Republic of the Philippines the unexpired term of former Senator Teofisto T. Guingona, Jr.
," which
SUPREME COURT
Manila
EN BANC
G.R. No. 148334 January 21, 2004
ARTURO M. TOLENTINO and ARTURO C. MOJICA, Petitioners,
vs.
COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and
SENATOR GREGORIO B. HONASAN,Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005
dated 5 June 2001 ("Resolution No. 01-005") and Resolution No. NBC
01-006 dated 20 July 2001 ("Resolution No. 01-006") of respondent
Commission on Elections ("COMELEC"). Resolution No. 01-005
proclaimed the 13 candidates elected as Senators in the 14 May 2001
elections while Resolution No. 01-006 declared "official and final" the
ranking of the 13 Senators proclaimed in Resolution No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President
Gloria Macapagal-Arroyo nominated then Senator Teofisto T. Guingona,
Jr. ("Senator Guingona") as Vice-President. Congress confirmed the
nomination of Senator Guingona who took his oath as Vice-President on
9 February 2001.
Following Senator Guingona’s confirmation, the Senate on 8 February
2001 passed Resolution No. 84 ("Resolution No. 84") certifying to the
existence of a vacancy in the Senate. Resolution No. 84 called on
COMELEC to fill the vacancy through a special election to be held
simultaneously with the regular elections on 14 May 2001. Twelve
Senators, with a 6-year term each, were due to be elected in that
election.1 Resolution No. 84 further provided that the "Senatorial
candidate garnering the 13th highest number of votes shall serve only for
ends on 30 June 2004.2
On 5 June 2001, after COMELEC had canvassed the election results
from all the provinces but one (Lanao del Norte), COMELEC issued
Resolution No. 01-005 provisionally proclaiming 13 candidates as the
elected Senators. Resolution No. 01-005 also provided that "the first
twelve (12) Senators shall serve for a term of six (6) years and the
thirteenth (13th) Senator shall serve the unexpired term of three (3) years
of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
President."3 Respondents Ralph Recto ("Recto") and Gregorio Honasan
("Honasan") ranked 12th and 13th, respectively, in Resolution No. 01-
005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica
("petitioners"), as voters and taxpayers, filed the instant petition for
prohibition, impleading only COMELEC as respondent. Petitioners sought
to enjoin COMELEC from proclaiming with finality the candidate for
Senator receiving the 13th highest number of votes as the winner in the
special election for a single three-year term seat. Accordingly, petitioners
prayed for the nullification of Resolution No. 01-005 in so far as it makes
a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without
jurisdiction because: (1) it failed to notify the electorate of the position to
be filled in the special election as required under Section 2 of Republic
Act No. 6645 ("R.A. No. 6645");4 (2) it failed to require senatorial
candidates to indicate in their certificates of candidacy whether they seek
election under the special or regular elections as allegedly required under
Section 73 of Batas Pambansa Blg. 881;5 and, consequently, (3) it failed
to specify in the Voters Information Sheet the candidates seeking election
under the special or regular senatorial elections as purportedly required
under Section 4, paragraph 4 of Republic Act No. 6646 ("R.A. No.
6646").6 Petitioners add that because of these omissions, COMELEC
canvassed all the votes cast for the senatorial candidates in the 14 May
2001 elections without distinction such that "there were no two separate
Senate elections held simultaneously but just a single election for thirteen
seats, irrespective of term."7
Stated otherwise, petitioners claim that if held simultaneously, a special
and a regular election must be distinguished in the documentation as well
as in the canvassing of their results. To support their claim, petitioners
cite the special elections simultaneously held with the regular elections of
13 November 1951 and 8 November 1955 to fill the seats vacated by
Senators Fernando Lopez and Carlos P. Garcia, respectively, who
became Vice-Presidents during their tenures in the Senate. 8 Petitioners
point out that in those elections, COMELEC separately canvassed the
votes cast for the senatorial candidates running under the regular
elections from the votes cast for the candidates running under the special
elections. COMELEC also separately proclaimed the winners in each of
those elections.9
Petitioners sought the issuance of a temporary restraining order during
the pendency of their petition.
Without issuing any restraining order, we required COMELEC to
Comment on the petition.
On 20 July 2001, after COMELEC had canvassed the results from all the
provinces, it issued Resolution No. 01-006 declaring "official and final"
the ranking of the 13 Senators proclaimed in Resolution No. 01-005. The
13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required
petitioners to file an amended petition impleading Recto and Honasan as
additional respondents. Petitioners accordingly filed an amended petition
in which they reiterated the contentions raised in their original petition
and, in addition, sought the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a
special election to fill the seat vacated by Senator Guingona was validly
held on 14 May 2001. COMELEC and Honasan further raise preliminary
issues on the mootness of the petition and on petitioners’ standing to
litigate. Honasan also claims that the petition, which seeks the nullity of
his proclamation as Senator, is actually a quo warranto petition and the
Court should dismiss the same for lack of jurisdiction. For his part, Recto,
as the 12th ranking Senator, contends he is not a proper party to this
case because the petition only involves the validity of the proclamation of
the 13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally –
(a) whether the petition is in fact a petition for quo warranto over
which the Senate Electoral Tribunal is the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill a vacant three-
year term Senate seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Court’s Jurisdiction
A quo warranto proceeding is, among others, one to determine the right
of a public officer in the exercise of his office and to oust him from its
enjoyment if his claim is not well-founded.10 Under Section 17, Article VI of
the Constitution, the Senate Electoral Tribunal is the sole judge of all
contests relating to the qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows,
however, that what petitioners are questioning is the validity of the special
election on 14 May 2001 in which Honasan was elected. Petitioners’
various prayers are, namely: (1) a "declaration" that no special election
was held simultaneously with the general elections on 14 May 2001; (2)
to enjoin COMELEC from declaring anyone as having won in the special
election; and (3) to annul Resolution Nos. 01-005 and 01-006 in so far as
these Resolutions proclaim Honasan as the winner in the special
election. Petitioners anchor their prayers on COMELEC’s alleged failure
to comply with certain requirements pertaining to the conduct of that
special election. Clearly then, the petition does not seek to determine
Honasan’s right in the exercise of his office as Senator. Petitioners’
prayer for the annulment of Honasan’s proclamation and, ultimately,
election is merely incidental to petitioners’ cause of action. Consequently,
the Court can properly exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13
Senators and its subsequent confirmation on 20 July 2001 of the ranking
of the 13 Senators render the instant petition to set aside Resolutions
Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal or
board to desist from committing an act threatened to be done without
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.11 Consequently, the writ will not lie to enjoin acts already
done.12 However, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition yet evading
review.13 Thus, in Alunan III v. Mirasol,14 we took cognizance of a petition to
set aside an order canceling the general elections for the Sangguniang
Kabataan ("SK") on 4 December 1992 despite that at the time the petition
was filed, the SK election had already taken place. We noted
in Alunan that since the question of the validity of the order sought to be
annulled "is likely to arise in every SK elections and yet the question may
not be decided before the date of such elections," the mootness of the
petition is no bar to its resolution. This observation squarely applies to the
instant case. The question of the validity of a special election to fill a
vacancy in the Senate in relation to COMELEC’s failure to comply with
requirements on the conduct of such special election is likely to arise in
every such election. Such question, however, may not be decided before
the date of the election.
On Petitioners’ Standing
Honasan questions petitioners’ standing to bring the instant petition as
taxpayers and voters because petitioners do not claim that COMELEC
illegally disbursed public funds. Neither do petitioners claim that they
sustained personal injury because of the issuance of Resolution Nos. 01-
005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial
interest in a case such that the party has sustained or will sustain direct
injury because of the challenged governmental act.15 The requirement of
standing, which necessarily "sharpens the presentation of
issues,"16 relates to the constitutional mandate that this Court settle only
actual cases or controversies.17 Thus, generally, a party will be allowed to
litigate only when (1) he can show that he has personally suffered some
actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and
(3) the injury is likely to be redressed by a favorable action. 18
Applied strictly, the doctrine of standing to litigate will indeed bar the
instant petition. In questioning, in their capacity as voters, the validity of
the special election on 14 May 2001, petitioners assert a harm classified
as a "generalized grievance." This generalized grievance is shared in
substantially equal measure by a large class of voters, if not all the
voters, who voted in that election.19 Neither have petitioners alleged, in
their capacity as taxpayers, that the Court should give due course to the
petition because in the special election held on 14 May 2001 "tax money
[was] ‘x x x extracted and spent in violation of specific constitutional
protections against abuses of legislative power’ or that there [was]
misapplication of such funds by COMELEC or that public money [was]
deflected to any improper purpose."20
On the other hand, we have relaxed the requirement on standing and
exercised our discretion to give due course to voters’ suits involving the
right of suffrage.21 Also, in the recent case of Integrated Bar of the
Philippines v. Zamora,22 we gave the same liberal treatment to a petition
filed by the Integrated Bar of the Philippines ("IBP"). The IBP questioned
the validity of a Presidential directive deploying elements of the Philippine
National Police and the Philippine Marines in Metro Manila to conduct
patrols even though the IBP presented "too general an interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration,
however, the IBP asserts no other basis in support of its locus standi. The
mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry x x x.
Having stated the foregoing, this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. In not a few cases, the
court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental
significance to the people. Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows
that the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant
threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in
the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.23 (Emphasis
supplied)
We accord the same treatment to petitioners in the instant case in their
capacity as voters since they raise important issues involving their right of
suffrage, considering that the issue raised in this petition is likely to arise
again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be
called to fill any vacancy in the Senate and the House of Representatives
"in the manner prescribed by law," thus:
In case of vacancy in the Senate or in the House of Representatives, a
special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
(Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A.
No. 6645, which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least one (1) year
before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or
the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold a
special election to fill such vacancy. If Congress is in recess, an official
communication on the existence of the vacancy and call for a special
election by the President of the Senate or by the Speaker of the House of
Representatives, as the case may be, shall be sufficient for such
purpose. The Senator or Member of the House of Representatives thus
elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days nor
later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to be
voted for: Provided, however, That if within the said period a general
election is scheduled to be held, the special election shall be held
simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of
R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. – x x x In case
a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the term,
the Commission shall call and hold a special election to fill the vacancy
not earlier than sixty (60) days nor longer than ninety (90) days after the
occurrence of the vacancy. However, in case of such vacancy in the
Senate, the special election shall be held simultaneously with the next
succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the
expiration of the term, Section 2 of R.A. No. 6645, as amended, requires
COMELEC: (1) to call a special election by fixing the date of the special
election, which shall not be earlier than sixty (60) days nor later than
ninety (90) after the occurrence of the vacancy but in case of a vacancy
in the Senate, the special election shall be held simultaneously with the
next succeeding regular election; and (2) to give notice to the voters of,
among other things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election
simultaneously with the 14 May 2001 regular elections, comply with the
requirements in Section 2 of R.A. No. 6645?
A survey of COMELEC’s resolutions relating to the conduct of the 14 May
2001 elections reveals that they contain nothing which would amount to a
compliance, either strict or substantial, with the requirements in Section 2
of R.A. No. 6645, as amended. Thus, nowhere in its resolutions 24 or even
in its press releases25 did COMELEC state that it would hold a special
election for a single three-year term Senate seat simultaneously with the
regular elections on 14 May 2001. Nor did COMELEC give formal notice
that it would proclaim as winner the senatorial candidate receiving the
13th highest number of votes in the special election.
The controversy thus turns on whether COMELEC’s failure, assuming it
did fail, to comply with the requirements in Section 2 of R.A. No. 6645, as
amended, invalidated the conduct of the special senatorial election on 14
May 2001 and accordingly rendered Honasan’s proclamation as the
winner in that special election void. More precisely, the question is
whether the special election is invalid for lack of a "call" for such election
and for lack of notice as to the office to be filled and the manner by which
the winner in the special election is to be determined. For reasons stated
below, the Court answers in the negative.
COMELEC’s Failure to Give Notice
of the Time of the Special Election Did Not
Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and place
of its occurrence, whether made by the legislature directly or by the body
with the duty to give such call, is indispensable to the election’s
validity.26 In a general election, where the law fixes the date of the
election, the election is valid without any call by the body charged to
administer the election.27
In a special election to fill a vacancy, the rule is that a statute that
expressly provides that an election to fill a vacancy shall be held at the
next general elections fixes the date at which the special election is to be
held and operates as the call for that election. Consequently, an election
held at the time thus prescribed is not invalidated by the fact that the
body charged by law with the duty of calling the election failed to do
so.28 This is because the right and duty to hold the election emanate from
the statute and not from any call for the election by some authority29 and
the law thus charges voters with knowledge of the time and place of the
election.30
Conversely, where the law does not fix the time and place for holding a
special election but empowers some authority to fix the time and place
after the happening of a condition precedent, the statutory provision on
the giving of notice is considered mandatory, and failure to do so will
render the election a nullity.31
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case
of vacancy in the Senate, the special election to fill such vacancy shall be
held simultaneously with the next succeeding regular election.
Accordingly, the special election to fill the vacancy in the Senate arising
from Senator Guingona’s appointment as Vice-President in February
2001 could not be held at any other time but must be held simultaneously
with the next succeeding regular elections on 14 May 2001. The law
charges the voters with knowledge of this statutory notice and
COMELEC’s failure to give the additional notice did not negate the calling
of such special election, much less invalidate it.
Our conclusion might be different had the present case involved a special
election to fill a vacancy in the House of Representatives. In such a case,
the holding of the special election is subject to a condition precedent, that
is, the vacancy should take place at least one year before the expiration
of the term. The time of the election is left to the discretion of COMELEC
subject only to the limitation that it holds the special election within the
range of time provided in Section 2 of R.A. No. 6645, as amended. This
makes mandatory the requirement in Section 2 of R.A. No. 6645, as
amended, for COMELEC to "call x x x a special election x x x not earlier
than 60 days nor longer than 90 days after the occurrence of the
vacancy" and give notice of the office to be filled. The COMELEC’s failure
to so call and give notice will nullify any attempt to hold a special election
to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in
the congressional district involved to know the time and place of the
special election and the office to be filled unless the COMELEC so
notifies them.
No Proof that COMELEC’s
Failure to Give Notice of the Office
to be Filled and the Manner of
Determining the Winner in the Special
Election Misled Voters
The test in determining the validity of a special election in relation to the
failure to give notice of the special election is whether the want of notice
has resulted in misleading a sufficient number of voters as would change
the result of the special election. If the lack of official notice misled a
substantial number of voters who wrongly believed that there was no
special election to fill a vacancy, a choice by a small percentage of voters
would be void.32
The required notice to the voters in the 14 May 2001 special senatorial
election covers two matters. First, that COMELEC will hold a special
election to fill a vacant single three-year term Senate seat simultaneously
with the regular elections scheduled on the same date. Second, that
COMELEC will proclaim as winner the senatorial candidate receiving the
13th highest number of votes in the special election. Petitioners have
neither claimed nor proved that COMELEC’s failure to give this required
notice misled a sufficient number of voters as would change the result of
the special senatorial election or led them to believe that there was no
such special election.
Instead, what petitioners did is conclude that since COMELEC failed to
give such notice, no special election took place. This bare assertion
carries no value. Section 2 of R.A. No. 6645, as amended, charged those
who voted in the elections of 14 May 2001 with the knowledge that the
vacancy in the Senate arising from Senator Guingona’s appointment as
Vice-President in February 2001 was to be filled in the next succeeding
regular election of 14 May 2001. Similarly, the absence of formal notice
from COMELEC does not preclude the possibility that the voters had
actual notice of the special election, the office to be voted in that election,
and the manner by which COMELEC would determine the winner. Such
actual notice could come from many sources, such as media reports of
the enactment of R.A. No. 6645 and election propaganda during the
campaign.33
More than 10 million voters cast their votes in favor of Honasan, the party
who stands most prejudiced by the instant petition. We simply cannot
disenfranchise those who voted for Honasan, in the absence of proof that
COMELEC’s omission prejudiced voters in the exercise of their right of
suffrage so as to negate the holding of the special election. Indeed, this
Court is loathe to annul elections and will only do so when it is
"impossible to distinguish what votes are lawful and what are unlawful, or
to arrive at any certain result whatever, or that the great body of the
voters have been prevented by violence, intimidation, and threats from
exercising their franchise."34
Otherwise, the consistent rule has been to respect the electorate’s will
and let the results of the election stand, despite irregularities that may
have attended the conduct of the elections. 35 This is but to acknowledge
the purpose and role of elections in a democratic society such as ours,
which is:
to give the voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in deciding some
question of public interest; and for that purpose all of the legal voters
should be permitted, unhampered and unmolested, to cast their ballot.
When that is done and no frauds have been committed, the ballots
should be counted and the election should not be declared null. Innocent
voters should not be deprived of their participation in the affairs of their
government for mere irregularities on the part of the election officers, for
which they are in no way responsible. A different rule would make the
manner and method of performing a public duty of greater importance
than the duty itself.36 (Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners’ claim that the manner by which
COMELEC conducted the special senatorial election on 14 May 2001 is a
nullity because COMELEC failed to document separately the candidates
and to canvass separately the votes cast for the special election. No such
requirements exist in our election laws. What is mandatory under Section
2 of R.A. No. 6645 is that COMELEC "fix the date of the election," if
necessary, and "state, among others, the office or offices to be voted for."
Similarly, petitioners’ reliance on Section 73 of B.P. Blg. 881 on the filing
of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the
printing of election returns and tally sheets, to support their claim is
misplaced. These provisions govern elections in general and in no way
require separate documentation of candidates or separate canvass of
votes in a jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special
election on 14 May 2001 merely implemented the procedure specified by
the Senate in Resolution No. 84. Initially, the original draft of Resolution
No. 84 as introduced by Senator Francisco Tatad ("Senator Tatad") made
no mention of the manner by which the seat vacated by former Senator
Guingona would be filled. However, upon the suggestion of Senator Raul
Roco ("Senator Roco"), the Senate agreed to amend Resolution No. 84
by providing, as it now appears, that "the senatorial candidate garnering
the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of former Senator Teofisto T. Guingona, Jr." Senator
Roco introduced the amendment to spare COMELEC and the candidates
needless expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider
Proposed Senate Resolution No. 934 [later converted to Resolution No.
84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none,
the motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order.
With the permission of the Body, the Secretary will read only the title and
text of the resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN
THE SENATE AND CALLING ON THE COMMISSION ON ELECTIONS
(COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION TO
BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON
MAY 14, 2001 AND THE SENATOR THUS ELECTED TO SERVE ONLY
FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator
of the Philippines in 1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria
Macapagal Arroyo nominated Senator Guingona as Vice-President of the
Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by
a majority vote of all the members of both House of Congress, voting
separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-
President of the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve
(12) Senators, all elective Members of the House of Representatives, and
all elective provincial city and municipal officials shall be held on the
second Monday and every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it
hereby certifies, the existence of a vacancy in the Senate and calling the
Commission on Elections (COMELEC) to fill up such vacancy through
election to be held simultaneously with the regular election on May 14,
2001 and the Senator thus elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this
resolution.
S[ENATOR] O[SMEÑA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the
distinguished Majority Leader, Chairman of the Committee on Rules,
author of this resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a
special election for a vacant seat in the Senate. As a matter of fact, the
one who was elected in that special election was then Congressman,
later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In other
words, the electorate had to cast a vote for a ninth senator – because at
that time there were only eight – to elect a member or rather, a candidate
to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA
revolution, twice there were 24 candidates and the first 12 were elected
to a six-year term and the next 12 were elected to a three-year term.
My question therefore is, how is this going to be done in this election? Is
the candidate with the 13th largest number of votes going to be the one
to take a three-year term? Or is there going to be an election for a
position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the
mechanics to the Commission on Elections. But personally, I would like to
suggest that probably, the candidate obtaining the 13th largest number of
votes be declared as elected to fill up the unexpired term of Senator
Guingona.
S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the Comelec
to conduct such an election? Is it not the case that the vacancy is for a
specific office? I am really at a loss. I am rising here because I think it is
something that we should consider. I do not know if we can… No, this is
not a Concurrent Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate
President.
T[HE] P[RESIDENT]. May I share this information that under Republic
Act No. 6645, what is needed is a resolution of this Chamber calling
attention to the need for the holding of a special election to fill up the
vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the
particular candidate to fill up would be that reserved for Mr. Guingona’s
unexpired term. In other words, it can be arranged in such a manner.
xxxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus,
wordings to the effect that in the simultaneous elections, the 13th placer
be therefore deemed to be the special election for this purpose. So we
just nominate 13 and it is good for our colleagues. It is better for the
candidates. It is also less expensive because the ballot will be printed
and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this
resolution to be such a special election, maybe, we satisfy the
requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the
Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. – to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the
forthcoming elections that will be held simultaneously as a special
election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator
Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later,
maybe it will be better, Mr. President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal
because I do not believe that there will be anyone running specifically –
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. – to fill up this position for three years and
campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th
candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent
of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if
there will be no other amendment, I move for the adoption of this
resolution.
xxxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this
resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there
any objection? [Silence] There being none, the motion is approved. 37
Evidently, COMELEC, in the exercise of its discretion to use means and
methods to conduct the special election within the confines of R.A. No.
6645, merely chose to adopt the Senate’s proposal, as embodied in
Resolution No. 84. This Court has consistently acknowledged and
affirmed COMELEC’s wide latitude of discretion in adopting means to
carry out its mandate of ensuring free, orderly, and honest elections
subject only to the limitation that the means so adopted are not illegal or
do not constitute grave abuse of discretion. 38 COMELEC’s decision to
abandon the means it employed in the 13 November 1951 and 8
November 1955 special elections and adopt the method embodied in
Resolution No. 84 is but a legitimate exercise of its discretion.
Conversely, this Court will not interfere should COMELEC, in subsequent
special senatorial elections, choose to revert to the means it followed in
the 13 November 1951 and 8 November 1955 elections. That COMELEC
adopts means that are novel or even disagreeable is no reason to
adjudge it liable for grave abuse of discretion. As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
1âwphi1
discharge of its functions, it should not be hampered with restrictions that
would be fully warranted in the case of a less responsible organization.
The Commission may err, so may this Court also. It should be allowed
considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created — free,
orderly and honest elections. We may not agree fully with its choice of
means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to
the electorate of necessary information regarding a special election, are
central to an informed exercise of the right of suffrage. While the
circumstances attendant to the present case have led us to conclude that
COMELEC’s failure to so call and give notice did not invalidate the
special senatorial election held on 14 May 2001, COMELEC should not
take chances in future elections. We remind COMELEC to comply strictly
with all the requirements under applicable laws relative to the conduct of
regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace
Process (OPAPP) or the so-called Office of the Presidential Adviser
on the Peace Process, respondents.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly
restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines
(GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement
on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the
Moro National Liberation Front (MNLF) then headed by Nur Misuari, on
the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-
Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those
who filed their cases before the scheduled signing of the MOA-AD, this
Court issued a Temporary Restraining Order enjoining the GRP from
signing the same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began. On
July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the
MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to
attain undue advantage while the peace negotiations on the substantive
agenda are on-going.2
Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end of 1999
up to early 2000, the MILF attacked a number of municipalities in Central
Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph
Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously
discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of
Peace Talks Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties
in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from
2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July
13, 2003 and he was replaced by Al Haj Murad, who was then the chief
peace negotiator of the MILF. Murad's position as chief peace negotiator
was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus"
ever embodied in an instrument - the MOA-AD which is assailed
principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor
Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order. 9 Invoking the
right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit
the slated signing of the MOA-AD, pending the disclosure of the contents
of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition 11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and,
in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents and
their agents to cease and desist from formally signing the MOA-AD.13 The
Court also required the Solicitor General to submit to the Court and
petitioners the official copy of the final draft of the MOA-AD,14 to which
she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD
be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-
Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar
Jalosjos, and the members18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the
MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating
Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention
include Senator Manuel A. Roxas, former Senate President Franklin
Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn
Santos-Akbar, the Province of Sultan Kudarat 22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte, 23 Ruy
Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both
of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated
that the Executive Department shall thoroughly review the MOA-AD and
pursue further negotiations to address the issues hurled against it, and
thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008
that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum
of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of the
draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis
ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7) under a
state policy of full disclosure of all its transactions involving public interest
(1987 Constitution, Article II, Sec. 28) including public consultation under
Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997
Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE)
as a separate state, or a juridical, territorial or political subdivision
not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act
No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
Lanao del Norte in/from the areas covered by the projected Bangsamoro
Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in
the subject five petitions and six petitions-in-intervention against the
MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes
not only four earlier agreements between the GRP and MILF, but also
two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the
1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act
for the Autonomous Region in Muslim Mindanao (ARMM) 25 and the
Indigenous Peoples Rights Act (IPRA),26 and several international law
instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration
on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty
device."
During the height of the Muslim Empire, early Muslim jurists tended to
see the world through a simple dichotomy: there was the dar-ul-Islam (the
Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to
those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however, became
more complex through the centuries as the Islamic world became part of
the international community of nations.
As Muslim States entered into treaties with their neighbors, even with
distant States and inter-governmental organizations, the classical division
of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning.
New terms were drawn up to describe novel ways of perceiving non-
Muslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty
or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from
the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros
and all Indigenous peoples of Mindanao to identify themselves and be
accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as
the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-
AD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected. What this freedom of choice consists in has
not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic endowed with all
the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the sultanates. As
gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, including
the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del
Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other.
Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B
areas, also called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction
over all natural resources within its "internalwaters," defined as extending
fifteen (15) kilometers from the coastline of the BJE area; 42 that the BJE
shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP)
south east and south west of mainland Mindanao; and that within
these territorial waters, the BJE and the "Central Government" (used
interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration
and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is
no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships
and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and obligation of
the Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international
meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements
or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and natural
gas, the jurisdiction and control thereon is to be vested in the BJE "as the
party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or
direct the operation of such resources. 48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro
people arising from any unjust dispossession of their territorial and
proprietary rights, customary land tenures, or their marginalization shall
be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive
Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE. 52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and
the BJE as "associative," characterized by shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions
with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008
by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace
Negotiating Panels of the GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves,
and not merely of the negotiating panels.53 In addition, the signature page
of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri
Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions. 55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence. 57 The Court can decide the
constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination. 58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture,60 and the
petitioner must allege the existence of an immediate or threatened injury
to itself as a result of the challenged action. 61 He must show that he has
sustained or is immediately in danger of sustaining some direct injury as
a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that
is ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points
subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal
 that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable
Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete
bases. Considering the preliminary character of the MOA-AD,
there are no concrete acts that could possibly violate petitioners'
and intervenors' rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if
at all, is merely imaginary and illusory apart from being
unfounded and based on mere conjectures. (Underscoring
supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following
stipulations:
xxxx
d. Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the
signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A
attached herein (the "Annex"). The Annex constitutes an integral
part of this framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen
(15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of
a Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non-
derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x
settling the dispute becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's policy allowing student-led prayers and speeches before games
was ripe for adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as unconstitutional
on its face.68
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,69 decided in 1992,
the United States Supreme Court held that the action by the State of New
York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was
not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in
the case of prohibition, without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled. 73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials. 74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001. 75 The said executive
order requires that "[t]he government's policy framework for peace,
including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this
Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission,
by itself, constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-
AD violate the Constitution. The MOA-AD provides that "any provisions of
the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again,
these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3
and the provisions of the Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition, and Mandamus, and an
actual case or controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions." 78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised. 79
When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws. 81
For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose, or
that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but
nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve
the rule of law does not suffice to clothe it with standing. 86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs. 87
Intervenors, meanwhile, may be given legal standing upon showing of
facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the
success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in
the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as
precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside
technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752)
and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended
domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE
territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right
or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing
as taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate the BJE
territory. On that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOA-
AD, as well as on a genuine legal interest in the matter in litigation, or in
the success or failure of either of the parties. He thus possesses the
requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman
of the 3rd district of Davao City, a taxpayer and a member of the Bagobo
tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter,
citizens and taxpayers; Marino Ridao, as taxpayer, resident and member
of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public
interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace
and Development, an advocacy group for justice and the attainment of
peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case
may be, in the resolution of the petitions concerning the MOA-AD, and
prays for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot
with the satisfaction of all the reliefs prayed for by petitioners and the
subsequent pronouncement of the Executive Secretary that "[n]o matter
what the Supreme Court ultimately decides[,] the government will not sign
the MOA."92
In lending credence to this policy decision, the Solicitor General points
out that the President had already disbanded the GRP Peace Panel. 93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount
public interest is involved;96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review. 98
Another exclusionary circumstance that may be considered is where
there is a voluntary cessation of the activity complained of by the
defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the
tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust
them into the domain of judicial review. The grounds cited above
in David are just as applicable in the present cases as they were, not only
in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not
moot the present petitions. It bears emphasis that the signing of the
MOA-AD did not push through due to the Court's issuance of a
Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered
a mere "list of consensus points," especially given its nomenclature,
the need to have it signed or initialed by all the parties concerned on
August 5, 2008, and the far-reaching Constitutional implications of
these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-AD, but
to other on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD,102 the
manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory and the
wide-ranging political modifications of affected LGUs. The assertion that
the MOA-AD is subject to further legal enactments including
possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide
the bench, the bar, the public and, in this case, the government and
its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual
case or controversy [as this] will do more harm than good to the nation as
a whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-
alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein
involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series
of agreements necessary to carry out the Tripoli Agreement 2001. The
MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli
Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that "no matter what
the Supreme Court ultimately decides[,] the government will not sign the
MOA[-AD]," mootness will not set in in light of the terms of the Tripoli
Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar
or significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the
only way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions to formulate controlling
principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then
Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he
stated that the doctrine of "capable of repetition yet evading review" can
override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan
v. GRP) is a petition for Injunction and Declaratory Relief, the Court will
treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a
number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in
another or any form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of
the MOA-AD and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and
later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law. 107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-
executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled
that access to public records is predicated on the right of the people to
acquire information on matters of public concern since, undoubtedly, in a
democracy, the pubic has a legitimate interest in matters of social and
political significance.
x x x The incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times.
As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation112 so that they may
be able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter
of public concern114 faces no serious challenge. In fact, respondents
admit that the MOA-AD is indeed of public concern.115 In previous cases,
the Court found that the regularity of real estate transactions entered in
the Register of Deeds,116 the need for adequate notice to the public of the
various laws,117 the civil service eligibility of a public employee, 118 the
proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and
the identity of party-list nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract. In
not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for
the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates
the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights.
We can allow neither an emasculation of a constitutional right, nor
a retreat by the State of its avowed "policy of full disclosure of all
its transactions involving public interest."122 (Emphasis and italics
in the original)
Intended as a "splendid symmetry"123 to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II
of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of
all its transactions involving public interest. 124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical principle for
the conduct of public affairs in a genuinely open democracy, with the
people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of
the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that
the safeguards on national interest are modified by the clause "as
may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no
longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy. 129 (Emphasis
supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same
self-executory nature. Since both provisions go hand-in-hand, it is absurd
to say that the broader130 right to information on matters of public concern
is already enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable until there is an
enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the
twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will
the people be able to participate? Will the government
provide feedback mechanisms so that the people can
participate and can react where the existing media facilities
are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make
one last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid
 that there will be another OMA in the making.132(Emphasis
supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the sentiments,
values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the
comprehensive peace process is consensus-building and empowerment
for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace
process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite
to effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onduct regular dialogues with the National
Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive
peace process."137 E.O. No. 3 mandates the establishment of the NPF to
be "the principal forum for the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of
society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society
dialogue and consensus-building on peace agenda and initiatives." 138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on
the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to
carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him
to comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be
consulted. Respondents' stance manifests the manner by which they
treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is
not tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government
proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks
to elicit relevant advice, information, comments and recommendations
from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD. By unconditionally complying with
the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented
in their respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authorities unlessthe consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of
the Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy
and above-quoted provision of the LGU apply only to national programs
or projects which are to be implemented in a particular local community.
Among the programs and projects covered are those that are critical to
the environment and human ecology including those that may call for
the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,146 which could pervasively and
drastically result to the diaspora or displacement of a great number
of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez
and are adversely affected by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies. 147 The MOA-AD,
an instrument recognizing ancestral domain, failed to justify its non-
compliance with the clear-cut mechanisms ordained in said Act,148 which
entails, among other things, the observance of the free and prior informed
consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes
to the legal framework, such clause is itself invalid, as will be discussed in
the following section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance. This
has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from
them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question
that they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before
this Court, and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon
how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the Parties
actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11
on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to
be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law
instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a
state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-
administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their
own name and right, such capacity extending to matters such as the law
of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the Marshall
Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any
third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each
party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-
associated states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an underlying
status of independence.152
In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent
with the international legal concept of association, specifically the
following: the BJE's capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to
ensure the BJE's participation in meetings and events in the ASEAN and
the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or,
at any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common
and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different
from that of the ARMM. Indeed, BJE is a state in all but name as it
meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it - which has
betrayed itself by its use of the concept of association - runs counter to
the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE
are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term "autonomous
region" in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to
2(d) and 2(e), the present geographic area of the ARMM and, in addition,
the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion
therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas
voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
 SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act
of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice,
since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not
include aggression against the Government of the Republic of the
Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the
rights of indigenous cultural communities within the framework of national
unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are
R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-
AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and
underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the
autonomous region who are:
 (a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner
of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties
simply agree that, subject to the delimitations in the agreed Schedules,
"[t]he Bangsamoro homeland and historic territory refer to the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-
Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral
domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine
involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall
include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession
or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of
the following authentic documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those
of old improvements, burial grounds, sacred places and
old villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional
communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional
landmarks such as mountains, rivers, creeks, ridges, hills,
terraces and the like; and
10) Write-ups of names and places derived from the
native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and
the findings of fact based thereon, the Ancestral Domains Office
of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features
and landmarks embraced therein;
 f) Report of Investigation and Other Documents. - A complete
copy of the preliminary census and a report of investigation, shall
be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15)
days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published
in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from
publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims,
the Ancestral Domains Office shall cause the contending parties
to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and
domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as
part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director
of Prisons,158 held that the Universal Declaration of Human Rights is part
of the law of the land on account of which it ordered the release on bail of
a detained alien of Russian descent whose deportation order had not
been executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but
also a portion thereof. In considering the question of whether the people
of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination
is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention' and is considered a general
principle of international law."
Among the conventions referred to are the International Covenant on
Civil and Political Rights161 and the International Covenant on Economic,
Social and Cultural Rights162 which state, in Article 1 of both covenants,
that all peoples, by virtue of the right of self-determination, "freely
determine their political status and freely pursue their economic, social,
and cultural development."
The people's right to self-determination should not, however, be
understood as extending to a unilateral right of secession. A distinction
should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within
the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form
 of the assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under
carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations,
supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or
the emergence into any other political status freely
determined by a peopleconstitute modes of implementing the
right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial
integrity of existing states. The various international documents
that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that
the exercise of such a right must be sufficiently limited to prevent
threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which
the right to external self-determination can arise, namely, where a people
is under colonial rule, is subject to foreign domination or exploitation
outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to
internal self-determination. The Court ultimately held that the population
of Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom to make
political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and
judicial institutions within Canada, even occupying prominent positions
therein.
The exceptional nature of the right of secession is further exemplified in
the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON
THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the kingdom of
Sweden. The Council, before resolving the question, appointed an
International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.
The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international
treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the
State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A dispute
between two States concerning such a question, under normal
conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not
only be contrary to the very idea embodied in term "State," but
would also endanger the interests of the international community.
If this right is not possessed by a large or small section of a
nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis
and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did
not refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at
a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the
formation of a sovereign State did not exist. In the midst of revolution,
anarchy, and civil war, the legitimacy of the Finnish national government
was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its
duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the
relevant time period, a "definitively constituted" sovereign state. The
Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own
populations.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5

Turning now to the more specific category of indigenous peoples, this Indigenous peoples have the right to maintain and strengthen
term has been used, in scholarship as well as international, regional, and their distinct political, legal, economic, social and cultural
state practices, to refer to groups with distinct cultures, histories, and institutions, while retaining their right to participate fully, if they so
connections to land (spiritual and otherwise) that have been forcibly choose, in the political, economic, social and cultural life of the
incorporated into a larger governing society. These groups are regarded State.
as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated,
Self-government, as used in international legal discourse pertaining to
indigenous peoples, nations, or communities are culturally distinctive
indigenous peoples, has been understood as equivalent to "internal self-
groups that find themselves engulfed by settler societies born of the
determination."166 The extent of self-determination provided for in the UN
forces of empire and conquest.164 Examples of groups who have been
DRIP is more particularly defined in its subsequent articles, some of
regarded as indigenous peoples are the Maori of New Zealand and the
which are quoted hereunder:
aboriginal peoples of Canada.
Article 8
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession
from those states under international law, 165 but they do have rights 1. Indigenous peoples and individuals have the right not to be
amounting to what was discussed above as the right to internal self- subjected to forced assimilation or destruction of their culture.
determination.
2. States shall provide effective mechanisms for prevention
In a historic development last September 13, 2007, the UN General of, and redress for:
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution (a) Any action which has the aim or effect of depriving them
61/295. The vote was 143 to 4, the Philippines being included among of their integrity as distinct peoples, or of their cultural
those in favor, and the four voting against being Australia, Canada, New values or ethnic identities;
Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right (b) Any action which has the aim or effect of dispossessing
to autonomy or self-government, to wit: them of their lands, territories or resources;

Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories
of indigenous peoples, unless justified by a relevant public
interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2. States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures
and in particular through their representative institutions, prior to
using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands
or territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior
to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human
Rights, must now be regarded as embodying customary international law
- a question which the Court need not definitively resolve here - the
obligations enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for
flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security
force. Indeed, Article 8 presupposes that it is the State which will provide
protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State,
then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain
and atmospheric space. What it upholds, in Article 26 thereof, is the right
of indigenous peoples to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the
near-independent status of an associated state. All the rights recognized
in that document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying
for any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United
Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and
independent States.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not suffice to
uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous
provisions that cannot be reconciled with the Constitution and the
laws as presently worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have entailed any violation of law
or grave abuse of discretion on their part, precisely because it stipulates
that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD
strand on GOVERNANCE quoted earlier, but which is reproduced below
for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of
the MOA-AD from coming into force until the necessary changes to the
legal framework are effected. While the word "Constitution" is not
mentioned in the provision now under consideration or anywhere
else in the MOA-AD, the term "legal framework" is certainly broad
enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their
mere act of incorporating in the MOA-AD the provisions thereof regarding
the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions
From The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrityof the Republic of the
Philippines." (Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-
AD is defective because the suspensive clause is invalid, as discussed
below.
The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall
be established Government Peace Negotiating Panels for negotiations
with different rebel groups to be "appointed by the President as her
official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not
restricted by E.O. No. 3 only to those options available under the laws as
they presently stand. One of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the "Paths to Peace,"
is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No.
3, which reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are
interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box," so to speak. Hence, they negotiated and were set
on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation
and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot
stop here, because it must be asked whether the President herself
may exercise the power delegated to the GRP Peace Panel under
E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to
pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with
rebel groups is not explicitly mentioned in the Constitution does not mean
that she has no such authority. In Sanlakas v. Executive Secretary,168 in
issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The
Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from
the grant of executive power and which are necessary
for her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the
article on the Executive Department and in scattered
provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and,
at the same time, draws strength from her Commander-in-
Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building,
is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process
can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map
on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which
the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that
peace agreements establish or confirm mechanisms for demilitarization
and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human
rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of
the Constitution. Behind the provisions of the Constitution on autonomous
regions172 is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and
the MNLF, signed by then Undersecretary of National Defense Carmelo
Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have
some more questions, I will reserve my right to ask them if they
are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it
has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the
Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question
that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality
of an on-going conflict between the Government and the MILF. If the
President is to be expected to find means for bringing this conflict to an
end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being
uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions
that she considers viable, but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is minded,
act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose
the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional Convention,
or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled
the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muñoz Palma vigorously
dissented. The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that
he would have upheld the President's action along with the majority had
the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the
essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of
such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it
follows that the President's questioned decrees proposing and
submitting constitutional amendments directly to the
people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid
of constitutional and legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's
voice.' However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the agenda' of
the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of ‘people's voice'
or ‘sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath
of office,178 only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice
for Presidents in this jurisdiction to propose new legislation. One of the
more prominent instances the practice is usually done is in the yearly
State of the Nation Address of the President to Congress. Moreover, the
annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a
proposal for new legislation coming from the President. 179
The "suspensive clause" in the MOA-AD viewed in light of the
above-discussed standards
Given the limited nature of the President's authority to propose
constitutional amendments, she cannot guaranteeto any third party that
the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a
suspensive condition - defined in civil law as a future and uncertain event
- but of a term. It is not a question of whether the necessary changes to
the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to
effect the changes to the legal framework contemplated in the MOA-AD -
which changes would include constitutional amendments, as discussed
earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would
be counted among the "prior agreements" from which there could
be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points" and,
notably, the deadline for effecting the contemplated changes to the legal
framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the
laws of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD. Hence, it
must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a
similar provision appearing in the 1996 final peace agreement between
the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would
be implemented in two phases. Phase Icovered a three-year transitional
period involving the putting up of new administrative structures through
Executive Order, such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of
R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties.
To that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the
MOA-AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to
change its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it been signed.
An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the
Lomé Accord case) of the Special Court of Sierra Leone is enlightening.
The Lomé Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of signing. There
were non-contracting signatories to the agreement, among which were
the Government of the Togolese Republic, the Economic Community of
West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special
Court of Sierra Leone was established. The sole purpose of the Special
Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and
Sierra Leonean law committed in the territory of Sierra Leone since
November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them
in pursuit of their objectives as members of that organization since the
conflict began.
In the Lomé Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries
of the amnesty provided therein, citing, among other things, the
participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that it can only
create binding obligations and rights between the parties in municipal
law, not in international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace
agreement is implemented with integrity and in good faith by
both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding
of the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must
create rights and obligations regulated by international law so that
a breach of its terms will be a breach determined under
international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international
law. An agreement such as the Lomé Agreement which
brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the
international community acting through the Security Council
may take note of. That, however, will not convert it to an
international agreement which creates an obligation
enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace
agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security
 Council may indicate a reversal of the factual situation of peace to
be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict
which, essentially, must be between two or more warring
States. The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount
to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case,
decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France refused to
appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the
ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a
legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international community in
issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become
bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations,
is binding. In these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to
a particular matter with the intention of being bound-the
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and
rely on their being effective. The validity of these statements
and their legal consequences must be considered within the
general framework of the security of international
intercourse, and the confidence and trust which are so essential
in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending
their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear
and they were addressed to the international community as a
whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270
that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of
a state representative may be construed as a unilateral declaration only
when the following conditions are present: the statements were clearly
addressed to the international community, the state intended to be bound
to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized
in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also
known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President
of Mali, in an interview by a foreign press agency, that Mali would abide
by the decision to be issued by a commission of the Organization of
African Unity on a frontier dispute then pending between Mali and
Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Mali's President was not a unilateral act with legal implications. It clarified
that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral
act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests
cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible
continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests‘ (I.C.J. Reports
1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could
not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have
accepted the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method:
a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to
the international community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another,
in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in
the Lomé Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States,
not to give legal effect to such commitments would not be detrimental to
the security of international intercourse - to the trust and confidence
essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD
are closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration
by the ICJ. As in that case, there was also nothing to hinder the
Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a
clear commitment to be legally bound to the international community, not
just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of
that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for the only
way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to
consult the local government units or communities affected constitutes a
departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of
the Constitution by any branch of government is a proper matter for
judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-
AD and the eventual dissolution of the GRP Peace Panel mooted the
present petitions, the Court finds that the present petitions provide an
exception to the "moot and academic" principle in view of (a) the grave
violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-
AD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court
and the petitioners with the official copy of the final draft of the MOA-AD
and its annexes.
The people's right to information on matters of public concern under Sec.
7, Article III of the Constitution is in splendid symmetry with the state
policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right
to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and the
people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be a
species of these public rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant
matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of
1997 provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance
of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is
untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after
it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the GRP
and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until
that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a
violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as
the clause is worded, it virtually guarantees that the necessary
amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to
law and the Constitution.
SO ORDERED.
 Republic of the Philippines In their answer, the ATO and its co-defendants invoked as an affirmative
SUPREME COURT defense the issuance of Proclamation No. 1358, whereby President
Manila Marcos had reserved certain parcels of land that included the
respondents’ affected portion for use of the Loakan Airport. They
THIRD DIVISION asserted that the RTC had no jurisdiction to entertain the action without
the State’s consent considering that the deed of sale had been entered
G.R. No. 159402 February 23, 2011 into in the performance of governmental functions.

AIR TRANSPORTATION OFFICE, Petitioner, On November 10, 1998, the RTC denied the ATO’s motion for a
vs. preliminary hearing of the affirmative defense.
SPOUSES DAVID* ELISEA RAMOS, Respondents.
After the RTC likewise denied the ATO’s motion for reconsideration on
RESOLUTION December 10, 1998, the ATO commenced a special civil action for
certiorari in the CA to assail the RTC’s orders. The CA dismissed the
petition for certiorari, however, upon its finding that the assailed orders
BERSAMIN, J.:
were not tainted with grave abuse of discretion. 3
The State’s immunity from suit does not extend to the petitioner because
Subsequently, February 21, 2001, the RTC rendered its decision on the
it is an agency of the State engaged in an enterprise that is far from being
merits,4 disposing:
the State’s exclusive prerogative.
WHEREFORE, the judgment is rendered ORDERING the defendant Air
Under challenge is the decision promulgated on May 14, 2003,1 by which
Transportation Office to pay the plaintiffs DAVID and ELISEA RAMOS
the Court of Appeals (CA) affirmed with modification the decision
the following: (1) The amount of ₱778,150.00 being the value of the
rendered on February 21, 2001 by the Regional Trial Court, Branch 61
parcel of land appropriated by the defendant ATO as embodied in the
(RTC), in Baguio City in favor of the respondents. 2
Deed of Sale, plus an annual interest of 12% from August 11, 1995, the
date of the Deed of Sale until fully paid; (2) The amount of ₱150,000.00
Antecedents by way of moral damages and ₱150,000.00 as exemplary damages; (3)
the amount of ₱50,000.00 by way of attorney’s fees plus ₱15,000.00
Spouses David and Elisea Ramos (respondents) discovered that a representing the 10, more or less, court appearances of plaintiff’s
portion of their land registered under Transfer Certificate of Title No. T- counsel; (4) The costs of this suit.
58894 of the Baguio City land records with an area of 985 square meters,
more or less, was being used as part of the runway and running shoulder SO ORDERED.
of the Loakan Airport being operated by petitioner Air Transportation
Office (ATO). On August 11, 1995, the respondents agreed after
In due course, the ATO appealed to the CA, which affirmed the RTC’s
negotiations to convey the affected portion by deed of sale to the ATO in
decision on May 14, 2003,5 viz:
consideration of the amount of ₱778,150.00. However, the ATO failed to
pay despite repeated verbal and written demands.
IN VIEW OF ALL THE FOREGOING, the appealed decision is
hereby AFFIRMED, with MODIFICATION that the awarded cost therein
Thus, on April 29, 1998, the respondents filed an action for collection
is deleted, while that of moral and exemplary damages is reduced to
against the ATO and some of its officials in the RTC (docketed as Civil
₱30,000.00 each, and attorney’s fees is lowered to ₱10,000.00.
Case No. 4017-R and entitled Spouses David and Elisea Ramos v. Air
Transportation Office, Capt. Panfilo Villaruel, Gen. Carlos Tanega, and
Mr. Cesar de Jesus). No cost.
SO ORDERED.
Hence, this appeal by petition for review on certiorari.
Issue
The only issue presented for resolution is whether the ATO could be sued
without the State’s consent.
Ruling
The petition for review has no merit.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State, is expressly provided in
Article XVI of the 1987 Constitution, viz:
Section 3. The State may not be sued without its consent.
The immunity from suit is based on the political truism that the State, as a
sovereign, can do no wrong. Moreover, as the eminent Justice Holmes
said in Kawananakoa v. Polyblank:6
The territory [of Hawaii], of course, could waive its exemption (Smith v.
Reeves, 178 US 436, 44 L ed 1140, 20 Sup. Ct. Rep. 919), and it took no
objection to the proceedings in the cases cited if it could have done so.
xxx But in the case at bar it did object, and the question raised is whether
the plaintiffs were bound to yield. Some doubts have been expressed as
to the source of the immunity of a sovereign power from suit without its
own permission, but the answer has been public property since before
the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from
suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. "Car on peut
bien recevoir loy d'autruy, mais il est impossible par nature de se donner
loy." Bodin, Republique, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De
Jure Maiestatis, chap. 3. Nemo suo statuto ligatur necessitative. Baldus,
De Leg. et Const. Digna Vox, 2. ed. 1496, fol. 51b, ed. 1539, fol. 61. 7
Practical considerations dictate the establishment of an immunity from
suit in favor of the State. Otherwise, and the State is suable at the
instance of every other individual, government service may be severely
obstructed and public safety endangered because of the number of suits
that the State has to defend against. 8 Several justifications have been
offered to support the adoption of the doctrine in the Philippines, but that
offered in Providence Washington Insurance Co. v. Republic of the
Philippines9 is "the most acceptable explanation," according to Father
Bernas, a recognized commentator on Constitutional Law, 10 to wit:
[A] continued adherence to the doctrine of non-suability is not to be
deplored for as against the inconvenience that may be caused private
parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater if such a
fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well-known propensity on the
part of our people to go to court, at the least provocation, the loss of time
and energy required to defend against law suits, in the absence of such a
basic principle that constitutes such an effective obstacle, could very well
be imagined.
An unincorporated government agency without any separate juridical
personality of its own enjoys immunity from suit because it is invested
with an inherent power of sovereignty. Accordingly, a claim for damages
against the agency cannot prosper; otherwise, the doctrine of sovereign
immunity is violated.11 However, the need to distinguish between an
unincorporated government agency performing governmental function
and one performing proprietary functions has arisen. The immunity has
been upheld in favor of the former because its function is governmental
or incidental to such function;12 it has not been upheld in favor of the latter
whose function was not in pursuit of a necessary function of government
but was essentially a business.13
Should the doctrine of sovereignty immunity or non-suability of the State
be extended to the ATO?
In its challenged decision,14 the CA answered in the negative, holding:
On the first assignment of error, appellants seek to impress upon Us that
the subject contract of sale partook of a governmental
character. Apropos, the lower court erred in applying the High Court’s
ruling in National Airports Corporation vs. Teodoro (91 Phil. 203 [1952]),
arguing that in Teodoro, the matter involved the collection of landing and
parking fees which is a proprietary function, while the case at bar involves
the maintenance and operation of aircraft and air navigational facilities
and services which are governmental functions.
We are not persuaded.
Contrary to appellants’ conclusions, it was not merely the collection of
landing and parking fees which was declared as proprietary in nature by
the High Court in Teodoro, but management and maintenance of airport
operations as a whole, as well. Thus, in the much later case of Civil
Aeronautics Administration vs. Court of Appeals (167 SCRA 28
[1988]), the Supreme Court, reiterating the pronouncements laid down
in Teodoro, declared that the CAA (predecessor of ATO) is an agency not
immune from suit, it being engaged in functions pertaining to a private
entity. It went on to explain in this wise:
xxx
The Civil Aeronautics Administration comes under the category of a
private entity. Although not a body corporate it was created, like the
National Airports Corporation, not to maintain a necessary function of
government, but to run what is essentially a business, even if revenues
be not its prime objective but rather the promotion of travel and the
convenience of the travelling public. It is engaged in an enterprise which,
far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns. [National
Airports Corp. v. Teodoro, supra, p. 207.]
xxx
True, the law prevailing in 1952 when the Teodoro case was promulgated
was Exec. Order 365 (Reorganizing the Civil Aeronautics Administration
and Abolishing the National Airports Corporation). Republic Act No. 776
(Civil Aeronautics Act of the Philippines), subsequently enacted on June
20, 1952, did not alter the character of the CAA’s objectives under Exec.
Order 365. The pertinent provisions cited in the Teodoro case,
particularly Secs. 3 and 4 of Exec. Order 365, which led the Court to
consider the CAA in the category of a private entity were retained
substantially in Republic Act 776, Sec. 32(24) and (25). Said Act
provides:
Sec. 32. Powers and Duties of the Administrator. – Subject to the general
control and supervision of the Department Head, the Administrator shall
have among others, the following powers and duties:
xxx
(24) To administer, operate, manage, control, maintain and develop the
Manila International Airport and all government-owned
aerodromes except those controlled or operated by the Armed Forces of
the Philippines including such powers and duties as: (a) to plan, design,
construct, equip, expand, improve, repair or alter aerodromes or such
structures, improvement or air navigation facilities; (b) to enter into, make
and execute contracts of any kind with any person, firm, or public or
private corporation or entity; …
(25) To determine, fix, impose, collect and receive landing fees, parking
space fees, royalties on sales or deliveries, direct or indirect, to any
aircraft for its use of aviation gasoline, oil and lubricants, spare parts,
accessories and supplies, tools, other royalties, fees or rentals for the use
of any of the property under its management and control.
xxx
From the foregoing, it can be seen that the CAA is tasked with private or
non-governmental functions which operate to remove it from the purview
of the rule on State immunity from suit. For the correct rule as set forth in
the Teodorocase states:
xxx
Not all government entities, whether corporate or non-corporate, are
immune from suits. Immunity from suits is determined by the character of
the objects for which the entity was organized. The rule is thus stated in
Corpus Juris:
Suits against State agencies with relation to matters in which they have
assumed to act in private or non-governmental capacity, and various
suits against certain corporations created by the state for public
purposes, but to engage in matters partaking more of the nature of
ordinary business rather than functions of a governmental or political
character, are not regarded as suits against the state. The latter is true,
although the state may own stock or property of such a corporation for by
engaging in business operations through a corporation, the state divests
itself so far of its sovereign character, and by implication consents to suits
against the corporation. (59 C.J., 313) [National Airports Corporation v.
Teodoro, supra, pp. 206-207; Italics supplied.]
This doctrine has been reaffirmed in the recent case of Malong v.
Philippine National Railways [G.R. No. L-49930, August 7, 1985, 138
SCRA 63], where it was held that the Philippine National Railways,
although owned and operated by the government, was not immune from
suit as it does not exercise sovereign but purely proprietary and business
functions. Accordingly, as the CAA was created to undertake the
management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to
government agencies performing strictly governmental functions. 15
In our view, the CA thereby correctly appreciated the juridical character of
the ATO as an agency of the Government not performing a purely
governmental or sovereign function, but was instead involved in the
management and maintenance of the Loakan Airport, an activity that was
not the exclusive prerogative of the State in its sovereign capacity.
Hence, the ATO had no claim to the State’s immunity from suit. We
uphold the CA’s aforequoted holding.
We further observe the doctrine of sovereign immunity cannot be
successfully invoked to defeat a valid claim for compensation arising from
the taking without just compensation and without the proper expropriation
proceedings being first resorted to of the plaintiffs’ property. 16 Thus, in De
los Santos v. Intermediate Appellate Court, 17 the trial court’s dismissal
based on the doctrine of non-suability of the State of two cases (one of
which was for damages) filed by owners of property where a road 9
meters wide and 128.70 meters long occupying a total area of 1,165
square meters and an artificial creek 23.20 meters wide and 128.69
meters long occupying an area of 2,906 square meters had been
constructed by the provincial engineer of Rizal and a private contractor
without the owners’ knowledge and consent was reversed and the cases
remanded for trial on the merits. The Supreme Court ruled that the
doctrine of sovereign immunity was not an instrument for perpetrating any
injustice on a citizen. In exercising the right of eminent domain, the Court
explained, the State exercised its jus imperii, as distinguished from its
proprietary rights, or jus gestionis; yet, even in that area, where private
property had been taken in expropriation without just compensation being
paid, the defense of immunity from suit could not be set up by the State
against an action for payment by the owners.
Lastly, the issue of whether or not the ATO could be sued without the
State’s consent has been rendered moot by the passage of Republic Act
No. 9497, otherwise known as the Civil Aviation Authority Act of 2008.
R.A. No. 9497 abolished the ATO, to wit:
Section 4. Creation of the Authority. – There is hereby created an
independent regulatory body with quasi-judicial and quasi-legislative
powers and possessing corporate attributes to be known as the Civil
Aviation Authority of the Philippines (CAAP), herein after referred to as
the "Authority" attached to the Department of Transportation and
Communications (DOTC) for the purpose of policy coordination. For this
purpose, the existing Air transportation Office created under the
provisions of Republic Act No. 776, as amended is hereby
abolished.
xxx
Under its Transitory Provisions, R.A. No. 9497 established in place of the
ATO the Civil Aviation Authority of the Philippines (CAAP), which thereby
assumed all of the ATO’s powers, duties and rights, assets, real and
personal properties, funds, and revenues, viz:
CHAPTER XII
TRANSITORTY PROVISIONS
Section 85. Abolition of the Air Transportation Office. – The Air
Transportation Office (ATO) created under Republic Act No. 776, a
sectoral office of the Department of Transportation and Communications
(DOTC), is hereby abolished. 1avvphi1
All powers, duties and rights vested by law and exercised by the
ATO is hereby transferred to the Authority.
All assets, real and personal properties, funds and revenues owned
by or vested in the different offices of the ATO are transferred to the
Authority. All contracts, records and documents relating to the
operations of the abolished agency and its offices and branches are
likewise transferred to the Authority. Any real property owned by the
national government or government-owned corporation or
authority which is being used and utilized as office or facility by the
ATO shall be transferred and titled in favor of the Authority.
Section 23 of R.A. No. 9497 enumerates the corporate powers vested in
the CAAP, including the power to sue and be sued, to enter into contracts
of every class, kind and description, to construct, acquire, own, hold,
operate, maintain, administer and lease personal and real properties, and
to settle, under such terms and conditions most advantageous to it, any
claim by or against it.18
With the CAAP having legally succeeded the ATO pursuant to R.A. No.
9497, the obligations that the ATO had incurred by virtue of the deed of
sale with the Ramos spouses might now be enforced against the CAAP.
WHEREFORE, the Court denies the petition for review on certiorari, and
affirms the decision promulgated by the Court of Appeals.
No pronouncement on costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.1 Superior strength – the use of force – cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor,
the oppressed, the marginalized, the dispossessed and the weak."
Laws and actions that restrict fundamental rights come to the courts "with
a heavy presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a
state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: "The
President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .," and in my capacity
as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience
to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the
democratic Philippine State – who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the economy
and sabotaging the people’s confidence in government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP
1017, thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by
the NDF-CPP-NPA and the extreme Right, represented by military
adventurists - the historical enemies of the democratic Philippine State –
and who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy
and sabotaging the people’s confidence in the government and their faith
in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger
to the safety and the integrity of the Philippine State and of the Filipino
people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of
the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry
out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the
President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII
of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased
to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of the
political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he
explained that it is not respondents’ task to state the facts behind the
questioned Proclamation, however, they are presenting the same,
narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members
of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon
the people to "show and proclaim our displeasure at the sham regime.
Let us demonstrate our disgust, not only by going to the streets in protest,
but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled
"Oplan Hackle I " which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members
and President Arroyo herself.6 Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at
the height of the celebration, a bomb was found and detonated at the
PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of the
Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive
documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect.
Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to "disavow" any defection. The latter promptly obeyed and
issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and
unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
group’s plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided
to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests
to be held on February 24, 2005. According to these two (2) officers,
there was no way they could possibly stop the soldiers because they too,
were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party
and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable to
rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
"Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties,
coalitions, plus the groups that have been reinforcing since June 2005, it
is probable that the President’s ouster is nearing its concluding stage in
the first half of 2006.
Respondents further claimed that the bombing of telecommunication
towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated
that political rallies, which to the President’s mind were organized for
purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies
would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass
shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was
used against the protesters marching forward to Cubao, Quezon City and
to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along
Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as
the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of
the Criminal Investigation and Detection Group (CIDG) of the PNP, on
the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters,
documents, pictures, and mock-ups of the Saturday issue. Policemen
from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building. 13
A few minutes after the search and seizure at the Daily Tribune offices,
the police surrounded the premises of another pro-opposition paper,
Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this
government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government
during the state of national emergency." Director General Lomibao stated
that "if they do not follow the standards – and the standards are - if they
would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will
recommend a ‘takeover.’" National Telecommunications’ Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked
for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that
his agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national
security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang
Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is
not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O.
No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montaño, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the
Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro
Casiño and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office
in Davao City. Later, he was turned over to the custody of the House of
Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the
state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-
named respondents. Three (3) of these petitions impleaded President
Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) itis a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers";
"violation of freedom of expression" and "a declaration of martial law."
They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to
do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws
and decrees; (2) their issuance was without factual basis; and (3) they
violate freedom of expression and the right of the people to peaceably
assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that
PP 1017 is an "arbitrary and unlawful exercise by the President of her
Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of
the freedom of expression, including its cognate rights such as freedom
of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances prevented
her from fully prosecuting her election protest pending before the
Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda),
171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.)
have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and
legal basis; and fifth, PP 1017 does not violate the people’s right to free
expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country
is the concept of judicial review enunciated in Marbury v. Madison.21 This
concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-
starting capacity."23 Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is "definite and
concrete, touching the legal relations of parties having adverse legal
interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered "moot
and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, 26so that a declaration
thereon would be of no practical use or value. 27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8)
days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;31second, the exceptional character of the situation and
the paramount public interest is involved; 32 third, when constitutional
issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged
that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines
or rules. It has the symbolic function of educating the bench and the bar,
and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees. 35 And lastly,
respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents
cited Chief Justice Artemio V. Panganiban’s Separate Opinion
in Sanlakas v. Executive Secretary.36 However, they failed to take into
account the Chief Justice’s very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has
been and/or continues to be prejudiced or damaged as a direct result of
its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on
legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question."37 In private suits, standing is governed by the "real-
parties-in interest" rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that "every action
must be prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect
to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v.
Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People
v. Vera,44 it held that the person who impugns the validity of a statute
must have "a personal and substantial interest in the case such that
he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,45 Manila Race Horse Trainers’ Association v. De
la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This
was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,49 where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the
issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled
that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters
of transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the
Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack
of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled
 promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being
misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Comelec,57 the Court reiterated the "direct injury" test with respect to
concerned citizens’ cases involving constitutional issues. It held that
"there must be a showing that the citizen personally suffered some actual
or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they
claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They
alleged "direct injury" resulting from "illegal arrest" and "unlawful search"
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners
in the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v.
Philippine Amusement and Gaming Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the
rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the
Court held that the mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to
file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that
her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid
her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this
Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This
is the underlying legal tenet of the "liberality doctrine" on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in
the "PP 1017 cases." 1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or
actual incumbency,67 may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation
of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-
war always cuts across the line defining "political questions," particularly
those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government."75 Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to
the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority
to inquire into the existence of factual bases in order to determine their
constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under
which the President is supreme, x x x only if and when he acts
within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost
evenly divided on the issue of whether the validity of the imposition of
Martial Law is a political or justiciable question. 78 Then came Garcia-
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a
need to re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril.
The President, it intoned, is answerable only to his conscience, the
People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most
pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the authority of
the courts to determine in an appropriate action the validity of the acts of
the political departments. Under the new definition of judicial power, the
courts are authorized not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the
authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the
discretion of the political departments of the government. 81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness. 83 In Integrated
Bar of the Philippines, this Court further ruled that "it is incumbent upon
the petitioner to show that the President’s decision is totally bereft
of factual basis" and that if he fails, by way of proof, to support his
assertion, then "this Court cannot undertake an independent
investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-
out power, by issuing PP 1017, is totally bereft of factual basis. A reading
of the Solicitor General’s Consolidated Comment and Memorandum
shows a detailed narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the records. Mentioned are
the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA
and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was
not expected to simply fold her arms and do nothing to prevent or
suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon
the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the
promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion
for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how may
its abuse be avoided? Here, Locke readily admitted defeat, suggesting
that "the people have no other remedy in this, as in all other cases
where they have no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the
State…
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its
law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not
perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely be
cheapened by "indiscreet use." He was unwilling to rely upon an "appeal
to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the
whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge
this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra –constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded
under that pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints. 90
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed
the doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw "no
reason why absolutism should not be used as a means for the
defense of liberal institutions," provided it "serves to protect
established institutions from the danger of permanent injury in a
period of temporary emergency and is followed by a prompt return
to the previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the
executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in
any given case must never rest with the dictator himself…"94 and the
objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It
is a problem of concentrating power – in a government where power has
consciously been divided – to cope with… situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."96 Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means –
i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions
of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its
constitutional order…
 2) …the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator…
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man
or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions
existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of
an emergency, and he places great faith in the effectiveness of
congressional investigating committees. 100
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that
democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the problem
and hinder realistic analysis. It matters not whether the term "dictator" is
used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency
powers. However used, "constitutional dictatorship" cannot be divorced
from the implication of suspension of the processes of constitutionalism.
Thus, they favored instead the "concept of constitutionalism" articulated
by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings
of this study, is that formulated by Charles H. McIlwain. While it does not
by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain
clearly recognized the need to repose adequate power in government.
And in discussing the meaning of constitutionalism, he insisted that
the historical and proper test of constitutionalism was the existence
of adequate processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of government by
an exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government
but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with
"limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to
the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the
legal limits to arbitrary power and a complete political responsibility
of government to the governed.101
In the final analysis, the various approaches to emergency of the above
political theorists –- from Lock’s "theory of prerogative," to Watkins’
doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s
"principle of constitutionalism" --- ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that such
powers will be exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting
the 1987 Constitution, endeavored to create a government in the concept
of Justice Jackson’s "balanced power structure." 102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his
power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a
certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled
for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech cases, also
known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the AFP
to prevent or suppress all forms of lawless violence. In United States v.
Salerno,104the US Supreme Court held that "we have not recognized an
‘overbreadth’ doctrine outside the limited context of the First
Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity
of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion are
considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may
properly be held void on its face and when ‘such summary action’ is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the
scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and defects,
not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether this
situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to
its application."110 It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like overbreadth, it is
said that a litigant may challenge a statute on its face only if it is vague in
all its possible applications. Again, petitioners did not even attempt
to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the
meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do
hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power.
In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out
power, the power to suspend the privilege of the writ of habeas corpus,
and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the
exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to
issue PP 1017. Owing to her Office’s vast intelligence network, she is in
the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes
beyond the President’s calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a
lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
President’s authority to declare a "state of rebellion" (in Sanlakas) and
the authority to proclaim a state of national emergency. While President
Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on
Section 17, Article XII, a provision on the State’s extraordinary power to
take over privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the
enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13,
2006, Mr. Justice Vicente V. Mendoza,114an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is
placed in the keeping of the President for the purpose of enabling him to
secure the people from harm and to restore order so that they can enjoy
their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and
any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration
of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure
that the laws be faithfully executed. This is based on Section 17, Article
VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, "execute its
laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country, 117 including the Philippine National
Police118 under the Department of Interior and Local Government. 119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause "to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted120 from Former President Marcos’
Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience to
all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience
to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2, Book III
of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties
as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring
a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend,
shall be promulgated in proclamations which shall have the force of an
executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied
in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to bring to
the attention of all or some of the departments, agencies, bureaus or
offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by Former President
Marcos under PP 1081. Presidential Decrees are laws which are of the
same category and binding force as statutes because they were issued
by the President in the exercise of his legislative power during the period
of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To
be sure, neither Martial Law nor a state of rebellion nor a state of
emergency can justify President Arroyo’s exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through
the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She
can only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders,
and regulations promulgated by me personally or upon my direction; and
as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to
enforce obedience "to all the laws and to all decrees x x x" but also to act
pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the operation
of any privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution, as a product
of the "martial law" thinking of the 1971 Constitutional Convention.122 In
effect at the time of its approval was President Marcos’ Letter of
Instruction No. 2 dated September 22, 1972 instructing the Secretary of
National Defense to take over "the management, control and operation of
the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo’s inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to "other national emergency." If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency"
pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend that
Congress should first authorize the President before he can declare a
"state of national emergency." The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must
be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a
power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet
and exercise its powers, the Framers of our Constitution deemed it wise
to allow Congress to grant emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public
interest," it refers to Congress, not the President. Now, whether or not
the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed
that express constitutional language grants this power to the President.
The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is
placed on provisions in Article II which say that "The executive Power
shall be vested in a President . . . .;" that "he shall take Care that the
Laws be faithfully executed;" and that he "shall be Commander-in-Chief
of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in a
theater of war. Such cases need not concern us here. Even though
"theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation’s lawmakers, not
for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that
"All legislative Powers herein granted shall be vested in a Congress
of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency"
under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are
the elements of intensity, variety, and perception. 127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under
three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.131 This is evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over
or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic
emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or business
affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution
has set up this form of government, with all its defects and shortcomings,
in preference to the commingling of powers in one man or group of men.
The Filipino people by adopting parliamentary government have given
notice that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this framework
of government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department – unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’
given the ability to act, are called upon ‘to perform the duties and
discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to
take over privately-owned public utility or business affected with public
interest. The President cannot decide whether exceptional circumstances
exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers
of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains
to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against
warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest
blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20th Anniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing
Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided
and ransacked without warrant" their office. Three policemen were
assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were "turned away and dispersed" when they went to
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary
of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No.
5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on
the basis of these illegal acts? In general, does the illegal implementation
of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may
afford an opportunity for abuse in the manner of application.136 The
validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.137 PP 1017 is merely an invocation of the
President’s calling-out power. Its general purpose is to command the AFP
to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue
PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.138 This is logical. Just
imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of
PP 1017. General orders are "acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines."
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules
and regulations create no relation except between the official who issues
them and the official who receives them.139 They are based on and are
the product of, a relationship in which power is their source, and
obedience, their object.140 For these reasons, one requirement for these
rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is still
an amorphous and vague concept. Congress has yet to enact a law
defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according
to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions – or threats of the
use of force as the most recent by the United States against Iraq –
consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of
acts of violence either by states, by armed groups such as liberation
movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is
another country’s freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be
demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of definition.
The organization has intensified its efforts recently, but has been unable
to bridge the gap between those who associate "terrorism" with any
violent act by non-state groups against civilians, state functionaries or
infrastructure or military installations, and those who believe in the
concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and
movements such as Palestine Liberation Organization (PLO) – which is a
terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the
perception of India, liberation fighters in that of Pakistan – the earlier
Contras in Nicaragua – freedom fighters for the United States, terrorists
for the Socialist camp – or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be
reconciled in any way – because of opposing political interests that are at
the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions
and evaluations of one and the same group and its actions be explained?
In our analysis, the basic reason for these striking inconsistencies lies in
the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of terrorism will
"fluctuate" accordingly. A state may eventually see itself as protector of
the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence
by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on
the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a
particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A "policy of double standards"
on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign
states – and not of peoples, in spite of the emphasis in the Preamble to
the United Nations Charter! – has become even more serious in the
present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and
the problem has become even more acute since the terrorist attacks of
11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a
group of persons are merely engaged in a drinking spree. Yet the military
or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and
oppression on their part. It must be remembered that an act can only be
considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled "Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define "acts
of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over
the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power
of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion
of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority
in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized." 142 The plain import of
the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue
search warrants or warrants of arrest. 143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth,he was treated brusquely by
policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh,he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it;
and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner
David’s warrantless arrest. During the inquest for the charges of inciting
to sedition and violation of BP 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts with
the invective "Oust Gloria Now" and their erroneous assumption that
petitioner David was the leader of the rally.146 Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency
of evidence. He noted that petitioner David was not wearing the subject t-
shirt and even if he was wearing it, such fact is insufficient to charge him
with inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably
for consultation in respect to public affairs. It is a necessary consequence
of our republican institution and complements the right of speech. As in
the case of freedom of expression, this right is not to be limited, much
less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble
is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to
be held in a public place, a permit for the use of such place, and not for
the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and
order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation
in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of
assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the
State has a right to prevent."149 Tolerance is the rule and limitation is
the exception. Only upon a showing that an assembly presents a clear
and present danger that the State may deny the citizens’ right to exercise
it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies
is lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.150 The first time they learned of it was at the time of the dispersal.
Such absence of notice is a fatal defect. When a person’s right is
restricted by government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’ narration of
facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o’ clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that
such raid was "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards
are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the
state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates
that the search of a house, room, or any other premise be made in the
presence of the lawful occupant thereof or any member of his family or
in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section
9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at
any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners’ freedom of the press. The
best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court
held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like
the "Metropolitan Mail" and "We Forum" newspapers in the above case,
yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication,
the stationing of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government
who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.153Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti-
government sentiments. This Court cannot tolerate the blatant disregard
of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted
that the search of the Tribune’s offices and the seizure of its materials for
publication and other papers are illegal; and that the same are
inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings
that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think
and I know, Your Honor, and these are inadmissible for any purpose. 155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go
there at 1 o’clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to
sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on
any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there
are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police
were, according to the Solicitor General, illegal and cannot be condoned,
thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is
their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and
illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not
be "evaded;" they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017’s extraneous provisions giving the
President express or implied power (1) to issue decrees; (2) to direct the
AFP to enforce obedience to all laws even those not related to lawless
violence as well as decrees promulgated by the President; and (3) to
impose standards on media or any form of prior restraint on the press,
are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of
a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued
by the President – acting as Commander-in-Chief – addressed to
subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the
police should take only the "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFP’s authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is
also pristine clear that (1) the warrantless arrest of petitioners Randolf S.
David and Ronald Llamas; (2) the dispersal of the rallies and warrantless
arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by
the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day
in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times,
yet they should not be arbitrary as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is possible
to grant government the authority to cope with crises without surrendering
the two vital principles of constitutionalism: the maintenance of legal
limits to arbitrary power, and political responsibility of the
government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior
legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of terrorism"
have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of
prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of
his pen in defense of the rights of the individual from the vast powers of
the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social interference - he
veritably acknowledges that the exercise of rights and liberties is imbued
with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively,
in interfering with the liberty of action of any of their number, is self-
protection. The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to prevent
harm to others.
Parallel to individual liberty is the natural and illimitable right of the State
to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the
web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as the
expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It
is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a) it
suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the element
of mens rea in crimes already punishable under The Revised Penal
Code, all of which are purportedly clear violations of the fundamental
rights of the accused to due process and to be informed of the nature and
cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar
schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
 (6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described
in Section 1 (d) hereof, in the aggregate amount or total value of at least
fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances as provided by
the Revised Penal Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State (underscoring
supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par.
(a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and
Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees); (d) Crim. Case No. 26564,
for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case
No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA
6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the
case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of
the charges and the vagueness of the law under which they are charged
were never raised in that Omnibus Motion thus indicating the explicitness
and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution
in Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the Opposition.
On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes
of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity
of legislation is predicated on the basic principle that a legislative
measure is presumed to be in harmony with the Constitution. 3 Courts
invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining whether the
acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether
an interpretation is fairly possible to sidestep the question of
constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As
tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner
has miserably failed in the instant case to discharge his burden and
overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its description
of the acts, conduct and conditions required or forbidden, and prescribes
the elements of the crime with reasonable certainty and particularity.
Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal
acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by
receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or
any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or (f) by
taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least
₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide the
judge in its application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying the realm of
the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00
through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A.
No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as
follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there
willfully, unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF
THE PHILIPPINES, through ANY OR A combination OR Aseries of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM
OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM
OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS
(₱130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50);
AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
 (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, lawmakers - who are, ordinarily, untrained philologists and lexicographers
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF - to use statutory phraseology in such a manner is always presumed.
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES Thus, Webster's New Collegiate Dictionary contains the following
AND JANE DOES, in the amount of MORE OR LESS THREE commonly accepted definition of the words "combination" and "series:"
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY Combination - the result or product of combining; the act or process of
THREE PESOS AND SEVENTEEN CENTAVOS combining. To combine is to bring into such close relationship as to
(₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER obscure individual characters.
HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-
PCI BANK." Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
We discern nothing in the foregoing that is vague or ambiguous - as there
is obviously none - that will confuse petitioner in his defense. Although That Congress intended the words "combination" and "series" to be
subject to proof, these factual assertions clearly show that the elements understood in their popular meanings is pristinely evident from the
of the crime are easily understood and provide adequate contrast legislative deliberations on the bill which eventually became RA 7080 or
between the innocent and the prohibited acts. Upon such unequivocal the Plunder Law:
assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7
May 1991
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
say THROUGH A COMBINATION OR SERIES OF OVERT OR
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
according to petitioner, render the Plunder Law unconstitutional for being
when we say combination, we actually mean to say, if there are two or
impermissibly vague and overbroad and deny him the right to be
more means, we mean to say that number one and two or number one
informed of the nature and cause of the accusation against him, hence,
and something else are included, how about a series of the same act?
violative of his fundamental right to due process.
For example, through misappropriation, conversion, misuse, will these be
included also?
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
REP. GARCIA: Yeah, because we say a series.
therein, or because of the employment of terms without defining
REP. ISIDRO: Series.
them;6 much less do we have to define every word we use. Besides, there
REP. GARCIA: Yeah, we include series.
is no positive constitutional or statutory command requiring the legislature
REP. ISIDRO: But we say we begin with a combination.
to define each and every word in an enactment. Congress is not
REP. GARCIA: Yes.
restricted in the form of expression of its will, and its inability to so define
REP. ISIDRO: When we say combination, it seems that -
the words employed in a statute will not necessarily result in the
REP. GARCIA: Two.
vagueness or ambiguity of the law so long as the legislative will is clear,
REP. ISIDRO: Not only two but we seem to mean that two of the
or at least, can be gathered from the whole act, which is distinctly
enumerated means not twice of one enumeration.
expressed in the Plunder Law.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
Moreover, it is a well-settled principle of legal hermeneutics that words of REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
a statute will be interpreted in their natural, plain and ordinary acceptation REP. ISIDRO: So in other words, that’s it. When we say combination, we
and signification,7 unless it is evident that the legislature intended a mean, two different acts. It cannot be a repetition of the same act.
technical or special legal meaning to those words. 8 The intention of the
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That
is why, I said, that is a very good suggestion because if it is only one act,
it may fall under ordinary crime but we have here a combination or series
of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on
line 25, would the Sponsor consider deleting the words "a series of overt
or," to read, therefore: "or conspiracy COMMITTED by criminal acts such
as." Remove the idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of
the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many;
two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections
(1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed towards a common purpose or
goal which is to enable the public officer to amass, accumulate or acquire
ill-gotten wealth. And thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and
others conniving with him follow to achieve the aforesaid common goal.
In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law." 13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." 14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity." 15 The possible harm
to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." 18 As
for the vagueness doctrine, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of
others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might
be unconstitutional."20 As has been pointed out, "vagueness challenges in
the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant."21 Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected.22 It constitutes a
departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in
sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort,"25 and is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking
to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate committees by reason
of which he even registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if
only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b) giving
of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because
they were left to guess which of the three (3) offenses, if not all, they
were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-
Graft and Corrupt Practices Act does not suffer from the constitutional
defect of vagueness. The phrases "manifest partiality," "evident bad
faith," and "gross and inexcusable negligence" merely describe the
different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public officer
in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its primary
and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind.
In a criminal prosecution for plunder, as in all other crimes, the accused
always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt"
standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary
affairs has confidence that his government cannot adjudge him guilty of a
criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such
exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except
upon proof beyond reasonable doubt of every fact necessary to constitute
the crime with which he is charged.30 The following exchanges between
Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is
less than ₱100 million, but the totality of the crime committed is ₱100
million since there is malversation, bribery, falsification of public
document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel that
such a series of overt criminal acts has to be taken singly. For instance,
in the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can
we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the import
of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an
amount of at least ₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the
accused in furtherance of the overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing
that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient to prove by pattern at
least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of
Evidence if there is proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime
are proved beyond reasonable doubt without applying Section 4, can you
not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4
in convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt
insofar as the predicate crimes charged are concerned that you do not
have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a
very important element of the crime of plunder and that cannot be
avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake
of argument that Sec. 4 is flawed and vitiated for the reasons advanced
by petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus, he
says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges
guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind
of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does not
apply as well to the public officer as principal in the crime. As Justice
Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of
the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme of
the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation
or misapplication of government funds translates to an actual threat to the
very existence of government, and in turn, the very survival of the people
it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials,
employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 and it does
not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg.
22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The
Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among
our people that may linger for a long time. Only by responding to the
clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise
known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19555 May 29, 1964
MATEO DE RAMAS, petitioner,
vs.
THE COURT OF AGRARIAN RELATIONS and GERONIMO B.
RAMOS, respondents.
Carlos P. Torres for petitioner.
J. M. Dator and T. T. Riel for respondents.
LABRADOR, J.:
This is a petition for a writ of with prohibition to review and set aside a
decision of the Court of Agrarian Relations, Hon. Guillermo B. Santos,
presiding, approving a petition of Geronimo B. Ramos, tenant, against his
landlord, Mateo de Ramas, for the change of their tenancy from share to
leasehold tenancy.
Respondent Geronimo B. Ramos is the tenant of herein petitioner Mateo
de Ramas on a 2-1/2 hectare land at Muzon Naic, Cavite, under a verbal
share tenancy contract at 70-30. On June 22, 1960, or one month before
the beginning of the agricultural year 1960-1961, Ramos informed
petitioner of his desire to change their contract from that of share tenancy
to leasehold tenancy. Petitioner refused to grant the request insisting on
the former 70-30 sharing basis, so on May 23, 1961 Ramos filed a
petition with the Court of Agrarian Relations praying that he be allowed to
change their tenancy contract from share to leasehold, in accordance
with the provisions of Section 14 of Republic Act No. 1199, as amended.
Petitioner opposed the petition as groundless and violating their
gentleman's agreement.
During the pendency of the case respondent Ramos moved to suspend
the proceedings on the ground that the constitutionality of Section 14
Republic Act No. 1199 has been raised, among other issues, before the
Supreme Court in the case of Juliano v. CAR, et al., G.R. No. L-17627,
and that to continue with the case would only result in loss of time,
money, etc., if the Supreme Court declare Sec. 14 of Republic Act No.
1199 unconstitutional. This motion was denied in an order dated
September 22, 1961. On December 14, 1961 Ramos presented his
evidence; but Ramas waived the presentation of his evidence,
manifesting that he would appeal whatever decision the agrarian court
might render. On March 1, 1962, respondent court rendered judgment
upholding the constitutionality of Sec. 14 of Republic Act No. 1199, citing
Our ruling in Pineda, et al. vs. Pingul and CIR, G.R. No. L-5565,
September 30, 1952, where We upheld the constitutionality or validity of
Act No. 4054, as amended by Com. Act 178 and Republic Act 34.
Against the above judgment the present petition is brought before Us,
petitioner praying that after proper hearing, Sec. 14 of Republic Act No.
1199 be declared unconstitutional and that the writ of prohibition prayed
for be granted.
Petitioner first questions the agrarian court's action in proceeding with the
hearing of CAR Case No. 246, Cavite '61, deciding the same, and
ordering execution of its decision despite, the pendency before Us of a
similar case raising the constitutionality of Sec. 14 of Republic Act No.
1199. We find no error or irregularity in the court's proceeding with the
case. The mere fact that the constitutionality of a law is raised in another
case pending in the Supreme Court is not a valid reason for suspending
the proceedings in this case. Laws are considered valid until declared
unconstitutional, and until then courts are in duty bound to enforce them.
(Magtibay v. Alikpala, G.R. No. L-17590 and Juliano v. CAR, G.R. No. L-
17727, both promulgated on November 29, 1962.)
The present suit, specifically concerns the validity of Section 14 of the
said Act which is as follows:
SEC. 14. Change of System. — The tenant shall have the right to
change the tenancy contract from one of share tenancy to
leasehold tenancy and vice versa and from one crop sharing
arrangement to another of the share tenancy. If the share tenancy
contract is in writing and is duly registered, the right to change
from one crop sharing arrangement to another may be exercised
at least one month before the beginning of the next agricultural
year after the expiration of the period of the contract. In the
absence of any registered written contract, the right may be
exercised at least one month before the agricultural year when
the change shall be effected. (As amended by Section 4, R.A.
2263.)
The above provision is attacked on the ground of unconstitutionality in
that it impairs the obligation of contracts, because after a contract of
share tenancy has been adopted between the landlord and the tenant,
the latter is empowered, notwithstanding said contract, to change it into
leasehold tenancy. The question presented makes a review of tenancy
laws useful in order to secure a correct perspective of the issue.
The promotion of social justice and of the well-being and economic
security of all the people is a primary aim of the Constitution (Sec. 5, Art.
11). In line with this goal, the State encourages small landholdings as
against large estates (Article XII of the Constitution) and has taken upon
itself the duty to protect the agricultural laborer and to regulate the
relations between him and the landowner. (Sec. 6, Art. XIV, id.)
Even before the approval of the Constitution the Legislature had already
passed Act No. 4054, known as the Philippine Rice Tenancy Act",
approved February 27, 1933. The Act's aim is primarily to regulate the
relations between landlords and tenants. Freedom of tenancy contract is
allowed so long as it is not contrary to existing laws, customs, morals and
public policy (Sec. 7). In the absence of contract the crop is divided
equally between the landlord and the tenants a system known as the
share tenancy (Sec. 8). The contract is to last according to the stipulation
of the parties, and in its absence it shall be in force only during one
agricultural year. The landlord may not dismiss a tenant while a tenancy
contract is in force, except for any just and reasonable cause as
enumerated in Section 19 of Act No. 4054.
On June 9, 1939, Commonwealth Act No. 461 was passed. This law
further protects the security of tenure of the tenant, and provides that the
tenant may not be dispossessed of the land except for any of the causes
mentioned in Section 19 of Act No. 4054 and subject to the approval of a
representative of the Department of Justice (Sec. 1).
On September 30, 1946, Republic Act No. 34 was approved, amending
certain sections of Act No. 4054 and providing for a sharing ratio between
the landlord and the tenant, depending on which of them furnishes the
necessary implements and work animals and defrays all the expenses for
planting and cultivation (Sec. 3, Rep. Act No. 34, amending Sec. 8, Act
No. 4054).
In the case of Tapang v. Court of Industrial Relations, 72 Phil. 79, the
validity of Section 19 of Act No. 4054 (Sec. 19 provides that landlord may
not dismiss tenant except for good pause) and of Commonwealth Act No.
461 was questioned on the ground that they violate the constitutional
guarantee against impairment of contracts. Overruling this argument, the
Supreme Court said:
El arguments de que la Ley No. 461 del Commonwealth es
contraria a la Constitution porque altera obligaciones
contractuales, no tiene ningua fuerza, porque, ... la misma
Constitution manda que se debe "promoter la justicia social a fin
de asegurara el bienestar y la estabilidad economica de todo el
pueblo," y que se debe protegee al mismo tiempo "a todos los
trabajadores, especialmente a las mujeres"; y no hay duda de
que las dos mencionadas leves tienden a licho fina, protegiendo
al aparcero y al propietario por igual y estableciendo reglas que
han de determinar las relaciones que deben existing entre los
dos para su propio beneficio. (Per Pablo, J., Tapang v.
CIR, supra)
The argument that the tenancy relationship had ceased after the
expiration of the agricultural year was declared by the Court to be without
any validity because Section 26 of Act No. 4054, the basis of said
argument, must be understood to have been annulled or at least subject
to the provisions of Commonwealth Act No. 461 (ante) Said this Court:
 "No obstante todo contrato o disposicion en contrario de
cualquier ley vigente en todos los casos en que un terreno es
ocupado bajo un sistema cualquiera de aparceria no se ha de
desposeer alaparo del terreno cultivado porel mismo, in la
aprobacion de un representante del Departmento de Justicia
debidamiente authorizado al efecto y como no sea por alguna de
las causes expresadas en al articulo diecinueva de la Ley
Numero Cuatro mil cincuenta y cuatro o por alguno otro motivo
justificada." (Ibid.)
After the passage of the above laws the need was felt for an agency
familiar with landlord-tenant problems and capable of effectively enforcing
existing laws. So, a special division of the Department of Justice to act as
compulsory arbiter was first set up; later the arbitration and litigation
aspects of tenancy cases were transferred to the Court of Industrial
Relations whose docket was already clogged with cases involving other
labor legislation. Act No. 4054 left much to be desired. It is not of
universal application. Its principles were not in force throughout the
Philippines, but only in localities where it was adopted or where it was put
into effect by presidential proclamation. (C.A. 178, Sec. 4; Iburan v.
Labes, 87 Phil. 234.) In other places, the standard of conduct laid down
by Act No. 4054 was inapplicable (De la Cruz v. Asociacion Zanjero
Casilia; 83 Phil. 214). Even under the law oppressive conditions under
which tenants theretofore found themselves were practically left
unremedied; they still remained at the mercy of their landlords. 1äwphï1.ñët
The latest attempt to remedy the miserable plight of tenants came with
the passage of Republic Act No. 1199, otherwise known as the
"Agricultural Tenancy Act of the Philippines," which repeals the old
Tenancy Act (Act No. 4054), Commonwealth Act No. 461, and various
amendments of these laws. The purpose of this Act, according to Section
2 thereof, is "to establish agricultural tenancy relations between
landholders and tenants upon the principle of social justice; to afford
adequate protection to the rights of both tenants and landlords; to insure
an equitable division of the produce and income derived from the land; to
provide tenant farmers with incentives to greater and more efficient
agricultural production; to bolster their economic position and to
encourage their participation in the development of peaceful, vigorous
and democratic rural communities."
Later on, or on June 14, 1955, Republic Act No. 1267 was passed
creating the "Court of Agrarian Relations", said to be a concomitant of the
Agricultural Tenancy Act, and designed to provide the long-needed
medium for deciding agricultural problems. (3 Philippine Annotated Laws,
p. 72.)
A study of the Agricultural Tenancy Act (Rep. Act No. 1199) discloses
that it is an improvement of its predecessor Act 4054, as amended. Most
of its provisions deal with the regulation of the relations of the landlord
and tenant (Secs. 6, 7, 8, 9), fixing of the share of each in the products of
the land cultivated by the tenant in general (Secs. 32, 33, 34, 35), the
guaranteeing of the permanency of tenure of the tenant and his heirs on
the land he and his predecessors cultivate (Secs. 6, 7, 9, 49, 50, 51). Its
most important provision is the protection of the tenant against
exploitation by the landlord as it prescribes the utilization by the landlord
of the personal services of the tenant and the members of his household
without compensation (Sec. 23). It fixes interests on loans secured by the
tenant from the landlord and prescribes the payment of such loans from
the share of the tenant in the harvest at the current price, and requires
the keeping of books of account showing the amounts received by the
tenant as loans from the landlord, etc. (Secs. 16, 18, 48.)
The above provisions are clearly an improvement of Act No. 4054. They
are intended to protect tenants from abuse and exploitation by their
landlords. The validity of these provisions has not been questioned as
they clearly fall within the province of regulatory provisions enjoined
expressly in the Constitution (Art. XIV, Sec. 6). The provisions are clearly
of apparent wisdom and validity, evidently not subject to question as they
do not appear to have ever been questioned in the short span of life of
the law (approved August 30, 1954).
The history of land tenancy, especially in Central Luzon, is a dark spot in
the social life and history of the people. It was among the tenants of
Central Luzon that the late Pedro Abad Santos, acting as a saviour of the
tenant class, which for generations has been relegated to a life of
bondage, without hope of salvation or improvement, enunciated a form of
socialism as a remedy for the pitiful condition of the tenants of Central
Luzon. It was in Central Luzon also that the tenants forming the PKM
organization of tenants and, during the war, the Hukbalahap, rose in arms
against the constituted authority as their only salvation from permanent
thralldom. According to statistics, whereas at the beginning of the century
we had only 19% of the people belonging to the tenant class, after 60
years of prevailing percentage has reached 39%. It is the desire to
improve the condition of the peasant class that must have impelled the
Legislature to adopt the provisions as a whole of the Agricultural Tenancy
Act, and particularly Section 14 of said Act.
The section in question (See. 14, Rep. Act No. 1199) permits a tenant
who has accumulated savings to free himself from obtaining the usurious
loans for expenses needed in plowing, harrowing, planting, and
harvesting. The tenant who has accumulated savings that would enable
him to buy implements and farm animals is allowed by the provision in
question to free himself from the bondage of permanent share tenancy by
a change to lease-hold tenancy. The tenant who is used to cultivating
riceland cannot conceive of any form or manner in which he can invest
his meager savings other than by the purchase of farm implements and
work animals. In other words, the only avenue left to him to improve his
lot is by permitting him to change his contract to tenancy from that of
share system to that of leasehold system. The increase that he receives
in his share as a consequence of the change, is only 5% (under the share
system the landlord receives 30% and under leasehold he receives only
25% if the land is first class, and 20% if the land is second class). But by
the change the tenant is released from the stranglehold of the landord,
and becomes a semi-independent farmer. The provision in question is
certainly justified by the directive contained in the Constitution to do
justice to labor. By the change the laborer can improve his lowly lot. And
if it cannot be justified as an act of social justice enjoined in the
Constitution, it may be considered as an exercise of the police power of
the State, which tries to improve the situation of a great percentage of the
people and preserve the security of the State against possible internal
upheavals that the tenant class might be forced to create to improve their
lowly lot. The tenants uprising in Central Luzon from 1946 to 1952 must
certainly have been the main cause or reason for the enactment of the
Agricultural Tenancy Act in 1954 and of the particular section in question.
The desire to improve the tenant class certainly has been impelled by the
necessity of insuring the internal security of the country, a paramount aim
and end justifying the exercise of the police power.
The legal question that is posed before Us is: Is the enactment of Section
14 of Republic Act No. 1199 in virtue of the police power of the State
limited by the fact that it violates a contractual right (existing in favor of
the defendant-appellant in this case) ? The general rule has been stated
thus:
A police regulation, obviously intended as such, and not operating
unreasonably beyond the occasions of its enactment, is not
rendered invalid by the fact that it may affect incidentally the
exercise of some right guaranteed by the Constitution. For
example, it is said that the proper exercise of the police power is
not subject to restraint by constitutional provisions designed for
the general protection of rights of individual life, liberty and
property. (11 Am. Jur. 991-992)
Is Section 14 of Republic Act No. 1199 legally justified in impairing the
obligation of an existing contract between the tenant and the landlord?
The answer to this is again stated as follows:
The constitutional prohibition against state laws impairing the
obligation of contracts does not restrict the power of the state to
protect the public health, the Public morals, or the public safety.
One or more of these factors may be involved in the execution of
such contracts. Rights and privileges arising from contracts are
subject to regulations for the protection of the public health, the
public morals, and the public safety, in the same sense and to the
same extent as is all property, whether owned by natural persons
or corporations. Not all police legislation which has the effect of
impairing a contract is obnoxious to the constitutional prohibition
as to impairment. (Ibid., pp. 1000-1001).
Obligations of contracts must yield to a proper exercise of the police
power when such power is exercised, as in this case, to preserve the
security of the State and the means adopted are reasonably adapted to
the accomplishment of that end and are not arbitrary or oppressive. (11
Am. Jur. 1002-1003.)
The right granted to the tenant to change the contract from share tenancy
to that of leasehold tenancy can not be considered unreasonable or
oppressive, because by the landlord's giving up of 5% of the harvest (the
change from share to leasehold tenancy reduces the landlord's share
from 30% to 25%), the tenant becomes, more responsible, more
competent, and financially prepared to comply with his obligations under
the lease, to the ultimate benefit of the landlord, with the consequent
improvement of a lot of a big segment of the population and thereby
giving full meaning to the social justice directive contained in the
Constitution.
WHEREFORE, in view of the above considerations, We hold the disputed
Section 14 of Republic Act No. 1199 constitutional and valid. The
judgment appealed from is affirmed. Without costs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4974 May 16, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.JOSE LAVA, ET AL., defendants-appellees.
-----------------------------
ZALDIVAR, J.:
These are appeals from the joint decision of the Court of First Instance of
Manila in its Criminal Cases Nos. 14071, 14082, 14270, 14315 and
14344.
In Criminal Case No. 14071, the defendants were Jose Lava, Federico
Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz y Adriano,
Rosario C. viuda de Santos and Angel Baking. The appeal from the
decision in this case is now in G.R. No. L-4974 before this Court.
In Criminal Case No. 14082, the defendants were Lamberto Magboo,
Nicanor Razon, Sr., Esteban Gonzales y la Torre, Marcos Medina,
Cesario Torres, Rosenda Canlas Reyes, and Arturo Baking y Calma. The
appeal from the decision in this case is now in G.R. No. L-4975 before
this Court.
In Criminal Case No. 14270, the defendants were Simeon Gutierrez y
Rodriguez, Julita Rodriguez y Gutierrez, and Victorina Rodriguez y
Gutierrez, and Marciano de Leon. The appeal from the decision in this
case is now in G.R. No. L-4976 before this Court.
In Criminal Case No. 14315, the defendants were Honofre D. Mangila
and Cenon Bungay y Bagtas. The appeal from the decision in this case is
now in G.R. No. L-4977 before this Court.
In Criminal Case No. 14344 the defendants were Magno Pontillera
Bueno, Nicanor Capalad, Rosalina Quizon, Pedro Vicencio, Julia Mesina,
Felipe Engreso, Elpidio Acuño Adime, Josefina Adelan y Abusejo,
Conrado Domingo, Aurora Garcia, and Naty Cruz. The appeal from the
decision in this case is now in G.R. No. L-4978 before this Court.
All the above-named defendants were charged with having committed the
complex crime of rebellion with murders and arsons under an identical
information, filed in each of the five cases, which reads as follows: .
That on or about the 6th day of May, 1946, and for sometime prior and
subsequent thereto and continuously up to the present time, in the City of
Manila, the seat of the Government of the Republic of the Philippines
which the herein accused have intended to overthrow, and the place they
have chosen for that purpose as the nerve center of all their rebellious
activities in the different parts of the country, the said accused being then
high ranking officers or otherwise members of the Communist Party of
the Philippines (PKP) of which the "Hukbong Mapagpalaya ng Bayan"
(HMB) otherwise or formerly known as the Hukbalahap (Huks), is its
armed forces, having come to an agreement and decided to commit the
crime of rebellion, and therefore, conspiring and confederating together,
acting with many more others whose whereabouts and identities are still
unknown up to the filing of this information, and helping one another, did
then and there willfully, unlawfully, and feloniously promote, maintain,
cause, direct and/or command the Hukbong Mapagpalaya ng Bayan
(HMB) or the Hukbalahaps (Huks) to rise publicly and take arms against
the Government or otherwise participate therein for the purpose of
overthrowing the same, as in fact the said Hukbong Mapagpalaya ng
Bayan or Hukbalahaps (Huks) have risen publicly and taken arms against
the Government, by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army detachments,
and as a necessary means to commit the crime of rebellion, in connection
therewith and in furtherance thereof, by then and there committing
wanton acts of murder, spoilage, looting, arson, planned destruction of
private and public buildings, to create and spread terrorism in order to
facilitate the accomplishment of the aforesaid purpose, as follows, to wit:
(1) On May 6, 1946, the 10th MPC Co. led by First Lt. Mamerto
Lorenzo while on patrol duty in the barrio of Santa Monica,
Aliaga, Nueva Ecija, was with evident premeditation on the part of
the huks ambushed and treacherously attacked by a band of well-
armed dissidents or rebels. Ten enlisted men of the MP company
were killed. First Lt. Mamerto Lorenzo was captured and
beheaded by the rebels.
(2) On August 6, 1946, a group of more than 30 Huks under the
leadership of Salvador Nolasco armed with guns of different
calibers raided the municipal building of Majayjay, Laguna. They
were able to get one Garand, one carbine, one Thompson GMG,
and one pistol. They also took one typewriter and stationery (NR
Laguna, dated Sept. 2, 1946).
(3) On April 10, 1947, 14 EM under the command of Lt. Pablo C.
Cruz, while on their way to investigate a holdup in the barrio of
San Miguel na Munti, Talavera, Nueva Ecija were with evident
premeditation and treachery on the part of the Huks ambushed
and fired upon by Huks armed with 30-caliber rifles, machine
guns, and grenades. Lt. Pablo Cruz and Pvt. Santiago Mercado
were killed and 6 others were wounded.
(4) On May 9, 1947, Huks numbering around 100 under Lomboy
and Liwayway raided the town proper of Laur and forced
Municipal Treasurer Jose A. Viloria to open the treasury safe and
obtained therefrom more than P600. Policeman Fermin Sanchez
was taken by the bandits with one Springfield rifle. Bandits
robbed the towns people of their money, personal belongings,
rice and carabaos (WITR May 10, 1947). .
(5) On August 19, 1947, Capt. Jose Gamboa, First Lt. Celestino
Tiansec, and Second Lt. Marciano Lising, all from the 115th Co.,
while riding in a jeep following an armored car, were
treacherously fired upon by a group of about 100 dissidents
armed with automatic rifles, Thompsons, and Garands and lined
up on both sides of Highway No. 5 near the cemetery of San
Miguel, Bulacan. First Lt. Celestino Tiansec and Second Lt.
Marciano Lising were killed.
(6) In or about the month of June, 1946, Alejandro Viernes, alias
Stalin, commander of Joint Forces No. 108 with about 180 men,
entered the town of Pantabangan, Nueva Ecija, and raised their
Huk flag for more than twenty-four hours. The Municipal officials
did not offer any resistance because of the superiority in number
of the Huks. After demanding from the civilians foodstuffs such as
rice, chickens, goats, and carabaos, they left the town,
admonishing the civilians always to support the Huk organization.
The MP forces under Capt. Ponciano Hanili, S-3, Capt. Federico
C. Olares, then Asst. S-3, of Nueva Ecija province, proceeded to
Pantabangan with forces of the 112th MP Co. under Capt.
Nicanor Garcia, to verify the information, but were not able to
contact the dissidents at Pantabangan. They proceeded to the
barrio of Marikit, between Pantabangan and Laur, where they
engaged some dissidents. When our forces were on their way
home, they were pocketed by the dissidents at the zigzag road,
but owing to the initiative of our forces, they were able to extricate
themselves from their precarious position and were able to fire
their mortars and Cal. 50 and .30 machineguns. Investigations
made on the field of battle showed that the Huks suffered heavy
casualties which was verified later to have been seven cart loads
of dead men. (Special Report, PC Nueva Ecija, dated February
23, 1948.)
(7) Mrs. Aurora Aragon Quezon and party were with evident
premeditation and treachery on the part of the Huks ambushed at
about 10:30, 28 April 49 by an undetermined number of
dissidents under Commanders Viernes, Marzan, Lupo and
Mulong at kilometer 62, barrio Salubsob, Bongabong, Nueva
Ecija. PC escort exchanged fire with the dissidents. Patrol of the
First Heavy Weapons Company, 1st PC Battalion was dispatched
to reinforce the PC escort. The following persons were killed: Mrs.
Quezon, Baby Quezon, Mayor P. Bernardo, Major P. San
Agustin, A. San Agustin, Lt. Lasam, Philip Buencamino III, and
several soldiers. General Jalandoni and Capt. Manalang
sustained slight wounds.
(8) On August 25, 1950, Camp Macabulos, Tarlac, Tarlac was
attacked, raided and set fire to and among the casualties therein
were Major D. E. Orlino, Capt. T. D. Cruz, Lt. G. T. Manawis, Lt.
C. N. Tan, Lt. Eusebio Cabute, Sgt. Isabelo Vargas, Sgt.
Bernardo Cadoy, Sgt. Bienvenido Bugay, Sgt. Samuel Lopez,
Cpl. Vicente Awitan, Cpl. Ruiz Ponce, Cpl. Eugenio Ruelra, Pvt.
Agustin Balatbat, Saturnino Guarin, E. Cabanban, Antonio Monte,
Felix Quirin, Gregoria Balcoco, Jose Mojica, Cornelio Melegan,
Carlos Bojade, Rodrigo Espejo and Rosario Sotto, a Red Cross
nurse.
Counsel for defendants Jose Lava and Federico Bautista filed a motion to
quash the information against them upon the grounds that the information
did not conform to the prescribed form, that it charged the defendants
with more than one offense, and that the court had no jurisdiction over
the offense charged. Also filed was a petition for provisional liberty under
bail of 14 of the defendants, upon the grounds that (1) the evidence of
guilt was not strong and (2) the suspension of the writ of habeas corpus
under Proclamation No. 210, dated October 22, 1950, by the President of
the Philippines was unconstitutional. Both motion and petition were
denied by the trial court in an order dated November 1, 1950.
Upon agreement of the prosecution and the defense, and with the
conformity of all the defendants, the five cases were tried jointly, with the
understanding that each defendant could present his/her separate and
independent defenses. Notwithstanding the fact that several witnesses
had already testified in the first two cases (Criminal Cases Nos. 14071
and 14082) at the time the other three cases (Criminal Cases Nos.
14270, 14315 and 14344) were filed, the defendants in the latter three
cases expressed their conformity to a joint trial with the first two cases
and agreed that the evidence already taken in the first two cases be
reproduced in the latter three cases.
While the joint trial was being held, the prosecution, after a
reinvestigation of the cases, moved that the case with respect to
defendant Julia Mesina be dismissed upon the ground of insufficiency of
evidence. After the trial and before the cases were submitted for decision,
the prosecution also moved for the dismissal of the case against
defendant Rosenda Canlas Reyes upon the ground that the evidence on
record was not sufficient to support her conviction. Both motions were
granted by the trial court.
After the joint trial, the trial court rendered a joint decision in the five
cases, dated May 11, 1951.
In Criminal Case No. 14071, the court found defendants FEDERICO
MACLANG alias Eto alias O. Beria alias Olibas alias Mariano
Cruz alias Ambrosio Reyes alias Manuel Santos; RAMON
ESPIRITU alias Johnny alias Ka Johnny; ILUMINADA
CALONJE alias Salome Cruz alias Luming; JOSE
LAVA alias Harry alias Felix Cruz alias Gaston
Silayan alias Gaston alias Gregorio Santayana alias Greg alias Gavino;
FEDERICO M. BAUTISTA alias Freddie alias Fred; ANGEL
BAKING alias Angel alias Boriz alias Bayan; and ROSARIO VDA. DE
SANTOS alias Charing, guilty as principals of the complex crime of
rebellion with multiple murder, arsons, and robberies, and pursuant to
Article 248, subsections 1 and 3 of the Revised Penal Code, in
connection with its Article 48, sentenced defendants Federico Maclang,
Ramon Espiritu and Iluminada Calonje to the capital penalty of death;
and defendants Jose Lava, Federico M. Bautista, Angel Baking, and
Rosario C. Vda de Santos to reclusion perpetua. The defendants were
also ordered to pay the costs in this case.
In imposing the death penalty upon Federico Maclang, Ramon Espiritu
and Iluminada Calonje, the court took into consideration not only the very
nature of the crime committed but also the aggravating circumstance that
the said three defendants secured the aid of persons under 15 years of
age in the commission of the crime.
In Criminal Case No. 14082, the court found defendants CESAREO
TORRES alias Cesareo Yacat, alias Leo aliasLeodones; ARTURO
BAKING Y CALMA alias Arturo C. Baking alias A. C. Baking alias Arturo
Calma Baking aliasEduardo Santos, and MARCOS MEDINA alias Hiwara
guilty as principals of the complex crime of rebellion with multiple murder,
arsons, and robberies and sentenced the said defendants to reclusion
perpetua. The court also found defendants LAMBERTO
MAGBOO alias Berting alias Eddie and NICANOR RAZON,
SR., alias Elias Ruvi, as accomplice in the commission of the said crime
and were sentenced to an indeterminate prison term of ten (10) years
of prision mayor as minimum to seventeen (17) years of reclusion
temporal as maximum.
The court did not find sufficient evidence to establish the guilt of the
defendant ESTEBAN GONZALES Y LA TORRE, alias Esteban La Torre
Gonzales, either as principal or accomplice in the commission of the said
crime. The court, however, found him guilty as member of the Communist
Party in the Philippines, which is an illegal association, and pursuant to
Article 147 of the Revised Penal Code, the said defendant was
sentenced to four (4) months of arresto mayor. All the defendants were
ordered to pay costs.
In Criminal Case No. 14270, the court found defendants SIMEON
GUTIERREZ Y RODRIGUEZ alias Simeon
Rodriguez alias Sammy alias S. G. R. alias Lakindanum; MARClANO DE
LEON Y ESPIRITU alias Marciano E. de Leon alias Marcial alias Mar,
guilty as principals in the commission of the complex crime of rebellion
with multiple murder, arsons, and robberies; and JULITA RODRIGUEZ Y
GUTIERREZ alias Judith alias Juling alias Juliet aliasJulie, as accomplice
in the commission of the said crime, and sentenced defendants Simeon
Gutierrez y Rodriguez, and Marciano de Leon y Espiritu to reclusion
perpetua; and defendant Julita Rodriguez y Gutierrez to an indeterminate
prison term of ten (10) years of prision mayor as minimum to seventeen
(17) years of reclusion temporal as maximum. These defendants were
ordered to pay the costs.
The court acquitted defendant VICTORINA RODRIGUEZ Y
GUTIERREZ alias Vicky alias Toring.
In Criminal Case No. 14315, the court found defendants CENON
BUNGAY Y BAGTAS alias Ruping aliasCommander Ruping alias Bagtas
and HONOFRE D. MANGILA alias Onofre
Mangila alias Tommy alias Miller guilty as principals of the complex crime
of rebellion with multiple murder, arsons and robberies, and pursuant to
the provision of Article 48 of the Revised Penal Code the said defendant
Cenon Bungay y Bagtas and Honofre D. Mangila were sentenced to
death. In arriving at this decision the court took into consideration the
gravity of their participation in the said complex crime, the first being a
Huk squadron commander, who led and took part in several raids and
ambuscades conducted by the HMB and caused the killing of Major
Leopoldo Alicbusan of the PC Detachment at San Pablo City, Laguna,
and the second (Mangila) being a member of the powerful Central
Committee of the Communist Party in the Philippines, which elects the
Politburo members. The said defendants were also ordered to pay the
costs.
In Criminal Case No. 14344, the court found defendant MAGNO
PONTILLERA BUENO alias Magno Bueno aliasMamerto
Banyaga alias Narding, guilty as principal of the complex crime of
rebellion with multiple murder, arsons, and robberies and sentenced the
said defendant to death. The court, likewise found defendants
ROSALINA V. QUIZON alias Regina Quiambao; PEDRO
VICENCIO alias Pedring; FELIPE ENGRESO alias Ipe; JOSEFINO
ADELAN Y ABUSEJO alias Fely; ELPIDIO ACUÑO
ADIME alias Rolly, alias Rolly Enriquez alias Rol alias Pidiong, and NATY
CRUZ alias Natie alias Naty alias Spring, and CONRADO
DOMINGO alias Adong guilty beyond reasonable doubt as accomplices
in the commission of the said crime and sentenced the said Rosalina
Quizon and Pedro Vicencio to an indeterminate penalty of ten (10) years
of prision mayor as minimum to seventeen (17) years of reclusion
temporal as maximum; and Felipe Engreso, Josefina Adelan and
Conrado Domingo to an indeterminate prison term of four (4) years
of prision correccional as minimum to ten (10) years of prision mayor as
maximum. The last three accused were declared entitled to the privileged
mitigating circumstance of minority, they being under 18 years of age.
With respect to defendants Elpidio Acuño Adime and Naty Cruz, they
being under 16 years of age, further proceedings were suspended and
pursuant to the provision of Article 80 of the Revised Penal Code, the
court ordered that the said Elpidio Acuño Adime be committed to the
Boys' Training School and Naty Cruz to the Girls' Training School at
Mandaluyong, Rizal under the custody and supervision of the
Commissioner of Social Welfare or his authorized representatives until
they reach the age of majority or until further orders of the court. The
Commissioner of Social Welfare was directed to submit to the court every
four months a written report on the good or bad conduct of the said
minors, on the moral and intellectual progress made by them during the
period of their confinement in said institutions.
The court acquitted defendants NICANOR CAPALAD alias Canor and
AURORA GARCIA alias Laring.
All the defendants except Nicanor Capalad and Aurora Garcia were
ordered to pay the costs.
In imposing the capital penalty on Magno Pontillera Bueno the Court took
into account not only his being a member of the powerful Central
Committee of the Communist Party jointly with Federico Maclang and
Honofre Mangila but also his being an instructor on Military Tactics in the
"Stalin University", the military training school for Huks in the mountains.
The rights to file a civil action to recover indemnity for the death of the
victims of the murders specifically referred to in these cases were
reserved to the heirs of the said victims.
Thus, of the original 31 defendants in these five criminal cases, five were
acquitted, namely: Julia Mesina, Rosenda Canlas Reyes, Victorina
Rodriguez y Gutierrez, Nicanor Capalad and Aurora Garcia. Of the 26
who were convicted, all appealed to this Court except defendant Esteban
Gonzales la Torre. Later, defendants Rosalina Quizon, Elpidio Acuño
Adime, Josefina Adelan Abusejo, Conrado Domingo and Naty Cruz
withdrew their appeal. During the pendency of the appeal, defendants
Julita Rodriguez y Gutierrez and Magno Pontillera Bueno died. The
appeals now before this Court, therefore, involve only 18 defendants,
namely: Jose Lava, Federico Bautista, Federico Maclang, Ramon
Espiritu, Salome Cruz, Rosario Vda. de Santos, Angel Baking, Lamberto
Magboo, Nicanor Razon, Marcos Medina, Cesareo Torres, Arturo Baking,
Simeon G. Rodriguez, Marciano de Leon, Honofre Mangila, Cenon
Bungay, Pedro Vicencio, and Felipe Engreso.
Upon petition by the Deputy Chief, Military Intelligence Service (MIS) of
the Armed Forces of the Philippines, this Court, by order of March 7,
1952, appointed the MIS the custodian of the exhibits and documents
that were presented as evidence in these five criminal cases before the
trial court. This step was taken because those documents and exhibits
were needed also as evidence in other courts in the prosecution of other
members of the HMB (Hukbong Mapagpalaya ng Bayan). Later, by order
of April 14, 1955, this Court appointed the Staff Judge Advocate of the
Philippine Constabulary the custodian of the same documents and
exhibits. Those documents and exhibits were kept at the headquarters of
the Philippine Constabulary at Camp Crame, Quezon City. On
September 10, 1958 the headquarters of the PC was destroyed by fire,
and all those documents and exhibits were burned. Upon a petition for
the reconstitution of the said documents and exhibits, this Court
appointed Deputy Clerk of Court Bienvenido Ejercito as Commissioner to
receive evidence for the reconstitution of those documents and exhibits.
The Commissioner, after due hearing, submitted his report, dated
October 6, 1959, recommending that the documents and exhibits that
were burned be declared reconstituted by the photostatic copies of the
originals of those documents and exhibits. The Commissioner stated in
his report that those photostatic copies were duly identified during the
hearings on the reconstitution. Over the objection of counsels for the
defendants-appellants, this Court approved the report of the
Commissioner.
Counsels for the appellants were allowed by the Court all the time that
they needed to prepare the briefs for the appellants. The last brief for the
appellants was filed on January 22, 1963. The Solicitor General filed the
brief for the appellee (People of the Philippines) on June 29, 1963. These
appeals were set for hearing on oral argument on August 28, 1963. On
that date counsel for some of the defendants-appellants argued the case
for their clients; and counsels for other defendants-appellants were given
a period of 20 days to submit a memorandum in lieu of oral argument.
The Solicitor General was likewise granted leave to submit a reply
memorandum within 20 days from the receipt of the copies of the
appellants' memoranda. Upon the filing of the memoranda these cases
were considered submitted for decision.
These cases have been pending for decision in this Court since October,
1963, and it would seem that this Court has not acted with dispatch in the
disposition of these cases. It must be known, however, that this Court has
been swamped with cases appealed from the lower courts and from
administrative bodies and officials, as provided by law, and despite the
arduous labors by the members of this Court the docket of this Court has
been, and still is, clogged. There are numerous criminal cases appealed
to this Court ahead of these five cases. Certainly the appellants in those
earlier appealed criminal cases deserve the same concern from this
Court that the appellants in these five cases expect for themselves. The
record of these five cases, consisting of the "rollos", the transcript of the
stenographic notes taken during the trial and the documentary exhibits, is
so voluminous that when piled vertically it would stand almost three feet
high. The record has to be meticulously examined and studied by the
members of this Court, working as a collegiate body. In deciding cases,
this Court inclines more to careful study and deliberation rather than to
dispatch.
Existence and activities of the CPP and HMB
We have thoroughly examined the testimonial and documentary evidence
in the present cases, and We find it conclusively proved, as did the lower
court, that as of the year 1950 when elements of the police and armed
forces of the Government arrested the defendants in these five cases
there was already a nationwide organization of the Communist Party of
the Philippines (CPP), and that said party had a well-organized plan to
overthrow the Philippine Government by armed struggle and to establish
in the Philippines a communist form of government similar to that of
Soviet Russia and Red China. The Communist Party of the Philippines
had as its military arm the organization known as the "Hukbong
Mapagpalaya ng Bayan" (HMB), otherwise or formerly known as the
Hukbalahaps (Huks). It is established that the rebellious activities of the
HMB, and the commission of common crimes in different parts of the
country by the HMB, were directed by the Communist Party of the
Philippines through its Politburo (PB) and/or Secretariat (SEC). The
Politburo and/or the Secretariat gave orders to the field through its
general headquarters (GHQ) and its regional commands (RECOS), and
reports to the Politburo and/or Secretariat were made regarding the
activities of the HMB, giving accounts of the sorties or ambushes and
attacks against elements of the police, the Philippine Constabulary and
the army, and of killings, lootings and destruction's of property. It is also
established that the plan of the Communist Party was not only to
overthrow the Philippine Government but also to kill officials of the
Government and private individuals who refused to cooperate with the
rebels, and orders to this effect were transmitted to the HMB.
Among the documentary evidence presented during the trial is the
Constitution of the Communist Party of the Philippines, one of the
documents seized in one of the raids when some of the appellant were
arrested. In this document it is shown that the CPP has a National
Congress (NC) which is the highest Authority in the party. The National
Congress formulates the policies of the party, and determines the
functions of the party and of the standing committees; it renders
decisions on all problems regarding organizations and tactics, and on
appeals brought before it; and it elects the members of the Central
Committee (CC). The Central Committee, which is the highest authority
when the National Congress is not in session, enforces the Constitution,
implements the policies formulated by the National Congress,
promulgates Rules and regulations, supervises all political and
organizational work of the party, takes charge of financial matters and
renders an accounting thereof to the National Congress, and elects the
General Secretary (SEC) and all the members of the Politburo. The
Politburo (PB) is the real executive body of the party, and is responsible
for the execution of the powers and duties of the Central Committee
when the latter is not in session. The General Secretary and the Politburo
are responsible to the Central Committee for all their decisions and
actions. Then there are departments, bureaus, committees and other
organizational units. There is the National Education Department (NED),
the educational Department (ED), the Organization Bureau (OB), the
Organizational Department (OD), the District Organization Committee
(DOC) the Peasants' Organization (PO), the Trade Union Department
(TUD), the Sanggunian Tanggulang Baryo (STB), the Military Committee
(MC), the General Headquarters (GHQ), the Regional Command
(RECO), the Field Command (FC), the Battalion (BN), the Company,
(CO), the Platoon (PLN), and the Squad (SQD). There is also the
National Finance Committee (NFC) in charge of the financial matters of
the Party, the RECO Finance Committee (RFC), the District Finance
Committee (DFC), the Field Command Supply Officer (FC-G-4), the
Battalion Supply Officer (Bn-G-4), the Company Supply Officer (Co-G-4),
the Platoon Supply Officer (Pln-S-4), the National Courier Division (NCD),
the Reco Courier Division (RCB), the Central Post (CP), and Field
Command Courier (FC-Courier).
The Secretariat provisionally assumed the functions of the GHQ which
was abolished by the Politburo in its conference in January 1950. The
Secretariat alone has final authority to impose the death penalty in court
martial cases where SECCOM (National Committee) cadres are involved.
Several SEC transmissions to the Politburo members assigned to
regional commands indicate that the Secretariat discussed plans of
attack by the HMB, distributes forces, and supplies intelligence
information.
There is the National Courier (or Communication) Division (NCD), which
is in charge of the communication system of the CPP, and the distribution
of supplies to the different regional commands in the field. There is a
Special Warfare Division, in charge of operating technological warfare
against the enemy such as the use of homemade bombs, molotov
cocktails, land mine traps, etc. There is the Technical Group (TG) which
attends to the manufacture of homemade firearms and other weapons.
This group includes chemists and engineers. Then there is the National
Intelligence Division, in charge of gathering military intelligence, as well
as political and economic intelligence.
For purposes of regional commands, the Philippines was divided
geographically into ten regions in order to facilitate the political, military,
and economic administration by the Communist Party of the Philippines.
Those regional commands are as follows: .
RECO 1 — Nueva Ecija, Pangasinan and lower Mt. Province.
RECO 2 — Pampanga, Tarlac, Zambales and Bataan.
RECO 3 — Bulacan and Rizal, except the towns under City
Command.
RECO 4 — Laguna, Batangas, Quezon and Cavite.
RECO 5 — Camarines Norte, Camarines Sur, Albay and
Sorsogon.
RECO 6 — Panay, Negros, Cebu, Samar, Leyte, Bohol and
Palawan.
RECO 7 — Davao, Lanao, Cotabato, Zamboanga and Agusan.
RECO 8 — Cagayan Valley provinces and Nueva Viscaya.
RECO 9 — Ilocos Norte, Ilocos Sur, Abra, and La Union.
CITY COMMAND — Manila, Malabon, Caloocan, Navotas, San
Francisco del Monte, Quezon City, Mandaluyong, San Juan,
Marikina, Pasig, Guadalupe, Pasay, Baclaran, Parañaque,
Muntinglupa and Alabang.
The Communist Party of the Philippines has a flag, colored red, with the
symbols of the hammer and the sickle (Exhibit A), and a newspaper
organ called "TITIS". In the general plan to indoctrinate the masses into
communistic ideas and principles, communist schools — some of them
called "Stalin University" — were set up in a number of places in the
mountain fastnesses, where trained instructors gave lectures and taught
lessons in the principles of Karl Marx, Frederich Engels, Joseph Stalin
and Nicolai Lenin. .
As has been stated, the CPP has an armed force, which is the HMB. The
predecessor of the HMB was the HUKBALAHAP, an organization created
by the party during the Japanese occupation to resist the Japanese
forces. Upon liberation of the Philippines, the members of the
Hukbalahap continued their activities, the organization was renamed
HMB, and its members were indoctrinated in communistic principles. The
members of the HMB are known as "Huks".
The tie-up between the CPP and the HMB is established beyond doubt
by the evidence. It is shown that the heads of the CPP were in regular
communication with the leaders of the HMB, and the raids, ambushes,
burnings, lootings and killings were planned and authorized by the CPP.
Appellant Federico Maclang, who is a member of the Politburo, in his
testimony, admitted that the HMB is the armed force of the CPP. Luis
Taruc, who at the time was the head of the HMB, participated in the
meetings and deliberations of the CPP. Some instances may be cited: (1)
When Luis Taruc, leader of the HMB, was interviewed by Manuel
Manahan representing the newspaper "Bagong Buhay", sometime in July
1950, the said interview was planned, approved and authorized by the
Secretariat of the Communist Party. The purpose of the interview was to
make Taruc declare about the true status of the leadership in the HMB
and the CPP, and belie reports of division among the leaders; (2) When
appellant Simeon Rodriguez, a member of the Politburo and a ranking
member of the National Finance Committee, was arrested at 268 Pasaje
Rosario, Paco, Manila on October 18, 1950, there were found in his
possession 65 P100-bills and 60 P50-bills and also P145 circulating
notes and $312 in paper currency whose serial numbers (except two
dollars) tallied with the serial numbers of part of the money (amounting to
more than P80,000) that was taken by the Huks from the safe of the
office of the Provincial Treasurer when they raided Sta. Cruz, Laguna, on
August 26, 1950. Provincial Treasurer Balbino Kabigting of Laguna had a
record of the serial numbers of the money taken by the Huks, and he
even issued a warning to the public about the loss of the money —
mentioning in the warning the serial numbers of the money taken. There
are documents showing that this money taken from the provincial
treasury of Laguna was the subject of communications between Luis
Taruc and appellant Federico Maclang and other members of the
Secretariat.
Written articles and official publications of the CPP and HMB, which were
presented as evidence, show the tie-up between the CPP and HMB.
Following are some excerpts from those publications:
As the situation now stands, it can be assumed that the HMB
under Communist leadership, already enjoys a quantitative edge
over the Nationalista Party ... (Exh. K-211, p. 7, "Struggle against
Awaitism". Emphasis supplied).
The enemy was caught by surprise. The CPP and the HMB it is
leading scored a tremendous political victory ... (Exh. O-33,
"Twenty Years of Struggle of the CPP." Emphasis supplied)
Documentary and testimonial evidence establish that the various raids
and ambuscades perpetrated by the HMB were planned, directed and
supported by the CPP. Thus, in the "Milestones in the History of the
CPP", written by appellant Jose Lava, it is stated that at the enlarged
Politburo conference of January, 1950, it was decided to intensify HMB
military operations for political and organizational purposes. The
widespread raids and attacks on the occasion of the 8th HMB
anniversary (March 28-29, 1950) was decided at the PB conference:
The conference specifically decided to launch coordinated military
operations on the occasion of the eight anniversary of the HMB.
(Exh. 249, Folder of Exhibits, Vol. V.)
The CPP ordered the HMB to fight the Philippine Constabulary and attack
government installations. Thus testified Benjamin Advincula, a former
high ranking HMB member, who said that when he was Secretary of
RECO No. 4, he received orders for transmission to the HMB to fight the
Philippine Constabulary. Attacks by the HMB were also reported to the
CPP. The accomplishments, for instance, of RECO 2 during the attacks
at dawn on March 29, 1950 were reported in Enteng's (Luis Taruc) letter
to the Secretariat on April 1, 1950. This letter reported the ambush and
liquidation of Captain Dumlao and others; the attack and burning of the
CG (Civilian Guard) camp at Manibong, Porac, and the capture of arms
and ammunitions thereat; the losses on the enemy side; the burning of 12
houses and the liquidation of 2 spies at Mabalacat, Pampanga. A similar
report was furnished by a certain Pedring of RECO 2 in a letter to Eto
(Federico Maclang) dated April 2, 1950.
It was, in fact, the Communist Party that celebrated the eighth
anniversary of the HMB, as appears in the Communist Party document
"Twenty Years of Struggle of the CPP" in which we read about the
simultaneous attacks of the HMB on March 29, 1950 the following:
In quick succession, the Party celebrated the eighth anniversary
of the HMB by the coordinated military operations from the far
north down to southern Luzon ... (Exh. O-33, Folder of Exhibits,
Vol. V)
The Secretariat issued the following instructions in connection with the
May 1, 1950 (Labor Day) attack:
... Repeat March 29 simultaneous attacks to time with May 1
celebration to convince the workers of the peasants' unity in
 struggle with them. Party and HMB messages to be sent. (Exh.
O-313, Folder of Exhibits, Vol. V)
Replying to said order (Exh. 0-313), the Politburo representative of
Regional Command No. 3 wrote Gaston (Jose Lava of the Secretariat)
and said:
Ukol sa Plan for May lst OK. We will try our best to accomplish
our part without hesitation. (Exh. M-179, Folder of Exhibits, Vol.
III).
The May 1, 1950 attack was followed by simultaneous attacks by the
HMB on August 26, 1950, in commemoration of the first "Cry of
Balintawak." These attacks were again decided, planned and directed by
the Communist Party of the Philippines as shown by transmissions from
the Secretariat to the Politburo members in the field. (Exhs. O-93; par. 2;
O-102, par. 6). The attacks on August 26, 1950 were also ordered by the
Secretariat, because the evidence shows that the Secretariat required
submission of complete report thereof, and reports were in fact submitted
by Taruc (Enteng) on September 9, 1950 (Exhs. O-638, par. 8; O-278).
The Communist Party also planned the attack for November 7, 1950, the
20th anniversary of the CPP, which required bigger operations than the
attack of August 26, because towns were to be captured, barracks and
jails were to be raided and political enemies were to be liquidated. The
SEC assigned and allocated the forces to different phases and places of
operations. In hand-written notes identified by expert witness to have
been written by appellant Jose Lava, the following appears in connection
with the plans for November 7:
... Coordinated — Core: Capture of towns near Manila, but near
Mt. bases — Coordination of RECO 2, 3 & 4, Rizal — Cavite. Pol
liquidation in City. Bringing fight near strategic political, military
and economic centers Supporting RECO 1 in ILOCOS &
CAGAYAN. RECO 5 in BICOL & RECO 6 in VISAYAS. (Exh. O-
12.)
As We have stated, the primordial objective of the Communist Party of
the Philippines and of its armed force, the HMB, was to overthrow the
Philippine Government by armed struggle. To attain this objective, the
CPP also envisioned the following expansion: of the cadres from 3,600 in
July, 1950 to 56,000 in September 1951; of the party members from
10,900 in July, 1950 to 172,800 in September, 1951; of HMB members
from 10,800 in July, 1950 to 172,800 in September, 1951; and of the
organized masses from 30,000 in July, 1950 to 2,430,000 in September,
1951.
The Communist Party declared the existence of a revolutionary situation
in November, 1949 and went underground. This appears in the following
excerpts from documents that were presented as evidence during the
trial.
Quickly sizing up the existence of a revolutionary situation, arising
from the merger ... of the crises of production due to the
imperialist-feudal domination of our economy, and the
parliamentary crises due to fraud and terrorism in the 1949
elections, the CPP openly called on the people to overthrow the
Liberal Party puppets of the American imperialists. (Exh. O-32,
"Twenty Years of Struggle of the CPP", Exh. O-12 [hh])
In the Philippines, the CPP has already declared the existence of
a revolutionary situation; and it is concentrating all its energies
towards the hastening of the maturity of the revolutionary
situation into a crisis leading to the overthrow of the imperialist
puppets and the achievement of the NEW DEMOCRACY. (Exh.
O-949, "Strategy and Tactics," Exhs. O-126-141) .
The CPP has declared the existence of a revolutionary situation;
since November, 1949, as a result of the merger of the crisis in
production of our imperialist feudal dominated economy and the
crisis of the burgeois parliamentarism ... Since then, the CPP
went completely underground, and openly called on the people
for the armed overthrow of the power of American imperialism
and its allies in the Philippines exercised through its puppets ...
(Exh. O-65)
The Communist Party of the Philippines is leading the armed
struggle for national liberation and the establishment of a New
Democracy in order to crush the power of the exploiters, achieve
power for the exploited classes, and who are disposed to accept
the new society ..." (Exh. O-119 "Accounting for the Peoples'
Fund Received and Spent to Finance the Revolution"; see also
Exhs. K-12 (u), N-570-573, M-1574, K-244, O-749-56,
Documents approved by SEC in its meeting on February 15,
1950. Exh. O-312, par. 3. See Vol. III, Folder of Exhibits)
 ... The Communist Party marks the 54th anniversary of the CRY
OF BALINTAWAK calling on the people to join the HMB in
annihilating the enemy today, no different from the enemy
denounced by Bonifacio. (Exh. M-1524, Vol. III, Folder of
Exhibits).
We find that the criminal acts, consisting of attacks against Philippine
Constabulary, murders, robberies, kidnapping, arson, etc. alleged in the
information are duly proved by evidence presented during the trial. It is
noteworthy that the appellants did not attempt to disprove the evidence
regarding the commission of these crimes. Besides those alleged in the
information, there were other acts of attacks against the Philippine
Constabulary, murders, robberies, etc. that were committed by the Huks
that are proved by the evidence — also not disproved by the appellants
— as follows:
(1) On March 29, 1950, a band of armed Huks carrying a
communist flag raided San Pablo, Laguna. An encounter with the
27th PC Company ensued, and several members of the PC were
injured. The Huks looted several Chinese stores.
(2) At about 3 o'clock in the morning of August 26, 1950,
approximately 400 Huk dissidents armed with machine guns and
rifles attacked Santa Cruz, Laguna. The cashier of the office of
the Provincial Treasurer was forced at gun point, to open the
vault from which the Huks took more than P80,600. The Huks
also took typewriters and office supplies from the office of the
Provincial Treasurer. The Huks, after forcing the warden to give
the keys, opened the provincial jail and released the prisoners.
The provincial jail was later burned. The Huks looted houses and
took rice, cigarettes and clothes, and burned five buildings.
(3) On March 29, 1950, several Huks raided San Mateo, Rizal,
opened the safe in the municipal building and took money. They
also got food and medicines from the townspeople.
(4) On August 28, 1950, Huks attacked the municipal building of
Arayat, Pampanga, and forced the municipal mayor at the point of
a gun to give P3,629.31 in cash and some documentary stamps.
Killed during the incident was one Atty. Samia.
(5) On March 28, 1950, about 80 to 100 Huks attacked San
Rafael, Montalban, killing 4 and wounding all soldiers. After the
attack, the Huks left communist propaganda leaflets.
(6) On August 30, 1949, upon receiving a report that there was a
concentration of Huks at Kamog, San Jose del Monte, Bulacan,
Lt. Restituto A. Bisda organized a patrol of 20 enlisted men. On
the way the patrol was fired upon by the Huks. After the
encounter, one Huk member was found dead and from his body
were taken several documents.
(7) On October 15 and 17, 1950, P.C. Lt. Velasquez led three
platoons of soldiers to the southwestern slope of Mount Malipuño
at Lipa City upon receipt of a report that about 200 Huks were
gathered in that place. While climbing the mountain they were
suddenly attacked and fired upon by the dissidents killing one
soldier and wounding others. When they retaliated, the Huks
retreated leaving behind a wounded Huk. The Huks abandoned
their hideouts in the place. Upon inspection, Lt. Velasquez found
a hut with several blackboards, papers and other school supplies
inside and a red hammer-and-sickle flag displayed on the wall
with letters "STALIN U" (Stalin University), which indicated that
the place is one of the military schools for the Huks. (The flag was
produced in court and marked Exhibit "A" for the prosecution.
This flag had been identified by a witness for the prosecution, a
former Huk Colonel named Benjamin Advincula, to be the official
flag of the HMB in their military training school in the mountains
wherein he had also undergone Huk military training.)
(8) At about midnight on March 29, 1950, Huk dissidents entered
the town of Tanauan, Batangas. According to George Collantes,
the municipal mayor, there was shooting in the town, and later the
industrial center and market were burned after they were raided.
Mayor Collantes saw a red flag hoisted by the dissidents. Two of
the Huk dissidents were killed.
Issues raised by appellants
The appellants, in their defense in the present appeals, have raised
issues that are common to them all, and also issues particular to each
one of them. The issues particular to individual appellants will be
discussed at the latter part of this opinion when we deal with their
respective appeals.
1. The appellants are charged with having committed the crime of
rebellion with murders and arsons. The trial court declared some of them
guilty as principals, and some as accomplices, in the commission of the
crime of rebellion complexed with multiple murder, arsons and robberies.
The law pertinent to the determination of the criminal responsibility of the
appellants are Articles 134, 135, and 136 of Revised Penal Code, as
follows: .
ART 134. Rebellion or insurrection — How committed. — The
crime of rebellion or insurrection is committed by rising publicly
and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body
of land, naval or other armed forces, or of depriving the Chief
Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.
ART. 135. Penalty for rebellion or insurrection. — Any person
who promotes, maintains, or heads a rebellion or insurrection, or
who, while holding any public office or employment takes part
therein, engaging in war against the forces of the Government,
destroying property or committing serious violence, exacting
contributions or diverting public funds from the lawful purpose for
which they have been appropriated, shall suffer the penalty of
prision mayor and a fine not to exceed 20,000 pesos.
Any person merely participating or executing the commands of
others in a rebellion shall suffer the penalty ofprision mayor in its
minimum period.
When the rebellion or insurrection shall be under the command of
unknown leaders, any person who in fact directed the others,
spoke for them, signed receipts and other documents issued in
their name, or performed similar acts, on behalf of the rebels shall
be deemed the leader of such rebellion.
ART. 136. Conspiracy and proposal to commit rebellion or
insurrection. — The conspiracy and proposal to commit rebellion
or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not
exceed 5,000 pesos, and by prision correccional in its medium
period and a fine not exceeding 2,000 pesos.
It is the common contention of the appellants that the trial court erred in
declaring that the crime committed by the appellants was that of
"rebellion complexed with multiple murder, arsons, and robberies."
We uphold the contention of the appellants. The question, of whether or
not a person may be prosecuted and held guilty of the crime of rebellion
complexed with murder, arson, robbery and/or other common crimes, is
now settled. In the case of People vs. Hernandez, etc., et al., 1 this Court
held that the crime of rebellion cannot be complexed with other common
crimes. The accused in the Hernandez case were charged, as are
appellants in the instant cases, "with the crime of rebellion with multiple
murder, arsons, and robberies." This Court ruled that:
One of the means by which rebellion may be committed, in the words of
said Article 135, is by "engaging in war against the forces of the
government" and "committing serious violence" in the prosecution of said
"war". These expressions imply everything that war connotes, namely;
resort to arms, requisition of property and services, collection of taxes
and contributions, restraint of liberty, damage to property, physical
injuries and loss of life, and the hunger, illness and unhappiness that war
leaves in its wake — except that very often, it is worse than war in the
international sense, for it involves internal struggle, a fight between
brothers, with a bitterness and a passion or ruthlessness seldom found in
a contest between strangers. Being within the purview of "engaging in
war" and "committing serious violence", said resort to arms, with the
resulting impairment or destruction of life and property, constitutes not
two or more offenses, but only one crime — that of rebellion plain and
simple. Thus, for instance, it has been held that "the crime of treason may
be committed" by executing either a single or similar intentional overt
acts, different or similar but distinct, and for that reason, it may be
considered one single continuous offense. (Guinto vs. Veluz, 77 Phil.
801, 44 Off. Gaz., 909.)" (People vs. Pacheco, 93 Phil. 521.).
Inasmuch as the acts specified in said Article 135 constitute, we
repeat, one single crime, it follows necessarily that said acts offer no
occasion for the application of Article 48, which requires therefor the
commission of, at least, two crimes. Hence, this court has never in the
past, convicted any person of the "complex crime of rebellion with
murder". What is more, it appears that in every one of the cases of
rebellion published in the Philippine Reports, the defendants were
convicted of simple rebellion, although they had killed several persons,
sometimes peace officers. (U.S. vs. Lagnason, 3 Phil. 472; U.S. vs.
Baldello, 3 Phil. 509; U.S. vs. Ayala, 6 Phil. 151; League vs. People, 73
Phil. 155)
 xxx xxx xxx
There is one other reason — and a fundamental one at that — why
Article 48 of our Penal Code cannot be applied in the case at bar. If
murder were not complexed with rebellion, and the two crimes punished
separately (assuming that this could be done), the following penalties
would be imposable upon the movant, namely: (1) for the crime of
rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances
present, but never exceeding 12 years of prision mayor; and (2) for the
crime of murder, reclusion temporal in its maximum period to death,
depending upon the modifying circumstances present. In other words, in
the absence of aggravating circumstances, the extreme penalty could not
be imposed upon him. However, under Article 48, said penalty would
have to be meted out to him, even in the absence of a single aggravating
circumstance. Thus, said provision, if construed in conformity with the
theory of the prosecution, would be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose
of favoring the culprit, not of sentencing him to a penalty more
severe than that which would be proper if the several acts performed by
him were punished separately. In the words of Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a
que hace referencia este articulo (75 del Codigo de 1932), esta
basado francamente en el principio pro reo. (II Doctrina Penal del
Tribunal Supremo de España, p. 2168.)
... It is evident to us that the policy of our statutes on rebellion is to
consider all acts committed in furtherance thereof — as specified in
Article 134 and 135 of the Revised Penal Code — as constituting
only one crime, punishable with one single penalty — namely, that
prescribed in said Article 135. ....
... In conclusion, we hold that, under the allegations of the amended
information against defendant-appellant Amado V. Hernandez, the
murders, arsons and robberies described therein are mere ingridients of
the crime of rebellion allegedly committed by the said defendants, as
means "necessary" (4) for the perpetration of said offense of rebellion;
that the crime charged in the aforementioned amended information is,
therefore, simple rebellion, not the complex crime of rebellion with
multiple murder, arsons and robberies; that the maximum penalty
imposable under such charge cannot exceed twelve (12) years of prision
mayor and a fine of P20,000; and that, in conformity with the policy of this
court in dealing with accused persons amenable to a similar punishment,
said defendant may be allowed to bail." The foregoing ruling was adhered
to in the decisions of this Court in the cases of People vs. Geronimo,
G.R. No. L-8936, October 23, 1956; People vs. Togonon, G.R. No. L-
8926, June 29, 1957; People vs. Romagosa, G.R. No. L-8476, February
28, 1958; and People vs. Santos, G.R. No. L-11813, September 17,
1958.
In People vs. Geronimo, supra, this Court further elaborated on the
Hernandez ruling, as follows:
As in treason, where both intent and overt act are necessary, the
crime of rebellion is integrated by the coexistence of both the
armed uprising for the purposes expressed in Article 134 of the
Revised Penal Code, and the overt acts of violence described in
the first paragraph of Article 135. That both purpose and overt
acts are essential components of one crime, and that without
either of them the crime of rebellion legally does not exist is
shown by the absence of any penalty attached to Article 134. It
follows, therefore, that any or all of the acts described in Article
135, when committed as a means to or in furtherance of the
subversive ends described in Article 134, becomes absorbed in
the crime of rebellion, and cannot be regarded or penalized as
distinct crimes in themselves. In law they are part and parcel of
the rebellion itself, and cannot be considered as giving rise to a
separate crime, that, under Article 48 of the Code, would
constitute a complex one with that of rebellion.
And in People vs. Aquino, et al., L-13789, June 30, 1960, 57 O.G. 9180,
this Court said:
On the other hand, from the very testimony of Filomeno Casal,
another witness for the prosecution, it can be gathered that the
one who killed or ordered the killing of Mendoza was Commander
Silva who, according to Casal, ordered Mendoza to lie down and
when the latter refused he shot him. If we are to believe the
testimony of this witness the only one responsible for Mendoza's
death is Commander Silva for there is nothing to show that his
companions who were under his command knew that his design
was to liquidate him. At any rate, since it appears that the killing
was committed not because of any personal motive on the part of
the accused but merely in pursuance of the huk movement to
 overthrow the duly constituted authorities, the proper charge
against them would be rebellion and not murder ....
The reason for this was already given by this Court in People vs.
Hernandez, et al., supra, to wit:
In short, political crimes are those directly aimed against the
political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is
the intent or motive. If a crime usually regarded as common, like
homicide, is perpetrated for the purpose of removing from the
allegiance "to the Government the territory of the Philippine
Islands or any part thereof," then said offense becomes stripped
of its "common" complexion, inasmuch as, being part and parcel
of the crime of rebellion, the former acquires the political
character of the latter."2
The Solicitor General, in behalf of the appellee, The People of the
Philippines, asks this Court to reexamine the ruling in the Hernandez
case "based not only on grounds of public policy but also to interpret the
law in order to have justice and adequacy into the Philippine law on
rebellion on the basis of prevailing jurisprudential schools of thought such
as the sociological theory on the natural law doctrine and ... the policy
science theory." 3 This Court has given this plea of the Solicitor General a
very serious consideration, but after a mature deliberation the members
of this Court have decided to maintain that ruling in the Hernandez case
and to adhere to what this Court said in that case, as follows:
The Court is conscious of the keen interest displayed, and the
considerable efforts exerted, by the Executive Department in the
apprehension and prosecution of those believed to be guilty of
crimes against public order, of the lives lost, and the time and
money spent in connection therewith, as well as of the possible
implications or repercussions in the security of the State. The
careful consideration given to said policy of a coordinate and co-
equal branch of the Government is reflected in the time
consumed, the extensive and intensive research work
undertaken, and the many meetings held by the members of the
court for the purpose of elucidating on the question under
discussion and of settling the same.
The role of the judicial department under the Constitution is,
however, clear — to settle justiciable controversies by the
application of the law. And the latter must be enforced as it is —
with all its flaws and defects, not affecting its validity — not as the
judges would have it. In other words, the courts must apply the
policy of the State as set forth in its laws, regardless of the
wisdom thereof.
xxx xxx xxx
Thus the settled policy of our laws on rebellion, since the
beginning of the century, has been one of decided leniency, in
comparison with the laws in force during the Spanish regime.
Such policy has not suffered the slightest alteration. Although the
Government has, for the past five or six years, adopted a more
vigorous course of action in the apprehension of violators of said
law and in their prosecution, the established policy of the State,
as regards the punishment of the culprits has remained
unchanged since 1932. It is not for us to consider the merits and
demerits of such policy. This falls within the province of the
policy-making branch of the Government — the Congress of the
Philippines ...
xxx xxx xxx
Such evils as may result from the failure of the policy of the
law punishing the offense to dovetail with the policy of the law
enforcing agencies in the apprehension and prosecution of the
offenders are matters which may be brought to the attention of
the departments concerned. The judicial branch cannot amend
the former in order to suit the latter. The Court cannot indulge in
judicial legislation without violating the principles of separation of
powers, and, hence, undermining the foundation of our republican
system. In short, we cannot accept the theory of the prosecution
without causing much bigger harm than that which would
allegedly result from the adoption of the opposite view.
2. The appellants also contend that the informations against them charge
more than one offense, in violation of Section 12, Rule 106 of the old
Rules of Court (now Section 12, Rule 117 of the new Rules of Court).
This contention has no merit. A reading of the informations reveals the
theory of the prosecution that the accused had committed the complex
crime of rebellion with murders, robberies and arsons, enumerating
therein eight counts regarding specific acts of murder, robbery and arson.
These acts were committed, to quote the information, "to create and
spread terrorism in order to facilitate the accomplishment of the aforesaid
purpose", that is, to overthrow the Government. The appellants are not
charged with the commission of each and every crime specified in the
counts as crimes separate and distinct from that of rebellion. The specific
acts are alleged merely to complete the narration of facts, thereby
specifying the way the crime of rebellion was allegedly committed, and to
apprise the defendants of the particular facts intended to be proved as
the basis for a finding of conspiracy and/or direct participation in the
commission of the crime of rebellion. 4 An information is not duplicitous if it
charges several related acts, all of which constitute a single offense,
although the acts may in themselves be distinct offenses. 5Moreover, this
Court has held that acts of murder, arson, robbery, physical injuries, etc.
are absorbed by, and form part and parcel of, the crime of rebellion if
committed as a means to or in furtherance of the rebellion charged. 6
3. Another contention of appellants is that the trial court, the Court of First
Instance of Manila, did not have jurisdiction to try the cases against them
because the acts enumerated in the eight counts in the information were
committed outside the territorial jurisdiction of the court. This contention is
also without merit. Section 14 of Rule 110 of the Rules of Court provides
that the criminal action shall be instituted and tried in the court of the
municipality or province where the offense was committed or any one of
the essential ingredients thereof took place. The informations allege that
Manila is the seat of the Government of the Republic of the Philippines
which the appellants sought to overthrow and that Manila was chosen by
the accused as the nerve center of all their rebellious activities in the
different parts of the country. While it is true that the murders, robberies
and arsons alleged in the information were committed outside the City of
Manila, in the informations it is alleged that it was in Manila where the
accused had decided and agreed to commit the crime of rebellion and it
was in Manila where they promoted, maintained, caused, directed and/or
commanded the HMB to rise publicly and take arms against the
Government, as in fact the HMB had risen publicly, making armed raids,
sorties, ambushes, and committing wanton acts of murder, arson, looting,
etc. An essential ingredient of the crime of which appellants were
charged, therefore, took place in Manila.
4. Some of the appellants contend that their constitutional rights were
violated because the documentary evidence presented against them
were illegally seized or had come from doubtful sources. This claim has
no merit. We have carefully examined the record, and We find that
search warrants were properly secured by the peace officers before raids
were effected and that the documents, articles and effects seized from
each place raided were listed, inventoried and marked. It even appears
that statements were signed by some of the appellants certifying that the
search warrants were executed in an orderly and peaceful manner by the
raiding parties.
5. The appellants assail the reconstitution of the exhibits that were
destroyed, and claim that the reconstituted exhibits should not be
considered in this appeal. We have stated at the earlier part of this
opinion that the exhibits (documentary and other articles) were placed in
the custody of the Philippine Constabulary because they had to be
presented as evidence in the trial of rebellion cases pending in other
courts. Most of the originals of the documentary evidence were burned
during the fire that gutted the headquarters of the Philippine Constabulary
on September 10, 1958. The Solicitor General filed a petition for the
reconstitution of the burned exhibits. The petition was given due course
by this Court, and the Deputy Clerk of this Court was commissioned to
receive the evidence on the reconstitution of the burned documents. The
list of reconstituted exhibits is Exhibit C-Reconstitution. In his report,
dated October 6, 1959, the Commissioner recommended the admission
of all the reconstituted exhibits.
We find that the reconstitution was made in accordance with the
provisions of Act 3110, which provides for the procedure in the
reconstitution of court records. Section 59 of said act provides that
destroyed documentary evidence shall be reconstituted by means of
secondary evidence which may be presented to any Justice of the
Supreme Court or any other officer commissioned by the Court. Section
14 of the act provides that the destroyed or lost documentary evidence
shall be replaced by secondary evidence. A photostatic copy of an
original document is admissible as a secondary evidence of the contents
of the originals and they constitute evidence of a satisfactory nature. 7 The
record shows that the photostatic copies of the destroyed exhibits, which
were presented before the Commissioner during the reconstitution
proceedings, were taken before the originals were destroyed by fire. The
photostatic copies had been compared with the originals, properly
checked and recorded, by the officer who was the custodian of the
exhibits.
The certified typewritten copies made from the original documents that
were hand written in ink are also secondary evidence of the contents of
the latter. Sgt. Aquilino Tingco, assigned as assistant to the document
officer in charge of the court of exhibits in the rebellion cases, testified
that he was the one who furnished the typists the original documents, and
after those originals were copied on the typewriter he compared the
typewritten copies with the originals, proofread them, stamped them and
had them certified as true copies. This witness further testified that before
the certified copies were presented in court as evidence said copies were
compared with their originals. 8
During the reconstitution proceedings, counsel for appellants objected to
the admission of some of the reconstituted documents upon the ground
that they were not sufficiently identified. The Commissioner, however,
admitted all there constituted documents, and We find that the
Commissioner rightly did so. We find that Exhibits R-X-6 to R-P-73-79,
the admission of which was objected to, were properly identified. Captain
Enrique L. Reyes of the PC, who was entrusted with the custody of the
documents, had the list of all the exhibits that were burned, which were
inventoried and verified; as well as a list of those exhibits that were
presented in these cases, of which photostatic copies had been taken;
and when asked where the photostatic copies were, Capt. Reyes said
that he had the photostatic copies, and pointed to a bundle of folders
containing them. These exhibits were checked and counter-checked with
the record of the present cases in the Supreme Court. 9 Sgt. Aquilino
Tingco, who brought the exhibits to the different courts where they were
presented as evidence, and who personally supervised the taking of the
microfilm and the photostatic copies that were presented in the courts in
lieu of the originals, when asked to show to the Commissioner the
photostats made of the documents which were used the Politburo cases,
extracted from a folder a bundle of papers and presented the list of
exhibits (Exh. C-Reconstitution) along with photostatic copies of those
listed exhibits, and he testified on them. The witness was asked to
consult the list of exhibits (Exhibit C-Reconstitution) and he pointed to the
Commissioner the exhibits to be marked according to the list, which the
Commissioner himself marked. The witness testified that the contents of
the documents thus marked were the same as those of the originals. The
Commissioner considered the documents properly identified and he
admitted the documents over the objection of counsel for the appellants,
and he recommended to this Court the admission of all of them. This
Court approved the report of the Commissioner.
We have carefully examined and analyzed these reconstituted exhibits
and We believe that they constitute a competent evidence to be
considered in arriving at a decision in these cases.
6. The appellants also claim that they were not afforded the time and
freedom to prepare for their defense. This claim of appellants is not borne
by the record. The record shows, that the trial of these cases took
months; all the defendants were represented by counsel, either de
officio or de parte, who did their best to defend the appellants during the
trial. In fact the defense lawyers were commended by the trial court for
their efforts in defense of the appellants. None of the appellants was
deprived of his day in court. Everyone was given an opportunity testify
and/or adduce evidence in his behalf. All the appellants, except Jose
Lava and Nicanor Razon, Sr., testified in court in their own defense. The
record does not show that appellant Razon had testified or had presented
any evidence in his behalf. Appellant Jose Lava voluntarily refrained from
taking the witness stand, but, instead, he presented witnesses who
vouched for his good moral character and exemplary conduct as a
citizen. We find no merit in the claim that the appellants were not afforded
ample time and opportunity to prepare for their defense.
Having thus resolved the common issues raised by the appellants, We
now proceed to determine the criminal responsibility, if any, of the
individual appellants.
The lower court found some of the appellants guilty as principals, and
some as accomplices, in the commission of the complex crime of
rebellion with multiple murder, arsons and robberies. We have already
declared in this opinion that the crime of rebellion cannot be complexed
with murder, robbery and other common crimes. Our task, therefore, is to
determine the degree of responsibility of each of the appellants in the
commission of the crime of simple rebellion as defined and penalized
under the provisions of Articles 134, 135 and 136 of the Revised Penal
Code.
1. The appeal of Jose Lava
Upon a careful study of the evidence, We find:
That appellant Jose Lava was known under these aliases: Harry, Felix
Cruz, Gaston, Gaston Silayan, Greg, Gregorio Santayana and Gavino.
Jose Lava became a member of the Communist Party of the Philippines
during the Japanese occupation. In a self-appraisal which he wrote, and
published in mimeograph form with the approval of the Secretariat, he
stated that although he was a new Party member he had been entrusted
with responsible positions in the Party and that due to his high sense of
responsibility and initiative he could rank with the best in the party. Lava
was not only, a confirmed communist; he was a ranking leader of the
CPP, being a member of the Central Committee (CC) of the CPP and he
participated in the Politburo meetings. In the Politburo conference in
Manila in January 1947 he proposed armed struggle to overthrow the
Government. His participation therein was described in Exhibit O-228-
229, as follows:
... There was an attempt in the conference to give it a character of
a CC conference notwithstanding the fact that there were only
eleven CC members, out of thirty-five, present in the conference.
There was also an attempt to isolate some CC members who
were easily available, as evidenced by the non-invitation of Coms
VY, Harry and Pacing known for their views in support of the
Nacionalista-Democratic Alliance coalition, and for an early
resumption of the armed struggle. It was only later in the
conference, when their absence was noted by certain comrades,
that Com Harry was invited to the conference ....
Com Harry proposed that the conference declare that armed
struggle be the main form of struggle ....
Other documents show that Jose Lava had been attending meetings of
the Secretariat (SEC) since October, 1949. He signed, under
the alias "Gaston Silayan", the Secretariat's transmission to the Politburo
members in the field, under date of October 22, 1949. He issued under
different aliases, for and in behalf of the Secretariat, Secretariat
transmissions up to October 14, 1950. He signed as "Gaston" the
Secretariat's transmission dated December 24, 1949; he signed as
"Greg" those of July 22, 1950, of September 23, 1950, of September 30,
1950, of October 7, 1950, and of October 14, 1950; and signed as
"Gavino" the transmission dated September 25, 1950.
Jose Lava's membership in the Secretariat of the CPP is shown in
various documents (Exh. C-1313 and Exhs. O-269-270). In another
exhibit, N-1015-1017, Kas. Gaston was addressed as the General
Secretary.
As member of the SEC, and as General Secretary, Jose Lava attended
SEC meetings and transmitted the decisions of the SEC to the comrades
of the Politburo in the regional commands. His direct participation in the
meetings of the SEC was mentioned in several SEC transmissions. In
one such transmission he (Gaston) advocated the overthrow of the
corrupt Liberal Party administration because of the wholesale fraud and
terrorism during the elections of 1949. In the meeting of May 5, 1950, he
(Gaston) disagreed with Eto (Federico Maclang) and Johnny (Ramon
Espiritu) on the way of giving money to deserving families, saying that:
Even if we have a million pesos now, we still would need same to
buy arms and ammo, decisively improve our propaganda to
spread our influence over all the country, improve the diet of our
fighting soldiers to increase their fighting efficiency, all with a view
to hastening the people's victory and end their suffering earlier.
(Exh. O-91, par. 2)
In the SEC meeting of September 29, 1950 "Greg" (Jose Lava) dissented
from the majority decision rejecting the proposal that Boris (Angel Baking)
be allowed to attend the Military Committee (MC) meeting. (Exh. O-339,
par. 15).
Apart from his routinary duties as General Secretary, other duties were
assigned to Jose Lava under his aliases. Thus, as "Gaston", he was
designated in the SEC's meeting of December 20, 1949 to take care of
the editorial of the "TITIS", the official organ of the Communist Party; he
was given supervision over women matters, and over political and
educational matters, in the meetings of February 15, 1950 and April 14,
1950. "Gaston" was also in charge of Direct Party Propaganda,
Curriculum and Analysis. As "Greg", he was appointed by the SEC as
one of the 15 members of the Military Committee (MC). He was to
supervise, as decided in the SEC meeting of April 14, 1950, the newly
organized Technological Group. He was instructed by the SEC, in its
meeting of September 15, 1950, to prepare a draft of the resolution for
discussion before the Military Committee. In the meeting of the SEC on
September 22, 1950, he was given power to review all the minutes and
decisions of the National Education Commission (NEC) and only matters
which he did not approve were to be taken up by the Secretariat.
Jose Lava also attended and presided at meetings of the Communists
and the HMB in his house in Tejeron, Makati. 10
Jose Lava was the author of many articles and/or writings, among them:
"Self-Appraisal by Gregorio Santayana," a handwritten outline; "Struggle
against Awaitism, by Gregorio Santayana", also a handwritten outline,
with a typewritten copy; "Outline of Strategy and Tactics"; "Strategy and
Tactics"; "Twenty Years of Struggle of the CPP"; "Outline on Milestones
in the History of the CPP"; "Milestones in the History of the CPP", which
is a part of the curriculum in the secondary course of the schools
conducted by the CPP. The "Outline on Strategy and Tactics" and
"Strategy and Tactics" were also in the secondary curriculum texts of the
CPP. He is also the author of "Finance Opportunism, Its Basic Causes
and Remedies", a portion of which reads: .
 ... There is no question that we cannot drastically eradicate
finance opportunism within the Party and the National liberation
movement it is leading, and thereby hasten the maturity of the
revolutionary crisis and prepare the Party to create a clear and
honest body of administrators and state functionaries and thereby
maintain the power of the NEW DEMOCRACY that we are set to
establish.
Another work of Jose Lava is "Accounting of the People's Funds
Received and Spent to Finance the Revolutions", a portion of which
reads as follows:
The Communist Party of the Philippines is leading the armed
struggle for national liberation and the establishment of a New
Democracy in order to crush the power of the exploiters, achieve
power for the exploited classes and exercise such power for their
benefit, and for those who are disposed to accept the new society
....
Jose Lava also wrote other documents, among them his handwritten
notes containing the territorial extent of Recos 1 to 7, and a plan of attack
on the November 7, 1950 celebration; a list containing several persons
(aliases) assigned to Recos 1 to 7 and to the Military, Pol-Ed,
organizational and GHQ organs; a letter to Eto (Federico Maclang) on the
reverse of a list containing names of Malaca_¤_an special agents. He
also wrote letters to Party members concerning the activities of the Party
and/or HMB — unmistakably indicating conspiracy or connection
between him and other top HMB and CPP leaders in the field. Thus,
"Gaston" (Lava) wrote a letter to Leo (Cesareo Torres) informing the
latter that the stencils for "Ang Komunista" were already sent by NED-Out
and that if Leo needed funds, he could ask from the NFC. In a letter of
September 4, 1950 to Eto (Federico Maclang), "Gaston" (Lava)
transmitted to Maclang three letters, on the reverse side of one which
was a note of O. Beria (Maclang) asking who the writers were. In his
letter of September 26, 1950 "Gaston" advised Eto (Maclang) to
circularize all Recos about the conference of the RECO-Ed and G-3
before October 15. In his letter of September 12, Gaston asked the
addressee Johnny (Ramon Espiritu) about the latter's self-appraisal, the
Hospital Group, and the selection of two additional members to help
Luming (Iluminada Calonje or Salome Cruz).
The foregoing findings of this Court are based mainly on documents
presented as evidence during the trial. Those documents were taken:
some from the third floor of the Mayflower Apartments, at Estrada and
Pennsylvania Streets in Manila, which was then rented by appellant Lava
when it was raided by peace officers on June 23, 1950; and the other
documents from the different places that were raided by the MIS agents
and the Manila Police on October 18, 1950, where most of the accused in
these five cases were arrested. One of the places raided on October 18,
1950 was 683 Pasaje Rosario, Paco, Manila, where appellant Lava was
arrested along with his co-accused Federico Bautista, Simeon Rodriguez,
Victorina G. Rodriguez and Pedro Vicencio. Numerous documents,
books, and articles were seized at that place where Lava was arrested,
and those documents were used as evidence during the trial of these five
cases in the court below.
Some of the documents thus seized, and which were presented as
evidence, were in appellant Lava's handwriting, or were signed by him
using his alias names. This is clearly established by the testimony of a
handwriting expert that was presented by the prosecution. The
conclusion of the handwriting expert was based on the specimens of
Lava's handwriting which were used as standards in comparing with the
handwriting and/or signature (in alias) of the appellant that appear in the
documents that were presented as evidence against him. It is contended
by appellant's counsel that no genuine specimen of Lava's handwriting
was presented as standard for comparison. We do not see merit in this
contention. We find that the standards for comparison that were used
were the documents marked Exhibits FF-1 and FF-2. 11 Exhibit FF-1 is an
application for employment signed by Jose Lava. The signature thereon
was testified to by witness Eduardo Romualdez (now Secretary of
Finance) as looking "like the signature of Jose Lava." Eduardo
Romualdez was acquainted with the handwriting of Jose Lava, having
received reports (Exh. FF), parts of which were in the handwriting of Jose
Lava "not less than three or four times" while Jose lava, was a bank
examiner. 12 Exhibit FF-2 is a cardboard containing a list of books
requested by Jose Lava while the latter was detained in Bilibid Prison.
Buenaventura Villanueva, to whom the list was given, testified that he
saw Lava writing the list on the cardboard. What appears on Exhibit FF-2
is certainly a genuine specimen of Lava's handwriting.
The handwriting of a person may be proved by any witness who believes
it to be the handwriting of such person, and has seen the person write.
Evidence respecting the handwriting may also be given by comparison,
made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to
be genuine to the satisfaction of the judge. 13 The handwriting expert who
made the comparison in this case positively identified the handwriting of
Jose Lava on the documents presented as evidence against said
appellant, specially the handwritten names of Gregorio Santayana,
Gaston, Gaston Silayan, Gavino and Greg. 14
Appellant Jose Lava did not take the witness stand to testify in his own
behalf. Instead, he presented witnesses to testify on his good moral
character, his strong convictions and his good citizenship. An accused,
however, is not entitled to an acquittal simply because of his previous
good moral character and exemplary conduct. When a court believes that
an accused is guilty beyond reasonable doubt of the crime charged, it
must convict him notwithstanding evidence of his good moral character
and previous exemplary conduct. 15
We find that the evidence adduced during the trial has proved beyond
reasonable doubt that appellant Jose Lava was one of the top leaders of
the CCP, and that he was not only working to propagate the doctrine of
communism in the Philippines but was actually promoting an armed
uprising against the Government. He did not actually take to the field and
participate in the armed attacks against constituted authorities, but in the
positions that he held in the CCP, he actually promoted, maintained, and
even directed the armed activities of the HMB which were aimed at
overthrowing the Government and implanting a new system of
government in the Philippines. As General Secretary of the CCP he
signed, in his aliases, the communications or transmissions of the
Secretariat to the HMB and CCP leaders in the field. As We have stated
in this opinion, there was a tie-up between the CCP and the HMB, and
that the HMB was the military arm of the CCP. The CCP went
underground sometime in November 1949. It was precisely during the
latter part of 1949 and during the year 1950 (before the arrests of the
accused in these five cases on October 18, 1950) when the HMB was
most active in its armed operations against the Government — or against
the elements of the Army, the PC and the Police, and against public
officials and even against civilians. The evidence against appellant Lava
shows that it was in 1949 and 1950 when he, in his capacity as one of the
top leaders of the CPP, actively participated in the armed struggle being
carried on by the HMB by sending directives and other communications
to the leaders of the HMB and to the heads of the regional commands of
the CPP who were operating in the field. He was, in fact, one of the
leaders of the rebellion. He planned the attack for the November 7,
(1950) anniversary celebration, which was to include the capture of towns
near Manila and the liquidation of enemies in the City by the different
regional commands.
We agree with the finding of the lower court that appellant Jose Lava is
guilty as principal in the commission of the crime of rebellion, and he
should be punished accordingly.
2. Appeal of Federico Bautista
We find it conclusively shown by the evidence that:
Appellant Federico Bautista had used, or was known under, the aliases:
F. Payat, Fred, Freddie, and Freding. He was arrested by the MIS agents
and the police on October 18, 1950 at 683 Pasaje Rosario, Paco, Manila,
along with his co-accused Jose Lava, Simeon Rodriguez, Victorina G.
Rodriguez and Pedro Vicencio. He joined the CPP on August 8, 1949.
Testifying in his own behalf, he said that he joined the CPP because of
the failure of the administration then to carry out the terms of the Amnesty
Proclamation which he helped to bring about; and also because, of the
ouster of six members of Congress from the central Luzon provinces who
were elected in the 1946 elections, of the frauds and terrorism committed
in subsequent elections and the graft and corruption in the government.
He was a member of the National Finance Committee of the CPP, 16 of
which committee Ramon Espiritu (co-accused) was the chairman, and
Simeon Rodriguez (co-accused) was a ranking member. As such
member of the National Finance Committee part of his duties and
responsibilities was the procurement of supplies, such as arms,
ammunitions, medicine, office supplies, clothing, etc., for the dissidents'
(both of the CPP and of the HMB) organizations in the field. He became a
member of the Military Committee of the CPP, with special assignment as
Chief of Intelligence, GHQ. 17 He was also assigned to, and exercised
authority over, the armed forces (AF [HMB]) in Manila and suburbs, which
was called the City Command. He also had supervisory powers over the
National Courier Division. 18
This appellant did not actually take to the field and participated in the
armed operations of the HMB, but he did staff work which to promote,
maintain and direct the operations of the HMB. Thus, there was
presented in evidence a letter 19 written by this appellant to Leo (co-
accused Cesareo Torres), under date of July 10, 1950, transmitting the
latest party decision regarding authorized daily subsistence allowance of
personnel of the CPP organs, ranging from P1.00 to P1.20. Cesareo
Torres is the head of the Technical Office in charge of propaganda. In a
handwritten tabulation prepared by him, 20 which was sort of a financial
statement, there is shown an amount spent for communications and for
intelligence. It appears that of the total income of P8,006.80 for April, May
and June 1950, 20% was allotted for ammunitions and 10% for
intelligence. This financial statement, as finally published, was certified to
by Johnny (co-accused Ramon Espiritu) as head of the National Finance
Committee, and audited and approved by Tommy (co-accused Honofre
Mangila). This document once more indicates clearly that the HMB was
being supported by the CPP.
There is a document labelled "Memorandum on Intelligence", 21 a
typewritten draft, which was shown to bear the pencil handwritten
insertions and corrections made by appellant Federico Bautista,
indicating that this draft was prepared by him. Portion of this document
reads:
Without deviating from the general orientation of expanding
evenly along the four branches of intelligence, viz.: Political,
economic, cultural and military, the emphasis for the present is on
military intelligence both strategic and tactical. This is in
conformity with and in direct pursuance of the Party's program of
"all for expansion and the armed struggle." The mechanics of
wresting power will eventually be a military struggle, we must
have a continual basis by which we can estimate what the enemy
intends to do and the tenacity with which they will implement
these intentions singly and collectively.
Appellant Federico Bautista was identified with the high councils of the
CPP. He attended Politburo conferences. 22Along with Ramon Espiritu
and one Nicasio Pamintuan, he sat to try, and found guilty, one Domingo
Clarin, a member of the HMB Trigger Squad, who was charged with
having squealed regarding the hold-up of the Naric in Pulilan. Appellant
Federico Bautista had previously assigned Clarin to guard Jose Lava. 23
We have carefully studied the evidence for the prosecution and defense,
as well as the argument of the counsel in the appellant's brief, and We
believe that it is proved beyond reasonable doubt that appellant Federico
Bautista is one of the leaders of the rebellion jointly undertaken by the
CPP and HMB. We agree with the finding of the lower court that this
appellant is guilty as principal in the commission of the crime of rebellion,
and he should be punished accordingly.
3. Appeal of Federico Maclang
Appellant Federico Maclang was arrested on October 18, 1950 by agents
of the MIS and the Manila Police at 1938 Interior 7, Felix Huertas, Manila,
along with Julita Rodriguez and Felipe Engreso — the latter two being
among those convicted by the lower court in these five cases, but Julita
Rodriguez withdrew her appeal. He used the aliases: O. Beria, Eto,
Olibas, Manuel Santos, Manuel Santa Fe and Ambrosia Reyes.
The evidence conclusively shows that this appellant is a ranking
communist, and he was responsible for the organization of the CPP in
Manila and Rizal. He issued directives, plans and instructions to the
different units of the CPP in the field that were working in close
collaboration with the HMB in the latter's armed operations. By his own
testimony he revealed that he is a confirmed communist. He declared
that he was one of the organizers of the PKM (a peasants' organization)
in Luzon, that he became a communist after studying thoroughly the
principles of communism in relation to the economic and political
conditions of the country; that he believes in the overthrow of
"imperialism" and the establishment of a "new democracy" in the
Philippines.
It is shown by the evidence that:
Appellant Maclang joined the CPP sometime in 1939; and he was a
member of the Politburo from 1944 up to the time of his arrest on October
18, 1950. 24
In the document labelled "Pagtuya sa Sarile", shown to have been written
by him, 25 it appears that he was the Chief of the Organizational Bureau
(OB) of the CPP from 1948 until the time of his arrest, and that as an
organizer he was responsible for the organization of the Regional
Commands (Recos) of the party. He was also one of the members of the
Secretariat, and as such he actively participated in the deliberations and
decisions of the body.
In several letters of Enteng (Luis Taruc) to him, which were identified
during the trial, as well as in his letter to Enteng, a copy of which was
found in his possession and was identified by him, 26 his membership in
the Secretariat is clearly shown. As a member of the Secretariat he was
assigned the supervision on all organizational matters, on the youth
problems and activities, and also on military affairs. Likewise, he was
assigned supervision over the Trade Union Division (TUD) and the trade
union struggle; also he had supervision over the news section of the
TITIS; and he was authorized by the Secretariat to review the decisions
of the Regional Command (RECO) and, like appellant Jose Lava, only
those decisions which he did not approve were taken up by the
Secretariat. 27 As chief of the Organizational Bureau he issued, or
approved the issuance of, circulars, plans, and directives to the different
organs of the CPP. 28
This appellant prepared the document entitled "Impiltrasyon". 29 In this
document he discussed the problems of infiltration and the methods or
techniques to be followed by party members in infiltrating government
offices, the armed forces, and the ranks of anti-communist groups, in
connection with the underground work of the CPP and the HMB. He also
prepared "Pakikibaka sa Pagani" 30 where he urged the peasants to fight
for bigger crop shares, and the workers to fight for better wages, pointing
out that the government cannot meet the demands of the working class
so that the only alternative is to support the "People's Liberation
Movement" and effect changes through armed struggle. He wrote the
"Pangatawanan ang Kampanya sa Pagpalawak ng Ating Patanim at
Pagpalitaw sa Inuhi". 31 where he states the policy of the CPP regarding
the expansion of the production areas and the production of more crops
to maintain and support the revolution and to prepare the masses for self-
government.
Likewise, he wrote the "Ang Kompiskasyon", a circular issued by the
Organizational Bureau (OB), of which he was the head, to all the
organizational units of the CPP, explaining the Party's theory of
confiscation. This circular authorizes confiscation as a means to raise
revenue for the "People's Liberation Movement". This circular lists the
classes of individuals who are considered enemies of the revolution and
whose properties may be confiscated. 32
When this appellant was arrested on October 18, 1950, there were found
in his possession documents which indubitably show the high positions
that he occupied in the CPP and the direct connections that he had with
the operations of the HMB. Thus, there is Exhibit N-52, which is a partial
report of Reco 2 regarding military operations during the "Cry of
Balintawak" celebration. In this report are stated the simultaneous HMB
attacks at Camp Makabulos, Tarlac, and at Arayat in the evening of
August 25, 1950. There are also Exhibits N-56-57 which are the reports
from Reco 2 of the HMB attacks at barrio Capalad, Arayat on September
12, 1950, and at San Luis on September 13, 1950. There was found in
his possession, when he was arrested, a file copy (Exh. N-202) of a letter
addressed to his comrades in Regional Command No. 4, dated October
14, 1950. The original of this letter (Exh. M-292) was found at 1608-B
Andalucia, apparently in transit through the National Courier Division. It
should be noted that it is in 1608-B Andalucia where Salome Cruz, the
Chairman of the National Courier Division, had her headquarters. In this
letter appellant Maclang wrote:
I received a letter to the SEC from Com Bonifacio, PBS, R-5, dated Oct.
10, 1950. Because of the urgency and because the Comca is leaving at
12:00 a.m. this day, I, as in charge of military matters of the SEC, in the
absence of the SEC meeting I have rendered the following decision:
xxx xxx xxx
ORDER: I hereby order to R-4 to take all action concerning all the
requests of the letter of Com. Bonifacio to the SEC. Reject the
idea of sending back these deserters (men and officers) to R-5
and I am giving full authority to R-4 to arrest and try all these said
deserters. All actions should be based on our military rulings.
The letter of Comrade Bonifacio referred to in the above-quoted letter of
appellant Maclang was found in his possession at the time of his arrest. A
copy of this letter was found in the possession of the appellant Jose Lava
when the latter was arrested at 683 Pasaje Rosario, Paco, Manila, on
October 18, 1950. 33 It was shown during the trial that this letter of
appellant Maclang was transcribed from the stenographic notes taken
down by Julita Rodriguez on her notebook (Exh. M-31-E). This Julita
Rodriguez worked as a clerk with appellant-Maclang, and she was also
arrested on October 18, 1950 along with Maclang and Felipe Engreso,
another employee of Maclang. Both Julita Rodriguez and Felipe Engreso
were also accused in these cases. The authority of appellant Maclang on
military matters is made manifest in the above-mentioned letter.
In another letter of appellant Maclang, which was his reply to the letter he
received from one Plaridel, regarding the plan for attack on November 7,
1950 celebration, 34 he said:
Re-celebration, I am glad that you are actively preparing to
achieve the SEC objectives. We have no objections on the towns
that you have stated including Mcy. Our only doubt here is Mrqn,
because this is very near enemy camp, however, proceed to your
preparation and we will help you on intelligence operations on
said localities. In this connection, we have the opinion that Com.
Pacing will cooperate with you in this task as we have been
informed that he is coming to your place.
 Re-request on arms and ammos, we are not yet in a position to
give you the assurance of aid, however, we are dealing with the
smugglers to purchase these ammos to supply such operations.
Because it is not very sure, it will be better for the Recos to
cooperate on the preparation of ammos.
There are letters of appellant Maclang to Luming (Salome Cruz), one of
the accused, which were presented in evidence, where he gave her
orders and instructions regarding the dispatch of couriers to the regional
commands and the activities of the National Courier
Division. 35 Documents were also presented, which appear to have been
issued or approved by the Organizational Bureau of which this appellant
was the chief, dealing with the methods of improving the communication
system of the CPP. 36 All these indicate that appellant Maclang had also
supervision over the National Courier Division (NCD) of the CPP.
Appellant Maclang, in his defense, denied knowledge about the HMB
raids and ambushes. We find, however, overwhelming evidence that
disproves his claim. The evidence clearly shows that he participated
directly in planning, coordinating, supporting, and approving the HMB
raids, attacks and ambushes. He was a member of the Secretariat of the
CPP and participated in its meetings. He was in charge of the military
affairs of the CPP; he gave orders to the Recos to attack the government
forces; he approved the plans of attack against the City of Manila and
towns around Manila on November 7, 1959; he received reports of HMB
raids and attacks. All these make him, in contemplation of law, a leader of
the rebellion.
There is, to Us, no doubt that by the high positions he held in the CPP,
appellant Federico Maclang was one of the leaders of the CPP that
promoted, maintained and directed the armed operations of the HMB to
overthrow the Philippine government. We agree with the finding of the
lower court that this appellant is guilty as principal in the commission of
the crime of rebellion, and he should be punished accordingly.
4. Appeal of Ramon Espiritu
Appellant Ramon Espiritu was arrested by the agents of the MIS and the
Manila Police on October 18, 1950 at 1608-B Andalucia Street, Manila,
along with Salome Cruz, Rosario Vda. de Santos, Naty Cruz, Aurora
Garcia, Lamberto Magboo and Josefina Adelan. He was known by
the alias "Johnny".
In his written statement, 37 he admitted that he was a member of the
Politburo and the Chairman of the National Finance Committee of the
CPP. The evidence shows that he was a member of the Secretariat of the
CPP, and he participated in the deliberations and decisions of that
body. 38 He was also one of the 15 members of the Military Committee
(MC). 39 He was the Politburo and Secretariat Supervisor of the National
Courier Division. 40 He had been assigned to various important positions
in the CPP, like the supervision of Trade Union Division (TUD) and the
trade union struggle, together with his co-accused Federico R.
Maclang. 41 He was also assigned to the City Committee to reorganize the
City Committee and the City Command. 42 He was likewise assigned to
supervise Luming (co-accused Salome Cruz) in taking care of the sick
comrades coming from provinces. 43 He attended meetings of the
Communists and HMB. He was one of those who tried Huk member
Domingo Clarin, assigned to the Trigger Squad of the HMB, and found
him guilty of having squealed regarding the holdup of the NARIC at
Pulilan. 44
In his defense appellant Espiritu testified that he had nothing to do with
the HMB raids and ambushes. Seemingly, to justify his membership in
the Communist Party, this appellant discussed the general history of
labor and its unsavory relations with capital, for which he blamed the
feudal economy that had pervaded the economic life of the Filipino
people. He candidly recounted his efforts in trying to understand the
cause of the people's economic ills, and the efforts of labor unions in
demanding better wages and living conditions for laborers.
Considering the tie-up between the CPP and the HMB, there can hardly
be any question that appellant Ramon Espiritu, member of the Politburo,
of the Secretariat, and of the Military Committee, of the CPP, had actively
participated in promoting and maintaining the armed operations of the
HMB, along with top CPP leaders, Jose Lava, Federico Bautista,
Federico Maclang, and others. We agree, also, with the finding of the
lower court that this appellant is guilty as principal in the commission of
the crime of rebellion, and he should be punished accordingly.
5. Appeal of Salome Cruz
Appellant Salome Cruz, wife of appellant Ramon Espiritu, was arrested
on October 18, 1950 at 1608-B, Andalucia St., Manila. She was known by
her two aliases: Luming, and Iluminada Calonje in her written statement,
she admitted that she was the Chairman of the National Communication
Division (NCD) of the CPP from November, 1949 to May, 1950. 45
Documentary evidence shows her various positions in the CPP, namely:
Acting Chief of the Central Post of the Communications Division and in
charge of Sub-Posts; In-charge of Couriers; In-charge of finance from
November, 1949 to May 17, 1950; In-charge of all Central Committee
cadres when they came to Manila for medical attention; In-charge of sick
comrades coming from provinces under the supervision of Johnny
(Ramon Espiritu) in the National Commission; and Chairman of the
Hospital Group to take care of the sick and wounded from the City and
provinces. 46
The evidence further shows that Salome Cruz wrote several notes and/or
documents showing her activities in the National Communication
Division, Hospital Group and other party organs. Thus, on July 4, 1950,
she made handwritten notes on " Sub-Posts" containing names (aliases)
of regular and irregular couriers of RECO 1 to 7, Dist. No. 5 and
Pangasinan; on July 5, 1950, she also made notes on "Regular na Dating
at alis ng mga Korriers sa NCD napunta sa bawat Recos", which show
the dates of arrivals and departures of the couriers for Recos 1 to 7 Dist.
No. 4 Pangasinan and Cavite; on May 5, 1950 she wrote a letter to
Johnny (Ramon Espiritu) informing the latter of the arrival and departure
of couriers of RECO 1 and the availability for distribution of the April 12
and 30 issues of TITIS; she also wrote letters to Beria (co-accused
Federico Maclang), Payat and Fred (co-accused Federico Bautista), and
Berting (co-accused Lamberto Magboo), regarding couriers and the
activities of the National Communication Division (NCD). 47 She also
made handwritten notes on the National Communication Division (NCD)
Consolidated Report, showing the income and expenses from May 1 to
May 17, 1950 of the Central Post and the Outposts; and a letter to
Charing (co-accused Rosario C. Vda. de Santos) on May 17, 1950
instructing the latter to check up the Sub-Posts. 48
In her brief, appellant Salome Cruz claimed, among other things, that the
trial court erred in convicting her as principal, despite the fact that her
participation was only on inconsequential details, and her guilt had not
been established beyond reasonable doubt.
There is no evidence to show that appellant Salome Cruz actually took
part in the raids, attacks and ambushes perpetrated by the HMB. It
cannot be said, however, that her role in the plan to overthrow the
Government was inconsequential, she having been in charge of
communications, transmitting orders and directives of the Politburo and
Secretariat to the HMB in the field until May 1950; she being in charge of
couriers, making notes of regular and irregular couriers, their arrivals and
departures; she being in charge of the Hospital group to take care of the
sick and wounded from the city and provinces. These facts show that she
was cooperating actively in promoting and maintaining the armed
activities of the HMB, considering the tie-up between the CPP and the
HMB. The maintenance of communications between the top leaders of
the CPP and the units operating in the field is very essential in the
success of the rebellion. It is in this connection that this appellant played
a very important role.
We agree with the finding of the lower court that appellant Salome Cruz is
guilty as principal in the commission of the crime of rebellion, and she
should be punished accordingly.
6. Appeal of Rosario C. Vda. de Santos
Appellant Rosario C. Vda. de Santos was arrested by the agents of the
MIS and the Manila Police, together with co-accused Ramon Espiritu,
Salome Cruz, Naty Cruz, Aurora Garcia, Lamberto Magboo, and Josefina
Adelan, in these five cases, at 1608-B Andalucia, Sampaloc, Manila, on
October 18, 1950.
The evidence shows that:
Appellant Rosario C. Vda. de Santos uses the alias "Charing". In her
testimony, however, she claims that her real name is Aurelia Cayetano.
She was designated by the Secretariat of the CPP In-charge of Outpost
of the National Communication Division, with the duty to maintain
discipline among couriers coming from without. 49 She worked under
Salome Cruz (Luming) who was the Chairman of the National
Communications Division (NCD) of the CPP. This appellant was in
charge of checking the irregular couriers for Regional Commands, 1, 2, 3,
4, 5 and Pangasinan. 50 She was a staff member of the NCD, and she
participated in the NCD meetings, took down minutes, and rendered
reports. She made reports to the head of the NCD. One such report
says: 51
Naisasagawang maayos na pagtanggap sa lahat ng dumating at
maayos na pagalis ng couriers.
Another report was that one she made on July 12, 1950, about the
outpost: 52
(a) Reco 1, means of communication still good and 2 couriers
arrived June 25 and departed July 4.
 (b) Reco 2, — The road is still clear and the couriers of
Pangasinan were already established there, thru Com. Piping.
(c) Reco 3 — The road is difficult that is the reason why the Post
at San Jose is no longer used but that of San Rafael.
(d) Reco 4 — The road is difficult connection severed but D-4 is
already connected. (Exh. 159-162).
As chief of the Outpost, she made, on August 19, 1950, the following
report: 53
(a) Reco 1 — Couriers did not arrive, so no report.
(b) Reco 2 — Couriers arrived as the PC are out daily in the field
....
(c) Reco 3 — Road is also difficult.
(d) Reco 4 — Road is not difficult, but no definite Post for the
couriers.
(e) District No. 4 — 2 weeks no arrival of couriers but special
couriers in Com. Amat (now under arrest) arrived on 12 July '50.
(f) Cavite — Did not arrive last Sunday while the agreement was
Saturday.
In a letter to her co-accused Luming (Salome Cruz), she stated that she
knew the circumstances surrounding the killing, and the murderers of
Norberto Icasiano, Mayor of Bulacan. 54 She even mentioned that she met
the deceased's brother in a school house in Malolos, Bulacan, and that
she had to hide her face behind her umbrella in order to avoid being
recognized.
Various documents were shown during the trial which were written by
her, and that they were written during meetings of the leaders of the
CPP. 55
In her defense, this appellant testified that her co-accused Ramon
Espiritu requested her to stay with him as a household help with a salary
of P10.00 a month; that besides preparing food, she was also assigned
the duty of recording the letters delivered to and received at that place;
that her real name is Aurelia Cayetano, but she was using the name of
Rosario C. Vda. de Santos because she was a wanted woman by the
Japanese during the occupation for having aided the guerillas, and she
was known by that name among her friends even after the liberation. She
admitted that the name "Charing" was hers, but claimed that she did not
know the persons writing to her and that they were writing to her because
she was the one always in the house.
We find it proven that this appellant was a staff member of the National
Courier (or Communication) Division of the CPP, and that she checked
and made reports on the arrival and dispatch of couriers. The lower court
declared her guilty as principal in the commission of the crime of
rebellion. In Our appraisal of the evidence, however, We find that she
was merely executing the orders or commands of others who are
superior to her in the organizational set-up of the CPP. Considering that
her activities took place while the CPP was underground, and during the
period when the armed operations of the HMB were taking place, We find
her guilty as a mere participant in the commission of the crime of
rebellion under the second paragraph of Article 135 of the Revised Penal
Code, and should be punished accordingly.
7. Appeal of Angel Baking
Appellant Angel Baking was arrested by the agents of the MIS and of the
Manila Police in his office at Room 504 Samanillo Building, Escolta,
Manila, on October 19, 1950, along with Marciano de Leon who is also
one of the accused in these cases. His house at No. 1518 Calixto Dayco,
Paco, Manila, was also raided. From his office and his residence many
books, documents, and other papers were seized, which proved that this
appellant was a confirmed communist and was having close connections
with leaders of the CPP. Some of the books found in his residence are:
"The Third Five Year Plan" by V. Molotov; "Reminiscence of Lenin" by C.
Zetkin; Marx and Engels (Selected correspondence); "Heroic Lenin-grad";
"Theory of the Agrarian Question (Lenin); "Stalin" (G. I. R., James;
"Constitution of the Kirghis Soviet Socialist Republic"; "The Class
Struggle in France"; "Biographical Compilation of Communist Leaders
outside the Soviet Unions", etc. There are also found reading materials
labelled: "Comparative Outlines of Communism and Capitalism showing
advantages of communistic ideology"; "Blue Record containing outline of
the Taruc story" (this contains draft of Taruc story for filming and
publication); "Political Economy" (typewritten — this was shown to be
used as text for HMB studies); "Stalin and the National Colonial
Question" by John Blake; etc.
We find, by the evidence, that:
Appellant Angel Baking used the aliases: Bayan, B. and Boriz. He joined
the communist party in April, 1949, although he had been identified with
the leaders of the CPP since the early part of 1944. 56 He had been
associated with top communists like Jorge Frianeza, Luis Taruc, Federico
Bautista, Simeon Rodriguez and Jose Lava. When the Technological
Group (TG) of the CPP was organized, it was placed under the
immediate supervision of Boriz (Angel Baking) although the final
supervision was under Greg (Jose Lava). 57
In the meeting of the Secretariat of the CPP on September 29, 1950, the
attendance of Boriz in the meeting of the Military Committee was
discussed, and it appears in the record: "Com. Boriz is a competent
technologist, is ready to go out and ready to stay in the field as the Party
decides." 58 The Secretariat of the CPP assigned him to head the Special
Warfare Division under the GHQ. 59 As head of the Special Warfare
Division under the GHQ, appellant Angel Baking wrote a memorandum
for the Secretariat regarding the immediate installation of a wireless
communication system between the GHQ and the Secretariat. Some
paragraphs of the memorandum read as follows:
Briefly the main point to be dealt with pertains to equipment, its
procurement, technical description, distribution, installation, operation and
maintenance; technical personnel who will participate in the solution of
the technical aspects of the problems; the Code system, which is an
integral part of the WCS; and the non-technical implications of the
problems.
Because of the underground nature of the system, several problems not
met in the legal installation of this system creep to the surface. The
equipment itself is conditioned by abnormal factors which are not met
ordinarily; the personnel is difficult to enlist; and the installation, operation
and maintenance of the system become unduly handicapped and difficult
to perform.
Since the transmitting unit in Manila cannot be fully used without risking
its immediate detection by the enemy, transmissions to the field from HQ
(Manila) may partly be coursed thru the legitimate radio stations. This has
always been done before, and there is no reason why it cannot be
developed now. The essential requirements for this measure would be:
(1) A cadre to infiltrate the Corps of broadcasters in the radio
stations, which may be assigned to the Cultural Group. This
cadre should get a position as broadcaster at specific hours,
either as station announcer or newscaster for the newspaper or
time buyers at the stations;
(2) This cadre should be given a code system thru which
whatever message to be transmitted, may be coursed. 60
Appellant Baking admitted having prepared the foregoing draft but he
claimed, in his testimony, that draft was prepared way back in May 1948
at the request of one Jorge Frianesa who was a ranking member of the
CCP. It appears, however, that when his office in the Samanillo building
was raided by the agents of the MIS and the Manila Police this document
was found torn inside a waste basket, and this circumstance made the
lower court conclude that he wrote the draft not in 1948 but shortly before
the raid on October 19, 1950. The lower court further pointed out that his
explanation was filmsy because of the numerous evidence which showed
that he supervised the Technological Group and the Special Warfare
Division at the GHQ of the CCP. We agree with the conclusions of the
lower court in this respect.
Besides there were found in his office at Room 504 Samanillo Building at
the time of the raid several U.S. Army technical manuals on Cipher
Systems and Advanced Military Cryptography, and these manuals have
connection with the recommendation in his memorandum for the use of
the code system for transmitting messages thru legitimate radio stations.
There are still other documents which clearly indicate appellant Baking's
cooperation with the leaders of the CCP in the furtherance of the plan to
seize power. In the document, marked Exhibit L-33s, he made the
following statement:
To forestall errors in the planning for the future, the training of
leading Cadres as economists should be intensified. It is more
than likely that by the time CCP seized power, the struggle in
Asia shall have been resolved.
There was found in the possession of Simeon G. Rodriguez (one of the
appellants in these cases), the document marked Exhibit O-254 where it
appears that appellant Angel Baking acknowledged having received from
the National Finance Committee of the CCP the sum of P45.00 for the
Technological Group (TG) of which he was a member. Simeon G.
Rodriguez is a member of the National Finance Committee of the CCP.
At the time of his arrest, appellant Angel Baking was a foreign affairs
officer in the Department of Foreign Affairs of the Republic of the
Philippines. That he was using his position in the Department of Foreign
Affairs for intelligence work — and the lower court calls this a
manifestation of his "scheming mind" — may be gathered from what he
wrote in his diary as follows:
There was a tactical error in my transfer to the new office room.
The office was supposed to be occupied by ambassadors and
high-ranking officials. I transferred to it without insuring my hold
 on the important men of the department. Thus I opened my flank
and left my rear unprotected, and made myself extremely
vulnerable.
Because of this, I find myself unprepared to handle that problem.
Peter ordered Quiamco that I be transferred back to where I
came from.
I also forgot that the important thing to remember is the unbroken
and steady ....
AGB (Exh. L-78e).
There is another document found in Baking's residence at 518-B Calixto
Dayco which was admitted by him to be his. This document contains
entries which indicate his dealings with the CCP organizations and its
members. The entries are as follows:
NFC ....................................... P200
Graciano ....................................... 190
Graciano ....................................... 100
Apolinario ....................................... 100
Talas ....................................... 100
SGR ....................................... 20
Abe ....................................... 50
Godong ....................................... 50
Lake ....................................... 50
Mario ....................................... 50
Lamang ....................................... 450
The "NFC" has been shown to stand for National Finance Committee of
the CCP, and "SGR" for Simeon G. Rodriguez, a member of the NFC of
the CCP, who is also one of the appellants in the present cases. There
were sheets of blank papers seized from 742 Colorado Street, Manila,
the printing office of TITIS and the working place of Cesario Torres, also
one of the appellants in the present cases, bearing signatures of
"Apolinario", "Mariano P. Balgos" and "Luis Taruc".
Considering the facts We have hereinabove-stated, We have no doubt in
our mind that appellant Angel Baking as a confirmed communist, had
aided in the efforts of the leaders of the CPP to promote and maintain the
armed operations of the HMB to overthrow the government. The lower
court found this appellant guilty as principal in the commission of the
crime of rebellion. We have noted that the role played by this appellant
was that of a technician or adviser. Considering that he participated in the
rebellion efforts of the CPP while he was holding a public office. We
agree with the finding of the lower court, and he should be punished
under the first paragraph of Article 135 of the Revised Penal Code.
8. Appeal of Lamberto Magboo
Appellant Lamberto Magboo was arrested by the agents of the MIS and
of the Manila Police at 1608-B Andalucia, Manila, on October 18, 1950,
along with the accused Ramon Espiritu, Salome Cruz, Rosario C. Vda.
de Santos, Naty Cruz, Aurora Garcia and Josefina Adelan. It must be
noted that the place, 1608-B Andalucia, is the headquarters of Salome
Cruz who was the Chief of the National Courier Division of the CPP. The
evidence shows that the other persons who were arrested in that place
namely, Naty Cruz, and Josefina Adelan worked as couriers under
Salome Cruz. Rosario C. Vda. de Santos also worked under Salome
Cruz as in-charge of outpost. Aurora Garcia was employed by her aunt,
Rosario Vda. de Santos, as a maid and that she was selling the TITIS.
The evidence shows that:
Appellant Lamberto Magboo used the aliases Berting and Eddie. He
admitted that he was a courier of the CPP, and that he actually mailed
letters and packages at the Bureau of Posts and at the post office at the
Far Eastern University; and he delivered letters, boxes of medicines,
canned goods, lanterns, and shoes, from 1608-B Andalucia Street (house
of appellant Salome Cruz) to the La Mallorca Bus station, to the LTB
station, at Altura Street, Sta. Mesa, at Divisoria Street, and at Celeridad
Street in Pasay City. 61 He was a checker of the regular and irregular
couriers of Recos 1, 4, 5, 6 and 7 and Dist. No. 4 Pangasinan, and was
also a special courier of Dist. No. 4, c/o Reco 4. 62
Considering that the Recos are the units of the CPP that are operating
with the HMB in the field, such that the person who acts as courier from
the headquarters of the National Courier Division of the CPP in Manila to
these Recos was actually working and cooperating with the armed
operations to overthrow the government. We find appellant Lamberto
Magboo guilty as a mere participant in the commission of the crime of
rebellion, under the second paragraph of Article 135 of the Revised Penal
Code, and he should be punished accordingly.
9. Appeal of Nicanor Razon, Sr.
Appellant Nicanor Razon, Sr., known also by the alias Elias Rubi,
admitted that he had been a member of the CPP since July 1, 1945.
Among the documents found at 1608-B Andalucia, Sampaloc, Manila,
was the cadre registration and oath of this appellant as a member of the
CPP. He was the secretary of Barangay I SECCOM (Sectional
Committee) II of the District of Tondo, and later rose to the position of
treasurer in the same committee. He helped in distributing the TITIS, the
official organ of the CPP. 63
The record does not show that this appellant had testified in his behalf,
nor presented any evidence in his defense. In his brief before this Court,
however, this appellant claims that the lower court erred in finding him
guilty as an accomplice in the commission of the crime of rebellion, no
evidence having been adduced to show that he had performed any act,
which would constitute a cooperation in promoting the rebellion jointly
undertaken by the CPP and the HMB.
We find merit in the contention of this appellant. We find that the
evidence against this appellant only shows that he is a member of the
Communist Party, and that he had been secretary and later treasurer of
SECCOM II of the District of Tondo. There is no evidence regarding his
actual participation in the efforts of the leaders of the CPP and the HMB
to promote the rebellion. His having distributed the TITIS, the official
organ of the CPP, is at most an act in the category of a propaganda
which in itself does not show that he advocated actual uprising against
the Government. It has not been shown that he collaborated in the efforts
to advance the cause of the rebellion. The fact that he is a member of the
Communist Party and an officer of one of its committees is not a sufficient
basis for declaring him guilty as an accomplice in the commission of the
crime of rebellion.
In the case of People vs. Hernandez, G. R. Nos. L-6025-6026 this Court
held:
... We do not believe that mere membership in the Communist
Party or in the CLO renders the members liable either of rebellion
or of conspiracy to commit rebellion, because mere membership
and nothing more merely implied advocacy of abstract theory or
principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or
advocacy of action, namely actual rebellion or conspiracy to
commit rebellion, or acts conducive thereto or evincing the same.
We, therefore, declare that appellant Nicanor Razon, Sr. is not guilty as
an accomplice in the commission of the crime of rebellion, nor can We
hold him guilty of the crime of conspiracy to commit rebellion. He should,
therefore, be absolved of the charge against him in the information.
Neither can We find him guilty of having committed a crime under the
Anti-Subversion Law (R.A. No. 1700) which outlaws the Communist Party
of the Philippines, because this law was enacted only in the year 1957,
whereas the information against this appellant was filed on October 27,
1950. Again, in the case of People vs. Hernandez, supra, this Court held:
On the other hand, Rep. Act 1700, known as the Anti-Subversion
Act, which penalizes membership in any organization or
association committed to subvert the Government, cannot be
applied to the appellants because said Act was approved on June
20, 1957 and was not in force at the time of the commission of
the acts charged against appellants (committed 1945-1950); the
Anti-Subversion Act punishes participation or membership in an
organization committed to overthrow the duly constituted
Government, a crime distinct from that of actual rebellion with
which appellants are charged.
10. Appeal of Marcos Medina
Appellant Marcos Medina was arrested by MIS agents on October 17,
1950 at 1028-B, Quezon Boulevard. He used the alias Hiwara. He
admitted in his written statement 64 that he was a member of the
Hukbalahap Squadron 25 with headquarters at Kandating, Candaba; that
he became a corporal of the Huks in 1944; and that he was a member of
the Organizational Committee, Reco 4, Laguna, from 1946 to 1949. 65 In
1949, he studied at the Central Institute of Technology, and while
studying, he used to help HMB couriers Lydia (alias of Alicia Villegas),
and Celong (alias of Marcelino Calma) in carrying things for delivery to
Commander REG of Reco 4. 66 In his testimony he stated that the
Organizational Committee, of which he was a member, had the duty to go
to the barrios to teach and convince the people to join the HMB. 67
Testifying in his behalf, this appellant said that he was maltreated at
Camp Murphy to make him sign the statement marked as Exhibits EE to
EE-4. 68 However, Sotero Morales, who was the one who investigated
him, testified that Marcos Medina did not complain of any maltreatment
when he was investigated. 69
We do not agree with the finding of the lower court that this appellant is
guilty as principal in the commission of the crime of rebellion. There is no
evidence that he actually participated in any of the raids and ambushes
alleged in the information although he admitted that he was a Huk. The
evidence shows that he simply helped HMB couriers. We hold, however,
that his being a member of the HMB is a sufficient basis to find him guilty
of the crime of conspiracy to commit rebellion, punishable under Article
136 of the Revised Penal Code. In the case of People vs. Hernandez,
supra, this Court held:.
On the other hand, membership in the HMB (Hukbalahap),
implies participation in an actual uprising or rebellion to secure,
as the Huks pretend, the liberation of the peasants and laboring
class from thraldom. By membership in the HMB, one already
advocates uprising and the use of force, and by such
membership he agrees or conspires that force be used to secure
the ends of the party. Such membership, therefore, even if there
is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.
And when a Huk member, not content with his membership, does
anything to promote the ends of the rebellion like soliciting
contributions, or acting as courier, he thereby becomes guilty of
conspiracy, unless he takes to the field and joins in the rebellion
of uprising, in which latter case he commits rebellion.
We therefore declare appellant Marcos Medina guilty of the crime of
conspiracy to commit rebellion, and he should be punished accordingly.
11. Appeal of Cesario Torres
Appellant Cesario Torres was arrested by the agents of the MIS and the
Manila Police on October 19, 1950 at his residence at 742 Colorado St.,
Manila, along with his wife, Rosenda Canlas Torres, and his co-accused,
Arturo Baking. From his house the agents seized subversive documents,
and articles including a typewriter, a mimeographing machine,
mimeographing ink, stencils, coupon bond papers. Some of these coupon
bond papers were blank but bore the signature of Luis M. Taruc.
The evidence shows that:
Appellant Cesario Torres used the aliases: Leo and Leodones, and he
was also known as Cesario Yacat Torres. He admitted being a member
of the HMB and of the CPP, that he was head of the Technical Office
under the Propaganda Branch of the CPP, and as the head of that office
he was in charge of typing and mimeographing the CPP documents and
leaflets, and the TITIS which was the official organ of the CPP. 70
Documents were presented during the trial which clearly prove that this
appellant was in regular communication with Federico Maclang, one of
the top leaders of the CPP and of the rebellion. Thus, in one letter, he
explained to Maclang why the issue of the TITIS for the previous week
did not come out; and in another letter he informed Maclang that he
would try to make the TITIS come out every Sunday morning. 71 In a letter
to Maclang dated April 6, 1950, he inquired for the number of copies of
"Suliranin ng mga Familia" that should be printed; and in another letter he
was requesting from Maclang P18.40 for the printing of 600 copies of the
"Mapagpalaya", the official organ of the HMB. 72 Using the name
Leodones, this appellant wrote subversive poems calculated to arouse
popular support for the cause of the CPP and the HMB. One such poem,
entitled "Ang Dalawangpung Taon Buhay ng PKP", eulogized the CPP,
advocated armed revolt against the government and the liquidation of
Liberals, Nacionalistas, and priests. The other poems were "Gumising Ka
Kabataan", "Maiksing Kasaysayan ng Kilusang Magbubukid sa Filipinas",
"Ang Ikawalong Taong Kaarawan ng Hukbong Magpapalaya ng Bayan",
and "Ang Sigaw ng Bayan Api". All these poems were published in the
different issues of the TITIS. 73
We find that appellant Cesario Torres played a very vital role in the
promotion of the armed struggle that was jointly prosecuted by the CPP
and the HMB. He was admittedly a member of both the CPP and the
HMB. His membership with the HMB alone is a sufficient basis to hold
him guilty of the crime of conspiring to commit rebellion. We believe,
however, that he did more than to conspire with the leaders of the HMB
and the CPP to commit rebellion. He was in charge of the publication and
circulation of the TITIS which was the official organ the CPP, and of the
"Mapagpalaya" which was the official organ of the HMB. It is through
these two organs that the people were being aroused to support the
armed struggle against the government. While it is true that this appellant
did not go to the field to take up arms, the provocative poems and articles
that he wrote and published in the official organs of the CPP and the
HMB were just as effective to prosecute the rebellion as the guns and
other weapons used by the HMB in the field.
We agree with the finding of the lower court that this appellant is guilty as
principal in the commission of the crime of rebellion, and he should be
punished accordingly.
12. Appeal of Arturo Baking
Appellant Arturo Baking was arrested by the agents of MIS and the
Manila Police on October 19, 1950 at 742 Colorado St., Manila, along
with his co-accused Cesario Torres and the latter's wife, Rosenda Canlas
Torres. He is the nephew of appellant Angel Baking.
It is shown by the evidence that:
Appellant Arturo Baking used the aliases Red Bell, Eduardo Santos,
Arturo Calma and Ed. He became a member of the CPP in December
1949. 74 In August 1950 he was employed by his co-accused Cesario
Torres as assistant in the publication center of the CPP at 742 Colorado
St., Manila. He was one of those assigned as typist in the Educational
Department of the CPP, it having been admitted by him that the
publication center was under the Educational Department of the CPP. As
assistant to Cesario Torres he helped in the printing, mimeographing and
distribution of the TITIS, the official organ of the CPP; as well as in the
printing, mimeographing and distribution of HMB documents. His work
included the procurement of office supplies, and the keeping of records of
CPP documents that had been printed and distributed to the different
officials and organizational units of the CPP. 75 This appellant had studied
and finished the prescribed secondary course of the Communist Party,
and was given a certificate, "Katibayan sa Pagaaral", attesting to his
having satisfactorily completed such subjects as the "History of National
Liberation Movement", "Dialektika ng Materialismo", "Political Economy",
"Estado at Himagsikan", and "Ang Pagkakatatag ng Partido". 76 By his
own declaration this appellant admitted having made studies about
communism, took rigid tests in order to be accepted to the CPP, and that
he believed a communist government should be implanted in the
Philippines. In his testimony, he stated that he had developed a deep-
seated hatred against the agents of the law because of the predatory acts
that were committed by them on poor fishermen, and that on several
occasions, especially at various checkpoints, he saw the harsh treatment
done by the Constabulary soldiers to civilians. He bewailed the graft and
corruption in the government. 77
We have no doubt that this appellant is a confirmed communist, and that
he was in full sympathy with the armed struggle being promoted by the
leaders of the CPP and the HMB in order to overthrow the existing
government of the Philippines. Upon appraisal of the evidence, however,
We cannot agree with the finding of the lower court that this appellant is
guilty as principal in the commission of the crime of rebellion. We find that
he was the assistant of appellant Cesario Torres, who was entrusted with
the publication and distribution of the official organs of the CPP and the
HMB, as well as of the printing and distribution of the documents of these
two organizations. Being an assistant of appellant Cesario Tores whom
We have declared to be a principal in the commission of the crime of
rebellion, We hold that appellant Arturo Baking is guilty as a mere
participant in the commission of the crime of rebellion, under the second
paragraph of the Article 135 of the Revised Penal Code, and he should
be punished accordingly.
13. Appeal of Simeon G. Rodriguez
Appellant Simeon G. Rodriguez was arrested by the agents of the MIS
and the Manila Polioe in his house at 683 Pasaje Rosario, Paco, Manila,
on October 18, 1950, along with Jose Lava, Federico Bautista, Victorina
G. Rodriguez and Pedro Vicencio.
The evidence shows that:
Appellant Simeon G. Rodriguez used two aliases: Lakindanum
(Laquindanum) and Sammy. He was a member of the National Finance
Committee of the CPP since October 21, 1949. 78 When he was arrested
on October 18, 1950 there were found in his house some P42,376.00 in
paper currency in different denominations. Of the money that was found
in his house, it was conclusively shown that 65 P100-bills, 60 P50-bills,
P145.00 in PNB circulating notes and $310.00 formed part of the money
that were taken from the office of the Provincial Treasurer in Sta. Cruz,
Laguna, when the HMB raided that town in the night of August 26, 1950.
We have stated at the early part of this opinion that on the night of August
26, 1950 some 400 Huks raided Sta. Cruz. The cashier of the office of
the Provincial Treasurer was forced by the Huks at gun point to open the
vault of the provincial treasury from which the Huks took some
P80,600.00. It happened that the Provincial Treasurer of Laguna, Mr.
Balbino Kabigting, had a record of the serial numbers of the paper money
that was deposited in the provincial treasury which were taken by the
Huks, and after that raid Mr. Kabigting even issued a warning to the
public about the loss of the money — mentioning in the warning the serial
numbers of the money taken. It was found out that the serial numbers of
the 65 P100-bills, of the 60 P50-bills, of the P145.00 PNB circulating
notes, and of the $310 found in the house of appellant Rodriguez tallied
with the serial numbers of the paper currency that was taken from the
provincial treasury of Laguna. This appellant, in his testimony, declared
that the paper money whose serial numbers tallied with those paper
money that were taken from the provincial treasury of Laguna formed part
of the money that Jose Lava (one of the appellant herein) brought to his
house. Considering the high position that appellant Lava held in the CPP
and the fact that the armed operations of the HMB were promoted and
directed by the Secretariat of the CPP, of which Lava was a member, and
the fact that appellant Simeon Rodriguez was a member of the National
Finance Committee, it is easy to understand why Jose Lava brought to
this appellant that money which was taken by the HMB from the
provincial treasury of Laguna. Significantly, one of the evidence
presented during the trial was a receipt, dated October 5, 1950, signed by
Lakindanum in favor of Com. Torres (Casto Alejandrino, a well-known
HMB commander) of Reco 4, acknowledging receipt of P32,740, $310,
and P145 in PNB circulating notes. 79 It could be that Jose Lava made
Rodriguez prepare that receipt when he delivered the money, and the
receipt was intended to be sent to Com. Torres to assure the latter that
the money was delivered to Rodriguez. That receipt was among the
papers seized when these appellants were arrested. This is a clear
indication of the connection of appellant Simeon Rodriguez to the armed
operations of the HMB, and the coordinated work of the leaders of the
CPP and of the HMB in the armed uprising.
There are other documents clearly indicating the connection of appellant
Rodriguez to the HMB commanders in the field: (1) There is a letter dated
October 13, 1950, addressed to Com. Lakindanum (Simeon G.
Rodriguez) coming from Com. Torres (Casto Alejandrino) wherein the
latter acknowledged receipt of the letter and articles that were sent to him
by Com. Lakindanum. This letter also instructed Lakindanum not to send
the watches to Reco 4. 80 (2) There is another letter dated October 13,
1950, of Com. Lanao, addressed to Com. Lakindanum, wherein the
former was requisitioning from Lakindanum a radio set. In this letter Com.
Lanao, among others, said: "We would make the attempt to provide you
with an extra ration of camote leaves when you visit us again". 81 This
statement in the letter of Com. Lanao indicates that appellant Simeon
Rodriguez used to visit the men in the field. (3) There is still another letter
that came from Com. Amor, addressed to Com. Lakindanum, wherein the
former acknowledged receipt of all the things, including a radio tester
costing P30.00, that the latter had sent to him. 82 (4) Then there is a letter
written by herein appellant to Com. Beria (Federico Maclang) stating that
he delivered the tester to Com. Reg in the absence from camp of Com.
Torres. 83 (5) There is a receipt showing that appellant Rodriguez signed
in the name of the National Finance Committee, acknowledging receipt of
the amount of P705.00. 84 (6) There is still another receipt signed by
herein appellant acknowledging receipt of P1,200 from the National
Finance Committee, which was prepared for accounting purposes. 85
This appellant admitted, in his testimony, his close association with Jose
Lava. He also said that he was inclined to believe in the tenets of
communism and the use of force in case the people decide to take
political power in their hands.
We have carefully examined the evidence of the prosecution against this
appellant, and also the evidence which he presented in his defense —
consisting of his own testimony mainly denying the positive evidences
against him and of the testimonies of witnesses vouching for his good
character and the fact that he was a businessman — and We have
arrived at the conclusion that this appellant is one of the top communist
leaders who had promoted and maintained the armed operations of the
HMB in the field. We agree with the finding of the lower court that
appellant Simeon G. Rodriguez is guilty as principal in the commission of
the crime of rebellion; and he should be punished accordingly.
14. Appeal of Marciano de Leon
Appellant Marciano de Leon was arrested, together with Angel Baking at
Room 504, Samanillo Building, Escolta, Manila, on October 19, 1950. He
used the aliases Mar and Marcial. At the time of his arrest, he worked in
the Personnel Section at the Headquarters of the Philippine
Constabulary. He admitted having supplied his co-accused Federico
Bautista with government documents and confidential information
regarding the HMB from the PC Headquarters. These were: 86
1. Memorandum to all PC Commander re Huk infiltration.
2. Memorandum to all PC Commanders re Loyalty Status of all
PC personnel.
3. Memorandum on PC-Civilian Relations.
4. List of PC Agents and their addresses.
5. List of persons wanted by the PC.
6. Letter on the subject: "Yellow Journalism."
7. U.S. Army Technical Manuals and Field Manuals.
We concur with what the lower court said about this appellant:
"Considering the nature of the documents he admitted in his confession
to have been furnished by him to Federico Bautista, the contents of his
confession and the accessibility to him of those documents by reason of
his position in the Personnel Section of the Philippine Constabulary, the
Court is inclined to believe that he also took part in the conspiracy to
overthrow the government by armed struggle and did his bit by furnishing
Federico Bautista with information and records regarding the HMB
activities obtainable from the PC Headquarters." We do not agree with
the lower court, however, that this appellant is guilty as principal in the
commission of the crime of rebellion. Considering the top position of
Federico Bautista in the CPP hierarchy, it cannot be denied that appellant
Marciano de Leon, by giving the information hereinabove stated to
Federico Bautista, had cooperated or helped in the prosecution of the
armed rebellion. We hold this appellant guilty as a mere participant in the
commission of the crime of rebellion, under the second paragraph of
Article 135 of the Revised Penal Code, and should be punished
accordingly.
15. Appeal of Honofre Mangila
We find, by the evidence, that:
Appellant Honofre Mangila was arrested on November 22, 1950 at 215
Leveriza, Pasay City. He used the aliases Miller and Tommy. He
admitted being a communist — in fact, he said he was proud to be a
communist — and being a member of the Central Committee of the CPP.
He was also a member of the Trade Union Division (TUD) of the CPP. In
the meeting of the Secretariat of the CPP on September 1, 1950,
appellant Mangila was appointed auditor of funds and books of account
of the National Finance Commission (NFC). 87 He actually audited the
financial statements of the NFC for the months of April, May and June,
1950; Mangila's auditing of the National Finance Commission's account
was approved by the Secretariat in its meeting of September 22, 1950.
He was also the chairman of the organizational department (OD) for
Manila under the Organizational Bureau of the CPP. 88
There is no question that this appellant is one of the top men in the
hierarchy of the CPP. He was a member of the Central Committee which
is the body second only to the National Congress of the CPP. When the
National Congress is not in session it is this Central Committee that
makes decisions for the party. While testifying in his behalf he revealed
his strong communist party discipline when he declined to reveal, upon
being cross-examined, the identity of the other members of the Central
Committee, and the members of the National Congress and of the
Politburo. While testifying he was very outspoken in indicting the existing
economic and social order in the country, and asserted that it is only
under the Communist Party when the laboring class can expect a bright
future.
During the trial letters signed by "Miller" or "Tommy", were presented in
evidence. Those were letters addressed to Johnny (Ramon Espiritu) and
to Luming (Salome Cruz) concerning financial matters, meetings and
other activities in the CPP. 89
Considering that it is the CPP, as We have shown, that promotes and
maintains the armed operations of the HMB against the government, and
considering that appellant Honofre Mangila is a member of the Central
Committee which is the most powerful body in the CPP when its National
Congress is not in session, and considering further that this appellant
was even appointed auditor to audit the funds of the CPP, We believe
that this appellant is one of the principal leaders of the rebellion as
charged in the information. We agree with the finding of the lower court
that appellant Honofre Mangila is guilty as principal in the commission of
the crime of rebellion and that he should be punished accordingly.
16. Appeal of Cenon Bungay
We find, by the evidence, that:
Appellant Cenon Bungay was arrested by Vicente Roco of the 20th BCT
and some members of the Manila Police on November 21, 1950, at 432
Isabel, Sampaloc, Manila. This appellant used the alias Rufing.
In written statements, he admitted that he joined the Huks in 1946, and at
the time of his arrest on November 21, 1950 he was the commander of
the HMB in the province of Batangas and the G-3 of Field Command (FC)
No. 3 of the HMB. While testifying in open court, he declared that as the
HMB commander he had 1,300 fully armed men (equivalent to 4 HMB
battalions) under him, and as a Huk commander he had been receiving
directives from the higher authorities of the HMB. He revealed that Luis
Taruc was the Supreme of the HMB. 90 He also admitted his direct
participation in an encounter between the HMB and the government
forces in Plaridel, Bulacan, on March 27, 1950. He stated that in
obedience to an order from Regional Command No. 4, he led his unit in
the raid of San Pablo City on March 29, 1950, resulting in the death of
Maj. Alicbusan. He said that their purpose was to overthrow the
government by force, and to establish the "New Democracy." 91 He also
declared that he joined the Huks in 1942 because of poverty; that his
parents were tenants in Hacienda Bahay Pare at Candaba, Pampanga;
that he stopped schooling after the 7th grade in order to help support his
parents and ten brothers and sisters; that realizing the miserable
conditions of the tenants, he joined the "Aguman Ding Talapagobra"
(ADT), the aim of which was the amelioration of the tenants; that through
this organization he realized that the tenants must organize to promote
their welfare and to prevent the abuses of landlords. He further declared
that in spite of the sacrifices of the Huks for 3 years during the Japanese
occupation, the Huks representing the countless tenants, were ignored by
the U.S. armed forces and by the Commonwealth Government; and
having been harassed, persecuted and frustrated in their aims to
ameliorate the condition of the masses, the Huks went underground.
According to him the Huks felt more persecuted when Luis Taruc, the
successful congressional candidate in 1946 of the Democratic Alliance,
was denied his seat in Congress, and that they lost faith in the
government due to the frauds and terrorism perpetrated in the elections
that followed. 92
Appellant Bungay admitted that the HMB had to use force in order to
change the administration. He said that the men under him used arms
given by the American soldiers and Communist sympathizers. He also
revealed that while he was the Huk commander at Cavite, he had two
encounters with government forces, one at Aliang, Malabon on February
18, 1950; and the other at Alfonso, Cavite, on February 22, 1950. These
admissions were fully corroborated by Benjamin Advincula, a ranking
officer and Secretary of Reco Command No. 4 of the HMB and by Ronald
Dorsey, a former Huk member. 93
There is no doubt that Cenon Bungay, as Huk commander, was also a
leader in the rebellion. We agree with the finding of the lower court that
this appellant is guilty as principal in the commission of the crime of
rebellion, and he should be punished accordingly.
17. Appeal of Pedro T. Vicencio
Appellant Pedro T. Vicencio was arrested on October 18, 1950 at 683
Pasaje Rosario, Paco, Manila, along with Jose Lava, Federico Bautista,
Simeon Rodriguez and Victorina Rodriguez. He was also known as
Pedring. In a statement, signed by him at Camp Murphy after his arrest,
he admitted that he used to run errands, bringing foodstuffs, medicines
and other supplies intended for the HMB, and also delivering packages
that were labelled R-1, R-2, R-3, R-4 and R-5, which stood for Reco-1,
Reco-2, etc., respectively, to Andalucia Street where Rosario Vda. de
Santos received them. 94 We have found, in this decision, that Rosario
Vda. de Santos was working under Salome Cruz who was the chairman
of the National Communications Division (NCD) of the CPP, and that she
was in charge of an outpost, checking the irregular couriers for Recos 1,
2, 3, 4, 5 and Pangasinan, and she was staying at 1608-B Andalucia,
Sampaloc, Manila.
Testifying in his own behalf, appellant Vicencio denied being a member of
the CPP nor of the HMB, although he stated that at the time of his arrest,
he was studying the principles of communism, and that he sympathized
with the Huks. At the time of his arrest this appellant was 20 years old,
and he was a first year Liberal Arts student. He admitted in his testimony
that he delivered to Angel Baking notes sent by Simeon Rodriguez. 95
While it is not shown that this appellant actually took part in the armed
operations of the HMB, his having delivered foodstuffs, medicines and
other supplies which were intended for the HMB, and his having delivered
packages to Rosario Vda. de Santos who was in charge of the outpost
where couriers go to deliver, or to get, letters or articles intended for
RECOS in the field, clearly indicate that this appellant was actively
cooperating in the efforts of those promoting the rebellion. Being 20 years
of age and a college student, it can be expected that he knew that he was
doing something for the communists and the Huks. More so, because he
was living with Simeon G. Rodriguez, one of the top leaders of the CPP.
He admitted having delivered notes sent by Simeon Rodriguez to Angel
Baking, another top leader of the CPP. The house of Rodriguez was the
meeting place of CPP leaders. lawphil.ñet
We find this appellant guilty as a mere participant in the commission of
the crime of rebellion, under the second paragraph of Article 135 of the
Revised Penal Code, and he should be punished accordingly.
18. Appeal of Felipe Engreso
Appellant Felipe Engreso was arrested on October 18, 1950 at 1938 Int.
7, Felix Huertas St., Manila, along with Federico Maclang and Julita
Rodriguez. At the time of his arrest, he was about 15 years old, and was
living as a houseboy of one known to him as Ambrosio Reyes.
It appears that in a written statement that he signed before the MIS
agents, this appellant admitted having delivered letters to Mr. Espiritu
(Ramon Espiritu) at Andalucia St., Manila; to Cesar (Cesario Torres) at
742 Colorado, Manila; and to Gaston (Jose Lava) at Celeridad St., Pasay
City. It also appears in that statement that he used to get the TITIS from
Colorado St. (residence of Cesario Torres and the CPP publication
center) to deliver them to Andalucia Street (residence of Ramon Espiritu,
Salome Cruz and Rosario Vda. de Santos) and retained one copy for
Ambrosio Reyes. 96
Testifying in his behalf, appellant Engreso declared that before his arrest
he never knew that his master, Ambrosio Reyes, is the accused Federico
Maclang. He came to know his master to be Federico Maclang only when
they were already detained at Muntinglupa. 97
Upon a careful study of the evidence against this appellant, We have
come to the conclusion that his guilt has not been proved beyond
reasonable doubt. This appellant was only around 15 years old. We
accept his testimony that he did not know that his master was Federico
Maclang, and that all the time he knew him to be Ambrosio Reyes. He
was simply a houseboy of Maclang. He had to obey orders to deliver
letters or deliver copies of TITIS. There is no showing that he knew the
contents of the letters that he was made to deliver, or that he knew the
addressees to be communists. The Solicitor General recommends the
acquittal of this appellant upon the ground that there is no sufficient
evidence to show his criminal intent. We agree with the Solicitor General.
We, therefore, acquit appellant Felipe Engreso of the charge against him
in the information.
xxx xxx xxx
IN VIEW OF THE FOREGOING, the decision appealed from should be,
as it is hereby, modified, as follows:
1. In G.R. No. L-4974
Appellants Jose Lava, Federico Bautista, Federico Maclang, Ramon
Espiritu, Salome Cruz and Angel Baking are found guilty as principals in
the commission of the crime of simple rebellion under the first paragraph
of Article 135 of the Revised Penal Code, and every one of them is
hereby sentenced to suffer imprisonment for ten (10) years ofprision
mayor, and a fine of P20,000, with the accessories provided by law, but
without subsidiary imprisonment in case of insolvency, and to pay their
proportionate shares of the costs.
Appellant Rosario C. Vda. de Santos is found guilty as a participant in the
commission of the crime of simple rebellion under the second paragraph
of Article 135 of the Revised Penal Code, and she is hereby sentenced to
suffer imprisonment of seven (7) years and four (4) months of prision
mayor, with the accessories provided by law, and to pay her
proportionate share of the costs.
2. In G.R. No. L-4975
Appellant Cesario Torres is found guilty as principal in the commission of
the crime of simple rebellion under the first paragraph of Article 135 of the
Revised Penal Code, and he is hereby sentenced to suffer imprisonment
of ten (10) years of prision mayor, and a fine of P20,000, with the
accessories provided by law, but without subsidiary imprisonment in case
of insolvency, and to pay his proportionate share of the costs.
Appellants Lamberto Magboo and Arturo Baking are found guilty as
participants in the commission of the crime of simple rebellion under the
second paragraph of Article 135 of the Revised Penal Code, and every
one of them is hereby sentenced to suffer imprisonment of seven (7)
years and four (4) months of prision mayor, with the accessories provided
by law, and to pay their proportionate shares of the costs.
Appellant Marcos Medina is found guilty of the crime of conspiracy to
commit rebellion under Article 136 of the Revised Penal Code, and he is
hereby sentenced to suffer imprisonment of five (5) years, four (4)
months, and twenty (20) days of prision correccional and a fine of
P2,000, with the accessories provided by law, with subsidiary
imprisonment in case of insolvency, and to pay his proportionate share of
the costs.
Appellant Nicanor Razon, Sr. is hereby acquitted, with costs de oficio.
3. In G.R. No. L-4976
Appellant Simeon G. Rodriguez is found guilty as principal in the
commission of the crime of simple rebellion under the first paragraph of
Article 135 of the Revised Penal Code, and is hereby sentenced to suffer
imprisonment of ten (10) years of prision mayor and a fine of P20,000,
with the accessories provided by law, but without subsidiary
imprisonment in case of insolvency, and to pay his proportionate share of
the costs.
Appellant Marciano de Leon is found guilty as a participant in the
commission of the crime of simple rebellion under the second paragraph
of Article 135 of the Revised Penal Code, and is hereby sentenced to
suffer imprisonment of seven (7) years and four (4) months of prision
mayor with the accessories provided by law, and to pay his proportionate
share of the costs.
4. In G.R. No. L-4977
Appellants Honofre Mangila and Simeon Bungay are found guilty as
principals in the commission of the crime of simple rebellion under the
first paragraph of Article 135 of the Revised Penal Code, and every one
of them is sentenced to suffer imprisonment of ten (1O) years of prision
mayor, and a fine of P20,000, with the accessories provided by law, but
without subsidiary imprisonment in case of insolvency, and to pay their
proportionate shares of the costs.
5. In G.R. No. L-4978
Appellant Pedro T. Vicencio is found guilty as a participant in the
commission of the crime of simple rebellion under the second paragraph
of Article 135 of the Revised Penal Code, and is sentenced to suffer
imprisonment of seven (7) years and four (4) months of prision mayor,
with the accessories provided by law, and to pay his proportionate share
of the costs.
Appellant Felipe Engreso is hereby acquitted, with costs de oficio.
The Court takes judicial notice, that, except for appellants Lamberto
Magboo, Nicanor Razon, Sr., Pedro T. Vicencio, and Felipe Engreso who
are on provisional liberty under bail, all the rest of these appellants are
detained, and their detention dates back as of August, October or
November, of the year 1950, as the case may be. The Director of the
Bureau of Prisons is hereby directed to determine the period of detention
that should be credited to the appellants who are under detention,
pursuant to the provisions of Article 29 of the Revised Penal Code, and to
release immediately those appellants who are entitled to be credited with
the period of their detention equal to the penalty of imprisonment
imposed upon them in this decision. It is so ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6025 May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment
rendered by the Court of First Instance of Manila, Hon. Agustin P.
Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V.
Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani
Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge
is for Rebellion with Multiple Murder, Arsons and Robberies; the
appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz,
Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol,
Adriano Samson and Andres Baisa, Jr. were among those sentenced in
the judgment appealed from, but they have withdrawn their appeal. In
Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion
with murders, arsons and kidnappings; the accused are Bayani Espiritu
Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres
Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in
Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said
date and continuously thereafter, until the present time, in the City of
Manila, Philippines, and the place which they had chosen as the nerve
center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating
with each other, as well as with the thirty-one (31) defendants charged in
Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the
Court of First Instance of Manila (decided May 11, 1951) and also with
others whose whereabouts and identities are still unknown, the said
accused and their other co-conspirators, being then high ranking officers
and/or members of, or otherwise affiliated with the Communist Party of
the Philippines (P.K.P.), which is now actively engaged in an armed
rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other
places in the Philippines, and of which party the "Hukbong Mapagpalaya
Ng Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps"
(Huks), unlawfully and did then and there willfully, unlawfully and
feloniously help, support, promote, maintain, cause, direct and/or
command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the
"Hukbalahaps" (Huks) to rise publicly and take arms against the Republic
of the Philippines, or otherwise participate in such armed public uprising,
for the purpose of removing the territory of the Philippines from the
allegiance to the government and laws thereof as in fact the said
"Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly
and taken arms to attain the said purpose by then and there making
armed raids, sorties and ambushes, attacks against police, constabulary
and army detachments as well as innocent civilians, and as a necessary
means to commit the crime of rebellion, in connection therewith and in
furtherance thereof, have then and there committed acts of murder,
pillage, looting, plunder, arson, and planned destruction of private and
public property to create and spread chaos, disorder, terror, and fear so
as to facilitate the accomplishment of the aforesaid purpose, as. follows,
to wit: (Enumeration of thirteen attacks on government forces or civilians
by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August
26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and
March 29, 1950.)
II. That during the period of time and under the same circumstances
herein-above indicated the said accused in the above-entitled case,
conspiring among themselves and with several others as aforesaid,
willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known
as the Committee on Labor Organizations (CLO), with central offices in
Manila and chapters and affiliated or associated labor unions and other
"mass organizations" in different places in the Philippines, as an active
agency, organ, and instrumentality of the Communist Party of the
Philippines (P.K.P.) and as such agency, organ, and instrumentality, to
fully cooperate in, and synchronize its activities — as the CLO thus
organized, established, led and/or maintained by the herein accused and
their co-conspirators, has in fact fully cooperated in and synchronized its
activities with the activities of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) and other organs, agencies, and instrumentalities of the
Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate,
and effect the complete and permanent success of the above-mentioned
armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479,
Bayani Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and
subsequent thereto and continuously up to the present time, in the City of
Manila, the seat of the government of the Republic of the Philippines,
which the herein accused have intended to overthrow, and the place
chosen for that purpose as the nerve center of all their rebellious
atrocities in the different parts of the country, the said accused being then
high ranking officials and/or members of the Communist Party of the
Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the
latter being the armed forces of said Communist Party of the Philippines;
having come to an agreement with the 29 of the 31 accused in Criminal
Cases Nos. 14071, 14082, 14270, 14315, 14344 of the Court of First
Instance of Manila and decided to commit the crime of rebellion, and
therefore, conspiring and confederating with all of the 29 accused in said
criminal cases, acting in accordance with their conspiracy and in
furtherance thereof, together with many others whose whereabouts and
identities are still unknown up to the filing of this information, and helping
one another, did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the "Hukbong
Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps (HUKS) to rise
publicly and take Arms against the Government or otherwise participate
therein for the purpose of overthrowing the same, as in fact, the said
"Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen
publicly and taken arms against the Government, by then and there
making armed raids, sorties and ambushes, attacks against police,
constabulary and army detachment, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance
thereof, by then and there committing wanton acts of murder, spoilage,
looting, arson, kidnappings, planned destruction of private and public
buildings, to create and spread terrorism in order to facilitate the
accomplishment of the aforesaid purpose, as follows to wit: (Enumeration
of thirteen attacks on Government forces or civilians by Huks on May 6,
1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947,
June 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25,
1950, September 12, 1950, March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the
decision subject of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado
V. Hernandez, the following: (1) that he is a member of the Communist
Party of the Philippines and as such had aliases, namely, Victor or
Soliman; (2) that he was furnished copies of "Titis", a Communist
publication, as well as other publications of the Party; (3) that he held the
position of President of the Congress of Labor Organizations; (4) that he
had close connections with the Secretariat of the Communist Party and
held continuous communications with its leaders and its members; (5)
that he furnished a mimeographing machine used by the Communist
Party, as well as clothes and supplies for the military operations of the
Huks; (6) that he had contacted well-known Communists coming to the
Philippines and had gone abroad to the WFTU conference Brussels,
Belgium as a delegate of the CLO, etc. Evidence was also received by
the court that Hernandez made various speeches encouraging the people
to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the
Communist Party and the Congress of Labor Organizations, of which
Hernandez was the President, and that this Congress was organized by
Hernandez in conjunction with other Huks, namely: Alfredo Saulo,
Mariano Balgos, Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as
well as the documentary evidence, independently of each other, to find
out if the said evidence supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party
in the month of October, 1947, at the offices of the Congress of Labor
Organizations at 2070 Azcarraga in the presence of Guillermo
Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a
Communist he was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made various
speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at
Plaza Miranda, in which he announced that the people will soon meet
their dear comrade in the person of Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the
Escolta, at which occasion Balgos told Goufar that the PKM, CLO and the
Huks are in one effort that the PKM are the peasants in the field and the
Huks are the armed forces of the Communist Party; and the CLO falls
under the TUD of the Communist Party. 1äwphï1.ñët
(3) On October 2, 1948 he went abroad to attend the Second Annual
Convention of the World Federation of Trade Unions and after arrival
from abroad a dinner was given to him by the people of Gagalangin, at
which Hernandez delivered a speech and he said that he preferred to go
with the Huks because he felt safer with them than with the authorities of
the Government.
(4) In April, 1949, he made a speech before a group of tenants in
Malabon attacking the frauds in the 1947 elections, graft and corruption in
the elections and that if improvement cannot be made by the ballots, they
could be made by bullets; and enjoined the people to go to the hills and
join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the
commemoration of the World Peace at the CLO headquarters at 330 P.
Campa. He attacked the city mayor and incited the people to go to
Balintawak and see Bonifacio there and thereafter join four comrades
under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of
the unemployed at 330 P. Campa. He asked the unemployed to approve
a resolution urging the Government to give them jobs. In conclusion he
said that if the Government fails to give them jobs the only way out was to
join the revolutionary forces fighting in the hills. He further said that Mao
Tse Tung, leader of the People's Army in China, drove Chiang Kai Shek
from his country, and that Luis Taruc was also being chased by
Government forces run by puppets like Quirino, etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In
his talk Hernandez expressed regret that two foremost leaders of the
CLO, Balgos and Capadocia, had gone to the field to join the liberation
army of the HMB, justifying their going out and becoming heroes by
fighting in the fields against Government forces until the ultimate goal is
achieved.
The above evidence was testified to by Florentino Diolata who was the
official photographer of the CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo
Calayag, a Communist and a Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the
president government by force of aims and violence; thru armed
revolution and replace it with the so-called dictatorship of the proletariat
the Communist Party carries its program of armed overthrow of the
present government by organizing the HMB and other forms of
organization's such as the CLO, PKM, union organizations, and the
professional and intellectual group; the CLO was organized by the Trade
Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the
Central Committee of the CLO were also top ranking officials of the
Communist Party; activities undertaken by the TUD - the vital undertaking
of the TUD is to see that the directives coming from the organizational
bureau of the Communist Party can be discussed within the CLO
especially the Executive Committee. And it is a fact that since a good
majority of the members of the Executive Committee are party members,
there is no time, there is no single time that those directives and
decisions of the organizational department, thru the TUD are being
objected to by the Executive Committee of the CLO. These directives
refer to how the CLO will conduct its functions. The executive committee
is under the chairmanship of accused Amado V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed
overthrow of the present government and its replacement by the
dictatorship of the proletariat by means of propaganda - by propagating
the principles of Communism, by giving monetary aid, clothing, medicine
and other forms of material help to the HMB. This role is manifested in
the very constitution of the CLO itself which expounded the theory of
classless society and the eradication of social classes (par. 5, Sec. 1, Art.
2, page 18 of the CLO Constitution contained in the Fourth Annual
Convention Souvenir Program of the CLO Exh. "V-1579"). Thru
propaganda, the CLO promoted the aims of Communist Party and
disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto
Evangelista (Exh. V-1662), founder of Communism in the
Philippines, in the session hall of the CLO headquarters at 2070
Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such
as the World Federation of Trade Union Magazine, International
Union of Students magazine, Voice magazine of the marine
cooks of the CLO, World Committee of the Defenders of the
Peace magazine, Free Bulgaria magazine, Soviet Russia Today
magazine and World Federation of Democratic Youth magazine
(Exhs. V-911, V-907, V-910, V-899, V-912, V-853, W-996 and V-
967);
(c) The publication and distribution of some local subversive
publications such as the "Titis", "Bisig", Kidlat", which are
Communist Party organs; "The Philippine Labor Demands
Justice" and "Hands Off Korea" authored by accused Amado V.
Hernandez;
(d) Principles of Communism were also propagated thru lectures,
meetings, and by means of organization of committees in the
educational department as well as researches in the Worker's
Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist
Party thru infiltration of party members and selected leaders of
the HMB within the trade unions under the control of the CLO.
The Communist Party thru the CLO assigned Communist Party
leaders and organizers to different factories in order to organize
unions. After the organization of the union, it will affiliate itself with
the CLO thru the Communist leaders and the CLO in turn, will
register said union with the Department of Labor; and the
orientation and indoctrination of the workers is continued in the
line of class struggle. After this orientation and infiltration of the
Communist Party members and selected leaders of the HMB with
the trade unions under the control of the CLO is already achieved
and the group made strong enough to carry out its aims, they will
begin the sporadic strikes and the liquidation of anti-labor
elements and anti-Communist elements and will create a so-
called revolutionary crisis. That revolutionary crisis will be done
for the party to give directives to the HMB who are fighting in the
countrysides and made them come to the city gates. The entry of
the HMB is being paved by the simultaneous and sporadic
strikes, by ultimate general strikes thru the management of the
CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases
"Victor", or was referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to
Julie telling the latter of his sympathies for other communists,
describing his experiences with Communists abroad, telling Julie
to dispose of materials that may be sent by Victor. (Exh. D-2001-
2004)
(b) "Paano Maisasagawa, etc." — mentions different groups of
labor unions of which Victor heads one group, consisting of the
MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008)
Cadres assigned to different industries. (Exh. V-40-41)
 (c) Handwritten certificate of Honofre Mangila states that he knew
Amado Hernandez as Victor from co-party members Hugo and
Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver
attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press
statement was not published in the newspapers. (Exh. C-362)
Letter was however published by Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of
Huk Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to
Soliman at Pampanga St. to bring to the latter communications
from the Communist Party. (Exh. D-1203) That Soliman was
given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be
involved with Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and
Soliman has "tendencies of careerism and tendency to want to
deal with leaders of the party"; that he should be asked to choose
to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in
going underground. (Exh. V-87) (1) His election as councilor until
December, 1951. (Exhs. V-42, W-9) (2) His election as President
of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh.
V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other
communist countries of the East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado
Hernandez. (Exh. W-116-120)
(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to
National Union of Marine Cooks and Stewards, states that labor
has one common struggle — "the liberation of all the peoples
from the chains of tyranny, fascism and imperialism". (Exh. V-
259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor.
(Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are
being persecuted, like Taruc. Tells of reward of P100,000.00 on
Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker — condemns Wall
Street maneuvers; corruption and graft in Quirino administration,
etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US
Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO — Praises
Balgos and Capadocia for joining the Huks. (Exhs. V-12-22, V-
289)
(l) "Philippine labor Demands Justice" — Attacks czars of Wall
Street and U.S. Army and Government. (Exh. V-94) .
(m) Letter to Taruc — June 28, 1948.-States solidarity among the
CLO Huks and PKM. Attacks North Atlantic Pact. Praises Mao
Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" — States of a delegation to
Roxas attacking unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" — (Exh. V-287)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-
515, W-25-26)
 (q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon".
(Exh. X-35-38)
(r) Press statement of Hernandez — opposes acceptance of
decorations from Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa,
which clothes he sent to the field. Letters show of sending of
supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he
did furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents
about Huks to Bulosan for inclusion in Bulosan's book. (Exh. FF-
1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks
and their armed forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and
Joven. (Photographs, Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and
Balgos and issued press release about their going underground.
(Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-
362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7
lessons to Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that
the Communist Party was fully organized as a party and in order to carry
out its aims and policies a established a National Congress, a Central
Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau
(OB), and National Courier or Communication Division (NCD), each body
performing functions indicated in their respective names; (2) that in a
meeting held on August 11, 1950 the SEC discussed the creation of a
Military Committee of the Party and a new GHQ, under which on
September 29, 1950 the SEC organized a special warfare division, with a
technological division; (3) that on May 5, 1950 a body known as the
National Intelligence Division was created, to gather essential military
intelligence and, in general, all information useful for the conduct of the
armed struggle (4) that a National Finance Committee was also
organized as a part of the Politburo and answerable to it; (5) that the
country was divided into 10 Recos, the 10th Reco comprising the Manila
and suburbs command; (6) that since November, 1949 the CPP had
declared the existence of a revolutionary situation and since then the
Party had gone underground and the CPP is leading the armed struggle
for national liberation, and called on the people to organize guerrillas and
coordinate with the HMB on the decisive struggle and final overthrow of
the imperialist government; (7) that in accordance with such plan the CPP
prepared plans for expansion and development not only of the Party but
also of the HMB; the expansion of the cadres from 3,600 in July 1950 to
56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000
in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to
intensify HMB military operations for political purposes. The Politburo
sanctioned the attacks made by the Huks on the anniversary of the HMB
on March 25, 1950. The HMB attacks that were reported to the PB were
those made in May, 1946; June, 1946; April 10, 1947; May 9, 1947;
August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17,
1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August
19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September
12, 1950; March 26, 1950; March 29, 1950.
The theory of the prosecution, as stated in the lower court's
decision, is as follows:
The evidence does not show that the defendants in these cases
now before this Court had taken a direct part in those raids and in
the commission of the crimes that had been committed. It is not,
however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the
defendants in these cases have cooperated, conspired and
confederated with the Communist Party in the prosecution and
successful accomplishment of the aims and purposes of the said
Party thru the organization called the CLO (Congress of Labor
Organizations).
The Court found that the CLO is independent and separate from the
CPP, organized under the same pattern as the CPP, having its own
National Congress, a Central Committee (which acts in the absence of
and in representation of the National Congress), an Executive Committee
(which acts when the National Congress and the Executive Committee
are not in session), and seven permanent Committees, namely, of
Organization, Unemployment and Public Relations, Different Strikes and
Pickets, Finance, Auditing, Legislation and Political Action. Members of
the Communist Party dominate the committees of the CLO. The
supposed tie-up between CPP and the CLO of which Hernandez was the
President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party
organ under which it operates was explained by witness Guillermo S.
Calayag, one-time ranking member of the Communist Party and the CLO
who typewrites the "Patnubay sa Education" from a handwritten draft of
Capadocia, which is one of the texts used in the Worker's institute of the
CLO. According to him, the CLO plays its role by means of propaganda,
giving monetary aid, clothing, medicine and other material forms of help
to the HMB, which constitutes the armed forces of the Communist Party.
Propaganda is done by lectures, meetings, and the organization of
committees of the educational department as well as researches at the
CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is
by allowing the Communist Party leaders to act as organizers in
the different factories in forming a union. These Party Members
help workers in the factories to agitate for the eradication of social
classes and ultimately effect the total emancipation of the working
classes thru the establishment of the so-called dictatorship of the
proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes
of the Communist Party ideology. After the right number is
secured and a union is formed under a communist leader, this
union is affiliated with the CLO and this in turn registers the same
with the Department of Labor. The orientation and indoctrination
of the masses is continued with the help of the CLO. The primary
objective of the CLO is to create what is called a revolutionary
crisis. It seeks to attain this objective by first making demands
from the employers for concessions which become more and
more unreasonable until the employers would find it difficult to
grant the same. Then a strike is declared. But the strikes are only
preparation for the ultimate attainment of the Communist goal of
armed overthrow of the government. After the workers in the
factories have already struck in general at the behest of the
Communist Party thru the CLO a critical point is reached when a
signal is given for the armed forces of the Communist Party, the
HMB, to intervene and carry the revolution now being conducted
outside to within the city.
On the basis of the above findings, the court below found Hernandez
guilty as principal of the crime charged against him and sentenced him to
suffer the penalty of reclusion perpetua with the accessories provided by
law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those
cited by the Court in its decision and by the Solicitor General in his brief,
discloses that defendant-appellant Amado V. Hernandez, as a
Communist, was an active advocate of the principles of Communism,
frequently exhorting his hearers to follow the footsteps of Taruc and join
the uprising of the laboring classes against capitalism and more
specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond the
open advocacy of Communistic Theory there appears no evidence that
he actually participated in the actual conspiracy to overthrow by force the
constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his
relation to the rebellion? If, as testified to by Guillermo S. Calayag, the
CLO plays merely the role of propagation by lectures, meetings and
organization of committees of education by Communists; if, as stated, the
CLO merely allowed Communist Party leaders to act as organizers in the
different factories, to indoctrinate the CLO members into the Communist
Party and proselytize them to the Communist ideology; if, as also
indicated by Calayag, the CLO purports to attain the ultimate overthrow of
the Government first by making demands from employers for
concessions until the employers find it difficult to grant the same, at which
time a strike is declared; if it is only after the various strikes have been
carried out and a crisis is thereby developed among the laboring class,
that the Communist forces would intervene and carry the revolution — it
is apparent that the CLO was merely a stepping stone in the preparation
of the laborers for the Communist' ultimate revolution. In other words, the
CLO had no function but that of indoctrination and preparation of the
members for the uprising that would come. It was only a preparatory
organization prior to revolution, not the revolution itself. The leader of the
CLO therefore, namely Hernandez, cannot be considered as a leader in
actual rebellion or of the actual uprising subject of the accusation.
Hernandez, as President of the CLO therefore, by his presidency and
leadership of the CLO cannot be considered as having actually risen up
in arms in rebellion against the Government of the Philippines, or taken
part in the conspiracy to commit the rebellion as charged against him in
the present case; he was merely a propagandist and indoctrinator of
Communism, he was not a Communist conspiring to commit the actual
rebellion by the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist
Party of the Philippines had declared the existence of the revolutionary
situation and since then the Party had gone underground, with the CPP
leading the struggle for national integration and that in the month of
January 1950, it was decided by the said Party to intensify the HMB
military operations for political purposes. The court implicates the
appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this
conclusion unwarranted. The seditious speeches of Hernandez took
place before November, 1949 when the CPP went underground. The
court below has not been able to point out, nor have We been able to find
among all acts attributed to Hernandez, any single fact or act of his from
which it may be inferred that he took part in the deliberations declaring
the existence of a revolutionary situation, or that he had gone
underground. As a matter of fact the prosecution's evidence is to the
effect that Hernandez refused to go underground preferring to engage in
what they consider the legal battle for the cause.
We have also looked into the different documents which have been
presented at the time of the trial and which were confiscated from the
office of the Politburo of the Communist Party. The speeches of
Hernandez were delivered before the declaration by the Communist Party
of a state of revolutionary situation in 1949. Neither was it shown that
Hernandez was a member of the Executive Committee, or of the SEC, or
of the Politburo of the Communist Party; so NO presumption can arise
that he had taken part in the accord or conspiracy declaring a revolution.
In short, there has been no evidence, direct or indirect, to relate or
connect the appellant Hernandez with the uprising or the resolution to
continue or maintain said uprising, his participation in the deliberations
leading to the uprising being inferred only from the fact that he was a
communist.
The practice among the top Communists, as declared by the trial court
appears to have been for important members, if they intend actually to
join the rebellion, to go underground, which meant leaving the city,
disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains
the directive of the SEC of September 1, 1950, to Saulo and Hernandez,
which reads:
11. In view of the new developments in the city, send out Elias
who prefers to work outside. Present problem of fighting legally to
Com. Soliman. If Soliman is prepared for martyrdom, retain him to
fight legally. If not, send him out with Elias. Same goes with Com.
Mino and other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground
and joined the underground forces outside the City, Hernandez remained
in the City, engaged in the work of propaganda, making speeches and
causing the publication of such matters as the Communist Party leaders
directed him to publish.
That Hernandez refused to go underground is a fact which is further
corroborated by the following reasons (excuses) given by him for not
going underground, namely (1) that his term of councilor of the City of
Manila was to extend to December, 1951; and (2) that he was elected
President of the CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be
involved with Nacionalista Rebels, and reported to the Politburo that
Hernandez "has tendencies of careerism, and tending to want to deal
with leaders of the Nacionalista Party instead of following CPP
organizational procedures."
The court below further found that Hernandez had been furnishing
supplies for the Huks in the field. But the very document dated December
3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the
effect that clothes and shoes that Hernandez was supposed to have sent
have not been received. It is true that some clothes had been sent thru
him to the field, but these clothes had come from a crew member of a
ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain
Niagara Duplicating machine received by Hernandez from one Rolland
Scott Bullard a crew member of the SS President Cleveland, appease
later to have been forwarded by him to the officers of the SEC or the
Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send
notes to appellant Hernandez, who in turn issued press releases for
which he found space in the local papers. His acts in this respect belong
to the category of propaganda, to which he appears to have limited his
actions as a Communist.
The acts of the appellant as thus explained and analyzed fall under the
category of acts of propaganda, but do not prove that he actually and in
fact conspired with the leaders of the Communist Party in the uprising or
in the actual rebellion, for which acts he is charged in the information.
And his refusal to go underground because of his political commitments
occasioned by his term of election as president of the CLO and the
impressions caused by his acts on the Communist leaders, to the effect
that he was in direct communication or understanding with the
Nacionalista Party to which he was affiliated, creates in Us the
reasonable doubt that it was not his Communistic leanings but his
political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to
prove beyond reasonable doubt that he has conspired in the instigation of
the rebellion for which he is held to account in this criminal case.
The question that next comes up for resolution is: Does his or anyone's
membership in the Communist Party per se render Hernandez or any
Communist guilty of conspiracy to commit rebellion under the provisions
of Article 136 of the Revised Penal Code? The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or
insurrection. — The conspiracy and proposal to commit rebellion
or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not
exceed 5,000 pesos, and by prision correccional in its medium
period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not
to be considered as a criminal act of conspiracy unless transformed or
converted into an advocacy of action. In the very nature of things, mere
advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start
an uprising or rebellion or an agreement forged to use force and violence
in an uprising of the working class to overthrow constituted authority and
seize the reins of Government itself. Unless action is actually advocated
or intended or contemplated, the Communist is a mere theorist, merely
holding belief in the supremacy of the proletariat a Communist does not
yet advocate the seizing of the reins of Government by it. As a theorist
the Communist is not yet actually considered as engaging in the criminal
field subject to punishment. Only when the Communist advocates action
and actual uprising, war or otherwise, does he become guilty of
conspiracy to commit rebellion. Borrowing the language of the Supreme
Court of the United States:
In our jurisprudence guilt is personal, and when the imposition of
punishment on a status or on conduct can only be justified by
reference to the relationship of that status or conduct to other
concededly criminal activity (here advocacy of violent overthrow),
that relationship must be sufficiently substantial to satisfy the
concept of personal guilt in order to withstand attack under the
Due Process Clause of the Fifth Amendment. Membership,
without more, in an organization engaged in illegal advocacy, it is
now said, has not heretofore been recognized by this Court to be
such a relationship. ... .
What must be met, then, is the argument that membership, even
when accompanied by the elements of knowledge and specific
intent, affords an insufficient quantum of participation in the
organization's alleged criminal activity, that is, an insufficiently
significant form of aid and encouragement to permit the
imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an
illegal organization, by that "act" alone need be doing nothing
more than signifying his assent to its purposes and activities on
one hand, and providing, on the other, only the sort of moral
encouragement which comes from the knowledge that others
believe in what the organization is doing. It may indeed be argued
that such assent and encouragement do fall short of the concrete,
practical impetus given to a criminal enterprise which is lent for
instance by a commitment on the part of the conspirator to act in
furtherance of that enterprise. A member, as distinguished from a
conspirator, may indicate his approval of a criminal enterprise by
the very fact of his membership without thereby necessarily
committing himself to further it by any act or course of conduct
whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the
propagation of improvement of conditions of labor through his
organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the
strengthening of the unity and cooperation between labor elements and
preparing them for struggle; they are not yet indoctrinated in the need of
an actual war with or against Capitalism. The appellant was a politician
and a labor leader and it is not unreasonable to suspect that his labor
activities especially in connection with the CLO and other trade unions,
were impelled and fostered by the desire to secure the labor vote to
support his political ambitions. It is doubtful whether his desire to foster
the labor union of which he was the head was impelled by an actual
desire to advance the cause of Communism, not merely to advance his
political aspirations.
Insofar as the appellant's alleged activities as a Communist are
concerned, We have not found, nor has any particular act on his part
been pointed to Us, which would indicate that he had advocated action or
the use of force in securing the ends of Communism. True it is, he had
friends among the leaders of the Communist Party, and especially the
heads of the rebellion, but this notwithstanding, evidence is wanting to
show that he ever attended their meetings, or collaborated and conspired
with said leaders in planning and encouraging the acts of rebellion, or
advancing the cause thereof. Insofar as the furnishing of the mimeograph
machine and clothes is concerned, it appears that he acted merely as an
intermediary, who passed said machine and clothes on to others. It does
not appear that he himself furnished funds or material help of his own to
the members of the rebellion or to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite
of the apparent desire of the chief of the rebellion, is clear proof of his
non-participation in the conspiracy to engage in or to foster the rebellion
or the uprising.
We next consider the question as to whether the fact that Hernandez
delivered speeches of propaganda in favor of Communism and in favor of
rebellion can be considered as a criminal act of conspiracy to commit
rebellion as defined in the law. In this respect, the mere fact of his giving
and rendering speeches favoring Communism would not make him guilty
of conspiracy, because there was no evidence that the hearers of his
speeches of propaganda then and there agreed to rise up in arms for the
purpose of obtaining the overthrow of the democratic government as
envisaged by the principles of Communism. To this effect is the following
comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos,
induciendoles a que el dia que se anunciara la subasta de
consumes se echaran a la calle para conseguir aunque fuera
preciso acudir a la fuerza el reparto entre los vecinos ricos
solamente, sera responsable de un delito de conspiracion para la
sedicion? — El Tribunal Supreme ha resuelto la negative al casar
cierta sentencia de la Audiencia de Valencia, que entendio lo
contrario: "Considerando que, con areglo a lo que dispone el art.
4. del Codigo Penal, hay conspiracion cuando dos o mas
personas se conciertan para la execution de un delito y resuelven
cmeterlo; y no constando que existiera ese concierto en cuanto a
los hechos que se refieren en la tercera pregunta del veredicto,
pues en ella solo se habla de los actos de induccion que el
procesado realizo, sin expresar el efecto que la mismo produjo
en el animo de las personas a quienes se dirigian, ni si estas
aceptaron o no lo que se las propuso, resulta evidence que faltan
los clementos integrantes de la conspiracion, etc." (Se. de 5 de
Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I,
Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete
evidence proving beyond reasonable doubt that the appellant
(Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are
constrained, in view of these circumstances, to absolve, as We hereby
absolve, the appellant Amado V. Hernandez from the crime charged, with
a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of
rebellion as charged in the information and were each sentenced to suffer
the penalty of 10 years and 1 day of prision mayor, with the accessories
provided by law, and to pay their proportionate share of the costs.
Legal Considerations. — Before proceeding to consider the appeals of
the other defendants, it is believed useful if not necessary to lay dawn the
circumstances or facts that may be determinative of their criminal
responsibility or the existence or nature thereof. To begin with, as We
have exhaustively discussed in relation to the appeal of Hernandez, we
do not believe that mere membership in the Communist Party or in the
CLO renders the member liable, either of rebellion or of conspiracy to
commit rebellion, because mere membership and nothing more merely
implies advocacy of abstract theory or principle without any action being
induced thereby; and that such advocacy becomes criminal only if it is
coupled with action or advocacy of action, namely, actual rebellion or
conspiracy to commit rebellion, or acts conducive thereto or evincing the
same.
On the other hand, membership in the HMB (Hukbalahap) implies
participation in an actual uprising or rebellion to secure, as the Huks
pretend, the liberation of the peasants and laboring class from thraldom.
By membership in the HMB, one already advocates uprising and the use
of force, and by such membership he agrees or conspires that force be
used to secure the ends of the party. Such membership, therefore, even
if there is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.
And when a Huk member, not content with his membership, does
anything to promote the ends of the rebellion like soliciting contributions,
or acting as courier, he thereby becomes guilty of conspiracy, unless he
takes to the field and joins in the rebellion or uprising, in which latter case
he commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society
commonly known as the "Katipunan", the purpose of which was to
overthrow the government by force. Each of the defendants on various
times solicited funds from the people of Mexico, Pampanga. The Court
held that the defendants were guilty of conspiracy and proposal to
commit rebellion or insurrection and not of rebellion or insurrection itself.
Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion
that the said defendants are guilty, not of inciting, setting or foot,
or assisting or engaging in rebellion, but rather of the crime of
conspiring to overthrow, put down, and destroy by force the
Government of the United States in the Philippine Islands, and
therefore we find that said defendants, and each of them, did,
together with others, in the months of February and March, 1903,
in the Province of Pampanga, Philippine Islands, conspire to
overthrow, put down, and to destroy by force the Government of
the United States in the Philippine Islands. (U.S. v. Vergara, et
al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member
of the Central Committee of the CLO member of the Central Committee
of the CPP and as such committed to the establishment of the
dictatorship of the proletariat To the same effect is the testimony of
Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the
conspiracy to commit rebellion. He should therefore be absolved of the
charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and
Executive Committee member of the CLO a communications center of
the Communist Party, having been found in possession of letters from
Federico Maclang to Salome Cruz, and solicitor of contributions for the
Huks.
Racanday admits being a member of the Executive Committee of the
CLO Editor of the Kidlat of the Government Workers Union, receiving
copies of the Titis. Calayag testified that he was a member of the Central
Committee of the Communist Party entrusted with the duty of receiving
directives of the Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before
the Communist Party went underground. We have been unable to find
the evidence upon which the court bases its conclusion that he received
contributions for the Huks. With these circumstances in mind, We are not
convinced beyond reasonable doubt that as a Communist he took part in
the conspiracy among the officials of the Communist Party to take part
and support the rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against
him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an
organized Communist branch in Pasay City, a member of the Central
Committee and Treasurer of the CLO. He admitted his membership and
his position as member of the executive committee and treasurer of the
CLO these facts being corroborated by the witness Guillermo Calayag.
His membership in the Communist Party dates as far back as the year
1945. As a communist, Genaro de la Cruz received quotas and monetary
contributions coming from the areas under his jurisdiction, and one time
he made a receipt from a member from Caloocan at the CLO
headquarters at Azcarraga signing the receipt as "Gonzalo" which is one
of his aliases. He also distributed copies of the "Titis" magazine. `
While his membership in the Communist Party plus his having received
contributions for the party indicate that he is an active member, it was not
shown that the contributions that he received from Communist Party
members were received around the year 1950 when the Central
Committee of the Communist Party had already agreed to conspire and
go underground and support the Huk rebellion. Under these
circumstances We cannot find him guilty of conspiracy to commit
rebellion because of the lack of evidence to prove his guilt beyond
reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers,
solicited contributions for the HMB and Central Committee member of the
CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made
to believe that the Party is for the welfare of the laborers. He also
admitted being a member of the Central Committee of the CLO Calayag
testified that Lumanog organized the HMB units of the Communist Party
in the Lumber Unions and attended a Communist meeting held by
Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money
collected by him to one Nicasio Pamintuan, one of the members of the
HMB Special Unit Trigger Squad) in Manila for the use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the
government, it is evident that by giving his contributions he actually
participated in the conspiracy to overthrow the government and should,
therefore, be held liable for such conspiracy, and should be sentenced
accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and
the CLO that his activities consisted in soliciting contributions, in cash
and in kind, from city residents for the use of the HMB, turning over said
collections to the Party; that he has given asylum to a wanted
Hukbalahap at his house at Juan Luna St., Gagalangin, which house was
used as Military post. The above findings of the court are fully supported
by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he
has shown sympathy with the cause by soliciting contributions for it and
had given shelter to the Huks. We feel that the court was fully justified in
finding him guilty, but We hold that he should be declared liable merely
as a co-conspirator in the crime of conspiracy to commit rebellion, and
should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having
admitted membership in the Communist Party since 1945; that his duties
as a Communist was to help in the office of the National Finance
Committee, assorting papers and written documents; that sometimes he
accompanied the purchaser of medicines, shoes, papers, foodstuffs and
clothing to be given to the Huks; that he is a member of the
Communication Division of the CPP in Manila, in charge of distribution of
letters or communications; that he admits having written to Salome Cruz,
courier of the Communist Party, when he asked for his necessities, such
as money and shoes, etc.
The facts found by the court are sufficiently supported by the
communications and evidence submitted by the prosecution. The exhibits
show that he was in constant communication with the communists;
serving them as courier. His oath as a member of the Communist Party
was submitted in court and in it he admits obedience to all orders of the
Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the
constituted Government and that Bayani Espiritu was in constant
communication with the Communist Party and served it as courier, We
believe that the court was fully justified in finding him guilty. However, We
believe that not having actually taken up arms in the uprising he may only
be declared guilty of conspiracy to commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938
in San Luis, Pampanga, under Casto Alejandrino, who later became her
common-law husband; that her aliases are "Estrella" and "Star"; that she
was found in possession of various documents written to top Communists
like Alejandrino, Lava and Romy, as well as a letter from Taruc
congratulating her for the delivers, of a son.
Jose Taguiang testified that she was a member of the Provincial
Committee of the CPP in Nueva Ecija, later Chairman of the Finance
Department, and then promoted to Finance Officer of the Central Luzon
Committee. Alicia Vergara, a Huk courier, testified that she delivered
letter from the mountains to Teopista Valerie, who was in turn also a
courier.
Without considering the close relationship that she had with top
Communist Casto Alejandrino, We are satisfied that she herself was,
aside from being a Huk courier, also a Huk, a member of the HMB from
1942 to 1951. As she was a Communist and at the same time a member
of the HMB, and considering that the HMB was engaged in an uprising to
uproot the legitimate government, there cannot be any question that she
was in conspiracy with the other members of her Party against the
constituted government. We hold, therefore, that the evidence proves
beyond reasonable doubt that she is guilty of conspiracy to commit
rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo
Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was
dismissed because they have not been apprehended at the time of the
trial.
not in force at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act punishes
participation or membership in an organization committed to overthrow
the duly constituted Government, a crime district from that of actual
rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025)
defendants-appellants Amado V. Hernandez, Juan J. Cruz, Amado
Racanday and Genaro de la Cruz are absolved from the charges
contained in the information, with their proportionate share of the costs de
oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas in
Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-
appellants Bayani Espiritu and Teopista Valerio in Criminal Case No.
15479 (G.R. No. L-6026) are hereby found guilty of the crime of
conspiracy to commit rebellion, as defined and punished in Article 136 of
the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-
one days of prision correccional, and to pay a fine of P5,000.00, with
subsidiary imprisonment in case of insolvency and to pay their
proportional share of the costs. So ordered.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND

REPUBLIC ACT NO. 1700, DISTINGUISHED

In the case at bar the prosecution is for actual rebellion which consists in
rising publicly and taking aims against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory
of the Philippines, or any part thereof, etc., a crime defined in Article 134
of the Revised Penal Code; whereas Evangelista was charged and
convicted for inciting to rebellion under Art. 138, Revised Penal Code
(formerly Sec. 2, Act No. 292). As the specific charge against appellants
is that of rising up in arms in actual rebellion against the Government,
they cannot be held guilty of inciting the people to arms under Article 138,
which is a different offense.

On the other hand, Rep. Act 1700, known as the Anti-subversion Act,
which penalizes membership in any organization or association
committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was