal question justifies their consideration together antagonistic to both the letter and the spirit of the Amendments and wished
in this consolidated opinion. [Footnote 1] them to have the most limited effect. What others in Congress and the state
legislatures had in mind cannot be determined with any degree of certainty.
[487]
An additional reason for the inconclusive nature of the Amendment's history
In each of the cases, minors of the Negro race, through their legal with respect to segregated schools is the status of public education at that
representatives, seek the aid of the courts in obtaining admission to the time. [Footnote 4] In the South, the movement toward free common schools,
public schools of their community on a nonsegregated basis. In each supported
instance,
[490]
[488]
by general taxation, had not yet taken hold. Education of white children was
they had been denied admission to schools attended by white children under largely in the hands of private groups. Education of Negroes was almost
laws requiring or permitting segregation according to race. This segregation nonexistent, and practically all of the race were illiterate. In fact, any
was alleged to deprive the plaintiffs of the equal protection of the laws under education of Negroes was forbidden by law in some states. Today, in
the Fourteenth Amendment. In each of the cases other than the Delaware contrast, many Negroes have achieved outstanding success in the arts and
case, a three-judge federal district court denied relief to the plaintiffs on the sciences, as well as in the business and professional world. It is true that
so-called "separate but equal" doctrine announced by this Court in Plessy v. public school education at the time of the Amendment had advanced further
Fergson, 163 U. S. 537. Under that doctrine, equality of treatment is in the North, but the effect of the Amendment on Northern States was
accorded when the races are provided substantially equal facilities, even generally ignored in the congressional debates. Even in the North, the
though these facilities be separate. In the Delaware case, the Supreme Court conditions of public education did not approximate those existing today. The
of Delaware adhered to that doctrine, but ordered that the plaintiffs be curriculum was usually rudimentary; ungraded schools were common in rural
admitted to the white schools because of their superiority to the Negro areas; the school term was but three months a year in many states, and
schools. compulsory school attendance was virtually unknown. As a consequence, it
is not surprising that there should be so little in the history of the Fourteenth
The plaintiffs contend that segregated public schools are not "equal" and Amendment relating to its intended effect on public education.
cannot be made "equal," and that hence they are deprived of the equal
protection of the laws. Because of the obvious importance of the question In the first cases in this Court construing the Fourteenth Amendment,
presented, the Court took jurisdiction. [Footnote 2] Argument was heard in decided shortly after its adoption, the Court interpreted it as proscribing all
state-imposed discriminations against the Negro race. [Footnote 5] The Today, education is perhaps the most important function of state and local
doctrine of governments. Compulsory school attendance laws and the great
expenditures for education both demonstrate our recognition of the
[491] importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is a
"separate but equal" did not make its appearance in this Court until 1896 in
the case of Plessy v. Ferguson, supra, involving not education but principal instrument in awakening the child to cultural values, in preparing
transportation. [Footnote 6] American courts have since labored with the him for later professional training, and in helping him to adjust normally to his
doctrine for over half a century. In this Court, there have been six cases environment. In these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education.
involving the "separate but equal" doctrine in the field of public education.
[Footnote 7] In Cumming v. County Board of Education, 175 U. S. 528, Such an opportunity, where the state has undertaken to provide it, is a right
and Gong Lum v. Rice, 275 U. S. 78, the validity of the doctrine itself was not which must be made available to all on equal terms.
challenged. [Footnote 8] In more recent cases, all on the graduate school
We come then to the question presented: does segregation of children in
public schools solely on the basis of race, even though the physical facilities
[492]
and other "tangible" factors may be equal, deprive the children of the minority
group of equal educational opportunities? We believe that it does.
level, inequality was found in that specific benefits enjoyed by white students
were denied to Negro students of the same educational
qualifications. Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. In Sweatt v. Painter, supra, in finding that a segregated law school for
Oklahoma, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v. Negroes could not provide them equal educational opportunities, this Court
Oklahoma State Regents, 339 U. S. 637. In none of these cases was it relied in large part on "those qualities which are incapable of objective
measurement but which make for greatness in a law school." In McLaurin v.
necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And
Oklahoma State Regents, supra, the Court, in requiring that a Negro
in Sweatt v. Painter, supra, the Court expressly reserved decision on the
question whether Plessy v. Ferguson should be held inapplicable to public admitted to a white graduate school be treated like all other students, again
resorted to intangible considerations: ". . . his ability to study, to engage in
education.
discussions and exchange views with other students, and, in general, to
learn his profession."
In the instant cases, that question is directly presented. Here, unlike Sweatt
v. Painter, there are findings below that the Negro and white schools involved
have been equalized, or are being equalized, with respect to buildings, [494]
curricula, qualifications and salaries of teachers, and other "tangible" factors.
[Footnote 9] Our decision, therefore, cannot turn on merely a comparison of Such considerations apply with added force to children in grade and high
these tangible factors in the Negro and white schools involved in each of the schools. To separate them from others of similar age and qualifications solely
cases. We must look instead to the effect of segregation itself on public because of their race generates a feeling of inferiority as to their status in the
education. community that may affect their hearts and minds in a way unlikely ever to be
undone. The effect of this separation on their educational opportunities was
well stated by a finding in the Kansas case by a court which nevertheless felt
In approaching this problem, we cannot turn the clock back to 1868, when
the Amendment was adopted, or even to 1896, when Plessy v. compelled to rule against the Negro plaintiffs:
Ferguson was written. We must consider public education in the light of its
full development and its present place in American life throughout "Segregation of white and colored children in public schools has a
detrimental effect upon the colored children. The impact is greater when it
has the sanction of the law, for the policy of separating the races is usually
[493]
interpreted as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segregation with the
the Nation. Only in this way can it be determined if segregation in public sanction of law, therefore, has a tendency to [retard] the educational and
schools deprives these plaintiffs of the equal protection of the laws. mental development of negro children and to deprive them of some of the
benefits they would receive in a racial[ly] integrated school system. [Footnote from the United States District Court for the Eastern District of Virginia,
10]" argued December 10, 1952, reargued December 7-8, 1953, and No.
10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of
Whatever may have been the extent of psychological knowledge at the time Delaware, argued December 11, 1952, reargued December 9, 1953.
of Plessy v. Ferguson, this finding is amply supported by modern authority.
[Footnote 11] Any language [Footnote 1]

[495] In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro
children of elementary school age residing in Topeka. They brought this
in Plessy v. Ferguson contrary to this finding is rejected. action in the United States District Court for the District of Kansas to enjoin
enforcement of a Kansas statute which permits, but does not require, cities of
We conclude that, in the field of public education, the doctrine of "separate more than 15,000 population to maintain separate school facilities for Negro
but equal" has no place. Separate educational facilities are inherently and white students. Kan.Gen.Stat. § 72-1724 (1949). Pursuant to that
authority, the Topeka Board of Education elected to establish segregated
unequal. Therefore, we hold that the plaintiffs and others similarly situated for
elementary schools. Other public schools in the community, however, are
whom the actions have been brought are, by reason of the segregation
operated on a nonsegregated basis. The three-judge District Court,
complained of, deprived of the equal protection of the laws guaranteed by the
convened under 28 U.S.C. §§ 2281 and 2284, found that segregation in
Fourteenth Amendment. This disposition makes unnecessary any discussion
whether such segregation also violates the Due Process Clause of the public education has a detrimental effect upon Negro children, but denied
Fourteenth Amendment. [Footnote 12] relief on the ground that the Negro and white schools were substantially
equal with respect to buildings, transportation, curricula, and educational
qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal
Because these are class actions, because of the wide applicability of this under 28 U.S.C. § 1253.
decision, and because of the great variety of local conditions, the formulation
of decrees in these cases presents problems of considerable complexity. On
In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children
reargument, the consideration of appropriate relief was necessarily
of both elementary and high school age residing in Clarendon County. They
subordinated to the primary question -- the constitutionality of segregation in
brought this action in the United States District Court for the Eastern District
public education. We have now announced that such segregation is a denial
of South Carolina to enjoin enforcement of provisions in the state constitution
of the equal protection of the laws. In order that we may have the full
assistance of the parties in formulating decrees, the cases will be restored to and statutory code which require the segregation of Negroes and whites in
the docket, and the parties are requested to present further argument on public schools. S.C.Const., Art. XI, § 7; S.C.Code § 5377 (1942). The three-
judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, denied
Questions 4 and 5 previously propounded by the Court for the reargument
the requested relief. The court found that the Negro schools were inferior to
this Term. [Footnote 13] The Attorney General
the white schools, and ordered the defendants to begin immediately to
equalize the facilities. But the court sustained the validity of the contested
[496] provisions and denied the plaintiffs admission to the white schools during the
equalization program. 98 F.Supp. 529. This Court vacated the District Court's
of the United States is again invited to participate. The Attorneys General of judgment and remanded the case for the purpose of obtaining the court's
the states requiring or permitting segregation in public education will also be views on a report filed by the defendants concerning the progress made in
permitted to appear as amici curiae upon request to do so by September 15, the equalization program. 342 U. S. 350. On remand, the District Court found
1954, and submission of briefs by October 1, 1954. [Footnote 14] that substantial equality had been achieved except for buildings and that the
defendants were proceeding to rectify this inequality as well. 103 F.Supp.
It is so ordered. 920. The case is again here on direct appeal under 28 U.S.C. § 1253.

* Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United In the Virginia case, Davis v. County School Board, the plaintiffs are Negro
States District Court for the Eastern District of South Carolina, argued children of high school age residing in Prince Edward County. They brought
December 9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v. this action in the United States District Court for the Eastern District of
County School Board of Prince Edward County, Virginia, et al., on appeal Virginia to enjoin enforcement of provisions in the state constitution and
statutory code which require the segregation of Negroes and whites in public For a general study of the development of public education prior to the
schools. Va.Const., § 140; Va.Code § 22-221 (1950). The three-judge District Amendment, see Butts and Cremin, A History of Education in American
Court, convened under 28 U.S.C. §§ 2281 and 2284, denied the requested Culture (1953), Pts. I, II; Cubberley, Public Education in the United States
relief. The court found the Negro school inferior in physical plant, curricula, (1934 ed.), cc. II-XII. School practices current at the time of the adoption of
and transportation, and ordered the defendants forthwith to provide the Fourteenth Amendment are described in Butts and Cremin, supra, at
substantially equal curricula and transportation and to "proceed with all 269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in
reasonable diligence and dispatch to remove" the inequality in physical plant. the South (1922), cc. VIII, IX. See also H. Ex.Doc. No. 315, 41st Cong., 2d
But, as in the South Carolina case, the court sustained the validity of the Sess. (1871). Although the demand for free public schools followed
contested provisions and denied the plaintiffs admission to the white schools substantially the same pattern in both the North and the South, the
during the equalization program. 103 F.Supp. 337. The case is here on direct development in the South did not begin to gain momentum until about 1850,
appeal under 28 U.S.C. § 1253. some twenty years after that in the North. The reasons for the somewhat
slower development in the South (e.g., the rural character of the South and
In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of the different regional attitudes toward state assistance) are well explained in
both elementary and high school age residing in New Castle County. They Cubberley, supra,at 408-423. In the country as a whole, but particularly in the
brought this action in the Delaware Court of Chancery to enjoin enforcement South, the War virtually stopped all progress in public education. Id. at 427-
of provisions in the state constitution and statutory code which require the 428. The low status of Negro education in all sections of the country, both
segregation of Negroes and whites in public schools. Del.Const., Art. X, § 2; before and immediately after the War, is described in Beale, A History of
Del.Rev.Code § 2631 (1935). The Chancellor gave judgment for the plaintiffs Freedom of Teaching in American Schools (1941), 112-132, 175-195.
and ordered their immediate admission to schools previously attended only Compulsory school attendance laws were not generally adopted until after
by white children, on the ground that the Negro schools were inferior with the ratification of the Fourteenth Amendment, and it was not until 1918 that
respect to teacher training, pupil-teacher ratio, extracurricular activities, such laws were in force in all the states. Cubberley, supra, at 563-565.
physical plant, and time and distance involved in travel. 87 A.2d 862. The
Chancellor also found that segregation itself results in an inferior education [Footnote 5]
for Negro children (see note 10 infra), but did not rest his decision on that
ground. Id. at 865. The Chancellor's decree was affirmed by the Supreme Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West
Court of Delaware, which intimated, however, that the defendants might be Virginia, 100 U. S. 303, 307-308 (1880):
able to obtain a modification of the decree after equalization of the Negro and
white schools had been accomplished. 91 A.2d 137, 152. The defendants,
"It ordains that no State shall deprive any person of life, liberty, or property,
contending only that the Delaware courts had erred in ordering the
without due process of law, or deny to any person within its jurisdiction the
immediate admission of the Negro plaintiffs to the white schools, applied to equal protection of the laws. What is this but declaring that the law in the
this Court for certiorari. The writ was granted, 344 U.S. 891. The plaintiffs, States shall be the same for the black as for the white; that all persons,
who were successful below, did not submit a cross-petition.
whether colored or white, shall stand equal before the laws of the States,
and, in regard to the colored race, for whose protection the amendment was
[Footnote 2] primarily designed, that no discrimination shall be made against them by law
because of their color? The words of the amendment, it is true, are
344 U. S. 1, 141, 891. prohibitory, but they contain a necessary implication of a positive immunity,
or right, most valuable to the colored race -- the right to exemption from
[Footnote 3] unfriendly legislation against them distinctively as colored -- exemption from
legal discriminations, implying inferiority in civil society, lessening the security
345 U.S. 972. The Attorney General of the United States participated both of their enjoyment of the rights which others enjoy, and discriminations which
Terms as amicus curiae. are steps towards reducing them to the condition of a subject race."

See also Virginia v. Rives, 100 U. S. 313, 318 (1880); Ex parte Virginia, 100
[Footnote 4]
U. S. 339, 344-345 (1880).
[Footnote 6] 87 A.2d 862, 865.

The doctrine apparently originated in Roberts v. City of Boston, 59 Mass.198, [Footnote 11]
206 (1850), upholding school segregation against attack as being violative of
a state constitutional guarantee of equality. Segregation in Boston public K.B. Clark, Effect of Prejudice and Discrimination on Personality
schools was eliminated in 1855. Mass.Acts 1855, c. 256. But elsewhere in Development (Mid-century White House Conference on Children and Youth,
the North, segregation in public education has persisted in some 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;
communities until recent years. It is apparent that such segregation has long Deutscher and Chein, The Psychological Effects of Enforced Segregation A
been a nationwide problem, not merely one of sectional concern. Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are
the Psychological Effects of Segregation Under Conditions of Equal
[Footnote 7] Facilities?, 3 Int.J.Opinion and Attitude Res. 229 (1949); Brameld,
Educational Costs, in Discrimination and National Welfare (MacIver, ed.,
See also Berea College v. Kentucky, 211 U. S. 45 (1908). 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And
see generally Myrdal, An American Dilemma (1944).
[Footnote 8]
[Footnote 12]
In the Cummin case, Negro taxpayers sought an injunction requiring the
defendant school board to discontinue the operation of a high school for See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of
white children until the board resumed operation of a high school for Negro the Fifth Amendment.
children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese
descent, contended only that state authorities had misapplied the doctrine by [Footnote 13]
classifying him with Negro children and requiring him to attend a Negro
school. "4. Assuming it is decided that segregation in public schools violates the
Fourteenth Amendment"
[Footnote 9]
"(a) would a decree necessarily follow providing that, within the limits set by
In the Kansas case, the court below found substantial equality as to all such normal geographic school districting, Negro children should forthwith be
factors. 98 F.Supp. 797, 798. In the South Carolina case, the court below admitted to schools of their choice, or"
found that the defendants were proceeding "promptly and in good faith to
comply with the court's decree." 103 F.Supp. 920, 921. In the Virginia case, "(b) may this Court, in the exercise of its equity powers, permit an effective
the court below noted that the equalization program was already "afoot and gradual adjustment to be brought about from existing segregated systems to
progressing" (103 F.Supp. 337, 341); since then, we have been advised, in a system not based on color distinctions?"
the Virginia Attorney General's brief on reargument, that the program has
now been completed. In the Delaware case, the court below similarly noted "5. On the assumption on which questions 4(a) and (b) are based, and
that the state's equalization program was well under way. 91 A.2d 137, 149.
assuming further that this Court will exercise its equity powers to the end
described in question 4(b),"
[Footnote 10]
"(a) should this Court formulate detailed decrees in these cases;"
A similar finding was made in the Delaware case:
"(b) if so, what specific issues should the decrees reach;"
"I conclude from the testimony that, in our Delaware society, State-imposed
segregation in education itself results in the Negro children, as a class, "(c) should this Court appoint a special master to hear evidence with a view
receiving educational opportunities which are substantially inferior to those
to recommending specific terms for such decrees;"
available to white children otherwise similarly situated."
"(d) should this Court remand to the courts of first instance with directions to advancing medical knowledge and techniques, and of new thinking about an
frame decrees in these cases and, if so, what general directions should the old issue.
decrees of this Court include and what procedures should the courts of first
instance follow in arriving at the specific terms of more detailed decrees?" We forthwith acknowledge our awareness of the sensitive and emotional
nature of the abortion controversy, of the vigorous opposing views, even
[Footnote 14] among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure to
See Rule 42, Revised Rules of this Court (effective July 1, 1954). the raw edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and to color one's
Disclaimer: Official Supreme Court case law is only found in the print
thinking and conclusions about abortion.
version of the United States Reports. Justia case law is provided for general
informational purposes only, and may not reflect current legal developments,
In addition, population growth, pollution, poverty, and racial overtones tend to
verdicts or settlements. We make no warranties or guarantees about the complicate and not to simplify the problem.
accuracy, completeness, or adequacy of the information contained on this
site or information linked to from this site. Please check official sources. Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
Roe v. Wade, because we do, we
410 U.S. 113 (1973)
[117]
U.S. Supreme Court

Roe v. Wade, 410 U.S. 113 (1973) have inquired into, and in this opinion place some emphasis upon, medical
and medical-legal history and what that history reveals about man's attitudes
toward the abortion procedure over the centuries. We bear in mind, too, Mr.
Roe v. Wade Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New
York, 198 U. S. 45, 76 (1905):
No. 70-18
"[The Constitution] is made for people of fundamentally differing views, and
Argued December 13, 1971 the accident of our finding certain opinions natural and familiar or novel and
even shocking ought not to conclude our judgment upon the question
Reargued October 11, 1972 whether statutes embodying them conflict with the Constitution of the United
States."
Decided January 22, 1973
I
410 U.S. 113
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of
MR. JUSTICE BLACKMUN delivered the opinion of the Court. the State's Penal Code. [Footnote 1] These make it a crime to "procure an
abortion," as therein
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p.
179, present constitutional challenges to state criminal abortion legislation. [118]
The Texas statutes under attack here are typical of those that have been in
effect in many States for approximately a century. The Georgia statutes, in defined, or to attempt one, except with respect to "an abortion procured or
contrast, have a modern cast, and are a legislative product that, to an extent attempted by medical advice for the purpose of saving the life of the mother."
at least, obviously reflects the influences of recent attitudinal change, of Similar statutes are in existence in a majority of the States. [Footnote 2]
[119] violation of the Fourteenth Amendment, and that they violated his own and
his patients' rights to privacy in the doctor-patient relationship and his own
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. right to practice medicine, rights he claimed were guaranteed by the First,
49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon Fourth, Fifth, Ninth, and Fourteenth Amendments.
modified into language that has remained substantially unchanged to the
present time. SeeTexas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, John and Mary Doe, [Footnote 5] a married couple, filed a companion
Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 complaint to that of Roe. They also named the District Attorney as defendant,
(1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in claimed like constitutional deprivations, and sought declaratory and injunctive
each of these compilations provided the same exception, as does the relief. The Does alleged that they were a childless couple; that Mrs. Doe was
present Article 1196, for an abortion by "medical advice for the purpose of suffering from a "neural-chemical" disorder; that her physician had "advised
saving the life of the mother." [Footnote 3] her to avoid pregnancy until such time as her condition has materially
improved" (although a pregnancy at the present time would not present "a
[120] serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that, if she should become
pregnant, she would want to terminate the pregnancy by an abortion
II
performed by a competent, licensed physician under safe, clinical conditions.
By an amendment to their complaint, the Does purported to sue "on behalf of
Jane Roe, [Footnote 4] a single woman who was residing in Dallas County, themselves and all couples similarly situated."
Texas, instituted this federal action in March 1970 against the District
Attorney of the county. She sought a declaratory judgment that the Texas The two actions were consolidated and heard together by a duly convened
criminal abortion statutes were unconstitutional on their face, and an three-judge district court. The suits thus presented the situations of the
injunction restraining the defendant from enforcing the statutes. pregnant single woman, the childless couple, with the wife not pregnant,

Roe alleged that she was unmarried and pregnant; that she wished to [122]
terminate her pregnancy by an abortion "performed by a competent, licensed
physician, under safe, clinical conditions"; that she was unable to get a
"legal" abortion in Texas because her life did not appear to be threatened by and the licensed practicing physician, all joining in the attack on the Texas
the continuation of her pregnancy; and that she could not afford to travel to criminal abortion statutes. Upon the filing of affidavits, motions were made for
another jurisdiction in order to secure a legal abortion under safe conditions. dismissal and for summary judgment. The court held that Roe and members
She claimed that the Texas statutes were unconstitutionally vague and that of her class, and Dr. Hallford, had standing to sue and presented justiciable
they abridged her right of personal privacy, protected by the First, Fourth, controversies, but that the Does had failed to allege facts sufficient to state a
Fifth, Ninth, and Fourteenth Amendments. By an amendment to her present controversy, and did not have standing. It concluded that, with
complaint, Roe purported to sue "on behalf of herself and all other women" respect to the requests for a declaratory judgment, abstention was not
similarly situated. warranted. On the merits, the District Court held that the

James Hubert Hallford, a licensed physician, sought and was granted leave "fundamental right of single women and married persons to choose whether
to intervene in Roe's action. In his complaint, he alleged that he had been to have children is protected by the Ninth Amendment, through the
arrested previously for violations of the Texas abortion statutes, and Fourteenth Amendment,"

[121] and that the Texas criminal abortion statutes were void on their face because
they were both unconstitutionally vague and constituted an overbroad
infringement of the plaintiffs' Ninth Amendment rights. The court then held
that two such prosecutions were pending against him. He described that abstention was warranted with respect to the requests for an injunction.
conditions of patients who came to him seeking abortions, and he claimed It therefore dismissed the Does' complaint, declared the abortion statutes
that for many cases he, as a physician, was unable to determine whether void, and dismissed the application for injunctive relief. 314 F.Supp. 1217,
they fell within or outside the exception recognized by Article 1196. He 1225 (ND Tex.1970).
alleged that, as a consequence, the statutes were vague and uncertain, in
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. as established, her existence; her pregnant state, as of the inception of her
§ 1253, have appealed to this Court from that part of the District Court's suit in March 1970 and as late as May 21 of that year when she filed an alias
judgment denying the injunction. The defendant District Attorney has affidavit with the District Court; and her inability to obtain a legal abortion in
purported to cross-appeal, pursuant to the same statute, from the court's Texas.
grant of declaratory relief to Roe and Hallford. Both sides also have taken
protective appeals to the United States Court of Appeals for the Fifth Circuit. Viewing Roe's case as of the time of its filing and thereafter until as late a
That court ordered the appeals held in abeyance pending decision here. We May, there can be little dispute that it then presented a case or controversy
postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 and that, wholly apart from the class aspects, she, as a pregnant single
(1971) woman thwarted by the Texas criminal abortion laws, had standing to
challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2
[123] 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v.
Menghini, 339 F.Supp. 986, 990-991 (Kan.1972). See Truax v. Raich, 239 U.
It might have been preferable if the defendant, pursuant to our Rule 20, had S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting
presented to us a petition for certiorari before judgment in the Court of anything to the contrary. The "logical nexus between the status asserted and
Appeals with respect to the granting of the plaintiffs' prayer for declaratory the claim sought to be adjudicated," Flast v. Cohen, 392 U.S. at 102, and the
relief. Our decisions in Mitchell v. Donovan, 398 U. S. 427 (1970), and Gunn necessary degree of contentiousness, Golden v. Zwickler, 394 U. S.
v. University Committee, 399 U. S. 383 (1970), are to the effect that § 1253 103 (1969), are both present.
does not authorize an appeal to this Court from the grant or denial of
declaratory relief alone. We conclude, nevertheless, that those decisions do The appellee notes, however, that the record does not disclose that Roe was
not foreclose our review of both the injunctive and the declaratory aspects of pregnant at the time of the District Court hearing on May 22, 1970, [Footnote
a case of this kind when it is properly here, as this one is, on appeal under 6] or on the following June 17 when the court's opinion and judgment were
1253 from specific denial of injunctive relief, and the arguments as to both filed. And he suggests that Roe's case must now be moot because she and
aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U. S. all other members of her class are no longer subject to any 1970 pregnancy.
320(1970); Florida Lime Growers v. Jacobsen, 362 U. S. 73, 80-81 (1960). It
would be destructive of time and energy for all concerned were we to rule [125]
otherwise. Cf. Doe v. Bolton, post, p. 179.
The usual rule in federal cases is that an actual controversy must exist at
IV stages of appellate or certiorari review, and not simply at the date the action
is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden
We are next confronted with issues of justiciability, standing, and abstention. v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S.
Have Roe and the Does established that "personal stake in the outcome of 403 (1972).
the controversy," Baker v. Carr, 369 U. S. 186, 204 (1962), that insures that
But when, as here, pregnancy is a significant fact in the litigation, the normal
"the dispute sought to be adjudicated will be presented in an adversary 266-day human gestation period is so short that the pregnancy will come to
context and in a form historically viewed as capable of judicial resolution," term before the usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive much beyond
Flast v. Cohen, 392 U. S. 83, 101 (1968), and Sierra Club v. Morton, 405 U. the trial stage, and appellate review will be effectively denied. Our law should
S. 727, 732 (1972)? And what effect did the pendency of criminal abortion not be that rigid. Pregnancy often comes more than once to the same
charges against Dr. Hallford in state court have upon the propriety of the woman, and in the general population, if man is to survive, it will always be
federal court's granting relief to him as a plaintiff-intervenor? with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading
review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515
[124] (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess
Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that U. S. 629, 632-633 (1953).
Roe is a fictitious person. For purposes of her case, we accept as true, and
We, therefore, agree with the District Court that Jane Roe had standing to [127]
undertake this litigation, that she presented a justiciable controversy, and that
the termination of her 1970 pregnancy has not rendered her case moot. Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v.
Ledesma, 401 U. S. 82 (1971); and Byrne v. Karaleis, 401 U. S.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation 216 (1971). See also Dombrowski v. Pfister, 380 U. S. 479 (1965). We note,
as a plaintiff-intervenor, alleging in his complaint that he: in passing, that Younger and its companion cases were decided after the
three-judge District Court decision in this case.
"[I]n the past has been arrested for violating the Texas Abortion Laws and at
the present time stands charged by indictment with violating said laws in the Dr. Hallford's complaint in intervention, therefore, is to be dismissed.
Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas [Footnote 7] He is remitted to his defenses in the state criminal proceedings
vs. against him. We reverse the judgment of the District Court insofar as it
granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
[126]
C. The Does. In view of our ruling as to Roe's standing in her case, the issue
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James of the Does' standing in their case has little significance. The claims they
H. Hallford, No. C-692524-H. In both cases, the defendant is charged with assert are essentially the same as those of Roe, and they attack the same
abortion. . . ." statutes. Nevertheless, we briefly note the Does' posture.

In his application for leave to intervene, the doctor made like representations Their pleadings present them as a childless married couple, the woman not
as to the abortion charges pending in the state court. These representations being pregnant, who have no desire to have children at this time because of
were also repeated in the affidavit he executed and filed in support of his their having received medical advice that Mrs. Doe should avoid pregnancy,
motion for summary judgment. and for "other highly personal reasons." But they "fear . . . they may face the
prospect of becoming
Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under [128]
which he stands charged in criminal prosecutions simultaneously pending in
state court. Although he stated that he has been arrested in the past for parents." And if pregnancy ensues, they "would want to terminate" it by an
violating the State's abortion laws, he makes no allegation of any substantial abortion. They assert an inability to obtain an abortion legally in Texas and,
and immediate threat to any federally protected right that cannot be asserted consequently, the prospect of obtaining an illegal abortion there or of going
in his defense against the state prosecutions. Neither is there any allegation outside Texas to some place where the procedure could be obtained legally
of harassment or bad faith prosecution. In order to escape the rule articulated and competently.
in the cases cited in the next paragraph of this opinion that, absent
harassment and bad faith, a defendant in a pending state criminal case We thus have as plaintiffs a married couple who have, as their asserted
cannot affirmatively challenge in federal court the statutes under which the immediate and present injury, only an alleged "detrimental effect upon [their]
State is prosecuting him, Dr. Hallford seeks to distinguish his status as a marital happiness" because they are forced to "the choice of refraining from
present state defendant from his status as a "potential future defendant," and normal sexual relations or of endangering Mary Doe's health through a
to assert only the latter for standing purposes here. possible pregnancy." Their claim is that, sometime in the future, Mrs. Doe
might become pregnant because of possible failure of contraceptive
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 measures, and, at that time in the future, she might want an abortion that
U. S. 66 (1971), compels the conclusion that the District Court erred when it might then be illegal under the Texas statutes.
granted declaratory relief to Dr. Hallford instead of refraining from so doing.
The court, of course, was correct in refusing to grant injunctive relief to the This very phrasing of the Does' position reveals its speculative character.
doctor. The reasons supportive of that action, however, are those expressed Their alleged injury rests on possible future contraceptive failure, possible
in Samuels v. Mackell, supra, and in Younger v. future pregnancy, possible future unpreparedness for parenthood, and
possible future impairment of health. Any one or more of these several
possibilities may not take place, and all may not combine. In the Does' [130]
estimation, these possibilities might have some real or imagined impact upon
their marital happiness. But we are not prepared to say that the bare 1. Ancient attitudes. These are not capable of precise determination. We are
allegation of so indirect an injury is sufficient to present an actual case or told that, at the time of the Persian Empire, abortifacients were known, and
controversy.Younger v. Harris, 401 U.S. at 41-42; Golden v. Zwickler, 394 that criminal abortions were severely punished. [Footnote 8] We are also
U.S. at 109-110; Abele v. Markle, 452 F.2d at 1124-1125; Crossen v. told, however, that abortion was practiced in Greek times as well as in the
Breckenridge, 446 F.2d at 839. The Does' claim falls far short of those Roman Era, [Footnote 9] and that "it was resorted to without scruple."
resolved otherwise in the cases that the Does urge upon us, [Footnote 10] The Ephesian, Soranos, often described as the greatest of the
namely, Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Data ancient gynecologists, appears to have been generally opposed to Rome's
Processing Service v. Camp, 397 U. S. 150 (1970); prevailing free-abortion practices. He found it necessary to think first of the
life of the mother, and he resorted to abortion when, upon this standard, he
[129] felt the procedure advisable. [Footnote 11] Greek and Roman law afforded
little protection to the unborn. If abortion was prosecuted in some places, it
and Epperson v. Arkansas, 393 U. S. 97 (1968). See also Truax v. seems to have been based on a concept of a violation of the father's right to
Raich, 239 U. S. 33 (1915). his offspring. Ancient religion did not bar abortion. [Footnote 12]

The Does therefore are not appropriate plaintiffs in this litigation. Their 2. The Hippocratic Oath. What then of the famous Oath that has stood so
complaint was properly dismissed by the District Court, and we affirm that long as the ethical guide of the medical profession and that bears the name
dismissal. of the great Greek (460(?)-377(?) B. C.), who has been described

V [131]

The principal thrust of appellant's attack on the Texas statutes is that they as the Father of Medicine, the "wisest and the greatest practitioner of his art,"
improperly invade a right, said to be possessed by the pregnant woman, to and the "most important and most complete medical personality of antiquity,"
choose to terminate her pregnancy. Appellant would discover this right in the who dominated the medical schools of his time, and who typified the sum of
concept of personal "liberty" embodied in the Fourteenth Amendment's Due the medical knowledge of the past? [Footnote 13] The Oath varies somewhat
Process Clause; or in personal, marital, familial, and sexual privacy said to according to the particular translation, but in any translation the content is
be protected by the Bill of Rights or its penumbras, see Griswold v. clear:
Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S.
438 (1972); id. at 460 (WHITE, J., concurring in result); or among those "I will give no deadly medicine to anyone if asked, nor suggest any such
rights reserved to the people by the Ninth Amendment, Griswold v. counsel; and in like manner, I will not give to a woman a pessary to produce
Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing abortion, [Footnote 14]"
this claim, we feel it desirable briefly to survey, in several aspects, the history
of abortion, for such insight as that history may afford us, and then to or
examine the state purposes and interests behind the criminal abortion laws.
"I will neither give a deadly drug to anybody if asked for it, nor will I make a
VI suggestion to this effect. Similarly, I will not give to a woman an abortive
remedy. [Footnote 15]"
It perhaps is not generally appreciated that the restrictive criminal abortion
laws in effect in a majority of States today are of relatively recent vintage. Although the Oath is not mentioned in any of the principal briefs in this case
Those laws, generally proscribing abortion or its attempt at any time during or in Doe v. Bolton, post, p. 179, it represents the apex of the development of
pregnancy except when necessary to preserve the pregnant woman's life, strict ethical concepts in medicine, and its influence endures to this day. Why
are not of ancient or even of common law origin. Instead, they derive from did not the authority of Hippocrates dissuade abortion practice in his time and
statutory changes effected, for the most part, in the latter half of the 19th that of Rome? The late Dr. Edelstein provides us with a theory: [Footnote 16]
century. The Oath was not uncontested even in Hippocrates' day; only the
Pythagorean school of philosophers frowned upon the related act of suicide. point between conception and live birth. [Footnote 22] This was "mediate
Most Greek thinkers, on the other hand, commended abortion, at least prior animation." Although
to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For
the Pythagoreans, however, it was a matter of dogma. For them, the embryo [134]
was animate from the moment of conception, and abortion meant destruction
of a living being. The abortion clause of the Oath, therefore, "echoes
Christian theology and the canon law came to fix the point of animation at 40
Pythagorean doctrines,"
days for a male and 80 days for a female, a view that persisted until the 19th
century, there was otherwise little agreement about the precise time of
[132] formation or animation. There was agreement, however, that, prior to this
point, the fetus was to be regarded as part of the mother, and its destruction,
and "[i]n no other stratum of Greek opinion were such views held or therefore, was not homicide. Due to continued uncertainty about the precise
proposed in the same spirit of uncompromising austerity." [Footnote 17] time when animation occurred, to the lack of any empirical basis for the 40-
80-day view, and perhaps to Aquinas' definition of movement as one of the
Dr. Edelstein then concludes that the Oath originated in a group representing two first principles of life, Bracton focused upon quickening as the critical
only a small segment of Greek opinion, and that it certainly was not accepted point. The significance of quickening was echoed by later common law
by all ancient physicians. He points out that medical writings down to Galen scholars, and found its way into the received common law in this country.
(A.D. 130-200) "give evidence of the violation of almost every one of its
injunctions." [Footnote 18] But with the end of antiquity, a decided change Whether abortion of a quick fetus was a felony at common law, or even a
took place. Resistance against suicide and against abortion became lesser crime, is still disputed. Bracton, writing early in the 13th century,
common. The Oath came to be popular. The emerging teachings of thought it homicide. [Footnote 23] But the later and predominant view,
Christianity were in agreement with the Pythagorean ethic. The Oath following the great common law scholars, has been that it was, at most, a
"became the nucleus of all medical ethics," and "was applauded as the lesser offense. In a frequently cited
embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean
manifesto, and not the expression of an absolute standard of medical [135]
conduct." [Footnote 19]
passage, Coke took the position that abortion of a woman "quick with childe"
This, it seems to us, is a satisfactory and acceptable explanation of the is "a great misprision, and no murder." [Footnote 24] Blackstone followed,
Hippocratic Oath's apparent rigidity. It enables us to understand, in historical saying that, while abortion after quickening had once been considered
context, a long-accepted and revered statement of medical ethics. manslaughter (though not murder), "modern law" took a less severe view.
[Footnote 25] A recent review of the common law precedents argues,
3. The common law. It is undisputed that, at common law, abortion however, that those precedents contradict Coke, and that even post-
performed before "quickening" -- the first recognizable movement of the quickening abortion was never established as a common law crime.
fetus in utero, appearing usually from the 16th to the 18th week of pregnancy [Footnote 26] This is of some importance, because, while most American
[Footnote 20] -- was not an indictable offense. [Footnote 21] The absence courts ruled, in holding or dictum, that abortion of an unquickened fetus was
not criminal under their received common law, [Footnote 27] others followed
[133] Coke in stating that abortion

of a common law crime for pre-quickening abortion appears to have [136]


developed from a confluence of earlier philosophical, theological, and civil
and canon law concepts of when life begins. These disciplines variously of a quick fetus was a "misprision," a term they translated to mean
approached the question in terms of the point at which the embryo or fetus "misdemeanor." [Footnote 28] That their reliance on Coke on this aspect of
became "formed" or recognizably human, or in terms of when a "person" the law was uncritical and, apparently in all the reported cases, dictum (due
came into being, that is, infused with a "soul" or "animated." A loose probably to the paucity of common law prosecutions for post-quickening
consensus evolved in early English law that these events occurred at some abortion), makes it now appear doubtful that abortion was ever firmly
established as a common law crime even with respect to the destruction of a "that the continuance of the pregnancy would involve risk to the life of the
quick fetus. pregnant woman, or of injury to the physical or mental health of the pregnant
woman or any existing children of her family, greater than if the pregnancy
4. The English statutory law. England's first criminal abortion statute, Lord were terminated,"
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a
quick fetus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the or (b)
felony of abortion before quickening, and thus preserved the "quickening"
distinction. This contrast was continued in the general revision of 1828, 9 "that there is a substantial risk that, if the child were born it would suffer from
Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, such physical or mental abnormalities as
in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses
Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the
[138]
core of English anti-abortion law until the liberalizing reforms of 1967. In
1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into
being. Its emphasis was upon the destruction of "the life of a child capable of to be seriously handicapped."
being born alive." It made a willful act performed with the necessary intent a
felony. It contained a proviso that one was not to be The Act also provides that, in making this determination, "account may be
taken of the pregnant woman's actual or reasonably foreseeable
[137] environment." It also permits a physician, without the concurrence of others,
to terminate a pregnancy where he is of the good faith opinion that the
abortion "is immediately necessary to save the life or to prevent grave
found guilty of the offense
permanent injury to the physical or mental health of the pregnant woman."

"unless it is proved that the act which caused the death of the child was not 5. The American law. In this country, the law in effect in all but a few States
done in good faith for the purpose only of preserving the life of the mother." until mid-19th century was the preexisting English common law. Connecticut,
the first State to enact abortion legislation, adopted in 1821 that part of Lord
A seemingly notable development in the English law was the case of Rex v. Ellenborough's Act that related to a woman "quick with child." [Footnote 29]
Bourne, [1939] 1 K.B. 687. This case apparently answered in the affirmative The death penalty was not imposed. Abortion before quickening was made a
the question whether an abortion necessary to preserve the life of the crime in that State only in 1860. [Footnote 30] In 1828, New York enacted
pregnant woman was excepted from the criminal penalties of the 1861 Act. In legislation [Footnote 31] that, in two respects, was to serve as a model for
his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and early anti-abortion statutes. First, while barring destruction of an unquickened
observed that that Act related to "the case where a child is killed by a willful fetus as well as a quick fetus, it made the former only a misdemeanor, but
act at the time when it is being delivered in the ordinary course of the latter second-degree manslaughter. Second, it incorporated a concept of
nature." Id. at 691. He concluded that the 1861 Act's use of the word therapeutic abortion by providing that an abortion was excused if it
"unlawfully," imported the same meaning expressed by the specific proviso in
the 1929 Act, even though there was no mention of preserving the mother's
"shall have been necessary to preserve the life of such mother, or shall have
life in the 1861 Act. He then construed the phrase "preserving the life of the
been advised by two physicians to be necessary for such purpose."
mother" broadly, that is, "in a reasonable sense," to include a serious and
permanent threat to the mother's health, and instructed the jury to acquit Dr.
Bourne if it found he had acted in a good faith belief that the abortion was By 1840, when Texas had received the common law, [Footnote 32] only eight
necessary for this purpose. Id. at 693-694. The jury did acquit. American States

Recently, Parliament enacted a new abortion law. This is the Abortion Act of [139]
1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform
an abortion where two other licensed physicians agree (a) had statutes dealing with abortion. [Footnote 33] It was not until after the War
Between the States that legislation began generally to replace the common
law. Most of these initial statutes dealt severely with abortion after
quickening, but were lenient with it before quickening. Most punished An AMA Committee on Criminal Abortion was appointed in May, 1857. It
attempts equally with completed abortions. While many statutes included the presented its report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the
exception for an abortion thought by one or more physicians to be necessary Twelfth Annual Meeting. That report observed that the Committee had been
to save the mother's life, that provision soon disappeared, and the typical law appointed to investigate criminal abortion "with a view to its general
required that the procedure actually be necessary for that purpose. suppression." It deplored abortion and its frequency and it listed three causes
Gradually, in the middle and late 19th century, the quickening distinction of "this general demoralization":
disappeared from the statutory law of most States and the degree of the
offense and the penalties were increased. By the end of the 1950's, a large "The first of these causes is a widespread popular ignorance of the true
majority of the jurisdictions banned abortion, however and whenever character of the crime -- a belief, even among mothers themselves, that the
performed, unless done to save or preserve the life of the mother. [Footnote foetus is not alive till after the period of quickening."
34] The exceptions, Alabama and the District of Columbia, permitted abortion
to preserve the mother's health. [Footnote 35] Three States permitted
"The second of the agents alluded to is the fact that the profession
abortions that were not "unlawfully" performed or that were not "without
themselves are frequently supposed careless of foetal life. . . ."
lawful justification," leaving interpretation of those standards to the courts.
[Footnote 36] In
"The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent
[140]
and actual existence of the child before birth, as a living being. These errors,
which are sufficient in most instances to prevent conviction, are based, and
the past several years, however, a trend toward liberalization of abortion only based, upon mistaken and exploded medical dogmas. With strange
statutes has resulted in adoption, by about one-third of the States, of less inconsistency, the law fully acknowledges the foetus in utero and its inherent
stringent laws, most of them patterned after the ALI Model Penal Code, § rights, for civil purposes; while personally and as criminally affected, it fails to
230.3, [Footnote 37] set forth as Appendix B to the opinion in Doe v. Bolton, recognize it,
post, p. 205.
[142]
It is thus apparent that, at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion
and to its life as yet denies all protection."
was viewed with less disfavor than under most American statutes currently in
effect. Phrasing it another way, a woman enjoyed a substantially broader
right to terminate a pregnancy than she does in most States today. At least Id. at 776. The Committee then offered, and the Association adopted,
with respect to the early stage of pregnancy, and very possibly without such resolutions protesting "against such unwarrantable destruction of human life,"
a limitation, the opportunity calling upon state legislatures to revise their abortion laws, and requesting
the cooperation of state medical societies "in pressing the subject." Id. at 28,
78.
[141]
In 1871, a long and vivid report was submitted by the Committee on Criminal
to make this choice was present in this country well into the 19th century.
Abortion. It ended with the observation,
Even later, the law continued for some time to treat less punitively an
abortion procured in early pregnancy.
"We had to deal with human life. In a matter of less importance, we could
entertain no compromise. An honest judge on the bench would call things by
6. The position of the American Medical Association. The anti-abortion mood
their proper names. We could do no less."
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a
significant role in the enactment of stringent criminal abortion legislation 22 Trans. of the Am.Med.Assn. 268 (1871). It proffered resolutions, adopted
during that period. by the Association, id. at 38-39, recommending, among other things, that it
"be unlawful and unprofessional for any physician to induce abortion or physician in an accredited hospital only after consultation with two other
premature labor without the concurrent opinion of at least one respectable physicians and in conformity with state law, and that no party to the
consulting physician, and then always with a view to the safety of the child -- procedure should be required to violate personally held moral principles.
if that be possible," [Footnote 38] Proceedings

and calling [144]

"the attention of the clergy of all denominations to the perverted views of of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council
morality entertained by a large class of females -- aye, and men also, on this rendered a complementary opinion. [Footnote 39]
important question."
7. The position of the American Public Health Association. In October, 1970,
Except for periodic condemnation of the criminal abortionist, no further formal the Executive Board of the APHA adopted Standards for Abortion Services.
AMA action took place until 1967. In that year, the Committee on Human These were five in number:
Reproduction urged the adoption of a stated policy of opposition to induced
abortion except when there is "documented medical evidence" of a threat to "a. Rapid and simple abortion referral must be readily available through state
the health or life of the mother, or that the child "may be born with and local public
incapacitating physical deformity or mental deficiency," or that a pregnancy
"resulting from legally established statutory or forcible rape or incest may [145]
constitute a threat to the mental or physical health of the
health departments, medical societies, or other nonprofit organizations."
[143]
"b. An important function of counseling should be to simplify and expedite the
patient," two other physicians "chosen because of their recognized
provision of abortion services; it should not delay the obtaining of these
professional competence have examined the patient and have concurred in
services."
writing," and the procedure "is performed in a hospital accredited by the Joint
Commission on Accreditation of Hospitals." The providing of medical
information by physicians to state legislatures in their consideration of "c. Psychiatric consultation should not be mandatory. As in the case of other
legislation regarding therapeutic abortion was "to be considered consistent specialized medical services, psychiatric consultation should be sought for
with the principles of ethics of the American Medical Association." This definite indications, and not on a routine basis."
recommendation was adopted by the House of Delegates. Proceedings of
the AMA House of Delegates 40-51 (June 1967). "d. A wide range of individuals from appropriately trained, sympathetic
volunteers to highly skilled physicians may qualify as abortion counselors."
In 1970, after the introduction of a variety of proposed resolutions and of a
report from its Board of Trustees, a reference committee noted "polarization "e. Contraception and/or sterilization should be discussed with each abortion
of the medical profession on this controversial issue"; division among those patient."
who had testified; a difference of opinion among AMA councils
and.committees; "the remarkable shift in testimony" in six months, felt to be "Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396
influenced "by the rapid changes in state laws and by the judicial decisions (1971). Among factors pertinent to life and health risks associated with
which tend to make abortion more freely available; " and a feeling "that this abortion were three that 'are recognized as important': "
trend will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference committee. "a. the skill of the physician,"
The preambles emphasized "the best interests of the patient," "sound clinical
judgment," and "informed patient consent," in contrast to "mere
"b. the environment in which the abortion is performed, and above all"
acquiescence to the patient's demand." The resolutions asserted that
abortion is a medical procedure that should be performed by a licensed
"c. the duration of pregnancy, as determined by uterine size and confirmed It has been argued occasionally that these laws were the product of a
by menstrual history." Victorian social concern to discourage illicit sexual conduct. Texas, however,
does not advance this justification in the present case, and it appears that no
Id. at 397. court or commentator has taken the argument seriously. [Footnote 42] The
appellants and amici contend, moreover, that this is not a proper state
purpose, at all and suggest that, if it were, the Texas statutes are overbroad
It was said that "a well equipped hospital" offers more protection
in protecting it, since the law fails to distinguish between married and unwed
mothers.
"to cope with unforeseen difficulties than an office or clinic without such
resources. . . . The factor of gestational age is of overriding importance."
A second reason is concerned with abortion as a medical procedure. When
most criminal abortion laws were first enacted, the procedure was a
Thus, it was recommended that abortions in the second trimester and early hazardous one for the woman. [Footnote 43] This was particularly true prior
abortions in the presence of existing medical complications be performed in to the
hospitals as inpatient procedures. For pregnancies in the first trimester,
[149]
[146]
development of antisepsis. Antiseptic techniques, of course, were based on
abortion in the hospital with or without overnight stay "is probably the safest discoveries by Lister, Pasteur, and others first announced in 1867, but were
practice." An abortion in an extramural facility, however, is an acceptable not generally accepted and employed until about the turn of the century.
alternative "provided arrangements exist in advance to admit patients Abortion mortality was high. Even after 1900, and perhaps until as late as the
promptly if unforeseen complications develop." Standards for an abortion development of antibiotics in the 1940's, standard modern techniques such
facility were listed. It was said that, at present, abortions should be performed as dilation and curettage were not nearly so safe as they are today. Thus, it
by physicians or osteopaths who are licensed to practice and who have has been argued that a State's real concern in enacting a criminal abortion
"adequate training." Id. at 398. law was to protect the pregnant woman, that is, to restrain her from
submitting to a procedure that placed her life in serious jeopardy.
8. The position of the American Bar Association. At its meeting in February,
1972, the ABA House of Delegates approved, with 17 opposing votes, the Modern medical techniques have altered this situation. Appellants and
Uniform Abortion Act that had been drafted and approved the preceding various amici refer to medical data indicating that abortion in early
August by the Conference of Commissioners on Uniform State Laws. 58 pregnancy, that is, prior to the end of the first trimester, although not without
A.B.A.J. 380 (1972). We set forth the Act in full in the margin. [Footnote 40] its risk, is now relatively safe. Mortality rates for women undergoing early
The abortions, where the procedure is legal, appear to be as low as or lower than
the rates for normal childbirth. [Footnote 44] Consequently, any interest of
[147] the State in protecting the woman from an inherently hazardous procedure,
except when it would be equally dangerous for her to forgo it, has largely
Opinion of the Court Conference has appended an enlightening Prefatory disappeared. Of course, important state interests in the areas of health and
Note. [Footnote 41] medical standards do remain.

VII [150]

Three reasons have been advanced to explain historically the enactment of The State has a legitimate interest in seeing to it that abortion, like any other
criminal abortion laws in the 19th century and to justify their continued medical procedure, is performed under circumstances that insure maximum
existence. safety for the patient. This interest obviously extends at least to the
performing physician and his staff, to the facilities involved, to the availability
of after-care, and to adequate provision for any complication or emergency
[148]
that might arise. The prevalence of high mortality rates at illegal "abortion
mills" strengthens, rather than weakens, the State's interest in regulating the It is with these interests, and the eight to be attached to them, that this case
conditions under which abortions are performed. Moreover, the risk to the is concerned.
woman increases as her pregnancy continues. Thus, the State retains a
definite interest in protecting the woman's own health and safety when an VIII
abortion is proposed at a late stage of pregnancy.
The Constitution does not explicitly mention any right of privacy. In a line of
The third reason is the State's interest -- some phrase it in terms of duty -- in decisions, however, going back perhaps as far as Union Pacific R. Co. v.
protecting prenatal life. Some of the argument for this justification rests on Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of
the theory that a new human life is present from the moment of conception. personal privacy, or a guarantee of certain areas or zones of privacy, does
[Footnote 45] The State's interest and general obligation to protect life then exist under the Constitution. In varying contexts, the Court or individual
extends, it is argued, to prenatal life. Only when the life of the pregnant Justices have, indeed, found at least the roots of that right in the First
mother herself is at stake, balanced against the life she carries within her, Amendment, Stanley v. Georgia, 394 U. S. 557, 564 (1969); in the Fourth
should the interest of the embryo or fetus not prevail. Logically, of course, a and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United
legitimate state interest in this area need not stand or fall on acceptance of States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S.
the belief that life begins at conception or at some other point prior to live 616 (1886), see Olmstead v. United States, 277 U. S. 438, 478 (1928)
birth. In assessing the State's interest, recognition may be given to the less (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v.
rigid claim that as long as at least potential life is involved, the State may Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486
assert interests beyond the protection of the pregnant woman alone. (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S.
[151] 390, 399 (1923). These decisions make it clear that only personal rights that
can be deemed "fundamental" or "implicit in the concept of ordered
Parties challenging state abortion laws have sharply disputed in some courts liberty," Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this
the contention that a purpose of these laws, when enacted, was to protect guarantee of personal privacy. They also make it clear that the right has
prenatal life. [Footnote 46] Pointing to the absence of legislative history to some extension to activities relating to marriage, Loving v. Virginia, 388 U. S.
support the contention, they claim that most state laws were designed solely 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541-542
to protect the woman. Because medical advances have lessened this (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460,
concern, at least with respect to abortion in early pregnancy, they argue that 463-465
with respect to such abortions the laws can no longer be justified by any
state interest. There is some scholarly support for this view of original [153]
purpose. [Footnote 47] The few state courts called upon to interpret their
laws in the late 19th and early 20th centuries did focus on the State's interest (WHITE, J., concurring in result); family relationships, Prince v.
in protecting the woman's health, rather than in preserving the embryo and Massachusetts, 321 U. S. 158, 166 (1944); and childrearing and
fetus. [Footnote 48] Proponents of this view point out that in many States, education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v.
including Texas, [Footnote 49] by statute or judicial interpretation, the Nebraska, supra.
pregnant woman herself could not be prosecuted for self-abortion or for
cooperating in an abortion performed upon her by another. [Footnote 50]
They claim that adoption of the "quickening" distinction through received This right of privacy, whether it be founded in the Fourteenth Amendment's
common concept of personal liberty and restrictions upon state action, as we feel it is,
or, as the District Court determined, in the Ninth Amendment's reservation of
rights to the people, is broad enough to encompass a woman's decision
[152] whether or not to terminate her pregnancy. The detriment that the State
would impose upon the pregnant woman by denying this choice altogether is
law and state statutes tacitly recognizes the greater health hazards inherent apparent. Specific and direct harm medically diagnosable even in early
in late abortion and impliedly repudiates the theory that life begins at pregnancy may be involved. Maternity, or additional offspring, may force
conception. upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child, and F.Supp. 986 (Kan.1972); YWCA v. Kuler, 342 F.Supp. 1048 (NJ
there is the problem of bringing a child into a family already unable, 1972); Babbitz v. McCann,
psychologically and otherwise, to care for it. In other cases, as in this one,
the additional difficulties and continuing stigma of unwed motherhood may be [155]
involved. All these are factors the woman and her responsible physician
necessarily will consider in consultation. 310 F.Supp. 293 (ED Wis.1970), appeal dismissed, 400 U. S.
1 (1970); People v. Belous, 71 Cal.2d 954, 458 P.2d 194 (1969), cert.
On the basis of elements such as these, appellant and some amici argue that denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
the woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she Others have sustained state statutes. Crossen v. Attorney General, 344
alone chooses. With this we do not agree. Appellant's arguments that Texas F.Supp. 587 (ED Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana
either has no valid interest at all in regulating the abortion decision, or no State Board of Medical Examiners, 318 F.Supp. 1217 (ED La.1970), appeal
interest strong enough to support any limitation upon the woman's sole docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC
determination, are unpersuasive. The 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741
(ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-
[154] 5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972); Spears v.
State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S.D. 663, 201
Court's decisions recognizing a right of privacy also acknowledge that some N.W.2d 123 (1972), appeal docketed, No. 72-631.
state regulation in areas protected by that right is appropriate. As noted
above, a State may properly assert important interests in safeguarding Although the results are divided, most of these courts have agreed that the
health, in maintaining medical standards, and in protecting potential life. At right of privacy, however based, is broad enough to cover the abortion
some point in pregnancy, these respective interests become sufficiently decision; that the right, nonetheless, is not absolute, and is subject to some
compelling to sustain regulation of the factors that govern the abortion limitations; and that, at some point, the state interests as to protection of
decision. The privacy right involved, therefore, cannot be said to be absolute. health, medical standards, and prenatal life, become dominant. We agree
In fact, it is not clear to us that the claim asserted by some amici that one has with this approach.
an unlimited right to do with one's body as one pleases bears a close
relationship to the right of privacy previously articulated in the Court's
Where certain "fundamental rights" are involved, the Court has held that
decisions. The Court has refused to recognize an unlimited right of this kind regulation limiting these rights may be justified only by a "compelling state
in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) interest," Kramer v. Union Free School District, 395 U. S. 621, 627
(vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization).
(1969); Shapiro v. Thompson, 394 U. S. 618, 634 (1969), Sherbert v.
Verner, 374 U. S. 398, 406 (1963), and that legislative enactments must be
We, therefore, conclude that the right of personal privacy includes the narrowly drawn to express only the legitimate state interests at
abortion decision, but that this right is not unqualified, and must be stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of
considered against important state interests in regulation. State, 378 U. S. 500, 508 (1964); Cantwell v. Connecticut, 310 U. S. 296,
307-308 (1940); see
We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion. A majority, in [156]
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in
overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800
result).
(Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224
(Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048
(ND Ga.1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp. In the recent abortion cases cited above, courts have recognized these
1385 (ND Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have concluded
that neither interest justified broad limitations on the reasons for which a
physician and his pregnant patient might decide that she should have an the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and
abortion in the early stages of pregnancy. Courts sustaining state laws have Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth
held that the State's determinations to protect health or prenatal life are Amendment. But in nearly all these instances, the use of the word is such
dominant and constitutionally justifiable. that it has application only post-natally. None indicates, with any assurance,
that it has any possible pre-natal application. [Footnote 54]
IX
[158]
The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was All this, together with our observation, supra, that, throughout the major
necessary to support a compelling state interest, and that, although the portion of the 19th century, prevailing legal abortion practices were far freer
appellee presented "several compelling justifications for state presence in the than they are today, persuades us that the word "person," as used in the
area of abortions," the statutes outstripped these justifications and swept "far Fourteenth Amendment, does not include the unborn. [Footnote 55] This is in
beyond any areas of compelling state interest." 314 F.Supp. at 1222-1223. accord with the results reached in those few cases where the issue has been
Appellant and appellee both contest that holding. Appellant, as has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751
indicated, claims an absolute right that bars any state imposition of criminal (WD Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d
penalties in the area. Appellee argues that the State's determination to 194, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle,
recognize and protect prenatal life from and after conception constitutes a 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v.
compelling state interest. As noted above, we do not agree fully with either State, ___ Ind. at ___, 285 N.E.2d at 270; Montana v. Rogers, 278 F.2d 68,
formulation. 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U. S.
308 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617
A. The appellee and certain amici argue that the fetus is a "person" within the (1970); State v. Dickinson, 28
language and meaning of the Fourteenth Amendment. In support of this, they
outline at length and in detail the well known facts of fetal development. If this [159]
suggestion of personhood is established, the appellant's case, of course,
collapses, Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States
v. Vuitch, 402 U. S. 62 (1971), inferentially is to the same effect, for we there
[157] would not have indulged in statutory interpretation favorable to abortion in
specified circumstances if the necessary consequence was the termination of
for the fetus' right to life would then be guaranteed specifically by the life entitled to Fourteenth Amendment protection.
Amendment. The appellant conceded as much on reargument. [Footnote 51]
On the other hand, the appellee conceded on reargument [Footnote 52] that This conclusion, however, does not of itself fully answer the contentions
no case could be cited that holds that a fetus is a person within the meaning raised by Texas, and we pass on to other considerations.
of the Fourteenth Amendment.
B. The pregnant woman cannot be isolated in her privacy. She carries an
The Constitution does not define "person" in so many words. Section 1 of the embryo and, later, a fetus, if one accepts the medical definitions of the
Fourteenth Amendment contains three references to "person." The first, in developing young in the human uterus. See Dorland's Illustrated Medical
defining "citizens," speaks of "persons born or naturalized in the United Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently
States." The word also appears both in the Due Process Clause and in the different from marital intimacy, or bedroom possession of obscene material,
Equal Protection Clause. "Person" is used in other places in the Constitution: or marriage, or procreation, or education, with which Eisenstadt and
in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively
2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [Footnote 53] concerned. As we have intimated above, it is reasonable and appropriate for
in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument a State to decide that, at some point in time another interest, that of health of
Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the the mother or that of potential human life, becomes significantly involved.
superseded cl. 3; in the provision outlining qualifications for the office of The woman's privacy is no longer sole and any right of privacy she
President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at legal rights to the unborn except in narrowly defined situations and except
conception and is present throughout pregnancy, and that, therefore, the when the rights are contingent upon live birth. For example, the traditional
State has a compelling interest in protecting that life from and after rule of tort law denied recovery for prenatal injuries even though the child
conception. We need not resolve the difficult question of when life begins. was born alive. [Footnote 63] That rule has been changed in almost every
When those trained in the respective disciplines of medicine, philosophy, and jurisdiction. In most States, recovery is said to be permitted only if the fetus
theology are unable to arrive at any consensus, the judiciary, at this point in was viable, or at least quick, when the injuries were sustained, though few
the development of man's knowledge, is not in a position to speculate as to
the answer. [162]

[160] courts have squarely so held. [Footnote 64] In a recent development,


generally opposed by the commentators, some States permit the parents of a
It should be sufficient to note briefly the wide divergence of thinking on this stillborn child to maintain an action for wrongful death because of prenatal
most sensitive and difficult question. There has always been strong support injuries. [Footnote 65] Such an action, however, would appear to be one to
for the view that life does not begin until live' birth. This was the belief of the vindicate the parents' interest and is thus consistent with the view that the
Stoics. [Footnote 56] It appears to be the predominant, though not the fetus, at most, represents only the potentiality of life. Similarly, unborn
unanimous, attitude of the Jewish faith. [Footnote 57] It may be taken to children have been recognized as acquiring rights or interests by way of
represent also the position of a large segment of the Protestant community, inheritance or other devolution of property, and have been represented by
insofar as that can be ascertained; organized groups that have taken a guardians ad litem. [Footnote 66] Perfection of the interests involved, again,
formal position on the abortion issue have generally regarded abortion as a has generally been contingent upon live birth. In short, the unborn have
matter for the conscience of the individual and her family. [Footnote 58] As never been recognized in the law as persons in the whole sense.
we have noted, the common law found greater significance in quickening.
Physician and their scientific colleagues have regarded that event with less X
interest and have tended to focus either upon conception, upon live birth, or
upon the interim point at which the fetus becomes "viable," that is, potentially
able to live outside the mother's womb, albeit with artificial aid. [Footnote 59] In view of all this, we do not agree that, by adopting one theory of life, Texas
Viability is usually placed at about seven months (28 weeks) but may occur may override the rights of the pregnant woman that are at stake. We repeat,
earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate however, that the State does have an important and legitimate interest in
animation," that held sway throughout the Middle Ages and the Renaissance preserving and protecting the health of the pregnant woman, whether she be
in Europe, continued to be official Roman Catholic dogma until the 19th a resident of the State or a nonresident who seeks medical consultation and
century, despite opposition to this "ensoulment" theory from those in the treatment there, and that it has still another important and legitimate interest
Church who would recognize the existence of life from in protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches
[161]
[163]
the moment of conception. [Footnote 61] The latter is now, of course, the
official belief of the Catholic Church. As one brief amicus discloses, this is a term and, at a point during pregnancy, each becomes "compelling."
view strongly held by many non-Catholics as well, and by many physicians.
Substantial problems for precise definition of this view are posed, however, With respect to the State's important and legitimate interest in the health of
by new embryological data that purport to indicate that conception is a the mother, the "compelling" point, in the light of present medical knowledge,
"process" over time, rather than an event, and by new medical techniques is at approximately the end of the first trimester. This is so because of the
such as menstrual extraction, the "morning-after" pill, implantation of now-established medical fact, referred to above at 149, that, until the end of
embryos, artificial insemination, and even artificial wombs. [Footnote 62] the first trimester mortality in abortion may be less than mortality in normal
childbirth. It follows that, from and after this point, a State may regulate the
In areas other than criminal abortion, the law has been reluctant to endorse abortion procedure to the extent that the regulation reasonably relates to the
any theory that life, as we recognize it, begins before live birth, or to accord preservation and protection of maternal health. Examples of permissible
state regulation in this area are requirements as to the qualifications of the
person who is to perform the abortion; as to the licensure of that person; as involved, is violative of the Due Process Clause of the Fourteenth
to the facility in which the procedure is to be performed, that is, whether it Amendment.
must be a hospital or may be a clinic or some other place of less-than-
hospital status; as to the licensing of the facility; and the like. (a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
This means, on the other hand, that, for the period of pregnancy prior to this the pregnant woman's attending physician.
"compelling" point, the attending physician, in consultation with his patient, is
free to determine, without regulation by the State, that, in his medical (b) For the stage subsequent to approximately the end of the first trimester,
judgment, the patient's pregnancy should be terminated. If that decision is the State, in promoting its interest in the health of the mother, may, if it
reached, the judgment may be effectuated by an abortion free of interference chooses, regulate the abortion procedure in ways that are reasonably related
by the State. to maternal health.

With respect to the State's important and legitimate interest in potential life, (c) For the stage subsequent to viability, the State in promoting its interest in
the "compelling" point is at viability. This is so because the fetus then the potentiality of human life
presumably has the capability of meaningful life outside the mother's womb.
State regulation protective of fetal life after viability thus has both logical and
[165]
biological justifications. If the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion
may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or
[164]
health of the mother.

during that period, except when it is necessary to preserve the life or health 2. The State may define the term "physician," as it has been employed in the
of the mother. preceding paragraphs of this Part XI of this opinion, to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
Measured against these standards, Art. 1196 of the Texas Penal Code, in who is not a physician as so defined.
restricting legal abortions to those "procured or attempted by medical advice
for the purpose of saving the life of the mother," sweeps too broadly. The In Doe v. Bolton, post, p. 179, procedural requirements contained in one of
statute makes no distinction between abortions performed early in pregnancy
the modern abortion statutes are considered. That opinion and this one, of
and those performed later, and it limits to a single reason, "saving" the
course, are to be read together. [Footnote 67]
mother's life, the legal justification for the procedure. The statute, therefore,
cannot survive the constitutional attack made upon it here.
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal
This conclusion makes it unnecessary for us to consider the additional
history, with the lenity of the common law, and with the demands of the
challenge to the Texas statute asserted on grounds of vagueness. See
profound problems of the present day. The decision leaves the State free to
United States v. Vuitch, 402 U.S. at 67-72.
place increasing restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to the recognized state
XI interests. The decision vindicates the right of the physician to administer
medical treatment according to his professional judgment up to the points
To summarize and to repeat: where important

1. A state criminal abortion statute of the current Texas type, that excepts [166]
from criminality only a lifesaving procedure on behalf of the mother, without
regard to pregnancy stage and without recognition of the other interests state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a
medical decision, and basic responsibility for it must rest with the physician. If In 1963, this Court, in Ferguson v. Skrupa, 372 U. S. 726, purported to sound
an individual practitioner abuses the privilege of exercising proper medical the death knell for the doctrine of substantive due process, a doctrine under
judgment, the usual remedies, judicial and intra-professional, are available. which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it:
XII
"We have returned to the original constitutional proposition that courts do not
Our conclusion that Art. 1196 is unconstitutional means, of course, that the substitute their social and economic beliefs for the judgment of legislative
Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 bodies, who are elected to pass laws."
cannot be struck down separately, for then the State would be left with a
statute proscribing all abortion procedures no matter how medically urgent Id. at 730. [Footnote 1]
the case.
Barely two years later, in Griswold v. Connecticut, 381 U. S. 479, the Court
Although the District Court granted appellant Roe declaratory relief, it held a Connecticut birth control law unconstitutional. In view of what had
stopped short of issuing an injunction against enforcement of the Texas been so recently said in Skrupa, the Court's opinion
statutes. The Court has recognized that different considerations enter into a in Griswold understandably did its best to avoid reliance on the Due Process
federal court's decision as to declaratory relief, on the one hand, and Clause of the Fourteenth Amendment as the ground for decision. Yet the
injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 252-255 Connecticut law did not violate any provision of the Bill of Rights, nor any
(1967); Dombrowski v. Pfister, 380 U. S. 479 (1965). We are not dealing with other specific provision of the Constitution. [Footnote 2] So it was clear
a statute that, on its face, appears to abridge free expression, an area of
particular concern under Dombrowski and refined in Younger v. Harris, 401 [168]
U.S. at 50.
to me then, and it is equally clear to me now, that the Griswold decision can
We find it unnecessary to decide whether the District Court erred in be rationally understood only as a holding that the Connecticut statute
withholding injunctive relief, for we assume the Texas prosecutorial substantively invaded the "liberty" that is protected by the Due Process
authorities will give full credence to this decision that the present criminal Clause of the Fourteenth Amendment. [Footnote 3] As so
abortion statutes of that State are unconstitutional. understood, Griswold stands as one in a long line of pre-Skrupa cases
decided under the doctrine of substantive due process, and I now accept it
The judgment of the District Court as to intervenor Hallford is reversed, and as such.
Dr. Hallford's complaint in intervention is dismissed. In all other respects, the
judgment "In a Constitution for a free people, there can be no doubt that the meaning
of liberty' must be broad indeed." Board of Regents v. Roth, 408 U. S. 564,
[167] 572. The Constitution nowhere mentions a specific right of personal choice in
matters of marriage and family life, but the "liberty" protected by the Due
of the District Court is affirmed. Costs are allowed to the appellee. Process Clause of the Fourteenth Amendment covers more than those
freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar
Examiners, 353 U. S. 232, 238-239; Pierce v. Society of Sisters, 268 U. S.
It is so ordered. 510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v.
Thompson, 394 U. S. 618, 629-630; United States v. Guest, 383 U. S. 745,
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.] 757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v. Secretary of
State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127; Bolling v.
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.] Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41.

[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.] [169]

MR. JUSTICE STEWART, concurring. As Mr. Justice Harlan once wrote:


"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot school protected in Pierce v. Society of Sisters, 268 U. S. 510(1925), or the
be found in or limited by the precise terms of the specific guarantees right to teach a foreign language protected in Meyer v. Nebraska, 262 U. S.
elsewhere provided in the Constitution. This 'liberty' is not a series of isolated 390 (1923)."
points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from Abele v. Markle, 351 F.Supp. 224, 227 (Conn.1972).
unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary
Clearly, therefore, the Court today is correct in holding that the right asserted
impositions and purposeless restraints . . . and which also recognizes, what a by Jane Roe is embraced within the personal liberty protected by the Due
reasonable and sensitive judgment must, that certain interests require Process Clause of the Fourteenth Amendment.
particularly careful scrutiny of the state needs asserted to justify their
abridgment."
It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a
Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of
constitutional freedom than that worked by the inflexible criminal statute now
appeal) (citations omitted). In the words of Mr. Justice Frankfurter, in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful
"Great concepts like . . . 'liberty' . . . were purposely left to gather meaning scrutiny" that the Fourteenth Amendment here requires.
from experience. For they relate to the whole domain of social and economic
fact, and the statesmen who founded this Nation knew too well that only a The asserted state interests are protection of the health and safety of the
stagnant society remains unchanged." pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646 abortions as it does other surgical procedures, and perhaps sufficient to
(dissenting opinion). permit a State to regulate abortions more stringently, or even to prohibit them
in the late stages of pregnancy. But such legislation is not before us, and I
Several decisions of this Court make clear that freedom of personal choice in think the Court today has thoroughly demonstrated that these state interests
matters of marriage and family life is one of the liberties protected by the Due cannot constitutionally support the broad abridgment of personal
Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U. S.
1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; [171]
Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158,
166; Skinner v. Oklahoma, 316 U. S. 535, 541. As recently as last Term,
liberty worked by the existing Texas law. Accordingly, I join the Court's
in Eisenstadt v. Baird, 405 U. S. 438, 453, we recognized
opinion holding that that law is invalid under the Due Process Clause of the
Fourteenth Amendment.
"the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person MR. JUSTICE REHNQUIST, dissenting.

[170]
The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
as the decision whether to bear or beget a child." thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in
That right necessarily includes the right of a woman to decide whether or not question, and therefore dissent.
to terminate her pregnancy.
I
"Certainly the interests of a woman in giving of her physical and emotional
self during pregnancy and the interests that will be affected throughout her The Court's opinion decides that a State may impose virtually no restriction
life by the birth and raising of a child are of a far greater degree of on the performance of abortions during the first trimester of pregnancy. Our
significance and personal intimacy than the right to send a child to private
previous decisions indicate that a necessary predicate for such an opinion is in his concurring opinion that the "liberty," against deprivation of which
a plaintiff who was in her first trimester of pregnancy at some time during the without due process the Fourteenth
pendency of her lawsuit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge v. [173]
Irvis, 407 U. S. 163 (1972); Sierra, Club v. Morton, 405 U. S. 727 (1972). The
Court's statement of facts in this case makes clear, however, that the record
Amendment protects, embraces more than the rights found in the Bill of
in no way indicates the presence of such a plaintiff. We know only that
Rights. But that liberty is not guaranteed absolutely against deprivation, only
plaintiff Roe at the time of filing her complaint was a pregnant woman; for against deprivation without due process of law. The test traditionally applied
aught that appears in this record, she may have been in her last trimester of in the area of social and economic legislation is whether or not a law such as
pregnancy as of the date the complaint was filed. that challenged has a rational relation to a valid state objective. Williamson v.
Lee Optical Co., 348 U. S. 483, 491 (1955). The Due Process Clause of the
Nothing in the Court's opinion indicates that Texas might not constitutionally Fourteenth Amendment undoubtedly does place a limit, albeit a broad one,
apply its proscription of abortion as written to a woman in that stage of on legislative power to enact laws such as this. If the Texas statute were to
pregnancy. Nonetheless, the Court uses her complaint against the Texas prohibit an abortion even where the mother's life is in jeopardy, I have little
statute as a fulcrum for deciding that States may doubt that such a statute would lack a rational relation to a valid state
objective under the test stated in Williamson, supra. But the Court's
[172] sweeping invalidation of any restrictions on abortion during the first trimester
is impossible to justify under that standard, and the conscious weighing of
impose virtually no restrictions on medical abortions performed during the competing factors that the Court's opinion apparently substitutes for the
first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court established test is far more appropriate to a legislative judgment than to a
departs from the longstanding admonition that it should never "formulate a judicial one.
rule of constitutional law broader than is required by the precise facts to
which it is to be applied." Liverpool, New York & Philadelphia S.S. Co. v. The Court eschews the history of the Fourteenth Amendment in its reliance
Commissioners of Emigration, 113 U. S. 33, 39 (1885). See also Ashwander on the "compelling state interest" test. See Weber v. Aetna Casualty &
v. TVA, 297 U. S. 288, 345 (1936) (Brandeis, J., concurring). Surety Co., 406 U. S. 164, 179 (1972) (dissenting opinion). But the Court
adds a new wrinkle to this test by transposing it from the legal considerations
II associated with the Equal Protection Clause of the Fourteenth Amendment to
this case arising under the Due Process Clause of the Fourteenth
Amendment. Unless I misapprehend the consequences of this transplanting
Even if there were a plaintiff in this case capable of litigating the issue which of the "compelling state interest test," the Court's opinion will accomplish the
the Court decides, I would reach a conclusion opposite to that reached by the seemingly impossible feat of leaving this area of the law more confused than
Court. I have difficulty in concluding, as the Court does, that the right of it found it.
"privacy" is involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not [174]
"private" in the ordinary usage of that word. Nor is the "privacy" that the Court
finds here even a distant relative of the freedom from searches and seizures While the Court's opinion quotes from the dissent of Mr. Justice Holmes
protected by the Fourth Amendment to the Constitution, which the Court has in Lochner v. New York, 198 U. S. 45, 74 (1905), the result it reaches is more
referred to as embodying a right to privacy. Katz v. United States, 389 U. S. closely attuned to the majority opinion of Mr. Justice Peckham in that case.
347 (1967). As in Lochner and similar cases applying substantive due process standards
to economic and social welfare legislation, the adoption of the compelling
If the Court means by the term "privacy" no more than that the claim of a state interest standard will inevitably require this Court to examine the
person to be free from unwanted state regulation of consensual transactions legislative policies and pass on the wisdom of these policies in the very
may be a form of "liberty" protected by the Fourteenth Amendment, there is process of deciding whether a particular state interest put forward may or
no doubt that similar claims have been upheld in our earlier decisions on the may not be "compelling." The decision here to break pregnancy into three
basis of that liberty. I agree with the statement of MR. JUSTICE STEWART distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than it III
does of a determination of the intent of the drafters of the Fourteenth
Amendment. Even if one were to agree that the case that the Court decides were here,
and that the enunciation of the substantive constitutional law in the Court's
The fact that a majority of the States reflecting, after all, the majority opinion were proper, the actual disposition of the case by the Court is still
sentiment in those States, have had restrictions on abortions for at least a difficult to justify. The Texas statute is struck down in toto, even though the
century is a strong indication, it seems to me, that the asserted right to an Court apparently concedes that, at later periods of pregnancy Texas might
abortion is not "so rooted in the traditions and conscience of our people as to impose these self-same statutory limitations on abortion. My understanding
be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105 of past practice is that a statute found
(1934). Even today, when society's views on abortion are changing, the very
existence of the debate is evidence that the "right" to an abortion is not so [178]
universally accepted as the appellant would have us believe.
to be invalid as applied to a particular plaintiff, but not unconstitutional as a
To reach its result, the Court necessarily has had to find within the scope of whole, is not simply "struck down" but is, instead, declared unconstitutional
the Fourteenth Amendment a right that was apparently completely unknown as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.
to the drafters of the Amendment. As early as 1821, the first state law dealing S. 356 (1886); Street v. New York, 394 U. S. 576 (1969).
directly with abortion was enacted by the Connecticut Legislature.
Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth
For all of the foregoing reasons, I respectfully dissent.
[175]

Amendment in 1868, there were at least 36 laws enacted by state or


territorial legislatures limiting abortion. [Footnote 1] While many States have
amended or updated

[176]

their laws, 21 of the laws on the books in 1868 remain in effect today.
Articles 4 and 5
[Footnote 3-2] Indeed, the Texas statute struck down today was, as the
majority notes, first enacted in 1857, SECOND DIVISION

[177] G.R. No. 211465, December 03, 2014

and "has remained substantially unchanged to the present time." Ante at PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SHIRLEY
119. A. CASIO, Accused-Appellant.

There apparently was no question concerning the validity of this provision or DECISION
of any of the other state statutes when the Fourteenth Amendment was
adopted. The only conclusion possible from this history is that the drafters did
LEONEN, J.:
not intend to have the Fourteenth Amendment withdraw from the States the
power to legislate with respect to this matter.
“Chicks mo dong?”1

With this sadly familiar question being used on the streets of many
of our cities, the fate of many desperate women is sealed and their
futures vanquished. This case resulted in the rescue of two minors noticed them and called their attention by saying “Chicks mo
from this pernicious practice. Hopefully, there will be more rescues. dong?” (Do you like girls, guys?).11
Trafficking in persons is a deplorable crime. It is committed even
though the minor knew about or consented to the act of trafficking. During trial, PO1 Luardo and PO1 Veloso testified that their
conversation with accused went as
This case involves Republic Act No. 9208,2 otherwise known as the follows:chanroblesvirtuallawlibrary
“Anti-Trafficking in Persons Act of 2003.”3 Accused:Chicks mo dong? (Do you like girls, guys?)
PO1 Unya mga bag-o? Kanang batan-on kay naa mi guests
Accused Shirley A. Casio was charged for the violation of Republic Luardo: naghulat sa motel. (Are they new? They must be young
Act No. 9208, Section 4(a), qualified by Section 6(a). The because we have guests waiting at the motel.)
information against accused, dated May 5, 2008, Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get
Accused:
states:chanroblesvirtuallawlibrary them.)12
That on or about the 3rd day of May 2008, at about 1:00 o’clock At that point, PO1 Luardo sent a text message to PSI Ylanan that
A.M., in the City of Cebu, Philippines, and within the jurisdiction of they found a prospective subject.13
this Honorable Court, the said accused, with deliberate intent, with
intent to gain, did then and there hire and/or recruit AAA, a minor, After a few minutes, accused returned with AAA and BBB, private
17 years old and BBB for the purpose of prostitution and sexual complainants in this case.14
exploitation, by acting as their procurer for different customers, for Accused:Kining duha kauyon mo ani? (Are you satisfied with these
money, profit or any other consideration, in Violation of Sec. 4, two?)
Par. (a), Qualified by Sec. 6, Par. ( a), of R.A. 9208 (Qualified PO1 Maayo man kaha na sila modala ug kayat? (Well, are they
Trafficking in Persons). Veloso: good in sex?)15
Accused gave the assurance that the girls were good in sex. PO1
CONTRARY TO LAW.4 Luardo inquired how much their services would cost. Accused
The facts, as found by the trial court and the Court of Appeals, are replied, “Tag kinientos” (P500.00).16
as follows:
PO1 Veloso and PO1 Luardo convinced accused to come with them
On May 2, 2008, International Justice Mission (IJM),5 a non- to Queensland Motel. Upon proceeding to Room 24, PO1 Veloso
governmental organization, coordinated with the police in order to handed the marked money to accused.17
entrap persons engaged in human trafficking in Cebu City.6
As accused counted the money, PO1 Veloso gave PSI Ylanan a
Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe missed call. This was their pre-arranged signal. The rest of the
Altubar, PO1 Albert Luardo, and PO1 Roy Carlo Veloso composed team proceeded to Room 24, arrested accused, and informed her
the team of police operatives.7 PO1 Luardo and PO1 Veloso were of her constitutional rights. The police confiscated the marked
designated as decoys, pretending to be tour guides looking for girls money from accused.18 Meanwhile, AAA and BBB “were brought to
to entertain their guests.8 IJM provided them with marked money, Room 25 and placed in the custody of the representatives from the
which was recorded in the police blotter.9 IJM and the DSWD.”19

The team went to Queensland Motel and rented Rooms 24 and 25. During trial, AAA testified that she was born on January 27, 1991.
These rooms were adjacent to each other. Room 24 was This statement was supported by a copy of her certificate of live
designated for the transaction while Room 25 was for the rest of birth.20
the police team.10
AAA narrated that in 2007, she worked as a house helper in
PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Mandaue City. In March 2008 she stopped working as a house
Barangay Kamagayan, Cebu City’s red light district. Accused helper and transferred to Cebu City. She stayed with her cousin,
but she subsequently moved to a boarding house. It was there walking, she was stopped by two men on board a blue car. The two
where she met her friend, Gee Ann. AAA knew that Gee Ann men asked her if she knew someone named Bingbing. She replied
worked in a disco club. When Gee Ann found out that AAA was no that she only knew Gingging but not Bingbing. The men informed
longer a virgin, she offered AAA work. AAA agreed because she her that they were actually looking for Gingging, gave her a piece
needed the money in order to help her father. AAA recalled that of paper with a number written on it, and told her to tell Gingging
she had sex with her first customer. She was paid P200.00 and to bring companions. When accused arrived home, she contacted
given an additional P500.00 as tip. For the first few weeks, Gee Gingging. Gingging convinced her to come because allegedly, she
Ann provided customers for AAA. Eventually, Gee Ann brought her would be given money by the two males.30
to Barangay Kamagayan, telling her that there were more
customers in that area.21 Ruling of the trial court

AAA stated that she knew accused was a pimp because AAA would The Regional Trial Court, Branch 14 in Cebu City found accused
usually see her pimping girls to customers in Barangay guilty beyond reasonable doubt and
Kamagayan.22 AAA further testified that on May 2, 2008, accused held31 that:chanroblesvirtuallawlibrary
solicited her services for a customer. That was the first time that Accused had consummated the act of trafficking of person[s] . . .
she was pimped by accused.23 Accused brought her, BBB, and a as defined under paragraph (a), Section 3 of R.A. 9208 for the
certain Jocelyn to Queensland Motel.24 purpose of letting her engage in prostitution as defined under
paragraph [c] of the same Section; the act of “sexual intercourse”
AAA testified that Jocelyn stayed in the taxi, while she and BBB need not have been consummated for the mere “transaction” i.e.
went to Room 24. It was in Room 24 where the customer paid the ‘solicitation’ for sex and the handing over of the “bust money”
Shirley. The police rushed in and told AAA and BBB to go to the of Php1,000.00 already consummated the said act.
other room. AAA was then met by the Department of Social
Welfare and Development personnel who informed her that she ....
was rescued and not arrested.25
WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY
AAA described that her job as a prostitute required her to display beyond reasonable doubt of trafficking in persons under paragraph
herself, along with other girls, between 7 p.m. to 8 p.m. She (a), Section 4 as qualified under paragraph (a), Section 6 of R.A.
received P400.00 for every customer who selected her.26 9208 and sentenced to suffer imprisonment of TWENTY (20) YEARS
and to pay a fine of ONE MILLION (Php1,000,000.00).
The prosecution also presented the police operatives during trial.
PSI Ylanan, SPO1 Mendaros, and SPO1 Altubar testified that after Finally, accused is ordered to pay the costs of these proceedings.
PO1 Veloso had made the missed call to PSI Ylanan, they “rushed
to Room 24 and arrested the accused.”27 SPO1 Altubar retrieved SO ORDERED[.]32
the marked money worth P1,000.00 from accused’s right hand Ruling of the Court of Appeals
“and upon instruction from PCINSP Ylanan recorded the same at
the ‘police blotter prior operation’. . . .”28 The Court of Appeals affirmed the findings of the trial court but
modified the fine and awarded moral damages. The dispositive
The trial court noted that AAA requested assistance from the IJM portion of the decision33 reads:chanroblesvirtuallawlibrary
“in conducting the operation against the accused.”29 WHEREFORE, in view of the foregoing premises, the instant
appeal is hereby DENIED. The assailed Decision dated 10 August
Version of the accused 2010 promulgated by the Regional Trial Court, Branch 14 in Cebu
City in Crim. Case No. CBU-83122 is AFFIRMED WITH
In defense, accused testified that she worked as a laundrywoman. MODIFICATIONS. The accused-appellant is accordingly sentenced
On the evening of May 2, 2008, she went out to buy supper. While to suffer the penalty of life imprisonment and a fine of
Php2,000,000 and is ordered to pay each of the private
complainants Php150,000 as moral damages. Accused argues that there was no valid entrapment. Instead, she
was instigated into committing the crime.46 The police did not
SO ORDERED.34 conduct prior surveillance and did not even know who their subject
Accused filed a notice of appeal 35 on August 28, 2013, which the was.47Neither did the police know the identities of the alleged
Court of Appeals noted and gave due course in its victims.
resolution36 dated January 6, 2014.
Accused further argues that under the subjective test, she should
The case records of CA-G.R. CEB-CR No. 01490 were received by be acquitted because the prosecution did not present evidence that
this court on March 17, 2014.37 would prove she had a history of engaging in human trafficking or
any other offense. She denied being a pimp and asserted that she
In the resolution38 dated April 29, 2014, this court resolved to was a laundrywoman.48 In addition, AAA admitted that she worked
notify the parties that they may file their respective supplemental as a prostitute. Thus, it was her decision to display herself to solicit
briefs within 30 days from notice. This court also required the customers.49
Superintendent of the Correctional Institution for Women to
confirm the confinement of accused.39 Arguments of the plaintiff-appellee

Counsel for accused40 and the Office of the Solicitor General 41 filed The Office of the Solicitor General, counsel for plaintiff-appellee
their respective manifestations, stating that they would no longer People of the Philippines, argued that the trial court did not err in
file supplemental briefs considering that all issues had been convicting accused because witnesses positively identified her as
discussed in the appellant’s brief and appellee’s brief filed before the person who solicited customers and received money for AAA
the Court of Appeals. Through a letter42 dated June 17, 2014, and BBB.50 Entrapment operations are valid and have been
Superintendent IV Rachel D. Ruelo confirmed accused’s recognized by courts.51 Likewise, her arrest in flagrante delicto is
confinement at the Correctional Institution for Women since valid.52 Hence, the trial court was correct in stating that accused
October 27, 2010. had “fully consummated the act of trafficking of persons. . .” 53

The sole issue raised by accused is whether the prosecution was We affirm accused Shirley A. Casio’s conviction.
able to prove her guilt beyond reasonable doubt.
I.
However, based on the arguments raised in accused’s brief, the
sole issue may be dissected into the following: Background of Republic Act No. 9208

(1) Whether the entrapment operation conducted by the police was The United Nations Convention against Transnational Organized
valid, considering that there was no prior surveillance and the Crime (UN CTOC) was “adopted and opened for signature,
police did not know the subject of the operation;43 ratification and accession”54 on November 15, 2000. The UN CTOC
(2) Whether the prosecution was able to prove accused’s guilt is supplemented by three protocols: (1) the Protocol to Prevent,
beyond reasonable doubt even though there was no evidence Suppress and Punish Trafficking in Persons, Especially Women and
presented to show that accused has a history of engaging in Children; (2) the Protocol against the Smuggling of Migrants by
human trafficking;44 and Land, Sea and Air; and, (3) the Protocol against the Illicit
(3) Whether accused was properly convicted of trafficking in Manufacturing of and Trafficking in Firearms, their Parts and
persons, considering that AAA admitted that she works as a Components and Ammunition.55
prostitute.45
On December 14, 2000, the Philippines signed the United Nations
Arguments of accused “Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children” (Trafficking Protocol).56 This was manifestation of one of the most flagrant forms of violence against
ratified by the Philippine Senate on September 30, 2001.57 The human beings. Its victims suffer the brunt of this insidious form of
Trafficking Protocol’s entry into force was on December 25, 2003. 58 violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced
In the Trafficking Protocol, human trafficking is defined labor, and indentured servitude.
as:chanroblesvirtuallawlibrary
Article 3 ....

Use of terms As of this time, we have signed the following: the Convention on
the Elimination of all Forms of Discrimination Against Women; the
For the purposes of this Protocol: 1995 Convention on the Rights of the Child; the United Nations
Convention on the Protection of Migrant Workers and their
(a) “Trafficking in persons” shall mean the recruitment, Families; and the United Nations’ Resolution on Trafficking in
transportation, transfer, harbouring or receipt of persons, by Women and Girls, among others.
means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a Moreover, we have also expressed our support for the United
position of vulnerability or of the giving or receiving of payments or Nations’ Convention Against Organized Crime, including the
benefits to achieve the consent of a person having control over Trafficking Protocol in October last year.
another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others At first glance, it appears that we are very responsive to the
or other forms of sexual exploitation, forced labour or services, problem. So it seems.
slavery or practices similar to slavery, servitude or the removal of
organs; Despite these international agreements, we have yet to come up
with a law that shall squarely address human trafficking.60
(b) The consent of a victim of trafficking in persons to the intended During the interpellation of Republic Act No. 9208, then numbered
exploitation set forth in subparagraph (a) of this article shall be as Senate Bill No. 2444, Senator Teresa Aquino-Oreta asked if
irrelevant where any of the means set forth in subparagraph (a) there was a necessity for an anti-trafficking law when other laws
have been used; exist that cover trafficking.61

(c) The recruitment, transportation, transfer, harbouring or receipt Senator Luisa Ejercito Estrada
of a child for the purpose of exploitation shall be considered explained:chanroblesvirtuallawlibrary
“trafficking in persons” even if this does not involve any of the At present, Mr. President, the relevant laws to the trafficking issue
means set forth in subparagraph (a) of this article; are the Revised Penal Code, Republic Act No. 8042 or the Migrant
Workers and Overseas Filipino Act, R[epublic] A[ct] No. 6955 or
(d) “Child” shall mean any person under eighteen years of age. the Mail-Order Bride Act, and Republic Act No. 8239 or the
Senator Loren Legarda, in her sponsorship speech, stated that the Philippine Passport Act. These laws address issues such as illegal
“Anti-Trafficking Act will serve as the enabling law of the country’s recruitment, prostitution, falsification of public documents and the
commitment to [the] protocol.”59 mail-order bride scheme. These laws do not respond to the issue of
recruiting, harboring or transporting persons resulting in
Senator Luisa Ejercito Estrada also delivered a sponsorship speech prostitution, forced labor, slavery and slavery-like practices. They
and described trafficking in persons as only address to one or some elements of trafficking independent of
follows:chanroblesvirtuallawlibrary their results or consequence.62 (Emphasis supplied)
Trafficking in human beings, if only to emphasize the gravity of its
hideousness, is tantamount to modern-day slavery at work. It is a
Thus, Republic Act No. 9208 was enacted in order to fully address services, slavery, servitude or the removal or sale of organs.
the issue of human trafficking. Republic Act No. 9208 was passed
on May 12, 2003, and approved on May 26, 2003. “The recruitment, transportation, transfer, harboring, adoption or
receipt of a child for the purpose of exploitation or when the
II. adoption is induced by any form of consideration for exploitative
purposes shall also be considered as ‘trafficking in persons’ even if
Elements of trafficking in persons it does not involve any of the means set forth in the preceding
paragraph. (Emphasis supplied)
The elements of trafficking in persons can be derived from its Under Republic Act No. 10364, the elements of trafficking in
definition under Section 3(a) of Republic Act No. 9208, persons have been expanded to include the following
thus:chanroblesvirtuallawlibrary acts:chanroblesvirtuallawlibrary
(1) The act of “recruitment, transportation, transfer or harbouring, (1) The act of “recruitment, obtaining, hiring, providing, offering,
or receipt of persons with or without the victim’s consent or transportation, transfer, maintaining, harboring, or receipt of
knowledge, within or across national borders.” persons with or without the victim’s consent or knowledge,
(2) The means used which include “threat or use of force, or other within or across national borders;”
forms of coercion, abduction, fraud, deception, abuse of power (2) The means used include “by means of threat, or use of force, or
or of position, taking advantage of the vulnerability of the other forms of coercion, abduction, fraud, deception, abuse of
person, or, the giving or receiving of payments or benefits to power or of position, taking advantage of the vulnerability of
achieve the consent of a person having control over another; the person, or, the giving or receiving of payments or benefits
and to achieve the consent of a person having control over another
(3) The purpose of trafficking is exploitation which includes person”
“exploitation or the prostitution of others or other forms of (3) The purpose of trafficking includes “the exploitation or the
sexual exploitation, forced labor or services, slavery, servitude prostitution of others or other forms of sexual exploitation,
or the removal or sale of organs.”63 forced labor or services, slavery, servitude or the removal or
On January 28, 2013, Republic Act No. 1036464 was approved, sale of organs” (Emphasis supplied)
otherwise known as the “Expanded Anti-Trafficking in Persons Act The Court of Appeals found that AAA and BBB were recruited by
of 2012.” Section 3(a) of Republic Act No. 9208 was amended by accused when their services were peddled to the police who acted
Republic Act No. 10364 as follows:chanroblesvirtuallawlibrary as decoys.65 AAA was a child at the time that accused peddled her
SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to services.66 AAA also stated that she agreed to work as a prostitute
read as follows: because she needed money.67Accused took advantage of AAA’s
vulnerability as a child and as one who need money, as proven by
“SEC. 3. Definition of Terms. – As used in this Act: the testimonies of the witnesses.68

“(a) Trafficking in Persons – refers to the recruitment, obtaining, III.


hiring, providing, offering, transportation, transfer, maintaining,
harboring, or receipt of persons with or without the victim’s Knowledge or consent of the minor is not a defense under
consent or knowledge, within or across national borders by means Republic Act No. 9208.
of threat, or use of force, or other forms of coercion, abduction,
fraud, deception, abuse of power or of position, taking advantage Accused claims that AAA admitted engaging in prostitution even
of the vulnerability of the person, or, the giving or receiving of before May 2, 2008. She concludes that AAA was predisposed to
payments or benefits to achieve the consent of a person having having sex with “customers” for money.69 For liability under our
control over another person for the purpose of exploitation which law, this argument is irrelevant. As defined under Section 3(a) of
includes at a minimum, the exploitation or the prostitution of Republic Act No. 9208, trafficking in persons can still be committed
others or other forms of sexual exploitation, forced labor or even if the victim gives consent.
SEC. 3. Definition of Terms. — As used in this Act: a. When the trafficked person is a child;

a. Trafficking in Persons - refers to the recruitment, b. When the adoption is effected through Republic Act No.
transportation, transfer or harboring, or receipt of 8043, otherwise known as the “Inter-Country Adoption Act
persons with or without the victim's consent or knowledge, of 1995” and said adoption is for the purpose of
within or across national borders by means of threat or use prostitution, pornography, sexual exploitation, forced labor,
of force, or other forms of coercion, abduction, fraud, slavery, involuntary servitude or debt bondage;
deception, abuse of power or of position, taking advantage
of the vulnerability of the persons, or, the giving or c. When the crime is committed by a syndicate, or in large
receiving of payments or benefits to achieve the consent of scale. Trafficking is deemed committed by a syndicate if
a person having control over another person for the purpose carried out by a group of three (3) or more persons
of exploitation which includes at a minimum, the conspiring or confederating with one another. It is deemed
exploitation or the prostitution of others or other forms of committed in large scale if committed against three (3) or
sexual exploitation, forced labor or services, slavery, more persons, individually or as a group;
servitude or the removal or sale of organs.
d. When the offender is an ascendant, parent, sibling,
The recruitment transportation, transfer, harboring or guardian or a person who exercise authority over the
receipt of a child for the purpose of exploitation shall also be trafficked person or when the offense is committed by a
considered as “trafficking in persons” even if it does not public officer or employee;
involve any of the means set forth in the preceding
paragraph.70(Emphasis supplied) e. When the trafficked person is recruited to engage in
prostitution with any member of the military or law
The victim’s consent is rendered meaningless due to the coercive, enforcement agencies;
abusive, or deceptive means employed by perpetrators of human
trafficking.71 Even without the use of coercive, abusive, or f. When the offender is a member of the military or law
deceptive means, a minor’s consent is not given out of his or her enforcement agencies; and
own free will.
g. When by reason or on occasion of the act of trafficking in
Section 4 of Republic Act No. 9208 enumerates the different acts of persons, the offended party dies, becomes insane, suffers
trafficking in persons. Accused was charged under Section 4(a), mutilation or is afflicted with Human Immunodeficiency
which states:chanroblesvirtuallawlibrary Virus (HIV) or the Acquired Immune Deficiency Syndrome
SEC. 4. Acts of Trafficking in Persons. — It shall be unlawful for (AIDS). (Emphasis supplied)73
any person, natural or judicial, to commit any of the following acts.
Section 3 (b) of Republic Act No. 9208 defines “child”
a. To recruit, transport, transfer, harbor, provide, or receive a as:chanroblesvirtuallawlibrary
person by any means, including those done under the pretext of SEC. 3. Definition of Terms. — As used in this Act:
domestic or overseas employment or training or apprenticeship, for
the purpose of prostitution, pornography, sexual exploitation, ....
forced labor, slavery, involuntary servitude or debt bondage;72
Republic Act No. 9208 further enumerates the instances when the b. Child - refers to a person below eighteen (18) years of age or
crime of trafficking in persons is qualified. one who is over eighteen (18) but is unable to fully take care of
SEC. 6. Qualified Trafficking in Persons. — The following are or protect himself/herself from abuse, neglect, cruelty,
considered as qualified trafficking: exploitation, or discrimination because of a physical or mental
disability or condition.74
Based on the definition of trafficking in persons and the
enumeration of acts of trafficking in persons, accused performed all Some states, however, have adopted the “objective” test. . . .
the elements in the commission of the offense when she peddled Here, the court considers the nature of the police activity involved
AAA and BBB and offered their services to decoys PO1 Veloso and and the propriety of police conduct. The inquiry is focused on the
PO1 Luardo in exchange for money. The offense was also qualified inducements used by government agents, on police conduct, not
because the trafficked persons were minors. on the accused and his predisposition to commit the crime. For the
goal of the defense is to deter unlawful police conduct. The test of
Here, AAA testified as to how accused solicited her services for the entrapment is whether the conduct of the law enforcement agent
customers waiting at Queensland Motel. AAA also testified that she was likely to induce a normally law-abiding person, other than one
was only 17 years old when accused peddled her. Her certificate of who is ready and willing, to commit the offense; for purposes of
live birth was presented as evidence to show that she was born on this test, it is presumed that a law-abiding person would normally
January 27, 1991. resist the temptation to commit a crime that is presented by the
simple opportunity to act unlawfully. (Emphasis supplied, citations
The prosecution was able to prove beyond reasonable doubt that omitted)77
accused committed the offense of trafficking in persons, qualified Accused argued that in our jurisprudence, courts usually apply the
by the fact that one of the victims was a child. As held by the trial objective test in determining the whether there was an entrapment
court:chanroblesvirtuallawlibrary operation or an instigation.78 However, the use of the objective test
[T]he act of “sexual intercourse” need not have been consummated should not preclude courts from also applying the subjective test.
for the mere “transaction” i.e. that ‘solicitation’ for sex and the She pointed out that:chanroblesvirtuallawlibrary
handing over of the “bust money” of Php.1,000.00 already Applying the “subjective ” test it is worth invoking that accused-
consummated the said act.75 appellant procures income from being a laundry woman. The
IV. prosecution had not shown any proof evidencing accused-
appellant’s history in human trafficking or engagement in any
Validity of the entrapment operation offense. She is not even familiar to the team who had has [sic]
been apprehending human traffickers for quite some
In People v. Doria,76 this court discussed the objective test and the time.79 (Citations omitted)
subjective test to determine whether there was a valid entrapment Accused further argued that the police should have conducted a
operation:chanroblesvirtuallawlibrary prior surveillance before the entrapment operation.
. . . American federal courts and a majority of state courts use the
“subjective” or “origin of intent” test laid down in Sorrells v. United Time and again, this court has discussed the difference between
States to determine whether entrapment actually occurred. The entrapment and instigation. In Chang v. People,80 this court
focus of the inquiry is on the accused's predisposition to commit explained that:chanroblesvirtuallawlibrary
the offense charged, his state of mind and inclination before his There is entrapment when law officers employ ruses and schemes
initial exposure to government agents. All relevant facts such as to ensure the apprehension of the criminal while in the actual
the accused's mental and character traits, his past offenses, commission of the crime. There is instigation when the accused is
activities, his eagerness in committing the crime, his reputation, induced to commit the crime. The difference in the nature of the
etc., are considered to assess his state of mind before the crime. two lies in the origin of the criminal intent. In entrapment,
The predisposition test emphasizes the accused's propensity to the mens rea originates from the mind of the criminal. The idea
commit the offense rather than the officer's misconduct and and the resolve to commit the crime comes from him. In
reflects an attempt to draw a line between a “trap for the unwary instigation, the law officer conceives the commission of the crime
innocent and the trap for the unwary criminal.” If the accused was and suggests to the accused who adopts the idea and carries it into
found to have been ready and willing to commit the offense at any execution.81
favorable opportunity, the entrapment defense will fail even if a Accused contends that using the subjective test, she was clearly
police agent used an unduly persuasive inducement. instigated by the police to commit the offense. She denied being a
pimp and claimed that she earned her living as a laundrywoman. This flexibility is even more important in cases involving trafficking
On this argument, we agree with the finding of the Court of of persons. The urgency of rescuing the victims may at times
Appeals:chanroblesvirtuallawlibrary require immediate but deliberate action on the part of the law
[I]t was the accused-appellant who commenced the transaction enforcers.
with PO1 Luardo and PO1 Veloso by calling their attention on
whether they wanted girls for that evening, and when the officers V.
responded, it was the accused-appellant who told them to wait
while she would fetch the girls for their perusal.82 Imposition of fine and award of damages
This shows that accused was predisposed to commit the offense
because she initiated the transaction. As testified by PO1 Veloso The Court of Appeals properly imposed the amount of
and PO1 Luardo, accused called out their attention by saying P2,000,000.00. Section 10 (b) of Republic Act No. 9208 provides
“Chicks mo dong?” If accused had no predisposition to commit the that:chanroblesvirtuallawlibrary
offense, then she most likely would not have asked PO1 Veloso and SEC. 10. Penalties and Sanctions. — The following penalties and
PO1 Luardo if they wanted girls. sanctions are hereby established for the offenses enumerated in
this Act:
The entrapment would still be valid using the objective test. The
police merely proceeded to D. Jakosalem Street in Barangay ....
Kamagayan. It was accused who asked them whether they wanted
girls. There was no illicit inducement on the part of the police for c. Any person found guilty of qualified trafficking under Section 6
the accused to commit the crime. shall suffer the penalty of life imprisonment and a fine of not
less than Two million pesos (P2,000,000.00) but not more than
When accused was arrested, she was informed of her constitutional Five million pesos (P5,000,000.00);
rights.83 The marked money retrieved from her was recorded in the However, we modify by raising the award of moral damages from
police blotter prior to the entrapment operation and was presented P150,000.0089 to P500,000.00. We also award exemplary damages
in court as evidence.84 in the amount of P100,000.00. These amounts are in accordance
with the ruling in People v. Lalli90 where this court held
On accused’s alibi that she was merely out to buy her supper that that:chanroblesvirtuallawlibrary
night, the Court of Appeals noted that accused never presented The payment of P500,000 as moral damages and P100,000 as
Gingging in court. Thus, her alibi was unsubstantiated and cannot exemplary damages for the crime of Trafficking in Persons as a
be given credence.85 Prostitute finds basis in Article 2219 of the Civil Code, which
states:chanroblesvirtuallawlibrary
With regard to the lack of prior surveillance, prior surveillance is Art. 2219. Moral damages may be recovered in the following and
not a condition for an entrapment operation’s validity.86 In People analogous cases:
v. Padua87 this court underscored the value of flexibility in police
operations:chanroblesvirtuallawlibrary (1) A criminal offense resulting in physical injuries;
A prior surveillance is not a prerequisite for the validity of an
entrapment or buy-bust operation, the conduct of which has no (2) Quasi-delicts causing physical injuries;
rigid or textbook method. Flexibility is a trait of good police work.
However the police carry out its entrapment operations, for as long (3) Seduction, abduction, rape, or other lascivious acts;
as the rights of the accused have not been violated in the process,
the courts will not pass on the wisdom thereof. The police officers (4) Adultery or concubinage;
may decide that time is of the essence and dispense with the need
for prior surveillance.88 (Citations omitted) (5) Illegal or arbitrary detention or arrest;
(6) Illegal search; also express the hope that our people and our government unite
against everything inhuman. We contribute to a commitment to
(7) Libel, slander or any other form of defamation; finally stamp out slavery and human trafficking.

(8) Malicious prosecution; There are more AAA’s and BBBs out there. They, too, deserve to be
rescued. They, too, need to be shown that in spite of what their
(9) Acts mentioned in Article 309; lives have been, there is still much good in our world.

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, WHEREFORE, premises considered, we AFFIRM the decision of
32, 34, and 35. the Court of Appeals dated June 27, 2013, finding accused Shirley
A. Casio guilty beyond reasonable doubt of violating Section 4(a),
.... qualified by Section 6(a) of Republic Act No. 9208, and sentencing
The criminal case of Trafficking in Persons as a Prostitute is an her to suffer the penalty of life imprisonment and a fine of
analogous case to the crimes of seduction, abduction, rape, or P2,000,000.00, with the MODIFICATION that accused-appellant
other lascivious acts. In fact, it is worse. To be trafficked as a shall not be eligible for parole under Act No. 4103 (Indeterminate
prostitute without one’s consent and to be sexually violated four to Sentence Law) in accordance with Section 3 of Republic Act No.
five times a day by different strangers is horrendous and atrocious. 9346.92
There is no doubt that Lolita experienced physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded The award of damages is likewise MODIFIED as follows:
feelings, moral shock, and social humiliation when she was
trafficked as a prostitute in Malaysia. Since the crime of Trafficking Accused is ordered to pay each of the private complainants:
in Persons was aggravated, being committed by a syndicate, the
award of exemplary damages is likewise justified.91 (1) P500,000.00 as moral damages; and
Human trafficking indicts the society that tolerates the kind of
poverty and its accompanying desperation that compels our (2) P100,000.00 as exemplary damages.
women to endure indignities. It reflects the weaknesses of that
society even as it convicts those who deviantly thrive in such SO ORDERED.
hopelessness. We should continue to strive for the best of our
world, where our choices of human intimacies are real choices, and Carpio, (Chairperson), Del Castillo, Villarama, Jr.,* and Mendoza,
not the last resort taken just to survive. Human intimacies enhance JJ., concur.
our best and closest relationships. It serves as a foundation for two
human beings to face life’s joys and challenges while continually Endnotes:
growing together with many shared experiences. The quality of our
human relationships defines the world that we create also for
others. *
Designated Acting Member per Special Order No. 1888 dated
November 28, 2014.
Regardless of the willingness of AAA and BBB, therefore, to be
trafficked, we affirm the text and spirit of our laws. Minors should 1
Rollo, p. 4. The English translation for this is, “Do you like girls,
spend their adolescence moulding their character in environments guys?” “Chicks” is a colloquial term for girls in Cebuano.
free of the vilest motives and the worse of other human beings.
The evidence and the law compel us to affirm the conviction of 2
An Act to Institute Policies to Eliminate Trafficking in Persons
accused in this case. Especially Women and Children, Establishing the Necessary
Institutional Mechanisms for the Protection and Support of
But this is not all that we have done. By fulfilling our duties, we Trafficked Persons, Providing Penalties for its Violations, and for
Other Purposes. ROSAURO DIONISIO, appellant herein, was charged with
having violated Republic Act No. 3063 before the Court of First
3
Note that the offense was committed on May 2, 2008, prior to the Instance of Manila in an information filed by the Assistant City Fiscal
enactment of Rep. Act No. 10364, which amended Rep. Act No. in this wise:
9208. Thus, the provisions of Rep. Act No. 9208 cited in this case
are the original provisions. That on or about the 19th day of August, 1962, in the
City of Manila, Philippines, the said accused, a person who
4
CA rollo, p. 8. Although the information states, “3rd day of May is not duly authorized in any capacity by the Games and
2008,” the record of the case shows that the offense was Amusement Board to conduct a horse race, did then and
committed on May 2, 2008. there wilfully and unlawfully offer, arrange and collect bets
for the Special Daily Double Race being then conducted at
the Sta. Ana Racing Club at Makati, Rizal, and for that
5
International Justice Mission, Get To Know Us (visited November
purpose has in possession the following, to wit: cash money
26, 2014). International Justice Mission or IJM is a United States-
in the amount of P8.50, one Nueva Era Racing Program,
based human rights organization, founded in 1997, which aims to dated Aug. 19, 1962, one list of bets, one ballpen and one
“protect the poor from violence.” International Justice booklet of Daily Double receipt (Original Record, p. 1).
Mission, Where We Work (visited November 26, 2014). At present,
IJM has partner offices in Canada, United Kingdom, Netherlands,
On being arraigned, accused waived his right to be assisted by
and Germany. IJM also has field offices in Latin America, India, counsel, and pleaded not guilty to the charge. (Id., p.5).
Africa, Southeast Asia including the Philippines.
However, when the case was finally called for trial, accused
Republic of the Philippines voluntarily waive his right to be assisted by counsel, withdrew his
SUPREME COURT former plea of not guilty and pleaded guilty to the information
Manila charging him with violation of Rep. Act No. 3063. The Court a
quo found him guilty beyond reasonable doubt and, accordingly,
EN BANC sentenced him "to suffer one month imprisonment." (Id., p. 18).

G.R. No. L-25513 March 27, 1968 Having filed an appeal bond duly approved by the court a quo,
his appeal from the decision of said Court was given due course.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, (Id., p. 19).
vs.
ROSAURO DIONISIO Y CRUZ, defendant-appellant. Section 1 of Republic Act No. 3063 amends section 2 of R.A. 954 to
read as follows:
Office of the Solicitor General for plaintiff-appellee.
Rosauro Dionisio y Cruz for and in his own behalf as defendant-appellant. SEC. 2. No person shall offer, take or arrange bets on any
horse race, or maintain or use a totalizator or other device, method
REYES, J.B.L., Actg. C.J.: or system to bet or gamble on any horse race outside the place,
enclosure, or track where the race is held. This prohibition shall not
Appeal from a judgment of the Court of First Instance of Manila, in its apply to a race-track or racing club licensed by the Games and
Criminal Case No. 65715, convicting appellant Rosauro Dionisio y Cruz of Amusements Board to conduct horse race nor to the duly authorized
violating Republic Act, No. 3063, and sentencing him to imprisonment for one agents of such race-truck or racing club and its duly authorized
month. agents are hereby authorized on the days when races are being held
in its premises to offer, take or arrange bets outside the place,
enclosure or track where the races are held, provided such bets are
The case and facts are stated in the appellant's, brief (pages 1-2) and
offered, taken or arranged only in Rizal Province and chartered
agreed to by the Solicitor General, in this wise:1äwphï1.ñët
cities. The sale of such tickets shall be made only from offices or raised for the first time in the course of the oral argument in the Court
booths and shall be recorded in the race track before the start of the of Appeals. It is also noteworthy, as possible gauge of popular and
races. judicial reaction the duration of the imprisonment stipulated in the
statute, that some members of the court at first expressed opposition
Violation of the Act is sanctioned by "a fine of not less than one to any recommendation for executive clemency for the appellant,
thousand pesos nor more than two thousand pesos or by imprisonment for believing that he deserved imprisonment within the prescribed range.
not less than one month or more than six months, or both, in the discretion of
the Court." (R. A. 954, Sec. 1, as amended by R. A. 3063, sec. 2). What evils should be corrected as pernicious to the body politic, and
how correction should be done, is a matter primarily addressed to the
Sole issue posed by appellant is that the penalty as applied to his discretion of the legislative department, not of the courts; and the view that
offense infringes the constitutional provision that —1äwphï1.ñët unsupervised gambling is definitely detrimental to the nation and its citizens
counts with respectable support. "The hope of large or easy gain, obtained
Excessive fines shall not be imposed nor cruel and unusual without special effort, turns the head of the workman, and habitual gambling
punishment inflicted. (Art. III, Sec. 1, clause 19, of the Constitution of is a cause of laziness and ruin." (Planiol, Droit Civil, Vol. 2, No. 2110). "The
social scourge of gambling must be stamped out. The laws against gambling
the Philippines).
must be enforced to the limit." (Peo. vs. Gorostiza, 77 Phil. 88).
To bolster his position, appellant argues that the provided penalty is
harsh, the true measure of the gravity of any offense being its effects, if WHEREFORE, the decision appealed from is affirmed. Costs against
appellant. So ordered.1äwphï1.ñët
unchecked, upon the well-being of the people and the body politic. The
premise can be granted, without the conclusion being true or correct.
Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
Neither fines nor imprisonment constitute in themselves cruel and
unusual punishment, for the constitutional stricture has been interpreted as
referring to penalties that are inhuman and barbarous, or shocking to the
conscience (Weems vs. U.S., 217 U. S. 349) and fines or imprisonment are The Lawphil Project - Arellano Law Foundation
definitely not in this category.

Nor does mere severity constitute cruel and unusual punishment.


In People vs. Estoista, 93 Phil. 655, this Court ruled:

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


Article 6 and 7
proportion, or severe for a penalty to be obnoxious to the
Constitution. "The fact that the punishment authorized by the statute, FIRST DIVISION
is severe does not make it cruel and unusual." (24 C.J.S. 1187-
1188.) 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 [G.R. No. 114733. January 2, 1997]
moral sense of the community." (Idem.) Having in mind the necessity
for a radical measure and the public interest at stake, we do not
believe that: five years' confinement for possessing firearms, even as
applied to appellant's and similar cases, can be said to be cruel and AURORA LAND PROJECTS CORP. Doing business under the name
unusual, barbarous, or excessive to the extent of being shocking to "AURORA PLAZA" and TERESITA T. QUAZON, petitioners, vs.
public conscience. It is of interest to note that the validity on NATIONAL LABOR RELATIONS COMMISSION and HONORIO
constitutional grounds of the Act in question was contested neither at DAGUI, respondents.
the trial nor in the elaborate printed brief for the appellant; it was
DECISION Commission affirmed, with modification, the Labor Arbiter's decision in a
Resolution promulgated on March 16, 1994, in the following manner:
HERMOSISIMA, JR., J.:
"WHEREFORE, in view of the above considerations, let the appealed decision be as
The question as to whether an employer-employee relationship exists in it is hereby AFFIRMED with (the) MODIFICATION that complainant must be paid
a certain situation continues to bedevil the courts. Some businessmen try to separation pay in the amount of P88,920.00 instead of P177,840.00. The award of
avoid the bringing about of an employer-employee relationship in their attorney's fees is hereby deleted."[5]
enterprises because that judicial relation spawns obligations connected with
workmen's compensation, social security, medicare, minimum wage,
As a last recourse, petitioners filed the instant petition based on grounds
termination pay, and unionism.[1] In light of this observation, it behooves this
not otherwise succinctly and distinctly ascribed, viz:
Court to be ever vigilant in checking the unscrupulous efforts of some of our
entrepreneurs, primarily aimed at maximizing their return on investments at I
the expense of the lowly workingman.
This petition for certiorari seeks the reversal of the Resolution [2] of "RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
public respondent National Labor Relations Commission dated March 16, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE
1994 affirming with modification the decision of the Labor Arbiter, dated May LABOR ARBITER'S DECISION SOLELY ON THE BASIS OF ITS STATEMENT
25, 1992, finding petitioners liable to pay private respondent the total amount THAT WE FAIL TO FIND ANY REASON OR JUSTIFICATION TO DISAGREE
of P195,624.00 as separation pay and attorney's fees. WITH THE LABOR ARBITER IN HIS FINDING THAT HONORIO DAGUI
WAS DISMISSED BY THE RESPONDENT' (p. 7, RESOLUTION), DESPITE
The relevant antecedents: AND WITHOUT EVEN BOTHERING TO CONSIDER THE GROUNDS
STATED IN PETITIONERS' APPEAL MEMORANDUM WHICH ARE PLAINLY
Private respondent Honorio Dagui was hired by Doa Aurora Suntay Tanjangco in MERITORIOUS.
1953 to take charge of the maintenance and repair of the Tanjangco apartments and
residential buildings. He was to perform carpentry, plumbing, electrical and masonry II
work. Upon the death of Doa Aurora Tanjangco in 1982, her daughter, petitioner
Teresita Tanjangco Quazon, took over the administration of all the Tanjangco RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
properties. On June 8, 1991, private respondent Dagui received the shock of his life AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT
when Mrs. Quazon suddenly told him: "Wala ka nang trabaho mula ngayon," [3] on COMPLAINANT WAS EMPLOYED BY THE RESPONDENTS MORE SO
the alleged ground that his work was unsatisfactory. On August 29, 1991, private 'FROM 1953 TO 1991' (p. 3, RESOLUTION).
respondent, who was then already sixty-two (62) years old, filed a complaint for
illegal dismissal with the Labor Arbiter.
III
On May 25, 1992, Labor Arbiter Ricardo C. Nora rendered judgment,
the decretal portion of which reads: RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING
SEPARATION PAY IN FAVOR OF PRIVATE RESPONDENT MORE SO FOR
"IN VIEW OF ALL THE FOREGOING, respondents Aurora Plaza and/or Teresita THE EQUIVALENT OF 38 YEARS OF ALLEGED SERVICE.
Tanjangco Quazon are hereby ordered to pay the complainant the total amount of
ONE HUNDRED NINETY FIVE THOUSAND SIX HUNDRED TWENTY FOUR
PESOS (P195,624.00) representing complainant's separation pay and the ten (10%) IV
percent attorney's fees within ten (10) days from receipt of this Decision.
RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
All other issues are dismissed for lack of merit." [4] AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING BOTH
PETITIONERS LIABLE FOR SEPARATION PAY." [6]
Aggrieved, petitioners Aurora Land Projects Corporation and Teresita T.
Quazon appealed to the National Labor Relations Commission. The It is our impression that the crux of this petition rests on two elemental
issues: (1) Whether or not private respondent Honorio Dagui was an
employee of petitioners; and (2) If he were, whether or not he was illegally are accorded not only respect but even finality, aside from the consideration
dismissed. that this Court is essentially not a trier of facts.[9]
Petitioners insist that private respondent had never been their However, we deem it wise to discuss this issue full-length if only to
employee. Since the establishment of Aurora Plaza, Dagui served therein bolster the conclusions reached by the labor tribunals, to which we fully
only as a job contractor. Dagui had control and supervision of whoever he concur.
would take to perform a contracted job. On occasion, Dagui was hired only
as a "tubero" or plumber as the need arises in order to unclog sewerage Jurisprudence is firmly settled that whenever the existence of an
pipes. Every time his services were needed, he was paid accordingly. It was employment relationship is in dispute, four elements constitute the reliable
understood that his job was limited to the specific undertaking of unclogging yardstick: (a) the selection and engagement of the employee; (b) the
the pipes. In effect, petitioners would like us to believe that private payment of wages; (c) the power of dismissal; and (d) the employer's power
respondent Dagui was an independent contractor, particularly a job to control the employee's conduct.[10] It is the so-called "control test," and that
contractor, and not an employee of Aurora Plaza. is, whether the employer controls or has reserved the right to control the
employee not only as to the result of the work to be done but also as to the
We are not persuaded. means and methods by which the same is to be accomplished, [11] which
constitute the most important index of the existence of the employer-
Section 8, Rule VIII, Book III of the Implementing Rules and Regulations employee relationship. Stated otherwise, an employer-employee relationship
of the Labor Code provides in part: exists where the person for whom the services are performed reserves the
right to control not only the end to be achieved but also the means to be used
"There is job contracting permissible under the Code if the following conditions are in reaching such end. [12]
met:
All these elements are present in the case at bar. Private respondent
xxx xxx xxx was hired in 1953 by Doa Aurora Suntay Tanjangco (mother of Teresita
Tanjangco-Quazon), who was then the one in charge of the administration of
the Tanjangco's various apartments and other properties. He was employed
(2) The contractor has substantial capital or investment in the form of tools, as a stay-in worker performing carpentry, plumbing, electrical and necessary
equipment, machineries, work premises, and other materials which are necessary in work (sic) needed in the repairs of Tanjangco's properties. [13] Upon the
the conduct of his business." demise of Doa Aurora in 1982 petitioner Teresita Tanjangco-Quazon took
over the administration of these properties and continued to employ the
Honorio Dagui earns a measly sum of P180.00 a day (latest private respondent, until his unceremonious dismissal o0n June 8, 1991.[14]
salary).[7] Ostensibly, and by no stretch of the imagination can Dagui qualify
as a job contractor. No proof was adduced by the petitioners to show that Dagui was not compensated in terms of profits for his labor or services
Dagui was merely a job contractor, and it is absurd to expect that private like an independent contractor. Rather, he was paid on a daily wage basis at
respondent, with such humble resources, would have substantial capital or the rate of P180.00. [15] Employees are those who are compensated for their
investment in the form of tools, equipment, and machineries, with which to labor or services by wages rather than by profits. [16] Clearly, Dagui fits under
conduct the business of supplying Aurora Plaza with manpower and services this classification.
for the exclusive purpose of maintaining the apartment houses owned by the Doa Aurora and later her daughter petitioner Teresita Quazon evidently
petitioners herein. had the power of dismissal for cause over the private respondent.[17]
The bare allegation of petitioners, without more, that private respondent Finally, the records unmistakably show that the most important requisite
Dagui is a job contractor has been disbelieved by the Labor Arbiter and the of control is likewise extant in this case. It should be borne in mind that the
public respondent NLRC. Dagui, by the findings of both tribunals, was an power of control refers merely to the existence of the power and not to the
employee of the petitioners. We are not inclined to set aside these findings. actual exercise thereof. It is not essential for the employer to actually
The issue whether or not an employer-employee relationship exists in a supervise the performance of duties of the employee; it is enough that the
given case is essentially a question of fact. [8] As a rule, repetitious though it former has a right to wield the power.[18] The establishment of petitioners is
has become to state, this Court does not review supposed errors in the engaged in the leasing of residential and apartment buildings. Naturally,
decision of the NLRC which raise factual issues, because factual findings of private respondent's work therein as a maintenance man had to be
agencies exercising quasi-judicial functions [like public respondent NLRC] performed within the premises of herein petitioners. In fact, petitioners do not
dispute the fact that Dagui reports for work from 7:00 o'clock in the morning Tanjangco-Quazon apparently took over the administration of the properties and
until 4:00 o'clock in the afternoon. It is not far-fetched to expect, therefore, continued to employ complainant until his outright dismissal on June 8, 1991 xxx
that Dagui had to observe the instructions and specifications given by then xxx.[20]
Doa Aurora and later by Mrs. Teresita Quazon as to how his work had to be
performed. Parenthetically, since the job of a maintenance crew is The jobs assigned to private respondent as maintenance man,
necessarily done within company premises, it can be inferred that both Doa carpenter, plumber, electrician and mason were directly related to the
Aurora and Mrs. Quazon could easily exercise control on private respondent business of petitioners as lessors of residential and apartment buildings.
whenever they please. Moreover, such a continuing need for his services by herein petitioners is
The employment relationship established, the next question would have sufficient evidence of the necessity and indispensability of his services to
to be: What kind of an employee is the private respondent regular, casual or petitioners' business or trade.
probationary? Private respondent Dagui should likewise be considered a regular
We find private respondent to be a regular employee, for Article 280 of employee by the mere fact that he rendered service for the Tanjangcos for
the Labor Code provides: more than one year, that is, beginning 1953 until 1982, under Doa Aurora;
and then from 1982 up to June 8, 1991 under the petitioners, for a total of
twenty-nine (29) and nine (9) years respectively. Owing to private
"Regular and Casual employment. The provisions of written agreement to the respondent's length of service, he became a regular employee, by operation
contrary notwithstanding and regardless of the oral agreement of the parties, an of law, one year after he was employed in 1953 and subsequently in 1982. In
employment shall be deemed to be regular where the employee has been engaged to Baguio Country Club Corp. v. NLRC,[21] we decided that it is more in
perform activities which are usually necessary or desirable in the usual business or consonance with the intent and spirit of the law to rule that the status of
trade of the employer, except where the employment has been fixed for a specific regular employment attaches to the casual employee on the day immediately
project or undertaking the completion or termination of which has been determined after the end of his first year of service. To rule otherwise is to impose a
at the time of the engagement of the employee or where the work or services to be burden on the employee which is not sanctioned by law. Thus, the law does
performed is seasonal in nature and the employment is for the duration of the not provide the qualification that the employee must first be issued a regular
season.. appointment or must first be formally declared as such before he can acquire
a regular status.
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That, any employee who has rendered at least one year of Petitioners argue, however, that even assuming arguendo that private
service, whether such service is continuous or broken, shall be considered a regular respondent can be considered an employee, he cannot be classified as a
employee with respect to the activity in which he is employed and his employment regular employee. He was merely a project employee whose services were
shall continue while such actually exists." hired only with respect to a specific job and only while the same
exists,[22] thus falling under the exception of Article 280, paragraph 1 of the
As can be gleaned from this provision, there are two kinds of regular Labor Code. Hence, it is claimed that he is not entitled to the benefits prayed
for and subsequently awarded by the Labor Arbiter as modified by public
employees, namely: (1) those who are engaged to perform activities which
respondent NLRC.
are usually necessary or desirable in the usual business or trade of the
employer; and (2) those who have rendered at least one year of service, The circumstances of this case in light of settled case law do not, at all,
whether continuous or broken, with respect to the activity in which they are support this averment. Consonant with a string of cases beginning with
employed.[19] Ochoco v. NLRC,[23] followed by Philippine National Construction Corporation
v. NLRC,[24] Magante v. NLRC,[25] and Capitol Industrial Construction
Whichever standard is applied, private respondent qualifies as a regular
Corporation v. NLRC,[26] if truly, private respondent was employed as a
employee. As aptly ruled by the Labor Arbiter:
"project employee, " petitioners should have submitted a report of termination
to the nearest public employment office everytime his employment is
"xxx As owner of many residential and apartment buildings in Metro Manila, the terminated due to completion of each project, as required by Policy
necessity of maintaining and employing a permanent stay-in worker to perform Instruction No. 20, which provides:
carpentry, plumbing, electrical and necessary work needed in the repairs of
Tanjangco's properties is readily apparent and is in fact needed. So much so that
upon the demise of Doa Aurora Tanjangco, respondent's daughter Teresita
"Project employees are not entitled to termination pay if they are terminated as a respondent's services were terminated smacks of absolute denial of the
result of the completion of the project or any phase thereof in which they are employee's right to due process and betrays petitioner Quazon's utter lack of
employed, regardless of the number of project in which they have been employed by respect for labor. Such an attitude indeed deserves condemnation.
a particular construction company. Moreover, the company is not required to obtain
a clearance from the Secretary of Labor in connection with such termination. What is The Court, however, is bewildered why only an award for separation pay
required of the company is a report to the nearest Public Employment Office for in lieu of reinstatement was made by both the Labor Arbiter and the NLRC.
statistical purposes." No backwages were awarded. It must be remembered that backwages and
reinstatement are two reliefs that should be given to an illegally dismissed
employee. They are separate and distinct from each other. In the event that
Throughout the duration of private respondent's employment as reinstatement is no longer possible, as in this case, [33] separation pay is
maintenance man, there should have been filed as many reports of awarded to the employee. The award of separation pay is in lieu of
termination as there were projects actually finished, if it were true that private reinstatement and not of backwages. In other words, an illegally dismissed
respondent was only a project worker. Failure of the petitioners to comply employee is entitled to (1) either reinstatement, if viable, or separation pay if
with this simple, but nonetheless compulsory, requirement is proof that Dagui reinstatement is no longer viable, and (2) backwages.[34] Payment of
is not a project employee.[27] backwages is specifically designed to restore an employee's income that was
Coming now to the second issue as to whether or not private lost because of his unjust dismissal.[35] On the other hand, payment of
respondent Dagui was illegally dismissed, we rule in the affirmative. separation pay is intended to provide the employee money during the period
in which he will be looking for another employment. [36]
Jurisprudence abound as to the rule that the twin requirements of due
process, substantive and procedural, must be complied with, before a valid Considering, however, that the termination of private respondent Dagui
dismissal exists.[28] Without which the dismissal becomes void.[29] was made on June 8, 1991 or after the effectivity of the amendatory provision
of Republic Act No. 6715 on March 21, 1989, private respondent's
The twin requirements of notice and hearing constitute the essential backwages should be computed on the basis of said law.
elements of due process. This simply means that the employer shall afford
the worker ample opportunity to be heard and to defend himself with the It is true that private respondent did not appeal the award of the Labor
assistance of his representative, if he so desires. [30] As held in the case of Arbiter awarding separation pay sans backwages. While as a general rule a
Pepsi Cola Bottling Co. v. NLRC:[31] party who has not appealed is not entitled to affirmative relief other than the
ones granted in the decision of the court below,[37] law and jurisprudence
"The law requires that the employer must furnish the worker sought to be dismissed authorize a tribunal to consider errors, although unassigned, if they involve
with two written notices before termination of employee can be legally effected: (1) (1) errors affecting the lower court's jurisdiction over the subject matter, (2)
notice which apprises the employee of the particular acts or omissions for which his plain errors not specified, and (3) clerical errors.[38] In this case, the failure of
dismissal is sought; and (2) the subsequent notice which informs the employee of the the Labor Arbiter and the public respondent NLRC to award backwages to
employer's decision to dismiss him (Section 13, BP 130; Sections 2-6, Rule XIV, the private respondent, who is legally entitled thereto having been illegally
Book V Rules and Regulations Implementing the Labor Code as amended). Failure dismissed, amounts to a "plain error" which we may rectify in this petition,
to comply with the requirements taints the dismissal with illegality. This procedure is although private respondent Dagui did not bring any appeal regarding the
mandatory; in the absence of which, any judgment reached by management is void matter, in the interest of substantial justice. The Supreme Court is clothed
and inexistent. (Tingson, Jr. v. NLRC, 185 SCRA 498 [1990]; National Service with ample authority to review matters, even if they are not assigned as
Corporation v. NLRC, 168 SCRA 122 [1988]; Ruffy v. NLRC, 182 SCRA 365 errors on appeal, if it finds that their consideration is necessary in arriving at
[1990]." a just decision of the case.[39] Rules of procedure are mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote
These mandatory requirements were undeniably absent in the case at substantial justice, must always be avoided.[40] Thus, substantive rights like
bar. Petitioner Quazon dismissed private respondent on June 8, 1991, the award of backwages resulting from illegal dismissal must not be
without giving him any written notice informing the worker herein of the cause prejudiced by a rigid and technical application of the rules.[41]
for his termination. Neither was there any hearing conducted in order to give
Dagui the opportunity to be heard and defend himself. He was simply told: Petitioner Quazon argues that, granting the petitioner corporation should
"Wala ka nang trabaho mula ngayon," allegedly because of poor be held liable for the claims of private respondent, she cannot be made
workmanship on a previous job.[32] The undignified manner by which private jointly and severally liable with the corporation, notwithstanding the fact that
she is the highest ranking officer of the company, since Aurora Plaza has a barred forever, except that they may be set forth as counterclaims in any action that
separate juridical personality. the executor or administrator may bring against the claimants.xxx xxx."
We disagree.
WHEREFORE, the instant petition is partly GRANTED and the
In the cases of Maglutac v. National Labor Relations Resolution of the public respondent National Labor Relations Commission
Commission,[42] Chua v. National Labor Relations Commission,[43] and A.C dated March 16, 1994 is hereby MODIFIED in that the award of separation
Ransom Labor Union-CCLU v. National Labor Relations Commission[44] we pay against the petitioners shall be reckoned from the date private
were consistent in holding that the highest and most ranking officer of the respondent was re-employed by the petitioners in 1982, until June 8, 1991. In
corporation, which in this case is petitioner Teresita Quazon as manager of addition to separation pay, full backwages are likewise awarded to private
Aurora Land Projects Corporation, can be held jointly and severally liable respondent, inclusive of allowances, and other benefits or their monetary
with the corporation for the payment of the unpaid money claims of its equivalent pursuant to Article 279[46] of the Labor Code, as amended by
employees who were illegally dismissed. In this case, not only was Teresita Section 34 of Republic Act No. 6715, computed from the time he was
Quazon the most ranking officer of Aurora Plaza at the time of the dismissed on June 8, 1991 up to the finality of this decision, without
termination of the private respondent, but worse, she had a direct hand in the deducting therefrom the earnings derived by private respondent elsewhere
private respondent's illegal dismissal. A corporate officer is not personally during the period of his illegal dismissal, pursuant to our ruling in Osmalik
liable for the money claims of discharged corporate employees unless he Bustamante, et. al. v. National Labor Relations Commission.[47]
acted with evident malice and bad faith in terminating their
employment.[45] Here, the failure of petitioner Quazon to observe the No costs.
mandatory requirements of due process in terminating the services of Dagui SO ORDERED.
evinced malice and bad faith on her part, thus making her liable.
Padilla, Bellosillo, Vitug, and Kapunan, JJ., concur.
Finally, we must address one last point. Petitioners aver that, assuming
that private respondent can be considered an employee of Aurora Plaza,
petitioners cannot be held liable for separation pay for the duration of his
employment with Doa Aurora Tanjangco from 1953 up to 1982. If petitioners Republic of the Philippines
should be held liable as employers, their liability for separation pay should SUPREME COURT
only be counted from the time Dagui was rehired by the petitioners in 1982 Manila
as a maintenance man.
EN BANC
We agree.
Petitioners' liability for separation pay ought to be reckoned from 1982 G.R. No. 81958 June 30, 1988
when petitioner Teresita Quazon, as manager of Aurora Plaza, continued to
employ private respondent. From 1953 up to the death of Doa Aurora PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
sometime in 1982, private respondent's claim for separation pay should have vs.
been filed in the testate or intestate proceedings of Doa Aurora. This is HON. FRANKLIN M. DRILON as Secretary of Labor and Employment,
because the demand for separation pay covered by the years 1953-1982 is and TOMAS D. ACHACOSO, as Administrator of the Philippine
actually a money claim against the estate of Doa Aurora, which claim did not Overseas Employment Administration, respondents.
survive the death of the old woman. Thus, it must be filed against her estate
in accordance with Section 5, Rule 86 of the Revised Rules of Court, to wit: Gutierrez & Alo Law Offices for petitioner.

"Section 5. Claims which must be filed under the notice. If not ,filed barred;
exceptions. All claims for money against the decedent, arising from contract, express
or implied, whether the same be due, not due, or contingent, all claims for funeral
SARMIENTO, J.:
expenses for the last sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice; otherwise they are
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for efficient and flexible response to conditions and circumstances thus assuring
short), a firm "engaged principally in the recruitment of Filipino workers, male the greatest benefits." 6
and female, for overseas placement," 1 challenges the Constitutional validity
of Department Order No. 1, Series of 1988, of the Department of Labor and It finds no specific Constitutional grant for the plain reason that it does not
Employment, in the character of "GUIDELINES GOVERNING THE owe its origin to the Charter. Along with the taxing power and eminent
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC domain, it is inborn in the very fact of statehood and sovereignty. It is a
AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. fundamental attribute of government that has enabled it to perform the most
Specifically, the measure is assailed for "discrimination against males or vital functions of governance. Marshall, to whom the expression has been
females;" 2 that it "does not apply to all Filipino workers but only to domestic credited, 7 refers to it succinctly as the plenary power of the State "to govern
helpers and females with similar skills;" 3 and that it is violative of the right to its citizens." 8
travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
"The police power of the State ... is a power coextensive with self- protection,
and it is not inaptly termed the "law of overwhelming necessity." It may be
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of said to be that inherent and plenary power in the State which enables it to
the Constitution, providing for worker participation "in policy and decision- prohibit all things hurtful to the comfort, safety, and welfare of society." 9
making processes affecting their rights and benefits as may be provided by
law." 4 Department Order No. 1, it is contended, was passed in the absence
It constitutes an implied limitation on the Bill of Rights. According to
of prior consultations. It is claimed, finally, to be in violation of the Charter's
Fernando, it is "rooted in the conception that men in organizing the state and
non-impairment clause, in addition to the "great and irreparable injury" that imposing upon its government limitations to safeguard constitutional rights
PASEI members face should the Order be further enforced. did not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated
On May 25, 1988, the Solicitor General, on behalf of the respondents to ensure communal peace, safety, good order, and welfare." 10 Significantly,
Secretary of Labor and Administrator of the Philippine Overseas Employment the Bill of Rights itself does not purport to be an absolute guaranty of
Administration, filed a Comment informing the Court that on March 8, 1988, individual rights and liberties "Even liberty itself, the greatest of all rights, is
the respondent Labor Secretary lifted the deployment ban in the states of not unrestricted license to act according to one's will." 11 It is subject to the far
Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, more overriding demands and requirements of the greater number.
Austria, and Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the Philippine
Notwithstanding its extensive sweep, police power is not without its own
State. limitations. For all its awesome consequences, it may not be exercised
arbitrarily or unreasonably. Otherwise, and in that event, it defeats the
It is admitted that Department Order No. 1 is in the nature of a police power purpose for which it is exercised, that is, to advance the public good. Thus,
measure. The only question is whether or not it is valid under the when the power is used to further private interests at the expense of the
Constitution. citizenry, there is a clear misuse of the power. 12

The concept of police power is well-established in this jurisdiction. It has In the light of the foregoing, the petition must be dismissed.
been defined as the "state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare." 5 As
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of
defined, it consists of (1) an imposition of restraint upon liberty or property,
clear and convincing evidence to the contrary, the presumption logically
(2) in order to foster the common good. It is not capable of an exact definition stands.
but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.
The petitioner has shown no satisfactory reason why the contested measure
should be nullified. There is no question that Department Order No. 1 applies
"Its scope, ever-expanding to meet the exigencies of the times, even to
only to "female contract workers," 14 but it does not thereby make an undue
anticipate the future where it could be done, provides enough room for an discrimination between the sexes. It is well-settled that "equality before the
law" under the Constitution 15does not import a perfect Identity of rights
among all men and women. It admits of classifications, provided that (1) such on its own persuaded that prevailing conditions indeed call for a deployment
classifications rest on substantial distinctions; (2) they are germane to the ban.
purposes of the law; (3) they are not confined to existing conditions; and (4)
they apply equally to all members of the same class. 16 There is likewise no doubt that such a classification is germane to the
purpose behind the measure. Unquestionably, it is the avowed objective of
The Court is satisfied that the classification made-the preference for female Department Order No. 1 to "enhance the protection for Filipino female
workers — rests on substantial distinctions. overseas workers" 17 this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment
As a matter of judicial notice, the Court is well aware of the unhappy plight will be for their own good and welfare.
that has befallen our female labor force abroad, especially domestic
servants, amid exploitative working conditions marked by, in not a few cases, The Order does not narrowly apply to existing conditions. Rather, it is
physical and personal abuse. The sordid tales of maltreatment suffered by intended to apply indefinitely so long as those conditions exist. This is clear
migrant Filipina workers, even rape and various forms of torture, confirmed from the Order itself ("Pending review of the administrative and legal
by testimonies of returning workers, are compelling motives for urgent measures, in the Philippines and in the host countries . . ."18), meaning to say
Government action. As precisely the caretaker of Constitutional rights, the that should the authorities arrive at a means impressed with a greater degree
Court is called upon to protect victims of exploitation. In fulfilling that duty, the of permanency, the ban shall be lifted. As a stop-gap measure, it is
Court sustains the Government's efforts. possessed of a necessary malleability, depending on the circumstances of
each case. Accordingly, it provides:
The same, however, cannot be said of our male workers. In the first place,
there is no evidence that, except perhaps for isolated instances, our men 9. LIFTING OF SUSPENSION. — The Secretary of Labor
abroad have been afflicted with an Identical predicament. The petitioner has and Employment (DOLE) may, upon recommendation of the
proffered no argument that the Government should act similarly with respect Philippine Overseas Employment Administration (POEA), lift
to male workers. The Court, of course, is not impressing some male the suspension in countries where there are:
chauvinistic notion that men are superior to women. What the Court is saying
is that it was largely a matter of evidence (that women domestic workers are 1. Bilateral agreements or understanding with the
being ill-treated abroad in massive instances) and not upon some fanciful or Philippines, and/or,
arbitrary yardstick that the Government acted in this case. It is evidence
capable indeed of unquestionable demonstration and evidence this Court 2. Existing mechanisms providing for sufficient safeguards to
accepts. The Court cannot, however, say the same thing as far as men are ensure the welfare and protection of Filipino workers. 19
concerned. There is simply no evidence to justify such an inference. Suffice it
to state, then, that insofar as classifications are concerned, this Court is
content that distinctions are borne by the evidence. Discrimination in this The Court finds, finally, the impugned guidelines to be applicable to all
case is justified. female domestic overseas workers. That it does not apply to "all Filipina
workers" 20 is not an argument for unconstitutionality. Had the ban been
given universal applicability, then it would have been unreasonable and
As we have furthermore indicated, executive determinations are generally
arbitrary. For obvious reasons, not all of them are similarly circumstanced.
final on the Court. Under a republican regime, it is the executive branch that
What the Constitution prohibits is the singling out of a select person or group
enforces policy. For their part, the courts decide, in the proper cases,
of persons within an existing class, to the prejudice of such a person or group
whether that policy, or the manner by which it is implemented, agrees with
or resulting in an unfair advantage to another person or group of persons. To
the Constitution or the laws, but it is not for them to question its wisdom. As a apply the ban, say exclusively to workers deployed by A, but not to those
co-equal body, the judiciary has great respect for determinations of the Chief recruited by B, would obviously clash with the equal protection clause of the
Executive or his subalterns, especially when the legislature itself has
Charter. It would be a classic case of what Chase refers to as a law that
specifically given them enough room on how the law should be effectively
"takes property from A and gives it to B." 21 It would be an unlawful invasion
enforced. In the case at bar, there is no gainsaying the fact, and the Court
of property rights and freedom of contract and needless to state, an invalid
will deal with this at greater length shortly, that Department Order No. 1
act. 22 (Fernando says: "Where the classification is based on such
implements the rule-making powers granted by the Labor Code. But what distinctions that make a real difference as infancy, sex, and stage of
should be noted is the fact that in spite of such a fiction of finality, the Court is
civilization of minority groups, the better rule, it would seem, is to recognize 9. LIFTING OF SUSPENSION-The Secretary of Labor and
its validity only if the young, the women, and the cultural minorities are Employment (DOLE) may, upon recommendation of the
singled out for favorable treatment. There would be an element of Philippine Overseas Employment Administration (POEA), lift
unreasonableness if on the contrary their status that calls for the law the suspension in countries where there are:
ministering to their needs is made the basis of discriminatory legislation
against them. If such be the case, it would be difficult to refute the assertion 1. Bilateral agreements or understanding
of denial of equal protection." 23 In the case at bar, the assailed Order clearly with the Philippines, and/or,
accords protection to certain women workers, and not the contrary.)
2. Existing mechanisms providing for
It is incorrect to say that Department Order No. 1 prescribes a total ban on sufficient safeguards to ensure the welfare
overseas deployment. From scattered provisions of the Order, it is evident and protection of Filipino workers. 24
that such a total ban has hot been contemplated. We quote:
xxx xxx xxx
5. AUTHORIZED DEPLOYMENT-The deployment of
domestic helpers and workers of similar skills defined herein
The consequence the deployment ban has on the right to travel does not
to the following [sic] are authorized under these guidelines
impair the right. The right to travel is subject, among other things, to the
and are exempted from the suspension.
requirements of "public safety," "as may be provided by law." 25 Department
Order No. 1 is a valid implementation of the Labor Code, in particular, its
5.1 Hirings by immediate members of the basic policy to "afford protection to labor," 26 pursuant to the respondent
family of Heads of State and Government; Department of Labor's rule-making authority vested in it by the Labor
Code. 27 The petitioner assumes that it is unreasonable simply because of its
5.2 Hirings by Minister, Deputy Minister and impact on the right to travel, but as we have stated, the right itself is not
the other senior government officials; and absolute. The disputed Order is a valid qualification thereto.

5.3 Hirings by senior officials of the Neither is there merit in the contention that Department Order No. 1
diplomatic corps and duly accredited constitutes an invalid exercise of legislative power. It is true that police power
international organizations. is the domain of the legislature, but it does not mean that such an authority
may not be lawfully delegated. As we have mentioned, the Labor Code itself
5.4 Hirings by employers in countries with vests the Department of Labor and Employment with rulemaking powers in
whom the Philippines have [sic] bilateral the enforcement whereof. 28
labor agreements or understanding.
The petitioners's reliance on the Constitutional guaranty of worker
xxx xxx xxx participation "in policy and decision-making processes affecting their rights
and benefits" 29 is not well-taken. The right granted by this provision, again,
must submit to the demands and necessities of the State's power of
7. VACATIONING DOMESTIC HELPERS AND WORKERS
regulation.
OF SIMILAR SKILLS--Vacationing domestic helpers and/or
workers of similar skills shall be allowed to process with the
POEA and leave for worksite only if they are returning to the The Constitution declares that:
same employer to finish an existing or partially served
employment contract. Those workers returning to worksite to Sec. 3. The State shall afford full protection to labor, local
serve a new employer shall be covered by the suspension and overseas, organized and unorganized, and promote full
and the provision of these guidelines. employment and equality of employment opportunities for
all. 30
xxx xxx xxx
"Protection to labor" does not signify the promotion of employment alone. PANFILO M. LACSON, petitioner vs. THE EXECUTIVE SECRETARY, THE
What concerns the Constitution more paramountly is that such an SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR,
employment be above all, decent, just, and humane. It is bad enough that the THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA
country has to send its sons and daughters to strange lands because it ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF
cannot satisfy their employment needs at home. Under these circumstances, THE PHILIPPINES, respondents.
the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors.
this case, the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and as part of DECISION
its duty, it has precisely ordered an indefinite ban on deployment.
MARTINEZ, J.:
The Court finds furthermore that the Government has not indiscriminately
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act
made use of its authority. It is not contested that it has in fact removed the
which further defines the jurisdiction of the Sandiganbayan is being challenged in
prohibition with respect to certain countries as manifested by the Solicitor
this petition for prohibition and mandamus.Petitioner Panfilo Lacson, joined by
General.
petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent
the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-
The non-impairment clause of the Constitution, invoked by the petitioner, 23057 (for multiple murder) against them on the ground of lack of jurisdiction.
must yield to the loftier purposes targetted by the Government. 31 Freedom of
contract and enterprise, like all other freedoms, is not free from restrictions, The antecedents of this case, as gathered from the parties pleadings and
more so in this jurisdiction, where laissez faire has never been fully accepted documentary proofs, are as follows:
as a controlling economic way of life.
In the early morning of May 18, 1995, eleven (11) persons believed to be
members of the Kuratong Baleleng gang, reportedly an organized crime syndicate
This Court understands the grave implications the questioned Order has on which had been involve in a spate of bank robberies in Metro Manila, were
the business of recruitment. The concern of the Government, however, is not slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank
necessarily to maintain profits of business firms. In the ordinary sequence of Robbery and Intelligence Task Group (ABRITG) headed by Chief Superintendent
events, it is profits that suffer as a result of Government regulation. The Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed
interest of the State is to provide a decent living to its citizens. The of police officers from the Traffic Management Command (TMC) led by petitioner-
Government has convinced the Court in this case that this is its intent. We do intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime
not find the impugned Order to be tainted with a grave abuse of discretion to Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief
warrant the extraordinary relief prayed for. Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by
Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command
WHEREFORE, the petition is DISMISSED. No costs. (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC,
SO ORDERED.
that what actually transpired at dawn of May 18, 1995 was a summary execution (or
a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by
Gancayco, Padilla, Bidin, Cortes and Griño-Aquino, JJ., concur. the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate
the incident. This panel later absolve from any criminal liability all the PNP officers
Gutierrez, Jr. and Medialdea, JJ., are on leave. and personnel allegedly involved in the May 18, 1995 incident, with a finding that
the said incident was a legitimate police operation.[1]
EN BANC
However, a review board led by Overall Deputy Ombudsman Francisco Villa
modified the Blancaflor panels finding and recommended the indictment for multiple
murder against twenty-six (26) respondents, including herein petitioner and
[G.R. No. 128096. January 20, 1999]
intervenors. This recommendation was approved by the Ombudsman, except for the These bills were consolidated and later approved into law as R.A. No.
withdrawal of the charges against Chief Supt. Ricardo de Leon. 8249[13]. The law is entitled, AN ACT FURTHER DEFINING THE JURISDICTION
OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND
charged as principal in eleven (11) informations for murder [2] before FOR OTHER PURPOSES. It took effect on February 25, 1997.13 by the President
the Sandiganbayans Second Division, while intervenors Romeo Acop and Francisco of the Philippines on February 5, 1997.
Zubia, Jr. were among those charged in the same informations as accessories after-
the-fact. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a
Resolution[14] denying the motion for reconsideration of the Special Prosecutor,
Upon motion by all the accused in the 11 ruling that it stands pat in its resolution dated May 8, 1996.
informations,[3] the Sandiganbayan allowed them to file a motion for reconsideration
of the Ombudsmans action.[4] On the same day,[15] the Sandiganbayan issued an ADDENDUM to its March
5, 1997 Resolution, the pertinent portion of which reads:
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996
eleven (11) amended informations[5] before the Sandiganbayan, wherein petitioner
was charged only as an accessory, together with Romeo Acop and Francisco Zubia, After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
Jr. and others. One of the accused[6] was dropped from the case. but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the
legislature enacted Republic Act 8249 and the President of the Philippines approved
On March 5-6, 1996, all the accused filed separate motions questioning the it on February 5, 1997. Considering the pertinent provisions of the new law,
jurisdiction of the Sandiganbayan, asserting that under the amended informations, Justices Lagman and Demetriou are now in favor of granting, as they are now
the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 granting, the Special Prosecutors motion for reconsideration. Justice de Leon
(paragraphs a and c) of Republic Act No. 7975.[7] They contend that the said law has already done so in his concurring and dissenting opinion.
limited the jurisdiction of the Sandiganbayan to cases where one or more of the
"principal accused are government officials with Salary Grade (SG) 27 or higher, or xxxxxxxxx
PNP officials with the rank of Chief Superintendent (Brigadier General) or
higher. The highest ranking principal accused in the amended informations has the Considering that three of the accused in each of these cases are PNP Chief
rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Thereafter, in a Resolution[8] dated May 8, 1996 (promulgated on May 9, 1996), Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest
penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and has been issued this court has competence to take cognizance of these cases.
Justices Balajadia and Garchitorena dissenting,[9] the Sandiganbayan admitted the
amended information and ordered the cases transferred to the Quezon City Regional To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the
Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of court admitted the Amended Informations in these cases and by the unanimous
the principal accused has the rank of Chief Superintendent or higher. vote of 4 with 1 neither concurring nor dissenting, retained jurisdiction to try
and decide the cases.[16] [Emphasis supplied]
On May 17, 1996, the Office of the Special Prosecutor moved for a
reconsideration, insisting that the cases should remain with the Sandiganbayan. This
was opposed by petitioner and some of the accused. Petitioner now questions the constitutionality of Section 4 R.A. No. 8249,
including Section 7 thereof which provides that the said law shall apply to all cases
While these motions for reconsideration were pending resolution, and even pending in any court over which trial has not begun as of the approval
before the issue of jurisdiction cropped up with the filing of the amended hereof. Petitioner argues that:
informations on March 1, 1996, House Bill No. 2299[10] and No. 1094[11] (sponsored
by Representatives Edcel C. Lagman and Neptali M. Gonzales II, respectively), as a) The questioned provision of the statute were introduced by the authors thereof in
well as Senate Bill No. 844[12] (sponsored by Senator Neptali Gonzales), were bad faith as it was made to precisely suit the situation in which petitioners cases were
introduced in Congress, defining/expanding the jurisdiction of in at the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his
the Sandiganbayan. Specifically, the said bills sought, among others, to amend the right to procedural due process and the equal protection clause of the
jurisdiction of the Sandiganbayan by deleting the word principal from the phrase Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9)
principal accused in Section 2 (paragraphs a and c) of R.A. No. 7975. months the resolution of a pending incident involving the transfer of the cases to the
Regional Trial Court, the passage of the law may have been timed to overtake such
resolution to render the issue therein moot, and frustrate the exercise of petitioners proving the invalidity of the law lies with those who challenge it. That burden, we
vested rights under the old Sandiganbayan law (RA 7975) regret to say, was not convincingly discharged in the present case.
The creation of the Sandiganbayan was mandated in Section 5, Article XIII of
b) Retroactive application of the law is plain from the fact that it was again made to the 1973 Constitution, which provides:
suit the peculiar circumstances in which petitioners cases were under, namely, that
trial had not yet commenced, as provided in Section 7, to make certain that those
cases will no longer be remanded to the Quezon City Regional Trial Court, as SEC. 5. The Batasang Pambansa shall create a special court, to be known
the Sandiganbayan alone should try them, thus making it an ex post factolegislation as Sandiganbayan, which shall have jurisdiction over criminal and civil cases
and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047 involving graft and corrupt practices and such other offenses committed by public
23057 to procedural due process officers and employees including those in government-owned or controlled
corporations, in relation to their office as may be determined by law."
c) The title of the law is misleading in that it contains the aforesaid innocuous
provisions in Sections 4 and 7 which actually expands rather than defines the The said special court is retained in the new (1987) Constitution under the
old Sandiganbayan law (RA 7975), thereby violating the one-title-one-subject following provision in Article XI, Section 4:
requirement for the passage of statutes under Section 26(1), Article VI of the
Constitution.[17] Section 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.
For their part, the intervenors, in their petition-in-intervention, add that while
Republic Act No. 8249 innocuously appears to have merely expanded the Pursuant to the constitutional mandate, Presidential Decree No. 1486 [21] created
jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in said statute the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in
impressed upon it the character of a class legislation and an ex-post facto statute chronological order, were enacted: P.D. No. 1606,[22] Section 20 of Batas Pambansa
intended to apply specifically to the accused in the Kuratong Baleleng case pending Blg. 129,[23] P.D. No. 1860,[24] P.D. No. 1861,[25] R.A. No. 7975,[26] and R.A. No.
before the Sandiganbayan.[18] They further argued that if their case is tried before 8249.[27] Under the latest amendments introduced by Section 4 of R.A. No. 8249,
the Sandiganbayan their right to procedural due process would be violated as they the Sandiganbayan has jurisdiction over the following cases:
could no longer avail of the two-tiered appeal to the Sandiganbayan, which they
acquired under R.A. 7975, before recourse to the Supreme Court. SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
Both the Office of the Ombudsman and the Solicitor General filed separate
pleadings in support of the constitutionality of the challenged provisions of the law
in question and praying that both the petition and the petition-in-intervention be SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
dismissed. original jurisdiction in all cases involving:

This Court then issued a Resolution[19] requiring the parties to file a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
simultaneously within a nonextendible period of ten (10) days from notice thereof Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
additional memoranda on the question of whether the subject amended informations Title VII, Book II of the Revised Penal Code, where one or more of the
filed in Criminal Cases Nos. 23047-23057 sufficiently alleged the commission by the accused are officials occupying the following positions in the
accused therein of the crime charged within the meaning Section 4 b of Republic Act government, whether in a permanent, acting or interim capacity, at the time of the
No. 8249, so as to bring the said cases within the exclusive original jurisdiction of commission of the offense:
the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of (1) Officials of the executive branch occupying the positions of regional director and
the Philippines, filed the required supplemental memorandum within the higher, otherwise classified as Grade 27 and higher, of the Compensation and
nonextendible reglementary period. Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

The established rule is that every law has in its favor the presumption of (a) Provincial governors, vice-governors, members of the sangguniang
constitutionality, and to justify its nullification there must be a clear and unequivocal panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
breach of the Constitution, not a doubtful and argumentative one. [20] The burden of department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
treasurers, assessors, engineers, and other city department heads; judgment, resolution or orders of the regional trial courts whether in the exercise of
their own original jurisdiction of their appellate jurisdiction as herein provided.
(c) Officials of the diplomatic service occupying the position of consul and higher;
"The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
(d) Philippine Army and air force colonels, naval captains, and all officers of higher issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
rank; injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction
and over petitions of similar nature, including quo warranto, arising or that may arise
in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A,
(e) Officers of the Philippine National Police while occupying the position
issued in 1986: Provided, That the jurisdiction over these petitions shall not be
of provincial director and those holding the rank of senior superintendent or higher;
exclusive of the Supreme Court.
(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor; The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing
rules that the Supreme Court has promulgated and may hereafter promulgate, relative
to appeals/petitions for review to the Court of Appeals, shall apply to appeals and
(g) Presidents, directors or trustees, or managers of government-owned or controlled petitions for review filed with the Sandiganbayan. In all cases elevated to
corporations, state universities or educational institutions or foundations; the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of
the Ombudsman, through its special prosecutor, shall represent the People of the
(2) Members of Congress or officials thereof classified as Grade 27 and up under the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-
Compensation and Position Classification Act of 1989; A, issued in 1986.

(3) Members of the Judiciary without prejudice to the provisions of the Constitution; In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
(4) Chairman and members of the Constitutional Commissions, without prejudice to owned or controlled corporations, they shall be tried jointly with said public officers
the provisions of the Constitution; and employees in the proper courts which shall exercise exclusive jurisdiction over
them.
(5) All other national and local officials classified as Grade 27 or higher under the
Compensation and Position Classification Act of 1989. x x x x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 8249 states:
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of
SEC. 7. Transitory provision. This act shall apply to all cases pending in any
this section in relation to their office.
court over which trial has not begun as of the approval hereof. (Emphasis
supplied)
c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A.
7975 provides:
In cases where none of the accused are occupying positions corresponding to salary
Grade 27 or higher, as prescribed in the said Republic Act 6758, or military and PNP
SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended] is
officers mentioned above, exclusive original jurisdiction thereof shall be vested in
hereby further amended to read as follows:
the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129, as amended. SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti- c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Nos. 1, 2, 14 and 14-A.
Title VII, Book II of the Revised Penal Code, where one or more of the principal
accused are officials occupying the following positions in the government, whether In cases where none of the principal accused are occupying positions corresponding
in a permanent, acting or interim capacity, at the time of the commission of the to salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or PNP
offense: officers occupying the rank of superintendent or higher, or their equivalent,
exclusive jurisdiction thereof shall be vested in the proper regional trial court,
(1) Officials of the executive branch occupying the positions of regional director and metropolitan trial court, municipal trial court, and municipal circuit trial court, as the
higher, otherwise classified as Grade 27 and higher, of the Compensation and case may be, pursuant to their respective jurisdictions as provided in Batas
Position Classification Act of 1989 (Republic Act No. 6758), specifically including: Pambansa Blg. 129.

(a) Provincial governors, vice-governors, members of the sangguniang The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial the final judgments, resolutions or orders of regular courts where all the accused are
department heads; occupying positions lower than grade 27, or not otherwise covered by the preceding
enumeration.
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads; xxxxxxxxx

(c) Officials of the diplomatic service occupying the position of consul and higher; In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
(d) Philippine Army and air force colonels, naval captains, and all officers of high owned or controlled corporations, they shall be tried jointly with said public officers
rank; and employees in the proper courts which shall have exclusive jurisdiction over
them.
(e) PNP chief superintendent and PNP officers of higher rank;
x x x x x x. (Emphasis supplied)
(f) City and Provincial prosecutors and their assistants, and officials and prosecutors Section 7 of R.A. No. 7975 reads:
in the Office of the Ombudsman and special prosecutor;
SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has not begun
(g) Presidents, directors or trustees, or managers of government-owned or controlled in the Sandiganbayan shall be referred to the proper courts.
corporations, state universities or educational institutions or foundations;
Under paragraphs a and c, Section 4 of R.A. 8249, the word principal before
(2) Members of Congress or officials thereof classified as Grade 27 and up under the the word accused appearing in the above-quoted Section 2 (paragraphs a and c) of
Compensation and Position Classification Act of 1989; R.A. 7975, was deleted. It is due to this deletion of the word principal that the
parties herein are at loggerheads over the jurisdiction of
(3) Members of the judiciary without prejudice to the provisions of the Constitution; the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the
Regional Trial Court, not the Sandiganbayan, has jurisdiction over the Subject
(4) Chairman and members of the Constitutional Commissions, without prejudice to criminal cases since none of the principal accused under the amended information
the provisions of the Constitution; has the rank of Superintendent[28] or higher. On the other hand, the Office of the
Ombudsman, through the Special Prosecutor who is tasked to represent the People
before the Supreme Court except in certain cases,[29] contends that
(5) All other national and local officials classified as Grade 27 or higher under the
the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
Compensation and Position Classification Act of 1989.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under
b. Other offenses or felonies committed by the public officials and the exclusive original jurisdiction of the Sandiganbayan, the following requisites
employees mentioned in Subsection a of this section in relation to their office. must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended
(the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the
wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the presumption of constitutionality and reasonableness of the questioned
law on bribery),[30] (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 provisions. The classification between those pending cases involving the concerned
(sequestration cases),[31] or (e) other offenses or felonies whether simple or public officials whose trial has not yet commenced and whose cases could have been
complexed with other crimes; (2) the offender committing the offenses in items (a), affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as
(b), (c) and (e) is a public official or employee[32] holding any of the positions against those cases where trial had already started as of the approval of the law, rests
enumerated in paragraph a of Section 4; and (3) the offense committed is in relation on substantial distinction that makes real differences.[36] In the first instance,
to the office. evidence against them were not yet presented, whereas in the latter the parties had
already submitted their respective proofs, examined witness and presented
Considering that herein petitioner and intervenors are being charged with documents. Since it is within the power of Congress to define the jurisdiction of
murder which is a felony punishable under Title VIII of the Revised Penal Code, the courts subject to the constitutional limitations,[37] it can be reasonably anticipated that
governing provision on the jurisdictional offense is not paragraph but paragraph b, an alteration of that jurisdiction would necessarily affect pending cases, which is
Section 4 of R.A. 8249. This paragraph b pertains to other why it has to provide for a remedy in the form of a transitory provision. Thus,
offenses or felonies whether simple or complexed with other crimes committed by petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under
the public officials and employees mentioned in subsection a of [Section 4, R.A. a different category from those similarly situated as them. Precisely, paragraph a of
8249] in relation to their office. The phrase other offenses or felonies is too broad as Section 4 provides that it shall apply to all cases involving" certain public officials
to include the crime of murder, provided it was committed in relation to the accuseds and, under the transitory provision in Section 7, to all cases pending in any
official functions. Thus, under said paragraph b, what determines court. Contrary to petitioner and intervenors arguments, the law is not particularly
the Sandiganbayans jurisdiction is the official position or rank of the offender that directed only to the Kuratong Baleleng cases. The transitory provision does not only
is, whether he is one of those public officers or employees enumerated in paragraph a cover cases which are in the Sandiganbayan but also in any court. It just happened
of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 that the Kuratong Baleleng cases are one of those affected by the law. Moreover,
do not make any reference to the criminal participation of the accused public officer those cases where trial had already begun are not affected by the transitory provision
as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. under Section 7 of the new law (R.A. 8249).
8249, the Congress simply restored the original provisions of P.D. 1606 which does
not mention the criminal participation of the public officer as a requisite to determine In their futile attempt to have said sections nullified, heavy reliance is premised
the jurisdiction of the Sandiganbayan. on what is perceived as bad faith on the part of a Senator and two Justices of
the Sandiganbayan[38] for their participation in the passage of the said provisions. In
Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249 violate particular, it is stressed that the Senator had expressed strong sentiments against
their right to equal protection of the law[33] because its enactment was particularly those officials involved in the Kuratong Baleleng cases during the hearings
directed only to the Kuratong Balelengcases in the Sandiganbayan, is a contention conducted on the matter by the committee headed by the Senator. Petitioner further
too shallow to deserve merit. No concrete evidence and convincing argument were contends that the legislature is biased against him as he claims to have been selected
presented to warrant a declaration of an act of the entire Congress and signed into from among the 67 million other Filipinos as the object of the deletion of the word
law by the highest officer of the co-equal executive department as principal in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory
unconstitutional. Every classification made by law is presumed reasonable. Thus, the provision of R.A. 8249.[39] R.A. 8249, while still a bill, was acted, deliberated,
party who challenges the law must present proof of arbitrariness.[34] considered by 23 other Senators and by about 250 Representatives, and was
It is an established precept in constitutional law that the guaranty of the equal separately approved by the Senate and House of Representatives and, finally, by the
protection of the laws is not violated by a legislation based on reasonable President of the Philippines.
classification. The classification is reasonable and not arbitrary when there is On the perceived bias that the Sandiganbayan Justices allegedly had against
concurrence of four elements, namely: petitioner during the committee hearings, the same would not constitute sufficient
(1) it must rest on substantial distinction; justification to nullify an otherwise valid law. Their presence and participation in the
(2) it must be germane to the purpose of the law; legislative hearings was deemed necessary by Congress since the matter before the
(3) must not be limited to existing conditions only, and committee involves the graft court of which one is the head of
(4) must apply equally to all members of the same class,[35] the Sandiganbayan and the other a member thereof. The Congress, in its plenary
legislative powers, is particularly empowered by the Constitution to invite persons to
all of which are present in this case. appear before it whenever it decides to conduct inquiries in aid of legislation.[40]
Petitioner and intervenors further argued that the retroactive application of R.A. facto laws.[51] R.A. 8249 pertains only to matters of procedure, and being merely an
8249 to the Kuratong Baleleng cases constitutes an ex post facto law[41] for they are amendatory statute it does not partake the nature of an ex post facto law. It does not
deprived of their right to procedural due process as they can no longer avail of the mete out a penalty and, therefore, does not come within the prohibition. [52] Moreover,
two tiered appeal which they had allegedly acquired under R.A. 7975. the law did not alter the rules of evidence or the mode of trial.[53] It has been ruled
that adjective statutes may be made applicable to actions pending and unresolved at
Again, this contention is erroneous. There is nothing ex post facto in R.A. the time of their passage.[54]
8249. In Calder v. Bull,[42] an ex post facto law is one
In any case, R.A. 8249 has preserved the accuseds right to appeal to the
(a)which makes an act done criminal before the passing of the law and Supreme Court to review questions of law.[55] On the removal of the intermediate
which was innocent when committed, and punishes such action; or review facts, the Supreme Court still has the power of review to determine if the
(b) which aggravates a crime or makes it greater that when it was presumption of innocence has been convincingly overcome. [56]
committed; or Another point. The challenged law does not violate the one-title-one-subject
(c) which changes the punishment and inflicts a greater punishment than provisions of the Constitution. Much emphasis is placed on the wording in the title of
the law annexed to the crime when it was committed, the law that it defines the Sandiganbayan jurisdiction when what it allegedly does is
to expand its jurisdiction. The expansion in the jurisdiction of the Sandiganbayan, if
(d) which alters the legal rules of evidence and receives less or different it can be considered as such, does not have to be expressly stated in the title of the
testimony than the law required at the time of the commission of the law because such is the necessary consequence of the amendments. The requirement
offense in order to convict the defendant.[43] that every bill must only have one subject expressed in the title [57] is satisfied if the
title is comprehensive enough, as in this case, to include subjects related to the
(e) Every law which, in relation to the offense or its consequences, alters
general purpose which the statute seeks to achieve.[58] Such rule is severally
the situation of a person to his disadvantage.[44]
interpreted and should be given a practical rather than a technical construction. There
This Court added two more to the list, namely: is here sufficient compliance with such requirement, since the title of R.A. 8249
expresses the general subject (involving the jurisdiction of the Sandiganbayan and
(f) that which assumes to regulate civil rights and remedies only but in the amendment of P.D. 1606, as amended) and all the provisions of the law are
effect imposes a penalty or deprivation of a right which when done germane to that general subject.[59] The Congress, in employing the word define in
was lawful; the title of the law, acted within its powers since Section 2, Article VIII of the
(g) deprives a person accused of crime of some lawful protection to which Constitution itself empowers the legislative body to define, prescribe,
he has become entitled, such as the protection of a former conviction and apportion the jurisdiction of various courts.[60]
or acquittal, or a proclamation of amnesty.[45] There being no unconstitutional infirmity in both the subject amendatory
[46]
Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. provision of Section 4 and the retroactive procedural application of the law as
8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in provided in Section 7 R.A. No. 8249, we shall now determine whether under the
character. Penal laws are those acts of the Legislature which prohibit certain acts and allegations in the Informations, it is the Sandiganbayan or Regional Trial Court
establish penalties for their violations;[47] or those that define crimes, treat of their which has jurisdiction over the multiple murder case against herein petitioner and
nature, and provide for their punishment.[48] R.A. 7975, which amended P.D. 1606 as intervenors.
regards the Sandiganbayans jurisdiction, its mode of appeal and other procedural The jurisdiction of a court is defined by the Constitution or statute. The
matters, has been declared by the Court as not a penal law, but clearly a procedural elements of that definition must appear in the complaint or information so as to
statute, i.e. one which prescribes rules of procedure by which courts applying laws of ascertain which court has jurisdiction over a case.Hence the elementary rule that the
all kinds can properly administer justice.[49] Not being a penal law, the retroactive jurisdiction of a court is determined by the allegations in the complaint or
application of R.A. 8249 cannot be challenged as unconstitutional. information,[61] and not by the evidence presented by the parties at the trial. [62]
Petitioners and intervenors contention that their right to a two-tiered appeal As stated earlier, the multiple murder charge against petitioner and intervenors
which they acquired under R.A. 7975 has been diluted by the enactment of R.A. falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense
8249, is incorrect. The same contention has already been rejected by the court charged must be committed by the offender in relation to his office in order for
several times[50] considering that the right to appeal is not a natural right but the Sandiganbayan to have jurisdiction over it.[63] This jurisdictional requirement is
statutory in nature that can be regulated by law. The mode of procedure provided for in accordance with Section 5, Article XIII of the 1973 Constitution which mandated
in the statutory right of appeal is not included in the prohibition against ex post
that the Sandiganbayan shall have jurisdiction over criminal cases committed by contain a specific allegation of every fact and circumstance necessary to
public officers and employees, including those in government-owned or controlled constitute the crime charged. (Emphasis supplied)
corporations, in relation to their office as may be determined by law. This
constitutional mandate was reiterated in the new (1987) Constitution when it It is essential, therefore, that the accused be informed of the facts that are
declared in Section 4 thereof that the Sandiganbayan shall continue to function and imputed to him as he is presumed to have no independent knowledge of the facts
exercise its jurisdiction as now or hereafter may be provided by law. that constitute the offense.[70]
The remaining question to be resolved then is whether the offense of multiple Applying these legal principles and doctrines to the present case, we find the
murder was committed in relation to the office of the accused PNP officers. amended informations for murder against herein petitioner and intervenors wanting
In People vs. Montejo,[64] we held that an offense is said to have been of specific factual averments to show the intimate relation/connection between
committed in relation to the office if it (the offense) is intimately connected with the offense charged and the discharge of official function of the offenders.
the office of the offender and perpetrated while he was in the performance of his In the present case, one of the eleven (11) amended informations [71] for murder
official functions.[65] This intimate relation between the offense charged and the reads:
discharge of official duties must be alleged in the Information.[66]
As to how the offense charged be stated in the information, Section 9, Rule 110 AMENDED INFORMATION
of the Revised Rules of Court mandates:
The undersigned Special Prosecution Officer III, Office of the Ombudsman hereby
SEC. 9. Cause of Accusation. The acts or omissions complained of as constituting accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP ERWIN T.
the offense must be stated in ordinary and concise language without repetition not VILLACORTE SENIOR INSP JOSELITO T. ESQUIVEL. INSP RICARDO G.
necessarily in the terms of the statute defining the offense, but in such form as is DANDAN SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON,
sufficient to enable a person of common understanding to know what offense is SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
intended to be charged, and enable the court to pronounce proper WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1
judgment.(Emphasis supplied) OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT.
ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
As early as 1954, we pronounced that the factor that characterizes the charge is FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP.
the actual recital of the facts.[67] The real nature of the criminal charges is CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INISP.
determined not from the caption or preamble of the information nor from the GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR
specification of the provision of law alleged to have been violated, they being TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2
conclusions of law, but by the actual recital of facts in the complaint or NORBERTO LASAGA, PO2 LEONARDO GLORIA and PO2 ALEJANDRO G.
information.[68] LIWANAG of the crime of Murder as defined and penalized under Article 248 of
the Revised Penal Code committed as follows:
The noble object of written accusations cannot be overemphasized. This was
explained in U.S. v. Karelsen:[69] That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon
City, Philippines and within the jurisdiction of this Honorable Court, the accused
The object of this written accusations was First, To furnish the accused with CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
such a description of the charge against him as will enable him to make his VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
defense, and second, to avail himself of his conviction or acquittal for DANDAN, SPO4 VICENTE P. ARNADO SPO4 ROBERTO F. LANGCAUON,
protection against a further prosecution for the same cause, and third, to inform SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
the court of the facts alleged so that it may decide whether they are sufficient WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1
in law to support a conviction if one should be had. In order that this OSMUNDO B. CARINO all taking advantage of their public and official
requirement may be satisfied, facts must be stated, not conclusions of positions as officers and members of the Philippine National Police and committing
law Every crime is made up of certain acts and intent these must be set forth the acts herein alleged in relation to their public office, conspiring with intent to
in the complaint with reasonable kill and using firearms with treachery, evident premeditation and taking advantage of
particularity of time, place, names (plaintiff and defendant) and their superior strengths did then and there willfully, unlawfully and
circumstances. In short, the complaint must feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds
which caused his instantaneous death to the damage and prejudice of the heirs of the The stringent requirement that the charge be set forth with such particularity as
said victim. will reasonably indicate the exact offense which the accused is alleged to have
committed in relation to his office was, sad to say, not satisfied. We believe that the
That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO M. mere allegation in the amended information that the offense was committed by the
ACOP CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. accused public officer in relation to his office is not sufficient. That phrase is merely
ZUBIA, JR. SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO a conclusion of law, not a factual averment that would show the close intimacy
II CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR between the offense charged and the discharge of the accuseds official duties.
INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN SPO3 WILLY In People vs. Magallanes,[72] where the jurisdiction between the Regional Trial
NUAS SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. Court and the Sandiganbayan was at issue, we ruled:
LIWANAG committing the acts in relation to office as officers and members of
the Philippine National Police are charged herein as accessories after-the-
fact for concealing the crime herein above alleged by among others falsely It is an elementary rule that jurisdiction is determined by the allegations in the
representing that there were no arrests made during the raid conducted by the complaint or information and not by the result of evidence after trial.
accused herein at Superville Subdivision, Paraaque, Metro Manila on or about
the early dawn of May 18, 1995. In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended information
alleged
CONTRARY TO LAW
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police
While the above-quoted information states that the above-named principal patrol and civilian commandos consisting of regular policemen and x x x special
accused committed the crime of murder in relation to their public office, there is, policemen, appointed and provided by him with pistols and high power guns and
however, no specific allegation of facts that the shooting of the victim by the said then established a camp x x x at Tipo-tipo which is under his command x x x
principal accused was intimately related to the discharge of their official duties as supervision and control where his co-defendants were stationed, entertained criminal
police officers. Likewise, the amended information does not indicate that the said complaints and conducted the corresponding investigations, as well as assumed the
accused arrested and investigated the victim and then killed the latter while in their authority to arrest and detain persons without due process of law and without
custody. bringing them to the proper court, and that in line with this set-up established by said
Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested
Even the allegations concerning the criminal participation of herein petitioner and maltreated Awalin Tebag who died in consequence thereof.
and intervenors as among the accessories after-the-fact, the amended information is
vague on this. It is alleged therein that the said accessories concealed the crime we held that the offense charged was committed in relation to the office of the
herein-above alleged by, among others, falsely representing that there were no arrests accused because it was perpetrated while they were in the performance, though
made during the raid conducted by the accused herein at Superville Subdivision, improper or irregular of their official functions and would not have been committed
Paraaque, Metro Manila, on or about the early dawn of May 18, 1995. The sudden had they not held their office, besides, the accused had no personal motive in
mention of the arrests made during the raid conducted by the accused surprises the committing the crime, thus, there was an intimate connection between the offense
reader. There is no indication in the amended information that the victim was and the office of the accused.
one of those arrested by the accused during the raid. Worse, the raid and arrests
were allegedly conducted at Superville Subdivision, Paraaque, Metro Manila but, as Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the
alleged in the immediately preceding paragraph of the amended information, the
court below do not indicate that the accused arrested and investigated the victims and
shooting of the victim by the principal accused occurred in Mariano Marcos
then killed the latter in the course of the investigation. The informations merely
Avenue, Quezon City. How the raid, arrests and shooting happened in two places far
allege that the accused, for the purpose of extracting or extorting the sum
away from each other is puzzling. Again, while there is the allegation in the amended
of P353,000.00 abducted, kidnapped and detained the two victims, and failing in
information that the said accessories committed the offense in relation to office as their common purpose, they shot and killed the said victims. For the purpose of
officers and members of the (PNP), we, however, do not see the intimate connection determining jurisdiction, it is these allegations that shall control, and not the
between the offense charged and the accuseds official functions, which, as earlier
evidence presented by the prosecution at the trial.
discussed, is an essential element in determining the jurisdiction of
the Sandiganbayan.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase
committed in relation to public office does not appear in the information, which only
signifies that the said phrase is not what determines the jurisdiction of enough that all persons under like circumstances or conditions are given the same
the Sandiganbayan. What is controlling is the specific factual allegations in the privileges and required to follow the same obligations. In short, a classification based
information that would indicate the close intimacy between the discharge of the on valid and reasonable standards does not violate the equal protection clause.
accuseds official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to public office.
The Case
Consequently, for failure to show in the amended informations that the charge
of murder was intimately connected with the discharge of official functions of the
accused PNP officers, the offense charged in the subject criminal cases is plain
murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Before us is a petition for review under Rule 45 of the Rules of Court, seeking
Court,[73] not the Sandiganbayan. the reversal of the Court of Appeals Decision[1] promulgated on August 29, 1996,
and Resolution[2] dated November 13, 1996, in CA-GR SP No. 37788.[3] The
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is challenged Decision upheld the constitutionality and validity of Executive Order No.
hereby sustained. The Addendum to the March 5, 1997 Resolution of 97-A (EO 97-A), according to which the grant and enjoyment of the tax and duty
the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to incentives authorized under Republic Act No. 7227 (RA 7227) were limited to the
transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional business enterprises and residents within the fenced-in area of the Subic Special
Trial Court of Quezon City which has exclusive original jurisdiction over said cases. Economic Zone (SSEZ).
SO ORDERED. The assailed Resolution denied the petitioners motion for reconsideration.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
The Facts
EN BANC

On March 13, 1992, Congress, with the approval of the President, passed into
law RA 7227 entitled An Act Accelerating the Conversion of Military Reservations
[G.R. No. 127410. January 20, 1999] Into Other Productive Uses, Creating the Bases Conversion and Development
Authority for this Purpose, Providing Funds Therefor and for Other
Purposes. Section 12 thereof created the Subic Special Economic Zone and granted
thereto special privileges, as follows:
CONRADO L. TIU, JUAN T. MONTELIBANO JR. and ISAGANI M.
JUNGCO, petitioners, vs. COURT OF APPEALS, HON. TEOFISTO T. SEC. 12. Subic Special Economic Zone. -- Subject to the concurrence by resolution
GUINGONA JR., BASES CONVERSION AND DEVELOPMENT of the sangguniang panlungsod of the City of Olongapo and the sangguniang
AUTHORITY, SUBIC BAY METROPOLITAN AUTHORITY, bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a
BUREAU OF INTERNAL REVENUE, CITY TREASURER OF Special Economic and Free-port Zone consisting of the City of Olongapo and the
OLONGAPO and MUNICIPAL TREASURER OF SUBIC, Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval
ZAMBALES, respondents. Base and its contiguous extensions as embraced, covered, and defined by the 1947
Military Bases Agreement between the Philippines and the United States of America
DECISION as amended, and within the territorial jurisdiction of the Municipalities of Morong
and Hermosa, Province of Bataan, hereinafter referred to as the Subic Special
PANGANIBAN, J.: Economic Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the approval
The constitutional right to equal protection of the law is not violated by an of this Act, each local government unit shall submit its resolution of concurrence to
executive order, issued pursuant to law, granting tax and duty incentives only to join the Subic Special Economic Zone to the Office of the President. Thereafter, the
businesses and residents within the secured area of the Subic Special Economic Zone President of the Philippines shall issue a proclamation defining the metes and bounds
and denying them to those who live within the Zone but outside such fenced-in of the zone as provided herein.
territory. The Constitution does not require absolute equality among residents. It is
The abovementioned zone shall be subject to the following policies: (g) Any investor within the Subic Special Economic Zone whose continuing
investment shall not be less than two hundred fifty thousand dollars ($250,000),
(a) Within the framework and subject to the mandate and limitations of the his/her spouse and dependent children under twenty-one (21) years of age, shall be
Constitution and the pertinent provisions of the Local Government Code, the Subic granted permanent resident status within the Subic Special Economic Zone. They
Special Economic Zone shall be developed into a self-sustaining, industrial, shall have the freedom of ingress and egress to and from the Subic Special Economic
commercial, financial and investment center to generate employment opportunities Zone without any need of special authorization from the Bureau of Immigration and
in and around the zone and to attract and promote productive foreign investments; Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this
Act may also issue working visas renewable every two (2) years to foreign
(b) The Subic Special Economic Zone shall be operated and managed as a separate executives and other aliens possessing highly technical skills which no Filipino
within the Subic Special Economic Zone possesses, as certified by the Department of
customs territory ensuring free flow or movement of goods and capital within, into
Labor and Employment. The names of aliens granted permanent residence status and
and exported out of the Subic Special Economic Zone, as well as provide incentives
working visas by the Subic Bay Metropolitan Authority shall be reported to the
such as tax and duty-free importations of raw materials, capital and
Bureau of Immigration and Deportation within thirty (30) days after issuance
equipment. However, exportation or removal of goods from the territory of the Subic
Special Economic Zone to the other parts of the Philippine territory shall be subject thereof;
to customs duties and taxes under the Customs and Tariff Code and other relevant
tax laws of the Philippines; (h) The defense of the zone and the security of its perimeters shall be the
responsibility of the National Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and
(c) The provision of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic establish its own security and fire-fighting forces; and
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises within the Subic Special Economic (i) Except as herein provided, the local government units comprising the Subic
Zone shall be remitted to the National Government, one percent (1%) each to the Special Economic Zone shall retain their basic autonomy and identity. The cities
local government units affected by the declaration of the zone in proportion to their shall be governed by their respective charters and the municipalities shall operate
population area, and other factors. In addition, there is hereby established a and function in accordance with Republic Act No. 7160, otherwise known as the
development fund of one percent (1%) of the gross income earned by all businesses Local Government Code of 1991.
and enterprises within the Subic Special Economic Zone to be utilized for the
development of municipalities outside the City of Olongapo and the Municipality of On June 10, 1993, then President Fidel V. Ramos issued Executive Order No.
Subic, and other municipalities contiguous to the base areas. 97 (EO 97), clarifying the application of the tax and duty incentives thus:

In case of conflict between national and local laws with respect to tax exemption Section 1. On Import Taxes and Duties -- Tax and duty-free importations shall apply
privileges in the Subic Special Economic Zone, the same shall be resolved in favor only to raw materials, capital goods and equipment brought in by business
of the latter; enterprises into the SSEZ. Except for these items, importations of other goods into
the SSEZ, whether by business enterprises or resident individuals, are subject to
(d) No exchange control policy shall be applied and free markets for foreign taxes and duties under relevant Philippine laws.
exchange, gold, securities and future shall be allowed and maintained in the Subic
Special Economic Zone; The exportation or removal of tax and duty-free goods from the territory of the SSEZ
to other parts of the Philippine territory shall be subject to duties and taxes under
(e) The Central Bank, through the Monetary Board, shall supervise and regulate the relevant Philippine laws.
operations of banks and other financial institutions within the Subic Special
Economic Zone; Section 2. On All Other Taxes. -- In lieu of all local and national taxes (except import
taxes and duties), all business enterprises in the SSEZ shall be required to pay the tax
(f) Banking and finance shall be liberalized with the establishment of foreign specified in Section 12(c) of R.A. No. 7227.
currency depository units of local commercial banks and offshore banking units of
foreign banks with minimum Central Bank regulation;
Nine days after, on June 19, 1993, the President issued Executive Order No. 97- Subic and the Municipality of Dinalupihan will be covered by the special economic
A (EO 97-A), specifying the area within which the tax-and-duty-free privilege was zone or only portions thereof?
operative, viz.:
Senator Shahani. Only portions, Mr. President. In other words, where the
actual operations of the free port will take place.
Section 1.1. The Secured Area consisting of the presently fenced-in former Subic
Naval Base shall be the only completely tax and duty-free area in the SSEFPZ [Subic Senator Paterno. I see. So, we should say, COVERING THE DESIGNATED
Special Economic and Free Port Zone].Business enterprises and individuals PORTIONS OR CERTAIN PORTIONS OF OLONGAPO CITY, SUBIC AND
(Filipinos and foreigners) residing within the Secured Area are free to import raw DINALUPIHAN to make it clear that it is not supposed to cover the entire area of all
materials, capital goods, equipment, and consumer items tax and duty- of these territories.
free. Consumption items, however, must be consumed within the Secured
Area. Removal of raw materials, capital goods, equipment and consumer items out of Senator Shahani. So, the Gentleman is proposing that the words CERTAIN
the Secured Area for sale to non-SSEFPZ registered enterprises shall be subject to AREAS ...
the usual taxes and duties, except as may be provided herein The President. The Chair would want to invite the attention of the Sponsor
and Senator Paterno to letter C, which says: THE PRESIDENT OF THE
On October 26, 1994, the petitioners challenged before this Court the PHILIPPINES IS HEREBY AUTHORIZED TO PROCLAIM, DELINEATE AND
constitutionality of EO 97-A for allegedly being violative of their right to equal SPECIFY THE METES AND BOUNDS OF OTHER SPECIAL ECONOMIC
protection of the laws. In a Resolution dated June 27, 1995, this Court referred the ZONES WHICH MAY BE CREATED IN THE CLARK MILITARY
matter to the Court of Appeals, pursuant to Revised Administrative Circular No. 1- RESERVATIONS AND ITS EXTENSIONS.
95.
Probably, this provision can be expanded since, apparently, the intention is that
Incidentally, on February 1, 1995, Proclamation No. 532 was issued by what is referred to in Olongapo as Metro Olongapo is not by itself ipso jure already a
President Ramos. It delineated the exact metes and bounds of the Subic Special special economic zone.
Economic and Free Port Zone, pursuant to Section 12 of RA 7227.
Senator Paterno. That is correct.
The President. Someone, some authority must declare which portions of the
Ruling of the Court of Appeals same shall be the economic zone. Is it the intention of the author that it is the
President of the Philippines who will make such delineation?
Senator Shahani. Yes, Mr. President.
Respondent Court held that there is no substantial difference between the
provisions of EO 97-A and Section 12 of RA 7227. In both, the Secured Area is The Court of Appeals further justified the limited application of the tax
precise and well-defined as xxx the lands occupied by the Subic Naval Base and its incentives as being within the prerogative of the legislature, pursuant to its avowed
contiguous extensions as embraced, covered and defined by the 1947 Military Bases purpose [of serving] some public benefit or interest. It ruled that EO 97-A merely
Agreement between the Philippines and the United States of America, as amended, implements the legislative purpose of [RA 7227].
xxx. The appellate court concluded that such being the case, petitioners could not
claim that EO 97-A is unconstitutional, while at the same time maintaining the Disagreeing, petitioners now seek before us a review of the aforecited Court of
validity of RA 7227. Appeals Decision and Resolution.

The court a quo also explained that the intention of Congress was to confine the
coverage of the SSEZ to the secured area and not to include the entire Olongapo City The Issue
and other areas mentioned in Section 12 of the law. It relied on the following
deliberations in the Senate:
Senator Paterno. Thank you, Mr. President. My first question is the extent of Petitioners submit the following issue for the resolution of the Court:
the economic zone. Since this will be a free port, in effect, I believe that it is
important to delineate or make sure that the delineation will be quite precise[. M]y [W]hether or not Executive Order No. 97-A violates the equal protection clause of
question is: Is it the intention that the entire of Olongapo City, the Municipality of the Constitution. Specifically the issue is whether the provisions of Executive Order
No. 97-A confining the application of R.A. 7227 within the secured area and
excluding the residents of the zone outside of the secured area is discriminatory or applies only to those persons falling within a specified class, if it applies alike to all
not.[4] persons within such class, and reasonable grounds exist for making a distinction
between those who fall within such class and those who do not.

The Courts Ruling Classification, to be valid, must (1) rest on substantial distinctions, (2) be
germane to the purpose of the law, (3) not be limited to existing conditions only, and
(4) apply equally to all members of the same class.[9]
The petition[5] is bereft of merit.
We first determine the purpose of the law. From the very title itself, it is clear
that RA 7227 aims primarily to accelerate the conversion of military reservations
into productive uses. Obviously, the lands covered under the 1947 Military Bases
Main Issue: The Constitutionality of EO 97-A Agreement are its object. Thus, the law avows this policy:

SEC. 2. Declaration of Policies. -- It is hereby declared the policy of the


Citing Section 12 of RA 7227, petitioners contend that the SSEZ encompasses Government to accelerate the sound and balanced conversion into alternative
(1) the City of Olongapo, (2) the Municipality of Subic in Zambales, and (3) the area productive uses of the Clark and Subic military reservations and their extensions
formerly occupied by the Subic Naval Base. However, EO 97-A, according to them, (John Hay Station, Wallace Air Station, ODonnell Transmitter Station, San Miguel
narrowed down the area within which the special privileges granted to the entire Naval Communications Station and Capas Relay Station), to raise funds by the sale
zone would apply to the present fenced-in former Subic Naval Base only. It has of portions of Metro Manila military camps, and to apply said funds as provided
thereby excluded the residents of the first two components of the zone from enjoying herein for the development and conversion to productive civilian use of the lands
the benefits granted by the law. It has effectively discriminated against them, without covered under the 1947 Military Bases Agreement between the Philippines and the
reasonable or valid standards, in contravention of the equal protection guarantee. United States of America, as amended.
On the other hand, the solicitor general defends, on behalf of respondents, the
validity of EO 97-A, arguing that Section 12 of RA 7227 clearly vests in the To undertake the above objectives, the same law created the Bases Conversion
President the authority to delineate the metes and bounds of the SSEZ. He adds that and Development Authority, some of whose relevant defined purposes are:
the issuance fully complies with the requirements of a valid classification.
(b) To adopt, prepare and implement a comprehensive and detailed development
We rule in favor of the constitutionality and validity of the assailed EO. Said
plan embodying a list of projects including but not limited to those provided in the
Order is not violative of the equal protection clause; neither is it
Legislative-Executive Bases Council (LEBC) framework plan for the sound and
discriminatory. Rather, we find real and substantive distinctions between the
balanced conversion of the Clark and Subic military reservations and their extensions
circumstances obtaining inside and those outside the Subic Naval Base, thereby
consistent with ecological and environmental standards, into other productive uses to
justifying a valid and reasonable classification.
promote the economic and social development of Central Luzon in particular and the
The fundamental right of equal protection of the laws is not absolute, but is country in general;
subject to reasonable classification. If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated (c) To encourage the active participation of the private sector in transforming the
differently from another.[6] The classification must also be germane to the purpose of Clark and Subic military reservations and their extensions into other productive uses;
the law and must apply to all those belonging to the same class. [7] Explaining the
nature of the equal protection guarantee, the Court in Ichong v. Hernandez[8] said: Further, in creating the SSEZ, the law declared it a policy to develop the zone into a
self-sustaining, industrial, commercial, financial and investment center. [10]
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not From the above provisions of the law, it can easily be deduced that the real
intended to prohibit legislation which is limited either [by] the object to which it is concern of RA 7227 is to convert the lands formerly occupied by the US military
directed or by [the] territory within which it is to operate. It does not demand bases into economic or industrial areas. In furtherance of such objective, Congress
absolute equality among residents; it merely requires that all persons shall be treated deemed it necessary to extend economic incentives to attract and encourage
alike, under like circumstances and conditions both as to privileges conferred and investors, both local and foreign. Among such enticements are:[11] (1) a separate
liabilities enforced. The equal protection clause is not infringed by legislation which
customs territory within the zone, (2) tax-and-duty-free importations, (3) restructured categorized further. Instead, they are all similarly treated, both in privileges granted
income tax rates on business enterprises within the zone, (4) no foreign exchange and in obligations required.
control, (5) liberalized regulations on banking and finance, and (6) the grant of
resident status to certain investors and of working visas to certain foreign executives All told, the Court holds that no undue favor or privilege was extended. The
and workers. classification occasioned by EO 97-A was not unreasonable, capricious or
unfounded. To repeat, it was based, rather, on fair and substantive considerations that
We believe it was reasonable for the President to have delimited the application were germane to the legislative purpose.
of some incentives to the confines of the former Subic military base. It is this
specific area which the government intends to transform and develop from its status WHEREFORE, the petition is DENIED for lack of merit. The assailed
quo ante as an abandoned naval facility into a self-sustaining industrial and Decision and Resolution are hereby AFFIRMED. Costs against petitioners.
commercial zone, particularly for big foreign and local investors to use as SO ORDERED.
operational bases for their businesses and industries. Why the seeming bias for big
investors? Undeniably, they are the ones who can pour huge investments to spur Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
economic growth in the country and to generate employment opportunities for the Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Filipinos, the ultimate goals of the government for such conversion. The
classification is, therefore, germane to the purposes of the law. And as the legal ______________________________________________
maxim goes, The intent of a statute is the law.[12]
Certainly, there are substantial differences between the big investors who are
being lured to establish and operate their industries in the so-called secured area and
Article 8
the present business operators outside the area. On the one hand, we are talking of
billion-peso investments and thousands of new jobs. On the other hand, definitely EN BANC
none of such magnitude. In the first, the economic impact will be national; in the
second, only local. Even more important, at this time the business activities outside
the secured area are not likely to have any impact in achieving the purpose of the
law, which is to turn the former military base to productive use for the benefit of the [G.R. Nos. 120681-83. October 1, 1999]
Philippine economy. There is, then, hardly any reasonable basis to extend to them
the benefits and incentives accorded in RA 7227. Additionally, as the Court of
Appeals pointed out, it will be easier to manage and monitor the activities within the
secured area, which is already fenced off, to prevent fraudulent importation of
JEJOMAR C. BINAY, petitioner, vs. HON. SANDIGANBAYAN (Third
merchandise or smuggling.
Division) and the DEPARTMENT OF INTERIOR AND LOCAL
It is well-settled that the equal-protection guarantee does not require territorial GOVERNMENT, respondents.
uniformity of laws.[13] As long as there are actual and material differences between
territories, there is no violation of the constitutional clause. And of course, anyone,
including the petitioners, possessing the requisite investment capital can always avail
of the same benefits by channeling his or her resources or business operations into [G.R. No. 128136. October 1, 1999]
the fenced-off free port zone.
We believe that the classification set forth by the executive issuance does not
apply merely to existing conditions. As laid down in RA 7227, the objective is to
MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D.
establish a self-sustaining, industrial, commercial, financial and investment center in
MABIOG, REGINO E. MALAPIT, ERLINDA I. MASANGCAY and
the area. There will, therefore, be a long-term difference between such investment
VICENTE DE LA ROSA, petitioners, vs. HON. SANDIGANBAYAN,
center and the areas outside it.
HON. OMBUDSMAN and its PROSECUTOR WENDELL
Lastly, the classification applies equally to all the resident individuals and BARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY
businesses within the secured area. The residents, being in like circumstances or JOSEPH F. MALLONGA and GIDEON C. MENDOZA, respondents.
contributing directly to the achievement of the end purpose of the law, are not
DECISION motion for reconsideration, however, was issued before the petitioner could file a
reply to the prosecutions opposition to the motion for reconsideration.
KAPUNAN, J.:
In the meantime, on March 31, 1995, the prosecution filed a Motion to Suspend
Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential Accused Pendente Lite. The Sandiganbayan, in a Resolution dated April 25, 1995,
Decree No. 1486 created an Anti-Graft Court known as the Sandiganbayan. Since granted the motion and ordered the suspension of petitioner for ninety days from
then the jurisdiction of the Sandiganbayan has under gone various changes, [1] the receipt of the resolution. The court ruled that the requisites for suspension pendente
most recent of which were effected through Republic Act Nos. 7975[2] and lite were present as petitioner was charged with one of the offenses under Section 13
8249.[3] Whether the Sandiganbayan, under these laws, exercises exclusive original of R.A. No. 3019[8] and the informations containing these charges had previously
jurisdiction over criminal cases involving municipal mayors accused of violations of been held valid in the resolution denying the motion to quash and the resolution
Republic Act No. 3019[4] and Article 220 of the Revised Penal Code[5] is the central denying the motion for reconsideration.
issue in these consolidated petitions. Petitioner thus filed before this Court a petition for certiorari,[9] to set aside the
In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among resolution denying his motion for reconsideration, claiming that he was denied due
others, the Resolution of the Sandiganbayan denying his motion to refer Criminal process when the Sandiganbayan ordered his suspension pendente lite before he
Case Nos. 21001, 21005 and 21007 to the Regional Trial Court (RTC) of Makati and could file a reply to the prosecutions opposition to his motion for reconsideration of
declaring that the Sandiganbayan has jurisdiction over said cases despite the the resolution denying the motion to quash. In a Resolution dated April 28, 1995, the
enactment of R.A. No. 7975. Court directed the Sandiganbayan to, among other things, permit petitioner to file
said reply.
In G.R. No. 128136, petitioner Mario C. Magsaysay, et al. assail the October
22, 1996 Resolution of the Sandiganbayan, reversing its Order of June 21, 1996 After allowing and considering petitioners reply, the Sandiganbayan, on June 6,
which suspended the proceedings in Criminal Case No. 23278 in deference to 1995, issued a Resolution reiterating the denial of his motion for reconsideration of
whatever ruling this Court will lay down in the Binay cases. the denial of the motion to quash. On the same day, the Sandiganbayan issued
another resolution reiterating the order suspending petitioner pendente lite.
The facts, as gathered from t he records, are as follows:
Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan,
took effect on May 16, 1995.[10]
G.R. Nos. 120681-83 On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer
his cases to the proper court for further proceedings, alleging that when the two
Resolutions, both dated June 6, 1995, were issued by the Anti-Graft Court, it had
On September 7, 1994, the Office of the Ombudsman filed before the already lost jurisdiction over the subject cases. The Sandiganbayan, in a Resolution
Sandiganbayan three separate informations against petitioner Jejomar Binay, one for dated July 4, 1995, denied petitioners motion, holding thus:
violation of Article 220 of the Revised Penal Code, [6] and two for violation of
Section 3(e) of R.A. No. 3019.[7] The informations, which were subsequently There is no question that Municipal Mayors are classified as Grade 27 under the
amended on September 15, 1994, all alleged that the acts constituting these crimes compensation & Position Classification Act of 1989. Since, at the time of the
were committed in 1987 during petitioners incumbency as Mayor of Makati, then a commission of the offenses charged in he above-entitled cases, the accused Mayor
municipality of Metro Manila. Jejomar C. Binay was a Municipal Mayor, although in an acting or interim capacity,
Thereafter, petitioner moved to quash the informations. He contended that the the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases
six-year delay from the time the charges were filed in the Office of the Ombudsman therein filed against him. The allegation that Mayor Binay ought to have been
on July 27, 1988 to the time the informations were filed in the Sandiganbayan on classified with a salary grade lower than Grade 27, because at the time of the
September 7, 1994 constituted a violation of his right to due process. Arraignment of commission of the offenses charged he was paid a salary which merits a grade lower
the accused was held in abeyance pending the resolution of this motion. than Grade 27 does not hold water. In 1986 when the herein offenses were
committed by the accused, the Compensation & Position Classification Act of 1989
On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioners was not as yet in existence. From the very definition of he very Act itself, it is
motion to quash. Petitioners motion for reconsideration, which was opposed by the evident that the Act was passed and had been effective only in 1989. The Grade
prosecution, was likewise denied by the Sandiganbayan. The resolution denying the classification of a public officer, whether at the time of the commission of the
offense or thereafter, is determined by his classification under the Compensation &
Position Classification Act of 1989. Thus since the accused Mayor Jejomar C. Binay No. 3019, as amended. The complaint charged the respondent municipal officials of
was a Municipal Mayor at the time of the commission of the offenses and the overpaying Vicente de la Rosa of TDR Construction for the landscaping project of
Compensation & Position Classification Act of 1989 classifies Municipal Mayors as the San Pascual Central School. This was docketed in the Office of the Ombudsman
Grade 27, it is a conclusion beyond cavil that the Sandiganbayan has jurisdiction as OMB-1-94-1232.
over the accused herein.
In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A.
Alarilla recommended the filing of an information for violation of Section 3(e) and
As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor (g) of R.A. No. 3019, as amended, against petitioners with the
Jejomar C. Binay had begun receiving a monthly salary of P15,180.00 which is Sandiganbayan. Director Elvis John S. Asuncion concurred in the resolution, and
equivalent to Grade 28 under the salary scale provided for in Section 27 of the said Manuel C. Domingo, Deputy Ombudsman for Luzon, recommended approval of the
Act. Under the Index of Occupational Services, the position titles and salary grades same. The resolution was approved by then Acting Ombudsman Francisco A. Villa
of the Compensation & Position classification system prepared by the Department of with the following marginal note:
Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the
position of Municipal Mayor had been classified as Grade 27. [11]
Authority is given to the deputy Ombudsman for Luzon to cause the preparation of
the information and to approve the same for filing with the proper court.[12]
On July 7, 1995, petitioner filed the present petition for certiorari, prohibition
and mandamus questioning the jurisdiction of the Sandiganbayan over Criminal Case
Nos. 21001, 21005 and 21007. He prayed, among others, that the Court anuul and set On August 11, 1995, an Information for violatiion of Section 3 (e) and (g) was
aside: (1) the Resolution of the Sandiganbayan dated June 6, 1995 reiterating the filed against petitioners and Jovey C. Babago, not with the Sandiganbayan per the
denial of the motion for reconsideration of the motion to quash; (2) the Resolution of June 14, 1995 Resolution, but with the RTC of Batangas City. The information was
the same court also dated June 6, 1995 reiterating the order suspending signed by a Lourdes A. Alarilla, the same Graft Investigation Officer who
petitioner pendente lite; and (3) the Resolution of the Sandiganbayan dated July 4, recommended the filing of the information with the Sandiganbayan.
1995 denying the motion to refer case to the RTC. Petitioner also asked that the In the meantime, a group denominated as the Concerned Citizens of San
Court issue a temporary restraining order preventing the suspension and arraignment Pascual, Batangas filed a complaint before the Ombudsman against petitioners, and
of petitioner. Elpidia Amada and Brigido Buhain, with violations of R.A. No. 3019. The complaint
The Court on July 7, 1995, resolved, among others, to issue the temporary also alleged, among others, the overpricing of the landscaping project of San Pascual
restraining order prayed for. Central School. The case was docketed as OMB-0-94-0149.

On July 14, 1995, petitioner filed an Addendum to Petition (To allow the In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M.
introduction of alternative reliefs), praying that, should this Court hold that the Nocos recommended the filing of an information charging petitioners with violation
Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be of Section 3(e) and (g) of R.A. No. 3019, as amended with proper court. The
dismissed just the same on the ground that the long delay of the preliminary resolution, which was recommended for approval by Nicanor J. Cruz, OIC-Deputy
investigation before the Ombudsman prior to the filing of the informations, deprived Ombudsman for Luzon, and approved by Ombudsman Aniano A. Desierto, adopted
him of his right to due process; and that, moreover, there was no probable cause to the findings and conclusions in the resolution in OMB-1-94-1232 that the
warrant the filing of the informations. landscaping project was overpriced.
On Febraury 9, 1996, another Information for violation of Section 3(e) of R.A.
No. 3019, as amended, was filed against petitioners for the overpricing of the
G.R. No. 128136 landscaping project, this time before the Sandiganbayan. The information was
subsequently amended on May 17, 1996. Except for the date the alleged crime was
committed, the information charged essentially the same inculpatory facts as the
Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual, information filed in the RTC. The case was docketed in the Sandiganbayan as Crim.
Batangas. Save for petitioner Vicente dela Rosa, all of Mayor Magsaysays co- Case No. 22378.
petitioners are officials of the same municipality.
On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash
In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San the information in Crim. Case No. 22378 on the following grounds: that the
Pascual, Batangas, charged petitioners along with Elpidia Amada, Jovey C. Babago, Sandiganbayan had no jurisdiction over the case; that the accused were charged with
and Brigido H. Buhain, also officials of San Pascual Batangas, with violation of R.A. the same offense in two informations; and that the proceedings in the Sandiganbayan
would expose petitioners to double jeopardy. The Sandiganbayan denied the IV
accuseds motion to quash in a Resolution dated June 21, 1996. The court, however,
suspended proceedings in the case until the Supreme Court resolved the question of Whether or not the trial to be conducted by respondent court, if the case shall not be
the Sandiganbayans jurisdiction involved in the Binay petition. dismissed, will expose the petitioners who are accused therein to double jeopardy?
Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before
the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan, V
arguing that under R.A. No. 7975 the Sandiganbayan, not the RTC, had jurisdiction
over the case. On July 3, 1996, the RTC issued an order holding in abeyance the Under the circumstances, are the respondent Ombudsman and the prosecutors guilty
resolution of the motion to refer the case since the issue of jurisdiction was pending of forum shopping?[13]
before the Sandiganbayan.
Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the
for reconsideration of the Sandiganbayans Order dated June 21, 1996. On August 2, Magsaysay petition) with G.R. Nos. 120681-83 (the Binay petition).
1996, filed their own motion for the reconsideration of the same order. On October In resolving these consolidated petitions, the Court shall first addrress the
22, 1996, the Sandiganbayan granted the motion for reconsieration filed by the common question of the Sandiganbayans jurisdiction.
prosecution and set the case for arraignment. Petitioners moved for a reconsideration
of the October 22, 1996 Resolution ordering their arraignment, which motion was I
denied on February 17, 1997.
The Court rules that it is the Sandiganbayan which has jurisdiction over the
On February 27, 1997, the accused filed the present petition. subject cases.

On October 1, 1997, the Court resolved to issue a temporary restraining order The informations against Mayor Binay were filed in the Sandiganbayan on July
to prevent respondents from further proceeding with Crim. Case No. 23278 of the 7, 1994, pursuant to Presidential Decree No. 1606, [14] as amended by Presidential
Sandiganbayan. Decree No. 1861,[15] the pertinent provisions of which state:

The petition raises the following issues:


SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise:
I
(a) Exclusive original jurisdiction in all cases involving:
Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal
mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
an information for the same offense before the Regional Trial Court having territorial Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
jurisdiction and venue of the commission of the offense? Title VII of the Revised Penal Code;

II (2) Other offenses or felonies committed by public officers and employees in relation
to their office, including those employed in government-owned or controlled
Are the respondents Ombudsman and the prosecutors estopped by laches or waiver corporations, whether simple or complexed with other crimes, where the penalty
from filing and prosecuting the case before respondent Sandiganbayan after the filing prescribed by law is higher than prision correccional or imprisonment for six (6)
earlier of the information in the proper court, thereafter repudiating it, seeking years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies
another court of the same category and finally to respondent court? mentioned in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00
III shall be tried by the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court.
Whether or not the filing of two (2) informations for the same offense violated the
rule on duplicity of information? xxx.
On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had (3) Members of the judiciary without prejudice to the provisions of the Constitution;
not yet been arraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was
already in effect when the information against Mayor Magsaysay et al., was filed on (4) Chairmen and members of Constitutional Commissions, without prejudice to the
August 11, 1995 in the RTC of Batangas City. provisions of the Constitution; and
Section 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as
follows: (5) All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.
Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all
cases involving: b. Other offenses or felonies committed by the public officieals and employees
mentioned in subsection (a) of this section in relation to their office.
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Title VII of the Revised Penal Code, where one or more of the principal accused are Nos. 1, 2, 14 and 14-A.
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense: In cases where none of the principal accused are occupying positions corresponding
to salary grade 27 or higher, as prescribed in the said Republic Act No. 6758, or PNP
(1) Officials of the executive branch occupying the positions of regional director and officers occupying the rank of superintendent or higher, or their equivalent, exclusive
higher, otherwise classified as grade 27 and higher, of the Compensation and jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan
Position Classification Act of 1989 (Republic Act No. 6758), specifically including: Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case
may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.
(a) Provincial governors, vice-governors, members of the sangguniang 129.
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads; xxx.
While the cases against petitioners were pending in this Court, congress
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city enacted R.A. No. 8249, again redefining the jurisdiction of the Anti-Graft
treasurers, assessors, engineers, and other city department heads; Court. This law took effect, per Section 10 thereof, on February 23, 1997, fifteen
days after its complete publication on February 8, 1997 in the Journal and Malaya,
(c) Officials of the diplomatic service occupying the position of consul and higher; two newspapers of general circulation.
As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606
(d) Philippine army and air force colonels, naval captains, and all officers of higher now reads:
rank;
SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
(e) PNP chief superintendent and PNP officers of higher rank; jurisdiction in all cases involving:

(f) City and provincial prosecutors and their assistants, and officials and prosecutors a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
in the Office of the Ombudsman and special prosecutor; Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the accused are
(g) Presidents, directors or trustees, or managers of government-owned or controlled officials occupying the following positions in the government, whether in a
corporations, state universities or educational institutions or foundations; permanent, acting or interim capacity, at he time of the commission of the offense:

(2) Members of Congress and officials thereof classified as Grade 27 and up under (1) Officials of the executive branch occupying the position of regional director and
the Compensation and Position Classification Act of 1989; higher, otherwise classified as grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang municipal circuit trial court, as the case may be, pursuant to their respective
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
department heads;
Petitioners contend that they do not come under the exclusive original
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city jurisdiction of the Sandiganbayan because:
treasurers, assessors, engineers, and other city department heads;
(1) At the alleged time of the commission of the crimes charged, petitioner
municipal mayors were not classified as Grade 27.
(c) Officials of the diplomatic service occupying the position of consul and higher;
(2) Municipal mayors are not included in the enumeration in Section 4a(1) of
(d) Philippine army and air force colonels, naval captains, and all officers of higher P.D. No. 1606, as amended by R.A. No. 7975.
rank;
(3) Congressional records reveal that the law did not intend municipal mayors
to come under the exclusive original jurisdiction of the Sandiganbayan.
(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher;
A
(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the office of the Ombudsman and special prosecutor;
In support of his contention that his position was not that of Grade 27, Mayor
(g) Presidents, directors or trustees, or managers of government-owned or controlled Binay argues:
corporations, state universities or educational institutions or foundations.
xxx. The new laws consistent and repeated reference to salary grade show[s] an
(2) Members of Congress and officials thereof classified as Grade 27 and up under intention to base the separation of jurisdiction between the Sandiganbayan and
the Compensation and Position Classification Act of 1989; the regular courts on pay scale.Grades are determined by compensation. The
essence of grades is pay scales. Therefor, pay scales determine grades.[16]
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
Mayor Binay, thus, presented a Certification[17] from the City Personnel Officer
(4) Chairmen and members of Constitutional Commissions, without prejudice to the of Makati stating that petitioner as mayor received a monthly salary of only
provisions of he Constitution; and P10,793.00 from March 1987 to December 31, 1988. This amount was supposedly
equivalent to Grade 22 under R.A. No. 6758.
(5) All other national and local officials classified as Grade 27 and higher under the Mayor Magsaysay, for his part, submitted a similar Certification[18] from the
Compensation and Position Classification Act of 1989. Municipal Treasurer of San Pascual, Batangas, stating:

b. Other offenses or felonies whether simple or complexed with other crimes x x x that the basic monthly salary received by Mario C. Magsaysay, Municipal
committed by the public officials and employees mentioned in subsection (a) of this Mayor of San Pascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND
section in relation to heir office. EIGHT HUNDRED TWENTY EIGHT PESOS (P11,828.00) per month as of
November 3, 1993 equivalent only to Grade 25, Step 5 of RA 6758, the
d. Civil and criminal cases filed pursuant to and in connection with Executive Order Compensation and Position Classification Act of 1989.
Nos. 1, 2, 14 and 14-A, issued in 1986.
Section 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary
In cases where none of the accused are occupying positions corresponding to salary constraints. This certification is issued to Mayor Mario C. Magsaysay this 30th day
grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and of May 1996 at San Pascual, Batangas for whatever legal purpose and/or purposes it
PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested may serve.
in the proper regional trial court, metropolitan trial court, municipal trial court, and
The Court does not subscribe to the manner by which petitioners classify For positions below those mentioned under Section 8, Section 9 instructs the
Grades. DBM to prepare the Index of Occupational Services guided by the Benchmark
Position prescribed in Section 9 and the factors enumerated therein.
The Constitution[19] states that in providing for the standardization of
compensation of government officials and employees, Congress shall take into To determine whether an official is within the exclusive original jurisdiction of
account the nature of the responsibilities pertaining to, and the qualifications the Sandiganbayan, therefore, reference should be made to R.A. No. 6758 and the
required for their positions, thus: Index of Occupational Services, Position Titles and Salary Grades. Salary level is not
determinative. An officials grade is not a matter of proof, but a matter of law of
The Congress shall provide for the standardization of compensation of government which the Court must take judicial notice.[24]
officials, including those in government-owned or controlled corporations with As both the 1989 and 1997 versions of the Index of Occupational Services,
original charters, taking into account the nature of the responsibilities pertaining to, Position Titles and Salary Grades list the municipal Mayor under Salary Grade 27,
and the qualifications required for their positions. petitioner mayors come within the exclusive original jurisdiction of the
Sandiganbayan. Petitioner mayors are local officials classified as Grade 27 and
Corollary thereto, Republic Act No. 6758[20] provides in Section 2 thereof higher under the Compensation and Position Classification Act of 1989, under the
that differences in pay are to be based upon substantive differences in duties and catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No.
responsibilities, and qualification requirements of the positions. In short, the nature 7975. More accurately, petitioner mayors are [o]fficials of the executive branch
of an officials position should be the determining factor in the fixing of his or her occupying the positions of regional director and higher, otherwise classified as grade
salary. This is not only mandated by law but dictated by logic as well. 27 and higher, of the Compensation and Position Classification Act of 1989, under
Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. [25]
Consistent with these policies, the law employs the scheme known as the grade
defined in Presidential Decree No. 985[21] as including

B
xxx all classes of positions which, although different with respect to kind or subject
matter of work, are sufficiently equivalent as to level of difficulty and
responsibilities and level of qualification requirements of the work to warrant the
inclusion of such classes of positions within one range of basic compensation. [22] Petitioners, however, argue that they are not included in the enumeration in
Section 4a(1). They invoke the rule in statutory construction expressio unius est
expressio alterius. As what is not included in those enumerated is deemed excluded,
The grade, therefore, depends upon the nature of ones position -- the level of
municipal officials are excluded from the Sandiganbayans exclusive original
difficulty, responsibilities, and qualification requirements thereof -- relative to that of
jurisdiction.
another position. It is the officials Grade that determines his or her salary, not the
other way around. Resort to statutory construction, however, is not appropriate where the law is
clear and unambiguous.[26] The law is clear in this case. As stated earlier, Section
It is possible that a local government officials salary may be less than that
4a(1) of P.D. No. 1606, as amended by R.A. No. 7975, speaks of [o]fficials of the
prescribed for his Grade since his salary depends also on the class and financial
executive branch occupying the positions of regional director and higher, otherwise
capability of his or her respective local government unit.[23] Nevertheless, it is the
classified as grade 27 and higher, of the compensation and Position Classification
law which fixes the officials grade.
Act of 1989.
Thus, Section 8 of R.A. 6758 fixes the salary grades of the President, Vice-
The Court fails to see how a different interpretation could arise even if the plain
President, Senate President, Speaker, Chief Justice, Senators, Members of the House
meaning rule were disregarded and the law subjected to interpretation.
of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen
and Members of the Constitutional Commissions. Section 8 also authorizes the The premise of petitioners argument is that the enumeration in Section 4a(1) is
Department of Budget and Management (DBM) to determine the officials who are of exclusive. It is not. The phrase specifically including after [o]fficials of the executive
equivalent rank to the foregoing officials, where applicable and to assign such branch occupying the positions of regional director and higher, otherwise classified
officials the same Salary Grades subject to a set of guidelines found in said section. as grade 27 and higher, of the Compensation and Position Classification Act of 1989
necessarily conveys the very idea of non-exclusivity of the enumeration.The
principle of expressio unius est exclusio alterius does not apply where other
circumstances indicate that the enumeration was not intended to be exclusive,[27] or
where the enumeration is by way of example only.[28] In Conrado B. Rodrigo, et al. where a general rule is established by statute, the court will not curtail the former nor
vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the add to the latter by implication (Samson v. CA., 145 SCRA 654 [1986]). [30]
catchall in Section 4a(5) was necessary for it would be impractical, if not impossible,
for Congress to list down each position created or will be created pertaining to Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration:
grades 27 and above. The same rationale applies to the enumeration in Section
4a(1). Clearly, the law did not intend said enumeration to be an exhaustive list.
x x x that the inclusion of Municipal Mayors within the jurisdiction of the
Should there be any doubts as to whether petitioner mayors are under the Sandiganbayan would be inconvenient since the witness in their case would come
category of Grade 27, Section 444(d) of the Local Government Code settles the from Baguio City and San Nicolas, Pangasinan.This, according to petitioners, would
matter: defeat one of the purposes of R.A. No. 7975, that is, the convenience of the accused.

The municipal mayor shall receive a minimum monthly compensation corresponding The Court, in denying the motion for reconsideration, held, among others, that:
to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the
implementing guidelines issued pursuant thereto. The legislature has nevertheless chosen the mode and standard by which to
implement its intent, and courts have no choice but to apply it. Congress has willed
In the Courts Resolution in Rodrigo dated July 2, 1999 denying the motion for that positions with Grade 27 and above shall come within the jurisdiction of the
reconsideration, we treated the above provision as confirmatory of the Salary Grade Sandiganbayan and this Court is duty-bound to obey the congressional will.
assigned by the DBM to Municipal Mayors.
Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating:

C Since February 1979, when the Sandiganbayan was established up to the present, the
Court has been confronted with the problem of those accused who are of limited
means who stand trial for petty crimes, the so-called small fry -- the barangay
Petitioner Binay cites previous bills[29] in Congress dealing with the jurisdiction officials, the municipal officials and employees, postal clerks and letter carriers and
of the Sandiganbayan. These bills supposedly sought to exclude municipal officials the like -- who are involved with nickel-and-dime cases and money-related cases
from the Sandiganbayans exclusive original jurisdiction to relieve these officials such as malversation, estafa and theft. xxx
,especially those from the provinces, of the financial burden brought about by trials
in Manila. xxx xxx xxx
The resort to congressional records to determine the proper application of the
law in this case is unwarranted in this case for the same reason that the resort to the Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such
rule of inclusio unius est expressio alterius is inappropriate. that only those occupying high positions in Government and the military fall
under the jurisdiction of the court.[31]
Verily, the interpretation of the law desired by the petitioner may be more humane
but it is also an elementary rule in statutory construction that when the words and It is not clear, however, whether Senator Roco meant that all municipal
phrases of the statute are clear and unequivocal, their meaning must be determined officials are excluded fro mthe jurisdiction of the Sandiganbayan. In any case, courts
from language employed and the statute must be taken to mean exactly what it are not bound by a legislators opinion in congressional debates regarding the
says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate interpretation of a particular legislation. It is deemed a mere personal opinion of the
as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 legislator.[32] Such opinions do not necessarily reflect the view of the entire
SCRA 233 [1984]). When the law is clear, it is not susceptible to interpretation. It Congress.[33]
must be applied regardless of who may be affected, even if the law may be harsh or
onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions
may be conceded, the same as a general rule, should be strictly but reasonably D
construed; they extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception. Thus,
From the foregoing discussion, it is clear that the cases against petitioner Binay Construed thus, the effects of Section 7 may be summarized as follows:
cannot be referred to the regular courts under Section 7 of R.A. No. 7975, which
provides: 1. If trial of cases before the Sandiganbayan has already begun as of the approval of
R.A. No. 7975, R.A. No. 7975 does not apply.
Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in
the Sandiganbayan shall be referred to the proper courts. 2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A.
No. 7975, then R.A. No. 7975 applies.
In construing the correct import of Section 7, it may be helpful to refer to the
guidelines in determining jurisdiction laid down in Bengzon vs. Inciong:[34] (a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No.
7975, the Sandiganbayan has jurisdiction over a case before it, then the case shall be
The rule is that where a court has already obtained and is exercising jurisdiction over referred to the Sandiganbayan.
a controversy, its jurisdiction to proceed to the final determination of the cause is not
affected by new legislation placing jurisdiction over such proceedings in another (b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No.
tribunal. The exception to the rule is where the statute expressly provides, or is 7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be
construed to the effect that it is intended to operate as to actions pending before its referred to the regular courts.
enactment. Where a statute changing the jurisdiction of a court has no retroactive
effect, it cannot be applied to a case that was pending prior to the enactment of the The trial of the cases involving Mayor Binay had not yet begun as of the date of
statute. the approval of R.A. 7975; consequently, the Anti-Graft Court retains jurisdiction
over the said cases.
R.A. No. 7975, by virtue of Section 7, belongs to the excepetion rather than the
rule. The provision is transitory in nature and expresses the legislatures intention to In any case, whatever seeming ambiguity or doubt regarding the application of
apply its provisions on jurisdiction to criminal cases in which trial has not begun in Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249,
the Sandiganbayan. To this extent, R.A. 7975 is retroactive. which states:

Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions
Sec. 7. Transitory Provision. - This Act shall apply to all cases pending in any court
are found in other laws reallocating the jurisdiction of the courts. [35] There is no
over which trial has not begun as of the approval hereof.
reason why Section 7 of R.A. No. 7975 should be any different.
The term proper courts, as used in Section 7, means courts of competent The latter provision more accurately expresses the legislatures intent and in any
jurisdiction, and such jurisdiction is defined in Section 4 of P.D. No. 1606, as event should be applied in this case, R.A. No. 8249 having superseded R.A. No.
amended by R.A. No. 7975. The former should not be read in isolation but construed 7975.
in conjunction with the latter.
In Panfilo M. Lacson vs. The Executive Secretary, et al.,[36] The Court
The term proper courts as used in Section 7, therefore, is not restricted explained the purpose of the foregoing provision.
to regular courts, but includes as well the Sandiganbayan, a special court. If the
intent of Congress were to refer all cases the trials of which have not begun to the x x x it can be reasonably anticipated that an alteration of [Sandiganbayans]
regular courts, it should have employed the term proper regular courts or regular jurisdiction would necessarily affect pending cases, which is why it has to provide
courts instead of proper courts. Accordingly, the law in the third paragraph of for a remedy in the form of a transitory provision. x x x. The transitory provision
Section 4 P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term does not only cover cases which are in the Sandiganbayan but also in any court. x x
regular courts, not proper courts: x. Moreover, those cases where trial had already begun are not affected by the
transitory provision under Section 7 of the new law (RA 8249). [Emphasis in the
The Sandiganbayan shall exercise exclusive appellate jurisidction on appeals from original.]
the final judgments, resolutions or orders of regular courts where all the accused are
occupying positions lower than salary grade 27, or not otherwise covered by the The possible disruptive effect of the amendments to the Sandiganbayans
preceding enumeration. [Underscoring supplied.] jurisdiction on pending cases was, therefore, not lost on the legislature. Congress
has, furthermore, deemed the commencement of the trial as the crucial point in
determining whether a court retains a case pending before it or lose the same on the expeditious action on all officials who are tasked with the administration of
ground of lack of jurisdiction per the provisions of R.A. 8249. The law obviously justice.[38]
does not want to waste the time and effort already devoted to the presentation of
evidence if trial had already begun. On the other hand, not much disruption would be However, the right to a speedy disposition of a case, like the right to speedy
caused if the amendment were made to apply to cases the trials of which have not yet trial,[39] is deemed violated only when the proceedings is attended by vexatious,
to start. capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive a long period of
The ramifications of Section 7 of R.A. No. 8249 may be stated as follows: time is allowed to elapse without the party having his case tried.[40] Equally
applicable is the balancing test used to determine whether a defendant has been
1. If trial of the cases pending before whatever court has already begun as of the denied his right to a speedy trial, or a speedy disposition of a case for that matter, in
approval of R.A. No. 8249, said law does not apply. which the conduct of both the prosecution and the defendant is weighed, and such
factors as the length of the delay, the reasons for such delay, the assertion or failure
to assert such right by the accused, and the prejudice caused by the delay.[41] The
2. If trial of cases pending before whatever court has not begun as of the approval of
concept of speedy disposition is a relative term and must necessarily be a flexible
R.A. No. 8249, then said law applies.
concept.[42]
(a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains A mere mathematical reckoning of the time involved, therefore, would not be
jurisdiction. sufficient.[43] In the application of the constitutional guarantee of the right to speedy
disposition of cases, particular regard must also be taken of the facts and
(b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case circumstances peculiar to each case.[44]
shall be referred to the regular courts. In Tatad vs.Sandiganbayan,[45] the Court held that the length of delay and the
simplicity of the issues did not justify the delay in the disposition of the cases
(c) If the Sandiganbayan has jurisdiction over a case pending before a regular court, therein. The unexplained inaction[46] of the prosecutors called for the dismissal of the
the latter loses jurisdiction and the same shall be referred to the Sandiganbayan. cases against petitioner Tatad.

(d) If a regular court has jurisdiction over a case pending before it, then said court In Alvizo vs. Sandiganbayan,[47] the Court also ruled that there was no violation
retains jurisdiction. of the right to speedy disposition. The Court took into account the reasons for the
delay, i.e., the frequent amendments of procedural laws by presidential decrees, the
structural reorganizations in existing prosecutorial agencies and the creation of new
Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction,
jurisdiction over said cases. and the functions and powers of prosecuting agencies. The Court likewise considered
II the failure of the accused to assert such right, and the lack of prejudice caused by the
delay to the accused.
Petitioner Binay avers in his Addendum to Petition that his right to speedy
disposition has been violated by the inordinate delay in the resolution of the subject In Santiago vs. Garchitorena,[48] the complexity of the issues and the failure of
cases by the Ombudsman. the accused to invoke her right to speedy disposition at the appropriate time spelled
defeat to her claim to the constitutional guarantee.
Article III of the Constitution provides that:
In Cadalin vs. POEAs Administrator,[49] the Court, considering also the
complexity of the cases (not run-of-the-mill variety) and the conduct of the parties
Sec. 16. All persons shall have the right to a speedy disposition of their cases before
lawyers, held that the right to speedy disposition was not violated therein.
all judicial, quasi-judicial, or administrative bodies.
In petitioner Binays case, the Court finds that there was no undue delay in the
The constitutional right to a speedy disposition of cases is not limited to the disposition of the subject cases. The proceedings conducted before the Office of the
accused in criminal proceedings but extends to all parties in all cases, including civil Tanodbayan, and later with the Office of the Ombudsman, adequately explains the
and administrative cases, and in all proceedings, including judicial and quasi-judicial length of the delay:
hearings.[37] Hence, under the Constitution, any party to a case may demand
1. That on July 27, 1988 Bobby Brillante filed with the Office of the 2.1. In compliance with the subpoena, Mayor Jejomar Binay
Tanodbayan an affidavit-complaint charging, Jejomar Binay, Sergio submitted his counter-affidavit on May 18, 1990, Marissa Chan,
Santos, Roberto Chang, Delfin Almeda, Nelson Irasga, Nicasio Feliciano Bascon, Nicanor Santiago, Jr. on June 19, 1990,
Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6,
Diaz, Virgilio Clarete, Godofredo Marcelo, Armando San Miguel, 1990, Roberto Chang on August 27, 1990. Feliciano Bascon
Salvador Pangilinan and John Does of the following offenses: (a) submitted his Supplemental Affidavit on November 22, 1990.
Massive Malversation of Public Funds; (b) Multiple Falsification of
Public Documents; (c) Usurpation of Official Functions; (d) Violation 2.2. Thereafter, clarificatory examinations were conducted on
of Election Law; and (e) Violation of Sec. 3(e) of R.A. 3019. September 27, 1990, October 26, 1990, November 8, 9, 14, 22,
1990.
1.1. Brillantes complaint was based on the initial findings and
observations of the COA on the examination of the cash and 3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this
accounts covering transactions from April 1, 1987 to January 4, Petition for Certiorari in G.R. No. 92380 which he and the
1988 and Post-Audit of Selected Accounts for the last quarter of municipality of Makati filed with the Supreme Court against COA
1987 of the Municipality of Makati contained in its Report Chairman, Eufemio Domingo and the Commission on Audit, with a
dated January 11, 1988. The COA furnished the Tanodbayan a manifestation that said petition is submitted to support Binays stand as
copy of this report on August 1, 1988 upon request of the latter. regard COA Finding No. 9 aforestated.

1.2. In the letter of the COA transmitting a copy of the report, the 4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing
Tanodbayan was informed that this COA audit report of allegations incriminating Jejomar Binay;
January 11, 1988 is not yet released since the Mayor of Makati 5. Upon being ordered to comment on the said April 2, 1992 affidavit of
was given thirty days within which to explain/clarify the Marissa Chan, Jejomar Binay submitted his comment thereto on April
findings in the report and is subject to change or modification 30, 1992.
depending upon the explanation/clarification to be submitted by
the Mayor of Makati. Because of this information from the 6. On August 4, 1993, the Investigation Panel submitted to the Deputy
COA the preliminary investigation was held in abeyance until Special Prosecutor its Resolution disposing the preliminary
the submission of the final report. investigation of the case.

1.3. On March 1, 1989, the first part of the Final Report on Audit 6.1. On August 10, 1993 the said Resolution was approved by the
of Makati was received by the Office of the Ombudsman and Special Prosecutor, who forwarded the same and the entire
was transmitted for purposes of the ensuring preliminary records to the Office of the Ombudsman for review and/or final
investigation to the Tanodbayan which received the same on action.
March 22, 1989.
6.2. On August 16, 1994, the Review Panel of the Ombudsman
1.4. This first part of the Final Report contained the fifteen (15) submitted to the latter its review action for approval.
adverse findings, above elsewhere stated as the basis of Bobby
6.3. On August 19, 1994, the Ombudsman approved some of the
Brillantes complaint.
recommendations of the Review Panel and directed the
1.5. Eleven (11) COA auditors participated in the documentation preparation and filing of the informations.[50]
and analysis of its findings and preparation of the final report.
Furthermore, the prosecution is not bound by the findings of the Commission
1.6. The first part of the final report was followed by a on Audit (COA); it must rely on its own independent judgment in the determination
Supplemental Report on Findings No. 1 and 3. This of probable cause. Accordingly, the prosecution had to conduct it s own review of
Supplemental Report is dated July 3, 1989. the COA findings. Judging from said findings, we find that the cases were
sufficiently complex, thus justifying the length of time for their resolution. As held
2. After securing machine copies of the voluminous documents supporting by the Sandiganbayan in its Resolution dated March 29, 1995 denying the Motion to
the COA findings, Pros. Margarito Gervacio, Chairman of the Panel of Quash:
Prosecutors, issued the corresponding subpoena directing the
respondents to submit their respective counter-affidavits.
2. Ten charges are involved in these cases and the prosecution, unable to The Court tackles these arguments successively then deals with the questions of
rely on the raw findings of the Commission on Audit in 15 reports duplicity of information and forum shopping.
caused the investigation and examination of thousands of vouchers,
payrolls, and supporting documents considering that no less than the Petitioners invoke the rule that the jurisdiction of a court once it attaches cannot
Chairman of the Commission on Audit, assisted by a team supervisor be ousted by subsequent happenings or events, although of such character which
and 10 team members had to take part in the conduct of a final audit would have prevented jurisdiction from attaching in the first instance. [53] They claim
consisting of evaluation and analysis of the initial findings in the 15 that the filing of the information in the Sandiganbayan was a subsequent happening
raw reports, the cases must have involved complicated legal and or event which cannot oust the RTC of its jurisdiction.
factual issues which do warrant or justify a longer period of time for This rule has no application here for the simple reason that the RTC had no
preliminary investigation. jurisdiction over the case. Jurisdiction never attached to the RTC. When the
xxx information was filed before the RTC, R.A. No. 7975 was already in effect and,
under said law, jurisdiction over the case pertained to the Sandiganbayan.
5. In the TATAD case, the preliminary investigation was resolved close to
three (3) years from the time all the counter-affidavits were submitted Neither can estoppel be successfully invoked. First, jurisdiction is determined
to the Tanodbayan, notwithstanding the fact that very few by law, not by the consent or agreement of the parties or by estoppel. [54] As a
documentary and testimonial evidence were involved. In the above- consequence of this principle, the Court held in Zamora vs. Court of Appeals[55] that:
entitled cases, the preliminary investigation of all ten (10) cases was
terminated in merely two (2) years and four (4) months from the date It follows that as a rule the filing of a complaint with one court which has no
Mayor Binay filed his last pleading, on April 30, 1992. [51] jurisdiction over it does not prevent the plaintiff from filing the same complaint later
with the competent court. The plaintiff is not estopped from doing so simply because
Petitioner claims that the Resolution of the Sandiganbayan ordering his it made a mistake before in the choice of the proper forum. In such a situation, the
suspension pendente lite is unwarranted since the informations charging him were only authority the first court can exercise is to dismiss the case for lack of
not valid. This contention, however, must fail in view of our pronouncement that jurisdiction. This has to be so as a contrary conclusion would allow a party to divest
there was no delay in the resolution of the subject cases in violation of his right to the competent court of its jurisdiction, whether erroneously or even deliberately, in
speedy disposition. Accordingly, the informations in question are valid an petitioners derogation of the law.
suspension pendente lite must be upheld.
Finally, whether or not there is probable cause to warrant the filing of the It is true that the Court has ruled in certain cases[56] that estoppel prevents a
subject cases is a question best left to the discretion of the Ombudsman. Absent any party from questioning the jurisdiction of the court that the party himself
grave abuse of such discretion, the Court will not interfere in the exercise invoked. Estoppel, however, remains the exception rather than the rule, the rule
thereof.[52] Petitioner in this case has failed to establish any such abuse on the part of being that jurisdiction is vested by law.[57] Even in those instances where the Court
the Ombudsman. applied estoppel, the party estopped consistently invoked the jurisdiction of the court
and actively participated in the proceedings, impugning such jurisdiction only when
III faced with an adverse decision. This is not the case here. After discovering that a
similar information had earlier been filed in the RTC, respondents promptly asked
Having ruled that the criminal case against petitioners in G.R. No. 128136 is
the trial court to refer the case to the Sandiganbayan, which motion was followed by
within the exclusive original jurisdiction of the Sandiganbayan, the Court will now
a motion to resolve the previous motion. There was no consistent invocation of the
dispose of the following issues raised by them:
RTCs jurisdiction. There were no further proceedings after the filing of the
(1) The Sandiganbayan was ousted of its jurisdiction by the filing of an information save for the motion to refer the case precisely on the ground of lack of
information alleging the same facts with the Regional Trial Court. jurisdiction, and the motion to resolve the earlier motion. Finally, the trial court had
not rendered any decision, much less one adverse to petitioners.
(2) Respondents are estopped from filing an information before the
Sandiganbayan considering that they had already filed another information alleging Second, petitioners cannot hold respondents in estoppel for the latter are not
the same facts before the Regional Trial Court. themselves party to the criminal action. In a criminal action, the State is the plaintiff,
for the commission of a crime is an offense against the State. Thus, the complaint or
(3) The filing of the information before the Sandiganbayan constitutes double information filed in court is required to be brought in the name of the People of the
jeopardy. Philippines.[58] Even then, the doctrine of estoppel does not apply as against the
people in criminal prosecutions.[59] Violations of the Anti-Graft and Corrupt
Practices Act, like attempted murder,[60] is a public offense. Social and public interest Obviously, respondents got their signals crossed. One set of officials, after
demand the punishment of the offender; hence, criminal actions for public offenses investigating a complaint filed by the Vice-Mayor of San Pascual, Batangas charging
can not be waived or condoned, much less barred by the rules of estoppel.[61] petitioners of overpricing, filed the information for violation of Section 3(e) of R.A.
No. 3019 in the RTC. Another set of officials investigated another complaint from
The filing of the information in the Sandiganbayan did not put petitioners in the Concerned Citizens Group accusing petitioners of, among others, overpricing the
double jeopardy even though they had already pleaded not guilty to the information same project subject of the previous complaint. Finding probable cause, the second
earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC set of officials instituted the criminal action, charging the same offense and alleging
not being a court of competent jurisdiction. There can be no double jeopardy where essentially the same facts as the first, this time in the Sandiganbayan. Later learning
the accused entered a plea in a court that had no jurisdiction.[62] The remedy of of the procedural faux pas, respondents without undue delay asked the RTC to refer
petitioners, therefore, was not to move for the quashal of the information pending in the case to the Sandiganbayan.
the Sandiganbayan on the ground of double jeopardy.[63] Their remedy was to move
for the quashal of the information pending in the RTC on the ground of lack of WHEREFORE, the consolidated petitions are hereby DISMISSED.
jurisdiction.[64]
Bellosillo, Melo, Puno, Vitug, Mendoza, Purisima, Pardo, Buena, Gonzaga-
The contention that the filing of the information in the Sandiganbayan violated Reyes, and Ynares-Santiago, JJ., concur.
the rule against duplicitous informations is patently unmeritorious. That rule Panganiban, J., see separate opinion.
presupposes that there is one complaint or information charging not one offense, but Davide, Jr., C.J., joins J. Panganiban in his separate opinion.
two or more offenses. Thus, Rule 110 of the Rules of Court states: Quisumbing, J., concurs with J. Panganibans separate opinion.

Sec. 13. Duplicity of offense. - A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribed a single Republic of the Philippines
punishment for various offenses. SUPREME COURT
Manila
Non-compliance with this rule is a ground for quashing the duplicitous complaint or
information under Rule 117: EN BANC

Sec. 3. Grounds. - The accused may move to quash the complaint or information on G.R. No. 207257 February 3, 2015
any of the following grounds:
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE
xxx DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), Petitioner,
(e) That more than one offense is charged except in those cases in which existing vs.
laws prescribe a single punishment for various offenses; HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE
xxx G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO,
HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON.
Here, petitioners are faced not with one information charging more than one SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
offense but with more than one information charging one offense. BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
The Court does not find the prosecution guilty of forum-shopping. Broadly
HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
speaking, forum shopping exists when, as a result of an adverse opinion in one
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
another, or when he institutes two or more actions or proceedings grounded on the
REYES, Respondents.
same cause, on the gamble that one or the other court would make a favorable
disposition.[65]We discern no intent on the part of the State, in filing two informations
in two different courts, to gamble that one or the other court would make a favorable x-----------------------x
disposition.
G.R. No. 207276 REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE
REDONDO PENINSULA ENERGY, INC., Petitioner, GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELHPERALTA,
vs. ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q.
G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON JESUS P.
HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, ENVIRONMENT AND NATURAL RESOURCES AND REDONDO
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO PENINSULA ENERGY, INC.,Respondents.
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. DECISION
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS DEL CASTILLO, J.:
REYES, RAMON JESUS P. PAJE, in his capacity as SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
Before this Court are consolidated Petitions for Review on
AND SUBIC BAY METROPOLITAN AUTHORITY, Respondents.
Certiorari1 assailing the Decision2 dated January 30, 2013 and the
Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP
x-----------------------x No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P.
Paje, et al."
G.R. No. 207282
Factual Antecedents
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government
RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO agency organized and established under Republic Act No. (RA) 7227,4 and
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of
HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, Understanding (MOU) expressing their intention to build a power plant in
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO Subic Bay which would supply reliable and affordable power to Subic Bay
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS Industrial Park (SBIP).5
HERMOSA, RODOLFO SAMBAJON, ET AL., Petitioners,
vs.
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE
undertook to build and operatea coal-fired power plant.6 In the said MOU,
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC
TCC identified 20 hectares of land at SitioNaglatore, Mt. Redondo, Subic Bay
BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA
Freeport Zone (SBFZ) as the suitable area for the project and another site of
ENERGY, INC., Respondents.
approximately 10 hectares tobe used as an ash pond.7 TCC intends to lease
the property from SBMA for a term of 50 years with rent fixed at$3.50 per
x-----------------------x square meter, payable in 10 equal 5-year installments.8

G.R. No. 207366 On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental
Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner, Taiwan Cogeneration International Corporation (TCIC), a subsidiary of
vs. TCC,9 for the construction, installation,and operation of 2x150-MW
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, HON. Naglatore.10
ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS
On June 6, 2008, TCC assigned all its rights and interests under the MOU On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued
dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy), 11 a Resolution No. 2011-149, opposing the establishment of a coal-fired thermal
corporation duly organized and existing under the laws of the Philippines with power plant at SitioNaglatore, Brgy. Cawag, Subic, Zambales.26
the primary purpose of building, owning, and operating powerplants in the
Philippines, among others.12Accordingly, an Addendum to the said MOU was On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued
executed by SBMA and RP Energy.13 Resolution No. 12, Series of 2011, expressing its strong objection to the coal-
fired power plant as an energy source.27
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an
Environmental Impact Statement (EIS) for the proposed coal-fired power On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon.
plant and to assist RP Energy in applying for the issuance ofan ECC from the Rafael V. Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista,
Department of Environment and Natural Resources (DENR).14 On August 27, Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano, Hon. James de los Reyes,
2008, the Sangguniang Panglungsodof Olongapo City issued Resolution No. Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida
131, Series of 2008, expressing the city government’s objection to the coal- Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio
fired power plant as an energy source and urging the proponent to consider Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo
safer alternative sources ofenergy for Subic Bay.15 Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D.
Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John
On December 22, 2008, the DENR, through former Secretary Jose L. Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ of
Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-fired power Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his
plant.16 capacity as Secretary of the DENR.28

Sometime thereafter, RP Energy decided to include additional components in On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of
its proposed coal-fired power plant. Due to the changes in the project design, Kalikasan; and (2) refer the case to the CA for hearing and reception of
which involved the inclusion of a barge wharf, seawater intake breakwater, evidence and rendition of judgment.29 While the case was pending, RP
subsea discharge pipeline, raw water collection system, drainage channel Energy applied for another amendment to its ECC (third amendment) and
improvement, and a 230kV double-circuit transmission line,17 RP Energy submitted another EPRMP to the DENR-EMB, proposing the construction
requested the DENR Environmental Management Bureau(DENR-EMB) to and operation of a 2x300-MW coal-fired power plant.30
amend its ECC.18 In support of its request, RP Energy submitted to the
DENR-EMBan Environmental Performance Report and Management Plan On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as
(EPRMP), which was prepared by GHD.19 CA-G.R. SP No. 00015 and raffled to the Fifteenth Division of the CA.31 In
the Petition, the Casiño Group alleged, among others, that the power plant
On June 8, 2010, RP Energy and SBMA entered into a Lease and project would cause grave environmental damage;32 that it would adversely
Development Agreement (LDA) over a 380,004.456-square meter parcel of affect the health of the residents of the municipalities of Subic,Zambales,
land to be used for building and operating the coal-fired power plant.20 Morong, Hermosa, and the City of Olongapo;33 that the ECC was issued and
the LDA entered into without the prior approval of the concerned
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) sanggunians as required under Sections 26 and 27 of the Local Government
allowing the inclusion ofadditional components, among others.21 Code (LGC);34 that the LDA was entered into without securing a prior
certification from the National Commission on Indigenous Peoples (NCIP) as
required under Section 59 of RA8371 or the Indigenous Peoples’ Rights Act
Several months later, RP Energy again requested the DENR-EMB to amend
the ECC.22 Instead of constructing a 2x150-MW coal-fired power plant, as of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No.
originally planned, it now sought toconstruct a 1x300-MWcoal-fired power 2003-30 (DAO 2003-30) which allowsamendments of ECCs is ultra
viresbecause the DENR has no authority to decide on requests for
plant.23 In support of its request, RP Energy submitted a Project Description
amendments of previously issued ECCs in the absence of a new EIS;36 and
Report (PDR) to the DENR-EMB.24
that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP
Energy’s ECC are null and void.37
On May 26, 2011, the DENR-EMB granted the request and further amended
the ECC (second amendment).25
On October 29, 2012, the CA conducted a preliminary conference wherein 3. Whether x x x RP Energycomplied with all the
the parties, with their respective counsels, appeared except for Hon. Teodoro procedures/requirements for the issuance of the DENR ECC and its
A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente amendment;
G. Bautista, Mario Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and the
SBMA.38 The matters taken up during the preliminary conference were 3.1 Whether x x x a Certificate of Non-Overlap from the
embodied in the CA’s Resolution dated November 5, 2012, to wit: National Commission on Indigenous Peoples is applicable in
the instant case;
I. ISSUES
4. Whether x x x the LGU’s approval under Sections 26 and 27 of the
A. Petitioners (Casiño Group) Local Government Code is necessaryfor the issuance of the DENR
ECC and its amendments, and what constitutes LGU approval;
1. Whether x x x the DENR Environmental Compliance Certificate
(‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired 5. Whether x x x there is a threatened or actual violation of
Thermal Power Plant Project (‘Power Plant,’ x x x ) and its environmental laws to justify the Petition;
amendment to 1x300 MW Power Plant, and the Lease and
Development Agreement between SBMA and RP Energy complied 5.1 Whether x x x the approved 1x300 MW Power Plant
with the Certification Precondition as required under Section 59 of complied with the accepted legal standards on thermal
Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 pollution of coastal waters, air pollution, water pollution, and
(‘IPRA Law,’ x x x); acid deposits on aquatic and terrestrial ecosystems; and

2. Whether x x x RP Energy can proceed with the construction and 6. Whether x x x the instant Petition should be dismissed for failure
operation of the 1x300 MW Power Plant without prior consultation to comply with the requirements of properverification and certification
with and approval of the concerned local government units (‘LGUs,’ x of nonforum shopping with respect to some petitioners.
x x ), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the
Local Government Code;
C. Respondent DENR Secretary Paje

3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003- 1. Whether x x x the issuance of the DENR ECC and its amendment
30 (‘DAO No. 2003-30,’ x x x ) providing for the amendment of an
in favor of RP Energy requires compliance with Section 59 of the
ECC is null and void for being ultra vires; and
IPRA Law, as well as Sections 26 and 27 of the Local Government
Code;
4. Whether x x x the amendment of RPEnergy’s ECC under Section
8.3 of DAO No. 2003-30 is null and void. 2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally
attacked in this proceeding; and
B. Respondent RP Energy
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally
attacked;
II. ADMISSIONS/DENIALS

1.1 Whether x x x the same is valid until annulled;


Petitioners, through Atty. Ridon, admittedall the allegations in RP Energy’s
Verified Return, except the following:
2. Whether x x x petitioners exhausted their administrative remedies
with respect to the amended ECC for the 1x300 MW Power Plant;
1. paragraphs 1.4 to 1.7;

2.1 Whether x x x the instant Petition is proper; 2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37. The DENR, however, presented no evidence.50

Petitioners made no specific denial withrespect to the allegations of DENR Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was
Secretary Paje’s Verified Return. x x x issued in connection with RP Energy’s application for the 2x300-MW coal-
fired power plant.51
Respondent RP Energy proposed the following stipulations, which were all
admitted by petitioners, through Atty. Ridon, viz: On November 15, 2012, the DENR-EMB granted RP Energy’s application for
the third amendment to its ECC, approving the construction and operation of
1. The 1x300 MW Power Plant is not yet operational; a 2x300-MW coal-fired power plant, among others.52

2. At present, there is no environmental damage; Ruling of the Court of Appeals

3. The 1x300 MW Power Plant project is situated within the Subic On January 30, 2013, the CA rendereda Decision denying the privilege of the
Special Economic Zone; and writ of kalikasanand the application for an environment protection order due
to the failure of the Casiño Group to prove that its constitutional right to a
4. Apart from the instant case, petitioners have not challenged the balanced and healthful ecology was violated or threatened.53 The CA
validity of Section 8.3 of DAO No. 2003-30. likewise found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said
that the provision was not ultra vires,as the express power of the Secretary of
the DENR, the Director and Regional Directors of the EMB to issue an ECC
Public respondent DENR Secretary Paje did not propose any matter for impliedly includes the incidental power to amend the same.54 In any case, the
stipulation.39 CA ruled that the validity of the said section could not becollaterally attacked
in a petition for a writ of kalikasan.55
Thereafter, trial ensued.
Nonetheless, the CA resolved to invalidate the ECC dated December 22,
The Casiño Group presented three witnesses, namely: (1) Raymond V. 2008 for non-compliance with Section 59 of the IPRA Law56 and Sections 26
Palatino, a two-term representativeof the KabataanPartylist in the House of and 27 of the LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz),
Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales- Director of RP Energy, to affix his signature in the Sworn Statement of Full
Olongapo City Civil Society Network,a director of the PREDA41 Foundation, Responsibility, which is an integral part of the ECC.58 Also declared invalid
and a member of the Zambales Chapter of the Kaya NatinMovement and the were the ECC first amendment dated July 8, 2010 and the ECC second
Zambales Chapter of the People Power Volunteers for Reform;42 and (3) amendment dated May 26, 2011 in view of the failure of RP Energy to
Ramon Lacbain, the ViceGovernor of the Province of Zambales.43 comply with the restrictions set forth in the ECC, which specifically require
that "any expansion of the project beyond the project description or any
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. change in the activity x x x shall be subject to a new Environmental Impact
Mercado), an employee of GHD and the Project Directorof ongoing projects Assessment."59 However, as to the ECC third amendment dated November
for RP Energy regarding the proposed power plant project;44 (2) Juha Sarkki 15, 2012, the CA decided not to rule on its validity since it was not raised as
(Engr. Sarkki), a Master of Science degree holder inChemical an issue during the preliminary conference.60
Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of Science
Major in Mechanical Engineering from Worcester Polytechnic Institute; 46 (4) The CA also invalidated the LDA entered into by SBMA and RP Energy as it
Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer, was issued without the prior consultation and approval of all the sanggunians
Sanitary Engineer, and Environmental Planner in the Philippines;47 and (5) concerned as required under Sections 26 and 27 of the LGC,61 and in
David C. Evangelista (Mr. Evangelista), a Business Development Analyst violation of Section 59, Chapter VIII ofthe IPRA Law, which enjoins all
working for RP Energy.48 departments and other governmental agencies from granting any lease
without a prior certification that the area affected does not overlap with any
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. ancestral domain.62 The CA noted that no CNO was secured from the NCIP
Rodriguez (Atty. Rodriguez).49 prior to the execution of the LDA,63 and that the CNO dated October 31, 2012
was secured during the pendency of the case and was issued in connection case under the IPRA Law but a Petition for a Writ of Kalikasan, which is
with RP Energy’s application for a 2x300-MW coalfired power plant.64 available to all natural or juridical persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened to be violated. 73 As
Thus, the CA disposed of the case in this wise: to RP Energy’s belated submission of a signed Statement of Accountability,
the CA gaveno weight and credenceto it as the belated submission of such
document, long after the presentation of evidence of the parties had been
WHEREFORE, premises considered, judgment is hereby rendered
terminated, is not in accord with the rules of fair play.74 Neither was the CA
DENYING the privilege of the writ of kalikasan and the application for an
environmental protection order. The prayer to declare the nullity of Section swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a
8.3 of the DENR Administrative Order No. 2003-30 for being ultra vires is mere formal defect, which does not affect the validity of the entire
document.75 The dispositive portion of the Resolution reads:
DENIED; and the following are all declared INVALID:
WHEREFORE,premises considered, respondents Subic Bay Metropolitan
Authority’s Motion for Reconsideration dated 18 February 2013, Department
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804- of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s
011-4021) dated 22 December 2008 issued in favor of respondent Motion for Reconsideration dated 19 February 2013, and Redondo Peninsula
Redondo Peninsula Energy, Inc. by former Secretary Jose L. Energy, Inc.’s Motion for Partial Reconsideration dated 22 February 2013, as
Atienza, Jr. of the Department of Environment and Natural well as petitioners’ OmnibusMotions for Clarification and Reconsideration
Resources; dated 25 February 2013,are all DENIED for lack of merit.

2. The ECC first amendment dated 08 July 2010 and ECC second SO ORDERED.76
amendment dated 26 May 2011, both issued in favor ofrespondent
Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel
Unsatisfied, the parties appealed to this Court.
T. Cunaof the Department of Environment and Natural Resources,
Environmental Management Bureau; and
The Casiño Group’s arguments
3. The Lease and Development Agreement dated 08 June 2010
entered into by respondents Subic Bay Metropolitan Authority and The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan
Redondo Peninsula Energy, Inc. involving a parcel of land consisting as it was able to prove that the operation of the power plant would cause
of ₱380,004.456 square meters. environmental damage and pollution, and that thiswould adversely affect the
residents of the provinces of Bataan and Zambales, particularly the
municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites
SO ORDERED.65
as basis RP Energy’s EIS, which allegedly admits that acid rain may occur in
the combustion of coal;77 that the incidence of asthma attacks among
The DENR and SBMA separately moved for reconsideration.66 RP Energy residents in the vicinity of the project site may increasedue to exposure to
filed a Motion for Partial Reconsideration,67 attaching thereto a signed suspended particles from plant operations;78 and that increased sulfur oxides
Statement of Accountability.68 The Casiño Group, on the other hand, filed (SOx) and nitrogen oxides (NOx) emissions may occur during plant
Omnibus Motions for Clarification and Reconsideration.69 operations.79 It also claims that when the SBMA conducted Social
Acceptability Policy Consultations with different stakeholders on the
On May 22, 2013, the CAissued a Resolution70 denying the aforesaid proposed power plant, the results indicated that the overall persuasion of the
motions for lack of merit. The CA opined that the reliefs it granted in its participants was a clear aversion to the project due to environmental, health,
Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for economic and socio-cultural concerns.80 Finally, it contends that the ECC
Environmental Cases as the reliefs enumerated therein are broad, third amendment should also be nullified for failure to comply with the
comprehensive, and nonexclusive.71 In fact, paragraph (e) of the procedures and requirements for the issuance of the ECC.81
saidprovision allows the granting of "such other reliefs" in consonance with
the objective, purpose, and intent of the Rules.72 SBMA’s contention that the The DENR’s arguments
stoppage of a project for non-compliance with Section 59 of the IPRA Law
may only be done by the indigenous cultural communities or indigenous
peoples was also brushed aside by the CA as the Casiño Group did not file a
The DENR imputes error on the CAin invalidating the ECC and its RP Energy questions the proprietyof the reliefs granted by the CA
amendments, arguing that the determination of the validity of the ECC as considering that it did not issue a writ of kalikasanin favor of the Casiño
well as its amendments is beyond the scope of a Petition for a Writ of Group.98 RP Energy is of the view that unless a writ of kalikasanis issued, the
Kalikasan.82 And even if it is within the scope, there is no reason to invalidate CA has no power to grant the reliefs prayed for in the Petition.99 And even if it
the ECC and its amendments as these were issued in accordance with DAO does, the reliefs are limited to those enumerated in Section 15, Rule 7 of the
No. 2003-30.83 The DENR also insists that contrary to the view of the CA, a Rules of Procedure for Environmental Cases and that the phrase "such other
new EIS was no longer necessary since the first EIS was still within the reliefs" in paragraph (e) should be limited only to those of the same class or
validity period when the first amendment was requested, and that this is general nature as the four other reliefs enumerated.100 As to the validity of
precisely the reason RP Energy was only required to submit an EPRMP in the LDA, the ECC and its amendments, the arguments of RP Energy are
support of its application for the first amendment.84 As to the second basically the same arguments interposed by SBMA and the DENR. RP
amendment, the DENR-EMB only required RP Energy to submit documents Energy maintains that the ECC and its amendments were obtained in
to support the proposed revision considering that the change in configuration compliance with the DENR rules and regulations;101 that a CNO is not
of the power plant project, from 2x150MW to 1x300MW, was not necessary in the execution of anLDA and in the issuance of the ECC and its
substantial.85 Furthermore, the DENR argues that no permits, licenses, amendments;102 and that prior approval of the local governments, which may
and/or clearances from other government agencies are required in the be affected by the project, are not required because under RA 7227, the
processing and approval of the ECC.86 Thus, non-compliance with Sections decision of the SBMA shall prevail in matters affecting the Subic Special
26 and 27 of the LGC as well as Section 59 ofthe IPRA Law is not a ground Economic Zone (SSEZ), except in matters involving defense and
to invalidate the ECC and its amendments.87 The DENR further posits that security.103 RP Energy also raises the issue of non-exhaustion of
the ECC is not a concession, permit, or license but is a document certifying administrative remedies on the part of the Casiño Group.104 Preliminaries
that the proponent has complied with all the requirements of the EIS System
and has committed to implement the approved Environmental Management This case affords us an opportunity to expound on the nature and scope of
Plan.88 The DENR invokes substantial justice so that the belatedly submitted the writ of kalikasan. It presents some interesting questions about law and
certified true copy of the ECC containing the signature of Mr. Aboitiz on the justice in the context of environmental cases, which we will tackle in the main
Statement of Accountability may be accepted and accorded weight and body of this Decision.
credence.89
But we shall first address some preliminary matters, in view of the manner by
SBMA’s arguments which the appellate court disposed of this case.

For its part, SBMA asserts that since the CA did not issue a Writ of The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of
Kalikasan, it should not have invalidated the LDA and that in doing so, the Procedure for Environmental Cases,106 was issued by the Court pursuant to
CA acted beyond its powers.90 SBMA likewise puts in issue the legal capacity its power to promulgate rules for the protection and enforcement of
of the Casiño Group to impugn the validity of the LDA91 and its failure to constitutional rights,107 in particular, the individual’s rightto a balanced and
exhaust administrative remedies.92 In any case, SBMA contends that there is healthful ecology.108 Section 1 of Rule 7 provides:
no legal basis to invalidate the LDA as prior consultation under Sections 26
and 27 of the LGC is not required in this case considering that the area is Section 1. Nature of the writ.- The writ is a remedy available to a natural or
within the SBFZ.93 Under RA 7227, it is the SBMA which has exclusive juridical person, entity authorized by law, people’s organization,
jurisdiction over projects and leases within the SBFZ and that in case of
nongovernmental organization, or any public interest group accredited by or
conflict between the LGC and RA 7227, it is the latter, a special law, which
registered with any government agency, on behalf of persons whose
must prevail.94 Moreover, the lack of prior certification from the NCIP is
constitutional right to a balanced and healthful ecology is violated, or
alsonot a ground to invalidate a contract.95 If at all, the only effect of non-
threatened with violation by an unlawful act or omission of a public official or
compliance with the said requirement under Section 59 of the IPRA Law is employee, or private individual or entity, involving environmental damage of
the stoppage or suspension of the project.96 Besides, the subsequent such magnitude as to prejudice the life, health or property of inhabitants in
issuance of a CNO has cured any legal defect found in the LDA. 97
two or more cities or provinces.

RP Energy’s arguments
The writ is categorized as a special civil action and was, thus, conceptualized (c) Directing the respondent public official, government agency,
as an extraordinary remedy,which aims to provide judicial relief from private person or entity to monitor strict compliance with the decision
threatened or actual violation/s of the constitutional right to a balanced and and orders of the court;
healthful ecology of a magnitude or degree of damage that transcends
political and territorial boundaries.109 It is intended "to provide a (d) Directing the respondent public official, government agency, or
strongerdefense for environmental rights through judicial efforts where private person or entity to make periodic reports on the execution of
institutional arrangements of enforcement, implementation and legislation the final judgment; and
have fallen short"110 and seeks "to address the potentially exponential nature
of large-scale ecological threats."111 (e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
Under Section 1 of Rule 7, the following requisites must be present to avail of rehabilitation or restoration of the environment, except the award of
this extraordinary remedy: (1) there is an actual or threatened violation of the damages to individual petitioners.
constitutional right to a balanced and healthful ecology; (2) the actual or
threatened violation arises from an unlawful act or omission of a public It must be noted, however,that the above enumerated reliefs are non-
official or employee, or private individual or entity; and (3) the actual or
exhaustive. The reliefs that may be granted under the writ are broad,
threatened violation involves or will lead to an environmental damage of such
comprehensive and non-exclusive.112
magnitude as to prejudice the life, health or property ofinhabitants in two or
more cities or provinces.
Prescinding from the above, the DENR, SBMA and RP Energy are one in
arguing that the reliefs granted by the appellate court, i.e.invalidating the
Expectedly, the Rules do not definethe exact nature or degree of
ECC and its amendments, are improper because it had deniedthe Petition for
environmental damage but only that it must be sufficientlygrave, in terms of
Writ of Kalikasanupon a finding that the Casiño Group failed to prove the
the territorial scope of such damage, so as tocall for the grant ofthis
alleged environmental damage, actual or threatened, contemplated under the
extraordinary remedy. The gravity ofenvironmental damage sufficient to grant
Rules.
the writ is, thus, to be decided on a case-to-case basis.
Ordinarily, no reliefs could and should be granted. But the question may be
If the petitioner successfully proves the foregoing requisites, the court shall
asked, could not the appellate court have granted the Petition for Writ of
render judgment granting the privilege of the writ of kalikasan. Otherwise, the
Kalikasanon the ground of the invalidity of the ECC for failure to comply with
petition shall be denied. If the petition is granted, the court may grant the certain laws and rules?
reliefs provided for under Section 15of Rule 7, to wit: Section 15. Judgment.-
Within sixty (60) daysfrom the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of This question is the starting point for setting up the framework of analysis
kalikasan. which should govern writ of kalikasan cases.

The reliefs that may be granted under the writ are the following: In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations,
relative to the actual or threatened violation of the constitutional right to a
balanced and healthful ecology, may be grouped into two.
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation
of environmental laws resulting in environmental destruction or The first set of allegations deals withthe actual environmental damage that
damage; will occur if the power plant project isimplemented. The Casiño Group claims
that the construction and operation of the power plant will result in (1) thermal
pollution of coastal waters, (2) air pollution due to dust and combustion
(b) Directing the respondent public official, government agency,
gases, (3) water pollution from toxic coal combustion waste, and (4) acid
private person or entity to protect, preserve, rehabilitate or restore
deposition in aquatic and terrestrial ecosystems, which will adversely affect
the environment; the residents of the Provinces of Bataan and Zambales, particularly the
Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.
The second set of allegations deals with the failureto comply with certain of kalikasan, is a case where there are serious and substantial
laws and rules governing or relating to the issuance ofan ECC and misrepresentations or fraud in the application for the ECC, which, if not
amendments thereto. The Casiño Group claims that the ECC was issued in immediately nullified, would cause actual negative environmental impacts of
violation of (1) the DENR rules on the issuance and amendment of an ECC, the magnitude contemplated under the Rules, because the government
particularly, DAO 2003-30 and the Revised Procedural Manual for DAO agenciesand LGUs, with the final authority to implement the project, may
2003-30 (Revised Manual), (2) Section 59 of the IPRA Law,and (3) Sections subsequently rely on such substantially defective or fraudulent ECC in
26 and 27 of the LGC. In addition, it claims that the LDA entered into approving the implementation of the project.
between SBMA and RP Energy violated Section 59 of the IPRA Law.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is
As to the first set of allegations, involving actual damage to the environment, not sufficient to merely allege such defects or irregularities, but to show a
it is not difficult to discern that, if they are proven, then the Petition for Writ of causal link or reasonable connection with the environmental damage of the
Kalikasan could conceivably be granted. magnitude contemplated under the Rules. In the case at bar, no such causal
link or reasonable connection was shown or even attempted relative to the
However, as to the second set of allegations, a nuanced approach is aforesaid second set of allegations. It is a mere listing of the perceived
warranted. The power of the courts to nullify an ECC existed even prior to the defects or irregularities in the issuance of the ECC. This would havebeen
promulgation of the Rules on the Writ of Kalikasanfor judicial review of the sufficient reason to disallow the resolution of such issues in a writ of
acts of administrative agencies or bodies has long been kalikasan case.
recognized114 subject, of course, to the doctrine of exhaustion of
administrative remedies.115 However, inasmuch as this is the first time that we lay down this principle, we
have liberally examined the alleged defects or irregularities in the issuance of
But the issue presented before us is nota simple case of reviewing the acts the ECC and find that there is only one group of allegations, relative to the
of an administrative agency, the DENR, which issued the ECC and its ECC, that can be reasonably connected to anenvironmental damageof the
amendments. The challenge to the validity ofthe ECC was raised in the magnitude contemplated under the Rules. This is withrespect to the
context of a writ of kalikasancase. The question then is, can the validity of an allegation that there was no environmental impact assessment relative to the
ECC be challenged viaa writ of kalikasan? first and second amendments to the subject ECC. If this were true, then the
implementation of the project can conceivably actually violate or threaten to
violate the right to a healthful and balanced ecology of the inhabitants near
We answer in the affirmative subject to certain qualifications.
the vicinity of the power plant. Thus, the resolution of such an issue could
conceivably be resolved in a writ of kalikasan case provided that the case
As earlier noted, the writ of kalikasanis principally predicated on an actual or does not violate, or is anexception to the doctrine of exhaustion of
threatened violation of the constitutional right to a balanced and healthful administrative remedies and primary jurisdiction.116
ecology, which involves environmental damage of a magnitude that
transcends political and territorial boundaries. A party, therefore, who invokes
As to the claims that the issuance of the ECC violated the IPRA Law and
the writ based on alleged defects or irregularities in the issuance of an ECC
must not only allege and prove such defects or irregularities, but mustalso LGC and that the LDA, likewise, violated the IPRA Law, we find the same not
provide a causal link or, at least, a reasonable connection between the to be within the coverage of the writ of kalikasanbecause, assuming there
was non-compliance therewith, no reasonable connection can be made to an
defects or irregularities in the issuance of an ECC and the actual or
actual or threatened violation of the right to a balanced and healthful ecology
threatened violation of the constitutional right to a balanced and healthful
of the magnitude contemplated under the Rules.
ecology of the magnitude contemplated under the Rules. Otherwise, the
petition should be dismissed outright and the action re-filed before the proper
forum with due regard to the doctrine of exhaustion of administrative To elaborate, the alleged lackof approval of the concerned sanggunians over
remedies. This must be so ifwe are to preserve the noble and laudable the subject project would not lead toor is not reasonably connected with
purposes of the writ against those who seek to abuse it. environmental damage but, rather, it is an affront to the local autonomy of
LGUs. Similarly, the alleged lack of a certificate precondition that the project
site does not overlap with an ancestral domain would not result inor is not
An example of a defect or an irregularity in the issuance of an ECC, which
could conceivably warrant the granting of the extraordinary remedy of the writ reasonably connected with environmental damage but, rather, it is an
impairment of the right of Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) to their ancestral domains. These alleged violationscould 2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel
be the subject of appropriate remedies before the proper administrative Aboitiz, as representative of RP Energy, in the Statement of
bodies (like the NCIP) or a separate action to compel compliance before the Accountability of the ECC.
courts, as the case may be. However, the writ of kalikasan would not be the
appropriate remedy to address and resolve such issues. 3. Whether the first and second amendments to the ECC are invalid
for failure to undergo a new environmental impact assessment (EIA)
Be that as it may, we shall resolve both the issues proper in a writ of because of the utilization of inappropriate EIA documents.
kalikasan case and those which are not, commingled as it were here,
because of the exceptional character of this case. We take judicial notice of 4. Whether the Certificate of Non-Overlap, under Section 59 of the
the looming power crisis that our nation faces. Thus, the resolution of all the IPRA Law, is a precondition to the issuanceof an ECC and the lack
issues in this case is of utmost urgency and necessity in order to finally of its prior issuance rendered the ECC invalid.
determine the fate of the project center of this controversy. If we were to
resolve only the issues proper in a writ of kalikasancase and dismiss those 5. Whether the Certificate of Non-Overlap, under Section 59 of the
not proper therefor, that will leave such unresolved issues open to another IPRA Law, is a precondition to the consummation of the Lease and
round of protracted litigation. In any case, we find the records sufficient to
Development Agreement (LDA) between SBMA and RPEnergy and
resolve all the issues presented herein. We also rule that, due to the extreme
the lack of its prior issuance rendered the LDA invalid.
urgency of the matter at hand, the present case is an exception to the
doctrine of exhaustion of administrative remedies.117 As we have often ruled,
in exceptional cases, we can suspend the rules of procedure in order to 6. Whether compliance with Section 27, in relation to Section 26, of
achieve substantial justice, and to address urgent and paramount State the LGC (i.e., approval of the concerned sanggunianrequirement) is
interests vital to the life of our nation. necessary prior to the implementation of the power plant project.

Issues 7. Whether the validity of the third amendment to the ECC can be
resolved in this case.
In view of the foregoing, we shall resolve the following issues:
Ruling
1. Whether the Casiño Group was able to prove that the construction
and operation of the power plant will cause grave environmental The parties to this case appealed from the decision of the appellate court
damage. pursuant to Section 16, Rule7 of the Rules of Procedure for Environmental
Cases, viz:
1.1. The alleged thermal pollution of coastal waters, air
pollution due to dust and combustion gases, water pollution Section 16. Appeal.- Within fifteen (15) days from the date of notice of the
from toxic coal combustion waste, and acid deposition to adverse judgment or denialof motion for reconsideration, any party may
aquatic and terrestrial ecosystems that will becaused by the appeal to the Supreme Court under Rule45 of the Rules of Court. The appeal
project. may raise questions of fact. (Emphasis supplied)

1.2. The alleged negative environmental assessment of the It is worth noting that the Rules on the Writ of Kalikasan allow the parties to
project by experts in a report generated during the social raise, on appeal, questions of fact— and, thus, constitutes an exception to
acceptability consultations. Rule 45 of the Rules of Court— because ofthe extraordinary nature of the
circumstances surrounding the issuance of a writ of kalikasan.118 Thus, we
shall review both questions of law and fact in resolving the issues presented
1.3. The alleged admissions of grave environmental damage
in this case.
in the EIS itself of the project.
We now rule on the above-mentioned issues in detail.
I. a flood-prone area and is near three prominent seismic faults as
identified by Philippine Institute of Volcanology and Seismology. The
Whether the Casiño Group was able to prove that the construction and construction of an ash pond in an area susceptible to flooding and
operation of the power plant will cause grave environmental damage. earthquake also undermines SBMA’s duty to prioritize the
preservation of the water quality in Subic Bay.
The alleged thermal pollution of coastal
waters, air pollution due to dust and 4. Acid deposition in aquatic and terrestrial ecosystems. The power
combustion gases, water pollution from plant will release 1,888 tons of nitrous oxides and 886 tons of sulfur
toxic coal combustion waste, and acid dioxide per year. These oxides are responsible for acid deposition.
deposition in aquatic and terrestrial Acid deposition directly impacts aquatic ecosystems. It is toxic to fish
ecosystems that willbe caused by the and other aquatic animals. It will also damage the forests near Subic
project. Bay as well as the wildlife therein. This will threaten the stability of
the biological diversity of the Subic Bay Freeport which was declared
As previously noted, the Casiño Group alleged that the construction and as one of the ten priority sites among the protected areas in the
Philippines and the Subic Watershed and Forest Reserve. This will
operation of the power plant shall adversely affect the residents of the
also have an adverse effect on tourism.119
Provinces of Bataan and Zambales, particularly, the Municipalities of Subic,
Morong and Hermosa, and the City of Olongapo, as well as the sensitive
ecological balance of the area. Their claims of ecological damage may be In its January 30, 2013 Decision, the appellate court ruled that the Casiño
summarized as follows: Group failed to prove the above allegations.

1. Thermal pollution of coastal waters. Due to the discharge of We agree with the appellate court.
heated water from the operation of the plant, they claim that the
temperature of the affected bodies of water will rise significantly. This Indeed, the three witnesses presented by the Casiño Group are not experts
will have adverse effects on aquatic organisms. It will also cause the on the CFB technology or on environmental matters. These witnesses even
depletion of oxygen in the water. RP Energy claims that there will admitted on cross-examination that theyare not competent to testify on the
beno more than a 3°C increase in water temperature but the Casiño environmental impact of the subject project. What is wanting in their
Group claims that a 1°C to 2°C rise can already affect the testimonies is their technical knowledgeof the project design/implementation
metabolism and other biological functions of aquatic organisms such or some other aspects of the project, even those not requiring
asmortality rate and reproduction. expertknowledge, vis-à-vis the significant negative environmental impacts
which the Casiño Group alleged will occur. Clearly, the Casiño Group failed
2. Air pollution due to dust and combustion gases. While the Casiño to carry the onusof proving the alleged significant negative environmental
Group admits that Circulating Fluidized Bed (CFB) Coal technology, impacts of the project. In comparison, RP Energy presented several experts
which will be used in the power plant, is a clean technology because to refute the allegations of the Casiño Group.
it reduces the emission of toxic gases, it claims that volatile organic
compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) As aptly and extensively discussed by the appellate court:
will also be emitted under the CFB. PAHs are categorized as
pollutants with carcinogenic and mutagenic characteristics. Carbon Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and
monoxide, a poisonous gas, and nitrous oxide, a lethal global Lacbain, all of whom are not experts on the CFB technology or even on
warming gas, will also be produced. environmental matters. Petitioners did not present any witness from Morong
or Hermosa. Palatino, a former freelance writer and now a Congressman
3. Water pollution from toxic coal combustion waste. The waste from representing the Kabataan Partylist, with a degree of BS Education major in
coal combustion or the residues from burning pose serious Social Studies, admitted that he is not a technical expert. Hermoso, a
environmental risk because they are toxic and may cause cancer Director of the PREDA foundation which is allegedly involved on
and birth defects. Their release to nearby bodies of water will be a environmental concerns, and a member of Greenpeace, is not an expert on
threatto the marine ecosystem of Subic Bay. The project is located in the matter subject of this case. He is a graduate of BS Sociology and a
practicing business director involved in social development and social Indeed, under the rules of evidence, a witness can testify only to those facts
welfare services. Lacbain, incumbent ViceGovernor of the Province of which the witness knows of his orher personal knowledge, that is, which are
Zambales, anaccounting graduate with a Master in Public Administration, derived from the witness’ own perception. Concomitantly, a witness may not
was a former BancoFilipino teller, entertainment manager, disco manager, testify on matters which he or she merely learned from others either because
marketing manager and college instructor, and is also not an expert on the said witness was told or read or heard those matters. Such testimony is
CFB technology. Lacbain also admitted that he is neither a scientist nor an considered hearsay and may not be received as proof of the truth of what the
expert on matters of the environment. witness has learned. This is known as the hearsay rule. Hearsay is notlimited
to oral testimony or statements; the general rule that excludes hearsay as
Petitioners cited various scientific studies or articles and websites culled from evidence applies to written, as well as oral statements. There are several
the internet. However, the said scientific studiesand articles including the exceptions to the hearsay rule under the Rules of Court, among which are
alleged Key Observations and Recommendations on the EIS of the learned treatises under Section 46 of Rule 130, viz:
Proposed RPE Project by Rex Victor O. Cruz (Exhibit "DDDDD") attached to
the Petition, were not testified to by an expert witness, and are basically "SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on
hearsay in nature and cannot be given probative weight. The article a subjectof history, law, science, or art is admissible as tending to prove the
purportedly written by Rex Victor O. Cruz was not even signed by the said truth of a matter stated therein if the court takes judicial notice, or a witness
author, which fact was confirmed by Palatino. Petitioners’ witness, Lacbain, expert in the subject testifies, that the writer of the statement in the treatise,
admitted that he did not personally conduct any study on the environmental periodical or pamphlet is recognized in his profession or calling as expert in
or health effects of a coal-firedpower plant, but only attended seminars and the subject."
conferences pertaining to climate change; and that the scientific studies
mentioned in the penultimate whereas clause of Resolution No. 2011-149 The alleged scientific studies mentioned in the Petition cannot be classified
(Exhibit "AAAAA") of the Sangguniang Panlalawiganof Zambales is based on as learned treatises. We cannot take judicial notice of the same, and no
what he read on the internet, seminars he attended and what he heard from witness expert in the subjectmatter of this case testified, that the writers of
unnamed experts in the field of environmental protection. the said scientific studies are recognized in their profession or calling as
experts in the subject.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was
furnished by the concerned residents the Key Observations and In stark contrast, respondent RP Energy presented several witnesses on the
Recommendations on the EIS of Proposed RPE Project by Rex Victor O. CFB technology.
Cruz, and that he merely received and read the five (5) scientific studies and
articles which challenge the CFB technology. Palatino also testified that: he In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of
was only furnished by the petitioners copies of the studies mentioned in his Science, Major in Mechanical Engineering from Worcester Polytechnic
Judicial Affidavit and he did not participate in the execution, formulation or
Institute; he is a Consulting Engineer of Steam Generators of URS; he was
preparation of any of the said documents; he does not personally know Rex
formerly connected with Foster Wheeler where he held the positions of site
Cruz or any of the authors of the studies included in his Judicial Affidavit; he
commissioning engineer, testing engineer, instrumentation and controls
did not read other materials about coal-fired power plants; he is not aware of
engineer, mechanical equipment department manager, director of boiler
the acceptable standards as far as the operation of a coal-fired power plant is performance and mechanical design engineering and pulverized coal product
concerned; petitioner Velarmino was the one who furnished him copies of the director. He explained that: CFB stands for Circulating Fluidized Bed; it is a
documents in reference to the MOU and some papers related to the case;
process by which fuel is fed to the lower furnace where it is burned in an
petitioner Peralta was the one who e-mailed to him the soft copy ofall the
upward flow of combustion air; limestone, which is used as sulfur absorbent,
documents [letters (a) to (o) of his Judicial Affidavit], except the LGU
is also fed to the lower furnace along with the fuel; the mixture offuel, ash,
Resolutions; and he has never been at the actual Power Plant projectsite. It
and the boiler bed sorbent material is carried to the upper part of the furnace
must be noted that petitioners Velarmino and Peralta were never presented and into a cyclone separator; the heavier particles which generally consist of
as witnesses in this case. In addition, Palatino did not identify the said the remaining uncombusted fuel and absorbent material are separated in the
studies but simplyconfirmed that the said studies were attached to the
cyclone separator and are recirculated to the lower furnace to complete the
Petition.
combustion of any unburned particles and to enhance SO2 capture by the
sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in
the electrostatic precipitator; furnace temperature is maintained in the range
of 800° to 900° C by suitable heat absorbing surface; the fuel passes through technology is used worldwide; they have a 50% percent share of CFB market
a crusher that reduces the size to an appropriate size prior to the introduction worldwide; and this will be the first CFB by Foster Wheeler in the Philippines;
into the lower furnace along with the limestone; the limestone is used as a Foster Wheeler manufactures and supplies different type[s] of boilers
SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an including BFB, but CFB is always applied on burning coal, so they do not
inert and stable material; air fans at the bottom of the furnace create apply any BFB for coal firing; CFB has features which have much better
sufficient velocity within the steam generator to maintain a bed of fuel, ash, combustion efficiency, much lower emissions and it is more effective as a
and limestone mixture; secondary air is also introduced above the bed to boiler equipment; the longer the coal stays inthe combustion chamber, the
facilitate circulation and complete combustion of the mixture; the combustion better it is burned; eight (8) seconds is already beyond adequate but it keeps
process generates heat, which then heats the boiler feedwater flowing a margin; in CFB technology, combustion technology is uniform throughout
through boiler tube bundles under pressure; the heat generated in the the combustion chamber; high velocity is used in CFB technology, that is
furnace circuit turns the water to saturated steam which is further heated to vigorous mixing or turbulence; turbulence is needed to get contact between
superheated steam; this superheated steam leaves the CFB boiler and fuel and combustion air; and an important feature of CFB is air distribution.
expands through a steam turbine; the steam turbine is directly connected to a
generator that turns and creates electricity; after making its way through the In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical
steam turbine, the low-pressure steam is exhausted downwards into a Engineer, Sanitary Engineer and Environmental Planner in the Philippines;
condenser; heat is removed from the steam, which cools and condenses into he is also a chartered Professional Engineer inAustralia and a member of the
water (condensate); the condensate is then pumped back through a train of colleges of environmental engineers and chemical engineers of the Institution
feedwater heaters to gradually increase its temperature beforethis water is of Engineers (Australia); he completed his Bachelor in Chemical Engineering
introduced to the boiler to start the process all over again; and CFB in 1970, Master of Environmental Engineering in 1972 and Doctor of
technology has advantagesover pulverized coal firing without backend Environmental Engineering in 1974; he also graduated from the University of
cleanup systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions. Sydney Law School with the degree of Master of Environmental Law in 2002
Moreover, Wong testified, inter alia, that: CFBs have a wider range of and PhD in Law from Macquarie University in 2007. He explained in his
flexibility so they can environmentally handle a wider range of fuel Judicial Affidavit that: the impacts identified and analyzed in the EIA process
constituents, mainly the constituent sulfur; and is capable of handling are all potential or likely impacts; there are a larger number of EIA techniques
different types of coal within the range of the different fuelconstituents; since for predicting the potential environmental impacts; it is important to note that
CFB is the newer technology than the PC or stalker fire, it has better all those methods and techniques are only for predicting the potential
environmental production; 50 percent ofthe electric generation in the United environmental impacts, not the real impacts; almost all environmental
States is still produced by coal combustion; and the CFB absorbs the sulfur systems are non-linear and they are subject to chaotic behavior that even the
dioxide before it is emitted; and there will be a lower percentage of emissions most sophisticated computer could not predict accurately; and the actual or
than any other technology for the coal. real environmental impact could only be established when the project is in
actual operation. He testified, inter alia, that: the higher the temperature the
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for higher the nitrous oxide emitted; in CFB technology, the lower the
Process Concept in FosterWheeler; he was a Manager of Process temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide
Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of but not as high as conventional coal; the CFB is the boiler; from the boiler
Science degree in Chemical Engineering.He explained that: CFB boilers will itself,different pollution control facilities are going to be added; and for the
emit PAHs but only in minimal amounts, while BFB will produce higher PAH overall plant with the pollution control facilities, the particulate matters,
emissions; PAH is a natural product of any combustion process; even nitrogen oxide and sulfur dioxide are under control. (Citations omitted) 121
ordinary burning, such as cooking or driving automobiles, will have some
emissions that are not considered harmful; it is only when emissions are of a We also note that RP Energy controverted in detail the afore-summarized
significant level that damage may be caused; a CFB technology has minimal allegations of the Casiño Group on the four areas of environmental damage
PAH emissions; the high combustion efficiency of CFB technology, due to that will allegedly occur upon the construction and operation of the power
long residence time of particles inside the boiler, leads to minimal emissions plant:
of PAH; other factors such as increase in the excess air ratio[,] decrease in
Ca/S, as well as decrease in the sulfur and chlorine contents of coal will
1. On thermal pollution of coastal waters.
likewise minimize PAH production; and CFB does not cause emissions
beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB
As to the extent of the expected rise in water temperature once the power ecosystem, the most important factors to consider are – (1) Organism Type –
plant is operational, Ms. Mercado stated in her JudicialAffidavit thus: specifically its tolerance to temperature change (mammals have higher
tolerance); (2) Base Temperature – it is the temperature over the optimum
Q: What was the result of the Thermal Plume Modeling that was conducted temperature such that an increasewill result in the decline in number of the
for RP Energy? organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited
space or an open ocean that the organism can move to a space more suited
to [a] specific need, such as the migratory birds); and (4) Ecosystem
A: The thermal dispersion modeling results show that largest warming
change (0.95°C above ambient) is observed in the shallowest (5 m) Complexity and Succession. The more complex the ecosystem the more
discharge scenario. The warmest surface temperature change for the stable it is as succession and adaptation [are] more robust.
deepest (30 m) scenario is 0.18°C. All the simulated scenarios comply with
the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m Normally, the natural variation in water temperature between early morning
mixing zone. The proposed power plant location is near the mouth of Subic to late afternoon could be several degrees (four to five degrees centigrade
Bay, thus the tidal currents influence the behavior of thermal discharge and up to ten degrees centigrade on seasonal basis). Therefore, the less
plume. Since the area is well-flushed, mixing and dilution of the thermal than one degree centigrade change predicted by the GHD modeling would
discharge is expected. have minimal impact.123

It also concluded that corals are less likely to be affected by the cooling water On cross-examination, Dr. Ouano further explained—
discharge as corals may persist in shallow marine waterswith temperatures
ranging from 18°C to 36°C. The predicted highest temperature of 30.75°C, ATTY. AZURA:
from the 0.95°C increase in ambient in the shallowest (5 m) discharge
scenario, is within this range.122 x x x When you say Organism Type – you mentioned that mammals have a
higher tolerance for temperature change?
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
DR. OUANO:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a
temperature change of 1°C to 2°C canalready affect the metabolism and Yes.
other biological functions of aquatic organisms such as mortality rate and
reproduction." What is your expert opinion, if any, on this matter alleged by
ATTY. AZURA:
the Petitioners?
What about other types of organisms, Dr. Ouano? Fish for example?
A: Living organisms have proven time and again that they are very adaptable
to changes in the environment. Living organisms have been isolated in
volcanic vents under the ocean living on the acidic nutrient soup of sulfur and DR. OUANO:
other minerals emitted by the volcano to sub-freezing temperature in
Antarctica. Asa general rule, metabolism and reproductive activity [increase] Well, mammals have high tolerance because mammals are warm[- ]blooded.
with temperature until a maximum is reached after which [they decline]. For Now, when it comes to cold[-]blooded animals the tolerance is much lower.
this reason, during winter, animals hibernate and plants become dormant But again when you are considering x x x fish [e]specially in open ocean you
after shedding their leaves. It is on the onset of spring that animals breed and have to remember that nature by itself is x x x very brutal x x x where there is
plants bloom when the air and water are warmer. At the middle of autumn always the prey-predator relationship. Now, most of the fish that we have in
when the temperature drops to single digit, whales, fish, birds and other living open sea [have] already a very strong adaptability mechanism.And in fact,
organisms, which are capable of migrating, move to the other end of the Kingman back in 1964 x x x studied the coal reefaround the gulf of Oman
globe where spring is just starting. In the processes of migration, those where the temperature variation on day to day basis varied not by 1 degree
migratory species have to cross the tropics where the temperature is not just to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay
one or two degrees warmer but 10 to 20 degrees warmer. When discussing area which when you’re looking at it between daytime variation, early dawn
the impact of 1 to 2 degrees temperature change and its impact on the when it is cold, the air is cold, the sea temperature, sea water is quite cold.
Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in To clarify. You said that the most potentially sensitive part of the ecosystem
the] Subic Bay area is around 2 to 4 degrees by natural variation from the would be the corals. DR. OUANO:
sun as well as from the current that goes around it. So when you are talking
about what the report has said of around 1 degree change, the total impact x Or threatened part because they are the ones [that] are not in a position to
x x on the fishes will be minimal. x x x migrate.

ATTY. AZURA: ATTY AZURA:

x x x So, you said, Dr. Ouano, that fish, while they have a much lower In this case, Dr. Ouano, with respectto this project and the projected
tolerance for temperature variation, are still very adaptable. What about other temperature change, will the corals in Subic Bay be affected?
sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
DR. OUANO:
As far as the outlet is concerned, they have established it outside the coral
That’s what I said. The most sensitive part of the marine ecology is physically area. By the time it reaches the coral area the temperature variation, as per
the corals because corals are non-migratory, they are fix[ed]. Second[ly] x x x the GHD study is very small, it[’]s almost negligible.
corals are also highly dependent on sunlight penetration. If they are exposed
out of the sea, they die; if theyare so deep, they die. And that is why I cited
ATTY AZURA:
Kingman in his studies of coral adaptability [in] the sea ofOman where there
was a very high temperature variation, [they] survived.
Specifically, Dr. Ouano, what does negligible mean, what level of variation
are we talking about?
ATTY. AZURA:
DR. OUANO:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic
Bay?
If you are talking about a thermometer, you might be talking about, normally
about .1 degrees centigrade. That’sthe one that you could more or less
DR. OUANO:
ascertain. x x x

Not in Subic Bay but I have reviewedthe temperature variation, natural


ATTY. AZURA:
temperature variation from the solar side, the days side as well as the
seasonal variation. There are two types of variation since temperatures are
very critical. One is the daily, which means from early morning to around 3:00 Dr. Ouano, you mentioned in youranswer to the same question, Question 51,
o’clock, and the other one is seasonal variation because summer, December, that there is a normal variation in water temperature. In fact, you said there is
January, February are the cold months and then by April, May we are having a variation throughout the day, daily and also throughout the year, seasonal.
warm temperature where the temperature goes around 32-33 degrees; Just to clarify, Dr. Ouano. When the power plant causes the projected
Christmas time, it drops to around 18 to 20 degrees so it[']sa variation of temperature change of 1 degree to 2 degrees Celsius this will be in addition
around seasonal variation of 14 degrees although some of the fish might to existing variations? What I mean, Dr. Ouano, just so I can understand,
even migrate and that is why I was trying to put in corals because they are how will that work? How will the temperature change caused by the power
the ones that are really fix[ed]. They are not in a position to migrate in this plant work with the existing variation? DR. OUANO:
season.
There is something like what we call the zonal mixing. This is an area of
ATTY. AZURA: approximately one or two hectares where the pipe goes out, the hot water
goes out. So that x x x, we have to accept x x x that [throughout it] the zone
will be a disturb[ed] zone. After that one or two hectares park the water
temperature is well mixed [so] that the temperature above the normal existing 272. Q: What other findings resulted from the Air Dispersion Modeling, if
variation now practically drops down to almost the normal level.124 any?

2. On air pollution due todust and combustion gases. A: It also established that the highest GLC to CleanAir Act Standards ratio
among possible receptors was located 1.6 km North NorthEast ("NNE") of
To establish that the emissions from the operation of the power plant would the Power Plant Project. Further, this ratio was valued only at 0.434 or less
be compliant with the standards under the Clean Air Act,125 Ms. Mercado than half of the upper limit set out in the Clean Air Act. This means that the
stated in her Judicial Affidavit thus: highest air ambient quality disruption will happen only 1.6 km NNE of the
Power Plant Project, and that such disruption would still be compliant with
the standards imposed by the Clean Air Act.127
271. Q: What was the result of the Air Dispersion Modeling that was
conducted for RP Energy?
The Casiño Group argued, however, that, as stated inthe EIS, during upset
A: The Air Dispersion Modeling predicted that the Power Plant Project will conditions, significant negative environmental impact will result from the
emissions. This claim was refuted by RP Energy’s witness during cross-
produce the following emissions,which [are] fully compliant with the
examination:
standards set by DENR:

ATTY. AZURA:
Predicted GLC126 for 1-hr National Ambient Air Quality
averaging period Guideline Values
If I may refer you to another page of the same annex, Ms. Mercado, that’s
SO2 45.79 µg/Nm3 340 µg/Nm3 page 202 of the same document, the August 2012. Fig. 2-78 appears to
show, there’s a Table, Ms. Mercado, the first table, the one on top appears to
NO2 100.8 µg/Nm3 260 µg/Nm3 show a comparison in normal and upset conditions. I noticed, Ms. Mercado,
that the black bars are much higher than the bars in normal condition. Can
CO 10 µg/Nm3 35 µg/Nm3
you state what this means?

Predicted GLC for 8-hr averaging period National Ambient Air Quality MS. MERCADO:
Guideline Values
CO 0.19 mg/ncm 10 µg/Nm3 It means there are more emissions that could potentially be released when it
is under upset condition.

Predicted GLC for 24-hr averaging National Ambient Air Quality ATTY. AZURA:
period Guideline Values
SO2 17.11 µg/Nm3 180 µg/Nm3 I also noticed, Ms. Mercado, at the bottom part of this chart there are
Receptor IDs, R1, R2, R3 and so forth and on page 188 of this same
NO2 45.79 µg/Nm3 150 µg/Nm3 document, Annex "9-Mercado," there is a list identifying these receptors, for
example, Receptor 6, Your Honor, appears to have been located in
Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that
Predicted GLC for 1-yr averaging period National Ambient Air Quality
mean that if upset condition[s] were to occur, the Olongapo City Poblacion
Guideline Values
will be affected by the emissions? MS. MERCADO:
SO2 6.12 µg/Nm3 80 µg/Nm3
All it means is that there will be higher emissions and a higher ground
NO2 No standard --- concentration. But you might want to alsopay attention to the "y axis," it says
CO No standard --- there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it
means that even under upset conditions… say for R6, the ground level
concentration for upset condition is still around .1 or 10% percent only of the A: The laboratory-scale BFB used in the study only has one (1) air injection
Clean Air Act limit. So it’s still much lower than the limit. point and does not replicate the staged-air combustion process of the CFB
that RP Energy will use. Thisstaged-air process includes the secondary air.
ATTY. AZURA: Injecting secondary air into the system will lead to more complete
combustion and inhibits PAH production. There is a study entitled "Polycyclic
Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC
But that would mean, would it not, Ms. Mercado, that in the event of upset
System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the
conditions[,] emissionswould increase in the Olongapo City Poblacion?
Journal of Hazardous Materials B84 (2001) where the findings are discussed.
MS. MERCADO:
Also, the small-scale test rig utilized in the study does not simulate the
process conditions (hydrodynamics, heat transfer characteristics, solid and
Not emissions will increase. The emissions will be the same but the ground gas mixing behavior, etc.) seen in a large scale utility boiler, like those which
level concentration, the GLC, will be higher if you compare normal versus would be utilized by the Power Plant Project.
upset. But even if it[’]s under upset conditions, it is still only around 10%
percent of the Clean Air Act Limit.
xxxx
xxxx
Q: Aside from residence time of particles and secondary air, what other
factors, if any, reduce PAH production?
J. LEAGOGO:
A: Increase in the excess air ratio will also minimizePAH production.
So you are trying to impress upon this Court that even if the plant is in an Furthermore, decrease in Calcium to Sulfur moral ratio ("Ca/S"), as well as
upset condition, it will emit less than what the national standards dictate? decrease in the sulfur and chlorine contents of coal will likewise minimize
PAH production. This is also based on the study entitled "Polycyclic Aromatic
MS. MERCADO: Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" by
Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.
Yes, Your Honor.128
In RP Energy’s Power Plant Project, the projected coal to be utilized has low
With respect to the claims that the powerplant will release dangerous PAHs sulfur and chlorine contents minimizing PAH production. Also, due to
and CO, Engr. Sarrki stated in his Judicial Affidavit thus: optimum conditions for the in-furnace SO2capture, the Ca/S will be relatively
low, decreasing PAH production.
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that
Volatile Organic Compounds ("VOC") specifically Polycyclic Aromatic Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide
Hydrocarbon ("PAH") will be emitted even by CFB boilers. What can you say (CO), a poisonous, colorless and odorless gas is also produced when there
about this? is partial oxidation or when there is not enough oxygen (O2) to form carbon
dioxide (CO2)." What can you say about this?
A: Actually, the study cited by the Petitioners does not apply to the present
case because it does not refer to CFB technology. The study refers to a A: CFB technology reduces the CO emissions of the Power Plant Project to
laboratory-scale tubular Bubbling Fluidized Bed ("BFB") test rig and not a safe amounts. In fact, I understand that the projected emissions level of the
CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB Power Plant Project compl[ies]with the International Finance Corporation
will produce higher PAH emissions. ("IFC") standards. Furthermore, characteristics of CFB technology such as
long residence time, uniform temperature and high turbulence provide an
xxxx effective combustion environment which results [in] lower and safer CO
emissions.
Q: Why can the study cited by Petitioners not apply in the present case?
Q: I have no further questions for youat the moment. Is there anything you RP Energy further argued, a matter which the Casiño Group did not rebut or
wish to add to the foregoing? refute, that the waste generated by the plant will be properly handled, to wit:

A: Yes. PAH is a natural product of ANY combustion process. Even ordinary 4.1.49 When coal is burned in the boiler furnace, two by-products are
burning, such as cooking or driving automobiles, will have some emissions generated - bottom and fly ash. Bottom ash consists oflarge and
that are not considered harmful. It is only when emissions are of a significant fused particles that fall to the bottom of the furnace and mix with the
level that damage may be caused. bed media.Fly ash includes finegrained and powdery particles that
are carried away by flue gas into the electrostatic precipitator, which
Given that the Power Plant Project will utilize CFB technology, it will have is then sifted and collected. These by-products are non-hazardous
minimal PAH emissions. The high combustion efficiency of CFB technology, materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and
due to the long residence time of particles inside the boiler, leads to the Boiler Slag have consequent beneficial uses which "generate
minimal emissions of PAH. Furthermore,other factors such as increase in the significant environmental, economic, and performance benefits."
excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and Thus, fly ash generated during the process will be sold and
chlorine contents of coal will likewise minimize PAH production. CFB does transported to cement manufacturing facilities or other local and
not cause emissions beyond scientifically acceptable levels, and we are international industries.
confident it will not result in the damage speculated by the Petitioners. 129
4.1.50 RP Energy shall also install safety measures to insure that
3. On water pollution from toxic coal combustion waste. waste from burning of coal shall be properly handled and stored.

With regard to the claim that coal combustion waste produced by the plant 4.1.51 Bottom ash will be continuously collected from the furnace
will endanger the health of the inhabitants nearby, Dr. Ouano stated in his and transferred through a series of screw and chain conveyors and
Judicial Affidavit thus: bucket elevator to the bottom ash silo. The collection and handling
system is enclosed to prevent dust generation. Discharge chutes will
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal be installed at the base of the bottom ash silo for unloading. Open
trucks will be used to collect ash through the discharge chutes.
combustion waste is highly toxic and is said to cause birth defects and
Bottom ash will be sold, and unsold ash will be stored in ash cells. A
cancer risks among others x x x." What is your expert opinion, if any, on this
portion of the bottom ash will be reused as bed materialthrough the
matter alleged by the Petitioners?
installation of a bed media regeneration system (or ash recycle).
Recycled bottom ash will be sieved using a vibrating screen and
A: Coal is geologically compressed remains of living organisms that roamed transported to a bed material surge bin for re-injection into the boiler.
the earth several million years ago. In the process of compression, some of
the minerals in the soil, rocks or mud, the geologic media for compression,
4.1.52 Fly ash from the electrostatic precipitator is pneumatically
are also imparted into the compressed remains. If the compressing media of
mud, sediments and rocks contain high concentration of mercury, uranium, removed from the collection hopper using compressed air and
and other toxic substances, the coal formed will likewise contain high transported in dry state to the fly ash silo. Two discharge chutes will
be installed at the base of the fly ash silo. Fly ash can either be dry-
concentration of those substances. If the compressing materials have low
transferred through a loading spout into an enclosed lorry or truck for
concentration of those substances, then the coal formed will likewise have
selling, re-cycling, or wet-transferred through a wet unloader into
low concentration of those substances. If the coal does not contain excessive
open dump trucks and transported to ash cells. Fly ash discharge will
quantities of toxic substances, the solid residues are even used in agriculture
to supply micronutrients and improve the potency of fertilizers. It is used operate in timed cycles, with an override function to
freely as a fill material in roads and other construction activities requiring achievecontinuous discharge if required. Fly ash isolation valves in
each branch line will prevent leakage and backflow into non-
large volume of fill and as additive in cement manufacture. After all,
operating lines.
diamonds that people love to hang around their necks and keep close to the
chest are nothing more than the result of special geologic action, as those in
volcanic pipes on coal.130 4.1.53 Approximately 120,000m² will be required for the construction
of the ash cell. Ash will be stacked along the sloping hill, within a grid
of excavations (i.e. cells) with a 5m embankment. Excavated soils J. LEAGOGO:
will be used for embankment construction and backfill. To prevent
infiltration [of] ash deposits into the groundwater, a clay layer with No, but did you read it in their report?
minimum depth of400mm will be laid at the base of each cell. For
every 1-m depth of ash deposit, a 10-cm soil backfill will be applied
DR. OUANO: It[’]s not there in their report because it will depend on the
to immobilize ash and prevent migration via wind. Ash cell walls will
supplier, the equipment supplier.
be lined with high-density polyethylene to prevent seepage. This
procedure and treatment method is in fact suitable for disposal of
toxic and hazardous wastes although fly ash is not classified as toxic J. LEAGOGO:
and hazardous materials.131
So it[’]s not yet there?
Anent the claims that the plant is susceptible to earthquake and landslides,
Dr. Ouano testified thus: DR. OUANO:

J. LEAGOGO: It[’]s not yet there in the site but it is also covered inour Building Code what
are the intensities of earthquakes expected of the different areas in the
In terms of fault lines, did you study whether this project site is in any fault Philippines.
line?
J. LEAGOGO:
DR. OUANO:
Have you checked our geo-hazard maps in the Philippines to check on this
There are some fault linesand in fact, in the Philippines it is very difficult to project site?
find an area except Palawan where there is no fault line within 20 to 30
[kilometers]. But then fault lines as well as earthquakes really [depend] upon DR. OUANO:
your engineering design. I mean, Sto. Tomas University has withstood all the
potential earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or Yes. It is included there in the EIA Report.
so because the design for it back in 1600 they are already using what we call
floating foundation. So if the engineering side for it[,] technology is there to J. LEAGOGO:
withstand the expected fault line [movement]. J. LEAGOGO:
It[’]s there?
What is the engineering side of the project? You said UST is floating.
DR. OUANO:
DR. OUANO:
It[’]s there.132
The foundation, that means to say you don’t break…
4. On acid deposition in aquatic and terrestrial ecosystems.
J. LEAGOGO:
Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit,
Floating foundation. What about this, what kind of foundation? thus:

DR. OUANO: Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired
power plant will release 1,888 tons of nitrous oxides (NOx) per year and 886
It will now depend on their engineering design, the type of equipment… tons of sulfur dioxide (SO2) per year. These oxides are the precursors to the
formation of sulfuric acid and nitric acid which are responsible for acid
deposition." Whatis your expert opinion on this matter alleged by the It will?
Petitioners?
DR. OUANO:
A: NO2 is found in the air, water and soil from natural processes such as
lightning, bacterial activities and geologic activities as well as from human Because the acid concentration is so dilute[d] so that it is not going to cause
activities such as power plants and fertilizer usage in agriculture. SO2 is also acid rain.
found in air, water and soil from bacterial, geologic and human activities.
NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to J. LEAGOGO:
widely redistribute and recycle those essential chemicals for use by plants.
Without the NO2 and SO2 in the air, plant and animal life would be limited to
small areas of this planet where nitrogen and sulfur are found in abundance. The acid concentration is so diluted that it will not cause acid rain?
With intensive agricultural practices, nitrogen and sulfur are added in the soil
as fertilizers. DR. OUANO:

Acid rain takes place when the NO2 and SO2 concentration are excessive or Yes .
beyond those values set in the air quality standards. NO2 and SO2 in the air
in concentrations lower than those set in the standards have beneficial effect J. LEAGOGO:
to the environment and agriculture and are commonly known as
micronutrients.133 What do you mean it[’]s so diluted? How will it be diluted?

On clarificatory questions from the appellate court, the matter was further DR. OUANO:
dissected thus:
Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the
J. LEAGOGO: air in the atmosphere. And besides this 886 tons, this is not released in one
go, it is released almost throughout the year.
x x x The project will release 1,888 tons of nitrous oxide per year. And he
said, yes; that witness answered, yes, itwill produce 886 tons of sulfur J. LEAGOGO:
dioxide per year. And he also answered yes, that these oxides are the
precursors to the formation of sulfuric acid and nitric acid. Now my
You also answered in Question No. 61, "acid raintakes place when the NO2
clarificatory question is, with this kind of releases there will be acid rain?
AND SO2 concentration are excessive." So whendo you consider it as
excessive?
DR. OUANO:
DR. OUANO:
No.
That is something when you are talking about acid…
J. LEAGOGO:
J. LEAGOGO:
Why?
In terms of tons of nitrous oxide and tons of sulfur oxide, when do you
DR. OUANO: consider it as excessive?

Because it[’]s so dilute[d]. DR. OUANO:

J. LEAGOGO: It is in concentration not on tons weight, Your Honor.


J. LEAGOGO: SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur
dioxide this acid rain most likely will start at around 7,000 milligrams per
In concentration? standard cubic meter but then … sorry, it[’]s around 3,400 micrograms per
cubic meter. That is the concentration for sulfur dioxide, and in our plant it will
be around 45 micrograms per standard cubic meter. So the acid rain will start
DR. OUANO:
at 3,400 and the emission is estimated here to result to concentration of 45.7
micrograms.
In milligrams per cubic meter, milligrams per standard cubic meter.
J. LEAGOGO:
J. LEAGOGO:
That is what GHD said in their report.
So being an expert, whatwill be the concentration of this kind of 1,888 tons of
nitrous oxide? What will be the concentration in terms of your…?
DR. OUANO:
DR. OUANO:
Yes. So that is the factor of x x x safety that we have.134
If the concentration is in excess ofsomething like 8,000 micrograms per
Apart from the foregoing evidence, wealso note that the above and other
standard cubic meters, then there isalready potential for acid rain.
environmental concerns are extensively addressed in RP Energy’s
Environmental Management Plan or Program(EMP). The EMP is "a section
J. LEAGOGO: in the EIS that details the prevention, mitigation, compensation, contingency
and monitoring measures to enhance positive impacts and minimize negative
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous impacts and risks of a proposed project or undertaking."135 One of the
oxide? conditions of the ECC is that RP Energy shall strictly comply with and
implement its approved EMP. The Casiño Group failed to contest, with proof,
DR. OUANO: the adequacy of the mitigating measures stated in the aforesaid EMP.

Yes . In upholding the evidence and arguments of RP Energy, relative to the lack
of proof as to the alleged significant environmental damage that will be
J. LEAGOGO: caused by the project, the appellate court relied mainly on the testimonies of
experts, which we find to be in accord withjudicial precedents. Thus, we ruled
in one case:
In terms of concentration, what will that be?
Although courts are not ordinarily bound by testimonies of experts, they may
DR. OUANO:
place whatever weight they choose upon such testimonies in accordance
with the facts of the case. The relative weight and sufficiency of expert
In terms of the GHD study that will result [in] 19 milligrams per standard cubic testimony is peculiarly within the province of the trial court to decide,
meters and the time when acid rain will start [is when the concentration gets] considering the ability and character of the witness, his actions upon the
around 8,000 milligrams per standard cubic meters. So we have 19 witness stand, the weight and process of the reasoning by which he has
compared to 8,000. So weare very, very safe. supported his opinion, his possible bias in favor of the side for whom he
testifies,the fact that he is a paid witness, the relative opportunities for study
J. LEAGOGO: and observation of the matters about which he testifies, and any other
matters which serve to illuminate his statements. The opinion of the expert
What about SO2? may not be arbitrarily rejected; it isto be considered by the court in view of all
the facts and circumstances in the case and when common knowledge
DR. OUANO: utterly fails, the expert opinion may be given controlling effects (20 Am. Jur.,
1056-1058). The problem of the credibility of the expert witness and the Chancellor of the University of the Philippines, Los Baños and a forest
evaluation of his testimony is left to the discretion of the trial court whose ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related
ruling thereupon is not reviewable inthe absence of an abuse of that information as to public health; and (3) Andre Jon Uychiaco, a marine
discretion.136 biologist.

Hence, we sustain the appellate court’s findings that the Casiño Group failed The Final Report stated these experts’alleged views on the project, thus:
to establish the alleged grave environmental damage which will be caused by
the construction and operation of the power plant. IV. EXPERTS’ OPINION

In another vein, we, likewise, agree with the observationsof the appellate xxxx
court that the type of coal which shall be used in the power plant has
important implications as to the possible significant negative environmental The specialists shared the judgment that the conditions were not present to
impacts of the subject project.137 However, there is no coal supply merit the operation of a coal-fired power plant,and to pursue and carry out
agreement, as of yet, entered into by RP Energy with a third-party supplier.
the project with confidence and assurance that the natural assets and
In accordance with the terms and conditions of the ECC and in compliance
ecosystems within the Freeport area would not be unduly compromised, or
with existing environmental laws and standards, RP Energy is obligated to
that irreversible damage would not occur and that the threats to the flora and
make use of the proper coal type that will not cause significant negative
fauna within the immediate community and its surroundings would be
environmental impacts. adequately addressed. The three experts were also of the same opinion that
the proposed coal plant project would pose a wide range of negative impacts
The alleged negative environmental on the environment, the ecosystems and human population within the impact
assessment of the project by experts in a zone.
report generated during the social
acceptability consultations
The specialists likewise deemed the Environment Impact Assessment (EIA)
conducted by RPEI to be incomplete and limited in scope based on the
The Casiño Group also relies heavily on a report on the social acceptability following observations:
process of the power plant project to bolster itsclaim that the project will
cause grave environmental damage. We purposely discuss this matter in this
i. The assessment failed to include areas 10km. to 50km. from the
separate subsection for reasons which will be made clear shortly. operation site, although according tothe panel, sulfur emissions
could extend as far as 40-50 km.
But first we shall present the pertinent contents of this report.
ii. The EIA neglected to include other forests in the Freeport in its
According to the Casiño Group, from December 7 to 9, 2011, the SBMA scope and that there were no specific details on the protection of the
conducted social acceptabilitypolicy consultations with different stakeholders endangered flora and endemic fauna in the area. Soil, grassland,
on RP Energy’s proposed 600 MW coal plant project at the Subic Bay brush land, beach forests and home gardens were also apparently
Exhibition and Convention Center. The results thereof are contained in a not included in the study.
document prepared by SBMA entitled "Final Report: Social Acceptability
Process for RP Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We iii. The sampling methods used inthe study were limited and
notethat SBMA adopted the Final Report as a common exhibit with the insufficient for effective long-term monitoring of surface water,
Casiño Group in the course of the proceedings before the appellate court.
erosion control and terrestrial flora and fauna.

The Final Report stated that there was a clear aversion to the concept of a
The specialists also discussed the potential effects of an operational coalfired
coal-fired power plant from the participants. Their concerns included power plant [on] its environs and the community therein. Primary among
environmental, health, economic and socio-cultural factors. Pertinent to this these were the following:
case is the alleged assessment, contained in the Final Report, of the
potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz),
i. Formation of acid rain, which would adversely affect the trees and Key Observations and Recommendations on the EIS of Proposed RPE
vegetation in the area which, in turn, would diminish forest cover. Project
The acid rain would apparently worsen the acidity of the soil in the
Freeport. Rex Victor O. Cruz

ii. Warming and acidification of the seawater in the bay, resulting in Based on SBMA SAP on December 7-9, 2011
the bio-accumulationof contaminants and toxic materials which
would eventually lead to the overall reduction of marine productivity. 1. The baseline vegetation analysis was limited only within the
project site and its immediate vicinity. No vegetation analysis was
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, done in the brushland areas in the peninsula which is likely to be
Ozone and other heavy metals suchas mercury and lead to the affected in the event acid rain forms due to emissions from the power
surrounding region, which would adversely affect the health of the plant.
populace in the vicinity.
2. The forest in the remaining forests inthe Freeport was not
V. FINDINGS considered as impact zone as indicated by the lack ofdescription of
these forests and the potential impacts the project might have on
Based on their analyses of the subject matter, the specialists recommended these forests. This appears to be a key omission in the EIS
that the SBMA re-scrutinize the coal-fired power plant project with the considering that these forests are well within 40 to 50 km away from
following goals in mind: the site and that there are studies showing that the impacts of
sulphur emissions can extend as far as 40 to 50 km away from the
i. To ensure its coherence and compatibility to [the] SBMA mandate, source.
vision, mission and development plans, including its Protected Area
Management Plan; 3. There are 39 endemic fauna and 1 endangered plant species
(Molave) in the proposed project site. There will be a need to make
ii. To properly determine actual and potential costs and benefits; sure that these species are protected from being damaged
permanently in wholesale. Appropriate measures such as ex
iii. To effectively determine the impacts on environment and health; situconservation and translocation if feasible must be implemented.
and
4. The Project site is largely in grassland interspersed with some
trees. These plants if affected by acid rain or by sulphur emissions
iv. To ensure a complete and comprehensive impacts zone study.
may disappear and have consequences on the soil properties and
hydrological processes in the area. Accelerated soil erosion and
The specialists also urged the SBMA to conduct a Comprehensive Cost And increased surface runoff and reduced infiltration of rainwater into the
Benefit Analysis Of The Proposed Coal Plant Project Relative To Each soil.
Stakeholder Which Should Include The Environment As Provider Of
Numerous Environmental Goods And Services.
5. The rest of the peninsula is covered with brushland but were never
included as part of the impact zone.
They also recommended an Integrated/Programmatic Environmental Impact
Assessmentto accurately determine the environmental status of the Freeport
6. There are home gardens along the coastal areas of the site
ecosystem as basis and reference in evaluating future similar projects. The
planted to ornamental and agricultural crops which are likely to be
need for a more Comprehensive Monitoring System for the Environment and
Natural Resourceswas also reiterated by the panel.138 affected by acid rain.

7. There is also a beach forest dominated by aroma, talisai and


Of particular interest are the alleged key observations of Dr. Cruz on the EIS
agoho which will likely be affectedalso by acid rain.
prepared by RP Energy relative to the project:
8. There are no Environmentally Critical Areas within the 1 km radius mitigating and avoiding unnecessary adverse impacts ofthe project
from the project site. However, the OlongapoWatershed Forest but also for improving management decisions if long[-]term
Reserve, a protected area is approximately 10 kmsouthwest of the monitoring plots for the remaining natural forests in the Freeport are
projectsite. Considering the prevailing wind movement in the area, established. These plots will also be useful for the study of the
this forest reserve is likely to be affected by acid rain if it occurs from dynamic interactions of terrestrial flora and fauna with climate
the emission of the power plant. This forest reserve is however not change, farming and other human activities and the resulting
included as partof the potential impact area. influences on soil, water, biodiversity, and other vital ecosystem
services in the Freeport.139
9. Soil in the project site and the peninsula is thin and highly acidic
and deficient in NPK with moderate to severe erosion potential. The We agree with the appellate court that the alleged statements by these
sparse vegetation cover in the vicinity of the projectsite is likely a experts cannot be given weight because they are hearsay evidence. None of
result of the highly acidic soil and the nutrient deficiency. Additional these alleged experts testified before the appellate court to confirm the
acidity may result from acid rain that may form in the area which pertinent contents of the Final Report. No reason appears in the records of
could further make it harder for the plants to grow in the area that in this case as to why the Casiño Group failed to present these expert
turn could exacerbate the already severe erosion in the area. 10. witnesses.
There is a need to review the proposalto ensure that the proposed
project is consistent with the vision for the Freeport as enunciated in We note, however, that these statements, on their face, especially the
the SBMA Master Plan and the Protected Area Management Plan. observations of Dr. Cruz, raise serious objections to the environmental
This will reinforce the validity and legitimacy of these plans as a soundness of the project, specifically, the EIS thereof.It brings to fore the
legitimate framework for screening potential locators in the Freeport. question of whether the Court can, on its own, compel the testimonies of
Itwill also reinforce the trust and confidence of the stakeholders on these alleged experts in order to shed light on these matters in view of the
the competence and authority of the SBMA that would translate in rightat stake— not just damage to the environment but the health, well-being
stronger popular support to the programs implemented in the and,ultimately, the livesof those who may be affected by the project.
Freeport.
The Rules of Procedure for Environmental Cases liberally provide the courts
11. The EGF and Trust Fund (Table 5.13) should be made clear that with means and methods to obtain sufficient information in order to
the amounts are the minimum amount and that adequate funds will adequately protect orsafeguard the right to a healthful and balanced ecology.
be provided by the proponent as necessary beyond the minimum In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a failure to settle, the
amounts. Furthermore the basis for the amounts allocated for the judge shall, among others, determine the necessity of engaging the services
items (public liability and rehabilitation) in Trust Fund and in EGF of a qualified expert as a friend of the court (amicus curiae). While, in Section
(tree planting and landscaping, artificial reef establishment) must be 12141 of Rule 7 (Writ of Kalikasan), a party may avail of discovery measures:
clarified. The specific damages and impacts that will be covered by (1) ocular inspection and (2) production or inspection of documents or things.
the TF and EGF must also be presented clearly at the outset to avoid The liberality of the Rules in gathering and even compelling information,
protracted negotiations in the event of actual impacts occurring in the specifically with regard to the Writ of Kalikasan, is explained in this wise:
future. [T]he writ of kalikasanwas refashioned as a tool to bridge the gap between
allegation and proof by providing a remedy for would-be environmental
12. The monitoring plan for terrestrial flora and fauna is not clear on litigants to compel the production of information within the custody of the
the frequency of measurement. More importantly, the proposed government. The writ would effectively serve as a remedy for the
method of measurement (sampling transect) while adequate for enforcement of the right to information about the environment. The scope of
estimating the diversity of indices for benchmarking is not sufficient the fact-finding power could be: (1) anything related to the issuance, grant of
for long[-]term monitoring. Instead, long[-]term monitoringplots (at a government permit issued or information controlled by the government or
least 1 hectare in size) should be established to monitor the long[- private entity and (2) [i]nformation contained in documents such as
]term impacts of the project on terrestrial flora and fauna. environmental compliance certificate (ECC) and other government records.
In addition, the [w]rit may also be employed to compel the production of
13. Since the proposed monitoring of terrestrial flora and fauna is information, subject to constitutional limitations. This function is analogous to
limited to the vicinity of the project site, it will be useful not only for a discovery measure, and may be availed of upon application for the writ.142
Clearly, in environmental cases, the power toappoint friends of the court in Fourth, because the reason for the non-presentation of the alleged expert
order to shed light on matters requiring special technical expertise as well as witnesses does not appear on record, we cannot assume that their
the power to order ocular inspections and production of documents or things testimonies are being unduly suppressed.
evince the main thrust of, and the spirit behind, the Rules to allow the court
sufficient leeway in acquiring the necessary information to rule on the issues By ruling that we do not find a sufficiently compelling reason to compel the
presented for its resolution, to the end that the right toa healthful and taking of the testimonies of these alleged expert witnesses in relation to their
balanced ecology may be adequately protected. To draw a parallel, in the serious objections to the power plant project, we do not foreclose the
protection of the constitutional rights of an accused, when life or liberty isat possibility that their testimonies could later on be presented, in a proper
stake, the testimonies of witnesses may be compelled as an attribute of the case, to more directly, specifically and sufficientlyassail the environmental
Due Process Clause. Here, where the right to a healthful and balanced soundness of the project and establish the requisite magnitude of actualor
ecology of a substantial magnitude is at stake, should we not tread the path threatened environmental damage, if indeed present. After all, their sense
of caution and prudence by compelling the testimonies of these alleged ofcivic duty may well prevail upon them to voluntarily testify, if there are truly
experts? sufficient reasons tostop the project, above and beyond their inadequate
claims in the Final Report that the project should not be pursued. As things
After due consideration, we find that, based on the statements in the Final now stand,however, we have insufficient bases to compel their testimonies
Report, there is no sufficiently compelling reason to compel the testimonies for the reasons already proffered.
of these alleged expert witnesses for the following reasons.
The alleged admissions of grave
First, the statementsare not sufficiently specificto point to us a flaw (or flaws) environmental damage in the EIS of the
in the study or design/implementation (or some other aspect) of the project project.
which provides a causal link or, at least, a reasonable connection between
the construction and operation ofthe project vis-à-vis potential grave In their Omnibus Motions for Clarification and Reconsideration before the
environmental damage. In particular, they do not explain why the appellate court and Petition for Review before thisCourt, the Casiño Group
Environmental Management Plan (EMP) contained in the EIS of the project belatedly claims that the statements in the EIS prepared by RPEnergy
will notadequately address these concerns. established the significant negative environmental impacts of the project.
They argue in this manner:
Second, some of the concerns raisedin the alleged statements, like acid rain,
warming and acidification of the seawater, and discharge of pollutants were, Acid Rain
as previously discussed, addressed by the evidence presented by RP
Energy before the appellate court. Again, these alleged statements do not
35. According to RP Energy’s Environmental Impact Statement for its
explain why such concerns are not adequately covered by the EMP of RP
proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project, acid rain
Energy.
may occur in the combustion of coal, to wit – x x x x

Third, the key observations of Dr. Cruz, while concededly assailing certain During the operation phase, combustion of coal will result in emissions of
aspects of the EIS, do not clearly and specifically establish how these
particulates SOx and NOx. This may contribute to the occurrence of acid rain
omissions have led to the issuance of an ECC that will pose significant
due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions
negative environmental impacts once the project is constructed and becomes
may give rise to health problems for residents within the impact area.
operational. The recommendations stated therein would seem to suggest
points for improvement in the operation and monitoring of the project,but they
do not clearly show why such recommendations are indispensable for the xxxx
project to comply with existing environmental laws and standards, or how
non-compliance with such recommendations will lead to an environmental Asthma Attacks
damage of the magnitude contemplatedunder the writ of kalikasan. Again,
these statements do not state with sufficient particularity how the EMP in the 36. The same EPRMP143 mentioned the incidence of asthma attacks [as a]
EIS failed to adequately address these concerns. result of power plant operations, to wit –
xxxx We deplore the way the Casiño Group has argued this point and we take this
time to remind it that litigants should not trifle withcourt processes. Along the
The incidence of asthma attacks among residents in the vicinity of the project same lines, we note how the Casiño Group has made serious allegations in
site may increase due to exposure to suspended particulates from plant its Petition for Writ of Kalikasanbut failed to substantiate the same in the
operations.144 course of the proceedings before the appellate court. In particular, during the
preliminary conference of this case, the Casiño Group expressly abandoned
its factual claims on the alleged grave environmental damage that will be
RP Energy, however, counters that the above portions of the EIS were
quoted out of context. As to the subject of acid rain, the EIS states in full: caused by the power plant (i.e., air, water and land pollution) and, instead,
limited itself to legal issues regarding the alleged non-compliance of RP
Energy with certain laws and rules in the procurement of the ECC.147 We
Operation also note how the Casiño Group failed to comment on the subject Petitions
before this Court, which led this Court to eventually dispense with its
During the operation phase, combustion of coal will result in emissions of comment.148 We must express our disapproval over the way it has
particulates, SOx and NOx. This may contribute to the occurrence of acid prosecuted itsclaims, bordering as it does on trifling with court processes. We
rain due to elevated SO2 levels in the atmosphere. High levels of NO2 deem itproper, therefore, to admonishit to be more circumspect in how it
emissions may give rise to health problems for residents within the impact prosecutesits claims.
area. Emissions may also have an effect onvegetation (Section 4.1.4.2).
However, the use of CFBC technology is a built-in measure that results in In sum, we agree with the appellate court that the Casiño Group failed to
reduced emission concentrations. SOx emissions will beminimised by the substantiate its claims thatthe construction and operation of the power plant
inclusion of a desulfurisation process, whilst NOx emissions will be reduced will cause environmental damage of the magnitude contemplated under the
as the coal is burned at a temperature lower than that required to oxidise writ of kalikasan. The evidence it presented is inadequate to establish the
nitrogen.145(Emphasis supplied) factual bases of its claims.

As to the subject of asthma attacks, the EIS states in full: II.

The incidence of asthma attacks among residents in the vicinity of the project Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz
site may increase due to exposureto suspended particulates from plant (Mr. Aboitiz), as representative of RP Energy, in the Statement of
operations. Coal and ash particulates may also become suspended and Accountability of the ECC.
dispersed into the air during unloading and transport, depending on wind
speed and direction. However, effect on air quality due to windblown coal
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to
particulates will be insignificant as the coal handling system will have
sign the Statement of Accountability portion of the ECC.
enclosures (i.e. enclosed conveyors and coal dome) to eliminate the
exposure of coal to open air, and therefore greatly reduce the potential for
particulates from being carried away by wind (coalhandling systems, Section We shall discuss the correctness ofthis ruling on both procedural and
3.4.3.3). In addition, the proposed process will include an substantive grounds. Procedurally, we cannot fault the DENR for protesting
electrostaticprecipitator that will remove fly ash from the flue gas prior to its the manner by which the appellate court resolved the issue of the aforesaid
release through the stacks, and so particulates emissions will be lack of signature. We agree with the DENR that this issue was not among
minimal.146 (Emphasis supplied) those raised by the Casiño Group in its Petition for Writ of Kalikasan. 149 What
is more, this was not one of the triable issues specificallyset during the
We agree with RP Energy that, while the EIS discusses the subjects of acid preliminary conference of this case.150
rain and asthma attacks, it goes on to state that there are mitigating
measures that will be put in place to prevent these ill effects. Quite clearly, How then did the issue oflack of signature arise?
the Casiño Group quoted piecemeal the EIS in sucha way as to mislead this
Court as to its true and full contents. A review of the voluminous records indicates that the matterof the lack of
signature was discussed, developed or surfaced only inthe course of the
hearings, specifically, on clarificatory questions from the appellate court, to Your Honor.
wit:
J. LEAGOGO:
J. LEAGOGO:
Now, who is the authorized representative of RP Energy?
I would also show to you your ECC, that’s page 622 of the rollo. I am
showing to you this Environmental Compliance Certificate dated December MS. MERCADO:
22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your
"Exhibit "18." Would you like to go over this? Are you familiar with this
It would be Mr. Aaron Domingo, I believe.
document?
J. LEAGOGO:
MS. MERCADO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the
Yes, it[’]s my Annex "3," Your Honor.
Statement of Accountability?

J. LEAGOGO: Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz,
Director, representing Redondo Peninsula Energy with office address located
I would like to refer you to page 3 of the ECC dated December 22, 2008. at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in
Page 2 refers to the Environmental Compliance Certificate, ECC Ref. No. complying with all conditions in thisEnvironmental Compliance Certificate
0804-011-4021. That’s page 2 of the letter dated December 22, 2008. And [ECC][.]" Will you tell this Court why this was not signed?
on page 3, Dr. Julian Amador recommended approval and it was approved
by Sec. Atienza. You see that on page 3?
MS. MERCADO:

MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was
the one who provided this, I believe, to the lawyers. This copy was not signed
Yes, Your Honor. because during….

J. LEAGOGO: J. LEAGOGO:

Okay. On the same page, page 3, there’s a Statement of Accountability. But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you
agree with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
MS. MERCADO:
Yes, Your Honor.
That’s correct, Your Honor.151
J. LEAGOGO:
We find this line of questioning inadequate to apprise the parties that the lack
Luis, who is Luis Miguel Aboitiz? of signature would be a key issue in this case; as in fact it became decisive in
the eventual invalidation of the ECC by the appellate court.
MS. MERCADO:
Concededly, a court has the power to suspend its rules of procedure in order
During that time he was the authorized representative of RP Energy, to attain substantial justice so that it has the discretion, in exceptional cases,
to take into consideration matters not originally within the scope of the issues
raised in the pleadings or set during the preliminary conference, in order to1.0 SCREENING Screeningdetermines if a project is covered or not covered by the PEISS. 154If a
prevent a miscarriage of justice. In the case at bar, the importance of the project is covered, screening further determines what document type the proje
signature cannot be seriously doubted because it goes into the consent and should prepare to secure the needed approval, and what the rest of the
commitment of the project proponent to comply with the conditions of the requirements are in terms of EMB office of application, endorsing and decision
ECC, which is vital to the protection of the right to a balanced and healthful authorities, duration of processing.
ecology of those who may be affected by the project. Nonetheless, the power
of a court tosuspend its rules of procedure in exceptional cases does not 2.0 SCOPING Scopingis a Proponent-driven multi-sectoral formal process of determining the
license it to foist a surprise on the parties in a given case. To illustrate, in oral focused Terms of Reference of the EIA Study. Scoping identifies the most
arguments before this Court, involving sufficiently important public interest significant issues/impacts of a proposed project, and then, delimits the extent o
cases, we note that individual members of the Court, from time to time, point baseline information to those necessary to evaluate and mitigate the impacts.
out matters that may not have been specifically covered by the advisory (the The need for and scope of an Environmental Risk Assessment (ERA) is also
advisory delineates the issues to be argued and decided). However, a done during the scoping session. Scoping is done with the local community
directive is given to the concerned parties to discuss the aforesaid matters in through Public Scoping and with a third party EIA Review Committee (EIARC)
their memoranda. Such a procedure ensures that, at the very least, the through Technical Scoping, both with the participation of the DENR-EMB. The
parties are apprised that the Court has taken an interest in such matters and process results in a signed Formal Scoping Checklist by the review team, with
may adjudicate the case on the basis thereof. Thus, the parties are given an final approval by the EMB Chief.
opportunity to adequately argue the issue or meet the issue head-on. We,
therefore, find that the appellate court should have, at the very least, directed EIA STUDY and The EIA Studyinvolves a description of the proposed project and its alternative
RP Energy and the DENR to discuss and elaborate on the issue of lack of 3.0 REPORT characterization of the project environment, impact identification and prediction
signature in the presentation of their evidence and memoranda, PREPARATION evaluation of impact significance, impact mitigation, formulation of Environmen
beforemaking a definitive ruling that the lack thereof invalidated the ECC.This Management and Monitoring Plan, withcorresponding cost estimates and
is in keeping with the basic tenets of due process. institutional support commitment. The study results are presented in an EIA
Reportfor which an outline is prescribed by EMB for every major document typ
At any rate, we shall disregard the procedural defect and rule directly on EIA REPORT Review of EIA Reportsnormally entails an EMB procedural screening for
whether the lack of signature invalidated the ECC in the interest of 4.0 REPORT compliance with minimum requirements specified during Scoping, followed by
substantial justice. and substantive review of either composed third party experts commissioned by EM
EVALUATION as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB
The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD internal specialists, the Technical Committee, for IEE-based applications. EMB
1586, do not specifically state that the lack of signature in the Statement of evaluates the EIARC recommendations and the public’s inputs during public
Accountability has the effect of invalidating the ECC. Unlike in wills or consultations/hearings in the process of recommending a decision on the
donations, where failure to comply withthe specific form prescribed by law application. The EIARC Chair signs EIARC recommendations including issues
leads to its nullity,152 the applicable laws here are silentwith respect to the outside the mandate of the EMB. The entire EIA review and evaluation process
necessity of a signature in the Statement of Accountability and the effect of is summarized in the Review Process Report (RPR) of the EMB, which include
the lack thereof. This is, of course, understandable because the Statement of a draft decision document.
Accountability is a mere off-shoot of the rule-making powers of the DENR
5.0 DECISION Decision Making involves evaluation of EIA recommendations and the draft
relative tothe implementation of PD 1151 and PD 1586. To determine,
MAKING decision document, resulting to the issuance of an ECC, CNC or Denial Letter.
therefore, the effect of the lack of signature, we must look atthe significance
When approved, a covered project is issued its certificate of Environmental
thereof under the Environmental Impact Assessment (EIA) Rules of the
Compliance Commitment (ECC) while an application of a non-covered project
DENR and the surrounding circumstances of this case.
issued a Certificate of Non-Coverage (CNC). Endorsing and deciding authoritie
are designated by AO 155 42, and further detailed in this Manual for every rep
To place this issue in its proper context, a helpful overview of the stages of type. Moreover, the Proponent signs a sworn statement of full responsibility on
the EIA process, taken from the Revised Manual, is reproduced below: implementation of its commitments prior to the release of the ECC. 156 The EC
is then transmitted to concerned LGUs and other GAs for integration into their
Figure 1-3 Overview of Stages of the Philippine EIA Process 153 decisionmaking process. The regulated part of EIA Review is limited to the
processes within EMB control. The timelines for the issuance of decision
documents provided for in AO 42 and DAO 2003-30 are applicable only from the Contrary to RP Energy’s position, we, thus, find that the signature of the
time the EIA Report is accepted for substantive review to the time a decision isproject proponent’s representative in the Statement of Accountability is
issued on the application. necessary for the validity of the ECC. It is not, as RP Energy would have it, a
mere formality and its absence a mere formal defect.
ONITORING. Monitoring, Validation and Evaluation/Audit stage assesses performance of the
6.0 Proponent against the ECC and itscommitments in the Environmental The question then is, was the absence of the signature of Mr. Aboitiz, as
ALIDATION, Management and Monitoring Plans to ensure actual impacts of the project are representative of RP Energy, in the Statement of Accountability sufficient
and adequately prevented or mitigated. ground to invalidate the ECC?
VALUATION/
AUDIT
Viewed within the particular circumstances of this case, we answer in the
negative.
The signing of the Statement of Accountability takes placeat the Decision
Making Stage. After a favorable review of its ECC application, the project While it is clear that the signing of the Statement of Accountability is
proponent, through its authorized representative, is made to sign a sworn necessary for the validity ofthe ECC, we cannot close oureyes to the
statement of full responsibility on the implementation ofits commitments prior particular circumstances of this case. So often have we ruled that this Court
to the official release of the ECC. is not merely a court of law but a court of justice. We find that there are
several circumstances present in this case which militate against the
The definition of the ECC in the Revised Manual highlights the importance of invalidation of the ECC on this ground.
the signing of the Statement of Accountability:
We explain.
Environmental Compliance Certificate (ECC) - a certificate of Environmental
Compliance Commitment to which the Proponent conforms with, after DENR- First, the reason for the lack of signature was not adequately taken into
EMB explains the ECC conditions, by signing the sworn undertaking of full consideration by the appellate court. To reiterate, the matter surfaced during
responsibility over implementation of specified measures which are the hearing of this case on clarificatory questions by the appellate court, viz:
necessary to comply with existing environmental regulations or to operate
within best environmental practices that are not currently covered by existing J. LEAGOGO:
laws. It is a document issued by the DENR/EMB after a positive review of an
ECC application, certifying that the Proponent has complied with all the
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the
requirements of the EIS System and has committed to implement its
Statement of Accountability?
approved Environmental Management Plan. The ECC also provides
guidance to other agencies and to LGUs on EIA findings and
recommendations, which need to be considered in their respective decision- Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz,
making process.157 (Emphasis supplied) Director, representing Redondo Peninsula Energy with office address located
at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in
complying with all conditions in this Environmental Compliance Certificate
As can be seen, the signing of the Statement of Accountabilityis an integral
and significant component of the EIA process and the ECC itself. The evident [ECC][.]" Will you tell this Court why this was not signed?
intention is to bind the project proponentto the ECC conditions, which will
ensure that the project will not cause significant negative environmental MS. MERCADO:
impacts by the "implementation of specified measures which are necessary
to comply with existing environmental regulations or tooperate within best It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was
environmental practices that are not currently covered by existing laws." the one who provided this, I believe, to the lawyers. This copy was not signed
Indeed, the EIA process would be a meaningless exercise if the project because during…
proponent shall not be strictly bound to faithfully comply withthe conditions
necessary toadequately protect the right of the people to a healthful and J. LEAGOGO:
balanced ecology.
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you proponent shall sign the sworn statement of full responsibility on
agree with me that your Exhibit "18" is not signed by Mr. Aboitiz? implementation of its commitments priorto the release of the ECC. Itwould
seem that the ECC was first issued, then it was signed by Mr. Aboitiz, and
MS. MERCADO: thereafter, returned to the DENR to serve as its file copy. Admittedly, there is
lack of strict compliance with the rules although the signature ispresent. Be
thatas it may, we find nothing in the records to indicate that this was done
That’s correct, Your Honor.158 (Emphasis supplied)
with bad faith or inexcusable negligence because of the inadequacy of the
evidence and arguments presented, relative to the issue of lack of signature,
Due to the inadequacy of the transcriptand the apparent lack of opportunity in view of the manner this issue arose in this case, as previously discussed.
for the witness to explain the lack of signature, we find that the witness’ Absent such proof, we are not prepared to rule that the procedure adopted
testimony does not, by itself, indicate that there was a deliberate or malicious by the DENR was done with bad faithor inexcusable negligence but we
intent not to sign the Statement of Accountability. remind the DENR to be more circumspect in following the rules it provided in
the Revised Manual. Thus, we rule that the signature requirement was
Second, as previously discussed, the concerned parties to this case, substantially complied with pro hac vice.
specifically, the DENR and RP Energy, werenot properly apprised that the
issue relative to the lack of signature would be decisive inthe determination Fourth, we partly agree with the DENRthat the subsequent letter-requests for
of the validity of the ECC. Consequently, the DENR and RPEnergy cannot be amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy,
faulted for not presenting proof during the course ofthe hearings to squarely indicate its implied conformity to the ECC conditions. In practical terms, if
tackle the issue of lack of signature. future litigation should occur due to violations of the ECC conditions, RP
Energy would be estopped from denying its consent and commitment to
Third, after the appellate court ruled in its January 30, 2013 Decision that the the ECC conditions even if there was no signature in the Statement of
lack of signature invalidated the ECC,RP Energy attached, to its Motion for Accountability. However, we note that the Statement of Accountability
Partial Reconsideration, a certified true copy of the ECC, issued by the precisely serves to obviate any doubt as to the consent and commitment
DENREMB, which bore the signature of Mr. Aboitiz. The certified true copy of
of the project proponent to the ECC conditions. At any rate, the aforesaid
the ECC showed that the Statement of Accountability was signed by Mr.
letter-requests do additionally indicate RP Energy’s conformity to the
Aboitiz on December 24, 2008.159
ECC conditions and, thus, negate a pattern to maliciously evade
accountability for the ECC conditions or to intentionally create a
The authenticity and veracity of this certified true copy of the ECC was not
"loophole" in the ECC to be exploited in a possible futurelitigation over
controverted by the Casiño Group in itscomment on RP Energy’s motion for
non-compliance with the ECC conditions.
partial reconsideration before the appellate court nor in their petition before
this Court. Thus, in accordance with the presumption of regularity in the
performance of official duties, it remains uncontroverted that the ECC on file In sum, we rule that the appellate court erred when it invalidated the ECC on
with the DENR contains the requisite signature of Mr. Aboitiz in the the ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of
Statement of Accountability portion. Accountability relative to the copy of the ECC submitted by RP Energy to the
appellate court. While the signature is necessary for the validity of the ECC,
the particular circumstances of this case show that the DENR and RP Energy
As previously noted, the DENR and RPEnergy were not properly apprised
were not properly apprised of the issue of lack ofsignature in order for them
that the issue relative to the lack ofsignature would be decisive in the
to present controverting evidence and arguments on this point, as the matter
determination of the validity of the ECC. As a result, we cannot fault RP
only developed during the course of the proceedings upon clarificatory
Energy for submitting the certified true copy of the ECC only after it learned
questions from the appellate court. Consequently, RP Energy cannot be
that the appellate court had invalidated the ECC on the ground of lack
faulted for submitting the certified true copy of the ECC only after it learned
ofsignature in its January 30, 2013 Decision.
that the ECC had been invalidated on the ground of lack of signature in the
January 30, 2013 Decision of the appellate court.
We note, however, that, as previously discussed, the certified true copy of
the Statement of Accountability was signed by Mr. Aboitiz on December 24,
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the
2008 or two days after the ECC’s official release on December 22, 2008. The
Statement of Accountability portion, was issued by the DENR-EMB and
aforediscussed rules under the Revised Manual, however, state that the
remains uncontroverted. Itshowed that the Statement of Accountability was were required to prepare, file and include a statement (i.e., Environmental
signed by Mr. Aboitiz on December 24, 2008. Although the signing was done Impact Statement or EIS) containing:
two days after the official release of the ECC on December 22, 2008, absent
sufficient proof, we are not prepared to rule that the procedure adoptedby the (a) the environmental impact of the proposed action, project or
DENR was done with bad faith or inexcusable negligence. Thus, werule that undertaking;
the signature requirement was substantially complied with pro hac vice.
(b) any adverse environmental effect which cannot be avoided
III. should the proposal be implemented;

Whether the first and second amendments to the ECC are invalid for failure (c) alternative to the proposed action;
to undergo a new environmental impact assessment (EIA) because of the
utilization of inappropriate EIA documents. (d) a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement
Upholding the arguments of the Casiño Group, the appellate court ruled that of the longterm productivity of the same; and
the first and second amendments tothe ECC were invalid because the ECC
contained an express restriction that any expansion of the project beyond the
(e) whenever a proposal involves the use of depletable or non-
project description shall be the subject of a new EIA. It found that both renewable resources, a finding must be made that such use and
amendments failed to comply with the appropriate EIA documentary commitment are warranted.161
requirements under DAO 2003-30 and the Revised Manual. In particular, it
found that the Environmental Performance Report and Management Plan
(EPRMP) and Project Description Report (PDR), which RP Energy submitted To further strengthen and develop the EIS, PD1586 was promulgated, which
tothe DENR, relative to the application for the first and second amendments, established the Philippine Environmental Impact Statement System (PEISS).
respectively, were not the proper EIA document type. Hence, the appellate The PEISS is "a systems-oriented and integrated approach to the EIS
court ruled that the aforesaid amendments were invalid. system to ensure a rational balance between socio-economic development
and environmental protection for the benefit of present and future
generations."162 The ECC requirement ismandated under Section 4 thereof:
Preliminarily, we must state that executive actions carry presumptive validity
so that the burden of proof is on the Casiño Group to show that the
procedure adopted bythe DENR in granting the amendments to the ECC SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and
were done with grave abuse of discretion. More so here because the Projects. The President of the Philippines may, on his own initiative or upon
administration of the EIA process involves special technical skill or recommendation of the National Environmental Protection Council, by
knowledge which the law has specifically vested in the DENR. proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or
After our own examination of DAO 2003-30 and the Revised Manual as well area without first securing an Environmental Compliance Certificate issued
as the voluminous EIA documents of RP Energy appearing in the records of
by the President or his dulyauthorized representative. x x x (Emphasis
this case, we find that the appellate court made an erroneous interpretation
supplied)
and application of the pertinent rules.
The PEISS consists of the Environmental Impact Assessment (EIA) process,
We explain. which is mandatory for private orpublic projects thatmay significantly affect
the quality of the environment. It involves evaluating and predicting the likely
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, impacts of the project on the environment, designing appropriate preventive,
this law recognized the right ofthe people to a healthful mitigating and enhancement measures addressing these consequences to
environment.160 Pursuant thereto, in every action, project or undertaking, protect the environment and the community’s welfare.163
which significantly affects the quality of the environment, all agencies and
instrumentalities of the national government, including government-owned or
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system
-controlled corporations, as well as private corporations, firms, and entities
or procedure to determine when a project is required to secure an ECC and
when it is not. When an ECC is not required, the project proponent procures 1. Environmental Impact Statement166 (EIS),
a Certificate of Non-Coverage (CNC).164 As part of the EIA process, the
project proponent is required to submit certain studies or reports (i.e., EIA 2. Initial Environmental Examination167 (IEE) Report,
document type) to the DENR-EMB, which willbe used in the review process
in assessing the environmental impact of the project and the adequacy of the
3. Initial Environmental Examination168 (IEE) Checklist Report,
corresponding environmental management plan or program to address such
environmental impact. This will then be part of the bases to grant or deny the
application for an ECC or CNC, as the case may be. 4. Environmental Performance Report and Management
Plan169 (EPRMP), and
Table 1-4 of the Revised Manual summarizes the required EIA document
type for each project category. It classifies a project as belonging to group I, 5. Project Description170 (PD) or Project Description Report (PDR).
II, III, IV or V, where:
Thus, in the course of RP Energy’s application for anECC, it was required by
I- Environmentally Critical Projects (ECPs) in either Environmentally the DENR-EMB to submit an EIS because the subject project is: an ECP,
Critical Area (ECA) or Non-Environmentally Critical Area (NECA), new and a single project.

II- Non-Environmentally Critical Projects (NECPs) in ECA, The present controversy, however, revolves around, not an application for an
ECC, but amendments thereto.
III- NECPs in NECA,
RP Energy requested the subject first amendment to its ECC due to its
desire to modify the project design through the inclusion of a barge wharf,
IV- Co-located Projects, and seawater intake breakwater, subsea discharge pipeline, raw water collection
system, drainage channel improvement and a 230-kV double transmission
V- Unclassified Projects. line. The DENR-EMB determined that this was a major amendment and,
thus, required RP Energy to submit an EPRMP.
The aforesaid table then further classifies a project, as pertinent to this case,
as belonging to category A,B or C, where: The Casiño Group argued, and the appellate court sustained, that an
EPRMP is not the correct EIA document type based on the definition of an
A- new; EPRMP in DAO 2003-30 and the Revised Manual.

B- existing projects for modification or re-start up; and In DAO 2003-30, an EPRMP is defined as:

C- operating projects without an ECC. Environmental Performance Report and Management Plan (EPRMP) —
documentation of the actual cumulative environmental impacts and
Finally, the aforesaid table considers whether the project is single or co- effectiveness of current measures for single projects that are already
located.165 After which, it states the appropriateEIA document typeneeded for operating but without ECC's, i.e., Category A-3. For Category B-3 projects, a
the application for an ECC or CNC, as the case may be. checklist form of the EPRMP would suffice;171(Emphasis supplied)

The appropriate EIA document type vis-à-vis a particular project depends on Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is
the potential significant environmental impact of the project. At the highest required for "A-2: Existing and to beexpanded (including undertakings that
level would be an ECP, such as the subject project. The hierarchy of EIA have stopped operations for more than 5 years and plan to re-start with or
document type, based on comprehensiveness and detail of the study or without expansion) and A-3: Operating without ECC."
report contained therein, insofar as single projects are concerned, is as
follows: On the other hand, the Revised Manual delineates when an EPRMP is the
proper EIA document type, thus:
For operating projects with previous ECCs but planning or applying for modification or expansion, or (2) operating but without an ECC. Instead, the
clearance to modify/expand or re-start operations, or for projects operating subject project is an unimplemented or a non-implemented, hence,non-
without an ECCbut applying to secure one to comply with PD 1586 operating project with a previous ECC but planning for modification or
regulations, the appropriate document is not an EIS but an EIA Report expansion.
incorporating the project’s environmental performance and its current
Environmental Management Plan. This report isx x x anx x x Environmental The error in the above theory lies in the failure to consider or trace the
Performance Report and Management Plan (EPRMP) for single project applicable provisions of DAO 2003-30 and the Revised Manual on
applications x x x172 (Emphasis supplied) amendments to an ECC.

In its "Glossary," the Revised Manual defines an EPRMP as: The proper starting point in determining the validity of the subject first
amendment, specifically, the propriety of the EIA document type (i.e.,
Environmental Performance Report and Management Plan (EPRMP) - EPRMP) which RP Energy submitted in relation to its application for the
documentation of the actual cumulative environmental impacts and aforesaid amendment, must of necessity be the rules on amendments to an
effectiveness of current measures for single projects that are already ECC.174 This is principally found in Section 8.3,Article II of DAO 2003-03, viz:
operating but without ECCs.173 (Emphasis supplied)
8.3 Amending an ECC
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required
for "Item I-B: Existing Projects for Modification or Re-start up (subject to Requirements for processing ECC amendments shall depend on the nature
conditions in Annex 2-1c) and I-C: Operating without ECC." of the request but shall be focused on the information necessary to assess
the environmental impact of such changes.
From these definitions and tables, an EPRMP is, thus, the required EIA
document type for an ECP-single project which is: 8.3.1. Requests for minor changes to ECCs such as
extension of deadlines for submission of post-ECC
1. Existing and to be expanded (including undertakings that have requirements shall be decided upon by the endorsing
stopped operations for more than 5 years and plan to re-start with or authority.
without expansion);
8.3.2. Requests for major changes to ECCs shall be decided
2. Operating but without ECCs; upon by the deciding authority.

3. Operating projects with previous ECCs but planning or applying 8.3.3. For ECCs issued pursuant to an IEE or IEE checklist,
for clearance to modify/expand orre-start operations; and the processing of the amendment application shall not
exceed thirty (30) working days; and for ECCs issued
4. Existing projects for modification or re-start up. pursuant to an EIS, the processing shall not exceed sixty
(60) working days. Provisions on automatic approval related
to prescribed timeframes under AO 42 shall also apply for
It may be observed that, based from the above, DAO2003-30 and the
Revised Manual appear to use the terms "operating"and "existing" the processing of applications to amend ECCs. (Emphasis
interchangeably. In the case at bar, the subject project has not yet been supplied)
constructed although there have been horizontal clearing operations at the
project site. Implementing the afore-quoted section, the Revised Manual pertinently
states in Section 2.2, paragraph 16:
On its face, therefore, the theory of the Casiño Group, as sustained by the
appellate court — that the EPRMP is not the appropriate EIA document 16) Application Process for ECC Amendments
type— seems plausible because the subject project is not: (1)
operating/existing with a previous ECC but planning or applying for
Figure 2-4 presents how Proponents may request for minor or major changes 2 requirements may range from a Letter-Request to
in their ECCs. Annex 2-1c provides a decision chart for the determination of EPRMP to the EMB CO/RO while for those with
requirements for project modifications, particularly for delineating which Programmatic ECC, a PEPRMP may need to be
application scenarios will require EPRMP (which will be subject to Figure 2-1 submitted to the EMB CO to support the request. I
process) or other support documentations (which will be subject to Figure 2-4 is important to note that for operating projects, the
process). Figure 2-4, in turn, provides: appropriate document is not an EIS but an EIA
Report incorporating the project’s historical
Figure 2-4. Flowchart on Request for ECC Amendments175 environmental performance and its current EMP,
subject to specific documentary requirements
cenario 1: Request for Minor Amendments Scenario 2: Request for Major Amendments detailed in Annex 2-1cfor every modification
scenario.
Typographical error 1. Expansion of project area w/in catchment
described in EIA
3
Extension of deadlines for submission of
st-ECC requirement/s 2. Increase in production capacity or auxiliary
component of the original project
The ECC-endorsing EMB office assigns a For EPRMP/PEPRMP-based requests, EMB form
Extension of ECC validity
Case Handler to evaluate the request Technical/Review Committee to evaluate the
3. Change/s in process flow or technology
request. For other requests, a Case Handler may
Change in company name/ownership solely undertake the evaluation. EMB CO and RO
4. Addition of new product will process P/EPRMP for PECC/ECC under Grou
Decrease in land/project area or I and II respectively. (Go to Figure 2-1)
oduction capacity 5. Integration of ECCs for similar or dissimilar but
contiguous projects (NOTE: ITEM#5 IS3 4
Other amendments deemed PROPONENT’S OPTION, NOT EMB’S)

nor" at the discretion of the 6. Revision/Reformatting of ECC Conditions


MB CO/RO Director ECC-endorsing Authority decides on the ECC-endorsing/issuing Authority (per Table 1-4)
7. Other amendments deemed "major"Letter-Request,
at the based on CH decides on Letter Requests/EPRMP/PEPRMP/Oth
discretion of the EMB CO/RO Director recommendation documents based on EMB CH and/or Tech/Review
Committee recommendations.
Start] 1[Start]
Maximum Processing Time to Issuance of Max Processing Time to Issuance of Decision
thin three (3) years from ECC issuance Within three (3) years from ECC issuance (for Decision
r projects not started)176 OR at any time projects not started)177 OR at any time during project
ring project implementation, the Proponent implementation, the Proponent prepares EMBand CO 7 workdays CO PEPRMP CO EPRMP RO RO
epares and submits to the ECC-endorsing submits to the ECC-endorsing DENR-EMB office a PEPRMP EPRM
NR-EMB office a LETTER-REQUEST for LETTER-REQUESTfor ECC amendments, including
EMB RO 7 workdays 120 90 60 30
C amendment, including data/information, data/information, reports or documents to
ports or documents to substantiate the substantiate the requested revisions.
quested revisions. workdays workdays workdays workda
2
Other document applications: max 30 workdays
For projects that have started implementation, EMB (EMB CO and RO)
evaluates request based on Annex 2-1cfor various
scenarios of project modification. Documentary
auxiliary component of covered project) threshold is Request with brief description
the original project which assumed that impacts are not additional capacity or
will eithernot entail significant; component
Noteworthy in the above, which is pertinent to the issue at hand, is that the exceedance of PDR (non-
amendment process squarely applies to projects not started, such as the covered project) Modification scenario and
subject project, based on the phrase "[w]ithin three (3) years from ECC thresholds or EMP & ERA decision process are applicable
issuance (for projects not started) x x x". can still address impacts to both nonimplemented and
& risks arising from operating projects issued ECCs
Annex 2-1c, in turn, provides a "Decision Chart for Determination of modification
Requirements For Project Modification." We reproduce below the first three
4.
Increase in capacity or Exceedance of PDR (non- ECC Amendment
columns of Annex 2-1c, as are pertinent to the issue at hand:
auxiliary component of covered) threshold is assumed /Environmental Performanc
the original project which that impacts may be potentially Report and Management Pla
ANNEX 2-1c will either exceed PDR significant, particularly if (EPRMP)
(noncovered project) modification will result to a next
DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR thresholds, or EMP & higher level of threshold range
PROJECT MODIFICATION178 ERA cannot address
impacts and risks arising Modification scenario and
Proposed Modifications to Analysis of Proposed from modification
Resulting Decision decision process are applicable
the Current Project Modifications Document/Type of EIA Report to both nonimplemented and
Required operating projects with or
without issued ECCs
Operational projects, or those
5.
which have stopped Change/s
for ≤5 in process flow EMP and ERA can still address ECC Amendment /Letter
or
years and plan to re-starttechnology impacts & risks arising from Request with brief process
modification description
For Groups I and II EISbased
Projects with an ECC applying EMP and ERA cannot address ECC Amendment
for modification impacts & risks arising from /Environmental Performanc
modification Report and Management Pla
Expansion of land/project Since the modification will be in ECC Amendment /Letter (EPRMP)
area w/in catchment or an area already described and Request with brief description of
environment described in evaluated in the original EIA 6. Additional
activities in the additional area component or Activity is directly lessening or ECC Amendment /Letter
the original EIA Report Report, incremental impacts products which will mitigating the project’s impacts Request with consolidated
from additional land enhance the environment on the environment. However, Project Description Report o
development will have been (e.g. due to compliance to to ensure there is no new project component and
addressed in the approved new stringent component in the modification integrated EMP
EMP requirements) or lessen which fall under covered project
impacts on the types, EMB will require
Expansion of land/project It is assumed the modification ECC Amendmentenvironment (e.g. thru disclosure of the description of
area OUTSIDE proposal may have significant /Environmental Performance
utilization of waste into the components and process
catchment or potential impacts due to Report and Management new Plan
products) with which the new product will
environment described in absence of prior assessment as (EPRMP) be developed.
the original EIA Report to how the project may affect
the proposed expansion area 7. Downgrade project size No incremental adverse From ECC Amendment to
or area or other units of impacts; may result to lower Relief of ECC Commitment
Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter measure of thresholds project threshold or may result (Conversion to CNC): /Lette
limits to non-coverage Request only Scenario 2: Request for Major Amendments

Conversion to new Considered new application but New ECC /EIS 1. Expansion of project area w/in catchment described in EIA
project type (e.g. bunker- with lesser data requirements
fired plant to gas-fired) since most facilities are
2. Increase in production capacity or auxiliary component of the
established; environmental
original project180
performance in the past will
serve as baseline; However, for
operating projects, there may 3. Change/s in process flow or technology
be need to request for Relief
from ECC Commitment prior to 4. Addition of new product
applying for new project type to
ensure no balance of 5. Integration of ECCs for similar or dissimilar but contiguous
environmental accountabilities projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
from the current project
Integration of ECCs for No physical change in project ECC Amendment /Letter 6. Revision/Reformatting of ECC Conditions
similar or contiguous size/area; no change in Request with consolidated
projects process/technology but Project Description Report and 7. Other amendments deemed "major at the discretion of the EMB
improved management of integrated EMP CO/RO Director
(Note: Integration of continuous projects by having
ECCs is at the option of an integrated planning The Casiño Group does not controvert this finding by the DENR-EMB and we
the Proponent to document in the form or an find the same reasonably supported by the evidence on record considering
request/apply) integrated ECC (ECC that, among others, the construction of a 230-kVdouble transmission line
conditions will be harmonized would result in major activities outside the project site which could have
across projects; conditions significant environmental impacts.
relating to requirements within
other agencies’ mandates will Consequently, the amendment was considered asfalling under Item#4 of
be deleted) Annex 2-1c, and, thus, the appropriate EIA document typeis an EPRMP, viz:
Revision/ Reformatting of No physical change on the ECC Amendment /Letter
ECC Conditions project but ECC conditions Request4.onlyIncrease in capacity or Exceedance of PDR (non- ECC Amendment
relating to requirements within auxiliary component of the covered) thresholds is assumed /Environmental Performance
other agencies’ mandates will original project which will that impacts may be potentially Report and Management Plan
be deleted either exceed PDR (non- significant, particularly if (EPRMP)182
covered project) thresholds, modification will result to a next
We now apply these provisions to the case at bar. or EMP & ERA cannot higher level of threshold range
address impacts and risks
arising from modification Modification scenario and
To reiterate, the first amendment to the ECC was requested by RP Energy
due to its planned change of project design involving the inclusion of a barge decision process are applicable
wharf, seawater intake breakwater, subseadischarge pipeline, raw water to both nonimplemented and
collection system, drainage channel improvement and a 230-kV double operating projects with or
179
transmission line. The DENR-EMB determined that the proposed without issued ECCs181
modifications involved a major amendment because it will result in
anincrease in capacity or auxiliary component, as per Scenario 2,Item #2 of Note that the Chart expressly states that, "[m]odification scenario and
Figure 2-4: decision process are applicable to both non-implementedand operating
projects withor without ECCs."183 To recall, the subject project has not been This brings us to the next logicalquestion, did the EPRMP provide the
constructed and is not yet operational, although horizontal clearing activities necessary information in order for the DENR-EMB to assess the
have already been undertaken at the project site. Thus, the subject project environmental impact of RP Energy’s request relative to the first
may be reasonably classified as a non-implemented project with an issued amendment?
ECC, which falls under Item#4 and, hence, an EPRMP is the appropriate EIA
document type. We answer in the affirmative.

This lengthy explanation brings us toa simple conclusion. The definitions in In the first place, the Casiño Group never attempted to prove that the subject
DAO 2003-30 and the Revised Manual, stating that the EPRMP is applicable EPRMP, submitted by RP Energy to the DENR-EMB, was insufficient for
to (1) operating/existing projectswith a previous ECC but planning or applying purposes of evaluating the environmental impact of the proposed
for modification or expansion, or (2) operating projects but without an ECC, modifications to the original project design. There is no claim that the data
were not an exclusive list. submitted were falsified or misrepresented. Neither was there an attempt to
subpoena the review process documents of the DENR to establish thatthe
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, grant of the amendment to the ECC was done with grave abuse of discretion
plainly show that the EPRMP can, likewise, be used as an appropriate EIA or to the grave prejudice of the right to a healthful environment of those who
document type for a single, non-implemented project applying for a major will beaffected by the project. Instead, the Casiño Group relied solely on the
amendment to its ECC, involving an increase in capacity or auxiliary definition of terms in DAO 2003-30 and the Revised Manual, which
component, which will exceed PDR (non-covered project) thresholds, or approach, as previously discussed,was erroneous.
result in the inability of the EMP and ERA to address the impacts and risks
arising from the modification, such as the subject project. At any rate, we have examined the contents of the voluminous EPRMP
submitted by RP Energy and wefind therein substantial sections explaining
That the proposed modifications in the subject project fall under this class or the proposed changes as well as the adjustments that will be made in the
type of amendment was a determination made by the DENR-EMBand, environmental management plan in order to address the potential
absent a showing of grave abuse of discretion, the DENR-EMB’s findings are environmental impacts of the proposed modifications to the original project
entitled to great respect because it is the administrative agency with the design. These are summarized in the "Project Fact Sheet"186 of the EPRMP
special competence or expertise to administer or implement the EIS System. and extensively discussed in Section 4187 thereof. Absent any claim or proof
The apparent confusion of the Casiño Group and the appellate court is to the contrary, we have no bases to conclude that these data were
understandable. They had approached the issue with a legal training mindset insufficient to assess the environmental impact of the proposed
or background. As a general proposition, the definition of terms in a statute or modifications. In accordance with the presumption of regularity in the
rule is controlling as to its nature and scope within the context of legal or performance of official duties, the DENR-EMB must be deemed to have
judicial proceedings. Thus, since the procedure adopted by the DENR-EMB adequately assessed the environmental impact of the proposed changes,
seemed to contradict or go beyond the definition of terms in the relevant before granting the request under the first amendment to the subject ECC.
issuances, the Casiño Group and the appellate court concluded that the
procedure was infirm. In sum, the Revised Manual permits the use of an EPRMP, as the
appropriate EIA document type, for major amendments to an ECC, even for
However, a holistic reading of DAO2003-30 and the Revised Manual will an unimplemented or non-implementedproject with a previous ECC, such as
show that such a legalistic approach inits interpretation and application is the subject project. Consequently, we find that the procedure adopted by the
unwarranted. This is primarily because the EIA process is a system, not a set DENR, in requiring RP Energy to submitan EPRMP in order to undertake the
of rigid rules and definitions. In the EIA process, there is much room for environmental impact assessment of the planned modifications to the original
flexibility in the determination and use ofthe appropriate EIA document type project design, relative to the first amendment to the ECC, suffers from no
as the foregoing discussion has shown.184 To our mind, whatshould be infirmity.
controlling is the guiding principle set in DAO 2003-30 in the evaluation of
applications for amendments to ECCs, as stated in Section 8.3 thereof: We apply the same framework of analysis in determining the propriety of a
"[r]equirements for processing ECC amendments shall depend on the nature PDR, as the appropriate EIA document type, relative to the second
of the requestbut shall be focused on theinformation necessary to assess the amendment to the subject ECC.
environmental impact of such changes."185
Again, the Casiño Group, as sustained by the appellate court, relied on the resources, production system, waste or pollution generation and control and
definitions of a PDR in DAO 2003-30 and the Revised Manual: the activities of a proposed project. It includes a description of the use of
human resources as well as activity timelines, during the pre-construction,
Project Description (PD) — document, which may also be a chapter in an construction, operation and abandonment phases.190
EIS, that describes the nature, configuration, use of raw materials and
natural resources, production system, waste or pollution generation and We will no longer delve intothe details of these definitions. Suffice it to state,
control and the activities of a proposed project. It includes a description of the similar to the discussion on the EPRMP, that if we go by the strict limits of
use of human resources as well as activity timelines, during the pre- these definitions, the PDR relative to the subject second amendment would
construction, construction, operation and abandonment phases. It is tobe not fall squarely under any of the above.
used for reviewing co-located and single projects under Category C, aswell
as for Category D projects.188 However, again, these are not the only provisions governing the PDR in the
Revised Manual.
xxxx
After the favorable grant of the first amendment, RP Energy applied for
a) For new projects: x x x For non-covered projects in Groups II and III, a x x another amendment to its ECC, this time inconsideration of its plan to
x Project Description Report (PDR) is the appropriate document to secure a change the configuration of the project from 2 x 150 MWto 1 x 300 MW. In
decision from DENR/EMB. The PDR is a "must" requirement for practical terms, this meant that the subject project will still produce 300 MW
environmental enhancement and mitigation projects in both ECAs (Group II) of electricity but will now make use of only one boiler (instead of two) to
and NECAs (Group III) to allow EMB to confirm the benign nature of achieve greater efficiency in the operations of the plant. The DENR-EMB
proposed operations for eventual issuance of a Certificate ofNon-Coverage determined191 this amendment to be minor, under Scenario 1, Item#6 of
(CNC). All other Group III (non-covered) projects do not need to submit Figure 2-4:
PDRs – application is at the option of the Proponent should it need a CNC for
its own purposes, e.g. financing pre-requisite. For Group V projects, a PDR is Scenario 1: Request for Minor
required to ensure new processes/technologies or any new unlisted project
does not pose harm to the environment. The Group V PDR is a basis for
Amendments
either issuance of a CNC or classification of the project into its proper project
group.
1. Typographical error
b) For operating projects with previous ECCs but planning or applying for
clearance to modify/expand or re-start operations, or for projects operating 2. Extension of deadlines for submission of post-ECC requirement/s
without an ECC but applying to secure oneto comply with PD 1586
regulations, the appropriate document is not an EIS but an EIA Report 3. Extension of ECC validity
incorporating the project’s environmental performance and its current
Environmental Management Plan. This report is either an (6) Environmental 4. Change in company name/ownership
Performance Report and Management Plan (EPRMP) for single project
applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project 5. Decrease in land/project area or production capacity
applications. However, for small project modifications, an updating of the
project description or the Environmental Management Plan with the use of
6. Other amendments deemed "minor" at the discretion of the EMB
the proponent’s historical performance and monitoring records may
CO/RO Director192
suffice.189
— because (1) there is no increase in capacity; (2) it does not constitute any
xxxx
significant impact; and (3) its EMP and ERA as specified in the submitted
EPRMP remain the same.193 Relative to Annex 2-1c, the requested
Project Description (PD) - document, which may also be a chapter in an EIS, amendment was, in turn, determinedto fall under Item#3:
that describes the nature, configuration, use of raw materials and natural
Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter a result of the change from 2 x 150 MW to 1 x 300 MW
198 Consequently, the PDR merely reiterates the same
auxiliary component of the covered project) thresholds is Request with brief descriptionconfiguration.
of
original project which will assumed that impacts are not additional capacity or mitigating measures that will presumably address the minor modifications to
either not entail significant; component195 the project design. Again, no evidence was presented to show substantial
exceedance of PDR (non- errors or misrepresentations in these data or their inadequacy for providing
covered project) the bases for the DENR-EMB to assess the environmental impact of the
Modification scenario and
thresholds or EMP & ERA proposed modifications under the second amendment.
decision process are applicable
can still address impacts & to both non-implemented and
risks arising from operating projects issued In fine, absent proof to the contrary, bearing in mind that allegations are not
modification ECCs194 proof, we sustain the procedure adoptedby the DENR-EMB in requiring RP
Energy to submit a PDR and, on the basis thereof, approving the request for
the second amendment.
We make the same observation, as before, that the above applies to an
unimplemented or non-implemented project with a previous ECC, like the In another vein, we note that the appellate court proceeded from the
subject project. Although it may be noted thatthe proposed modification does erroneous premise that the EIA is a document, when it repeatedly stated that
not squarely fall under Item#3, considering that, as previously the amendments to the ECC require a new EIA, and not merely an EPRMP
mentioned,there will be no increase in capacity relative to the second or PDR. The appellate court relied on the provisoin the ECC, which stated
amendment, still, we find nothing objectionable to this classification by the that "[a]ny expansion of the project beyond the project description or any
DENR-EMB, for it seems plain enough that this classification was used change in the activity or transfer of location shall besubject to a new
because the modification was deemed too minor to require a detailed project Environmental Impact Assessment."199
study like an EIS or EPRMP. Since this is the classification most relevant and
closely related to the intended amendment, following the basic precept that
However, as correctly pointed out by the DENR and RP Energy, the EIA is
the greater includes the lesser, the DENR-EMB reasonably exercised its
discretion in merely requiring a letter request with a brief description of the not a document but a process:
modification.
Environmental Impact Assessment (EIA) — processthat involves evaluating
and predicting the likely impacts of a project (including cumulative impacts)
As earlier noted, the PDR is the EIA document type with the least detail, and,
thus, applicable to such minor modifications. Thus, the DENR-EMB cannot on the environment during construction, commissioning, operation and
be faulted for requiring RPEnergy to submit a PDR relative to its application abandonment. It also includes designing appropriate preventive, mitigating
and enhancement measures addressing these consequences to protect the
for the second amendment. Consequently, as before, we findthat the
environment and the community's welfare.The process is undertaken by,
Revised Manual supports the procedure adopted by the DENR-EMB in
among others, the project proponent and/orEIA Consultant, EMB, a Review
requiring RP Energy to submit a PDR in order to assess the environmental
Committee, affected communities and other stakeholders.200 (Emphasis
impact of the planned modifications relative to the second amendment.
supplied)
In their Petition before this Court, the Casiño Group boldly asserts that
When the provisoin the ECC, therefore, states that a new EIA shall
"[t]here is nothing in the Project Description Report that provides an
beconducted, this simply means that the project proponent shall be required
environmental impact assessment of the effects of constructing and
to submit such study or report, as warranted by the DENR Rules and
operating a single 300-MW generating unit."196 However, to our dismay, as in
their other serious allegations in their Petition for Writ ofKalikasan, the same circumstances, which will sufficiently aid the DENR in making a new EIA and,
is, likewise, baseless. Apart from such a sweeping claim, the Casiño Group thus, determine whether to grant the proposed amendment (or project
modification). Aswe have seen, consistent with DAO 2003-30 and the
has provided no evidence or argument to back up the same.
Revised Manual, the DENR required RP Energy to submit an EPRMP and a
PDR relative to the latter’s request involving the first and second
An examination of the PDR readily reveals that it contains the details of the amendments, respectively, which led to the new EIA of the project in
proposed modifications197 and an express finding that no significant compliance with the provisoof the ECC.
environmental impact will be generated bysuch modifications, as in fact it is
expected that the operation of the power plant will become more efficient as
Verily, the various EIA documents, such as the EPRMP and PDR, are mere rules as may be deduced from the definition, nature and scope of an ECC
tools used by the DENR to assess the environmental impact of a particular under DAO 2003-03 and the Revised Manual. The DENR explains that the
project. These documents are flexibly used by the DENR, as the issuance of an ECC does not exempt the project proponent from securing
circumstances warrant, in order to adequately assess the impacts of a new other permits and clearances as required under existing laws, including the
project or modifications thereto. Being the administrative agency entrusted CNO, and that the final decision on whether a project will be implemented
with the determination of which EIA document type applies to a particular lies with the concerned local government unit/s or the lead government
application for an amendment to an ECC, falling as it does within its agency which has sectoral mandate to promote the government
particular technical expertise, wemust accord great respect to its programwhere the project belongs.
determination, absent a showing of grave abuse of discretion or patent
illegality. We agree with the DENR and RP Energy.

In sum, we find that the appellate court erred when it ruled that the first and Section 59, Chapter VIII of the IPRA Law provides:
second amendments to the subject ECC wereinvalid for failure to comply
with a new EIA and for violating DAO 2003-30 and the Revised Manual. The SEC. 59. Certification Precondition. All departments and other governmental
appellate court failed to properly consider the applicable provisions in DAO
agencies shall henceforth be strictly enjoined from issuing, renewing, or
2003-30 and the Revised Manual on amendments to ECCs. Our examination
granting any concession,license or lease, or entering into any production-
of the provisions on amendments to ECCs, as well as the EPRMP and PDR
sharing agreement, without prior certification from the NCIP that the area
themselves, shows that the DENR reasonably exercised its discretion in
affected does not overlap with any ancestral domain.Such certification shall
requiring an EPRMP and a PDR for the first and second amendments, only be issued after a field-based investigation is conducted by the Ancestral
respectively. Through these documents, which the DENR reviewed, a new Domains Office of the area concerned: Provided, That no certification shall
EIA was conducted relative to the proposed project modifications. Hence,
be issued by the NCIP without the free and prior informed and written
absent sufficient showing of grave abuse of discretion or patent illegality,
consent of ICCs/IPs concerned: Provided, further, That no department,
relative to both the procedure and substance of the amendment process, we
government agency or government-owned or -controlled corporation may
uphold the validity of these amendments.
issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the
IV. ICCs/IPs shall have the right to stop or suspend, in accordance with this Act,
any project that has not satisfied the requirement of this consultation
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA process. (Emphasis supplied)
Law, is a precondition to the issuance of anECC and the lack of its prior
issuance rendered the ECC invalid. While Section 9, Part II, Rule VIII of National Commission on Indigenous
Peoples (NCIP) Administrative Order No. 01-98201 states:
The appellate court ruled that the ECC issued in favor of RP Energy on
December 22, 2008 is invalid because the CNO covering the subject project SECTION 9. Certification Precondition Prior to Issuance of any Permits or
was issued only on October 31, 2012 or almost fouryears from the timeof Licenses. —
issuance of the ECC. Thus, the ECC was issued in violation of Section 59 of
the IPRA Law and its implementing rules which require that a CNO be
a. Need for Certification. No department of government or other
obtained prior to the issuance of a government agency of, among others, a
agencies shall issue, renew or grant anyconcession, license, lease,
license or permit. In so ruling, the appellate court implicitly upheld the Casiño
permit, or enter into any production sharing agreement without a
Group’s argument that the ECC is a form of government license or permit prior certification from the NCIP that the area affected does not
pursuant to Section 4 of PD 1586 which requires all entities to securean ECC overlap any ancestral domain.
before (1) engaging in an environmentally critical project or (2) implementing
a project within an environmentally critical area.
b. Procedure for Issuance ofCertification by NCIP.
The DENR and RP Energy, however, argue that an ECC is not the license or
permit contemplated under Section 59 of the IPRA Law and its implementing 1) The certification, above mentioned, shall be issued by the
Ancestral Domain Office, only after a field based
investigation that such areas are not within any certified or and its implementing rules, finds application. Section 4 of PD 1586 provides,
claimed ancestral domains. in part:

2) The certification shall be issued only upon the free, prior, SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
informed and written consent of the ICCs/IPs who will be Projects. — The President of the Philippines may, on his own initiative or
affected by the operation of such concessions, licenses or upon recommendation of the National Environmental Protection Council, by
leases or production-sharing agreements. A written consent proclamation declare certain projects, undertakings or areas in the country as
for the issuance of such certification shall be signed by at environmentally critical. No person, partnership or corporation shall
least a majority of the representatives of all the households undertake or operate any suchdeclared environmentally critical project or
comprising the concerned ICCs/IPs. (Emphasis supplied) area without first securing an Environmental Compliance Certificate issued
by the President orhis duly authorized representative.For the proper
As may be deduced from its subtitle, Section 59 requires as a precondition, management of said critical project or area, the President may by his
relative to the issuance of any concession, license, lease or agreement over proclamation reorganize such government offices, agencies, institutions,
natural resources, a certification issued by the NCIP that the area subject corporations or instrumentalities including the re-alignment of government
thereof does not lie within any ancestral domain.202 This is in keeping with personnel, and their specific functionsand responsibilities. (Emphasis
the State policy to protect the rights of Indigenous Cultural supplied)
Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in
order to ensure their economic, social and cultural well-being as well as to While the above statutory provision reveals that the ECC is an indispensable
recognize the applicability of customary laws governing property rights or requirement before (1) the conduct of an environmentally critical project or
relations in determining the ownership and extent of such ancestral (2) the implementation of a project inan environmentally critical area, it does
domain.203 not follow that the ECC is the "license" or "permit" contemplated under
Section 59 of the IPRA Law and its implementing rules.
The IPRA Law and its implementing rules do not define the terms "license"
and "permit" so that resort to their plain or ordinary meaning in relation to the Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
intendment of the law is appropriate.
SECTION 3. Definition of Terms. —
A "license" has been defined as "a governmental permission to perform a
particular act (such as getting married), conduct a particular business or For the purpose of this Order, the following definitions shall be applied:
occupation, operate machinery or vehicles after proving capacity and ability
to do so safely, or use property for a certain purpose"204 while a "permit" has
xxxx
been defined as "a license or other document given by an authorized public
official or agency (building inspector, department ofmotor vehicles) to allow a
person or business to perform certain acts."205 d. Environmental Compliance Certificate (ECC) — document issued by the
DENR/EMB after a positive review of an ECC application, certifying that
based on the representations of the proponent, the proposed project or
The evident intention of Section 59, in requiring the CNO prior to the
undertaking will not cause significant negative environmental impact. The
issuance of a license or permit, is to prevent the implementation of a project
ECC also certifies that the proponent has complied with all the requirements
that may impair the right of ICCs/IPs to their ancestral domains. The law
of the EIS System and has committed to implement its approved
seeks to ensure that a project willnot overlap with any ancestral domain prior Environmental Management Plan. The ECC contains specific measures and
to its implementation and thereby pre-empt any potential encroachment of, conditions that the project proponent has to undertake beforeand during the
and/or damage to the ancestral domains of ICCs/IPs without their prior and
operation of a project, and in some cases, during the project's abandonment
informed consent.
phase to mitigate identified environmental impacts.

With these considerationsin mind, we now look atthe definition, nature and In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in
scope of an ECC in order to determine if it falls within the ambit of a "license" part:
or "permit" to which the CNO requirement, under Section 59 of the IPRA Law
3) Purpose of the EIA Process iii) The issuance of an ECC or CNC for a project under the
EIS System does not exempt the Proponent from securing
As a basic principle, EIA is used to enhance planning and guide other government permits and clearances as required by
decisionmaking. In this Manual, EIA is primarily presented in the context of a other laws. The current practice of requiring various permits,
requirement to integrate environmental concerns in the planning process of clearancesand licenses only constrains the EIA evaluation
projects at the feasibility stage. Through the EIA Process, adverse process and negates the purpose and function of the EIA."
environmental impacts of proposed actions are considerably reduced through
a reiterative review process of project siting, design and other alternatives, iv) Henceforth, all related previous instructions and other
and the subsequent formulation of environmental management and issuances shall be made consistent with the Circular.
monitoring plans. A positive determination by the DENR-EMB results to the
issuance of an Environmental Compliance Commitment (ECC) document, to c) "Permits, licenses and clearances" are inclusive of other national
be conformed to by the Proponent and represents the project’s and local government approvals such as endorsements, resolutions,
Environmental Compliance Certificate. The release of the ECC allows the certifications, plans and programs, which have to be
project to proceed to the next stage of project planning, which is the cleared/approved or other government documents required within
acquisition of approvals from other government agencies and LGUs, after the respective mandates and jurisdiction of these agencies/LGUs.
which the project can start implementation.
xxxx
xxxx
f) The final decision whether a project will be implemented or not lies either
6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent with the LGUs who have spatial jurisdiction over the project or with the lead
upon the EIA Process to undertake a comprehensive and integrated government agency who has sectoral mandate to promote the government
approach in the review and evaluation of environment-related concerns of program where the project belongs, e.g. DOE for energy projects; DENR-
government agencies (GAs), local government units (LGUs) and the general MGB for mining projects.(Emphasis supplied)
public. The subsequent EIA findings shall provide guidance and
recommendations to these entities as a basis for their decision making
As can be seen, the issuance of the ECC does not, by and of itself, authorize
process.
the implementation of the project. Although it is indispensable before the
covered project can be commenced, asper Section 4 of PD 1586,the
a) An Inter-agency MOA on EIS Streamlining was entered into in issuanceof the ECC does not, as of yet, result inthe implementation of the
1992 by 29 government agencies wherein ECC of covered projects project. Rather, the ECC is intended to, among others, provide guidance or
was agreed to be a prerequisite of all other subsequent government act as a decision-making tool to other government agencies and LGUs which
approvals; have the final authority to grant licenses or permits, such as building permits
or licenses to operate, that will ultimately result in, or authorize the
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 implementation of the project or the conduct of specific activities.
reiterates in effect the intent of the MOA and reinforces the role of
the ECC/CNC as a guidance document to other agencies and LGUs, As a consequence, we find that the CNO requirement under Section 59 of
as follows: the IPRA Law is not required to be obtained prior to the issuance of an ECC.
As previously discussed, Section 59 aims to forestall the implementation of a
i) "No permits and/or clearances issued by other National project that may impair the right of ICCs/IPs totheir ancestral domains, by
Government Agencies and Local Government Units shall be ensuring or verifying that a project will not overlap with any ancestral domain
required in the processing of ECC or CNC applications. prior to its implementation. However, because the issuance of an ECC does
not result in the implementation of the project, there is no necessity to secure
ii) The findings and recommendations ofthe EIA shall be a CNO prior to an ECC’s issuance as the goal orpurpose, which Section 59
transmitted to relevant government agencies for them to seeks to achieve, is, at the time of the issuance of an ECC, not yet
integrate in their decision making prior to the issuance of applicable.
clearances, permits and licenses under their mandates.
In sum, we find that the ECC is not the license or permit contemplated under 7. Mr. Evangelista testified that the project site used to be a firing
Section 59 of the IPRA Law and its implementing rules. Hence, there is no range of the U.S. Armed Forces which would make it impossible to
necessity to secure the CNO under Section 59 before an ECC may be issued be a settlement area of indigenous communities.
and the issuance of the subject ECC without first securing the aforesaid
certification does not render it invalid. 8. Atty. Rodriguez stated that the project site is not covered by a
CADT and that from the start of negotiations on the LDA, the SBMA
V. Ecology Center verified with the NCIP that there was no application
for said area to be covered by a CADT.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA
Law, is a precondition to the consummation of the Lease and Development RP Energy further argues that, in any case, as a matter of prudence, it
Agreement (LDA) between SBMA and RP Energy and the lack of its prior secured a CNO from the NCIP. On October 31, 2012, the NCIP issued the
issuance rendered the LDA invalid. subject CNO over the project site, which should erase any doubt as to
whether it overlaps with an ancestral domain.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA
entered into between the SBMA and RP Energy on June 8, 2010. Similar to Upholding the arguments of the Casiño Group, the appellate court ruled that
the ECC, the LDA was entered into prior to the issuance ofthe CNO on SBMA failed to comply with the CNO requirement and, thus, the LDA entered
October 31, 2012. into between SBMA and RP Energy is invalid. It rejected the reasons given
by SBMA and RP Energy, to wit:
Before this Court, SBMA and RP Energy reiterate their arguments on why
the CNO is no longer necessary in the instant case, to wit: 1. RP Energy’s reliance on its own field investigation that no
indigenous community was found within the vicinity is unavailing
1. Prior to entering into the LDA withRP Energy, SBMA entered into because it was not the field investigation by the NCIP required by the
a lease agreement with HHIC206 -Philippines, Inc. and a CNO was IPRA Law.
already issued therefor which, for all intents and purposes, is
applicable to the area leased by RP Energy being part of contiguous 2. RP Energy acknowledged that Aetas were among the earliest
lots in Redondo Peninsula. settlers in the municipality where the project will be built. Hence, it
was not clearly shown that in 2008, at the time the LDA was entered
2. The site of the power plant project is very distant from the into, there were no indigenouscommunities in the project site.
boundaries of the lone area at the Subic Bay Freeport Zone covered
by an Aeta Community’s Certificate of Ancestral Domain Title 3. SBMA’s representation that the project site is industrial relies on a
(CADT). letter dated March 5, 2008 and the scoping checklist, which are
hearsay evidence.
3. There was no indigenous community within the vicinity of the
project area as stated in RP Energy’s EIS. 4. The statements of Atty. Rodriguez have no probative value
because he is not an officer of SBMA Ecology Center oran officer of
4. The land where the project is located was subsequently classified NCIP.
as industrial by the SBMA. 5. The scoping/procedural screening
checklist classified as "not relevant" the issue of indigenous people. 5. At the time the CNO was issued on October 31, 2012, and the
field investigation relative thereto was conducted by the NCIP, the
6. Ms. Mercado, who was part of the team which prepared the EIS, project site no longer reflected the actual condition on December 22,
testified that she visited the project site ten or more times and did not 2008 when the LDA was entered into because the households which
see any Aeta communities there. occupied the site had already been relocated by then.

6. SBMA, prior to entering into a lease agreement with HHIC,


secured a CNO, but oddly did not do the same with respect to the
lease agreement with RP Energy, considering that both leases cover of third parties.207 As such, the lease could conceivably encroach on an
lands located within the same peninsula. RP Energy appears to have ancestral domain if the CNO is not first obtained.
been accorded a different treatment.
However, implicit in the operation of Section 59 is the practical reality that the
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO concerned government agency must make a preliminary determinationon
for the power plant project because the two projects are situated in whether or not to obtain the required certification in the first place. To
different locations: the HHIC project is located in Sitio Agusuhin,while expound, a government agency, which wishes to lease part of its property
the power plant project is located in Sitio Naglatore. located near Padre Faura Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is obviously inapplicable to its
While we agree with the appellate court that a CNO should have been planned lease. In contrast, a government agency, which intends to lease a
secured prior to the consummation of the LDA between SBMAand RP property in a valley or mountainous region, where indigenous communities
Energy, and not after, as was done here, we find that, under the particular are known to reside, conduct hunting activities, perform rituals, or carry out
circumstances of this case, the subsequent and belated compliance withthe some other activities, should be reasonably expected to secure the CNO
CNO requirement does not invalidate the LDA. prior to consummating the planned lease with third persons.

For convenience, and as starting point of ouranalysis, we reproduce Section Even if the indigenous community does not actuallyreside on the proposed
59 of the IPRA Law below: lease site, the government agency would still be required to obtain the CNO
preciselyto rule out the possibility that the proposed lease site encroaches
SEC. 59. Certification Precondition. All departments and other governmental upon an ancestral domain. The reason for this is that an ancestral domain
does not only cover the lands actually occupied by an indigenous community,
agencies shall henceforth be strictly enjoined from issuing, renewing, or
but all areas where they have a claim of ownership, through time immemorial
granting any concession, license or lease, or entering into any
use, such as hunting, burial or worship grounds and to which they have
productionsharing agreement, without prior certification from the NCIP that
traditional access for their subsistence and other traditional activities. 208
the area affected does not overlap with any ancestral domain.Such
certification shall only be issued after a field-based investigation is conducted
by the Ancestral Domains Office of the area concerned: Provided, That no The wording of the law itself seems to presuppose that if the concession,
certification shall be issued by the NCIP without the free and prior informed lease, license or production-sharing agreement is over natural resources,
and written consent of ICCs/IPs concerned: Provided, further, That no then the CNO should be first obtained. This is because the lastterm,
department, government agency or government-owned or -controlled "production-sharing agreement," normally refers to natural resources. But the
corporation may issue new concession, license, lease, or production sharing problem arises as to what should be considered "natural resources"; for a
agreement while there is a pending application for a CADT: Provided, finally, vacant lot, nearPadre Faura Street, or a forest land, in Mt. Banahaw, could
That the ICCs/IPs shall have the right to stop or suspend, in accordance with both beconsidered as "natural resources," depending on the restrictive or
this Act, any project that has not satisfied the requirement of this consultation expansive understanding of that term.
process. (Emphasis supplied)
After due consideration, we find that the proper rule of action, for purposes of
The law is clear but its actual operation or application should not be application of Section 59, is that all government offices should undertake
interpreted beyond the bounds of reason or practicality. proper and reasonable diligence in making a preliminary determination on
whether to secure the CNO, bearing in mind the primordial State interest in
protecting the rights of ICCs/IPs to their ancestral domains. They should
We explain.
consider the nature and location of the areas involved; the historical
background of the aforesaid areas relative to the occupation, use or claim of
Indeed, a CNO is required prior to the grant of a lease by all government ownership by ICCs/IPs; the present and actual condition of the aforesaid
agencies, including the SBMA. Again, the evident intention is to prevent the areas likethe existence of ICCs/IPs within the area itself or within nearby
impairment of the right of ICCs/IPs to their ancestral domains. A lease, such territories; and such other considerations that would help determine whether
as the LDA under consideration, would result in, among others, granting RP a CNO should be first obtained prior to granting a concession, lease, license
Energy the right to the use and enjoyment of the project site to the exclusion or permit, or entering into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs domain. It would open the doors to abuse because a government agency can
may be present or a claim of ownership may be asserted in the future, no easily claim that it checked with the NCIP regarding any application for an
matter how remote, the proper and prudent course ofaction is to obtain the ancestral domain over a proposed project site while stopping short of
CNO. In case of doubt, the doubt should be resolved in favor of securing the securing a CNO. To reiterate, the legally mandated manner to verify if a
CNO and, thus, the government agency is under obligation tosecure the project site overlaps with an ancestral domain is the CNO,and not through
aforesaid certification in order to protect the interests and rights of ICCs/IPs personal verification by members of a government agency with the NCIP.
to their ancestral domains. This must be so if we are to accord the proper
respect due to, and adequately safeguard the interests and rights of, our Third, that the project site was formerlyused as the firing range of the U.S.
brothers and sisters belonging to ICCs/IPs in consonance with the Armed Forces does not preclude the possibility that a present orfuture claim
constitutional policy209 to promote and protect the rights of ICCS/IPs as of ancestral domain may be made over the aforesaid site. The concept of an
fleshed out in the IPRA Law and its implementing rules. ancestral domain indicates that, even if the use ofan area was interrupted by
the occupation of foreign forces, it may still be validly claimed to be an
In the case at bar, we find, applying this rule of action, that the SBMA should ancestral domain.211
have first secured a CNO before entering into the LDA with RP Energy for
the following reasons. Fourth, that the project site was subsequently classified by the SBMA as
forming part of an industrial zone does not exempt it from the CNO
First, the Subic area is historicallyknown to be the home of our brothers and requirement. The change in the classification of the land is not an exception
sisters belonging to the Aeta communities. In particular, the EIS210 itself of to the CNO requirement under the IPRA Law. Otherwise, government
RP Energy noted that Aeta communities originally occupiedthe proposed agencies can easily defeat the rights of ICCs/IPs through the conversion of
project site of the power plant. Thus, even if we assume that, at the time of land use.
the ocular inspection of the proposed project site in 2008, there were no Aeta
communities seen thereat, as claimed by RP Energy, the exercise of Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and
reasonable prudence should have moved SBMA and RP Energy to secure a purposes, be applicable to RP Energy. However, ascorrectly ruled by the
CNO in order to rule out the possibility that the project site may overlap with appellate court, the CNO issued to HHIC’s shipyard cannot be extended to
an ancestral domain. This is especially so, in view of the observation RP Energy’s project site because they involve two different locations
previously made, that lack of actual occupation by an indigenous community although found within the same land mass. The CNO issued in favor of HHIC
ofthe area does not necessarily mean that it is not a part of anancestral clearly states that the findings in the CNO are applicable only to the shipyard
domain because the latter encompasses areas that are not actually occupied location of HHIC. Last, the steps taken by SBMA, in securing a CNO prior to
by indigenouscommunities but are used for other purposes like hunting, its lease agreement with HHIC, was the proper and prudent course of action
worship or burial grounds. that should have been applied to the LDA with RP Energy. It does notmatter
that HHIC itself asked for the CNO prior to entering into a lease agreement
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with SBMA, as claimed by SBMA, while RP Energy did not make such a
with the NCIP that the project site does not overlap with an ancestral domain. request because, as we have discussed, SBMA had the obligation, given the
However, the person, who allegedly did the verification, and the officer from surrounding circumstances, to secure a CNO in order to rule out the
the NCIP, who was contacted in this alleged verification, were not presented possibility that the project site overlapped with an ancestral domain.
in court. Assuming that this verification did take place and that the SBMA
Ecology Center determined that there is no pendingapplication for a CADT All in all, we find, applying the foregoing rule of action,that SBMA should
covering the project site and that the presently recognized CADT of Aeta have secured a CNO before entering into the LDA with RP Energy.
communities is too far away from the project site, it still does not follow that Considering that Section 59 is a prohibitory statutory provision, a violation
the CNO under Section 59 should have been dispensed with. The acts of thereof would ordinarily result in the nullification of the contract. 212 However,
individual members ofa government agency, who allegedly checked with the we rule that the harsh consequences of such a ruling should not be applied
NCIP that the project site does not overlap with an ancestral domain, cannot to the case at bar.
substitute for the CNO required by law. The reason is obvious. Such posture
would circumvent the noble and laudable purposes of the law in providing the
The reason is that this is the first time that we lay down the foregoing rule of
CNO as the appropriate mechanism in order to validly and officially
action so much so that it would be inequitable to retroactively apply its effects
determine whether a particular project site does not overlap with an ancestral
with respect to the LDA entered into between SBMA and RPEnergy. We also appropriate to the application of Section 59, we refrain from invalidating the
note that, under the particular circumstances of this case, there is no LDA due to equitable considerations.
showing that SBMA and RP Energy had a deliberate or ill intent to escape,
defeat or circumvent the mandate of Section 59 of the IPRA Law. On the VI.
contrary, they appear to have believed in good faith, albeiterroneously, that a
CNO was no longer needed because of the afore-discussed defenses they
Whether compliance with Section 27, inrelation to Section 26, of the LGC
raised herein. When the matter of lack of a CNO relative to the LDA was
(i.e., approval of the concerned sanggunianrequirement) is necessary prior to
brought to their attention, through the subject Petition for Writ ofKalikasan the implementation of the power plant project.
filed by the Casiño Group, RP Energy, with the endorsement of SBMA,
promptly undertook to secure the CNO, which was issued on October 31,
2012 and stated that the project site does not overlap with any ancestral Sustaining the arguments ofthe Casiño Group, the appellate court ruled that
domain.213 the subject project cannot beconstructed and operated until after the prior
approval of the concerned sanggunianrequirement, under Section 27 of the
LGC, is complied with. Hence, the ECC and LDA could not be validly granted
Thus, absent proof to the contrary, weare not prepared to rule that SBMA and entered into without first complying with the aforesaid provision. It held
and RP Energy acted inbad faith or with inexcusable negligence, considering
that all the requisites for the application of the aforesaid provision are
that the foregoing rule of action has not heretofore been laiddown by this
present. As to the pertinent provisions of RA 7227 or "TheBases Conversion
Court. As a result, we hold that the LDA should notbe invalidated due to
and Development Act of 1992," which grants broad powers of administration
equitable considerations present here.
to the SBMA over the Subic Special Economic Zone(SSEZ), the appellate
court ruled that RA 7227 contains a provision recognizing the basic
By so ruling, we clarify that we reject RP Energy’s claim that the belated autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA
submission of the CNO is an "over compliance" on its part. Quite the 7227should be harmonized whereby the concerned sanggunian’spower to
contrary, as we have discussed, the CNO should have been first secured approve under Section 27 must be respected.
given the surrounding circumstances of this case.
The DENR impliedly agrees with the Casiño Group that compliance with
In the same vein, we reject SBMA’s argument thatthe belated application for, Section 27 is still required but without clearly elaborating its reasons therefor.
and submission of the CNO cured whatever defect the LDA had. We have
purposely avoided a ruling to the effect that a CNO secured subsequent to
The SBMA and RP Energy, however, argue that the prior approval of the
the concession, lease, license, permit or production-sharing agreement will concerned sanggunianrequirement, under Section 27, is inapplicable to the
cure the defect. Such a ruling would lead to abuse of the CNO requirement subject project because it is located within the SSEZ. The LGC and RA 7227
since the defect can be cured anyway by a subsequent and belated
cannot be harmonized because of the clear mandate of the SBMA to govern
application for a CNO. Government agencies and third parties, either through
and administer all investments and businesses within the SSEZ. Hence, RA
deliberate intent or negligence, may view it as an excuse not to timely and
7227 should be deemed as carving out an exception to the prior approval of
promptly secure the CNO, even when the circumstances warrant the
the concerned sanggunianrequirement insofar as the SSEZ is concerned.
application for a CNO under the aforediscussed rule of action, tothe damage
and prejudice of ICCs/IPs. Verily, once the concession, lease, license or
permit is issued, or the agreement is entered into without the requisite CNO, We agree with the SBMA and RP Energy.
consequent damages will have already occurred if it later turns out that the
site overlaps with anancestral domain. This is so even if the ICCs/IPs can Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two
have the project stopped upon discovery thatit overlapped with their requirements: (1) prior consultations and (2) prior approval of the concerned
ancestral domain under the last proviso214 of Section 59. To prevent this evil, sanggunian,viz:
compliance with the CNO requirement should be followed through the
aforediscussed rule of action. SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. — It shall be the duty of every national agency or
In sum, we rule that a CNO should have been secured prior to the government-owned or -controlled corporation authorizing or involved in the
consummation of the LDA between SBMA and RP Energy. However, planning and implementation of any project or program that may cause
considering that this is the first time we lay down the rule of action pollution, climatic change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, and extinction of animal or plant implementation of the subject project and already vests in RP Energy the
species, to consult with the local government units, non governmental right to the use and enjoyment of the project site, asin fact horizontal clearing
organizations, and other sectors concerned and explain the goals and activities were already undertaken by RP Energy at the project site by virtue
objectives of the project or program, its impact upon the peopleand the of the LDA.
community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects The prior approval of the concerned sanggunian requirement is an attribute
thereof. (Emphasis supplied) and implementation of the local autonomy granted to, and enjoyed by LGUs
under the Constitution.217 The LGU has the duty to protect its constituents
SECTION 27. Prior Consultations Required. — No project or program shall and interests in the implementation of the project. Hence, the approval of the
be implemented by government authorities unless the consultations concerned sanggunian is required by law to ensure thatlocal communities
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior partake in the fruits of their own backyard.218
approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted For Section 27, in relation to Section 26, to apply, the following requisites
unless appropriate relocation sites have been provided, in accordance with must concur: (1) the planning and implementation of the project or program is
the provisions of the Constitution. (Emphasis supplied) vested in a national agency or government-owned and-controlled
corporation, i.e., national programs and/or projects which are to be
In the case at bar, the Casiño Group only questions the alleged lack of the implemented in a particular local community; and (2) the project or program
prior approval of the concerned sanggunians under Section 27 of the LGC. may cause pollution, climatic change, depletion of non-renewable resources,
Thus, we shall limit our discussion to the resolution of this issue. loss of cropland, rangeland, or forest cover, extinction of animal or plant
(Parenthetically, we note that prior consultations, as required by Section 26 species, or call for the eviction of a particular group of people residing in the
of the LGC, appear to have been complied with. This may begleaned from locality where the project will be implemented.219
the EIS of RPEnergy which contains the documentation of the extensive
public consultations held, under the supervision of the DENR-EMB, relative In the case at bar, the two requisites are evidently present: (1) the planning
to the subject project, as required by the EIA process,215 as well as the and implementation of the subject project involves the Department of Energy,
socialacceptability policy consultations conducted by the SBMA, which DENR, and SBMA; and (2) the subject project may cause pollution, climatic
generated the document entitled "Final Report: Social Acceptability Process change, depletion of non-renewable resources, loss of cropland, rangeland,
for RP Energy, Inc.’s 600-MW Coal Plant Project," as noted and discussed in or forest cover, and extinction of animal or plant species,or call for the
an earlier subsection.216) eviction of a particular group of people residing in the locality where the
project will be implemented. Hence, Section 27 of the LGC should ordinarily
We also note that the Casiño Group argues that the approval of the apply.
concerned sanggunian requirement was necessary prior to the issuance of
the ECC and the consummation of the LDA; the absence of which invalidated It is not disputed that no approval was sought from the concerned
the ECC and LDA. sangguniansrelative to the subject project.1a\^/phi1Whatis more, the affected
LGUs have expressed their strong oppositions to the project through various
We shall no longer discuss at length whether the approval of the concerned sanggunian resolutions.220 However, it is also undisputed that the subject
sanggunian requirement must be complied with prior to the issuance of an project is located within the SSEZ and, thus, under the territorial jurisdiction
ECC. As discussed in an earlier subsection, the issuance of an ECC does of the SBMA pursuant to RA 7227.
not, by itself, result in the implementation of the project. Hence, the purpose
or goal of Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law, Thus, we are tasked to determine the applicability of the prior approval of the
does not yet obtain and, thus, the ECC may be issued evenwithout prior concerned sanggunian requirement, under Section 27 of the LGC, relative to
compliance with Sections 26 and 27 of the LGC. a project within the territorial jurisdiction of the SBMA under RA 7227.

We, thus, limit the discussion as to whether the approval of the concerned RA 7227 was passed on March 13, 1992 in the aftermath of the Mount
sanggunian requirement should have been complied with prior to the Pinatubo eruption and the closure of the Subic Naval Base ofthe U.S. Armed
consummation of the LDA, considering that the LDA is part of the Forces. It sought to revivethe affected areas by creating and developing the
SSEZ into a "self-sustaining industrial, commercial, financial and investment expansive in the sense that the commercial activities, including the
center to generate employment opportunities in and around the zone and to establishment of banks, services, financial institutions, agro-industrial
attract and promote productive foreign investments."221 The SSEZ covered activities, maybe agriculture to a certain extent.
the City of Olangapo and Municipality of Subic in the Province ofZambales
and the lands and its contiguous extensions occupied by the former U.S. This delineates the activities that would have the least of government
Naval Base, which traversed the territories of the Municipalities of Hermosa intervention, and the running of the affairs of the special economic zone
and Morong in the Province of Bataan. Under Section 12 of RA 7227, the would be run principally by the investors themselves, similar toa housing
creation of the SSEZ was made subject to the concurrence by resolution of subdivision, where the subdivision owners elect their representatives to run
the respective sanggunians of the City of Olongapo and the Municipalities of the affairs of the subdivision, toset the policies, to set the guidelines.
Subic, Morong and Hermosa, viz:
We would like to see Subic area converted into a little Hong Kong, Mr.
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence President, where there is a hub of free port and free entry, free duties and
by resolution of the sangguniang panlungsod of the City of Olongapo and the activities to a maximum spur generation of investment and jobs.
sangguniang bayanof the Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and Free-port Zone consisting of
While the investor is reluctant to come in the Philippines, as a rule, because
the City of Olongapo and the Municipality of Subic, Province of Zambales,
of red tape and perceived delays, we envision this special economic zone to
the lands occupied by the Subic Naval Base and its contiguous extensions
be an area where there will be minimum government interference.
as embraced, covered, and defined by the 1947 Military Bases Agreement
between the Philippines and the United States of America as amended, and
within the territorial jurisdiction of the Municipalities of Morong and Hermosa, The initial outlay may not only come from the Government or the Authority as
Province of Bataan, hereinafter referred to as the Subic Special Economic envisioned here, but from them themselves, because they would be
Zone whose metes and bounds shall be delineated in a proclamation to be encouraged to invest not only for the land but also for the buildings and
issued by the President of the Philippines. Within thirty (30) days after the factories. As long as they are convinced that in such an area they can do
approval of this Act, each local government unit shall submit its resolution of business and reap reasonable profits, thenmany from other parts, both local
concurrence to join the Subic Special Economic Zone to the office of the and foreign, would invest, Mr. President.223 (Emphasis in the original)
President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the Zone as provided herein. To achieve the above-mentioned purposes, the law created SBMA to
administer the SSEZ. In the process, SBMA was granted broad and
Subsequently, the aforesaid sanggunians submitted their respective enormous powers as provided for under Section 13(b) of RA 7227:
resolutions of concurrence and the President issued Presidential
Proclamation No. 532, Series of 1995, defining the metes and bounds of the Sec. 13. The Subic Bay Metropolitan Authority. –
SSEZ.
xxxx
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described
the concept of SSEZ as a Freeport: (b) Powers and functions of the Subic Bay Metropolitan Authority -
The Subic Bay Metropolitan Authority, otherwise knownas the Subic
The Freeport was designed to ensurefree flow or movement of goods and Authority, shall have the following powers and function: (1) To
capital within a portion of the Philippine territory in order to attract investors to operate, administer, manage and develop the ship repair and ship
invest their capital in a business climate with the least governmental building facility, container port, oil storage and refueling facility and
intervention. The concept ofthis zone was explained by Senator Guingona in Cubi Air Base within the Subic Special Economic and Free-port Zone
this wise: as a free market in accordance with the policies set forth in Section
12 of this Act;
Senator Guingona. Mr. President, the special economic zone is successful in
many places, particularly Hong Kong, which is a free port. The difference (2) To accept any local or foreign investment, business or
between a special economic zone and an industrial estate is simply enterprise, subject only to such rules and regulations to be