US V.

CARLOS

FACTS:

Mr Carlos stole about 2273 kilowatts of electricity worth 909 pesos from Meralco. The
court issued warrant for arrest. Mr. Carlos demurred and refused to enter a plea. He
claimed that what he did failed to constitute an offense. His counsel further asserted
that the crime of larceny applied only to tangibles, chattels and objects that can be
taken into possession and spirited away.

Deliberation quickly followed at the court which subsequently sentenced him to over a
year in jail. Mr. Carlos contested saying that electrical energy can’t be stolen (how can
one steal an incorporeal thing?). He filed an appeal on such grounds and the court of
first instance affirmed the decision. The case reached the supreme court.

ISSUE:

Whether or not larceny can be committed against an intangible such as electricity.

HELD:

Yes, larceny of incorporeal objects is possible. The right of ownership of electrical

current was secured by
Art 517 and 518 of the Penal Code which applies to gas.

Analogically, electricity can be considered as ‘gas’ which can be stolen. However, the
true test of what constitutes the proper subject of larceny is not whether the subject is
corporeal or incorporeal, but whether is is capable of appropriation by another other
than the owner. It is a valuable article of merchandise, a force of nature brought under
the control of science. Mr. Carlos secretly and with intent to deprive the company of its
rightful property, used jumper cables to appropriate the same for his own use. This
constitutes larceny.

People v. Luisito Bustinera

G. R. No. 148233. June 8, 2004
FACTS:

ESC Transport hired Luisito Bustinera as a taxi driver. It was agreed that appellant would drive the taxi from 6:00 a.m.
to 11:00 p.m., after which he would return it to ESC Transport's garage and remit the boundary fee in the amount of
P780.00 per day. On December 25,1996, appellant admittedly reported for work and drove the taxi, but he did not
return it on the same day as he was supposed to. The owner of ESC reported the taxi stolen. On January 9, 1997,
Bustinera's wife went to ESC Transport and revealed that the taxi had been abandoned. ESC was able to recovered.
The trial court found him guilty beyond reasonable doubt of qualified theft.

HELD:

Bustinera was convicted of qualified theft under Article 310 of the Revised Penal Code, as amended for the unlawful
taking of a motor vehicle. However, Article 310 has been modified, with respect to certain vehicles, by Republic Act
No. 6539, as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING CARNAPPING. "When
statutes are in pari materia or when they relate to the same person or thing, or to the same class of persons or things,
or cover the same specific or particular subject matter, or have the same purpose or object, the rule dictates that they
should be construed together. The elements of the crime of theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. Theft is qualified
when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is
committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle;
(4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish
taken from a fish pond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil disturbance. On the other hand, Section 2 of
Republic Act No.6539, as amended defines "car napping" as "the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by
using force upon things." The elements of car napping are thus: (1) the taking of a motor vehicle which belongs to
another; (2) the taking is without the consent of the owner or by means of violence against or intimidation of persons
or by using force upon things; and (3) the taking is done with intent to gain. Car napping is essentially the robbery or
theft of a motorized vehicle, the concept of unlawful taking in theft, robbery and car napping being the same. From
the foregoing, since appellant is being accused of the unlawful taking of a Daewoo sedan, it is the anti-car napping
law and not the provisions of qualified theft which would apply

77 Phil. 1018

BENGZON, J.:
For having discharged a gun and accidentally killed Eugenio Francisco, the
defendant Bienvenido Nocum, alias Bembe, was tried in the Court of First
Instance of Manila, before the Honorable Alfonso Felix, judge. Found guilty
of homicide through reckless negligence, he appealed in due course.
According to the evidence, about 9 o'clock in the evening of November 21,
1945, there was a fistic fight between Federico Bautista and Vicente
Aurencio at the corner of Mayhaligue and Magdalena Streets, City of
Manila. Desiring to stop the encounter, defendant shouted at the
combatants. As these paid him no attention, he drew a .45 caliber pistol and
shot twice in the air. The bout continued, however; so he fired another shot
at the ground, but unfortunately the bullet ricocheted and hit Eugenio
Francisco, an innocent by-stander, resident of the place. The wounded man
was promptly carried to the St. Luke's Hospital where he expired soon after.
The above paragraph is a composite and abridged statement of the
declarations of several witnesses (Jesus Santos, Vicente and Juan Aurencio
and Ramon Gagui) in connection with defendant's confession Exhibit
F.[1] But his attorney, assailing the validity of said confession on the ground
of involuntariness, contends in this Court that inasmuch as the corpus
delicti had not been demonstrated by evidence dehors that document, his
client should be absolved, pursuant to several pertinent decisions. (United
States vs. De la Cruz, 2 Phil., 148; and People vs. Bantagan, 54 Phil., 834.)
Particular attention has been given to these points. Yet there is competent
proof establishing the fact that, during the affray, pistol detonations were
heard, and that one of the bullets produced the tragic death of Eugenio
Francisco, whose photograph is Exhibit B. That is proof of the corpus
delicti, i. e., proof of violent death, whether or not feloniously caused. (See
Moran, Law of Evidence, Revised Edition, pp. 108, 109; People vs. Mones,
58 Phil., 46.) The confession Exhibit F served to identify the person who
fired those shots and committed the offense.
We feel no inclination to reject such confession, because the
uncorroborated and implausible testimony of the accused, alleging he had
been manhandled before signing this document, about which he knew
nothing, could not definitely overcome the positive assertions of Pablo
Montilla of the Manila Police Department (before whom Exhibit F had been
executed) that no force or intimidation had been employed on Nocum, who
willingly signed it "after propounding to him all the questions and
explaining to him the contents" thereof. The impartiality of that officer of
the law has not been shaken by the lone testimony of herein appellant,
which, as explained in the People's brief, deserves no credence. Nocum said
in court that he signed Exhibit F when Montilla told him "it was simply a
proof that they arrested me" (p. 27, t. s. n.). This is inconsistent with the
alleged third-degree methods. If he was forced, deceit was unnecessary.
And yet, he could not be deceived thusly, because he was no illiterate, being
seventh grader.
Anyway, the trial judge had the chance to see the opposing witnesses, and
to observe their demeanor on the stand; and in the conflict of their
statements we will not interfere with his judgment, unless the record
discloses some important circumstance which was overlooked, (United
States vs. Remigio, 37 Phil., 599; United States vs. Maralit, 36 Phil., 155), it
being the peculiar province of trial courts to resolve questions relating to
the credibility of witness. (United States vs. Pico, 15 Phil., 549.).
The mishap should be classed as homicide through reckless imprudence,
the slaying having ibeen unintentional (cf. People vs. Sara, 55 Phil., 939;
and United States vs. Reodique, 32 Phil., 458). It is apparent the defendant
wilfully discharged his gun for which he exhibited no license, by the way
without taking the precautions demanded by the circumstance that the
district was populated, and the likelihood that his bullet would glance over
the hard pavement of the Manila thoroughfare.
A landowner surprised a youngster in the act of stealing some fruit in his
orchard. To scare the intruder he fired a shotgun aiming at the foliage of a
cherry tree. The shot scattered and a pellet injured the boy, who was
standing under the tree. That was reckless negligence, the Spanish Supreme
Court decided. (Sent., June 20, 1900, Viada, 5th ed., Vol. 7, p. 14.)
The penalty imposed on the appellant is 2 months and 1 day to 1 year and 1
day, indemnity of P2,000 with subsidiary imprisonment, and costs. It is
within the limits authorized by law. (Article 365, Rev. Penal Code, and Act
No. 4103.) (Act No. 284.)
Wherefore, the appealed judgment is affirmed, with costs against appellant.
Moran, C.J., Feria, Pablo, Hilado, Briones, Hontiveros,
Padilla, and Tuason, JJ., concur.

[1]Nocum said: "In my efforts to pacify them I shouted at them to quit fighting but they
did not give heed. I then took hold of my .45 caliber pistol and fired two shots into the
air, but still they continued fighting. I then fired another more shot into the ground,
without any intention of hitting anybody, but accidentally it hit Eugenio Francisco who
was standing on the other side of the street." (Exhibit F.)

DISSENTING
PERFECTO, J., with whom concurs PARAS, J.:
Appellant is indicted for homicide committed on November 21, 1945, which
caused the death of Eugenio Francisco. The lower court sentenced him to
from two months and one day of arresto mayor to one year and one day of
prision correccional, to indemnify the heirs of Eugenio Francisco in the
sum of P2,000 and to suffer the corresponding subsidiary imprisonment in
case of insolvency, and to pay the costs.
The lower court found appellant guilty of homicide through reckless
imprudence, upon the prosecution's theory, stated in the appealed decision
as follows: "On November 21, 1945, at about 9 o'clock in the evening, and at
the corner of Mayhaligue and Magdalena Streets in the District of Sta. Cruz
of this City of Manila, a quarrel developed between Vicente Aurencio and
Federico Bautista in which other gangsters intervened. On that occasion
defendant Bienvenido Nocum, one of the members of the gang, desiring to
stop the fight, shouted at the combatants in vain; so he decided to discharge
his revolver twice in the air, but seeing that even this recourse was not
taken heed of by his quarrelling friends, he fired another shot to the ground
which unfortunately ricocheted and hit a passer-by named Eugenio
Francisco. The wounded man was taken to the hospital where he expired
soon after his arrival therein."
These pronouncements of the lower court are not supported by the
evidence. They are based on fantasy.
The prosecution called five witnesses to testify and presented two exhibits
as evidence.
Pablo Montilla has no personal knowledge of the incident, because he
arrived at the place about thirty minutes after the incident was over. His
testimony, notwithstanding, tends to show alleged admissions of appellant
during the investigation and about the voluntariness of appellant's written
statement Exhibit F. Jesus Santos, another police officer, has no personal
knowledge as to how the deceased Eugenio Francisco was shot, because
when he arrived at the place he saw the deceased being held and attended
inside the store where the witness was told that somebody was shot. Ramon
Gagui, testified that he never had seen Bienvenido Nocum, although he was
present during the incident in which Federico Bautista and Vicente
Aurencio had been fighting and he heard shots during the fight. Vicente
Aurencio and Juan Aurencio did not testify anything against Nocum. They
have not seen him at the place of the incident. They do not know him. The
two exhibits of the prosecution which were admitted are Exhibit B, which is
a photograph of the deceased, and Exhibit F, which is the written statement
attributed to appellant.
Appellant, a laborer, 22 years of age, sixth grade, testified that he had never
seen the deceased and denied having been at the place of the incident on
November 21, 1945, because at that time he was in the province where he
had been since September. When he signed Exhibit F, he was not asked by
Pablo Montilla questions regarding the killing of Eugenio Francisco.
Appellant did not see Exhibit F being typewritten. He denied having been
asked by Montilla the questions appearing in the statement and having
given the answer attributed to him. He never possessed any revolver, be it
.45 caliber or any other caliber. Exhibit F was not read or translated in
Tagalog to the appellant, who was told to sign it simply as a proof that he
was arrested. Appellant was not given opportunity to read the document.
"This statement was rolled in such a way that I could not see the contents;
and before I was asked to sign it the policeman hurt me," pointing to Pablo
Montilla as the one who hurt him. Explaining why he appeared in court
wearing a torn dress, appellant said: "Because when he boxed me in the
stomach I turned towards the right, and he held me by the right arm." The
witness was wearing the same suit when he was compelled to sign Exhibit
F. "Afterwards two of his companions arrived, bringing pieces of wet cloth.
They tied them in my neck and, after tying them, they folded their sides and
I did not know what happened to me afterwards," tkat is, the witness
became unconscious "and I fell to the ground." Only after the lapse of some
time, when appellant recovered consciousness, when he was made to sign
Exhibit F. Exhibit F appears to have been signed on March 12, 1946, nearly
four months after the shooting of Eugenio Francisco, and about one month
after appellant had been arrested on February 14, 1946.
Appellant's testimony as to the torture he underwent before he was made to
sign Exhibit F has never been rebutted by the prosecution. Although police
officer Pablo Montilla was present in the court room at the time appellant
testified as to his torture, so much so that he pointed to Montilla as one of
the three police officers who boxed him and tortured him with wet cloth,
until the accused lost consciousness and fell down, said Montilla did not
dare to contradict appellant's testimony. The testimony remains
unchallenged and should be given its full value.
We are not willing to lend our support to a sentence convicting a man of a
crime and sending him to prison upon the involuntary evidence of an
alleged confession extracted from him by torture. It would simply be
iniquitous. All words of condemnation against the third degree methods are
not enough to paint in all its ugliness the practice compelling a person to
sign an involuntary confession through physical sufferings. We should
eradicate completely, once and for all, all traces which symbolize the
kempei methods at Fort Santiago, zoning camps, and other torture
chambers operated by the sadistic Nippon regime.
The second paragraph of the majority opinion, wherein it appears that
appellant fired the bullet which ricocheted and hit Eugenio Francisco, is
represented by the majority as a composite and abridged statement of the
declarations of witnesses Jesus Santos, Vicente Aurencio, Juan Aurencio,
and Ramon Gagui. We regret to disagree. There is absolutely nothing in the
declarations of said persons to show that appellant was present in the place
where the incident took place, much less that he fired any shot at all. It
seems to us beyond all understanding how the majority were able to read in
the declarations of said witnesses what no one will be able to find therein.
No one should be convicted on what can be imagined appearing in the
testimonies of witnesses but which, as a matter of fact, does not appear in
them. An accused must be convicted on the strength of actual evidence;
never on the hazy creatures of our imagination. We have read and re-read
the declarations of the four witnesses mentioned in the majority decision,
but we were unable to find any support to the majority position. No one
even mentioned the name of appellant Nocum and, as to Vicente Aurencio,
Juan Aurencio and Ramon Gagui, notwithstanding the leading questions
propounded by the fiscal, they stated categorically that they had not seen
Bienvenido Nocum and that they do not even know him.
Vicente Aurencio testified:
"Q. El acusado Bienvenido Nocum estaba alli en aquella ocasion? A. No
estaba alli; no le conozco. Con mayor razon no estaba. No le conozco a ese."
Juan Aurencio testified equally that "no recuerdo que este acusado Nocum
fuera compañero de ellos." Asked if he knows Bienvenido Nocum, he
answered "No señor." Asked if he saw him on the occasion of the incident
he answered, "No, señor." Concerning the shots fired, he said: "Yo oi una
detonacion pero no se quien disparo."
In the whole testimony of Jesus Santos there is absolutely no mention of
Nocum.
As to the alleged confession Exhibit F of appellant, because appellant
testified that he was told "that it was simply a proof that they arrested me,"
the majority would not believe that appellant's signature in the document
was obtained by third degree methods, upon the novel theory of
inconsistency of deceit and force or torture as means to extract involuntary
confessions or admissions. Such naive proposition shows lack of sense of
reality. There is absolutely no incompatibility in the use of deceit and
torture to secure involuntary admissions or confessions. As a matter of fact
they are complementary, and in many cases they have been simultaneously
used.
The majority do not accept that appellant could have been deceived,
"because he was no illiterate, being a seventh grader." In the first place,
appellant finished only the sixth grade. In the second place, literacy has
never been an absolute guarantee against deceit. There is no kind, grade or
measure of culture which can be considered absolutely deceit-proof.
We vote to reverse the appealed decision and for the acquittal of appellant.

381 Phil. 315

GONZAGA-REYES, J.:
On the 3rd day of September 1992 at around 2:20 p.m. the passengers of a Philippine
Rabbit Bus travelling on the North Expressway on its way to Manila were victimized in a
hold-up committed by four men who boarded the bus as it was approaching the Tabang
tollgate. A policeman who was a passenger in the bus shot one of the holduppers. The
policeman was shot in turn by another holdupper; the policeman died.

On September 24, 1992, the following information was filed against Daniel Mendoza
Cerbito alias "Daniel", Vicente Mendoza Acedera, Jimboy Cerbito Morales alias
"Emboy", and John Doe, all of Laoang, Northern Samar, for violation of P.D. 532
(otherwise known as the Anti-Highway Robbery Act):

"The undersigned Asst. Provincial Prosecutor accuses Daniel Mendoza

Cerbito alias "Daniel", Vicente Mendoza Acedera, Jimboy Cerbito Morales
alias "Emboy" and John Doe, whose identity is still unknown of violation of
P. D. 532, otherwise known as the Anti-Highway Robbery Act, committed
as follows:
That on or about the 3rd day of September, 1992, in the municipality of
Guiguinto, province of Bulacan, Philippines, along the North expressway,
and within the jurisdiction of this Honorable Court, the above-named
accused, armed with firearms and bladed weapons, conspiring,
confederating together and helping one another, did then and there
wilfully, unlawfully and feloniously, with force employed on and
intimidation of persons and with intent of gain, rob, take and carry away
with them money, pieces of jewelry and other personal belongings
amounting to more or less P20,000.00, to the damage and prejudice of the
passengers of the Philippine Rabbit Bus No. 1271 in the aforesaid amount.
Contrary to law."[1]
On March 26, 1993 another information for homicide was filed against the same four
accused as follows:

"The undersigned Asst. Provincial Prosecutor accuses Daniel Mendoza

Cerbito alias "Daniel", Vicente Mendoza Acedera, Jimboy Cerbito Morales
alias "Emboy" and John Doe, whose identity is still unknown of the crime of
homicide, penalized under the provisions of Art. 249 of the Revised Penal
Code, committed as follows:
That on or about the 3rd day of September, 1992, in the municipality of
Guiguinto, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with firearms and
bladed weapons and with intent to kill one Pat. Edgar Ponce y Bato,
conspiring and confederating together and mutually helping one another,
did then and there wilfully, unlawfully and feloniously attack, assault, and
shoot with the said firearms the said Pat. Edgar Ponce y Bato, hitting the
latter on his neck, thereby inflicting on him serious physical injuries which
directly caused his death.
Contrary to law."[2]
The accused pleaded not guilty to the two offenses charged. The two cases were
consolidated for joint trial.

Two passengers of the bus were presented by the prosecution; their testimonies were
summarized by the trial court as follows:

"Concordia Ramilo Pagdanganan testified: On September 3, 1992, 2 p.m.,

she was on aboard the Philippine Rabbit Bus No. 1271. She came from Brgy.
San Jose, Calumpit, Bulacan on her way home to Manila. While she was on
board the bus at about 2:20 p.m. four men, namely: Daniel Cerbito, Vicente
Acedera, a small person about sixteen years old, and Jimboy boarded the
bus at Eurobake. At Tabang Plaza, Daniel Cerbito (he was at the last row of
the bus) announced a hold-up. There was a policeman between them
(Concordia Pagdanganan), the holdupper, the policeman, he is at her side
and another man at back of the driver, he announced a hold-up and the
policeman stood up and he shot Vicente Acedera at her (Concordia
Pagdanganan's) back. Vicente Acedera could not stand up anymore but the
policeman tried to lie down beside her because there is another holdupper
Jimboy beside him standing up but Daniel Cerbito took the money of that
student Magsakay of Malolos, a student of PMI, and a Seiko watch and
P40.00. Jimboy shot the policeman. The policeman was seated at the right
seat, at the same row as Concordia Pagdanganan. Jimboy was beside this
policeman. Aside from her, an old man (she does not know him) was seated
behind the driver. The two of them (Concordia Pagdanganan and the old
man) were seated beside the driver. The policeman Edgar Ponce shot
Vicente Acedera at her (Concordia's) back. Vicente Acedera was hit at the
stomach. (She identified Vicente Acedera in open Court).

Then Jimboy shot the policeman but Concordia Pagdanganan was not able
to see whether the policeman was hit or not. All she knows is that the
policeman died after they took the wallet. When the policeman slumped
near her legs, he just lied down and was looking upward. Then Daniel
Cerbito went near the policeman and got his revolver, the wallet and the
police badge (chapa) and then he shot the policeman on the head and the
latter died there. (She identified Daniel Cerbito in open Court). After Daniel
Cerbito shot the policeman, the latter died. After the policeman died, he
took the .38 caliber, the money and the police badge. After divesting the
policeman of the revolver, money and his watch, they (accused) took the
money from the other passengers (almost 50 of them) who were aboard the
bus. They did not take anything from her because Jimboy asked her, "Do
you have any money, Manang?" She said, "No, I don't have any."
Afterwards, Jimboy just put the gun at the head of the driver. She knows
some of the passengers who were divested of money, namely Magsakay,
student of PMI and one friend of Magsakay. At the time the other
passengers were divested of their cash and belongings, Vicente Acedera was
not at the front seat of the driver because he was already hit on the stomach
and complaining of pain. The fiscal asked her where was Daniel Cerbito
positioned then when these other co-passengers were being divested. She
replied Jimboy was inside the bus taking money from other passengers
together with the small sixteen years old boy.

After these accused divested her co-passengers of their cash and

belongings, Jimboy pointed the gun to the driver and Vicente Acedera was
also near him was seated at the right side of the driver, while Cerbito was
divesting all passengers. Then he took the jacket from one of the passengers
(who was a security guard from San Fernando) and put it on Vicente
Acedera. Then the accused stopped at the Malinta Exit and they alighted
there. The bus stopped at the Malinta Exit because they (accused) ordered
the driver to stop the vehicle at Malinta Exit to let them disembark. This
incident was reported to the police station. She gave a statement to the
police. She was shown a statement consisting of 2 pages dated September
16, 1992 and was asked whether this is the same statement she gave to the
police authority. She replied in the affirmative. (The statement consisting of
2 pages was marked as Exh. A, the second page as Exh. A-1). She identified
her signature over the typewritten name Gng. Concordia Pagdanganan (the
same was marked as Exh. A-2). She was able to identify these 2 persons
because she was looking at them through the mirror. After the hold-up, she
saw them again when they were looking for Vicente Acedera when she was
asked to identify them at the NBI. (TSN, February 10, 1993, pp. 4-9, 11-15).

She identify the accused Daniel Cerbito in open Court. When asked as to
the participation of Daniel Cerbito, she replied during that time, he was the
leader of the robbery holdup last September 2, 1992 at 2:20 p.m. as the
leader, he was the one who took the gun from Eduardo Ponce. Daniel
Cerbito shot Edgar Ponce. (She identified the accused Vicente Acedera and
Jimboy Cerbito in open court. (TSN, January 25, 1994).

On cross-examination, she testified: After this incident, she was not

approached by the relatives of the victim to testify in this case. The persons
who came to her were the police of San Juan and the NBI. On the date of
the incident, she was then on board a Philippine Rabbit bus bound for
Manila. While approaching the Tabang tollgate, 4 persons boarded the bus.
She was sitting on the left side of the bus just behind the driver's seat. Then
the 4 persons who boarded the bus spread themselves inside the bus.
Defense counsel asked her being in front settled in the bus, how would she
notice that all of these persons seated at their respective places in the bus.
She replied that there is a big mirror in front of the bus so a person can see
every one who will board the bus from head to foot. She will be able to see
all persons who boarded the bus from head to foot. She was able to see the
feet of these 4 persons. They were wearing rubber shoes. When asked as to
what are the colors, she replied the other one is flesh-colored; the other one
is white and they have a 16 year old companion wearing slippers. Vicente
Acedera (the one who was injured) was wearing the flesh colored shoes.
After boarded the bus, Daniel Cerbito announced the hold-up together with
the 16 year old boy. (TSN, December 10, 1993, pp. 2-6).

She knows the relatives of the deceased (one of whom is the brother of E.
Ponce who is in court) but they did not ask her to testify against the
accused. When asked by the court whether she testified (her) even before
she met that person, she replied that she testified there in the NBI. Defense
counsel asked her whether she did not even talk to the relatives of the
deceased before testifying in the NBI. She replied that she was not the one
who talked to them, it was the NBI. She was able to talk to the relatives (of
E. Ponce) when they were together but they (the relatives) did not request
her to testify, but the NBI requested her to testify. (TSN, January 25, 1994,
pp. 6, 7).

Amor Magsakay testified: On September 3, 1992, 2 p. m., he was riding on a

bus. He boarded the Philippine Rabbit Bus waiting shade at the crossing of
Malolos, Bulacan. When he boarded the bus, there were other passengers
inside that bus. An usual incident happened while the bus was cruising
along the North Diversion Road on September 3, 1992. He was on his way
to Avenida, Manila. While he was inside the bus, somebody shouted "This is
a hold-up" and then there was a commotion inside the bus. Then they
started getting all their (A. Magsakay's and other passenger) watches and
money and they (A. Magsakay and other passengers) did not know that
there was a policeman in front. Four persons announced that hold-up
inside the bus. He was able to know the names of the accused. (He
identified the 3 accused Daniel Cerbito, Vicente Acedera and Jim Morales)
although 4 persons announced the hold up inside the bus. A. Magsakay did
not know what happened to the other one. When these 4 persons
announced the hold up inside the bus, they were armed with guns and 26
balisong. Daniel Cerbito was holding a gun. When asked as to the caliber of
the firearm used by D. Cerbito, he replied that it was a paltik. He knew that
it was a paltik because D. Cerbito pointed the gun at him and he (D.
Cerbito) asked for his (Amor's) money and his watch. It was a revolver. His
Seiko 5 watch (given by his father) and P40.00 were taken from him.

At the time the hold up was announced, Vicente Acedera was holding a
revolver. While the hold up was in progress aboard the bus, Vicente
Acedera did not do anything to him (A. Magsakay) but he was in front of
the bus getting the money of the passengers. At that time, Jimboy Morales
was holding a balisong knife. While the hold-up was in progress on board
that bus, J. Morales was getting the money of the passengers, the same
thing that the 2 others were doing. Daniel Cerbito shot the policeman (who
was on board also) because the latter bought with the robbers when he
knew that there was a hold-up; the policeman stood up and shot one of the
robbers. A. Magsakay does not know the name of the person who was shot.
Then the policeman was shot. After the shoot out, the robbers went down at
the Meycauayan exit. A. Magsakay and his co-passengers did not do
anything. A. Magsakay was investigated by the police and he gave a written
statement. The policeman who was shot died. (TSN, August 17, 1994, pp. 3-
14).

On cross-examination he testified: When he first heard the shot, he

instinctively hid himself among the passengers for reasons of safety with
his face towards the floor of the bus. After the first shot, he was not able to
see anymore what happened because his face was towards the floor of the
bus. When asked by the court as to how did he know as to who shot the
policeman, he replied after the 2 shots, he raised his head and saw that it
was one of the robbers who shot the policeman. It was only after the second
shot which he witnessed. The court asked him if the at the first shot, he saw
the policeman who was shot by one of the robbers and he (Amor) bowed his
head. He replied in the affirmative. He looked up when he saw the robbers
shot the policeman. He cannot remember the plate number of the
Philippine Rabbit bus. (Ibid, pp. 14-16).[3]
The accused raised the defense of denial and alibi. Daniel Cerbito testified that he was in
Northern Samar attending the town fiesta in Marubay, Laoang on the date in question.
Jimboy Cerbito Morales declared that he was in his hometown at Candawit, Laoang,
Northern Samar where he farmed copra as a source of livelihood and where he was
arrested on March 19, 1993. Vicente Acedera claimed that he was at his brother's house
at 1-C Calamansi St. corner Luzon Ave., Quezon City on September 3, 1992, and that he
sustained the gunshot wound as he was walking through a street going to the house of
his cousin in Navotas.

The trial court held that the evidence presented by the accused was not sufficient to
refute the evidence presented by the prosecution. It found the accused guilty in the two
cases, as follows:

"WHEREFORE, in view of the foregoing, judgment is hereby rendered as

follows in Criminal Case Nos. 1941-M-92 and 569-M-93:

1. finding the accused DANIEL MENDOZA CERBITO, VICENTE

MENDOZA ACEDERA and JIMBOY MORALES GUILTY beyond
reasonable doubt of the crime of robbery with homicide penalized
under P. D. 532 (otherwise known as the Anti-Highway Robbery Law)
and are hereby sentenced to suffer the penalty of reclusion perpetua;
 2. ordering accused Daniel Mendoza Cerbito, Vicente Mendoza Acedera
and Jimboy Cerbito Morales to pay jointly and severally the following
amount:

a) to the heirs of the victim Pat. Edgar Ponce:

P 50,000.00 - for the life of the victim
50,000.00 - for moral damages
- for actual damages (based on Schedule I
19,000.00 and supported by Exhibit C for the
prosecution)
- for reasonable living allowance of victim
936,000.00 Pat. Edgar Ponce (50% of P1,872.000.00 of
Schedule II)
P1,055,000.00 TOTAL AMOUNT TO BE PAID
b) P 40,000.00 to private complainant Amor Magsakay

with 6% interest on all amounts due from the filing of the information of
Criminal Case Nos. 1941-M-92 on September 24, 1992."
The accused appealed to the Court on a lone assignment of error, namely:

"THE COURT OF ORIGIN HAS COMMITED AN ERROR IN CONVICTING

ACCUSED-APPELLANTS DANIEL MENDOZA CERBITO, VICENTE
MENDOZA ACEDERA AND JIMBOY CERBITO MORALES FOR
ALLEGEDLY VIOLATING PRESIDENTIAL DECREE NO. 532 (ANTI-
HIGHWAY ROBBERYLAW)"[4]
In a seven-page memorandum, the Public Attorney's Office pleads that the accused
should be absolved on the ground of reasonable doubt. The defense of alibi should have
been given credence because it was physically impossible for them to be at the scene of
the crime (North Expressway) on September 3, 1992 as they were several miles away:

"xxx during the alleged highway robbery on September 3, 1992 accused-

appellants Daniel Mendoza Cerbito and Jimboy Cerbito Morales were in
Laoang, Northern Samar. Daniel Mendoza was there in Samar and
attended a fiesta (Page 05, Decision, Ibid.) And this fact (and truth) was
corroborated by his better half (or spouse) in the person of Felisa Castro-
Cerbito; by former barangay captain Nilo Sacaquing of Marubay, Laoang,
Northern Samar; and by one Romeo Incinares. (Pages 06-07, 10 and 17,
Decision, Ibid). In the same conduit, Jimboy Cerbito Morales was also there
in Northern Samar on the particular date. Like Daniel Mendoza Cerbito, he
(Jimboy Morales) also attended the said fiesta as confirmed by defense
witness Nilo Sacaquing (Page 07, Decision, Ibid.) And defense witness
Adelaida Balang likewise supported the fact that Jimboy Morales was in
Samar at that point in time. (Pages 13-14 and 17, Decision, ibid.)

Regarding accused-appellant Vicente Mendoza Acedera, he was in the

residence of his brother located at 1-c Calamansi Street corner Luzon
Avenue, Quezon City on the alleged date of higway robbery. (Page 12,
Decision, ibid.)"[5]
The Solicitor General seeks an affirmance of the conviction but recommends a
modification of the penalty. The appellee's brief points out that the defense of alibi must
fail as against the positive identification of the two prosecution witnesses, and in view of
the presence of conspiracy as proven by the circumstances attending the robbery, each
of the appellants incurred the same civil liability and should suffer a uniform penalty. As
the two were charged with two separate informations, one for highway robbery under P.
D. 532, and the other for homicide, they should be convicted for two separate crimes.

The evidence of the prosecution has established the guilt of the three accused beyond
reasonable doubt.

The testimonies of the two passengers who witnessed the robbery and the homicide,
namely Concordia Pagdanganan[6] and Amor Magsakay[7] who identified all three
accused-appellants in court[8] are of vital if not decisive value.

Concordia Pagdanganan was on board the Philippine Rabbit Bus Number 1271 on her
way home from Calumpit, Bulacan to her home in Manila. She was seated at the back of
the driver in the same row as Patrolman Edgar Ponce. The three accused-appellants,
together with a 16-year old boy boarded the bus as it was approaching the Tabang
tollgate. She saw the four men because there was a big mirror in front of the bus,
through which one can see everyone who will board the bus from head to foot. At
Tabang Plaza, Daniel Cerbito, who had seated himself in the last row of the bus,
announced a hold-up. Policeman Ponce stood up and shot Vicente Acedera hitting him
in the stomach. Vicente Acedera could not stand up anymore. Jimboy Morales, who was
seated beside Ponce shot the latter, but she was not able to see whether Ponce was hit or
not. Ponce slumped beside her legs, and as he was lying down, Daniel Cerbito
approached and shot Ponce in the head after getting the latter's revolver, wallet and
police "chapa". Jimboy Morales together with the 16-year old boy, divested the other
passengers of their cash and belongings; there were almost fifty passengers in the bus.
Among the victims were Magsakay, a student of PMI and his friend. Magsakay was
divested of his watch and P40.00 by Daniel Cerbito. Nothing was taken from Concordia
because Jimboy asked her if she had any money and she answered she had none.
Cerbito took the jacket of one of the passengers, who was a security guard from San
Fernando, and put it on Vicente Acedera. Afterwards, the accused-appellants ordered
the driver to stop the bus at Malinta exit where they disembarked.[9] On cross-
examination, Concordia testified that when the four persons boarded the bus they
spread themselves inside the bus. She noted that one of the four, Vicente Acedera, wore
flesh-colored rubbers shoes, the other two accused-appellants wore white rubbers shoes,
and the 16-year old companion wore slippers.[10]

Another eyewitness, Amor Magsakay, was presented by the prosecution. He testified

that the accused-appellants were armed. Cerbito carried a paltik; pointed the gun at him
and took his Seiko 5 watch and money (P40.00). Acedera was also carrying a revolver,
and was in front of the bus getting the money of the passengers. Jimboy Morales was
holding a balisong knife. He did not know what happened to the fourth hold-upper. He
stated that it was Cerbito who shot Policeman Ponce; he put his head down towards the
floor after hearing the first shot but after hearing two shots, he put his head up and
witnessed the shooting of Ponce by one of the robbers.[11]

All the accused-appellants claimed they were somewhere else at the time of the incident.
Jimboy Morales testified that he was in Barangay Candawit, Laoang, Northern Samar,
his home province, where he farms copra for a livelihood.[12] A neighbor, Adelaida
Balang, corroborated his alibi that he was in Barangay Candawit on September 3, 1992
and that he never left their place; she was sure because almost everyday (she) sends him
to run errands for (her).[13]

Daniel Cerbito also denied that he was involved in the hold-up incident. He testified that
he was then attending the fiesta in Laoang, Northern Samar with his wife; they left
Manila on August 15, 1992 and returned on September 9, 1992.[14] His wife Felisa
corroborated his testimony.[15] A co-worker, Romeo Incinares, also testified that he
accompanied Daniel Cerbito and his wife on August 15, 1992 to the Bus Terminal at
Pasay City on his way to the province.[16]

Nilo Sacaguing, Barangay Captain of Marubay, Laoang, Norther Samar was presented
by the defense to corroborate the alibi of Daniel Cerbito. Sacaguing testified that Daniel
Cerbito and his family attended the barrio fiesta that was celebrated on August 23 and
24, 1992. He remembered specifically that Daniel Cerbito asked him for a barangay
clearance and a letter of recommendation from Congressman Ong who is the owner of
Litton Mills. Daniel Cerbito left the barangay the last week of September.[17] Sacaguing
also stated that he came to know that Morales was at the town fiesta.[18]

For his part, Vicente Acedera testified that he was at his brother's house at 1-c
Calamansi St., cor. Luzon Avenue, from August 16, 1992 up to September 3, 1992. He
was on his way to the house of a cousin in Navotas and as he alighted from a bus passing
through Letre he heard a gun shot. He fell down as he was hit and was brought to the
hospital where he stayed from September 3 to September 12. Jimboy Morales is his
cousin. Cerbito is a barriomate.[19]

After a careful examination of the entire evidence, we resolve to affirm the judgment of
conviction. We agree with the trial court's rejection of the defense of alibi for the reason
that said defense cannot prevail over the positive identification made by the two
eyewitnesses presented by the prosecution. Confronted with contradictory declarations
and statements, the trial court cannot be faulted for giving greater weight to the positive
testimonies of the witnesses who have not been shown to have any motive to falsely
implicate the accused-appellants, and whose credibility has not been placed in doubt.
Alibi has generally been regarded with disfavor by the court because it is easily
fabricated[20] and we have no reason to deviate from this rule.

Highway robbery/brigandage is defined in Section 2(e) of P. D. 532 entitled "Anti-Piracy

and Anti-Highway Robbery Law" as "(t)he seizure of any person for ransom, extortion
or other unlawful purposes, or the taking away of the property of another by means of
violence against or intimidation of person or force upon things or other unlawful means,
committed by any person on any Philippine Highway." The robbery must be directed
not only against specific, intended or preconceived victims, but against any and all
prospective victims.[21]All the above elements were established.

As regards the imposable penalty, we find well-taken the Solicitor General's

recommendation to impose separate penalties for highway robbery and for homicide as
these crimes were the subject of separate informations. The accused-appellants can only
be penalized for the crimes charged in the information. Otherwise, the appellants would
be deprived of their constitutional right to be informed of the nature and cause of
accusation against them.[22] The penalty for simple highway robbery is reclusion
temporal in its minimum period. However, consonant with the ruling in the case
of People vs. Simon,[23] since P. D. 532 adopted the penalties under the Revised Penal
Code in their technical terms, with their technical signification and effects, the
indeterminate sentence law is applicable in this case. Accordingly, for the crime of
highway robbery, the indeterminate prison term is from seven (7) years and four (4)
months of Prision Mayor as minimum to thirteen (13) years, nine (9) months and ten
(10) days of reclusion temporal as maximum.

We must modify the computation of the award for loss of earning capacity. The absence
of documentary evidence to substantiate the claim of the victim's sister for the loss will
not preclude recovery for said amount.[24] Gloria Guinto, the victim's sister testified that
when her brother died, he was 26 years old, single and was earning P4,000.00 a month
as a member of the PNP. Loss of earning capacity is computed on the basis of the
following formula:[25]

living Expenses
Net Life Expectancy Gross
x Annual
Earning = [2/3 (80 - age at
Income - (50% of GAI)
Capacity death)]
(GAI)
Thus:
X = 2 (80 - 26) x 48,000 - 24,000
3
X = 36 x 24,0000
X = P864,000.00

We likewise modify the award of P40,000.00 to private complainant Amor Magsakay.

The evidence showed that what was taken from Magsakay was a Seiko watch
and P40.00. We have ruled that an ordinary witness cannot establish the value of
jewelry and the trial court can only take judicial notice of the value of goods which are
matters of public knowledge or are capable of unquestionable demonstration. The value
of jewelry is not a matter of public knowledge nor is it capable of unquestionable
demonstration and in the absence of receipts or any other competent evidence besides
the self-serving valuation made by the prosecution witness,[26] we cannot award the
reparation for the s Seiko watch.

WHEREFORE, Daniel Mendoza Cerbito, Vicente Acedera, and Jimboy Cerbito Morales
are found guilty of highway robbery in Criminal Case No. 1941-M-92, and of homicide in
Criminal Case No. 569-M-93 and are each hereby sentenced to an indeterminate prison
term from seven (7) years and four (4) months of prision mayor as minimum to thirteen
(13) years, nine (9) months, and ten (10) days of reclusion temporal as maximum for
highway robbery; and an indeterminate prison term from eight (8) years and one (1) day
of prision mayor as minimum to fourteen (14) years eight (8) months and one (1) day of
reclusion temporal as maximum; and are ordered to pay, jointly and severally (1) the
heirs of Edgar Ponce P50,000.00 as death indemnity, P19,000.00 for actual
damages, P864,000.00 for loss of earnings, and (2) Amor Magsakay the amount
of P40.00.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

[1] Criminal Case No. 1941-M-92, p. 2 Records.

[2] Criminal Case No. 569-M-93, p. 53, Records.

[3] Decision, pp. 2-4; p. 451-453.

[4] Rollo, p. 159.

[5] Rollo, p. 165.

[6] Tsn., February 3, 1993.

[7] Tsn., August 17, 1994.

[8] Tsn., June 25, 1994 at pp. 271-273; Tsn., August 17, 1994, p. 7.

[9] Tsn., February 3, 1993.

[10] Tsn., December 10, 1993.

[11] Tsn., August 17, 1994.

[12] Tsn., March 29, 1995.

[13] Tsn., May 23, 1995.

[14] Tsn., December 9, 1994.

[15] Tsn., February 10, 1995.

[16] Tsn., March 14, 1995.

[17] Tsn., March 14, 1995.

[18] At pp. 8; 26.

[19] Tsn., November 14, 1995.

[20] People vs. Cawaling, 293 SCRA 267.

[21] People vs. Verzosa, 294 SCRA 466; People vs. Legaspi, 246 SCRA, 206, 213.

[22] Supra.

[23] 234 SCRA 555.

[24]
People vs. Silvestre, G. R. No. 127573, May 12, 1999 at p. 24; People vs. Verde, G. R.
No. 119077, February 10, 1999 at p. 17.

[25] Supra.
[26] People vs. Antonio Marcos y Obo, G. R. No. 128892, June 21, 1999, En Banc.

EN BANC

[G.R. No. 130656. June 29, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO

REANZARES* also known as ARMANDO RIANZARES, accused-
appellant. *

DECISION

BELLOSILLO, J.:

This case is with us on automatic review of the 26 May 1997 Decision[1] of the Regional
Trial Court of Tanauan, Batangas, finding accused ARMANDO REANZARES also
known as "Armando Rianzares" guilty of Highway Robbery with Homicide under PD
532[2] and sentencing him to the extreme penalty of death. He was also ordered to pay
the heirs of his victim Lilia Tactacan P172,000.00 for funeral, burial and related
expenses, P50,000.00 as indemnity for death, P1,000.00 for the cash taken from her
bag, and to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from
him.

The facts, except as to the identity of accused Armando Reanzares, are undisputed.
Spouses Gregorio Tactacan and Lilia Tactacan owned a sari-sari store in San Miguel,
Sto. Tomas, Batangas. On 10 May 1994 at around 8:10 in the evening, the Tactacan
spouses closed their store and left for home in Barangay San Roque, Sto. Tomas,
Batangas on board their passenger-type jeepney. As Gregorio was maneuvering his
jeep backwards from where it was parked two (2) unidentified men suddenly climbed on
board. His wife Lilia immediately asked them where they were going and they answered
that they were bound for the town proper. When Lilia informed them that they were not
going to pass through the town proper, the two (2) said they would just get off at the
nearest intersection. After negotiating some 500 meters, one of the hitchhikers pointed
a .38 caliber revolver at Gregorio while the other poked a balisongat Lilia's neck and
ordered Gregorio to stop the vehicle. Two (2) other persons, one of whom was later
identified as accused Armando Reanzares, were seen waiting for them at a distance. As
soon as the vehicle stopped, the accused and his companion approached the vehicle.
Gregorio was then pulled from the driver's seat to the back of the vehicle. They gagged
and blindfolded him and tied his hands and feet. They also took his Seiko wristwatch
worth P2,500.00. The accused then drove the vehicle after being told by one of
them, "Sige i-drive mo na."[3]
Gregorio did not know where they were headed for as he was blindfolded. After several
minutes, he felt the vehicle making a u-turn and stopped after ten (10) minutes. During
the entire trip, his wife kept uttering, "Maawa kayo sa amin, marami kaming anak, kunin
nyo na lahat ng gusto ninyo." Immediately after the last time she uttered these words a
commotion ensued and Lilia was heard saying, "aray!" Gregorio heard her but could not
do anything. After three (3) minutes the commotion ceased. Then he heard someone
tell him, "Huwag kang kikilos diyan, ha," and left. Gregorio then untied his hands and
feet, removed his gag and blindfold and jumped out of the vehicle. The culprits were all
gone, including his wife. He ran to San Roque East shouting for help. [4]

When Gregorio returned to the crime scene, the jeepney was still there. He went to the
drivers seat. There he saw his wife lying on the floor of the jeepney with blood
splattered all over her body. Her bag containing P1,200.00 was missing. He brought her
immediately to the C. P. Reyes Hospital where she was pronounced dead on arrival. [5]

At the time of her death Lilia Tactacan was forty-eight (48) years old. According to
Gregorio, he was deeply depressed by her death; that he incurred funeral, burial and
other related expenses, and that his wife was earning P3,430.00 a month as a teacher.[6]

Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas, conducted a post-
mortem examination on the body of the victim. Her medical report disclosed that the
victim sustained eight (8) stab wounds on the chest and abdominal region of the body.
She testified that a sharp pointed object like a long knife could have caused those
wounds which must have been inflicted by more than one (1) person, and that all those
wounds except the non-penetrating one caused the immediate death of the victim.[7]

Subsequently, two (2) Informations were filed against accused Armando Reanzares and
three (3) John Does in relation to the incident. The first was for violation of PD 532
otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 for
allegedly conspiring, with intent to gain and armed with bladed weapons and a .38
caliber revolver, to rob and carry away one (1) Seiko wristwatch owned by Gregorio
Tactacan and P1,000.00 cash of Lilia Tactacan, and on the occasion thereof, killed her.
The second was for violation of RA 6539, An Act Preventing and Penalizing
Carnapping, for taking away by means of violence and intimidation of persons one (1)
passenger-type jeepney with Plate No. DBP 235 owned and driven by Gregorio
Tactacan and valued at P110,000.00. Only the accused Armando Reanzares was
arrested. The other three (3) have remained unidentified and at large.

The accused testified in his defense and claimed that he could not have perpetrated the
crimes imputed to him with three (3) others as he was in Barangay Tagnipa,
Garchitorena, Camarines Sur, for the baptism of his daughter Jessica when the incident
happened.[8] His father, Jose Reanzares, corroborated his story. Jose claimed that the
accused borrowed P500.00 from him for the latter's trip to Bicol although he could not
say that he actually saw the accused leave for his intended destination. [9] To bolster the
alibi of the accused, his brother Romeo Reanzares also took the witness stand and
alleged that he saw the accused off on 9 May 1994, the day before the incident. Romeo
maintained that he accompanied the accused to the bus stop that day and even helped
the latter carry his things to the bus. He however could not categorically state where
and when the accused alighted or that he in fact reached Bicol. [10]

On 26 May 1997 the trial court found the prosecutions evidence credible and ruled that
the alibi of the accused could not prevail over his positive identification by complaining
witness Gregorio Tactacan. The court a quo declared him guilty of Highway Robbery
with Homicide under PD 532 and sentenced him to death. It further ordered him to pay
the heirs of Lilia Tactacan P50,000.00 as indemnity for death, P172,000.00 for funeral,
burial and related expenses, and P1,000.00 for the cash taken from her bag. The
accused was also ordered to reimburse Gregorio Tactacan P2,500.00 for the Seiko
wristwatch taken from him.[11] But the trial court exonerated the accused from the charge
of carnapping under RA 6539 for insufficiency of evidence.

The accused insists before us that his conviction for Highway Robbery with Homicide
under PD 532 is erroneous as his guilt was not proved beyond reasonable doubt. He
claims that the testimony of private complainant Gregorio Tactacan, who implicated him
as one of the perpetrators of the crime, is incredible. He maintains that Gregorio failed
to identify him because when the latter was questioned he stated that he did not know
any of the culprits. He also claims that in the publication of Hotline by Tony Calvento
in People's Tonight, Gregorio even asked the readers to help him identify the
malefactors.

The trial court observed that Gregorio Tactacan testified in a categorical,

straightforward, spontaneous and frank manner, and was consistent on cross-
examination. Indeed, Gregorio might not have immediately revealed the name of
accused Armando Reanzares to the police authorities when he was first investigated
but the delay was not an indication of a fabricated charge and should not undermine his
credibility considering that he satisfactorily explained his reasons therefor. According to
him, he did not immediately tell the police about the accused because he feared for the
safety of his family as his neighbors told him that they saw some people lurking around
his house on the day of the incident. Moreover, he was advised not to mention any
names until after the burial of his wife. No ill motive could be attributed to him for
implicating the accused. If at all, the fact that his wife died by reason of the incident
even lends credence to his testimony since his natural interest in securing the
conviction of the guilty would deter him from implicating persons other than the real
culprits, otherwise, those responsible for the perpetration of the crime would escape
prosecution.

To further undermine the credibility of Gregorio, the accused underscores Gregorio's

refusal to be subjected to a lie detector test. We cannot subscribe to this contention as
the procedure of ascertaining the truth by means of a lie detector test has never been
accepted in our jurisdiction; thus, any findings based thereon cannot be considered
conclusive.
Finally, the accused chides Gregorio for supposedly suppressing a very material piece
of evidence, i.e., the latter failed to present as witnesses a certain Renato and his wife
who allegedly saw the holduppers running away from the crime scene. But this is only a
disputable presumption under Sec. 3, par. (e), Rule 131, of the Rules of Court on
evidence, which does not apply in the present case as the evidence allegedly omitted is
equally accessible and available to the defense.

These attempts of the accused to discredit Gregorio obviously cannot hold ground.
Neither can they bolster his alibi. For alibi to be believed it must be shown that (a) the
accused was in another place at the time of the commission of the offense, and (b) it
was physically impossible for him to be at the crime scene.[12]

In this case, the accused claims to have left for Bicol the day before the incident. To
prove this, he presented his father and brother but their testimonies did not meet the
requisite quantum to establish his alibi. While his father testified that the accused
borrowed money from him for his fare to Bicol for the baptism of a daughter, he could
not say whether the accused actually went to Bicol. As regards the claim of Romeo,
brother of the accused, that he accompanied the accused to the bus stop on 9 May
1994 and even helped him with his things, seeing the accused off is not the same as
seeing him actually get off at his destination. Given the circumstances of this case, it is
possible for the accused to have alighted from the bus before reaching Bicol,
perpetrated the crime in the evening of 10 May 2000, proceeded to Bicol and arrived
there on 12 May 2000 for his daughters baptism.

Thus the trial court was correct in disregarding the alibi of the accused not only because
he was positively identified by Gregorio Tactacan but also because it was not shown
that it was physically impossible for him to be at the crime scene on the date and time of
the incident.

Indeed the accused is guilty. But that the accused was guilty of Highway Robbery with
Homicide under PD 532 was erroneous. As held in a number of cases, conviction for
highway robbery requires proof that several accused were organized for the purpose of
committing it indiscriminately.[13] There is no proof in the instant case that the accused
and his cohorts organized themselves to commit highway robbery. Neither is there proof
that they attempted to commit similar robberies to show the "indiscriminate" perpetration
thereof. On the other hand, what the prosecution established was only a single act of
robbery against the particular persons of the Tactacan spouses. Clearly, this single act
of depredation is not what is contemplated under PD 532 as its objective is to deter and
punish lawless elements who commit acts of depredation upon persons and properties
of innocent and defenseless inhabitants who travel from one place to another thereby
disturbing the peace and tranquility of the nation and stunting the economic and social
progress of the people.

Consequently, the accused should be held liable for the special complex crime of
robbery with homicide under Art. 294 of the Revised Penal Code as amended by RA
7659[14] as the allegations in the Information are enough to convict him therefor. In the
interpretation of an information, what controls is the description of the offense charged
and not merely its designation.[15]

Article 294, par. (1), of the Revised Penal Code as amended punishes the crime of
robbery with homicide by reclusion perpetua to death. Applying Art. 63, second par.,
subpar. 2, of the Revised Penal Code which provides that "[i]n all cases in which the law
prescribes a penalty composed of two indivisible penalties, the following rules shall be
observed in the application thereof: x x x 2. [w]hen there are neither mitigating nor
aggravating circumstances in the commission of the deed, the lesser penalty shall be
applied," the lesser penalty of reclusion perpetua is imposed in the absence of any
modifying circumstance.

As to the damages awarded by the trial court to the heirs of the victim, we sustain the
award of P50,000.00 as civil indemnity for the wrongful death of Lilia Tactacan. In
addition, the amount of P50,000.00 as moral damages is ordered. Also, damages for
loss of earning capacity of Lilia Tactacan must be granted to her heirs. The testimony of
Gregorio Tactacan, the victims husband, on the earning capacity of his wife, together
with a copy of his wifes payroll, is enough to establish the basis for the award. The
formula for determining the life expectancy of Lilia Tactacan, applying the American
Expectancy Table of Mortality, is as follows: 2/3 multiplied by (80 minus the age of the
deceased).[16] Since Lilia was 48 years of age at the time of her death,[17] then her life
expectancy was 21.33 years.

At the time of her death, Lilia was earning P3,430.00 a month as a teacher at the San
Roque Elementary School so that her annual income was P41,160.00. From this
amount, 50% should be deducted as reasonable and necessary living expenses to
arrive at her net earnings. Thus, her net earning capacity was P438,971.40 computed
as follows: Net earning capacity equals life expectancy times gross annual income less
reasonable and necessary living expenses

Net = Life expectancy x Gross annual reasonable &

earning income necessary living
- expenses
capacity
(x)
x = 2 (80-48) x [P41,160.00 P20,580.00]
-
......3
= 21.33 x P20,580.00
= P438,971.40

However, the award of P1,000.00 representing the cash taken from Lilia Tactacan must
be increased to P1,200.00 as this was the amount established by the prosecution
without objection from the defense. The award of P172,000.00 for funeral, burial and
related expenses must be reduced to P22,000.00 as this was the only amount
sufficiently substantiated.[18] There was no other competent evidence presented to
support the original award.
The amount of P2,500.00 as reimbursement for the Seiko wristwatch taken from
Gregorio Tactacan must be deleted in the absence of receipts or any other competent
evidence aside from the self-serving valuation made by the prosecution. An ordinary
witness cannot establish the value of jewelry and the trial court can only take judicial
notice of the value of goods which is a matter of public knowledge or is capable of
unquestionable demonstration. The value of jewelry therefore does not fall under either
category of which the court can take judicial notice.[19]

WHEREFORE, the Decision appealed from is MODIFIED. Accused ARMANDO

REANZARES also known as "Armando Rianzares" is found GUILTY beyond
reasonable doubt of Robbery with Homicide under Art. 294 of the Revised Penal Code
as amended and is sentenced to reclusion perpetua. He is ordered to pay the heirs of
the victim P50,000.00 as indemnity for death, another P50,000.00 for moral
damages, P1,200.00 for actual damages, P438,971.40 for loss of earning capacity,
and P22,000.00 for funeral, burial and related expenses. Costs de oficio.

SO ORDERED.

Davide, Jr., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,

Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.

*
Accused-appellant Armando Reanzares in his handwritten letter to Judge Flordeliz Ozaeta-Navarro dated 4 August
1994 signed his name as "Armando Rianzares;" Records, pp. 195-196.
[1]
Decision penned by Judge Flordelis Ozaeta-Navarro, RTC-Br. 6, Tanauan, Batangas; Rollo, pp. 26-36.
[2]
"Anti-Piracy and Anti-Highway Robbery Law of 1974."
[3]
TSN, 4 May 1995, pp. 1-13.
[4]
Ibid.
[5]
Ibid.
[6]
Ibid.
[7]
TSN, 14 July 1995, pp. 2-9.
[8]
TSN, 28 September 1995, pp. 1-4.
[9]
TSN, 29 April 1996, pp. 2-16.
[10]
TSN, 13 May 1996, pp. 2-20.
[11]
See Note No. 2.
[12]
People v. Sumalde, G.R. No. 121780, 17 March 2000.
[13]
People v. Puno, G.R. No. 97471, 17 February 1993, 219 SCRA 85; People v. Mendoza, G.R. No. 104461, 23
February 1996, 254 SCRA 61; People v. Versoza, G.R. No. 118944, 20 August 1998, 294 SCRA 466.
[14]
The crime was committed on 10 May 1994, after RA 7659 took effect on 31 December 1993.
[15]
Socrates v. Sandiganbayan, G.R. Nos. 116259-60 and 118896-97, 20 February 1996, 253 SCRA 773, citing
People vs. Maravilla, et al., G.R. No. L-47646, 19 September 1988, 165 SCRA 392.
[16]
People v. Estepano, G.R. No. 126283, 28 May 1999.
[17]
See Note No. 4.
[18]
People v. Manlapaz, G.R. No. 121483, 26 October 1999, citing People v. Gutierrez, Jr., G.R. No. 116281, 8
February 1999.
[19]
People v. Paraiso, G.R. No. 127840, 29 November 1999, citing People v. Marcos, G.R. No. 128892, 21 June
1999.
 [G.R. No. 140937. February 28, 2001]

EXUPERANCIO CANTA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and
resolution, dated November 22, 1999, of the Court of Appeals,[1] which affirmed the decision of
the Regional Trial Court, Branch 25, Maasin, Southern Leyte,[2] finding petitioner Exuperancio
Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of
1974, and sentencing him to ten (10) years and one (1) day of prision mayor, as minimum, to
twelve (12) years, five (5) months, and eleven (11) days of reclusion temporal medium, as
maximum, and to pay the costs.
The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of

Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with intent to gain, did then and there, willfully, unlawfully and
feloniously, take, steal and carry away one (1) black female cow belonging to Narciso
Gabriel valued at Three Thousand Pesos (P3,000.00) without the knowledge and
consent of the aforesaid owner, to his damage and prejudice in the amount aforestated.

CONTRARY TO LAW.[3]

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case,
upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter for
sometime. Subsequently, Narciso gave the care and custody of the animal, first, to Generoso
Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from May 17, 1985 to
March 2, 1986; and lastly, to Gardenio Agapay, from March 3, 1986 until March 14, 1986 when
it was lost.[4] It appears that at 5 oclock in the afternoon of March 13, 1986, Agapay took the cow
to graze in the mountain of Pilipogan in Barangay Candatag, about 40 meters from his
hut. However, when he came back for it at past 9 oclock in the morning of March 14, 1986,
Agapay found the cow gone. He found hoof prints which led to the house ofFilomeno
Vallejos. He was told that petitioner Exuperancio Canta had taken the animal.[5]
 Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from
petitioners wife, but they were informed that petitioner had delivered the cow to his father,
Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos, Southern
Leyte. Accordingly, the two went to Florentinos house. On their way, they met petitioner who
told them that if Narciso was the owner, he should claim the cow
himself. Nevertheless, petitioner accompanied the two to his fathers house, where Maria
recognized the cow. As petitioners father was not in the house, petitioner told Gardenio and
Maria he would call them the next day so that they could talk the matter over with his father.
However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the
police of Malitbog, Southern Leyte.[6] As a result, Narciso and petitioner Exuperancio were
called to an investigation. Petitioner admitted taking the cow but claimed that it was his and that
it was lost on December 3, 1985. He presented two certificates of ownership, one dated March
17, 1986 and another dated February 27, 1985, to support his claim (Exh. B).[7]
Narciso presented a certificate of ownership issued on March 9, 1986, signed by the
municipal treasurer, in which the cow was described as two years old and female. On the reverse
side of the certificate is the drawing of a cow with cowlicks in the middle of the forehead,
between the ears, on the right and left back, and at the base of the forelegs and hindlegs (Exhs. C,
C-1 to 4).[8] All four caretakers of the cow identified the cow as the same one they had taken care
of, based on the location of its cowlicks, its sex, and its color. Gardenio described the cow as
black in color, with a small portion of its abdomen containing a brownish cowlick, a cowlick in
the middle of the forehead, another at the back portion between the two ears, and four cowlicks
located near the base of its forelegs and the hindlegs.[9]
On the other hand, petitioner claimed he acquired the animal under an agreement which he
had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva
in consideration for which petitioner would get a calf if the cow produced two
offsprings. Petitioner claimed that the cow in question was his share and that it was born on
December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner said he
reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on December 3, 1985
(Exh. A and Exh. 1).[10]
Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at
Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother
cow on March 14, 1986 to see whether the cow would suckle the mother cow. As the cow did,
petitioner took it with him and brought it, together with the mother cow, to his father Florentino
Canta.[11] Maria Tura tried to get the cow, but Florentino refused to give it to her and instead told
her to call Narciso so that they could determine the ownership of the cow.[12] As Narciso did not
come the following day, although Maria did, Florentino said he told his son to take the cow to
the Municipal Hall of Padre Burgos. Petitioner did as he was told. Three days later, Florentino
and Exuperancio were called to the police station for investigation.[13]
Petitioner presented a Certificate of Ownership of Large Cattle dated February 27,
1985[14] and a statement executed by Franklin Telen, janitor at the treasurers office of the
municipality of Padre Burgos,to the effect that he issued a Certificate of Ownership of Large
Cattle in the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5).[15] The
statement was executed at the preliminary investigation of the complaint filed by petitioner
against Narciso.[16]
 Petitioners Certificate of Ownership was, however, denied by the municipal treasurer, who
stated that petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle in the
municipality of Padre Burgos (Exhs. E, E-1 and 2).[17] On the other hand, Telen testified that he
issued the Certificate of Ownership of Large Cattle to petitioner on March 24, 1986 but, at the
instance of petitioner, he (Telen) antedated it to February 27, 1985.[18]
On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the
offense charged. In giving credence to the evidence for the prosecution, the trial court stated:

From the affidavits and testimonies of the complainant and his witnesses, it is
indubitable that it was accused Exuperancio Canta who actually took the cow away
without the knowledge and consent of either the owner/raiser/caretaker Gardenio
Agapay.

That the taking of the cow by the accused was done with strategy and stealth
considering that it was made at the time when Gardenio Agapay was at his shelter-hut
forty (40) meters away tethered to a coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming
ownership. He, however, failed to prove such ownership. Accused alleged that on
February 27, 1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-
A) for his cow by Franklin Telen, a janitor at the Office of the Municipal Treasurer of
Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court the
testimony of the accused and even categorically declared that it was only on March
24, 1986 that the accused brought the cow to the Municipal Hall of Padre Burgos,
when he issued a Certificate of Ownership of Large Cattle for the cow, and not on
February 27, 1985. Franklin Telen testified thus:

Q. According to the defense, this Certificate of Ownership of Large Cattle

was issued by you on February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)

The testimony of Franklin Telen was confirmed in open court by no less than the
Municipal Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29,
1992, pp. 5-8).

If accused Exuperancio Canta were the owner of the cow in question, why would he
lie on its registration? And why would he have to ask Mr. Franklin Telen to antedate
its registry? It is clear that accused secured a Certificate of Ownership of Large Cattle
(Exh. 2-A) by feigning and manipulation (Exhs. A & B) only after the act complained
of in the instant case was committed on March 14, 1986. His claim of ownership upon
which he justifies his taking away of the cow has no leg to stand on. Upon the other
hand, the complainant has shown all the regular and necessary proofs of ownership of
the cow in question.[19]

The Court of Appeals affirmed the trial courts decision and denied petitioners motion for
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond
reasonable doubt his criminal intent in taking the disputed cow.
First. Petitioner claims good faith and honest belief in taking the cow. He cites the following
circumstances to prove his claim:
1. He brought the mother cow to Pilipogan to see if the cow in question would suckle to the
mother cow, thus proving his ownership of it;
2. He compared the cowlicks of the subject cow to that indicated in the Certificate of Ownership
of Large Cattle issued on February 27, 1985 in his name, and found that they tally;
3. He immediately turned over the cow to the barangay captain, after taking it, and later to the
police authorities, after a dispute arose as to its ownership; and
4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No. 533.
These contentions are without merit.
P.D. No. 533, 2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the
owner/raiser, of any of the abovementioned animals whether or not for profit or gain,
or whether committed with or without violence against or intimidation of any person
or force upon things.

The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it
belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is done
by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6) the
taking is accomplished with or without violence or intimidation against person or force upon
things.[20]
These requisites are present in this case. First, there is no question that the cow belongs to
Narciso Gabriel. Petitioners only defense is that in taking the animal he acted in good faith and in
the honest belief that it was the cow which he had lost. Second, petitioner, without the consent of
the owner, took the cow from the custody of the caretaker, Gardenio Agapay, despite the fact
that he knew all along that the latter was holding the animal for the owner, Narciso. Third,
petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen to antedate it
prior to the taking to make it appear that he owned the cow in question. Fourth, petitioner
adopted means, methods, or schemes to deprive Narciso of his possession of his cow, thus
manifesting his intent to gain. Fifth, no violence or intimidation against persons or force upon
things attended the commission of the crime.
 Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which
petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in the
municipal treasurers office, admitted that he issued the certificate to petitioner 10 days after
Narcisos cow had been stolen. Although Telen has previously executed a sworn statement
claiming that he issued the certificate on February 27, 1985, he later admitted that he antedated it
at the instance of petitioner Exuperancio Canta, his friend, who assured him that the cow was
his.[21]
Telens testimony was corroborated by the certification of the municipal treasurer of Padre
Burgos that no registration in the name of petitioner was recorded in the municipal
records. Thus, petitioners claim that the cowlicks found on the cow tally with that indicated on
the Certificate of Ownership of Large Cattle has no value, as this same certificate was issued
after the cow had been taken by petitioner from Gardenio Agapay. Obviously, he had every
opportunity to make sure that the drawings on the certificate would tally with that existing on the
cow in question.
The fact that petitioner took the cow to the barangay captain and later to the police
authorities does not prove his good faith. He had already committed the crime, and the barangay
captain to whom he delivered the cow after taking it from its owner is his own father. While the
records show that he filed on April 30, 1986 a criminal complaint against Narciso Gabriel, the
complaint was dismissed after it was shown that it was filed as a countercharge to a complaint
earlier filed on April 16, 1986 against him by Narciso Gabriel.
Petitioner says that he brought a mother cow to see if the cow in question would suckle to
the mother cow. But cows frequently attempt to suckle to alien cows.[22] Hence, the fact that the
cow suckled to the mother cow brought by petitioner is not conclusive proof that it was the
offspring of the mother cow.
Second. Petitioner contends that even assuming that his Certificate of Ownership is not in
order, it does not necessarily follow that he did not believe in good faith that the cow was his. If
it turned out later that he was mistaken, he argues that he committed only a mistake of fact but he
is not criminally liable.
Petitioners Certificate of Ownership is not only not in order. It is fraudulent, having been
antedated to make it appear it had been issued to him before he allegedly took the cow in
question. That he obtained such fraudulent certificate and made use of it negates his claim of
good faith and honest mistake. That he took the cow despite the fact that he knew it was in the
custody of its caretaker cannot save him from the consequences of his act.[23] As the Solicitor
General states in his Comment:

If petitioner had been responsible and careful he would have first verified the identity
and/or ownership of the cow from either Narciso Gabriel or Gardenio Agapay, who is
petitioners cousin (TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite the
opportunity and instead rushed to take the cow. Thus, even if petitioner had
committed a mistake of fact he is not exempted from criminal liability due to his
negligence.[24]
 In any event, petitioner was not justified in taking the cow without the knowledge and
permission of its owner. If he thought it was the cow he had allegedly lost, he should have
resorted to the court for the settlement of his claim. Art. 433 of the Civil Code provides that The
true owner must resort to judicial process for the recovery of the property. What petitioner did in
this case was to take the law in his own hands.[25] He surreptitiously took the cow from the
custody of the caretaker, Gardenio Agapay, which act belies his claim of good faith.
For the foregoing reasons, we hold that the evidence fully supports the finding of both the
trial court and the Court of Appeals that accused-appellant is guilty as charged. There is therefore
no reason to disturb their findings.
However, the decision of the Court of Appeals should be modified in two respects.
First, accused-appellant should be given the benefit of the mitigating circumstance
analogous to voluntary surrender. The circumstance of voluntary surrender has the following
elements: (1) the offender has not actually been arrested; (2) the offender surrenders to a person
in authority or to the latters agent; and (3) the surrender is voluntary.[26] In the present case,
petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been
filed against him when he surrendered the cow to the authorities. It has been repeatedly held that
for surrender to be voluntary, there must be an intent to submit oneself unconditionally to the
authorities, showing an intention to save the authorities the trouble and expense that his search
and capture would require.[27] In petitioners case, he voluntarily took the cow to the municipal
hall of Padre Burgos to place it unconditionally in the custody of the authorities and thus saved
them the trouble of having to recover the cow from him. This circumstance can be considered
analogous to voluntary surrender and should be considered in favor of petitioner.
Second, the trial court correctly found petitioner guilty of violation of 2(c) of P. D. No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing the
penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months and 11 days
of reclusion temporal medium, as maximum. The trial court apparently considered P. D. No. 533
as a special law and applied 1 of the Indeterminate Sentence Law, which provides that if the
offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. However, as held
in People v. Macatanda,[28] P. D. No. 533 is not a special law. The penalty for its violation is in
terms of the classification and duration of penalties prescribed in the Revised Penal Code, thus
indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect to
the offense of theft of large cattle. In fact, 10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the
Revised Penal Code, as amended, pertinent provisions of the Revised Administrative
Code, as amended, all laws, decrees, orders, instructions, rules and regulations which
are inconsistent with this Decree are hereby repealed or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the

commission of the crime, the penalty to be imposed in this case should be fixed in its minimum
period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal
Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is
within the range of the penalty next lower in degree, i. e., prision correccional maximum
to prision mayor medium, and the maximum of which is prision mayor in its maximum period.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification
that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4)
years and two (2) months of prision correccional maximum, as minimum, to ten (10) years and
one (1) day of prision mayor maximum, as maximum.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]
Per Justice Jose L. Sabio, Jr. and concurred in by Justices Hector L. Hofilenia and Omar U. Amin.
[2]
Per Judge Numeriano R. Avila, Jr.
[3]
Records, p. 24.
[4]
TSN (Erlinda Monter), p. 4, Oct. 23, 1990; TSN (Generoso Cabonce), p. 5, Feb. 1, 1989; TSN (Generoso
Cabonce), pp. 4-5, April 4, 1989; TSN (Maria Tura), p. 7, Jan. 3, 1990; TSN (Gardenio Agapay), p. 7, Oct. 15,
1987; TSN (Narciso Gabriel), p. 7, July 9, 1991.
[5]
TSN (Gardenio Agapay), p. 10, Nov. 25, 1987; TSN (Gardenio Agapay), pp. 3-5, Oct. 15, 1987.5
[6]
TSN (Narciso Gabriel), p. 18, July 9, 1991.
[7]
TSN (Narciso Gabriel), pp. 3-4, July 10, 1991; Bill of Exhibits, p. 1.
[8]
Id., pp. 6-7; Id., p 3.
[9]
TSN (Gardenio Agapay), p. 7, Oct. 15, 1987.
[10]
TSN (Exuperancio Canta), pp. 6-8, Sept. 12, 1991; Bill of Exhibit, pp. 1, 11.
[11]
TSN (Exuperancion Canta), pp. 10-11, 18-23, Sept. 12, 1991; TSN (Exuperancio Canta) p. 6, Nov. 6, 1991.
[12]
TSN (Florentino Canta), pp. 6-8, Nov. 7, 1991.
[13]
Id., pp. 8-11.
[14]
Exh. J; Exh. 2.
[15]
Exh. J; Exh. 2.
[16]
TSN (Franklin Telen), p. 5, June 30, 1992.
[17]
TSN (Narciso Gabriel), pp. 8-9, July 10, 1991; Bill of Exhibits, p. 5.
[18]
TSN (Franklyn Telen), pp. 4-8, June 3, 1992.
[19]
Decision, pp. 3-4; Rollo, pp. 26-27.
[20]
People v. Bago, G. R. No. 122290, April 6, 2000.
[21]
TSN (Franklin Telen), pp. 9-10, June 3, 1992.
[22]
Louise Lindegaard Weinrich. Module: Design And Management of Organic Livestock Systems
<http//www.irs.aber.ac.uk/students/RS33020/Weinrich-calfrearing.htm.[5]>
[23]
Rollo, p. 89.
[24]
Id., p. 90.
[25]
Manlapaz v. CA, 191 SCRA 795 (1990); De la Cruz v. Burgos, et al, 28 SCRA 977 (1969).
[26]
People v. Rebamontan, 305 SCRA 609 (1999).
[27]
Id.; People v. Santillana, 308 SCRA 104 (1999).
[28]
109 SCRA 35 (1981).

De Villa v. CA Case Digest

De Villa v. CA
G.R. No. 87416 (April 8, 1991)

FACTS:

Petitioner was charged with a violation of BP 22 (Bouncing Checks Law) for issuing a worthless check. However, he
contends that the check was drawn against a dollar account with a foreign bank, and is therefore, not covered by the
said law.

ISSUE:

W/N the Makati Regional Trial Court has jurisdiction over the case in question.

HELD:

The Makati Regional Trial Court has jurisdiction. The determinative factor (in determining venue) is the place of the
issuance of the check. The offense was committed in Makati and therefore, the same is controlling and sufficient to
vest jurisdiction in the Makati Regional Trial Court. The Court acquires jurisdiction over the case and over the person
of the accused upon the filing of a complaint or information in court which initiates a criminal action. With regard to
Petitioner’s allegation that the check is not covered by BP 22, it will be noted that the law does not distinguish the
currency involved in the case.

Ermitano vs. CA
DANTE BUEBOS and G.R. No. 163938
SARMELITO BUEBOS,
Petitioners, Present:
AUSTRIA-MARTINEZ,* J.,
Acting Chairperson,
**
- versus - TINGA,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

THE PEOPLE OF THE Promulgated:

PHILIPPINES,
Respondent. March 28, 2008

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

DECISION

REYES, R.T., J.:

THE law on arson has always been a constant source of confusion not only among
members of the bar, but also among those of the bench. The bewilderment often
centers on what law to apply and what penalty to impose.

In this case, the Court is again tasked to determine whether petitioners are
liable for simple arson or arson of an inhabited house which merits a penalty of
up to reclusion perpetua.

Before the Court is a petition to review on certiorari under Rule 45 the

Decision[1] of the Court of Appeals (CA), affirming with modification that[2] of the
Regional Trial Court in Tabaco, Albay, finding petitioners Dante Buebos and
Sarmelito Buebos guilty of arson.

The Facts

On January 1, 1994 around 3:00 oclock in the morning, Adelina B. Borbe was in
her house at Hacienda San Miguel, Tabaco, Albay watching over her sick
child.[3] She was lying down when she heard some noise around the house. She
got up and looked through the window and saw the four accused, Rolando Buela,
Sarmelito Buebos, Dante Buebos and Antonio Cornel, Jr. congregating in front of
her hut.[4] When she went out, she saw the roof of her nipa hut already on
fire. She shouted for help. Instead of coming to her immediate succor, the four
fled.[5]

At some distance away, Olipiano Berjuela heard Adelina scream for help. Olipiano
was then drinking with Pepito Borbe to celebrate New Years Eve. Olipiano
immediately ran to the place and saw a number of people jumping over the
fence. When he focused his flashlight on them, he was able to identify Sarmelito
Buebos, Dante Buebos and Antonio Cornel, Jr.[6] He also saw Rolando Buela
running away.[7]

On complaint of Adelina, petitioners Dante and Sarmelito Buebos, together

with Rolando Buela and Antonio Cornel, Jr., were indicted for arson in an
Information bearing the following accusations:

That on or about the 1st day of January, 1994 at 3:00 oclock in the Barangay Hacienda,
Island of San Miguel, Municipality of Tabaco, Province of Albay, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and helping one another, with intent to cause damage, did then and
there wilfully, unlawfully, feloniously and maliciously set on fire the nipa roof of the
house of ADELINA B. BORBE, to the latters damage and prejudice.
 ACTS CONTRARY TO LAW.[8]

The prosecution evidence portraying the foregoing facts was principally

supplied by private complainant Adelina Borbe and Olipiano Berjuela.

Upon the other hand, denial and alibi were the main exculpating line of
petitioners and their co-accused. The trial court summed up the defense evidence
in the following tenor:

The defense contended that the accused were at different places at the time of the
incident; Rolando Buela claimed to be at sitio Tugon, Malictay, San Miguel, Tabaco,
Albay as there was a novena prayer at his parents house on occasion of the death
anniversary of his late grandfather; Dante Buebos also claimed to have been at Romeo
Callejas having gone there in the evening of December 30, 1993 and left the place at
12:00 oclock noontime of January 1, 1994; Sarmelito Buebos asserted that he was at his
residence at sitio Malictay, Hacienda, San Miguel, Tabaco, Albay on the day the incident
happened and that he never left his house; Antonio Cornel, Jr. likewise claimed to be at
his residence at Agas after having visited his in-laws; that he only came to know of the
accusation five (5) days after the incident happened when he visited his parents at
Malictay; witnesses were likewise presented by the accused to corroborate their
testimonies.[9]

RTC and CA Dispositions

On April 7, 1998, the RTC found all of the accused guilty beyond reasonable doubt
of arson. The dispositive part of the judgment of conviction reads:

WHEREFORE, from all the foregoing, this Court finds accused ROLANDO BUELA, DANTE
BUEBOS, SARMELITO BUEBOS and ANTONIO CORNEL, JR. GUILTY beyond reasonable
 doubt for the crime charged; accordingly, each of the accused is hereby sentenced to
suffer the indeterminate penalty ranging from six (6) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal as maximum; and to pay the cost.

SO ORDERED.[10]

Via a notice of appeal, the four accused elevated the matter to the appellate
court. In their appeal, they contended that (1) the trial court erred in finding them
guilty of the crime of arson; (2) that the trial court erred in finding conspiracy; and
(3) the trial court erred in failing to give weight and credence to their defense of
denial and alibi.

On November 13, 2003, through an eight-page decision penned by Associate

Justice Eliezer R. de los Santos, the CA disposed of the appeal in this wise:

WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED
with MODIFICATION. Each of the accused-appellant is hereby sentenced to suffer the
indeterminate penalty of imprisonment ranging from six (6) years of prision
correccional as minimum to ten (10) years of prision mayor as maximum.

SO ORDERED.[11]

In downgrading the penalty, the CA opined that the accused could only be
convicted of simple arson, punishable by prision mayor, and not for burning of an
inhabited house, which is punishable by imprisonment ranging from reclusion
temporal to reclusion perpetua. According to the appellate court, the information
failed to allege with specificity the actual crime committed. Hence, the accused
should be found liable only for arson in its simple form.[12]
 Issues

Dissatisfied, Dante and Sarmelito Buebos have resorted to the present

recourse. The following arguments are now raised for the Courts consideration:

I.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF

THE TRIAL COURT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE;

II.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT CONSPIRACY

EXISTED IN THE CASE AT BAR.[13]

Our Ruling

Overview of the law on arson

The confusion surrounding arson has been confounded by the dearth of

annotation on this part of our penal law. Certainly, the law on arson is one of the
least commented in this jurisdiction. For the guidance of the bench and bar, a
brief legislative history of the body of laws on arson is in order.

Previously, arson was defined and penalized under nine different articles of the
Revised Penal Code: Article 320 (destructive arson), Article 321 (other forms of
arson), Article 322 (cases of arson not included in the preceding articles), Article
323 (arson of property of small value), Article 324 (crimes involving destruction),
Article 325 (burning ones own property to commit arson), Article 326 (setting fire
to property exclusively owned by the offender, Article 326-a (in cases where
death resulted as a consequence of arson), and Article 326-b (prima
facie evidence of arson).

On March 7, 1979, citing certain inadequacies that impede the successful

enforcement and prosecution of arsonists, then President Ferdinand E. Marcos
issued Presidential Decree (P.D) No. 1613. P.D. 1613 supplanted the penal code
provisions on arson. The pertinent parts of the said presidential issuance read:

SECTION 1. Arson. Any person who burns or sets fire to the property of another
shall be punished by prision mayor.

The same penalty shall be imposed when a person sets fire to his own property
under circumstances which expose to danger the life or property of another.

SECTION 2. Destructive Arson. The penalty of reclusion temporal in its maximum

period to reclusion perpetua shall be imposed if the property burned is any of the
following:

1. Any ammunition factory and other establishments where explosives,

inflammable or combustible materials are stored;

2. Any archive, museum, whether public or private, or any edifice

devoted to culture, education or social services;

3. Any church or place of worship or other building where people

usually assemble;

4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance

for transportation of persons or property;

5. Any building where evidence is kept for use in any legislative, judicial,
administrative or other official proceedings;
 6. Any hospital, hotel, dormitory, lodging house, housing tenement,
shopping center, public or private market, theater or movie house
or any similar place or building;

7. Any building, whether used as a dwelling or not, situated in a

populated or congested area.

SECTION 3. Other Cases of Arson. The penalty of reclusion temporal to reclusion

perpetua shall be imposed if the property burned is any of the following:

1. Any building used as offices of the government or any of its agencies;

2. Any inhabited house or dwelling;

3. Any industrial establishment, shipyard, oil well or mine shaft,

platform or tunnel;

4. Any plantation, farm, pastureland, growing crop, grain field, orchard,

bamboo grove or forest;

5. Any rice mill, sugar mill, cane mill or mill central; and

6. Any railway or bus station, airport, wharf or warehouse.

SECTION 4. Special Aggravating Circumstances in Arson. The penalty in any case

of arson shall be imposed in its maximum period:

1. If committed with the intent to gain;

2. If committed for the benefit of another;

3. If the offender is motivated by spite or hatred towards the owner or

occupant of the property burned;

4. If committed by a syndicate. The offense is committed by a syndicate

if it is planned or carried out by a group of three (3) or more
persons.
 SECTION 5. Where Death Results from Arson. If by reason of or on the occasion
of arson death results, the penalty of reclusion perpetua to death shall be imposed.

SECTION 6. Prima Facie Evidence of Arson. Any of the following circumstances

shall constitute prima facie evidence of arson:

1. If the fire started simultaneously in more than one part of the

building or establishment.

2. If substantial amount of flammable substances or materials are

stored within the building not necessary in the business of the
offender nor for household use.

3. If gasoline, kerosene, petroleum or other flammable or combustible

substances or materials soaked therewith or containers thereof, or
any mechanical, electrical, chemical, or electronic contrivance
designed to start a fire, or ashes or traces of any of the foregoing
are found in the ruins or premises of the burned building or
property.

4. If the building or property is insured for substantially more than its

actual value at the time of the issuance of the policy.

5. If during the lifetime of the corresponding fire insurance policy more

than two fires have occurred in the same or other premises owned
or under the control of the offender and/or insured.

6. If shortly before the fire, a substantial portion of the effects insured

and stored in a building or property had been withdrawn from the
premises except in the ordinary course of business.

7. If a demand for money or other valuable consideration was made

before the fire in exchange for the desistance of the offender or for
the safety of other person or property of the victim.

SECTION 7. Conspiracy to Commit Arson. Conspiracy to commit arson shall be

punished by prision mayor in its minimum period.
 SECTION 8. Confiscation of Object of Arson. The building which is the object of
arson including the land on which it is situated shall
be confiscated and escheated to the State, unless the owner thereof can prove that he
has no participation in nor knowledge of such arson despite the exercise of due
diligence on his part.

On November 11, 1980, the law on arson was again revisited via P.D. No.
1744. The new law expanded the definition of destructive arson by way of
reinstating Article 320 of the Revised Penal Code. The amendatory legislation also
paved the way for the reimposition of the capital punishment on destructive
arsonists.

When Republic Act (R.A.) No. 7659 (An Act to Impose the Death Penalty on
Certain Heinous Crimes) was passed on December 13, 1993, Article 320 again
underwent a revision. As it now stands, Article 320 of the Revised Penal Code is
worded, thus:

Art. 320. Destructive Arson. The penalty of reclusion perpetua to death shall be
imposed upon any person who shall burn:

1. One (1) or more buildings or edifices, consequent to one single act of

burning, or as a result of simultaneous burnings, committed on
several or different occasions.

2. Any building of public or private ownership, devoted to the public in

general or where people usually gather or congregate for a definite
purpose such as, but not limited to, official governmental function
or business, private transaction, commerce, trade, workshop,
meetings and conferences, or merely incidental to a definite
purpose such as but not limited to hotels, motels, transient
dwellings, public conveyances or stops or terminals, regardless of
whether the offender had knowledge that there are persons in said
building or edifice at the time it is set on fire and regardless also of
whether the building is actually inhabited or not.
 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to
transportation or conveyance, or for public use, entertainment or
leisure.

4. Any building, factory, warehouse installation and any appurtenances

thereto, which are devoted to the service of public utilities.

5. Any building the burning of which is for the purpose of concealing or

destroying evidence of another violation of law, or for the purpose
of concealing bankruptcy or defrauding creditors or to collect from
insurance.

Irrespective of the application of the above enumerated qualifying

circumstances, the penalty of reclusion perpetua to death shall likewise be imposed
when the arson is perpetrated or committed by two (2) or more persons or by a group
of persons, regardless of whether their purpose is merely to burn or destroy the building
or the burning merely constitutes an overt act in the commission or another violation of
law.

The penalty of reclusion perpetua to death shall also be imposed upon any
person who shall burn:

1. Any arsenal, shipyard, storehouse or military powder or fireworks

factory, ordinance, storehouse, archives or general museum of the
Government.

2. In an inhabited place, any storehouse or factory of inflammable or

explosive materials.

If as a consequence of the commission of any of the acts penalized under this

Article, death results, the mandatory penalty of death shall be imposed.

Of course, with the repeal of the Death Penalty Law on June 24, 2006 through
R.A. No. 9346, arson is no longer a capital offense.[14]
We proceed to the crux of the petition.

Circumstantial evidence points to

petitioners culpability

Petitioners score the CA for convicting them of arson based on circumstantial

evidence. They argue that the inference that they were responsible for the
burning of private complainants hut was not duly proven by the People.

Circumstantial evidence is defined as that evidence that indirectly proves a fact in

issue through an inference which the fact-finder draws from the evidence
established. Resort thereto is essential when the lack of direct testimony would
result in setting a felon free.[15]

At the outset, We may well emphasize that direct evidence of the

commission of a crime is not the only basis on which a court draws its finding of
guilt. Established facts that form a chain of circumstances can lead the mind
intuitively or impel a conscious process of reasoning towards a
conviction.[16] Verily, resort to circumstantial evidence is sanctioned by Rule 133,
Section 5 of the Revised Rules on Evidence.[17]

The following are the requisites for circumstantial evidence to be sufficient for a
conviction: (a) there is more than one circumstance; (b) the facts from which the
inferences are derived have been proven; and (c) the combination of all the
circumstances results in a moral certainty that the accused, to the exclusion of all
others, is the one who has committed the crime. Thus, to justify a conviction
based on circumstantial evidence, the combination of circumstances must be
interwoven in such a way as to leave no reasonable doubt as to the guilt of the
accused.[18]
After a careful review of the evidence presented by both parties, We find that the
circumstantial evidence extant in the records is sufficient to identify petitioners as
the authors of the burning of the hut of private complainant Adelina Borbe:

1. Private complainant heard some noise emanating from outside her

house at around 3:00 a.m.;

2. When she went out to check the disturbance, private complainant saw
petitioners, together with their two other co-accused, standing in front of the
house;

3. Moments later, the roof of her house caught fire;

4. Petitioners and their cohorts absconded while private complainant

desperately shouted for help.

The facts from which the cited circumstances arose have been proved
through positive testimony.[19] Evidently, these circumstances form an unbroken
chain of events leading to one fair conclusion the culpability of petitioners for the
burning of the hut. The Court is convinced that the circumstances, taken together,
leave no doubt that petitioner perpetrated the arson.

Conspiracy evident from coordinated

action of petitioners

Petitioners next contend that conspiracy was erroneously appreciated by both the
trial and appellate courts. They posit that the finding of conspiracy was premised
on speculation and conjecture.
 The rule is well-entrenched in this jurisdiction that conspiracy exists when
two or more persons come to an agreement concerning the commission of a
crime and decide to commit it. Proof of the agreement need not rest on direct
evidence, as the same may be inferred from the conduct of the parties indicating
a common understanding among them with respect to the commission of the
offense. Corollarily, it is not necessary to show that two or more persons met
together and entered into an explicit agreement setting out the details of an
unlawful scheme or the details by which an illegal objective is to be carried
out. The rule is that conviction is proper upon proof that the accused acted in
concert, each of them doing his part to fulfill the common design. In such a case,
the act of one becomes the act of all and each of the accused will thereby be
deemed equally guilty of the crime committed.[20]

In the case at bench, conspiracy was evident from the coordinated

movements of petitioners Dante and Sarmelito Buebos. Both of them stood
outside the house of private complainant Adelina. They were part of the group
making boisterous noise in the vicinity. Petitioners also fled together while the
roof of Adelinas house was ablaze. These acts clearly show their joint purpose and
design, and community of interest.

We quote with approval the CA observation along this line:

Accused-appellants assertion that conspiracy has not been established is belied by the
accounts of the prosecution witness. The manner by which the accused-appellants
behaved after the private complainant shouted for help clearly indicated a confederacy
of purpose and concerted action on the part of the accused-appellants. Even if there is
no direct evidence showing that all of the accused had prior agreement on how to set
the roof of the house on fire, the doctrine is well settled that conspiracy need not be
proved by direct evidence of prior agreement to commit the crime. Very seldom such
prior agreement be demonstrable since, in the nature of things, criminal undertakings
are only rarely documented by agreements in writing.[21]
Crime committed and the penalty

The RTC sentenced all four accused to an indeterminate penalty ranging from six
(6) years and one day of prision mayor, as minimum, to fourteen (14) years, eight
(8) months and one (1) day of reclusion temporal as maximum. On appeal, the CA
reduced the sentence to six (6) years of prision correccional, as minimum, to ten
(10) years of prision mayor, as maximum. The CA ratiocinated:

The information charges accused-appellants with violation of P.D. 1613 without

specifying the particular provision breached. The information having failed to allege
whether or not the burnt house is inhabited, and not having been established that the
house is situated in a populated or congested area, accused-appellants should be
deemed to have only been charged with plain arson under Section 1 of the
decree. Under Section 1 of the decree, the offense of simple arson committed is
punishable by prision mayor.

There being neither aggravating nor mitigating circumstances in the case at bar accused-
appellants should be sentenced to suffer the penalty of prision mayor in its medium
period as provided under Article 321, paragraph 1 of the Revised Penal Code, as
amended, by Presidential Decree No. 1613. Applying the Indeterminate Sentence Law,
the minimum penalty should be anywhere within the range of prision correccional.[22]

The legal basis of the trial court in convicting petitioners of arson is Section 3,
paragraph 2 of P.D. No. 1613. The said provision of law reads:

SECTION 3. Other Cases of Arson. The penalty of reclusion temporal to reclusion

perpetua shall be imposed if the property burned is any of the following:

xxxx
 2. Any inhabited house or dwelling;

The elements of this form of arson are: (a) there is intentional burning; and
(b) what is intentionally burned is an inhabited house or dwelling.[23] Admittedly,
there is a confluence of the foregoing elements here. However, the information
failed to allege that what was intentionally burned was an inhabited house or
dwelling. That is fatal.

Sections 8 and 9 of the 2000 Rules of Criminal Procedure state:

Sec. 8. Designation of the offense. The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

Sec. 9. Cause of the accusation. The acts or omissions complained of as

constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances for
the court to pronounce judgment.

Under the new rules, the information or complaint must state the
designation of the offense given by the statute and specify its qualifying and
generic aggravating circumstances. Otherwise stated, the accused will not be
convicted of the offense proved during the trial if it was not properly alleged in
the information.[24]

Perusing the information, there was no allegation that the house

intentionally burned by petitioners and their cohorts was inhabited. Rather, the
information merely recited that accused, conspiring, confederating and helping
one another, with intent to cause damage, did then and there wilfully, unlawfully,
feloniously and maliciously set on fire the nipa roof of the house of ADELINA B.
BORBE, to the latters damage and prejudice.[25]

Although the rule took effect only on December 1, 2000, while the
petitioners were convicted by the RTC on April 7, 1998, it may be applied
retroactively. It is elementary that rules of criminal procedure are given
retroactive application insofar as they benefit the accused.[26]

In fine, petitioners can be convicted only of simple arson, under Section 1,

paragraph 1 of P.D. No. 1613, punishable by prision mayor.

This is not a case of first impression. This Court has, on a number of occasions,
modified the RTC and CA judgments for having applied the wrong law and penalty
on arson. In People v. Soriano,[27] the accused was found guilty of destructive
arson, then a capital offense. On automatic review, the Court held that he should
be held liable only for simple arson. The explanation:

However, we believe that the applicable provision of law should be Sec. 3, par.
2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for
other cases of arson as the properties burned by accused-appellant are specifically
described as houses, contemplating inhabited houses or dwellings under the aforesaid
law. The descriptions as alleged in the second Amended Information particularly refer to
the structures as houses rather than as buildings or edifices. The applicable law should
therefore be Sec. 3, par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In
case of ambiguity in construction of penal laws, it is well-settled that such laws shall be
construed strictly against the government, and literally in favor of the accused.

The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is
intentional burning; and (b) what is intentionally burned is an inhabited house or
dwelling. Incidentally, these elements concur in the case at bar.

The nature of Destructive Arson is distinguished from Simple Arson by the

degree of perversity or viciousness of the criminal offender. The acts committed under
Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as
heinous crimes for being grievous, odious and hateful offenses and which, by reason of
their inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society. On the other hand, acts committed
under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity
and viciousness that the law punishes with a lesser penalty. In other words, Simple
Arson contemplates crimes with less significant social, economic, political and national
security implications than Destructive Arson. However, acts falling under Simple Arson
may nevertheless be converted into Destructive Arson depending on the qualifying
circumstances present.

In the present case, the act committed by accused-appellant neither appears to

be heinous nor represents a greater degree of perversity and viciousness as
distinguished from those acts punishable under Art. 320 of the Revised Penal Code. No
qualifying circumstance was established to convert the offense to Destructive Arson.
The special aggravating circumstance that accused-appellant was motivated by spite or
hatred towards the owner or occupant of the property burned cannot be appreciated in
the present case where it appears that he was acting more on impulse, heat of anger or
risen temper rather than real spite or hatred that impelled him to give vent to his
wounded ego. Nothing can be worse than a spurned lover or a disconsolate father
under the prevailing circumstances that surrounded the burning of
the Cimagala house. Thus, accused-appellant must be held guilty of Simple Arson
penalized under Sec. 3, par. 2, of PD 1613 for the act of intentionally burning an
inhabited house or dwelling.[28]
An oversight of the same nature was addressed by this Court in the more recent
case of People v. Malngan.[29] Said the Court in Malngan:

The ultimate query now is which kind of arson is accused-appellant guilty of?

As previously discussed, there are two (2) categories of the crime of arson:
1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic
Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613. Said
classification is based on the kind, character and location of the property burned,
regardless of the value of the damage caused, 48 to wit:

Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates

the malicious burning of structures, both public and private, hotels, buildings, edifices,
trains, vessels, aircraft, factories and other military, government or commercial
establishments by any person or group of persons. The classification of this type of
crime is known as Destructive Arson, which is punishable by reclusion perpetua to
death. The reason for the law is self-evident: to effectively discourage and deter the
commission of this dastardly crime, to prevent the destruction of properties and protect
the lives of innocent people. Exposure to a brewing conflagration leaves only
destruction and despair in its wake; hence, the State mandates greater retribution to
authors of this heinous crime. The exceptionally severe punishment imposed for this
crime takes into consideration the extreme danger to human lives exposed by the
malicious burning of these structures; the danger to property resulting from the
conflagration; the fact that it is normally difficult to adopt precautions against its
commission, and the difficulty in pinpointing the perpetrators; and, the greater impact
on the social, economic, security and political fabric of the nation. [Emphasis supplied]

If as a consequence of the commission of any of the acts penalized under Art.

320, death should result, the mandatory penalty of death shall be imposed.
 On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised
Penal Code remains the governing law for Simple Arson. This decree contemplates the
malicious burning of public and private structures, regardless of size, not included in Art.
320, as amended by RA 7659, and classified as other cases of arson. These
include houses, dwellings, government buildings, farms, mills, plantations, railways,
bus stations, airports, wharves and other industrial establishments. Although the
purpose of the law on Simple Arson is to prevent the high incidence of fires and other
crimes involving destruction, protect the national economy and preserve the social,
economic and political stability of the nation, PD 1613 tempers the penalty to be meted
to offenders. This separate classification of Simple Arson recognizes the need to lessen
the severity of punishment commensurate to the act or acts committed, depending on
the particular facts and circumstances of each case. [Emphasis supplied]

To emphasize:

The nature of Destructive Arson is distinguished from Simple Arson by the

degree of perversity or viciousness of the criminal offender. The acts committed under
Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are
characterized as heinous crimes for being grievous, odious and hateful offenses and
which, by reason of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered society. On the other hand, acts
committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of
perversity and viciousness that the law punishes with a lesser penalty. In other words,
Simple Arson contemplates crimes with less significant social, economic, political and
national security implications than Destructive Arson. However, acts falling under
Simple Arson may nevertheless be converted into Destructive Arson depending on the
qualifying circumstances present. [Emphasis supplied.]

Prescinding from the above clarification vis--vis the description of the crime as
stated in the accusatory portion of the Information, it is quite evident that accused-
appellant was charged with the crime of Simple Arson for having deliberately set fire
upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the
same to be an inhabited house and situated in a thickly populated place and as a
consequence thereof a conflagration ensued and the said building, together with some
seven (7) adjoining residential houses, were razed by fire. [Emphasis supplied]
 The facts of the case at bar is somewhat similar to the facts of the case of People
v. Soriano. The accused in the latter case caused the burning of a particular
house. Unfortunately, the blaze spread and gutted down five (5) neighboring
houses. The RTC therein found the accused guilty of destructive arson under paragraph
1 of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This
Court, through Mr. Justice Bellosillo, however, declared that:

x x x [T]he applicable provision of law should be Sec. 3, par. 2, of

PD 1613, which imposes a penalty of reclusion
temporal to reclusion perpetua for other cases of arson as the
properties burned by accused-appellant are specifically described as
houses, contemplating inhabited houses or dwellings under the
aforesaid law. The descriptions as alleged in the second Amended
Information particularly refer to the structures as houses rather than as
buildings or edifices. The applicable law should therefore be Sec. 3, Par.
2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of
ambiguity in construction of penal laws, it is well-settled that such laws
shall be construed strictly against the government, and liberally in favor
of the accused.

The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a)

there is intentional burning; and (b) what is intentionally burned is an
inhabited house or dwelling. Incidentally, these elements concur in the
case at bar.

As stated in the body of the Information, accused-appellant was charged with

having intentionally burned the two-storey residential house of Robert Separa. Said
conflagration likewise spread and destroyed seven (7) adjoining houses. Consequently, if
proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly,
of the crime of simple arson. Such is the case notwithstanding the error in the
designation of the offense in the information, the information remains effective insofar
as it states the facts constituting the crime alleged therein. What is controlling is not the
title of the complaint, nor the designation of the offense charged or the particular law or
part thereof allegedly violate, x x x but the description of the crime charged and the
particular facts therein recited.
 There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD
No. 1613 categorically provides that the penalty to be imposed for simple arson is:

SEC. 5. Where Death Results from Arson. If by reason of or on

the occasion of arson death results, the penalty of reclusion perpetua to
death shall be imposed. [Emphasis supplied]

Accordingly, there being no aggravating circumstance alleged in the

Information, the imposable penalty on accused-appellant is reclusion perpetua.[30]

Now, to the penalty. Applying the Indeterminate Sentence Law, the

maximum of the indeterminate penalty should range from six (6) years and one
(1) day to twelve (12) years. Considering that no aggravating or mitigating
circumstance attended the commission of the offense, the penalty should be
imposed in its medium period [eight (8) years and one (1) day to ten (10)
years]. The minimum of the indeterminate sentence is prision correccional, which
has a range of six (6) months and one (1) day to six (6) years, to be imposed in any
of its periods.

The CA sentence is in accord with law and jurisprudence. We sustain it.

WHEREFORE, the petition is DENIED. The appealed judgment is AFFIRMED in full.

SO ORDERED.

RUBEN T. REYES
Associate Justice
WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
Acting Chairperson

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Acting Chairpersons Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice
*
Vice Associate Justice Consuelo Ynares-Santiago, Chairperson, who is on official leave per Special Order No. 497
dated March 14, 2008.
**
Designated as additional member per Special Order No. 497 dated March 14, 2008.
[1]
Rollo, 65-72. Penned by Associate Justice Eliezer R. de los Santos (now deceased), with Associate Justices B. A.
Adefuin-de la Cruz and Jose C. Mendoza, concurring.
[2]
Id. at 26-28. Criminal Case No. T-2563. Penned by Judge Mamerto M. Buban, Jr, RTC, Branch
18, Tabaco, Albay.
[3]
TSN, September 7, 1995, p. 5.
[4]
Id. at 6.
[5]
Id. at 12.
[6]
TSN, December 8, 1994, p. 14.
[7]
Id. at 16.
[8]
Id. at 25.
[9]
Id. at 27.
[10]
Id. at 28.
[11]
Id. at 72.
[12]
Id. at 71.
[13]
Id. at 16.
[14]
Those found guilty of destructive arson would now be meted the penalty of reclusion perpetua, without
eligibility for parole.

[15]
People v. Matito, G.R. No. 144405, February 24, 2004, 423 SCRA 617.

[16]
People v. Casitas, G.R. No. 137404, February 14, 2003, 397 SCRA 382.

[17]
Revised Rules on Evidence, Rule 133, Sec. 5 reads:

Sec. 5. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce conviction beyond a
reasonable doubt.

[18]
People v. Casitas, supra.
[19]
TSN, September 7, 1995, pp. 4-29; TSN, December 8, 1994, pp. 3-38.
[20]
People v. Quinao, G.R. No. 108454, March 13, 1997, 269 SCRA 495; People v. Saul, G.R. No. 124809, December
19, 2001, 372 SCRA 636; People v. Mozar, 215 Phil. 501 (1984).

[21]
Rollo, p. 71.
[22]
Id. at 71-72.
[23]
People v. Soriano, G.R. No. 142565, July 29, 2003, 407 SCRA 367.

[24]
People v. Vallejo, G.R. No. 125784, November 19, 2003, 416 SCRA 193.
[25]
Rollo, p. 25.
[26]
People v. Vallejo, supra.

[27]
Supra note 23.
[28]
Id. at 374-376.
[29]
G.R. No. 170470, September 26, 2006, 503 SCRA 294.

[30]
People v. Malngan, id. at 327-331.

G.R. No. 188708

BRION, J.:
This is an appeal filed by appellant Alamada Macabando assailing the February 24,
2009 decision[1] of the Court of Appeals (CA) in CA-G.R. CR HC No. 00208-MIN. The
CA decision affirmed in toto the August 26, 2002 judgment[2] of the Regional Trial
Court (RTC), Branch 25, Cagayan de Oro City, finding the appellant guilty beyond
reasonable doubt of destructive arson, and sentencing him to suffer the penalty
of reclusion perpetua.

THE CASE

The prosecution's evidence showed that at around 4:00 p.m. on December 21, 2001, the
appellant broke bottles on the road while holding a G.I. pipe, and shouted that he
wanted to get even ("manabla ko").[3] Afterwards, he uttered that he would burn his
house.[4]

At 6:35 p.m. of the same day, Cornelio Feliciano heard his neighbors shout that there
was a fire. When Cornelio went out of his house to verify, he saw smoke coming from the
appellant's house. He got a pail of water, and poured its contents into the fire.[5] Eric
Quilantang, a neighbor whose house was just 10 meters from that of the appellant, ran
to the barangay headquarters to get a fire extinguisher. When Eric approached the
burning house, the appellant, who was carrying a traveling bag and a gun, told him not
to interfere; the appellant then fired three (3) shots in the air.[6] The appellant also told
the people around that whoever would put out the fire would be killed.[7]

Upon hearing the gunshots, Cornelio hurriedly went home to save his nephews and
nieces.[8] Eric also returned to his house to save his belongings.[9]

Fire Officer (FO) II Victor Naive and FOI Reynaldo Maliao conducted a spot
investigation of the incident, and concluded, among others, that the fire started in the
appellant's house; and that it had been intentional.[10] Barangay Chairman Modesto
Ligtas stated that the fire gutted many houses in his barangay, and that he assisted
the City Social Welfare and Development Department personnel in assessing the
damage.[11]

The defense, on the other hand, presented a different version of the events.

The appellant declared on the witness stand that he lived in the two-storey house in
Barangay 35, Limketkai Drive, which was owned by his sister, Madji Muslima
Edemal.[12] He admitted that he felt angry at around 2:00 p.m. on December 21, 2001
because one of his radio cassettes for sale had been stolen.[13] The appellant claimed that
he went to sleep after looking for his missing radio cassette, and that the fire had already
started when he woke up. He denied making a threat to burn his house, and maintained
that he did not own a gun. He added that the gunshots heard by his neighbors came
from the explosion of firecrackers that he intended to use during the New Year
celebration.[14]

Lomantong Panandigan, the appellant's cousin, stated, among others, that he did not
see the appellant carry a revolver or fire a shot on December 21, 2001.[15] Dimas
Kasubidan, the appellant's brother-in-law, stated that he and the appellant lived in the
same house, and that the latter was asleep in his room at the ground floor before the fire
broke out.[16]

The prosecution charged the appellant with the crime of destructive arson under Article
320 of the Revised Penal Code (RPC), as amended, before the RTC.[17] The appellant
pleaded not guilty to the charge on arraignment.[18] In its judgment dated August 26,
2002, the RTC found the appellant guilty beyond reasonable doubt of the crime charged,
and sentenced him to suffer the penalty of reclusion perpetua.

On appeal, the CA affirmed the RTC judgment in toto. It gave weight to the RTC's
factual findings since these findings were based on unrebutted testimonial and
documentary evidence. The CA held that the totality of the presented circumstantial
evidence led to the conclusion that the appellant was guilty of the crime charged.

THE COURT'S RULING

We deny the appeal, but modify the crime committed by the

appellant and the penalty imposed on him.

Sufficiency of Prosecution Evidence

We point out at the outset that no one saw the appellant set fire to his house in Barangay
35, Limketkai Drive, Cagayan de Oro City. The trial and appellate courts thus resorted to
circumstantial evidence since there was no direct evidence to prove the appellant's
culpability to the crime charged.

It is settled that in the absence of direct evidence, circumstantial evidence may be

sufficient to sustain a conviction provided that: "(a) there is more than one
circumstance; (b) the facts from which the inferences are derived have been proven; and
(c) the combination of all the circumstances results in a moral certainty that the
accused, to the exclusion of all others, is the one who has committed the
crime. Thus, to justify a conviction based on circumstantial evidence, the combination of
circumstances must be interwoven in such a way as to leave no reasonable doubt as to
the guilt of the accused."[19]

In the present case, the following circumstances constitute an unbroken chain that leads
to an unavoidable conclusion that the appellant, to the exclusion of others, set
fire to his house: first, the appellant, while holding an iron lead pipe, acted violently
and broke bottles near his house at around 4:00 p.m. of December 21, 2001; second,
while he was still in a fit of rage, the appellant stated that he would get even, and then
threatened to burn his own house; third, Judith Quilantang saw a fire in the appellant's
room approximately two hours after the appellant returned to his house; fourth, the
appellant prevented Cornelio, Eric, and several other people from putting out the fire in
his house; fifth, the appellant fired shots in the air, and then threatened to kill anyone
who would try to put out the fire in his house; sixth, the appellant carried a traveling
bag during the fire; and finally, the investigation conducted by the fire marshals of the
Bureau of Fire Protection revealed that the fire started in the appellant's house, and that
it had been intentional.

The combination of these circumstances, indeed, leads to no other conclusion than that
the appellant set fire to his house. We find it unnatural and highly unusual for the
appellant to prevent his neighbors from putting out the fire in his house, and threaten to
kill them if they did, if he had nothing to do with the crime. The first impulse of an
individual whose house is on fire is to save his loved ones and/or belongings; it is
contrary to human nature, reason and natural order of things for a person to thwart and
prevent any effort to put out the fire in his burning property. By carrying (and firing) a
gun during the fire, the appellant showed his determination to repel any efforts to quell
the fire. Important to note, too, is the fact that the appellant carried a traveling bag
during the fire which, to our mind, showed deliberate planning and preparedness on his
part to flee the raging fire; it likewise contradicted his statement that he was asleep
inside his house when the fire broke out, and that the fire was already big when he woke
up. Clearly, the appellant's indifferent attitude to his burning house and his hostility
towards the people who tried to put out the fire, coupled with his preparedness to flee
his burning house, belied his claim of innocence. Notably, the appellant failed to impute
any improper motive against the prosecution witnesses to falsely testify against him; in
fact, he admitted that he had no misunderstanding with them prior to the incident.

The Crime Committed

The CA convicted the appellant of destructive arson under Article 320 of the RPC, as
amended, which reads:

Article 320. Destructive Arson. - The penalty of reclusion perpetua to death

shall be imposed upon any person who shall burn:

1. One (1) or more buildings or edifices, consequent to one single act of

burning, or as a result of simultaneous burnings, committed on
several or different occasions.

2. Any building of public or private ownership, devoted to the public in

general or where people usually gather or congregate for a definite
purpose such as, but not limited to, official governmental function or
business, private transaction, commerce, trade, workshop, meetings
and conferences, or merely incidental to a definite purpose such as
but not limited to hotels, motels, transient dwellings, public
conveyances or stops or terminals, regardless of whether the offender
had knowledge that there are persons in said building or edifice at the
time it is set on fire and regardless also of whether the building is
actually inhabited or not.

3. Any train or locomotive, ship or vessel, airship or airplane, devoted to

transportation or conveyance, or for public use, entertainment or
leisure.

4. Any building, factory, warehouse installation and any appurtenances

thereto, which are devoted to the service of public utilities.

5. Any building the burning of which is for the purpose of concealing or

destroying evidence of another violation of law, or for the purpose of
concealing bankruptcy or defrauding creditors or to collect from
insurance.

xxxx

The penalty of reclusion perpetua to death shall also be imposed upon any
person who shall burn:
 1. Any arsenal, shipyard, storehouse or military powder or fireworks
factory, ordinance, storehouse, archives or general museum of the
Government.
2. In an inhabited place, any storehouse or factory of inflammable or
explosive materials.

In sum, "Article 320 contemplates the malicious burning of structures, both public and
private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military,
government or commercial establishments by any person or group of persons."[20]

Presidential Decree (P.D.) No. 1613,[21] on the other hand, currently governs simple
arson. Section 3 of this law provides:

Section 3. Other Cases of Arson. The penalty of Reclusion

Temporal to Reclusion Perpetua shall be imposed if the property burned is
any of the following:

1. Any building used as offices of the government or any of its agencies;

2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft,
platform or tunnel;
4. Any plantation, farm, pastureland, growing crop, grain field, orchard,
bamboo grove or forest;
5. Any rice mill, sugar mill, cane mill or mill central; and
6. Any railway or bus station, airport, wharf or warehouse. [italics and
emphasis ours]

P.D. No. 1613 contemplates the malicious burning of public and private structures,
regardless of size, not included in Article 320 of the RPC, as amended by Republic Act
No. 7659.[22] This law punishes simple arson with a lesser penalty because the acts that
constitute it have a lesser degree of perversity and viciousness. Simple arson
contemplates crimes with less significant social, economic, political, and national
security implications than destructive arson.[23]

The elements of simple arson under Section 3(2) of P.D. No. 1613 are: (a) there is
intentional burning; and (b) what is intentionally burned is an inhabited house or
dwelling. Both these elements have been proven in the present case. The Information
alleged that the appellant set fire to his own house, and that the fire spread to
other inhabited houses. These allegations were established during trial through
the testimonies of the prosecution witnesses which the trial and appellate courts found
credible and convincing, and through the report of the Bureau of Fire Protection which
stated that damaged houses were residential, and that the fire had
been intentional. Moreover, the certification from the City Social Welfare and
Development Department likewise indicated that the burned houses were used
as dwellings. The appellant likewise testified that his burnt two-story house was used
as a residence. That the appellant's act affected many families will not convert the
crime to destructive arson, since the appellant's act does not appear to be heinous or
represents a greater degree of perversity and viciousness when compared to those acts
punished under Article 320 of the RPC. The established evidence only showed that the
appellant intended to burn his own house, but the conflagration spread to the
neighboring houses.

In this regard, our ruling in Buebos v. People[24] is particularly instructive, thus:

The nature of Destructive Arson is distinguished from Simple Arson by the

degree of perversity or viciousness of the criminal offender. The acts
committed under Art. 320 of The Revised Penal Code constituting
Destructive Arson are characterized as heinous crimes "for being grievous,
odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant
and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society." On the other hand, acts
committed under PD 1613 constituting Simple Arson are crimes with a
lesser degree of perversity and viciousness that the law punishes with a
lesser penalty. In other words, Simple Arson contemplates crimes with less
significant social, economic, political and national security implications
than Destructive Arson.

The Proper Penalty

Under Section 3, paragraph 2, of P.D. No. 1613, the imposable penalty for simple arson
is reclusion temporal, which has a range of twelve (12) years and one (1) day,
to reclusion perpetua. Applying the Indeterminate Sentence Law, the penalty
imposable should be an indeterminate penalty whose minimum term should be within
the range of the penalty next lower in degree, which is prision mayor, or six (6) years
and one (1) day to twelve (12) years, and whose maximum should be the medium period
of reclusion temporal to reclusion perpetua, or sixteen (16) years and one (1) day
to twenty (20) years, taking into account the absence of any aggravating or mitigating
circumstances that attended the commission of the crime. Taking these rules into
account, we therefore impose on the appellant the indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to sixteen (16) years and one (1)
day of reclusion temporal, as maximum.

As regards the award of damages, we sustain the lower courts' findings that the records
do not adequately reflect any concrete basis for the award of actual damages to the
offended parties. To seek recovery of actual damages, it is necessary to prove the actual
amount of loss with a reasonable degree of certainty, premised upon competent proof
and on the best evidence obtainable.[25]

WHEREFORE, the assailed February 24, 2009 decision of the Court of Appeals in
CA-G.R. CR HC No. 00208-MIN is AFFIRMED with the
following MODIFICATIONS:

appellant Alamada Macabando is found guilty beyond reasonable doubt

(1)
of simple arson under Section 3(2) of Presidential Decree No. 1613; and
he is sentenced to suffer the indeterminate penalty of ten (10) years and
(2) one (1) day of prision mayor, as minimum, to sixteen (16) years and
one (1) day of reclusion temporal, as maximum.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.

[1] Rollo, pp. 5-16; penned by Associate Justice Edgardo T. Lloren, and concurred in by
Associate Justice Edgardo A. Camello and Associate Justice Jane Aurora C. Lantion.

[2] Records, pp. 453-460; penned by Judge Noli T. Catli.

[3] TSN, January 28, 2002, p. 6.

[4] TSN, March 4, 2002, p. 8.

[5] TSN, January 28, 2002, pp. 8-9.

[6] TSN, February 4, 2002, pp. 8-10.

[7] TSN, March 4, 2002, pp. 7-8.

[8] TSN, January 28, 2002, p. 9.

[9] TSN, February 4, 2002, pp.19-20.

[10] Records, pp. 99-101.

[11] TSN, April 12, 2002, pp. 5-11.

[12] TSN, June 3, 2002, pp. 3-4.

[13] Id. at 7-8.

[14] Id. at 9-11.

[15] TSN, May 2, 2002, p. 8.

[16] Id. at 27-28.

[17] Records, p. 4.

[18] Id. at 12.

[19]See Buebos v. People, G.R. No. 163938, March 28, 2008, 550 SCRA 210, 223,
citing People v. Casitas, G.R. No. 137404, February 14, 2003, 397 SCRA 382.

[20] People v. Murcia, G.R. No. 182460, March 9, 2010, 614 SCRA 741, 752.

[21] A Decree Amending the Law on Arson.

[22] People v. Malngan, 534 Phil. 404, 443 (2006).

[23] People v. Soriano, 455 Phil. 77, 93 (2003).

[24] Supra note 19, at 228.

[25]We also point out that there is a discrepancy between the affidavit-complaint of
Barangay Chairman Ligtas and the certification issued by the City Social Welfare and
Development Department with regard to the names and number of fire victims, and the
estimated cost of the damage to their respective properties.

IVLER vs. HON. MODESTO

January 25, 2017 § Leave a comment

G.R. No. 172716, November 17, 2010

FACTS: Following a vehicular collision in August 2004, petitioner Jason Ivler was charged before the

Metropolitan Trial Court of Pasig City (MeTC), with two separate offenses: (1) reckless imprudence

resulting in slight physical injuries for injuries sustained by respondent Evangeline L. Ponce; and (2)

reckless imprudence resulting in homicide and damage to property for the death of respondent Ponce’s

husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle.

Crimes charged: 1) reckless imprudence resulting in slight physical injuries; and 2) reckless imprudence

resulting in homicide and damage to property

On September 7, 2004, Ivler pleaded guilty to the charge in reckless imprudence resulting in slight

physical injuries and was meted out the penalty of public censure. Invoking this conviction, Ivler moved to

quash the Information of reckless imprudence resulting in homicide and damage to property for placing

him in jeopardy of second punishment for the same offense of reckless imprudence.

MeTC: denied the motion to quash

RTC: denied Ivler’s Petition for Certiorari in dismissing his Motion to Quash
ISSUE: Whether or not Ivler’s constitutional right under the Double Jeopardy Clause bars further

proceedings in the information charging him with reckless imprudence resulting in homicide and damage

to property (YES)

Defense: Ivler argues that his constitutional right not to be placed twice in jeopardy of punishment for the

same offense bars his prosecution in reckless imprudence resulting in homicide and damage to property

having been previously convicted in reckless imprudence resulting in slight physical injuries for injuries

for the same offense. Ivler submits that the multiple consequences of such crime are material only to

determine his penalty

HELD: The Supreme Court reversed the ruling of the RTC. Petitioner’s conviction in the case of reckless

imprudence resulting in slight physical injuries bars his prosecution in criminal reckless imprudence

resulting in homicide and damage to property

1) Reckless Imprudence is a Single Crime; its Consequences on Persons and Property are Material Only to

Determine the Penalty

Quasi-offenses penalize “the mental attitude or condition behind the act, the dangerous recklessness, lack

of care or foresight, the imprudencia punible,” unlike willful offenses which punish the intentional criminal

act. These structural and conceptual features of quasi-offenses set them apart from the mass of

intentional crimes.

2) Prior Conviction or Acquittal of Reckless Imprudence Bars Subsequent Prosecution for the Same Quasi-

offense

Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted

again for that same act. For the essence of the quasi-offense of criminal negligence under Article 365 of

the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result

thereof.

The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the

substance of the offense. And, as the careless act is single, whether the injurious result should affect one

person or several persons, the offense (criminal negligence) remains one and the same, and cannot be

split into different crimes and prosecutions.

3) Article 48 Does Not Apply to Acts Penalized Under Article 365 of the Revised Penal Code

Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two

categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from

its operation light felonies); and (2) when an offense is a necessary means for committing the other. The

legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties,

will only serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but the mental

attitude behind the act, the dangerous recklessness, lack of care or foresight, a single mental attitude

regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in

one or more consequences. Article 48 is incongruent to the notion of quasi-crime resulting in one or more

consequences.

Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for

a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an

offense which is a necessary means for committing another.

Prosecutions under Article 365 should proceed from a single charge regardless of the number or severity

of the consequences. In imposing penalties, the judge will do no more than apply the penalties under
Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under

Article 365, and only one information shall be filed in the same first level court.

REYES, J.:
Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of
Court seeking to annul and set aside the Decision[2] dated February 26, 2009 and the
Resolution[3] dated October 22, 2010 of the Sandiganbayan in Criminal Case No. 27925,
finding Venancio M. Sevilla (Sevilla) guilty of falsification of public documents through
reckless imprudence punished under Article 365 of the Revised Penal Code (RPC).

Antecedent Facts

Sevilla, a former councilor of Malabon City, was charged with the felony of falsification
of public document, penalized under Article 171(4) of the RPC, in an
Information,[4] which reads:

That on or about 02 July 2001, or for sometime prior or subsequent

thereto, in the City of Malabon, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, Venancio M. Sevilla, a
public officer, being then a member of the [S]angguniang [P]anlunsod of
Malabon City, having been elected a [c]ouncilor thereof, taking advantage
of his official position and committing the offense in relation to duty, did
then and there wilfully, unlawfully, and feloniously make a false statement
in a narration of facts, the truth of which he is legally bound to disclose, by
stating in his C.S. Form 212, dated 02 July 2001 or Personal Data Sheet, an
official document, which he submitted to the Office of the Secretariat,
Malabon City Council and, in answer to Question No. 25 therein, he stated
that no criminal case is pending against him, when in fact, as the accused
fully well knew, he is an accused in Criminal Case No. 6718-97, entitled
"People of the Philippines versus Venancio Sevilla and Artemio Sevilla", for
Assault Upon An Agent Of A Person In Authority, pending before the
Metropolitan Trial Court of Malabon City, Branch 55, thereby perverting
the truth.
CONTRARY TO LAW.[5]

Upon arraignment, Sevilla entered a plea of not guilty. Trial on the merits ensued
thereafter.

The prosecution alleged that on July 2, 2001, the first day of his term as councilor of the
City of Malabon, Sevilla made a false narration in his Personal Data Sheet (PDS).[6]
That in answer to the question of whether there is a pending criminal case against him,
Sevilla marked the box corresponding to the "no" answer despite the pendency of a
criminal case against him for assault upon an agent of a person in authority before the
Metropolitan Trial Court of Malabon City, Branch 55.

Based on the same set of facts, an administrative complaint, docketed as OMB-ADM-0-

01-1520, was likewise filed against Sevilla. In its Decision dated March 26, 2002, the
Office of the Ombudsman found Sevilla administratively liable for dishonesty and
falsification of official document and dismissed him from the service. In Sevilla v.
Gervacio,[7] the Court, in the Resolution dated June 23, 2003, affirmed the findings of
the Office of the Ombudsman as regards Sevilla's administrative liability.

On the other hand, Sevilla admitted that he indeed marked the box corresponding to the
"no" answer vis-à-vis the question on whether he has any pending criminal case.
However, he averred that he did not intend to falsify his PDS. He claimed that it was
Editha Mendoza (Mendoza), a member of his staff, who actually prepared his PDS.

According to Sevilla, on July 2, 2001, since he did not have an office yet, he just stayed
in his house. At around two o'clock in the afternoon, he was informed by Mendoza that
he needs to accomplish his PDS and submit the same to the personnel office of the City
of Malabon before five o'clock that afternoon. He then instructed Mendoza to copy the
entries in the previous copy of his PDS which he filed with the personnel office. After
the PDS was filled up and delivered to him by Mendoza, Sevilla claims that he just
signed the same without checking the veracity of the entries therein. That he failed to
notice that, in answer to the question of whether he has any pending criminal case,
Mendoza checked the box corresponding to the "no" answer.

The defense likewise presented the testimony of Edilberto G. Torres (Torres), a former
City Councilor. Torres testified that Sevilla was not yet given an office space in the
Malabon City Hall on July 2, 2001; that when the members of Sevilla's staff would then
need to use the typewriter, they would just use the typewriter inside Torres' office.
Torres further claimed that he saw Mendoza preparing the PDS of Sevilla, the latter
having used the typewriter in his office.

Ruling of the Sandiganbayan

On February 26, 2009, the Sandiganbayan rendered a Decision,[8] the decretal portion
of which reads:

WHEREFORE, accused VENANCIO M. SEVILLA is found GUILTY of

Falsification of Public Documents Through Reckless Imprudence and
pursuant to Art. 365 of the Revised Penal Code hereby imposes upon him in
the absence of any modifying circumstances the penalty of four (4) months
of arresto mayor as minimum to two (2) years ten (10) months and twenty
one (21) days of prision correccional as maximum, and to pay the costs.

There is no pronouncement as to civil liability as the facts from which it

could arise do[es] not appear to be indubitable.

SO ORDERED.[9]

The Sandiganbayan found that Sevilla made an untruthful statement in his PDS, which
is a public document, and that, in so doing, he took advantage of his official position
since he would not have accomplished the PDS if not for his position as a City
Councilor. That being the signatory of the PDS, Sevilla had the responsibility to
prepare, accomplish and submit the same. Further, the Sandiganbayan pointed out that
there was a legal obligation on the part of Sevilla to disclose in his PDS that there was a
pending case against him. Accordingly, the Sandiganbayan ruled that the prosecution
was able to establish all the elements of the felony of falsification of public documents.

Nevertheless, the Sandiganbayan opined that Sevilla cannot be convicted of falsification

of public document under Article 171(4)[10] of the RPC since he did not act with
malicious intent to falsify the aforementioned entry in his PDS. However, considering
that Sevilla's PDS was haphazardly and recklessly done, which resulted in the false entry
therein, the Sandiganbayan convicted Sevilla of falsification of public document through
reckless imprudence under Article 365[11] of the RPC. Thus:

Moreover, the marking of the "no" box to the question on whether there
was a pending criminal case against him was not the only defect in his
PDS. As found by the Office of the Honorable Ombudsman in its
Resolution, in answer to question 29 in the PDS, accused answered that he
had not been a candidate in any local election (except barangay election),
when in fact he ran and served as councilor of Malabon from 1992 to 1998.
Notwithstanding the negative answer in question 29, in the same PDS, in
answer to question 21, he revealed that he was a councilor from 1992 to
1998. Not to give premium to a negligent act, this nonetheless shows that
the preparation of the PDS was haphazardly and recklessly done.

Taking together these circumstances, this Court is persuaded that accused

did not act with malicious intent to falsify the document in question but
merely failed to ascertain for himself the veracity of narrations in his PDS
before affixing his signature thereon. The reckless signing of the PDS
without verifying the data therein makes him criminally liable for his act.
Accused is a government officer, who prior to his election as councilor in
2001, had already served as a councilor of the same city. Thus, he should
have been more mindful of the importance of the PDS and should have
treated the said public document with due respect.

Consequently, accused is convicted of Falsification of Public Document

through Reckless Imprudence, as defined and penalized in Article 171,
paragraph 4, in relation to Article 365, paragraph 1, of the Revised Penal
Code. x x x.[12]

Sevilla's motion for reconsideration was denied by the Sandiganbayan in its

Resolution[13] dated October 22, 2010.

Hence, this appeal.

In the instant petition, Sevilla asserts that the Sandiganbayan erred in finding him guilty
of the felony of falsification of public documents through reckless imprudence. He
claims that the Information that was filed against him specifically charged him with the
commission of an intentional felony, i.e. falsification of public documents under Article
171(4) of the RPC. Thus, he could not be convicted of falsification of public document
through reckless imprudence under Article 365 of the RPC, which is a culpable felony,
lest his constitutional right to be informed of the nature and cause of the accusation
against him be violated.

Issue

Essentially, the issue for the Court's resolution is whether Sevilla can be convicted of the
felony of falsification of public document through reckless imprudence notwithstanding
that the charge against him in the Information was for the intentional felony of
falsification of public document under Article 171(4) of the RPC.

Ruling of the Court

The appeal is dismissed for lack of merit.

At the outset, it bears stressing that the Sandiganbayan's designation of the felony
supposedly committed by Sevilla is inaccurate. The Sandiganbayan convicted Sevilla of
reckless imprudence, punished under Article 365 of the RPC, which resulted into the
falsification of a public document. However, the Sandiganbayan designated the felony
committed as "falsification of public document through reckless imprudence." The
foregoing designation implies that reckless imprudence is not a crime in itself but
simply a modality of committing it. Quasi-offenses under Article 365 of the RPC are
distinct and separate crimes and not a mere modality in the commission of a crime.

In Ivler v. Modesto-San Pedro,[14] the Court explained that:

Indeed, the notion that quasi-offenses, whether reckless or simple, are

distinct species of crime, separately defined and penalized under the
framework of our penal laws, is nothing new. As early as the middle of the
last century, we already sought to bring clarity to this field by rejecting
in Quizon v. Justice of the Peace of Pampanga the proposition that
"reckless imprudence is not a crime in itself but simply a way of committing
it x x x" on three points of analysis: (1) the object of punishment in quasi-
crimes (as opposed to intentional crimes); (2) the legislative intent to treat
quasi crimes as distinct offenses (as opposed to subsuming them under the
mitigating circumstance of minimal intent) and; (3) the different penalty
structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of
committing it and merely determines a lower degree of criminal liability is
too broad to deserve unqualified assent. There are crimes that by their
structure cannot be committed through imprudence: murder, treason,
robbery, malicious mischief, etc. In truth, criminal negligence in our
Revised Penal Code is treated as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere question of classification
or terminology. In intentional crimes, the act itself is punished; in
negligence or imprudence, what is principally penalized is the mental
attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible. x x x

Were criminal negligence but a modality in the commission of felonies,

operating only to reduce the penalty therefor, then it would be absorbed in
the mitigating circumstances of Art. 13, specially the lack of intent to
commit so grave a wrong as the one actually committed. Furthermore,
the theory would require that the corresponding penalty should be fixed in
proportion to the penalty prescribed for each crime when committed
willfully. For each penalty for the willful offense, there would then be a
corresponding penalty for the negligent variety. But instead, our Revised
Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto
mayor maximum, to prision correccional [medium], if the willful act would
constitute a grave felony, notwithstanding that the penalty for the latter
could range all the way from prision mayor to death, according to the case.
It can be seen that the actual penalty for criminal negligence bears no
relation to the individual willful crime, but is set in relation to a whole class,
or series, of crimes. (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes

is to state that their commission results in damage, either to
person or property.[15] (Citations omitted and emphasis ours)

Further, in Rafael Reyes Trucking Corporation v. People,[16] the Court clarified

that:

Under Article 365 of the Revised Penal Code, criminal negligence "is
treated as a mere quasi offense, and dealt with separately from willful
offenses. It is not a question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude
or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible. Much of the
confusion has arisen from the common use of such descriptive
phrase as 'homicide through reckless imprudence', and the like;
when the strict technical sense is, more accurately, 'reckless
imprudence resulting in homicide'; or 'simple imprudence
causing damages to property'."

There is need, therefore, to rectify the designation of the offense without disturbing the
imposed penalty for the guidance of bench and bar in strict adherence to
precedent.[17] (Emphasis ours)

Thus, the proper designation of the felony should be reckless imprudence resulting to
falsification of public documents and not falsification of public documents through
reckless imprudence.

Having threshed out the proper designation of the felony committed by Sevilla, the
Court now weighs the merit of the instant appeal. Sevilla's appeal is anchored mainly on
the variance between the offense charged in the Information that was filed against him
and that proved by the prosecution. The rules on variance between allegation and proof
are laid down under Sections 4 and 5, Rule 120 of the Rules of Court, viz:

Sec. 4. Judgment in case of variance between allegation and proof. When

there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.

Sec. 5. When an offense includes or is included in another. An offense

charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former
constitute or form part of those constituting the latter.

Accordingly, in case of variance between the allegation and proof, a defendant may be
convicted of the offense proved when the offense charged is included in or necessarily
includes the offense proved.

There is no dispute that a variance exists between the offense alleged against Sevilla and
that proved by the prosecution the Information charged him with the intentional felony
of falsification of public document under Article 171(4) of the RPC while the prosecution
was able to prove reckless imprudence resulting to falsification of public documents.
Parenthetically, the question that has to be resolved then is whether reckless
imprudence resulting to falsification of public document is necessarily included in the
intentional felony of falsification of public document under Article 171(4) of the RPC.

The Court, in Samson v. Court of Appeals,[18] has answered the foregoing question
in the affirmative. Thus:

It is however contended that appellant Samson cannot be convicted of the

crime of estafa through falsification by imprudence for the reason that the
information filed against him charges only a willful act of falsification and
contains no reference to any act of imprudence on his part. Nor can it be
said, counsel argues, that the alleged imprudent act includes or is
necessarily included in the offense charged in the information because a
deliberate intent to do an unlawful act is inconsistent with the idea of
negligence.

xxxx

While a criminal negligent act is not a simple modality of a wilful crime, as

we held in Quizon v. Justice of the Peace of Bacolor, x x x, but a distinct
crime in itself, designated as a quasi offense, in our Penal Code, it may
however be said that a conviction for the former can be had
under an information exclusively charging the commission of a
wilful offense, upon the theory that the greater includes the
lesser offense. This is the situation that obtains in the present case.
Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the
falsification which made possible the cashing of checks in question,
appellant did not act with criminal intent but merely failed to take proper
and adequate means to assure himself of the identity of the real claimants
as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but
which turned out to be not willful but negligent. This is a case
covered by the rule when there is a variance between the
allegation and proof, and is similar to some of the cases decided by this
Tribunal.[19] (Emphasis ours)

Thus, Sevilla's claim that his constitutional right to be informed of the nature and cause
of the accusation against him was violated when the Sandiganbayan convicted him of
reckless imprudence resulting to falsification of public documents, when the
Information only charged the intentional felony of falsification of public documents, is
untenable. To stress, reckless imprudence resulting to falsification of public documents
is an offense that is necessarily included in the willful act of falsification of public
documents, the latter being the greater offense. As such, he can be convicted of reckless
imprudence resulting to falsification of public documents notwithstanding that the
Information only charged the willful act of falsification of public documents.

In this regard, the Court's disposition in Sarep v. Sandiganbayan[20] is instructive.

In Sarep, the petitioner therein falsified his appointment paper which he filed with the
CSC. An Information was then filed against him for falsification of public document.
Nevertheless, the Court convicted the accused of reckless imprudence resulting to
falsification of public document upon a finding that the accused therein did not
maliciously pervert the truth with the wrongful intent of injuring some person. The
Court, quoting the Sandiganbayan's disposition, held that:

We are inclined, however, to credit the accused herein with the benefit of
the circumstance that he did not maliciously pervert the truth with the
wrongful intent of injuring some person (People vs. Reyes, 1 Phil. 341).
Since he sincerely believed that his CSC eligibility based on his having
passed the Regional Cultural Community Officer (Unassembled)
Examination and educational attainment were sufficient to qualify him for
a permanent position, then he should only be held liable for falsification
through reckless imprudence (People vs. Leopando, 36 O.G. 2937; People
vs. Maleza, 14 Phil. 468; People vs. Pacheco, 18 Phil. 399).

Article 365 of the Revised Penal Code, which punishes criminal negligence
or quasi-offenses, furnishes the middle way between a wrongful act
committed with wrongful intent, which gives rise to a felony, and a
wrongful act committed without any intent which may entirely exempt the
doer from criminal liability. It is the duty of everyone to execute his own
acts with due care and diligence in order that no prejudicial or injurious
results may be suffered by others from acts that are otherwise offensive
(Aquino, R.P.C. Vol. III, 1976, Ed., p. 1884). What is penalized is the
mental attitude or condition behind the acts of dangerous recklessness and
lack of care or foresight although such mental attitude might have produced
several effects or consequences (People vs. Cano, L 19660, May 24,
1966).[21]

Anent the imposable penalty, under Article 365 of the RPC, reckless imprudence
resulting in falsification of public document is punishable by arresto mayor in its
maximum period to prision correccional in its medium period. In this case, taking
into account the pertinent provisions of Indeterminate Sentence Law, the
Sandiganbayan correctly imposed upon Sevilla the penalty of four (4) months
of arresto mayor as minimum to two (2) years ten (10) months and twenty one (21)
days of prision correccional as maximum.

WHEREFORE, in consideration of the foregoing disquisitions, the appeal

is DISMISSED. The Decision dated February 26, 2009 and the Resolution dated
October 22, 2010 of the Sandiganbayan in Criminal Case No. 27925 are
hereby AFFIRMED.

SO ORDERED.
Sereno, C.J., (Chairperson), Bersamin,* Villarama, Jr., and Mendoza,** JJ.,
concur.

*Acting Working Chairperson per Special Order No. 1741 dated July 31, 2014 vice
Justice Teresita J. Leonardo-De Castro.

**Acting Member per Special Order No. 1738 dated July 31, 2014 vice Justice Teresita J.
Leonardo-De Castro.

[1] Rollo, pp. 24-35.

[2]Penned by Associate Justice Edilberto G. Sandoval, with Associate Justices Teresita

V. Diaz-Baldos and Samuel R. Martires, concurring; id. at 7-17.

[3] Id. at 19-21.

[4] Id. at 52-53.

[5] Id.

[6] Id. at 56-57.

[7] G.R. No. 157207.

[8] Rollo, pp. 37-47.

[9] Id. at 46.

[10]Art. 171. Falsification by public officer, employee or notary or

ecclesiastic minister. The penalty of prision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any of the
following acts:

xxxx

4. Making untruthful statements in a narration of facts;

xxxx

Art. 365. Imprudence and negligence. Any person who, by reckless imprudence,
[11]
shall commit any act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to prision
correccional in its medium periods shall be imposed; x x x.

[12] Rollo, p. 45.

[13] Id. at 49-51.

[14] G.R. No. 172716, November 17, 2010, 635 SCRA 191.

[15] Id. at 203-205.

[16] 386 Phil. 41 (2000).

[17] Id. at 61-62.

[18] 103 Phil. 277 (1958).

[19] Id. at 284-285.

[20] 258 Phil. 229 (1989).

[21] Id. at 238-239.

People vs. Figueroa

G.R. No. 205472

AMADO I. SARAUM,1 Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse the Decision2dated
September 8, 2011 and Resolution3 elated December 19, 2012 of the Court of Appeals (CA) in CAG. R. CEB CR No.
01199, which affirmed the judgment of conviction against petitioner Amado I. Saraum (Saraum) rendered by the
Regional Trial Court (RTC), Branch 57, Cebu City, in Criminal Case No. CBU-77737.

Saraum was charged with violation of Section 12, Article II (Possession of Paraphernalia for Dangerous Drugs) of
Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of the
Information reads:
That on or about the 17th day of August, 2006, at about 12:45 A.M., in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent, and without being authorized by law, did
then and there have in his possession the following:

1 = One (1) lighter

2 = One (1) rolled tissue paper

3 = One (1) aluminum tin foil

which are instruments and/or equipments (sic) fit or intended for smoking, consuming, administering, ingesting, or
introducing any dangerous drug into the body.

CONTRARY TO LAW.4

In his arraignment, Saraum, with the assistance of a counsel, pleaded not guilty to the offense charged. 5 Trial ensued.
Meantime, Saraum was released on bail.6

PO3 Jeffrey Larrobis and PO1 Romeo Jumalon testified for the prosecution while the defense presented no witness
other than Saraum.

According to the prosecution, on August 17, 2006, a telephone call was received by PO3 Larrobis regarding the
illegal drug activities in Sitio Camansi, Barangay Lorega, Cebu City. A buy-bust team was then formed composed of
PO3 Larrobis, PO1 Jumalon, PO2 Nathaniel Sta. Ana, PO1 Roy Cabahug, and PO1 Julius Aniñon against a certain
"Pata." PO2 Sta. Ana was designated as the poseur-buyer accompanied by the informant, PO1 Jumalon as the back-
up of PO2 Sta. Ana, and the rest of the team as the perimeter security. PO1 Aniñon coordinated with the Philippine
Drug Enforcement Agency (PDEA) regarding the operation. After preparing all the necessary documents, such as the
pre-operation report and submitting the same to the PDEA, the team proceeded to the subject area.

During the operation, "Pata" eluded arrest as he tried to run towards his shanty. Inside the house, which was divided
with a curtain as partition, the buy-bust team also saw Saraum and Peter Esperanza, who were holding drug
paraphernalia apparently in preparation to have a "shabu" pot session. They recovered from Saraum’s possession a
lighter, rolled tissue paper, and aluminum tin foil (tooter). PO3 Larrobis confiscated the items, placed them in the
plastic pack of misua wrapper, and made initial markings ("A" for Saraum and "P" for Esperanza). At the police
station, PO3 Larrobis marked as "AIS-08-17-2006" the paraphernalia recovered from Saraum. After the case was
filed, the subject items were turned over to the property custodian of the Office of City Prosecutor.

By way of defense, Saraum denied the commission of the alleged offense. He testified that on the date and time in
question, he was passing by Lorega Cemetery on his way to the house of his parents-in-law when he was held by
men with firearms. They were already with "Antik" and "Pata," both of whom were his neighbors. Believing that he
had not committed anything illegal, he resisted the arrest. He learned of the criminal charge only when he was
brought to the court.

On May 5, 2009, the RTC rendered its Decision,7 the dispositive portion of which states:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of violation of Section 12,
Article II of R.A. 9165 and he is hereby sentenced to suffer the penalty of six (6) months and one (1) day to two (2)
years and to pay a fine of Php20,000.00 with subsidiary imprisonment in case of insolvency.

The drug paraphernalias (sic) are ordered forfeited in favor of the government.

SO ORDERED.8

On appeal, the CA sustained the judgment of conviction; hence, this petition.

We deny.
Considering that Saraum failed to show any arbitrariness, palpable error, or capriciousness on the findings of fact of
the trial and appellate courts, such findings deserve great weight and are deemed conclusive and binding. 9 Besides, a
review of the records reveals that the CA did not err in affirming his conviction.

The elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs
under Section 12, Article II of R.A. No. 9165 are: (1) possession or control by the accused of any equipment,
apparatus or other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body; and (2) such possession is not authorized by law.10 In this case, the
prosecution has convincingly established that Saraum was in possession of drug paraphernalia, particularly
aluminum tin foil, rolled tissue paper, and lighter, all of which were offered and admitted in evidence.

Saraum was arrested during the commission of a crime, which instance does not require a warrant in accordance
with Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure.11 In arrest in flagrante delicto, the accused
is apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the
presence of the arresting officer. To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the
person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting
officer.12

Here, the Court is unconvinced with Saraum’s statement that he was not committing a crime at the time of his arrest.
PO3 Larrobis described in detail how they were able to apprehend him, who was then holding a disposable lighter in
his right hand and a tin foil and a rolled tissue paper in his left hand,13 while they were in the course of arresting
somebody. The case is clearly one of hot pursuit of "Pata," who, in eluding arrest, entered the shanty where Saraum
and Esperanza were incidentally caught in possession of the illegal items. Saraum did not proffer any satisfactory
explanation with regard to his presence at the vicinity of the buy-bust operation and his possession of the seized
items that he claims to have "countless, lawful uses." On the contrary, the prosecution witnesses have adequately
explained the respective uses of the items to prove that they were indeed drug paraphernalia. 14 There is, thus, no
necessity to make a laboratory examination and finding as to the presence or absence of methamphetamine
hydrochloride or any illegal substances on said items since possession itself is the punishable act.

The valid warrantless arrest gave the officers the right to search the shanty for objects relating to the crime and seize
the drug paraphernalia they found. In the course of their lawful intrusion, they inadvertently saw the various drug
1âwphi1

paraphernalia. As these items were plainly visible, the police officers were justified in seizing them. Considering that
Saraum’s arrest was legal, the search and seizure that resulted from it were likewise lawful. The various drug
paraphernalia that the police officers found and seized in the shanty are, therefore, admissible in evidence for having
proceeded from a valid search and seizure. Since the confiscated drug paraphernalia are the very corpus delicti of
the crime charged, the Court has no choice but to sustain the judgment of conviction.

Even if We consider the arrest as invalid, Saraum is deemed to have waived any objection thereto when he did not
raise the issue before entering his plea. "The established rule is that an accused may be estopped from assailing the
legality of his arrest if he failed to move for the quashing of the Information against him before his arraignment. Any
objection involving the arrest or the procedure in the court's acquisition of jurisdiction over the person of an accused
must be made before he enters his plea; otherwise the objection is deemed waived." 15 In this case, counsel for
Saraum manifested its objection to the admission of the seized drug paraphernalia, invoking illegal arrest and search,
only during the formal offer of evidence by the prosecution. 16

In ascertaining the identity of the illegal drugs and/or drug paraphernalia presented in court as the ones actually
seized from the accused, the prosecution must show that: (a) the prescribed procedure under Section 21(1), Article II
of R.A. No. 9165 has been complied with or falls within the saving clause provided in Section 21(a), Article II of the
Implementing Rules and Regulations (IRR) of R.A. No. 9165;17 and (b) there was an unbroken link (not perfect link) in
the chain of custody with respect to the confiscated items.18

Although Section 21(1) of R.A. No. 9165 mandates that the apprehending team must immediately conduct a physical
inventory of the seized items and photograph them, non-compliance therewith is not fatal as long as there is a
justifiable ground and as long as the integrity and the evidentiary value of the confiscated/seized items are properly
preserved by the apprehending team.19 While nowhere in the prosecution evidence show the "justifiable ground"
which may excuse the police operatives involved in the buy-bust operation from making the physical inventory and
taking a photograph of the drug paraphernalia confiscated and/or seized, such omission shall not render Saraum's
arrest illegal or the items seized/confiscated from him as inadmissible in evidence. Said "justifiable ground" will
remain unknown in the light of the apparent failure of Saraum to specifically challenge the custody and safekeeping
or the issue of disposition and preservation of the subject drug paraphernalia before the trial court. He cannot be
allowed too late in the day to question the police officers' alleged non-compliance with Section 21 for the first time on
appeal.20

The chain of custody rule requires the identification of the persons who handled the confiscated items for the purpose
of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they were
seized from the accused until the time they are presented in court. 21 Section 1(b) of Dangerous Drugs Board
Regulation No. 1, Series of 2002, implementing R.A. No. 9165, defines chain of custody as follows:

Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition.

In Mallillin v. People,22 the Court discussed how the chain of custody of seized items should be established, thus:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It
would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness’ possession, the condition in which it was
received and the condition in which it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same. 23

While the procedure on the chain of custody should be perfect and unbroken, in reality, it is almost always impossible
to obtain an unbroken chain.24 Thus, failure to strictly comply with Section 21(1), Article II of R.A. No. 9165 does not
necessarily render an accused person's arrest illegal or the items seized or confiscated from him inadmissible. 25

x x x Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and
is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids
its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that
will be accorded it by the courts. x x x

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the
confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue
therefore, if there is non-compliance with said section, is not of admissibility, but of weight - evidentiary merit or
probative value - to be given the evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.26

The most important factor is the preservation of the integrity and evidentiary value of the seized items. 27 In this case,
the prosecution was able to demonstrate that the integrity and evidentiary value of the confiscated drug paraphernalia
had not been compromised because it established the crucial link in the chain of custody of the seized items from the
time they were first discovered until they were brought to the court for examination. Even though the prosecution
failed to submit in evidence the physical inventory and photograph of the drug paraphernalia, this will not render
Saraum's arrest illegal or the items seized from him inadmissible. There is substantial compliance by the police as to
the required procedure on the custody and control of the confiscated items. The succession of events established by
evidence and the overall handling of the seized items by specified individuals all show that the evidence seized were
the same evidence subsequently identified and testified to in open court.

Certainly, the testimonies of the police officers who conducted the buy-bust operation are generally accorded full faith
and credit in view of the presumption of regularity in the performance of official duties and especially so in the
absence of ill-motive that could be attributed to them.28 The defense failed to show any odious intent on the part of the
police officers to impute such a serious crime that would put in jeopardy the life and liberty of an innocent
person.29 Saraum’s mere denial cannot prevail over the positive and categorical identification and declarations of the
police officers. The defense of denial, frame-up or extortion, like alibi, has been invariably viewed by the courts with
disfavor for it can easily be concocted and is a common and standard defense ploy in most cases involving violation
of the Dangerous Drugs Act.30 As evidence that is both negative and self-serving, this defense cannot attain more
credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence on
the various aspects of the crime committed.31 To merit consideration, it has to be substantiated by strong, clear and
convincing evidence, which Saraum failed to do for presenting no corroborative evidence.32

Settled is the rule that, unless some facts or circumstances of weight and influence have been overlooked or the
significance of which has been misinterpreted, the findings and conclusion of the trial court on the credibility of
witnesses are entitled to great respect and will not be disturbed because it has the advantage of hearing the
witnesses and observing their deportment and manner of testifying. 33 The rule finds an even more stringent
application where said findings are sustained by the CA as in this case. 34 In this case, the quantum of evidence
necessary to prove Saraum 's guilt beyond reasonable doubt had been sufficiently met since the prosecution stood
on its own strength and did not rely on the weakness of the defense. 'The prosecution was able to overcome the
constitutional right of the accused to be presumed innocent until proven guilty.

WHEREFORE, premises considered, the petition is DENIED. The Decision elated September 8, 2011 and Resolution
dated December 19, 2012 of the Court of Appeals in CA-G.R. CEB CR No. 01199, which sustained the judgment of
conviction rendered by the Regional Trial Court, Branch 57, Cebu City, in Criminal Case No. CBU-77737,
is AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARIANO C. DEL CASTILLO* JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

CERTIFIED TRUE COPY

WILFREDO V. LAPITAN
 Division Clerk of Court
Third Division
February 17, 2016

Footnotes

*
Designated Additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated October
13, 2014.

1
Rollo, pp. 73-74, 84.

2
Penned by Associate Justice Eduardo 13. Peralta, .Jr., with Associate Justices Pampio A. Abarintos and
Gabriel T. Ingles concurring, rollo, pp. 53-59.

3
Rollo, pp. 67-68.

4
Records, p. 1.

5
Id. at 22.

6
Id. at 19.

7
Rollo, pp. 34-36.

8
Id. at 35-36.

9
See People v. Bontuyan, G.R. No. 206912, September 10, 2014, 735 SCRA 49, 59-60.

People v. Mariano, 698 Phil. 772, 785 (2012), as cited in Avila v. People, G.R. No. 195934, November 27,
10

2013 (Third Division Resolution) and People v. Saulo, G.R. No. 201450, April 7, 2014 (First Division
Resolution).

11
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

12
Ambre v. People, 692 Phil. 681, 694 (2012) and Zalameda v. People, 614 Phil. 710, 729 (2009).

13
TSN, July 9, 2008, pp. 15-16.

14
Id. at 9; TSN, February 27, 2008, pp. 17-18, 20-23.
15
Zalameda v. People, supra note 12, at 729.

16
TSN, July 9, 2008, p. 22.

The requirements are imposed by Section 21, paragraph 1, Article II of Republic Act No. 9165, whose
17

pertinent portion reads as follows:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment.– The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof;

xxxx

To implement the requirements of Republic Act No. 9165, Section 21 (a), Article II of the IRR
relevantly states:

xxxx

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody over said
items;

x x x x (See People v. Bartolome, G.R. No. 191726, February 6, 2013, 690 SCRA 159, 175-176).

18
People v. Alivio, et al., 664 Phil. 565, 576-577 (2011).

19
People v. Campomanes, et al., 641 Phil. 610, 622 (2010).

20
Id. at 623.

21
People v. Alivio, et al., supra note 18, at 577-578.

22
576 Phil. 576 (2008).

23
Mallillin v. People, supra, at 587.

24
Ambre v. People, supra note 12, at 695.
 25
Zalameda v. People, supra note 12, at 741.

26
Id. at 741-742.

27
Id. at 741; and Ambre v. People, supra note 12, at 695.

28
See People v. Posada, et al., 684 Phil. 20, 34 (2012).

29
See People v. Bontuyan, supra note 9, at 64.

People v. Mariano, supra note 10, at 785; Ambre v. People, supra note 12, at 697; People v. Villahermosa,
30

665 Phil. 399, 418 (2011); and Zalameda v. People, supra note 12, at 733.

31
Zalameda v. People, supra note 12, at 733.

Id.; People v. Mariano, supra note 10; People v. Villahermosa, supra note 30; and People v. Saulo,
32

supranote 10.

People v. Villahermosa, supra note 30, at 420; People v. Campomanes, et al., supra note 19, at 621;
33

and People v. Canaya, G.R. No. 212173, February 25, 2015 (Third Division Resolution).

34
People v. Villahermosa, supra note 30, at 420.

DEL CASTILLO, J.:

"Statutory rules on preserving the chain of custody of confiscated prohibited drugs and
related items are designed to ensure the integrity and reliability of the evidence to be
presented against the accused. Their observance is the key to the successful prosecution
of illegal possession or. illegal sale of dangerous drugs."[1]

At issue in this case is whether appellant Fernando Ranche Havana a.k.a. Fernando
Ranche Abana did in fact sell or deliver to an alleged poseur-buyer some 0.03 gram of
the banned substance Methylamphetamine Hydrochloride, locally known as "shabu" on
the late afternoon of November 4, 2005. The appellant insists that he never did. The
prosecution asserts the contrary.

On appeal is the May 31, 2010 Decision[2] of the Court of Appeals (CA) in CA-G.R. CR-
HC No. 00688, affirming the February 28, 2007 Decision[3] of the Regional Trial Court
(RTC) of Cebu City, Branch 58 finding Fernando Havana y Ranche a.k.a. Fernando
Abana yRanche (appellant) guilty of violating Section 5, Article II of Republic Act No.
9165 (RA 9165) otherwise known as the Comprehensive Dangerous Drugs Act of 2002
and sentencing him to suffer the penalty of life imprisonment and to pay a fine of
P500,000.00.
Factual Antecedents

In an Information[4] dated November 18, 2005, the appellant was charged with illegal
sale of dangerous drugs committed as follows:

That on or about the 4th day of November, 2005, at about 6:30 p.m., in the
City of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with deliberate intent and without authority of law,
did then and there sell, deliver or give away to a poseur[-]buyer the
following:

One (1) heat-sealed transparent plastic packet containing 0.03 gram of

white crystalline substance containing Methylamphetamine Hydrochloride,
locally known as "SHABU", a dangerous drug.

CONTRARY TO LAW.[5]

Appellant put in a negative plea. Trial then followed.

The prosecution's case is essentially erected upon the testimonies of PO2 Miguel R.
Enriquez[6] (PO2 Enriquez), SPO1 Rogelio J. Canete, Jr. (SPO1 Cañete), and Police Chief
Inspector Mutchit G. Salinas (PCI Salinas), all members of the Philippine National
Police (PNP), Police Station 10, Punta Princesa, Cebu City and documentary exhibits
pertaining to the buy-bust operation. The combined testimonies and the documentary
exhibits tended to establish these facts:

On the afternoon of November 4, 2005, a civilian informant, one "Droga", went to Police
Station 10, Punta Princesa, Cebu City and reported to the duty officer SPO1 Vicente R.
Espenido, Jr. (SPO1 Espenido) that the appellant was actively engaged in the illegal drug
trade at Sitio Mangga, Punta Princesa, Cebu City. SPO1 Espenido immediately
assembled a buy-bust team, with him as the team leader, the civilian asset and with PO2
Enriquez, SPO1 Canete, and SPO1 Jasper C. Nuñez (PO2 Nuñez) as back-up. The police
team designated the unnamed "civilian informant" as poseur-buyer and provided him
with a PI00.00 marked money bill, with its serial number (SN003332) noted in the
police blotter,[7] to be used for the purpose of buying shabu from appellant. The buy-
bust operation was allegedly coordinated with the Office of the Philippine Drug
Enforcement Agency (PDEA).[8] When the police team reached the target area, the
"civilian informant" went to the house of appellant and called the latter. Hidden from
view, some 15 meters away from the house, the back-up operatives, PO2 Enriquez and
SPO1 Canete, saw the civilian informant talking with the appellant. Not long after, they
saw the "civilian informant" handling over the marked PI00.00 bill to the appellant,
who in exchange gave to the former a plastic pack containing 0.03 gram white
crystalline substance which these two suspected as shabu. The "civilian informant"
then placed a face towel on his left shoulder to signal that the sale had been
consummated. SPO1 Espenido and his two companions rushed towards the "civilian
informant" and the appellant and arrested the latter after apprising him of his
constitutional rights. SPO1 Espenido recovered the P100.00 marked money from the
appellant while the plastic pack was given by the "civilian informant" to SPO1 Espenido.

The appellant was taken to the police station for investigation. The P100.00 marked
money and the plastic pack containing the suspected shabu were turned over to SPO2
Nuñez who marked the plastic pack with "FA" the initials of herein appellant. He then
prepared a letter requesting for examination[9] of the item seized from the appellant
addressed to the PNP Crime Laboratory. PCI Salinas, a forensic chemist of the PNP
Crime Laboratory of Brgy. Apas, Cebu City, testified that he conducted a laboratory
examination of the recovered specimen[10] that yielded "positive result for the presence
of methylamphetamine hydrochloride, a dangerous drug.''[11]

The appellant denied that he was a shabu-seller; he also denied that he was arrested in
a buy-bust operation. He claimed that on that evening of November 4, 2005 he was
eating bread when SPO2 Nuñez barged inside his house, handcuffed him and brought
him to the police precinct. He claimed that he was mistaken for his neighbor "Narding"
the real shabu-seller. His daughter, Maria Theresa, corroborated him.

Ruling of the Regional Trial Court

The RTC found appellant guilty as charged and sentenced him to suffer the penalty of
life imprisonment and to pay a fine of P500,000.00.

From this judgment, appellant appealed to the CA. Ruling of the Court of Appeals

On appeal, the CA upheld the RTC ruling. The appellate court held that the non-
submission of the pre-operation report to the PDEA did not at all render the buy-bust
operation irregular. What it held as important is that the police officers were able to call
the PDEA prior to the operation. The CA was convinced that all the elements of the
offense charged were established by the prosecution. The CA held that the integrity and
evidentiary value of the confiscated item had been preserved, despite the fact that the
police officers did not strictly adhere to the procedure outlined in Section 21 of RA 9165
which governs the so-called "buy-bust" operations. It held that the police officers
regularly performed their functions. Thus, in its Decision of May 31,2010, the CA
decreed dispositively -

WHEREFORE, premises considered, the Appeal is hereby DISMISSED.

The Decision dated February 28, 2007 of the Regional Trial Court (RTC),
Branch 58, Cebu City, in Criminal Case No. CBU-75283, is AFFIRMED.
SO ORDERED.[12]

Aggrieved, appellant is now before us seeking the reversal of his conviction faulting the
courts below for convicting him of the crime charged. He questions in his Supplemental
Brief: (1) the lack of pre-coordination with the PDEA regarding the buy-bust operation,
(2) the non-presentation in court of the unnamed "civilian informant" as poseur-buyer,
(3) the non-compliance by the police officers with the prescribed procedure under
Section 21, Article II of RA 9165 and lastly, the dubious chain of custody of the
subject shabu.

The Office of the Solicitor General (OSG) prays for the affirmance of the appealed
Decision arguing that the essential elements of the offense charged had been adequately
established and that the appellant's bare denial cannot prevail over the positive and
straightforward testimonies of the police operatives who are presumed to have
performed their duties regularly.

Our Ruling

The appeal is well-taken.

Prefatorily, we stress again that generally, the trial court's findings of fact, especially
when affirmed by the CA, are entitled to great weight, and will not be disturbed on
appeal.[13] Even as this Court must defer to this salutary rule, it must likewise pay
homage to a higher duty which is to dispense real, conscientious and honest-to-
goodness justice by conducting a thorough examination of the entire records of the case
based on the settled principle that an appeal in a criminal case opens the whole case for
review on all questions including those riot raised by the parties.[14]

The appellant contends that the belated submission of the pre-operation report to the
PDEA after the buy-bust operation violates RA 9165; and that non-presentation of the
unnamed "civilian informant" who allegedly brokered the transaction with him casts
serious doubts on the factuality of the buy-bust operation.[15]

There is no merit in this contention.

We held in People v. Abedin[16] that coordination with the PDEA is not an

indispensable requirement before police authorities may carry out a buy-bust operation;
that in fact, even the absence of coordination with the PDEA will not invalidate a buy-
bust operation.[17]Neither is the presentation of the informant indispensable to the
success in prosecuting drug-related cases.[18] Informers are almost always never
presented in court because of the need to preserve their invaluable service to the police.
Unless their testimony is absolutely essential to the conviction of the accused, their
testimony may be dispensed with since their narrations would be merely corroborative
to the testimonies of the buy-bust team.

Adherence to the chain of custody rule not established.

In this ultimate recourse, appellant focuses his principal argument on the alleged failure
of the prosecution to establish a continuous and unbroken chain of custody of the seized
illegal drug and the lack of integrity of the evidence in view of the police officers' non-
compliance with Section 21, Article II of RA 9165.

"In a prosecution for illegal sale of dangerous drugs, the following elements must be
duly established: (1) proof that the transaction or sale took place; and (2) the
presentation in court of the corpus delicti or the illicit drug as evidence."[19] The
dangerous drug itself constitutes the very corpus delicti of the offense and the fact of
its existence beyond reasonable doubt plus the fact of its delivery and/or sale are both
vital and essential to a judgment of conviction in a criminal case.[20] And more than just
the fact of sale, "[o]f prime importance therefore x x x is that the identity of the
dangerous drug be likewise established beyond reasonable doubt. In other words, it
must be established with unwavering exactitude that the dangerous drug presented in
court as evidence against the accused is the same as that seized from him in the first
place. The chain of custody requirement performs this function in that in ensures that
unnecessary doubts concerning the identity of the evidence are removed."[21]

The Dangerous Drugs Board Regulation No. 1, Series of 2002, defines chain of custody
as "duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping,
to presentation in court for destruction."

As a method of authenticating evidence, the chain of custody rule requires

that the admission of an exhibit be preceded by evidence sufficient to
support a finding that the matter in question is what the proponent claims
it to be. It would include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered in evidence, in such
a way that every person who touched the exhibit would describe how and
from whom it was received, where it was and what happened to it while in
the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there
had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.
While the testimony about a perfect chain is not always the standard
because it is almost always impossible to obtain, an unbroken chain of
custody becomes indispensable and essential when the item of real
evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has
failed to observe its uniqueness. The same standard obtains in case the
evidence is susceptible of alteration, tampering, contamination and even
substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering -without regard to
whether the same is advertent or otherwise not - dictates the level of
strictness in the application of the chain or custody rule.[22]

Measured by the foregoing yardstick, we find that the prosecution utterly failed to
establish convincingly the chain of custody of the alleged seized plastic pack subject
matter hereof. In fact only PO2 Enriquez and SPOl Canete testified in respect to the
identity of the alleged evidence. However, from their testimonies, the prosecution was
not able to account for the linkages in the chain while the plastic pack was not or no
longer in their respective possession.

While both witnesses testified that after the sale and apprehension of the appellant, the
poseur-buyer turned over the subject pack of shabu to their team leader SPOl
Espenido, there is no record as to what happened after the turn-over. SPOl Espenido to
whom the specimen was allegedly surrendered by the poseur-buyer was not presented
in court to identify the person to whom it was given thereafter and the condition thereof
while it was in his possession and control. The prosecution did not bother to offer any
explanation for his non-presentation as a witness. This is a significant gap in the chain
of custody of the illegal stuff.

The prosecution's cause is also marred by confusion and uncertainty regarding the
possessor of the pack of shabu when it was brought to the police station. By PO2
Enriquez's account, it was SPO2 Nuñez who was in of the same - an account which is at
loggerheads with the claim of SPOl Canete that he was in custody and possession thereof
and that he personally brought the same to the police station. These police officers
cannot seem to agree on a point over which there could hardly be a disagreement. It
must be observed that SPO2 Nuñez who had supposedly taken custody of the substance
following PO2 Enriquez's account was likewise not presented in court to testify. Worse,
the prosecution did not even try to reconcile this inconsistency. Moreover, the
prosecution failed to show how, when and from whom SPO2 Nuñez or SPOl Canete
received the evidence. There was no evidence on how they came into possession of the
pack of shabu.Again, this is a clear missing link in the chain of custody of the specimen
after it left the hands of SPOl Espenido.

We also take note that the testimonies of the prosecution witnesses failed to identify the
person to whom the specimen was given at the police station. All that has been said is
that the investigator, SPO2 Nuñez, marked the specimen. But this statement did not
necessarily mean that he was the same officer who received the same from either PO2
Enriquez or SPOl Canete. In fact, there is a total want of evidence tending to prove that
fact. It must be recalled that SPO2 Nuñez did not take the witness stand to identify the
specific marking on the alleged specimen; neither did the prosecution adduce conclusive
proof as to the author of the handwriting affixed therein and admit the same as his own
handwriting.

True, PO2 Enriquez claimed that he personally delivered to the crime laboratory the
specimen attached to the letter-request; nonetheless, he did not categorically testify that
the substance presented in court was the very same substance delivered to the crime
laboratory for analysis. In fact, going by the records neither of the two police officers
testified that the substance delivered to the crime laboratory for chemical analysis and
later presented in court was the same substance seized from the appellant.

Nor can the prosecution gain from the testimony of the forensic chemist PCI Salinas.
The records show that there is nothing positive and convincingly clear from the
testimony of PCI Salinas. She did not at all categorically and straightforwardly assert
that the alleged chemical substance that was submitted for laboratory examination and
thereafter presented in court was the very same substance allegedly recovered from the
appellant. If anything, the sum and substance of her testimony is that the alleged pack of
shabu submitted to her for laboratory examination showed that it was positive for
methamphetylane hydrochloride or shabu. She never testified where the substance came
from. Her testimony was limited only on the result of the examination she conducted
and not on the source of the substance.

"[W]hile the chain of custody should ideally be perfect [and unbroken], in reality it is
not, 'as it is almost always impossible to obtain an unbroken chain.'"[23] As such, what is
of utmost importance "is the preservation of the integrity and the evidentiary value of
the seized items as they will be used to determine the guilt or innocence of the
accused."[24] In the case at bench, this Court finds it exceedingly difficult to believe that
the integrity and evidentiary value of the drug have been properly preserved by the
apprehending officers. The inexplicable failure of the police officers to testify as to what
they did with the alleged drug while in their respective possession resulted in a breach
or break in the chain of custody of the drug. In some cases,[25] the Court declared that
the failure of the prosecution to offer the testimony of key witnesses to establish a
sufficiently complete chain of custody of the shabu plus the irregular manner which
plagued the handling of the evidence before the same was offered in court, whittles
down the chances of the government to obtain a successful prosecution in a drug-related
case.

Here, apart from the utter failure of the prosecution to establish an unbroken chain of
custody, yet another procedural lapse casts further uncertainty about the identity and
integrity of the subject shabu. We refer to the non-compliance by the buy-bust team
with the most rudimentary procedural safeguards relative to the custody and disposition
of the seized item under Section 21(1),[26] Article II of RA 9165. Here, the alleged
apprehending team after the alleged initial custody and control of the drug, and after
immediately seizing and confiscating the same, never ever made a physical inventory of
the same, nor did it ever photograph the same in the presence of the appellant from
whom the alleged item was confiscated. There was no physical inventory and
photograph of the item allegedly seized from appellant. Neither was there any
explanation offered for such failure.

While this Court in certain cases has tempered the mandate of strict compliance with
the requisite under Section 21 of RA 9165, such liberality, as stated in the Implementing
Rules and Regulations[27] can be applied only when the evidentiary value and integrity
of the illegal drug are properly preserved as we stressed in People v. Guru.[28] In the
case at bar, the evidentiary value and integrity of the alleged illegal drug had been
thoroughly compromised. Serious uncertainty is generated on the identity of the item in
view of the broken linkages in the chain of custody. In this light, the presumption of
regularity in the performance of official duty accorded the buy-bust team by the courts
below cannot arise.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-

G.R. CR-HC No. 00688 dated May 31, 2010 is REVERSED and SET ASIDE.
Appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana is
hereby ACQUITTED of the charge, his guilt not having been established beyond
reasonable doubt.

The Director of the Bureau of Corrections is hereby ORDERED to

immediately RELEASE the accused from custody, unless he is held for another lawful
cause.

SO ORDERED.

Carpio, (Chairperson), Brion, Mendoza, and Leonen, JJ., concur.

[1]People v. Relato, G.R. No. 173794, January 18, 2012. 663 SCRA 260, 262; People
v. Zakaria, G.R. No. 181042, November 26, 2012, 686 SCRA 390, 391-392.

CA rollo, pp. 79-90; penned by Associate Justice Ramon A. Cruz and concurred in by
[2]
Associate Justices Pampio A. Abarintos and Myra V. Garcia-Femandez.

[3]Records, pp. 73-80; penned by Judge Gabriel T. Ingles (now a member of the Court
of Appeals).
[4] Id at 1.

[5] Id.

[6] Also referred as PO3 Enriquez in some parts of the records.

[7] Exhibit "B."

[8] Exhibit "A."

[9] Exhibit "C."

[10] Exhibit "D."

[11] Exhibit "E."

[12] CA rollo, p. 89.

People v. Pepino-Consulta, G.R. No. 191071, August 28, 2013, 704 SCRA 276,
[13]

294 citing People v. Kamad, 624 Phil. 289 (2010).

[14] See People v. Dulay, G.R. No. 193854, September 24, 2012, 681 SCRA 638, 646.

[15]People v. Arriola, G.R. No. 187736, February 8, 2012, 665 SCRA 581, 602
citing People v. Roa, G.R. No. 186134, May 6, 2010, 620 SCRA 359.

[16]G.R. No. 179936, April 12, 2012, 669 SCRA 322, 337-338. People v. Arriola, supra
at 602-603, citing People v. Roa, supra.

[18] People v. Monceda, G.R. No. 176269, November 13, 2013, 709 SCRA 355, 370.

[19] People v. Kamad, supra note 13 at 300.

[20] People v. Obmiranis, 594 Phil. 561, 569 (2008).

[21] Catuiran v. People, 605 Phil. 646, 655 (2009).

Mallillin v. People, 576 Phil. 576, 587-588 (2008), citing United States v.
[22]

Howard-Arias, 679 F.2d 363, 366.

[23] People v. Mendoza, G.R. No. 189327, February 29, 2012, 667 SCRA 357, 368.

[24] Id.

[25]Mallillin v. People, supra note 22; People v. Obminaris, supra note

20; People v. Garcia, 599 Phil. 416 (2009) and Cariño v. People, 600 Phil. 433
(2009).

[26] Sec. 21. Custody and Disposition of Confiscated Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/
paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drug shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof.

[27]Section 21 (a): The apprehending officer/team having initial custody and control of
the drugs shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any public
official who shall be required to sign the copies of the inventory and be given a copy
thereof: Provided that the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and the evidentiary value of the seized
items are properly preserved by the appreheding officer/team, shall not render void and
invalid such seizures of and custody over said items.

[28] G.R. No. 189808, October 24, 2012, 684 SCRA 544, 558.

Padua vs. People

G.R. No. 226679

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay, and
PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

PERALTA, J.:

Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of Republic Act (R.A.)No.
9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which provides:

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the imposable
penalty shall not be allowed to avail of the provision on plea-bargaining.3

The facts are not in dispute.

Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of Section 11,
Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information alleged:
That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any regulated
drug and without the corresponding license or prescription, did then and there, willfully, unlawfully and feloniously
have, in his possession and under his control and custody, one (1) piece heat-sealed transparent plastic sachet
marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline substance, which when examined were
found to be positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.

CONTRARY TO LAW.4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement, 5 praying
to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Section 12, Article II of R.A. No.
9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) with a
penalty of rehabilitation in view of his being a first-time offender and the minimal quantity of the dangerous drug
seized in his possession. He argued that Section 23 of R.A. No. 9165 violates: (1) the intent of the law expressed in
paragraph 3, Section 2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5), Article VIII of
the 1987 Constitution; and (3) the principle of separation of powers among the three equal branches of the
government.

In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the motion for being
contrary to Section 23 of R.A. No. 9165, which is said to be justified by the Congress' prerogative to choose which
offense it would allow plea bargaining. Later, in a Comment or Opposition 7 dated June 29, 2016, it manifested that it
"is open to the Motion of the accused to enter into plea bargaining to give life to the intent of the law as provided in
paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165
prohibiting plea bargaining, [it] is left without any choice but to reject the proposal of the accused."

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi City,
Albay, issued an Order denying Estipona's motion. It was opined:

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches on the
exclusive constitutional power of the Supreme Court to promulgate rules of procedure because plea bargaining is a
"rule of procedure." Indeed, plea bargaining forms part of the Rules on Criminal Procedure, particularly under Rule
118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the Supreme Court pursuant to its
constitutional rule-making power that breathes life to plea bargaining. It cannot be found in any statute.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in effect,
suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the mandatory
pre-trial conference in criminal cases.

The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to
rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs because
plea bargaining is disallowed. However, by case law, the Supreme Court allowed rehabilitation for accused charged
with possession of paraphernalia with traces of dangerous drugs, as held in People v. Martinez, G.R. No. 191366, 13
December 2010. The ruling of the Supreme Court in this case manifested the relaxation of an otherwise stringent
application of Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate the
offender.

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec. 23
of R.A. No. 9165, which bars plea bargaining as unconstitutional because indeed the inclusion of the provision in the
law encroaches on the exclusive constitutional power of the Supreme Court.

While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional
questions, the Court is not unaware of the admonition of the Supreme Court that lower courts must observe a
becoming modesty in examining constitutional questions. Upon which admonition, it is thus not for this lower court to
declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that such declaration might have
on the prosecution of illegal drug cases pending before this judicial station. 8

Estipona filed a motion for reconsideration, but it was denied in an Order 9 dated July 26, 2016; hence, this petition
raising the issues as follows:
 I.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL
VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE CONSTITUTIONAL
RIGHT TO EQUAL PROTECTION OF THE LAW.

II.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED UPON

THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE.

III.

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO
DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL.10

We grant the petition.

PROCEDURAL MATTERS

The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition should be
dismissed outright for being procedurally defective on the grounds that: (1) the Congress should have been
impleaded as an indispensable party; (2) the constitutionality of Section 23 of R.A. No. 9165 cannot be attacked
collaterally; and (3) the proper recourse should have been a petition for declaratory relief before this Court or a
petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy the requisites of
judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct injury; (2) there is no actual
case or controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the case.

On matters of technicality, some points raised by the OSG maybe correct. Nonetheless, without much further ado, it
1âwphi1

must be underscored that it is within this Court's power to make exceptions to the rules of court. Under proper
conditions, We may permit the full and exhaustive ventilation of the parties' arguments and positions despite the
supposed technical infirmities of a petition or its alleged procedural flaws. In discharging its solemn duty as the final
arbiter of constitutional issues, the Court shall not shirk from its obligation to determine novel issues, or issues of first
impression, with far-reaching implications.11

Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are present.12 We have acknowledged that the Philippines' problem on illegal drugs has
reached "epidemic," "monstrous," and "harrowing" proportions, 13 and that its disastrously harmful social, economic,
and spiritual effects have broken the lives, shattered the hopes, and destroyed the future of thousands especially our
young citizens.14 At the same time, We have equally noted that "as urgent as the campaign against the drug problem
must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the accused as mandated
by the Constitution x x x who, because of excessive zeal on the part of the law enforcers, may be unjustly accused
and convicted."15 Fully aware of the gravity of the drug menace that has beset our country and its direct link to certain
crimes, the Court, within its sphere, must do its part to assist in the all-out effort to lessen, if not totally eradicate, the
continued presence of drug lords, pushers and users. 16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter Us
from having to make the final and definitive pronouncement that everyone else depends for enlightenment and
guidance.17 When public interest requires, the Court may brush aside procedural rules in order to resolve a
constitutional issue.18

x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary
complement of its power to promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for this
tenet, viz. :

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the attainment
of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be eschewed. Even the Rules of Court reflect this principle. The power to
suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself has
already declared to be final, x x x.

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper
and just determination of his cause, free from the constraints of technicalities. Time and again, this Court has
consistently held that rules must not be applied rigidly so as not to override substantial justice. 19

SUBSTANTIVE ISSUES

Rule-making power of the Supreme

Court under the 1987 Constitution

Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules
of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court.

The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer
shared with the Executive and Legislative departments. 20 In Echegaray v. Secretary of Justice, 21 then Associate
Justice (later Chief Justice) Reynato S. Puno traced the history of the Court's rule-making power and highlighted its
evolution and development.

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our
Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without
independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as
champions of justice." Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading,
practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the
power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure
in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and
shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are
hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and
modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading,
practice and procedure, and the admission to the practice of law in the Philippines."

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re: Cunanan Congress
in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted
the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in the bar examinations after
July 4, 1946 up to August 1951 and 71 % in the 1952 bar examinations. This Court struck down the law as
unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a
judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned;
and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of
these departments would be a clear usurpation of its function, as is the case with the law in question." The venerable
jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law
belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as
other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the
absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x x
which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More completely,
Section 5(2)5 of its Article X provided:

xxxx

"Sec. 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it
the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule
making power of this Court. Its Section 5(5), Article VIII provides:

xxxx

"Section 5. The Supreme Court shall have the following powers:

xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules
of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate
rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the .first
time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the
1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer
shared by this Court with Congress, more so with the Executive. x x x. 22

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design,
vested unto Congress, the power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to this Court.Section
5 (5), Article VIII of the 1987 Constitution reads:

xxxx

In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority, which,
under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with Congress. As it
now stands, the 1987 Constitution textually altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the
Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary."

The records of the deliberations of the Constitutional Commission would show that the Framers debated on whether
or not the Court's rulemaking powers should be shared with Congress. There was an initial suggestion to insert the
sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of
the Supreme Court," right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme Court.
Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
"[under]privileged," place a comma(,) to be followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee members agreed to Commissioner
Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said rules with
the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his
proposal to add "the phrase with the concurrence of the National Assembly." The changes were approved, thereby
leading to the present lack of textual reference to any form of Congressional participation in Section 5 (5),
Article VIII, supra. Theprevailing consideration was that "both bodies, the Supreme Court and the Legislature,
have their inherent powers."

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice,
and procedure.x x x.24

The separation of powers among the three co-equal branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this
Court.25 The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal,
alter or modify any of the procedural rules promulgated by the Court.26 Viewed from this perspective, We have
rejected previous attempts on the part of the Congress, in the exercise of its legislative power, to amend the Rules of
Court (Rules), to wit:

1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an administrative disciplinary
case should be taken to the Court of Appeals under the provisions of Rule 43 of the Rulesinstead of appeal
by certiorari under Rule 45 as provided in Section 27 of R.A. No. 6770.

2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative Code provisions on
notices cannot replace the rules on summons under Rule 14 of the Rules.

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio Market Vendors
Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In Re: Exemption of the National
Power Corporation from Payment of Filing/Docket Fees; 31 and Rep. of the Phils. v. Hon. Mangotara, et al. 32 - Despite
statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the payment of legal fees imposed
by Rule 141 of the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A. No. 6770, which
prohibits courts except the Supreme Court from issuing temporary restraining order and/or writ of preliminary
injunction to enjoin an investigation conducted by the Ombudsman, is unconstitutional as it contravenes Rule 58 of
the Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend, repeal
or even establish new rules of procedure, to the exclusion of the legislative and executive branches of government.
To reiterate, the Court's authority to promulgate rules on pleading, practice, and procedure is exclusive and one of the
safeguards of Our institutional independence.34

Plea bargaining in criminal cases

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the
1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:
SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may plead
guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint or
information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118
(Pleas). Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea of guilty to a
1âwphi1

lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal, may be
allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in
the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the
complaint or information is necessary. (4a, R-118)

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118
mandated:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

(c) Marking for identification of evidence of the parties;

(d) Waiver of objections to admissibility of evidence; and

(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116
was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be equivalent
to a conviction of the offense charged for purposes of double jeopardy."

When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of the Rules was substantially
adopted. Section 2 of the law required that plea bargaining and other matters 36 that will promote a fair and expeditious
trial are to be considered during pre-trial conference in all criminal cases cognizable by the Municipal Trial Court,
Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:

RULE 116 (Arraignment and Plea):

SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party and
the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in
the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec. 4,
Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan,Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court,
the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the
person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order
a pre-trial conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 & 3,
Cir. 38-98)

Plea bargaining is a rule of procedure

The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of
substantive rights, i.e., the former should not diminish, increase or modify the latter. 38 "Substantive law is that part of
the law which creates, defines and regulates rights, or which regulates the right and duties which give rise to a cause
of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law,
which prescribes the method of enforcing rights or obtain redress for their invasions." 39 Fabian v. Hon. Desierto40 laid
down the test for determining whether a rule is substantive or procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within
the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be
procedural in one context and substantive in another. It is admitted that what is procedural and what is substantive is
frequently a question of great difficulty. It is not, however, an insurmountable problem if a rational and pragmatic
approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts,
abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is,
the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy
and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means
of implementing an existing right then the rule deals merely with procedure. 41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For example,
in People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural
limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an
inherent part thereof, so that its expiration operates to extinguish the right of the State to prosecute the
accused.43Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the
revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to
the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under
Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and
those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and
the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court
believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the
consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless
it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice. The petitioners
failed to show a manifest shortness or insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en
banc primarily to enhance the administration of the criminal justice system and the rights to due process of the State
and the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal cases on
motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or with a
specific or definite period for such revival by the public prosecutor. There were times when such criminal cases were
no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the
mandate to public prosecutors and trial judges to expedite criminal proceedings.
It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially if he
greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which
dominant cases have been known to expire.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove
its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories
of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult. The
accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the dismissal
of the case to the revival thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case.
The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the
accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his
family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to suffer
those penalties and disabilities incompatible with the presumption of innocence. He may also lose his witnesses or
their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and
thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the
criminal justice system for the benefit of the State and the accused; not for the accused only.44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which provides that an
accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies available
against the judgment, does not take away substantive rights but merely provides the manner through which an
existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to avail of
the remedies under the Rules. It is the failure of the accused to appear without justifiable cause on the scheduled
date of promulgation of the judgment of conviction that forfeits their right to avail themselves of the remedies against
the judgment.

It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive rights of
petitioners. It only works in pursuance of the power of the Supreme Court to "provide a simplified and inexpensive
procedure for the speedy disposition of cases." This provision protects the courts from delay in the speedy disposition
of criminal cases - delay arising from the simple expediency of nonappearance of the accused on the scheduled
promulgation of the judgment of conviction.46

By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition of
cases in all courts47 that the rules on plea bargaining was introduced. As a way of disposing criminal charges by
agreement of the parties, plea bargaining is considered to be an "important," "essential," "highly desirable," and
"legitimate" component of the administration of justice. 48 Some of its salutary effects include:

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the
probable penalty are obvious - his exposure is reduced, the correctional processes can begin immediately, and the
practical burdens of a trial are eliminated. For the State there are also advantages - the more promptly imposed
punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the
avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of
proof. (Brady v. United States, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal cases;
it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied
release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct
even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever
may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. (Santobello v. New York, 404
U.S. 257, 261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy
disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there
may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from
the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal
proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work
out a mutually satisfactory disposition of the case subject to court approval."49 There is give-and-take negotiation
common in plea bargaining.50 The essence of the agreement is that both the prosecution and the defense make
concessions to avoid potential losses.51 Properly administered, plea bargaining is to be encouraged because the chief
virtues of the system - speed, economy, and finality - can benefit the accused, the offended party, the prosecution,
and the court.52

Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a right nor take
away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process
for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them.

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case against
him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. 54 In any case,
whether it be to the offense charged or to a lesser crime, a guilty plea is a "serious and sobering occasion" inasmuch
as it constitutes a waiver of the fundamental rights to be presumed innocent until the contrary is proved, to be heard
by himself and counsel, to meet the witnesses face to face, to bail (except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond reasonable doubt, and not to
be compelled to be a witness against himself.55

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than
accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial. 56 Under the present Rules, the
acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended
party57and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily
included in the offense charged.58 The reason for this is that the prosecutor has full control of the prosecution of
criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the
evidence on hand can sustain.59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference
are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and
importance of a case, prosecutors also must consider other tangible and intangible factors, such as government
enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice
system that simply cannot accommodate the litigation of every serious criminal charge. Because these decisions "are
not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly
hesitant to examine the decision whether to prosecute. "60

The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty to
a lesser offense which is necessarily included in the offense charged. The word may denotes an exercise of
discretion upon the trial court on whether to allow the accused to make such plea. 61 Trial courts are exhorted to keep
in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a matter
of bargaining or compromise for the convenience of the accused. 62

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution already
rested its case.63 As regards plea bargaining during the pre-trial stage, the trial court's exercise of discretion should
not amount to a grave abuse thereof.64 "Grave abuse of discretion" is a capricious and whimsical exercise of judgment
so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility; it arises
when a court or tribunal violates the Constitution, the law or existing jurisprudence. 65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested
its case, the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt
of the crime charged.66 The only basis on which the prosecutor and the court could rightfully act in allowing change in
the former plea of not guilty could be nothing more and nothing less than the evidence on record. As soon as the
prosecutor has submitted a comment whether for or against said motion, it behooves the trial court to assiduously
study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea
to the end that the interests of justice and of the public will be served. 67 The ruling on the motion must disclose the
strength or weakness of the prosecution's evidence.68 Absent any finding on the weight of the evidence on hand, the
judge's acceptance of the defendant's change of plea is improper and irregular. 69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the constitutional
right to equal protection of the law in order not to preempt any future discussion by the Court on the policy
considerations behind Section 23 of R.A. No. 9165. Pending deliberation on whether or not to adopt the statutory
provision in toto or a qualified version thereof, We deem it proper to declare as invalid the prohibition against plea
bargaining on drug cases until and unless it is made part of the rules of procedure through an administrative circular
duly issued for the purpose.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is
declared unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5),
Article VIII of the 1987 Constitution.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

See separate concurring opinion

FRANCIS H. JARDELEZA
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

On wellness leave
SAMUEL R. MARTIRES
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
Associate Justice

NOEL GIMENEZ TIJAM ANDRES B. REYES, JR.

Associate Justice Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

CERTIFICATION
Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
On wellness leave.

1
With Urgent Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction.

2
Approved on June 7, 2002.

3
This repealed Section 20-A of R.A. No. 6425 ("Dangerous Drugs Act of 1972"), as amended by R.A. No.
7659 ("Death Penalty Law"), which was approved on December 13, 1993. It provided: SEC. 20-A. Plea-
bargaining Provisions. - Any person charged under any provision of this Act where the imposable penalty
is reclusion perpetua to death shall not be allowed to avail of the provision on plea-bargaining.

4
Rollo, p. 47.

5
Id. at 49-51.

6
Id. at 52.

7
Id. at 53.

8
Id. at 44-45.

9
Id. at 46, 54-55.

10
Id. at 3, 15-16.

11
See Garcia v. Judge Drilon, et al., 712 Phil. 44, 84(2013).

12
GMA Network, Inc. v. COMELEC, 742 Phil. 174, 209-210 (2014).

See People v. Castro, 340 Phil. 245, 246 (1997); People v. Camba, 302 Phil. 31 I, 323 (1994); People v.
13

Tantiado, 288 Phil. 241, 258 (1992); Peopie v. Zapanta, 272-A Phil. 161, 166 (1991); People v. Taruc, 241
Phil. 177, 186 (1988); and People v. Ale, 229 Phil. 81, 87 (1986).

14
People v. Tantiado, supra, as cited in People v. Camba, supra, and People v. Caco, 294 Phil. 54, 65
(1993).

15
People v.Quintana, 256 Phil, 430, 436 (1989).

See People v. Gatlabayan, 669 Phil. 240, 261 (2011); People v. Lagmay, 365 Phil. 606, 632 (1999);
16

and People v. Arcega. G.R. No. 96319, March 31, 1992, 207 SCRA 681, 688.

17
See GMA NETWORK, Inc. v COMELEC, supra note 12 at 210.
18
Matibag v. Benipayo, 429 Phil 554, 579 (2002)

Philippine Woman's Christian Temperance Union, Inc. v. Teodoro R. Yangco 2nd And 3rd Generation
19

Heirs Foundation, Inc., 731Phil.269, 292 (2014). (Citation omitted and italics supplied)

Echegaray v. Secretary of Justice, 361 Phil. 73, 88 (1999), as cited in RE: Petition for Recognition of the
20

Exemption of the GSIS from Payment of Legal Fee, 626 Phil. 93, 106 (2010) and Baguio Market Vendors
Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes, 627 Phil. 543, 549 (2010).

21
Supra.

22
Echegaray v. Secretary of Justice, supra note 20, at 85-88. (Citations omitted). See also RE: Petition for
Recognition of the Exemption of the GSIS from Payment of Legal Fee, supra note 20, at 106- 108 and In
Re: Exemption of the National Power Corporation from Payment of Filing/Docket Fees, 629 Phil. 1, 4-5
(2010).

23
G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431.

24
Carpio-Morales v. Court of Appeals (Sixth Division), supra, at 505-508. (Citations omitted).

RE: Petition for Recognition of the Exemption of the GSIS from Payment of legal Fee, supra note 20, at
25

108.

26
Id.

27
356 Phil. 787 (1998).

28
738 Phil. 37 (2014).

29
Supra note 20.

30
Supra note 20.

31
Supra note 22.

32
638 Phil. 353 (2010).

33
Supra note 23.

See Carpio-Morales v. Court of Appeals (Sixth Division), supra note 23, at 517-518, citing Baguio Market
34

Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes, supra note 20, at
550.

35
Approved on February 12, 1998.

Such as stipulation of facts, marking for identification of evidence of parties, and waiver of objections to
36

admissibility of evidence.

37
Effective December 1, 2001 (People v. Mamarion, 459 Phil. 51, 74 [2003]).

38
CONSTITUTION, A1t. VIII, Sec. 5(5). See also Ogayon v. People, 768 Phil. 272, 288 (2015) and San
Ildefonso Lines, Inc. v. CA, 352 Phil. 405, 415-416 (1998).

39
See Carpio-Morales v. Court of Appeals (Sixth Division), supra note 23, at 516-517.
40
Supra note 27.

41
Fabian v. Desierto, supra at 808-809. See also Carpio-Morales v. Court of Appeals (Sixth Division),
supranote 23, at 517; Securities and Exchange Commission v. Judge Laigo, et al., 768 Phil. 239, 269-270
(2015): Jaylo, et al. v. Sandiganbayan, et al., 751 Phil. 123, 141-142 (2015); Land Bank of the Phils. v. De
Leon, 447 Phil. 495, 503 (2003); and Bernabe v. Alejo, 424 Phil. 933, 94 l (2002).

42
448 Phil. 317 (2003).

43
See Los Banos v. Pedro, 604 Phil. 215, 229 (2009).

44
People v. Lacson, supra note 42, at 387-389. (Citations omitted).

45
Supra note 41.

46
Jaylo, et al. v. Sandiganbayan, et al., id. at 142-143. (Citation omitted).

CONSTITUTION, Art. VIII, Sec. 5(5). See also Neypes v. Court of'Appea/s, 506 Phil. 613, 626 (2005)
47

and San Ildefonso lines, Inc. v. CA, supra note 38, at 415-416.

48
See Corbitt v. New Jersey, 439 U.S. 212 (1978); Blackledge v. Allison, 431 U.S. 63 (l 977); and the
Majority Opinion and Mr. Justice Douglas' Concurring Opinion in Santobello v. New York, 404 U.S. 257
(1971).

People v. Villarama, Jr., 285 Phil. 723, 730 (1992), citing Black's Law Dictionary, 5th Ed., 1979, p. 103 7.
49

See also Gonzales Ill v. Office of the President of the Philippines, et al, 694 Phil. 52, 106 (2012); Atty.
Amante-Descallar v. Judge Ramas, 601 Phil. 21, 40 (2009); Daan v. Hon. Sandiganbayan, 573 Phil. 368,
375 (2008); and People v. Mamarion, supra note 37, at 75.

50
Parker v. North Carolina, 397 U.S. 790 (1970).

51
Hughey v. United States, 495 U.S. 411 (1990).

52
See Santobello v. New York, supra note 48 and Blackledge v. Allison, supra note 48.

53
Brady v. United States, 397 U.S. 742 (1970).

54
Id.

See Brady v. United States, supra, and Mr. Justice Douglas' Concurring Opinion in Santobello v. New
55

York, supra note 48, at 264.

Weatherford v. Bursey, 429 U.S. 545 (1977). See also Mr. Justice Scalia's Dissenting Opinion in Lafler v.
56

Cooper, 566 U.S. 156 (2011).

57
The State is the offended party in crimes under R.A. No. 9165. In People v. Villarama, Jr., supra note 49,
at 732 the Court ruled:

"x x x While the acts constituting the crimes are not wrong in themselves, they are made so by law
because they infringe upon the rights of others. The threat posed by drugs against human dignity
and the integrity of society is malevolent and incessant (People v. Ale, G.R. No. 70998, October 14,
1986, 145 SCRA 50, 58). Such pernicious effect is felt not only by the addicts themselves but also
by their families. As a result, society's survival is endangered because its basic unit, the family, is
the ultimate victim of the drug menace. The state is, therefore, the offended party in this case. As
guardian of the rights of the people, the government files the criminal action in the name of the
People of the Philippines. The Fiscal who represents the government is duty bound to defend the
 public interests, threatened by crime, to the point that it is as though he were the person directly
injured by the offense (see United States v. Samia, 3 Phil. 691, 696). Viewed in this light, the
consent of the offended party, i.e. the state, will have to be secured from the Fiscal who acts in
behalf of the government."

58
People v. Villarama, Jr., supra note 49.

59
Id.

60
Newton v. Rumery, 480 U.S. 386, 396 (1987).

61
Daan v. Hon. Sandiganbayan, supra note 49, at 732. In Capati v. Dr. Ocampo (199 Phil. 230, 234
[1982], citing In Re: Hirsh's Estate SA. 2d 160, 163; 334 Pa. 172; Words & Phrases, permanent edition,
26a.), the Court also held:

"It is well settled that the word 'may' is merely permissive and operates to confer discretion upon a
party. Under ordinary circumstances, the term 'may be' connotes possibility; it does not connote
certainty. 'May' is an auxiliary verb indicating liberty, opportunity, permission or possibility."

62
Daan v. Hon. Sandiganbayan, supra note 49, at 377 and People v. Vil/arama, Jr, supra note 49, at 730.

See Daan v. Hon. Sandiganbayan, id. at 376; People v. Mamarion, supra note 37, at 75; Ladino v. Hon.
63

Garcia, 333 Phil. 254, 258 (1996); and People v. Villarama, Jr., supra note 49, at 731.

64
See Daan v. Hon. Sandiganbayan, supra note 49, at 378.

65
Sofronio Albania v. Commission on Elections, et al., G.R. No. 226792, June 6, 2017.

People v. Villarama, Jr., supra note 49, at 252, as cited in Gonzales III v. Office of the President of the
66

Philippines, et al., supra note 49, at 106 and People v. Mamarion, supra note 37, at 76.

67
People v. Villarama, Jr., supra note 49, at 731.

68
See People v. Villarama, supra.

69
People v. Villarama, Jr., supra note 49.

SECOND DIVISION
ROMA DRUG and ROMEO G.R. No. 149907
RODRIGUEZ, as Proprietor
of ROMA DRUG, Present:
Petitioners,
QUISUMBING, J.,
Chairperson,
CARPIO-MORALES,
TINGA,
- versus - VELASCO, and
 BRION, JJ.
Promulgated:
THE REGIONAL TRIAL COURT
OF GUAGUA, PAMPANGA, THE
PROVINCIAL PROSECUTOR OF April 16, 2009
PAMPANGA, BUREAU OF FOOD
& DRUGS (BFAD) and GLAXO
SMITHKLINE,
Respondents.

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

DECISION
TINGA, J.:

On 14 August 2000, a team composed of the National Bureau of Investigation

(NBI) operatives and inspectors of the Bureau of Food and Drugs (BFAD)
conducted a raid on petitioner Roma Drug, a

duly registered sole proprietorship of petitioner Romeo Rodriguez (Rodriguez)

operating a drug store located at San Matias, Guagua, Pampanga. The raid was
conducted pursuant to a search warrant[1] issued by the Regional Trial Court
(RTC), Branch 57, Angeles City. The raiding team seized several imported
medicines, including Augmentin (375mg.) tablets, Orbenin (500mg.)
capsules, Amoxil (250mg.) capsules and Ampiclox (500mg.).[2] It appears that
Roma Drug is one of six drug stores which were raided on or around the same time
upon the request of SmithKline Beecham Research Limited (SmithKline), a duly
registered corporation which is the local distributor of pharmaceutical products
manufactured by its parent London-based corporation. The local SmithKline has
since merged with Glaxo Wellcome Phil. Inc to form Glaxo SmithKline, private
respondent in this case. The seized medicines, which were manufactured by
SmithKline, were imported directly from abroad and not purchased through the
local SmithKline, the authorized Philippine distributor of these products.

The NBI subsequently filed a complaint against Rodriguez for violation of Section
4 (in relation to Sections 3 and 5) of Republic Act No. 8203, also known as the
Special Law on Counterfeit Drugs (SLCD), with the Office of the Provincial
Prosecutor in San Fernando, Pampanga. The section prohibits the sale of
counterfeit drugs, which under Section 3(b)(3), includes an unregistered imported
drug product. The term unregistered signifies the lack of registration with the
Bureau of Patent, Trademark and Technology Transfer of a trademark, tradename
or other identification mark of a drug in the name of a natural or juridical person,
the process of which is governed under Part III of the Intellectual Property Code.

In this case, there is no doubt that the subject seized drugs are identical in content
with their Philippine-registered counterparts. There is no claim that they were
adulterated in any way or mislabeled at least. Their classification as counterfeit is
based solely on the fact that they were imported from abroad and not purchased
from the Philippine-registered owner of the patent or trademark of the drugs.

During preliminary investigation, Rodriguez challenged the constitutionality

of the SLCD. However, Assistant Provincial Prosecutor Celerina C. Pineda skirted
the challenge and issued a Resolution dated 17 August 2001 recommending that
Rodriguez be charged with violation of Section 4(a) of the SLCD. The
recommendation was approved by Provincial Prosecutor Jesus Y. Manarang
approved the recommendation.[3]

Hence, the present Petition for Prohibition questing the RTC-Guagua Pampanga
and the Provincial Prosecutor to desist from further prosecuting Rodriguez, and
that Sections 3(b)(3), 4 and 5 of the SLCD be declared unconstitutional. In gist,
Rodriguez asserts that the challenged provisions contravene three provisions of the
Constitution. The first is the equal protection clause of the Bill of Rights. The two
other provisions are Section 11, Article XIII, which mandates that the State make
essential goods, health and other social services available to all the people at
affordable cost; and Section 15, Article II, which states that it is the policy of the
State to protect and promote the right to health of the people and instill health
consciousness among them.

Through its Resolution dated 15 October 2001, the Court issued a temporary
restraining order enjoining the RTC from proceeding with the trial against
Rodriguez, and the BFAD, the NBI and Glaxo Smithkline from prosecuting the
petitioners.[4]

Glaxo Smithkline and the Office of the Solicitor General (OSG) have opposed the
petition, the latter in behalf of public respondents RTC, Provincial Prosecutor and
Bureau of Food and Drugs (BFAD). On the constitutional issue, Glaxo Smithkline
asserts the rule that the SLCD is presumed constitutional, arguing that both Section
15, Article II and Section 11, Article XIII are not self-executing provisions, the
disregard of which can give rise to a cause of action in the courts. It adds that
Section 11, Article XIII in particular cannot be work to the oppression and
unlawful of the property rights of the legitimate manufacturers, importers or
distributors, who take pains in having imported drug products registered before the
BFAD. Glaxo Smithkline further claims that the SLCD does not in fact conflict
with the aforementioned constitutional provisions and in fact are in accord with
constitutional precepts in favor of the peoples right to health.

The Office of the Solicitor General casts the question as one of policy wisdom of
the law that is, beyond the interference of the judiciary.[5] Again, the presumption
of constitutionality of statutes is invoked, and the assertion is made that there is no
clear and unequivocal breach of the Constitution presented by the SLCD.

II.

The constitutional aspect of this petition raises obviously interesting questions.

However, such questions have in fact been mooted with the passage in 2008 of
Republic Act No. 9502, also known as the Universally Accessible Cheaper and
Quality Medicines Act of 2008.[6]

Section 7 of Rep. Act No. 9502 amends Section 72 of the Intellectual Property
Code in that the later law unequivocally grants third persons the right to import
drugs or medicines whose patent were registered in the Philippines by the owner of
the product:

Sec. 7. Section 72 of Republic Act No. 8293, otherwise known as the

Intellectual Property Code of the Philippines, is hereby amended to read as
follows:

Sec. 72. Limitations of Patent Rights. The owner of a patent has no right
to prevent third parties from performing, without his authorization, the acts
referred to in Section 71 hereof in the following circumstances:

72.1. Using a patented product which has been put on the market in the
Philippines by the owner of the product, or with his express consent, insofar as
such use is performed after that product has been so put on the said market:
Provided, That, with regard to drugs and medicines, the limitation on patent
rights shall apply after a drug or medicine has been introduced in the
Philippines or anywhere else in the world by the patent owner,
or by any party authorized to use the invention: Provided,
further, That the right to import the drugs and medicines contemplated in
this section shall be available to any government agency or any private third
party;

72.2. Where the act is done privately and on a non-commercial scale or for a non-
commercial purpose: Provided, That it does not significantly prejudice the
economic interests of the owner of the patent;

72.3. Where the act consists of making or using exclusively for experimental use
of the invention for scientific purposes or educational purposes and such other
activities directly related to such scientific or educational experimental use;

72.4. In the case of drugs and medicines, where the act includes testing, using,
making or selling the invention including any data related thereto, solely for
purposes reasonably related to the development and submission of information
and issuance of approvals by government regulatory agencies required under any
law of the Philippines or of another country that regulates the manufacture,
construction, use or sale of any product: Provided, That, in order to protect the
data submitted by the original patent holder from unfair commercial use provided
in Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement), the Intellectual Property Office, in
consultation with the appropriate government agencies, shall issue the appropriate
 rules and regulations necessary therein not later than one hundred twenty (120)
days after the enactment of this law;

72.5. Where the act consists of the preparation for individual cases, in a
pharmacy or by a medical professional, of a medicine in accordance with a
medical shall apply after a drug or medicine has been introduced in the
Philippines or anywhere else in the world by the patent owner, or by any party
authorized to use the invention: Provided, further, That the right to import the
drugs and medicines contemplated in this section shall be available to any
government agency or any private third party; xxx[7]

The unqualified right of private third parties such as petitioner to import or possess
unregistered imported drugs in the Philippines is further confirmed by the
Implementing Rules to Republic Act No. 9502 promulgated on 4 November
2008.[8] The relevant provisions thereof read:

Rule 9. Limitations on Patent Rights. The owner of a patent has no right

to prevent third parties from performing, without his authorization, the acts
referred to in Section 71 of the IP Code as enumerated hereunder:

(i) Introduction in the Philippines or Anywhere Else in the World.

Using a patented product which has been put on the market in the
Philippines by the owner of the product, or with his express consent, insofar as
such use is performed after that product has been so put on the said
market: Provided, That, with regard to drugs and medicines, the limitation on
patent rights shall apply after a drug or medicine has been introduced in the
Philippines or anywhere else in the world by the patent owner, or by any party
authorized to use the invention: Provided, further, That the right to import the
drugs and medicines contemplated in this section shall be available to any
government agency or any private third party. (72.1)

The drugs and medicines are deemed introduced when they have been sold
or offered for sale anywhere else in the world. (n)

It may be that Rep. Act No. 9502 did not expressly repeal any provision of
the SLCD. However, it is clear that the SLCOs classification of unregistered
imported drugs as counterfeit drugs, and of corresponding criminal penalties
therefore are irreconcilably in the imposition conflict with Rep. Act No. 9502 since
the latter indubitably grants private third persons the unqualified right to import or
otherwise use such drugs. Where a statute of later date, such as Rep. Act No. 9502,
clearly reveals an intention on the part of the legislature to abrogate a prior act on
the subject that intention must be given effect.[9] When a subsequent enactment
covering a field of operation coterminus with a prior statute cannot by any
reasonable construction be given effect while the prior law remains in operative
existence because of irreconcilable conflict between the two acts, the latest
legislative expression prevails and the prior law yields to the extent of the
conflict.[10] Irreconcilable inconsistency between two laws embracing the same
subject may exist when the later law nullifies the reason or purpose of the earlier
act, so that the latter loses all meaning and function.[11] Legis posteriors priores
contrarias abrogant.

For the reasons above-stated, the prosecution of petitioner is no longer

warranted and the quested writ of prohibition should accordingly be issued.

III.

Had the Court proceeded to directly confront the constitutionality of the

assailed provisions of the SLCD, it is apparent that it would have at least placed in
doubt the validity of the provisions. As written, the law makes a criminal of any
person who imports an unregistered drug regardless of the purpose, even if the
medicine can spell life or death for someone in the Philippines. It does not
accommodate the situation where the drug is out of stock in the Philippines,
beyond the reach of a patient who urgently depends on it. It does not allow
husbands, wives, children, siblings, parents to import the drug in behalf of their
loved ones too physically ill to travel and avail of the meager personal use
exemption allotted by the law. It discriminates, at the expense of health, against
poor Filipinos without means to travel abroad to purchase less expensive medicines
in favor of their wealthier brethren able to do so. Less urgently perhaps, but still
within the range of constitutionally protected behavior, it deprives Filipinos to
choose a less expensive regime for their health care by denying them a plausible
and safe means of purchasing medicines at a cheaper cost.
The absurd results from this far-reaching ban extends to implications that deny the
basic decencies of humanity. The law would make criminals of doctors from
abroad on medical missions of such humanitarian organizations such as the
International Red Cross, the International Red Crescent, Medicin Sans Frontieres,
and other

like-minded groups who necessarily bring their own pharmaceutical drugs when
they embark on their missions of mercy. After all, they are disabled from invoking
the bare personal use exemption afforded by the SLCD.

Even worse is the fact that the law is not content with simply banning, at civil
costs, the importation of unregistered drugs. It equates the importers of such drugs,
many of whom motivated to do so out of altruism or basic human love, with the
malevolents who would alter or counterfeit pharmaceutical drugs for reasons of
profit at the expense of public safety. Note that the SLCD is a special law, and the
traditional treatment of penal provisions of special laws is that of malum
prohibitumor punishable regardless of motive or criminal intent. For a law that is
intended to help save lives, the SLCD has revealed itself as a heartless,
soulless legislative piece.

The challenged provisions of the SLCD apparently proscribe a range of

constitutionally permissible behavior. It is laudable that with the passage of Rep.
Act No. 9502, the State has reversed course and allowed for a sensible and
compassionate approach with respect to the importation of pharmaceutical drugs
urgently necessary for the peoples constitutionally-recognized right to health.

WHEREFORE, the petition is GRANTED in part. A writ of prohibition is

hereby ISSUED commanding respondents from prosecuting petitioner Romeo
Rodriguez for violation of Section 4 or Rep. Act No. 8203. The Temporary
Restraining Order dated 15 October 2001 is hereby made PERMANENT. No
pronouncements as to costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Search Warrant No. 00-43
[2]
Rollo, p. 7.
[3]
Rollo, p. 56.
[4]
Rollo, p. 134.
 [5]
Rollo, p. 711.
[6]
See Rep. Act No. 9502, Sec. 1.
[7]
Rep. Act No. 9502, Section 7.
[8]
Available from the website of the Intellectual Property Office (http://www.ipophil.gov.ph/ )
[9]
R. AGPALO, STATUTORY CONSTRUCTION (1995 ed.), at 315.

[10]
SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 463, 464; cited in Ramirez v.
Court of Appeals, G.R. No. 23984, 24 January 1974, 55 SCRA 261.

[11]
AGPALO, supra note 9 at 317.

EN BANC

[G.R. No. 131592-93. February 15, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN CASTILLO

y LUMAYRO, accused-appellant.

DECISION

PUNO, J.: JPUNO

With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed
firearm in murder or homicide is now considered, not as a separate crime, but
merely a special aggravating circumstance.

In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder
and Illegal Possession of Firearms in two (2) separate Informations, thus:

Criminal Case No. 45708:

"That on or about the 14th day of November, 1995 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, armed with a handgun,
with deliberate intent and without justifiable motive, with evident
premeditation, by means of treachery and with a decided purpose to kill,
did then and there wilfully, unlawfully and criminally shoot, hit and wound
Rogelio Abawag with the said gun, with which herein accused was then
provided at the time, thereby causing upon said Rogelio Abawag bullet
wounds on vital parts of his body, which caused his instantaneous death.
 "CONTRARY TO LAW."[1]

Criminal Case No. 45709: HTML

"That on or about the 14th day of November, 1995 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, with
deliberate intent and without justifiable motive, have in his possession and
control one (1) Homemade .38 caliber revolver without serial number
(and) three (3) live ammunitions without the authority and permit to
possess or carry the same.

"CONTRARY TO LAW."[2]

The scene of the crime was the then on-going construction site of Gaisano Building in
Lapaz, Iloilo City. On November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a
construction worker, was on the last rung of the stairs on the third floor of the Gaisano
building when he saw his co-worker ROGELIO ABAWAG being closely pursued by
accused JULIAN CASTILLO, a lead man in the same construction site. During the
chase, the accused pointed a gun at Abawag and shot him. Abawag, then about a half
meter away from the accused, fell on his knees beside a pile of hollow blocks. [3]

FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard
the first shot. Initially, he did not pay attention to it as he thought that the sound came
from one of their construction equipments. Seconds later, he heard a second shot and a
person screaming: "Ouch, that is enough!" When he looked towards the direction of the
sound, he saw the accused in front of Abawag, about a meter away, pointing a .38
caliber revolver at the latter. Abawag was then leaning on a pile of hollow blocks,
pleading for mercy. The accused shot Abawag a third time despite the latter's
imploration. The accused then fled, leaving Abawag lifeless.[4]

The management of Gaisano reported the shooting incident to the police authorities
who immediately rushed to the scene of the crime. JUN LIM, alias "Akoy," brother-in-
law of the victim and also a construction worker at the Gaisano, volunteered to go with
the police and assist them in locating the accused. yacats

The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the
accused on board a vessel bound for Cebu. When they boarded the vessel, Akoy
positively identified the accused to the police as the assailant. The accused attempted
to escape when the police identified themselves but the police caught up with him. Upon
inquiry, the accused denied complicity in the killing of Abawag. The police found in his
possession a .38 caliber handmade revolver, three (3) empty shells and three (3) live
ammunitions. Further inquiry revealed that the accused owned the gun but had no
license to possess it. The police then took the accused into custody and charged him for
the murder of Abawag and for illegal possession of firearm.[5]
The self-defense theory hoisted by the accused who testified solely for the defense was
not given credence by the trial court. Thus, he was convicted of Homicide, as the
prosecution failed to prove the alleged qualifying circumstances of evident
premeditation and treachery, and of Illegal Possession of Firearm, aggravated by
homicide. The trial court disposed as follows:

"WHEREFORE, premises considered and finding the accused guilty of the

crimes of homicide and illegal possession of firearm aggravated by
homicide beyond the shadow of the doubt, he is hereby sentenced as
follows:

"1) For the crime of homicide, he is sentenced to an

indeterminate penalty of imprisonment of Twelve (12)
years of prision mayor, as minimum, to Seventeen (17)
years and Four (4) months of reclusion temporal, as
maximum;

"2) For illegal possession of firearm which is aggravated

by homicide, he is sentenced to a penalty of death;

"3) To pay the family of his victim P50,000.00 as indemnity

and another P50,000.00 as moral damages; and

"4) To pay the cost.

"SO ORDERED."[6] (emphasis supplied)

On automatic review by this Court, appellant impugns solely his conviction for illegal
possession of firearm for which he was sentenced to the supreme penalty of death.

Prefatorily, we stress that although the appellant himself does not refute the findings of
the trial court regarding the homicide aspect of the case, the Court nevertheless made a
thorough examination of the entire records of the case, including the appellant's
conviction for homicide, based on the settled principle that an appeal in criminal cases
opens the entire case for review. Our evaluation leads us to conclude that the trial
court's ruling on the homicide aspect is clearly supported by the records. Thus, we shall
concentrate on the appellant's lone assignment of error with respect to his conviction for
the crime of illegal possession of firearm. olanski

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on
June 6, 1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A.
8294 also provided that if homicide or murder is committed with the use of an
unlicensed firearm, such use shall be considered as a special aggravating
circumstance.[7] This amendment has two (2) implications: first, the use of an
unlicensed firearm in the commission of homicide or murder shall not be treated as a
separate offense, but merely as a special aggravating circumstance; second, as only a
single crime (homicide or murder with the aggravating circumstance of illegal
possession of firearm) is committed under the law, only one penalty shall be imposed
on the accused.[8]

Prescinding therefrom, and considering that the provisions of the amendatory law are
favorable to herein appellant, the new law should be retroactively applied in the case at
bar.[9] It was thus error for the trial court to convict the appellant of two (2) separate
offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately
for each crime. Based on the facts of the case, the crime for which the appellant may be
charged is homicide, aggravated by illegal possession of firearm, the correct
denomination for the crime, and not illegal possession of firearm, aggravated by
homicide as ruled by the trial court, as it is the former offense which aggravates the
crime of homicide under the amendatory law.

The appellant anchors his present appeal on the assertion that his conviction was
unwarranted as no proof was adduced by the prosecution that he was not licensed to
possess the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief,
the Solicitor General joined cause with the appellant.[10] haideem

We agree.

Two (2) requisites are necessary to establish illegal possession of firearms: first, the
existence of the subject firearm, and second, the fact that the accused who owned or
possessed the gun did not have the corresponding license or permit to carry it outside
his residence. The onus probandi of establishing these elements as alleged in the
Information lies with the prosecution.[11]

The first element -- the existence of the firearm -- was indubitably established by the
prosecution. Prosecution eyewitness Acaso saw appellant shoot the victim thrice with a
.38 caliber revolver.[12] Appellant himself admitted that he did not turn over the gun to the
security guards in the building after the shooting.[13] The same gun was recovered from
the appellant and offered in evidence by the prosecution. However, no proof was
adduced by the prosecution to establish the second element of the crime, i.e., that the
appellant was not licensed to possess the firearm. This negative fact constitutes an
essential element of the crime as mere possession, by itself, is not an offense. The lack
of a license or permit should have been proved either by the testimony or certification of
a representative of the PNP Firearms and Explosives Unit that the accused was not a
licensee of the subject firearm[14] or that the type of firearm involved can be lawfully
possessed only by certain military personnel.[15] Indeed, if the means of proving a
negative fact is equally within the control of each party, the burden of proof is on the
party averring said negative fact. As the Information alleged that the appellant
possessed an unlicensed gun, the prosecution is duty-bound to prove this allegation. It
is the prosecution who has the burden of establishing beyond reasonable doubt all the
elements of the crime charged, consistent with the basic principle that an accused is
presumed innocent until proven guilty.[16]Thus, if the non-existence of some fact is
a constituent element of the crime, the onus is upon the State to prove this negative
allegation of non-existence.[17] kirsten

Hence, in the case at bar, although the appellant himself admitted that he had no
license for the gun recovered from his possession, his admission will not relieve
the prosecution of its duty to establish beyond reasonable doubt the appellant's
lack of license or permit to possess the gun. In People vs. Solayao,[18] we expounded
on this doctrine, thus:

"x x x (b)y its very nature, an 'admission is the mere acknowledgement of

a fact or of circumstances from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his guilt.' In
other words, it is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or circumstances,
to prove guilt, but which is, of itself, insufficient to authorize conviction.
From the above principles, this Court can infer that an admission in
criminal cases is insufficient to prove beyond doubt the commission
of the crime charged.

"Moreover, said admission is extrajudicial in nature. As such, it does

not fall under Section 4 of Rule 129 of the Revised Rules of Court which
states:

'An admission, verbal or written, made by a party in the

course of the trial or other proceedings in the same case
does not require proof.'

"Not being a judicial admission, said statement by accused-appellant

does not prove beyond reasonable doubt the second element of
illegal possession of firearm. It does not even establish a prima facie
case. It merely bolsters the case for the prosecution but does not stand
as proof of the fact of absence or lack of a license." (emphasis
supplied) CODES

Additionally, as pointed out by both the appellant and the Solicitor General, the
extrajudicial admission was made without the benefit of counsel. Thus, we hold that the
appellant may only be held liable for the crime of simple homicide under Article 249 of
the Revised Penal Code.

We come now to the penalty. The crime of homicide is penalized by reclusion

temporal.[19] There being no aggravating or mitigating circumstance attendant to the
commission of the crime, the penalty of reclusion temporal shall be imposed in its
medium period, i.e., from fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law,
the imposable penalty shall be within the range of prision mayor, i.e., from six (6) years
and one (1) day to twelve (12) years, as minimum, to reclusion temporal in its medium
period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months, as maximum.

IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian

Castillo y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from
nine (9) years and four (4) months of prision mayor as minimum to sixteen (16) years,
five (5) months and nine (9) days of reclusion temporal as maximum. However, the civil
indemnity and moral damages awarded by the trial court to the heirs of the victim in the
total amount of one hundred thousand (P100,000.00) pesos are affirmed.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr.,
JJ., concur.6/27/00 3:06 PM

[1]
Rollo, p. 1.
[2]
Original Records, p. 1.
[3]
July 31, 1996 TSN, pp. 2-4, 10.
[4]
July 24, 1996 TSN, pp. 3-11.
[5]
May 22, 1996 TSN, pp. 8-22; July 3, 1996 TSN, pp. 3-9.
[6]
Decision, dated February 25, 1997; Rollo, pp. 15-22.
[7]
Section 1, par. 3.
[8]
People vs. Molina, 292 SCRA 742, 779-783 (1998)
[9]
Article 22, Revised Penal Code.
[10]
Rollo, pp. 71-85.
[11]
People vs. Eubra, 274 SCRA 180 (1997); People vs. Villanueva, 275 SCRA 489 (1997); People vs. Mallari, 265
SCRA 456 (1996); People vs. Tiozon, 198 SCRA 368 (1991)
[12]
July 24, 1996 TSN, at p. 6.
[13]
October 16, 1996 TSN, p. 15.
[14]
People vs. Villanueva, supra.
[15]
People vs. Mesal, 244 SCRA 166 (1995)
[16]
29 Am. Jur., 2d, pp. 180-181.
[17]
Underhills Criminal evidence, 4th edition, p. 70.
[18]
262 SCRA 255 (1996)
[19]
Article 249, Revised Penal Code.
EUGENE C. FIRAZA, G.R. No. 179319
Petitioner,
Present:

YNARES-SANTIAGO,* J.,
CARPIO MORALES,
- versus - Acting Chairperson,
BRION,
DEL CASTILLO, and
ABAD, JJ.

PEOPLE OF THE Promulgated:

PHILIPPINES, September 18, 2009
Respondent.
x-----------------------------------------------------------x

DECISION

CARPIO MORALES, J.

Petitioner, appointed as a confidential agent of the National Bureau of

Investigation (NBI), Caraga Regional Office on August 18, 1999, was issued a
firearm and a mission to gather and report to the NBI such information as may be
relevant to investigations undertaken by it.

In his private capacity, petitioner served as manager for RF Communications in

connection with which he dealt with Christopher Rivas, Provincial Auditor of
Surigao del Sur, for the establishment of a Public Calling Office in the
Municipality of Lianga, Surigao del Sur.
On August 11, 2000, in the course of a meeting between petitioner and Rivas at the
latters restaurant regarding the delivery of a defective machine for the Public
Calling Office, a heated exchange ensued during which petitioner is alleged to
have pointed a gun at Rivas. Petitioner was thereupon accosted by P/Insp. Alberto
A. Mullanida, Acting Chief of Police of Lianga, Surigao del Sur and PO2 Nilo
Ronquillo, who discovered that his permit to carry firearm outside residence had
expired more than a month earlier or on July 5, 2000.

Hence, a criminal complaint was filed against petitioner before the 6 th Municipal
Circuit Trial Court (MCTC) of Barobo-Lianga, Barobo, Surigao del Sur for
UNATHORIZED CARRYING OF LICENCE [sic] FIREARM OUTSIDE
RESIDENCE, the accusatory portion of which reads:

That on or about the 11th day of August 2000 at about 4:00 oclock in the
afternoon more or less in Poblacion, Municipality of Lianga, Province of Surigao
del Sur Philippines and within the jurisdiction of this Honorable Court the above
named accused, willfully, unlawfully, and feloniously possess [sic] one (1) unit
Pistol Caliber 45 with serial number 670320 entered inside the residence of
Christopher Rivas at Lianga, Surigao del Sur with expired license or permit to
carry outside residence renewed [sic] from the government authority
concerned.

CONTRARY TO LAW. (Violation of RA 8294 as amended).[1] (Emphasis and

underscoring supplied)

Petitioner, denying that any argument occurred between him and Rivas, claimed
that while he was explaining to Rivas the defect in the machine subject of their
meeting, P/Insp. Mullaneda and PO2 Ronquillo apprehended him and seized his
firearm tucked inside his shirt, even as he identified himself as an NBI agent; and
that he was prevented from presenting a Mission Order dated July 26, 2000 issued
to him by the NBI, to prove his authority to carry firearms outside of his residence,
due to the coercive manner by which the two approached him.

By Decision of February 20, 2003, the MCTC convicted petitioner,

disposing as follows:

WHEREFORE, Court finds accused Eugene C. Firaza GUILTY beyond

reasonable doubt of the crime Unauthorized Carrying of Licensed Firearm
Outside Residence, penalized under Section 1 of Republic Act 8294.

Accused Eugene C. Firaza is hereby sentenced to an imprisonment of one (1)

month and ten days of Arresto Mayor.

SO ORDERED.

In convicting petitioner, the trial court noted the following facts:

1. That accuseds permit to carry firearms outside residence, has already

expired when he was apprehended on August 11, 2000;
 2. That the Mission Order (Exhibit 4) was not presented or shown to the
apprehending policemen on August 11, 2000;

3. That accuseds Mission Order was not issued by the NBI Director or
Assistant/Deputy Director or by Regional Director of Caraga Region;

4. That accused is only a confidential agent and as such is not included in

the regular plantilla of the NBI, nor is receiving regular compensation
for the services he is rendering;

5. When apprehended, accused was not in actual performance of alleged

mission but on business trip.[2] (Underscoring supplied)

On appeal, the Regional Trial Court upheld petitioners conviction.

On petition for review, the Court of Appeals, by Decision of April 20,

[3]
2007, affirmed petitioners conviction.

Before this Court, petitioner raises the following issues:

a. Whether or not Petitioner can be convicted of an offense different from that

charged in the Complaint.

b. Whether or not the burden of proving a negative element of an offense lies

with the prosecution; and

c. Whether or not the firearm seized from petitioner after an unlawful

search without a warrant is inadmissible in evidence. (Underscoring supplied)

Petitioner prefaces his arguments in support of his appeal by claiming that

the Complaint charged him with illegal possession of firearms, hence, he cannot be
convicted of carrying firearms outside of residence, the phrase in the Complaint
reading with expired license or permit to carry outside residence . . . being merely
descriptive of the alleged unlicensed nature of the firearm.

Petitioner concludes that since he had authority to carry firearm, it was error to
convict him. He cites the appellate courts following disquisition as crediting his
defense that he had authority to carry firearms, viz:

It must be stated at the outset that petitioner was charged of violation of RA 8294
or Unauthorized Carrying of Licensed Firearm Outside of Residence. His
 conviction by the courts below is based on their finding that although petitioner
had a mission order which authorized him to carry the firearm issued to him, the
same already expired as of July 26, 2000.

We qualify.

The courts below committed an error when they said that the authority of
petitioner to carry firearm outside residence expired on July 26, 2000, hence when
petitioner carried his issued firearm on 18 August 2000, he did so without
authority. Mission Order No. 00352000 dated July 26, 2000 issued to
petitioner allowed him to carry his issued firearm Pistol Cal. 45 with him,
which mission order is good for sixty (60) days from issuance thereof.[4] x x
x (Italics in the original, emphasis and underscoring supplied)

Petitioners argument fails.

Section 6, Rule 110 of the Rules of Court provides:

SEC. 6. Sufficiency of complaint or information. A complaint or information is

sufficient if it states the name of the accused; the designation of the offense given
by the statute; the acts or omissions complained of as constituting the offense;
the name of the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be
included in the complaint or information. (Emphasis and underscoring supplied)

The allegations in a Complaint or Information determine what offense is

charged. The alleged acts or omissions complained of constituting the offense need
not be in the terms of the statute determining the offense, but in such form as is
sufficient to enable a person of common understanding to know what offense is
being charged as well as the qualifying and aggravating circumstances and for the
court to pronounce judgment.[5]

The earlier-quoted Complaint alleged that the accused willfully, unlawfully and
feloniously possess [sic] one (1) unit Pistol Cal. 45 with serial number 670320
[and] entered . . . the residence of Christopher Rivas at Lianga, Surigao del
Sur with expired license or permit to carry outside residence.[6] The words used to
indicate or describe the offense charged that petitioner unlawfully carried his
firearm outside his residence because he had no permit for the purpose are
clear. They are self-explanatory.
 Petitioner cannot seriously claim that his constitutional right to be informed
of the nature and cause of the accusation against him was violated. For the
transcript of stenographic notes of the proceedings before the trial court shows that
he, through his counsel, was duly informed of the nature of the case against him:

Court:
You intend to file a motion for investigation?

Atty. Cadiz: [herein petitioners counsel]

Yes, Your Honor.

Court:
On what ground?

Atty. Cadiz:
On the ground that based on the evidence that we presented, Your Honor,
like counter-affidavit, it seems to be the ground for the further proceedings
of this case because the case filed against the accused is merely
unauthorized(d) carrying of firearms outside the residence, and the
accused is covered by mission order and the evidence submitted, Your
Honor, which we take that it is not necessary to prosecute this case,
because this case is summary in nature, Your Honor. We will submit a
necessary motion for reinvestigation of this case.[7](Emphasis and
underscoring supplied)

It bears noting that petitioner does not challenge his having been found guilty of
violating Section 1 of P.D. No. 1866 (DECREE CODIFYING THE LAWS ON
ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES) as amended by R.A. No. 8294 which provides:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession

of Firearms or Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. The penalty of prision correccional in
its maximum period and a fine of not less than Fifteen thousand pesos (P15,000)
shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose or possess any low powered firearm, such as rimfire handgun,
.380 or .32 and other firearm of similar firepower, part of firearm or ammunition,
 or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition: Provided, That no other crime was committed.

xxxx

The penalty of arresto mayor shall be imposed upon any person who
shall carry any licensed firearm outside his residence without legal
authority therefor. (Italics in the original; emphasis and underscoring supplied)

Petitioner, however, justifies, his carrying of the firearm outside his residence with
the 60-day July 26, 2000 Mission Order issued to him by the NBI.

Petitioner is mistaken. Permit to carry firearm is not the same as permit to

carry licensed firearm outside ones residence. Under the Implementing Rules and
Regulations of P.D. No. 1866, a Mission Order is defined as a written directive or
order issued by government authority as enumerated in Section 5 hereof to persons
who are under his supervision and control for a definite purpose or objective
during a specified period and to such place or places as therein mentioned
which may entitle the bearer thereof to carry his duly issued or licensed
firearms outside of residence when so specified therein.

The Mission Order issued to petitioner authorized him to carry firearms in

connection with confidential (illegible) cases assigned to [him]. Admittedly,
petitioner was at Rivas restaurant in connection with a private business
transaction. Additionally, the Mission Order did not authorize petitioner to carry
his duly issued firearm outside of his residence.

AT ALL EVENTS, Sayco v. People,[8] citing Section 6(a) of The Implementing

Rules and Regulations of P.D. No. 1866 and Memorandum Circular No. 8 dated
October 16, 1986 issued by the Department (then Ministry) of Justice, should put
to rest any nagging doubts on the liability of petitioner, a confidential civilian
agent who was not shown to be in the regular plantilla of the NBI.

First, special or confidential civilian agents who are not included in the
regular plantilla of any government agency involved in law enforcement or
receiving regular compensation for services rendered are not exempt from the
requirement under P.D. No. 1866, as amended by R.A. No. 8294, of a regular
license to possess firearms and a permit to carry the same outside of residence.
xxxx
 Third, said special or confidential civilian agents do not qualify for mission
orders to carry firearms (whether private-owned or government-owned) outside
of their residence.

x x x x (Italics in the original; underscoring supplied)

As for petitioners claim that he was searched without a warrant to thus render the
firearm seized inadmissible in evidence, the same fails.

For even assuming arguendo that, as claimed by petitioner, his firearm was tucked
inside his shirt, the plain view doctrine, of which the following requirements which
must concur, viz: (1) the law enforcement officer has a prior justification for the
intrusion, (2) the discovery of the evidence in plain view is inadvertent, and, (3) the
illegality of the evidence observed in plain view is apparent to the apprehending
officer,[9] justified the intervention by the police officers in petitioners and Rivas
heated arguments in the course of which they noticed the suspicious bulging object
on petitioners waist to draw them to check what it was.

WHEREFORE, the Petition for Review is DENIED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO ARTURO D. BRION

Associate Justice Associate Justice
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

*
Additional member per Special Order No. 691 dated September 4, 2009.
[1]
Records, p. 14
[2]
Records, p. 12.
[3]
Penned by Associate Justice Jane Aurora C. Lantion with the concurrence of Associate Justices Teresita Dy-
Liacco Flores and Romulo V. Borja.
[4]
Rollo, p. 38
[5]
Section 9, Rule 110, Rules of Court.
[6]
Underscoring supplied.
[7]
TSN, March 15, 2001, p. 11.
[8]
G.R. No. 159703, March 3, 2008, 547 SCRA 368, 385-386.
[9]
People v. Go, G.R. No. 144639, September 12, 2003, 411 SCRA 81.
DANDY L. DUNGO v. PEOPLE, GR No. 209464, 2015-07-01
Facts:
209464
Issues:
Ruling:
Principles:
Criminal law has long divided crimes into acts wrong in themselves called acts mala in se; and acts which
would ot be wrong but for the fact that positive law forbids them, called acts mala prohibita. This
distinction is important with reference to the intent with... which a wrongful act is done. The rule on the
subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only inquiry is, has the
law been violated? When an act is illegal, the intent of the offender is immaterial.[64] When the doing of
an act is prohibited by law, it is considered injurious to public welfare, and the doing of the prohibited act
is the crime itself.[65]
A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC), while
all mala prohibita crimes are provided by special penal laws. In reality, however, there may be mala in se
crimes under special laws, such as plunder under
R.A. No. 7080, as amended.[66]
Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation.[67]
The better approach to distinguish between mala in se and mala prohibita crimes is the determination of
the inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in
itself, then it is a crime mala in se; on the... contrary, if it is not immoral in itself, but there is a statute
prohibiting its commission by reasons of public policy, then it is mala prohibita. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and frequently... depends
on all the circumstances surrounding the violation of the statute.[68]
Recognizing the malum prohibitum characteristic of hazing, the law provides that any person charged
with the said crime shall not be entitled to the mitigating circumstance that there was no intention to
commit so grave a wrong.[87] Also, the framers... of the law intended that the consent of the victim shall
not be a defense in hazing.

SERENO, C.J.:
While this Court has recently faced questions on the criminal liability of fraternity
members for hazing, this case presents novel questions on the extent of liability of
schools and school authorities under Republic Act No. 8049, or the Anti-Hazing Law.

The responsibility given to an academic institution for the welfare of its students has
been characterized by law and judicial doctrine as a form of special parental authority
and responsibility.[1] This responsibility has been amplified by the enactment of the
Anti-Hazing Law, in that the failure by school authorities to take any action to prevent
the offenses as provided by the law exposes them to criminal liability as accomplices in
the criminal acts. Thus, the institution and its officers cannot stand idly by in the face of
patently criminal acts committed within their sphere of responsibility. They bear the
commensurate duty to ensure that the crimes covered by the Anti-Hazing Law are not
committed.

It was within this legal framework that the school authorities of the Philippine Merchant
Marine Academy (PMMA) were criminally charged before the Sandiganbayan as
accomplices to hazing under the Anti-Hazing Law. Before they were arraigned, the
Sandiganbayan quashed[2] the Information against them on the basis of the dismissal of
the criminal case against the principal accused and, the failure to include in the
Information the material averments required by the Anti-Hazing Law.

Consequently, this Petition was filed before this Court questioning the Sandiganbayan's
quashal of the Information.

The Case Background

Fernando C. Balidoy, Jr. (Balidoy) was admitted as a probationary midshipman at the

PMMA.[3] In order to reach active status, all new entrants were required to successfully
complete the mandatory "Indoctrination and Orientation Period,"[4] which was set from
2 May to 1 June 2001.[5] Balidoy died on 3 May 2001.[6]

The National Bureau of Investigation (NBI) probed the death of Balidoy. After months
of investigation, it forwarded its findings[7] to the provincial prosecutor of Zambales for
the preliminary investigation and possible criminal prosecution of those involved in the
orientation and indoctrination of the PMMA Class of 2005.[8] Subsequently, the
Assistant Provincial Prosecutor of Zambales issued a Resolution[9]finding probable
cause to charge the following as principals to the crime of hazing: Aldwin Alvarez
(Alvarez), Leotharius C. Montez (Montez), Rudence G. Reyes (Reyes), and Jed Nicholas
S. Simpas (Simpas) collectively, Alvarez et al. A criminal case against Alvarez et al.was
then filed with the Regional Trial Court of Iba, Zambales (RTC Zambales).

The Assistant Provincial Prosecutor also endorsed to the Deputy Ombudsman for the
Military the finding of probable cause to charge the following school authorities as
accomplices to hazing: Rear Admiral (RADM) Virginio R. Aris (Aris), Lieutenant Senior
Grade (LTSG.) Dominador D. Bayabos (Bayabos), Lieutenant Junior Grade (LTJG.)
Gerry P. Doctor (Doctor), LTJG. Manny Ferrer (Ferrer), LTJG. Kruzaldo Mabborang
(Mabborang), LTJG. Ronald G. Magsino (Magsino), Ensign (ENS.) Dennis Velasco
(Velasco), and ENS. Dominador Operio (Operio) collectively, respondents. The
Ombudsman Investigator agreed with the findings of the Assistant Provincial
Prosecutor. The matter was thus ordered re-docketed for the purpose of conducting the
proper administrative proceedings against respondents for grave misconduct and abuse
of authority.[10] The Office of the Special Prosecutor eventually filed with the
Sandiganbayan a criminal case charging respondents as accomplices to the crime of
hazing.[11]

Meanwhile, the RTC Zambales issued an Order dismissing the Information against
the principal accused, Alvarez et al.[12] The Order was later entered in the Book of
Entries of Judgment.

Bayabos, Ferrer, Magsino, Doctor, and Operio (collectively, Bayabos et al.) filed a
Motion to Quash the Information.[13] They argued that the Information did not contain
all the essential elements of the offense. They also pointed out that there was no
allegation that the purported act had been made a prerequisite for admission to the
PMMA, especially considering that the victim had already been accepted in the
academy. Moreover, they stressed that there was no averment in the Information that
the PMMA was a fraternity, a sorority, or an organization. Also underscored was the
absence in the Information of any assertion that the alleged hazing was not part of the
"physical, mental, and psychological testing and training procedure and practices to
determine and enhance the physical, mental and psychological fitness of prospective
regular members." Furthermore, they emphasized that there was no allegation that they
were given prior written notice of the hazing and that they had permitted the activity.

As a final point, Bayabos et al. argued that the case against the principal accused had
already been dismissed with finality by the RTC. There being no more principals with
whom they could have cooperated in the execution of the offense, they asserted that the
case against them must be dismissed.

The Special Prosecutor opposed[14] the motion of Bayabos et al. He insisted that the
Information alleged the material facts that would sufficiently establish the presence of
the essential ingredients of the crime of accomplice to hazing. He also stressed that
there was nothing in the law requiring that the principals must be prosecuted first
before a case could be filed against the accomplices. The Comment/Opposition of the
Special Prosecutor was, however, silent on the issue of whether the Information
contained an allegation that the supposed hazing had been made a prerequisite for
admission to the PMMA, and whether the academy was considered an "organization"
within the meaning of the Anti-Hazing Law.

Six days before Bayabos et al. were set to be arraigned,[15] the Sandiganbayan issued
the assailed Resolution (SB Resolution I) quashing the Information and dismissing the
criminal case against them. According to the court, the fact that the charge against the
principal accused Alvarez et al. was dismissed with finality favorably carried with it the
indictment against those charged as accomplices, whose criminal responsibility was
subordinate to that of the former. It stressed that before there can be an accomplice,
there must be a principal by direct participation, the latter being the originator of the
criminal design. In this case, as there were no principal perpetrators to speak of,
necessarily, there was no one else with whom they could have cooperated in the
execution of the crime of hazing. In view of the dismissal of the case against the
principals, the court ruled that the Information charging Bayabos et al. as accomplices
could no longer stand on its own.

In any event, the Sandiganbayan found that the Information charged no offense, and
that the allegations therein were mere conclusions of law. It also stressed that there was
no averment that the alleged hazing was not part of the "physical, mental and
psychological testing and training procedure and practices to determine and enhance
the physical, mental and psychological fitness of prospective regular members" of the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP),
pursuant to Section 1 of the law.[16] It must be noted, though, that the Sandiganbayan
did not make any categorical determination that the PMMA was considered an
"organization" within the meaning of the Anti-Hazing Law.

Six months after the Sandiganbayan issued its Resolution dismissing the criminal case
against Bayabos et al., the accused Velasco surrendered and then filed his own Motion
to Quash,[17] adopting the grounds raised by that court. His arraignment was set on 14
August 2006.[18] However, on 3 August 2006, the Sandiganbayan issued another
Resolution (SB Resolution II) dismissing the case against him. According to the court,
since Velasco was similarly situated as Bayabos et al., the Information against him
must likewise be quashed in light of the reasoning laid out in SB Resolution I. In the
same Resolution, the Sandiganbayan ex proprio motu dismissed the case against Aris
and Mabborang (collectively, Velasco et al.), explaining that they, too, had been
charged under the same Information for the same offense.[19] It is unclear from the
records[20] whether the accused Aris and Mabborang surrendered or were arrested, or
whether the Order of Arrest[21] was recalled prior to the dismissal of the case.

Aggrieved, the Office of the Ombudsman, through the Special Prosecutor, filed with this
Court on 13 March 2006 a Petition assailing SB Resolution I and, on 16 October 2006,
another Petition challenging SB Resolution II.

The Issues

The Special Prosecutor asks this Court to address a number of legal issues. After a
thorough evaluation of the Petitions, however, we cull the threshold issues needing to be
addressed by this Court as follows:

I. Whether the prosecution of respondents for the crime of accomplice

to hazing can proceed in spite of the dismissal with finality of the case
against the principal accused
II. Whether the Information filed against respondents contains all the
material averments for the prosecution of the crime of accomplice to
hazing under the Anti-Hazing Law

Our Ruling

With regard to the first issue, we agree with petitioner that the Sandiganbayan erred
when it dismissed outright the case against respondents, on the sole ground that the
case against the purported principals had already been dismissed. It is a settled rule that
the case against those charged as accomplices is not ipso facto dismissed in the
absence of trial of the purported principals; the dismissal of the case against the latter;
or even the latter's acquittal, especially when the occurrence of the crime has in fact
been established.[22] In People v. Rafael,[23] the Supreme Court En Banc reasoned
thus: "The corresponding responsibilities of the principal, accomplice, and accessory are
distinct from each other. As long as the commission of the offense can be duly
established in evidence, the determination of the liability of the accomplice or accessory
can proceed independently of that of the principal." Accordingly, so long as the
commission of the crime can be duly proven, the trial of those charged as accomplices to
determine their criminal liability can proceed independently of that of the alleged
principal.[24]

We note in the present case that Bayabos et al. merely presented the Order of Entry of
Judgment[25] dismissing the case against Alvarez et al. Nowhere is it mentioned in the
order that the case was dismissed against the alleged principals, because no crime had
been committed. In fact, it does not cite the trial court's reason for dismissing the case.
Hence, the Sandiganbayan committed an error when it simply relied on the Order of
Entry of Judgment without so much as scrutinizing the reason for the dismissal of the
case against the purported principals.

Nonetheless, as will be discussed below, we affirm the quashal of the Information

against respondents.

Section 14, Article III of the Constitution, recognizes the right of the accused to be
informed of the nature and cause of the accusation against them. As a manifestation of
this constitutional right, the Rules of Court requires that the information charging
persons with an offense be "sufficient." One of the key components of a "sufficient
information" is the statement of the acts or omissions constituting the offense charged,
subject of the complaint.[26] The information must also be crafted in a language ordinary
and concise enough to enable persons of common understanding to know the offense
being charged against them.[27] This approach is intended to allow them to suitably
prepare for their defense, as they are presumed to have no independent knowledge of
the facts constituting the offense they have purportedly committed.[28] The information
need not be in the same kind of language used in the law relied upon.[29]
At any time before entering a plea, an accused may assail the information filed with the
court based on the grounds enumerated in Section 3, Rule 117 of the Rules of Court, one
of which is the claim that the facts charged do not constitute an offense. In assessing
whether an information must be quashed on that ground, the basic test[30] is to
determine if the facts averred would establish the presence of the essential elements of
the crime as defined in the law. The information is examined without consideration of
the truth or veracity of the claims therein, as these are more properly proven or
controverted during the trial. In the appraisal of the information, matters aliunde are
not taken into account.

We quote the pertinent provision of the Anti-Hazing Law as follows:

Section 1. Hazing, as used in this Act, is an initiation rite or practice as

a prerequisite for admission into membership in a fraternity, sorority
or organization by placing the recruit, neophyte or applicant in
some embarrassing or humiliating situations such as forcing him to
do menial, silly, foolish and other similar tasks or activities
or otherwise subjecting him to physical or psychological suffering
or injury.

The term "organization" shall include any club or the Armed

Forces of the Philippines, Philippine National Police, Philippine
Military Academy, or officer and cadet corp of the Citizen's
Military Training and Citizen's Army Training. The physical, mental
and psychological testing and training procedure and practices to
determine and enhance the physical, mental and psychological fitness of
prospective regular members of the Armed Forces of the Philippines and
the Philippine National Police as approved by the Secretary of National
Defense and the National Police Commission duly recommended by the
Chief of Staff, Armed Forces of the Philippines and the Director General of
the Philippine National Police shall not be considered as hazing for the
purposes of this Act.

Sec. 4. x x x x.

The school authorities including faculty members who consent to the

hazing or who have actual knowledge thereof, but failed to take
any action to prevent the same from occurring shall be punished
as accomplices for the acts of hazing committed by the perpetrators.
(Emphasis supplied)
The crime of hazing is thus committed when the following essential elements are
established: (1) a person is placed in some embarrassing or humiliating situation or
subjected to physical or psychological suffering or injury; and (2) these acts were
employed as a prerequisite for the person's admission or entry into an organization. In
the crime of hazing, the crucial ingredient distinguishing it from the crimes against
persons defined under Title Eight of the Revised Penal Code is the infliction by a person
of physical or psychological suffering on another in furtherance of the latter's admission
or entry into an organization.

In the case of school authorities and faculty members who have had no direct
participation in the act, they may nonetheless be charged as accomplices if it is shown
that (1) hazing, as established by the above elements, occurred; (2) the accused are
school authorities or faculty members; and (3) they consented to or failed to take
preventive action against hazing in spite actual knowledge thereof.

First, we reject the contention of respondents that PMMA should not be considered
an organization. Under the Anti-Hazing Law, the breadth of the
term organization includes but is not limited to groups, teams, fraternities, sororities,
citizen army training corps, educational institutions, clubs, societies, cooperatives,
companies, partnerships, corporations, the PNP, and the AFP.[31] Attached to the
Department of Transportation and Communications,[32] the PMMA is a government-
owned educational institution[33] established for the primary purpose of producing
efficient and well-trained merchant marine officers.[34] Clearly, it is included in the
term organizationwithin the meaning of the law.

We also disagree with the Sandiganbayan ruling that the quashal of the Information was
warranted for failure to allege that the purported acts were not covered by the
exemption relating to the duly recommended and approved "testing and training
procedure and practices" for prospective regular members of the AFP and the PNP. This
exemption is an affirmative defense in, not an essential element of, the crime
of accomplice to hazing. It is an assertion that must be properly claimed by the
accused, not by the prosecution. The reason for this rule is that the accused carry the
burden of proof in establishing by clear and convincing evidence that they have satisfied
the requirements thereof.[35] Thus, the prosecution's failure to point out in the
Information that the exception is inapplicable would not justify the quashal of that
Information.

Nevertheless, we find albeit for a different reason that the Motion to Quash must be
granted, as the Information does not include all the material facts constituting the crime
of accomplice to hazing. The Information charging respondents reads as follows:

The undersigned Assistant Special Prosecutor, Office of the Special

Prosecutor, hereby accuses [RADM] Virginio R. Aris, [LTSG.] Dominador
D. BAYABOS, [LTJG.] Manny G. Ferrer, [LTJG.] Ronald G. Magsino,
[LTJG.] Kruzaldo G. Mabborang, [LTJG.] Gerry P. Doctor, [ENS.]
Dominador B. Operio, Jr., and [ENS.] Dennis S. Velasco, as accomplices for
Violation of R.A. 8049 (Anti-Hazing Law), committed as follows:

That during the period from the 2nd of May 2001 up to the 3rd of May 2001,
inside the campus of the Philippine Merchant Marine Academy (PMMA), in
the Municipality of San Narciso, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court accused RADM Virginio R.
Aris, President of PMMA with [Salary Grade (SG) 29]; LTSG. Dominador
D. BAYABOS, Commandant of the Cadets; (LTJG.) Manny G. Ferrer,
1st Batallion Officer; LTJG. Ronald G. Magsino, Security Officer; LTJG.
Kruzaldo G. Mabborang, 2nd Battalion Officer; LTJG. Gerry P. Doctor, Batl.
Mast.; ENS. Dominador B. Operio, Jr., 1st Battalion Company Officer; and
ENS. Dennis S. Velasco, Mess Officer, all public officers, conspiring,
confederating and mutually helping one another, committing the offense in
relation to office and while in the performance of their duties as such public
officers being the school authorities and/or faculty members did then and
there willfully, unlawfully and criminally, consent or have actual knowledge
of the hazing perpetrated by the principal accused, all First Class
Midshipmen, against probationary midshipman FERNANDO BALIDOy,
JR. during the school's Indoctrination and Orientation; and, fail to take any
action to prevent the occurrence of the hazing and the infliction of
psychological and physical injuries against said FERNANDO BALIDOy,
JR. thereby causing the instantaneous death of the latter, to the damage
and prejudice of the heirs of said FERNANDO BALIDOy, JR.[36]
As can be gleaned from the above, the indictment merely states that psychological pain
and physical injuries were inflicted on the victim. There is no allegation that the
purported acts were employed as a prerequisite for admission or entry into the
organization. Failure to aver this crucial ingredient would prevent the successful
prosecution of the criminal responsibility of the accused, either as principal or as
accomplice, for the crime of hazing. Plain reference to a technical term[37] in this
case, hazing is insufficient and incomplete, as it is but a characterization of the acts
allegedly committed and thus a mere conclusion of law. Section 6, Rule 110 of the Rules
of Court, expressly states that the information must include, inter alia, both "the
designation of the offense given by the statute" and "the acts or omissions complained of
as constituting the offense." The Special Prosecutor's belated argument[38] in his
Petition before this Court that the successful completion of the indoctrination and
orientation program was used as a prerequisite for continued admission to the
academy i.e., attainment of active midshipman status does not cure this defect in the
Information. Thus, the Information must be quashed, as the ultimate facts it presents do
not constitute the crime of accomplice to hazing.

Finally, we reject the Special Prosecutor's claim that the Sandiganbayan should just have
ordered the filing of another information or the correction of the defect by amendment,
instead of dismissing the case outright.[39] Indeed, Section 4, Rule 117 of the Rules of
Court, provides that if a motion to quash is based on the ground that the facts charged
do not constitute an offense, the court shall give the prosecution a chance to correct the
defect by amendment. However, the provision also states that if the prosecution fails to
make the amendment, the motion shall be granted. Here, we point out that the Special
Prosecutor insisted in his Comment on the Motion to Quash[40] that there was no defect
in the Information. Neither has he filed a new information after the motion was
sustained, pursuant to Section 5, Rule 117. Thus, the Sandiganbayan was correct in
ordering the quashal of the Information and the eventual dismissal of the case.

This does not mean, however, that the Special Prosecutor is now precluded from filing
another information. Section 6, Rule 117, specifically states that an order sustaining a
motion to quash would not bar another prosecution. That is, of course, unless
respondents are able to prove that the criminal action or liability has been extinguished,
or that double jeopardy has already attached.

Given the foregoing, the Court no longer sees the necessity to pass upon the other issues
raised by petitioner.

WHEREFORE, the petition for review on certiorari in G.R. No. 171222 is

hereby DENIED and the petition for certiorari in G.R. No.
174786, DISMISSED. The dismissal of the case in Sandiganbayan Resolutions dated
27 January 2006 and 3 August 2006 in Criminal Case No. 28339 are
thus AFFIRMED.

SO ORDERED.

Leonardo-De Castro, Bersamin, Perez, and Perlas-Bernabe, JJ., concur.

[1]See generally CIVIL CODE, Arts. 352, 2180 and FAMILY CODE, Arts. 218-221, 223
in relation to R.A. 8049 (ANTI-HAZING LAW), Secs. 3-4; St. Joseph's College v.
Miranda, G.R. No. 182353, 29 June 2010, 622 SCRA 253; Amadora v. Court of
Appeals, 243 Phil. 268 (1988); Palisoc v. Brillantes, 148-B Phil. 1029 (1971).

[2]People v. Aris, Criminal Case No. 28339 (Sandiganbayan, 27 January 2006), slip
op., rollo (G.R. No. 171222), pp. 13-22 (hereinafter SB Resolution I); People v. Aris,
Criminal Case No. 28339 (Sandiganbayan, 3 August 2006), slip op., rollo (G.R. No.
174786), p. 57 (hereinafter SB Resolution II). Both Resolutions were penned by
Sandiganbayan Associate Justice Godofredo L. Legaspi and concurred in by Associate
Justices Efren N. de la Cruz and Norberto Y. Geraldez.
[3]Petition of the Special Prosecutor (filed on 13 March 2006), p. 15, rollo (G.R. No.
171222), p. 46; Comment of Bayabos et al. (filed on 30 June 2006), p. 8, rollo (G.R.
No. 171222), p. 103; Motion to Quash of Velasco (People v. Aris, Criminal Case No.
28339, Sandiganbayan, decided on 3 August 2006), p. 4, Sandiganbayan rollo, p. 261.

[4]
Urgent Motion for the Determination of Probable Cause and for the Deferment of
Action for the Issuance of Warrants of Arrests filed by Bayabos et al. (filed on 22
September 2005), p. 6, Sandiganbayan rollo, p. 68 (hereinafter Motion for the
Determination of Probable Cause of Bayabos et al.).

[5]Directive issued by PMMA's Department of Midshipmen's Affairs entitled

"Indoctrination and Orientation Period," Annex E of the Motion for the Determination
of Probable Cause of Bayabos et al., Sandiganbayan rollo, pp. 93-94 (hereinafter
Indoctrination and Orientation Directive); See Certification of Bayabos et al.,
Alvarez et al., and Velasco entitled "Chronology of Events Leading to the Death of
P/Midn. Balidoy, Fernando Jr. C." Annex H of the Motion for the Determination of
Probable Cause of Bayabos et al., Sandiganbayan rollo, p. 101 (hereinafter Certification
on the Chronology of Events).

[6]Petition of the Special Prosecutor, p. 15, rollo (G.R. No. 171222), p. 46; Motion for
the Determination of Probable Cause of Bayabos et al., pp. 6-7, Sandiganbayan rollo,
pp 68-69; Certification on the Chronology of Events, supra.

Findings of the Special Action Unit (dated 22 January 2002), Sandiganbayan rollo,
[7]
pp. 27-29.

[8] Petition of the Special Prosecutor, pp. 8-10, rollo (G.R. No. 171222), pp. 39-41.

Resolution of Asst. Provincial Prosecutor (dated 5 July 2002), Sandiganbayan rollo,

[9]
pp. 10-14.

Review and Recommendation (dated 27 February 2003), Sandiganbayan rollo, pp.

[10]
5-9.

[11] Petition of the Special Prosecutor, pp. 10-14, rollo (G.R. No. 171222), pp. 41-45.

See People v. Alvarez, Crim Case No. RTC-3502-I (Iba, Zambales RTC Br. 71, 21
[12]

June 2005) (Entry of Judgment), Sandiganbayan rollo, p. 133.

[13] Motion to Quash of Bayabos et al., (People v. Aris, Criminal Case No. 28339, SB,
decided on 27 January 2006), Sandiganbayan rollo, pp. 113-123.

Comment/Opposition of the Special Prosecutor, (People v. Aris, Criminal Case No.

[14]

28339, SB, decided on 27 January 2006), Sandiganbayan rollo, pp. 186-196

(hereinafter, Opposition to the Motion to Quash).

Order of Arraignment of Bayabos et al. (People v. Aris, Criminal Case No. 28339,
[15]

7 December 2005), slip op., Sandiganbayan rollo, pp. 211-213. See Motion to Defer
Arraignment (People v. Aris, Criminal Case No. 28339, filed on 24 January 2006),
Sandiganbayan rollo, pp. 213-214.

[16] Sandiganbayan Resolution I, supra note 2, at 8, rollo (G.R. No. 171222), p. 84.

[17] Motion to Quash of Velasco, supra note 3, Sandiganbayan rollo, pp. 258-265.

Order of Arraignment of Velasco (People v. Aris, Criminal Case No. 28339, 21 July
[18]

2006), slip op., Sandiganbayan rollo, pp. 254-255.

[19] SB Resolution II, supra note 2, rollo (G.R. No. 174786), p. 57.

[20] See SB Resolution II, id.; Order of Arraignment of Velasco, supra note 18, at 254.

[21]Order of Arrest (People v. Aris, Criminal Case No. 28339, 30 September 2005),
slip op., Sandiganbayan rollo, pp. 109-110.

People v. Rafael, 397 Phil. 109 (2000); Vino v. People, 258-A Phil. 404
[22]

(1989). Cf.: U.S. v. Mendoza, 23 Phil. 194 (1912) (cited in Vino v. People, in which
the acquittal of the principal resulted in the acquittal of the accessory, as it was shown
that no crime had been committed, as the fire was the result of an accident; hence, there
was no basis for the conviction of the accessory.)

[23] People v. Rafael, supra, at 123 (quoting Vino v. People, supra).

[24] People v. Rafael, supra; Vino v. People, supra.

Annex B of the Motion to Quash of Bayabos et al., supra note 12,

[25]

Sandiganbayan rollo, p. 133.

[26] RULES OF COURT, RULE 110, Secs. 6 & 8.

[27] RULES OF COURT, RULE 110, Sec. 9; Lazarte v. Sandiganbayan, 600 Phil. 475
(2009).

[28]Lazarte v. Sandiganbayan, supra; People v. Cinco, G.R. No. 186460, 4

December 2009, 607 SCRA 820 (citing Balitaan v. Court of First Instance, 201
Phil. 311 [1982]); Andaya v. People, 526 Phil. 480 (2006) (citing U.S. v. Karelsen, 3
Phil. 223 [1904]).

[29] Id.

Torres v. Garchitorena, 442 Phil. 765 (2002); Domingo v. Sandiganbayan,

[30]

379 Phil. 708 (2000); Ingco v. Sandiganbayan, 338 Phil. 1067 (1997).

[31] Anti-Hazing Law, Secs. 1, 4.

[32] E.O. 292 Administrative Code of 1987, Title XV, Chap. 6, Sec. 23.

Olanda v. Bugayong, 459 Phil. 626 (2003); Philippine Merchant Marine

[33]

Academy v. Court of Appeals, 161 Phil. 634 (1976).

R.A. 3680 An Act Converting the Philippine Nautical School into the
[34]

PMMA, Sec. 2.

See Sierra v. People, 609 Phil. 446 (2009); People v. Castillo, 533 Phil. 197
[35]

(2007); People v. Rapisora, G.R. No. 147855, 28 May 2004, 430 SCRA 237; People
v. Marcelo, 471 Phil. 301 (2004).

Information (dated 2 September 2005), Sandiganbayan rollo, pp. 1-4. It is also

[36]

quoted in Sandiganbayan Resolution, pp. 4-5, rollo(G.R. No. 171222), pp. 16-17.

See generally U.S. v. Lim San, 17 Phil. 273 (1910) (cited in Consigna v. People,
[37]

G.R. Nos. 175750-51, 2 April 2014; People v. Valdez, G.R. No. 175602, 18 January
2012, 663 SCRA 272; Matrido v. People, 613 Phil. 203 (2009); Batulanon v.
People, 533 Phil. 336 (2006); Andaya v. People, supra note 28; Burgos v.
Sandiganbayan, 459 Phil. 794 (2003); People v. Banihit, 393 Phil. 465
(2000); Oca v. Jimenez, 115 Phil. 420 (1962).

[38] Petition of the Special Prosecutor, pp. 15-16, rollo (G.R. No. 171222), pp. 46-47.

[39] Petition of the Special Prosecutor, p. 28, rollo (G.R. No. 171222), p. 59.
 Opposition to the Motion to Quash, supra note 14 at 4-9, Sandiganbayan rollo, pp.
[40]
189-194.

EN BANC

SOUTHERN HEMISPHERE G.R. No. 178552

ENGAGEMENT NETWORK,
INC., on behalf of the South- Present:
South Network (SSN) for Non-
State Armed Group CORONA, C.J.,
Engagement, and ATTY. CARPIO,
SOLIMAN M. SANTOS, JR., CARPIO MORALES,
Petitioners, VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
ANTI-TERRORISM DEL CASTILLO,
COUNCIL, THE ABAD,
EXECUTIVE SECRETARY, VILLARAMA, JR.,
THE SECRETARY OF PEREZ,
JUSTICE, THE SECRETARY MENDOZA, and
OF FOREIGN AFFAIRS, SERENO, JJ.
THE SECRETARY OF
NATIONAL DEFENSE, THE
SECRETARY OF THE
INTERIOR AND LOCAL
GOVERNMENT, THE
SECRETARY OF FINANCE,
THE NATIONAL SECURITY
ADVISER, THE CHIEF OF
STAFF OF THE ARMED
FORCES OF THE
PHILIPPINES, AND THE Promulgated:
CHIEF OF THE PHILIPPINE
NATIONAL POLICE, October 5, 2010
Respondents.
x ------------------------------- G.R. No. 178554
x

KILUSANG MAYO UNO

(KMU), represented by its
Chairperson Elmer Labog,
NATIONAL FEDERATION
OF LABOR UNIONS-
KILUSANG MAYO UNO
(NAFLU-KMU), represented
by its National President
Joselito V. Ustarez and
Secretary General Antonio C.
Pascual, and CENTER FOR
TRADE UNION AND
HUMAN RIGHTS,
represented by its Executive
Director Daisy Arago,
Petitioners,

- versus -

HON. EDUARDO ERMITA,

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

x ------------------------------------ G.R. No. 178581

x

BAGONG ALYANSANG
MAKABAYAN (BAYAN),
GENERAL ALLIANCE
BINDING WOMEN FOR
REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP
AND ACTION (GABRIELA),
KILUSANG MAGBUBUKID
NG PILIPINAS (KMP),
MOVEMENT OF
CONCERNED CITIZENS
FOR CIVIL LIBERTIES
(MCCCL),
CONFEDERATION FOR
UNITY, RECOGNITION
AND ADVANCEMENT OF
GOVERNMENT
EMPLOYEES (COURAGE),
KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY
OF CAVITE WORKERS,
LEAGUE OF FILIPINO
STUDENTS (LFS),
ANAKBAYAN,
PAMBANSANG LAKAS NG
KILUSANG
MAMAMALAKAYA
(PAMALAKAYA),
ALLIANCE OF
CONCERNED TEACHERS
(ACT), MIGRANTE,
HEALTH ALLIANCE FOR
DEMOCRACY (HEAD),
AGHAM, TEOFISTO
GUINGONA, JR., DR.
BIENVENIDO LUMBERA,
RENATO CONSTANTINO,
JR., SISTER MARY JOHN
MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY.
JOSEFINA LICHAUCO,
COL. GERRY CUNANAN
(ret.), CARLITOS SIGUION-
REYNA, DR. CAROLINA
PAGADUAN-ARAULLO,
RENATO REYES, DANILO
RAMOS, EMERENCIANA
DE LESUS, RITA BAUA,
REY CLARO CASAMBRE,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARY EDUARDO
ERMITA, DEPARTMENT
OF JUSTICE SECRETARY
RAUL GONZALES,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT
SECRETARY RONALDO
PUNO. DEPARTMENT OF
FINANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP G.R. No. 178890
CHIEF GEN.
HERMOGENES ESPERON,
Respondents.
x ------------------------------------
x
KARAPATAN, ALLIANCE
FOR THE ADVANCEMENT
OF PEOPLES RIGHTS,
represented herein by Dr.
Edelina de la Paz, and
representing the following
organizations: HUSTISYA,
represented by Evangeline
Hernandez and also on her
own behalf;
DESAPARECIDOS,
represented by Mary Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA
EX-DETAINEES LABAN SA
DETENSYON AT PARA SA
AMNESTIYA (SELDA),
represented by Donato
Continente and also on his
own behalf, ECUMENICAL
MOVEMENT FOR JUSTICE
AND PEACE (EMJP),
represented by Bishop Elmer
M. Bolocon, UCCP, and
PROMOTION OF CHURCH
PEOPLES RESPONSE,
represented by Fr. Gilbert
Sabado, OCARM,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARTY EDUARDO
ERMITA, DEPARTMENT
OF JUSTICE SECRETARY
RAUL GONZALEZ,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT
SECRETARY RONALDO
PUNO, DEPARTMENT OF
FINANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and G.R. No. 179157
investigative elements, AFP
CHIEF GEN.
HERMOGENES ESPERON,
Respondents.

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

THE INTEGRATED BAR OF

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

- versus -

EXECUTIVE SECRETARY
EDUARDO ERMITA AND G.R. No. 179461
THE MEMBERS OF THE
ANTI-TERRORISM
COUNCIL (ATC),
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG (BAYAN-ST),
GABRIELA-ST,
KATIPUNAN NG MGA
SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN
(KASAMA-TK),
MOVEMENT OF
CONCERNED CITIZENS
FOR CIVIL LIBERTIES
(MCCCL), PEOPLES
MARTYRS, ANAKBAYAN-
ST, PAMALAKAYA-ST,
CONFEDERATION FOR
UNITY, RECOGNITION
AND ADVANCEMENT OF
GOVERNMENT
EMPLOYEES (COURAGE-
ST), PAGKAKAISAT
UGNAYAN NG MGA
MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA
TABING RILES (SMTR-ST),
LEAGUE OF FILIPINO
STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG
MGA MAGBUBUKID PARA
SA REPORMANG
AGRARYO KOMPRA,
BIGKIS AT LAKAS NG
MGA KATUTUBO SA
TIMOG KATAGALUGAN
(BALATIK), SAMAHAN AT
UGNAYAN NG MGA
MAGSASAKANG
KABABAIHAN SA TIMOG
KATAGALUGAN
(SUMAMAKA-TK),
STARTER, LOSOS RURAL
POOR ORGANIZATION
FOR PROGRESS &
EQUALITY, CHRISTIAN
NIO LAJARA, TEODORO
REYES, FRANCESCA B.
TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T.
LAPIDA, JR., DELFIN DE
CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE
BELTRAN,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARY EDUARDO
ERMITA, DEPARTMENT
OF JUSTICE SECRETARY
RAUL GONZALEZ,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMEN T
SECRETARY RONALDO
PUNO, DEPARTMENT OF
FINCANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP
CHIEF GEN.
HERMOGENES ESPERON,
Respondents.

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

DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act
No. 9372 (RA 9372), An Act to Secure the State and Protect our People from
Terrorism, otherwise known as the Human Security Act of 2007,[1] signed into law
on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective officers[3] who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and
prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers
(ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham,
represented by their respective officers,[4] and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino,
Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina
Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua
and Rey Claro Casambre filed a petition for certiorari and prohibition docketed
as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church Peoples Response (PCPR), which were represented by their
respective officers[5] who are also bringing action on their own behalf, filed a
petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

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

chapters and organizations mostly based in the Southern Tagalog Region,[7] and
individuals[8]followed suit by filing on September 19, 2007 a petition for certiorari
and prohibition docketed as G.R. No. 179461 that replicates the allegations raised
in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council[9] composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces of
the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President

Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council
like the National Intelligence Coordinating Agency, National Bureau of
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service
of the AFP, Anti-MoneyLaundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is

improper

Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:

Section 1. Petition for certiorari.When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and underscoring
supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity
how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

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

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

requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of
the case.[10]

In the present case, the dismal absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the

rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the question on
standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to
 be subjected to some burdens or penalties by reason of the statute or act
complained of.

For a concerned party to be allowed to raise a constitutional question, it must

show that (1) it has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government, (2) the injury is fairly
traceable to the challenged action, and (3) the injury is likely to be redressed by a
favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected

communist fronts by the government, especially the military; whereas individual
petitioners invariably invoke the transcendental importance doctrine and their
status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses

with the requirement that petitioner has experienced or is in actual danger of
suffering direct and personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners

in G.R. No. 178890, allege that they have been subjected to close security
surveillance by state security forces, their members followed by suspicious persons
and vehicles with dark windshields, and their offices monitored by men with
military build. They likewise claim that they have been branded as enemies of the
[S]tate.[14]

Even conceding such gratuitous allegations, the Office of the Solicitor General
(OSG) correctly points out that petitioners have yet to show
any connection between the purported surveillance and the implementation
of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,

Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents alleged action of tagging them as militant organizations fronting for
the Communist Party of the Philippines (CPP) and its armed wing, the National
Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the
effects of proscription without following the procedure under the law.[15] The
petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.
Generally speaking, matters of judicial notice have three material requisites:
(1) the matter must be one of common and general knowledge; (2) it must
be well and authoritatively settledand not doubtful or uncertain; and (3) it
must be known to be within the limits of the jurisdiction of the court. The
principal guide in determining what facts may be assumed to be judicially known
is that of notoriety. Hence, it can be said that judicial notice is limited to facts
evidenced by public records and facts of general notoriety. Moreover, a judicially
noticed fact must be one not subject to a reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial matters coming to

the knowledge of men generally in the course of the ordinary experiences of life,
or they may be matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may be regarded as forming part
of the common knowledge of every person. As the common knowledge of man
ranges far and wide, a wide variety of particular facts have been judicially noticed
as being matters of common knowledge. But a court cannot take judicial notice
of any fact which, in part, is dependent on the existence or non-existence of a
fact of which the court has no constructive knowledge.[16] (emphasis and
underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial

notice. Petitioners apprehension is insufficient to substantiate their plea. That no
specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No.
178554, who merely harp as well on their supposed link to the CPP and
NPA. They fail to particularize how the implementation of specific provisions of
RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization,

the United States of America[17] (US) and the European Union[18] (EU) have both
classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU classification of the CPP and NPA as
terrorist organizations.[19] Such statement notwithstanding,there is yet to be filed
before the courts an application to declare the CPP and NPA organizations as
domestic terrorist or outlawed organizations under RA 9372.Again, RA 9372
has been in effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat of,
much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and
Luzviminda Ilagan,[20]urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino Administration [21] of
resuming peace talks with the NDF, the government is not imminently disposed to
ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.

More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.[22] Of recent development is the
filing of the firstcase for proscription under Section 17[23] of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution

under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed
in 2006 against then Party-List Representatives Crispin Beltran and Rafael
Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro
Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus
standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section
21 of RA 9372 directing it to render assistance to those arrested or detained under
the law.

The mere invocation of the duty to preserve the rule of law does not, however,
suffice to clothe the IBP or any of its members with standing.[27] The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against
its constitutional rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the
subject of political surveillance, also lacks locus standi. Prescinding from the
veracity, let alone legal basis, of the claim of political surveillance, the Court finds
that she has not shown even the slightest threat of being charged under RA
9372. Similarly lacking in locus standi are former Senator Wigberto
Taada and Senator Sergio Osmea III, who cite their being respectively a human
rights advocate and an oppositor to the passage of RA 9372. Outside these
gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman

Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are
of transcendental importance, which must be settled early and are of far-reaching
implications, without mention of any specific provision of RA 9372 under which
they have been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with locus
standi. Petitioners must show an actual, or immediate danger of sustaining, direct
injury as a result of the laws enforcement. To rule otherwise would be to corrupt
the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.

Neither can locus standi be conferred upon individual petitioners

as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise
of the spending or taxing power of Congress,[28] whereas citizen standing must rest
on direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens
has alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a

public right, do not establish locus standi. Evidence of a direct and personal
interest is key.

Petitioners fail to present an actual case

or controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.[32]

Information Technology Foundation of the Philippines v. COMELEC[33] cannot be

more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy

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

Thus, a petition to declare unconstitutional a law converting

the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.[34] Similarly, a petition that fails to
allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections[36] for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission
on Elections,[37] to rule on the religious freedom claim of the therein petitioners
based merely on a perceived potential conflict between the provisions of the
Muslim Code and those of the national law, there being no actual controversy
between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory

grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of

a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must be sufficient facts to enable the
Court to intelligently adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds,since plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed an
action before a federal court to assail the constitutionality of the material support
statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activitythat they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being

tagged as communist fronts in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then again,
declaratory actions characterized by double contingency, where both the activity
the petitioners intend to undertake and the anticipated reaction to it of a public
official are merely theorized, lie beyond judicial review for lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take
the present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by
law may be abused.[45] Allegations of abuse must be anchored on real events before
courts may step in to settleactual controversies involving rights which are
legally demandable and enforceable.
A facial invalidation of a statute is allowed
only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms
like widespread and extraordinary fear and panic among the populace and coerce
the government to give in to an unlawful demand are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness

and overbreadth find no application in the present case since these doctrines apply
only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to

outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting

the application of the two doctrines to free speech cases. They particularly
cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in

Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague
and impermissibly broad. The Court stated that the overbreadth and the vagueness
doctrines have special application only to free-speech cases, and are not
appropriate for testing the validity of penal statutes.[50] It added that, at any rate, the
challenged provision, under which the therein petitioner was charged, is not
vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the

Court stated that a facial invalidation of criminal statutes is not appropriate, it
nonetheless proceeded to conduct a vagueness analysis, and concluded that the
therein subject election offense[53] under the Voters Registration Act of 1996, with
which the therein petitioners were charged, is couched in precise language.[54]
The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice
Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder
Law (Republic Act No. 7080) clear and free from ambiguity respecting the
definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a facial invalidation as opposed to an as-applied challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify
a facial review of its validity. The pertinent portion of the Concurring Opinion of
Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

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

The overbreadth and vagueness doctrines then have special application

only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
 conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are

analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, whilestatutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the 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. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its

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

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.[56] (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of

the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not

operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.[57] The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes

that individuals will understand what a statute prohibits and will accordingly
refrain from that behavior, even though some of it is protected.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that
the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to
avert the chilling effect on protected speech, the exercise of which should not at all
times be abridged.[62] As reflected earlier, this rationale is inapplicable to plain
penal statutes that generally bear an in terrorem effect in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or
dissuading the exercise of constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute
may be challenged and underscored that an on-its-face invalidation of penal
statutes x x x may not be allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of
crimes may be hampered. No prosecution would be possible. A strong criticism
against employing a facial challenge in the case of penal statutes, if the same is
allowed, would effectively go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third parties who are
not before it. As I have said in my opposition to the allowance of a facial challenge
to attack penal statutes, such a test will impair the States ability to deal with
crime. If warranted, there would be nothing that can hinder an accused from
defeating the States power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear
as applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a
facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
 only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad laws "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases,[67] observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment,[68] and
that claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.[69] In Virginia v.
Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the transcendent
value to all society of constitutionally protected expression.[71]

Since a penal statute may only be assailed for

being vague as applied to petitioners, a limited
vagueness analysis of the definition of terrorism in
RA 9372 is legally impermissible absent an actual
or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law on its face
and in its entirety.[72] It stressed that statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve

the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity.
For more than 125 years, the US Supreme Court has evaluated defendants claims
that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
among the most important guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,[76] the Court brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.

There is no merit in the claim that RA 9372

regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of unlawful demand in the definition of
terrorism[77] must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the
government to accede to an unlawful demand. Given the presence of the first
element, any attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a protected
speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it

unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case[78] illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down
a sign reading White Applicants Only hardly means that the law should be
analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor
the essence of the whole act as conduct and not speech. This holds true a
fortiori in the present case where the expression figures only as an inevitable
incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to
society.[79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.[80] Since speech is not involved here, the
Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis
of the therein subject penal statute as applied to the therein petitioners inasmuch as
they were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a credible threat of prosecution and should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief.

As earlier reflected, petitioners have established neither an actual charge nor a

credible threat of prosecution under RA 9372. Even a limited vagueness analysis
of the assailed definition of terrorism is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling
on a statutes future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

 Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
[2]
REPUBLIC ACT No. 9372, Sec. 62.
[3]
KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-
KMU Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.
[4]
BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de Jesus,
KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President
Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS
National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA
Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson Concepcion Bragas-
Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni
Tapang. Grafe and Tapang, however, failed to verify the petition.
[5]
Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for
Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for
PCPR.
[6]
IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by Atty. Noel
Neri, convenor/member.
[7]
BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa Timog
Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa Timog
Katagalugan (PAMANTIK-KMU) by Regional Secretary General Luz Baculo; GABRIELA-Southern Tagalog by
Secretary General Helen Asdolo; Organized Labor Association in Line Industries and Agriculture (OLALIA) by
 Chairperson Romeo Legaspi; Southern Tagalog Region Transport Organization (STARTER) by Regional
Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional Coordinator Bayani Cambronero;
Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco;
PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa Timog
Katagalugan (BALATIK) by Regional Auditor Aynong Abnay; Kongreso ng mga Magbubukid para sa
Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng Bayan with no representation;
Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented by Provincial
Secretary General Darwin Liwag; and Los Baos Rural Poor Organization for Progress and Equality represented by
Teodoro Reyes.
[8]
Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap, Oscar Lapida, Delfin de
Claro, Sally Astera, Christian Nio Lajara, Mario Anicete, and Emmanuel Capulong.
[9]
REPUBLIC ACT No. 9372, Sec. 53.
[10]
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133 (2003).
[11]
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S. 186
(1962).
[12]
G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
[13]
360 Phil. 133 (1998).
[14]
Rollo (G.R. No. 178890), pp. 11-12.
[15]
Rollo (G.R. No. 178581), p. 17.
[16]
Vide Genesis Transport Service, Inc. v. Unyon ng Malayang Manggagawa ng Genesis Transport, G.R. No.
182114, April 5, 2010.
[17]
<http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited August 13, 2010).
[18]
<http://eur-ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf> and its recent update
<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:023:0037:01:EN:HTM> on the Council
Common Position (last visited August 13, 2010).
[19]
Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
<http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-75951/Reds_target_of_terror_law> (last
visited August 16, 2010).
[20]
House Resolution No. 641.
[21]
In his State of the Nation Address, President Benigno Aquino III said: x x x x. Tungkol naman po sa CPP-NPA-
NDF: handa na ba kayong maglaan ng kongkretong mungkahi, sa halip na pawang batikos lamang?
Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo.
Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako: huwag po
natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang adhikain.
Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy din ang
pagkakagapos natin sa kahirapan. x x x x. See: <http://www.gov.ph/2010/07/26/state-of-the-nation-address-2010>
(last visited August 25, 2010).
[22]
In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the determinants cited
by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental importance doctrine, to
wit: (a) the character of the funds or other assets involved in the case; (b) the presence of a clear case of disregard of
a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and
(c) the lack of any other party with a more direct and specific interest in the questions being raised.
[23]
SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. Any organization,
association, or group of persons organized for the purpose of engaging in terrorism, or which, although not
organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create a condition of
widespread fear and panic among the populace in order to coerce the government to give in to an unlawful demand
shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and
opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a
terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
[24]
<http://www.philstar.com/Article.aspx?articleId=607149&publicationSubCategoryId=63> (last
visited: September 1, 2010).
[25]
G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
[26]
Rollo (G.R. No. 178581), pp. 111-125.
[27]
Supra note 22 at 896.
[28]
Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct
1942.
[29]
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, G.R. No. 132922, April 21,
1998, 289 SCRA 337.
[30]
CONSTITUTION, Article VIII, Section 1.
[31]
63 Phil. 139, 158 (1936).
[32]
Republic Telecommunications Holding, Inc. v. Santiago, G.R. No. 140338, August 7, 2007, 529 SCRA 232, 243.
[33]
499 Phil. 281, 304-305 (2005).
[34]
Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).
[35]
Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[36]
314 Phil. 131 (1995).
[37]
G.R. No. 89651, November 10, 1989, 179 SCRA 287.
[38]
De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo, 424 U.S. 1,
113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
[39]
561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.
[40]
Id. citing Babbitt v. Farm Workers, supra.
[41]
2339B. Providing material support or resources to designated foreign terrorist organizations.
(a) Prohibited Activities.
(1) Unlawful conduct. Whoever knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization
(as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in
section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in
terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and
1989).
[42]
Doe v. Bolton, 410 U.S. 179, 188-189 (1973).
[43]
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10,
citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
[44]
LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW Vol. I, p.332 (3rd ed. 2000), citing Steffel v.
Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).
[45]
Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117, stating that all
powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power[.]
[46]
RA 9372 defines the crime of terrorism as follows:
SEC. 3. Terrorism. Any person who commits an act punishable under any of the following
provisions of the Revised Penal Code:

a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);

c. Article 134-a (Coup detat), including acts committed by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction); or under

1. Presidential Decree No. 1613 (The Law on Arson);

2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste
Control Act of 1990);

3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);

4. Republic Act No. 6235 (Anti-Hijacking Law);

 5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974); and,

6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal
and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in
order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall
suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as amended.
[47]
479 Phil. 265 (2004).
[48]
421 Phil. 290 (2001).
[49]
REPUBLIC ACT No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives,
to intervene, directly or indirectly, in any business, transaction, contract or application with the Government x x x.
(Underscoring supplied)
[50]
Romualdez v. Hon. Sandiganbayan, supra at 281.
[51]
Id. at 288.
[52]
G.R. No. 167011, April 30, 2008, 553 SCRA 370.
[53]
Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No. 8189.
[54]
Romualdez v. Commission on Elections, supra at 284.
[55]
Estrada v. Sandiganbayan, supra at 421-450.
[56]
Id. at 353-356.
[57]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.
[58]
Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719-720.
[59]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003), note 39, citing Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 261-262 (1994).
[60]
Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v.
Commission on Elections, supra at 418, note 35.
[61]
Estrada v. Sandiganbayan, supra at 429.
[62]
CONSTITUTION, Art. III, Sec. 4.
[63]
The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the
sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid
and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been
abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 485).
[64]
Romualdez v. Commission on Elections, supra at 643.
[65]
Id. at 645-646.
[66]
David v. Macapagal-Arroyo, supra at 238.
[67]
Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.
[68]
Estrada v. Sandiganbayan, supra at 354.
[69]
Id.
[70]
539 U.S. 113, 156 L. Ed. 2d 148 (2003).
[71]
Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).
[72]
Estrada v. Sandiganbayan, supra at 355.
[73]
Id.
[74]
United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d 519
(1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87,
46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
[75]
Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L.
279 (2003).
[76]
People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No. 121777,
January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.
[77]
Republic Act No. 9372, Sec. 3, supra.
[78]
Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed 2d 156 (2006).
[79]
Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage,
456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [to engage in
illegal conduct]necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the
constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an
agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation,
even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal
exchange for private profit, and may properly be prohibited.
[80]
Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-
Altering Uttera

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R.
GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR of
the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

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

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

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

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

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

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN

HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA
FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO,
IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L.
TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and
 5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory
statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
 l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in determining
the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal
protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally condemned conduct. 4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools
and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical
hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and
give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who
come into an organization to verify its bookkeeping records. 5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. 10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency
to intimidate the free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:
 (i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of Section
4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures. 13 But the Court acknowledged its existence
as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches 16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a
court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They express fear that
private communications of sexual character between husband and wife or consenting adults, which are not regarded
as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In common
usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or "a token of
love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a
proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some." 23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex. 24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam. 25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." 26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration. 27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography. 29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has
to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity. 30The
Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture
or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core
offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and imagines
a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the
idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet
could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information
in any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu. 35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom
of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or
both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for conviction. 38 Petitioners argue that inferring "presumed malice" from
the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not. 42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs. 44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact,
as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. 45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to
the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression. 48Indeed,
the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special
duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and
as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that
the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times
sufficient to guide law enforcement agencies in enforcing the law. 51 The legislature is not required to define every
single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea
of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace
use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a
year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or
to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is
just reposting or republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends
of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it
interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing
by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical
world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by
means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern
for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises
special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect
on those who express themselves through cyberspace posts, comments, and other messages. 64 Hence, Section 5 of
the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we must view these statements of the
Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar
as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex
web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography
and facilitates the completion of transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature
in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a
plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or
not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way,
certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal
prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet
users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section
4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted. 72 If Section 5 that
punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username
and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section
4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission
of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant provisions
of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor
General points out, there exists a substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the
determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims
that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section
4(c)(4) merely establishes the computer system as another means of publication. 75 Charging the offender under both
laws would be a blatant violation of the proscription against double jeopardy. 76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding
One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with
the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have been
connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying
service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention
on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or
record "traffic data, in real time, associated with specified communications." 83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right, 84 transmitting viruses,85 lasciviously exhibiting sexual
organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital
age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that
provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under
pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal
matters. It is the latter right—the right to informational privacy—that those who oppose government collection or
recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice call,
video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits
together with other packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient, only their coded
internet protocol (IP) addresses. The packets travel from one computer system to another where their contents are
pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are refitted
together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service
provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also
reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same
basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for
a successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making
the expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court
cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable
commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to
the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their
sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing
expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to
privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that
the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis
is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals
and place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of
a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written
with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken
the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are
to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely
keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law
now requires service providers to keep traffic data and subscriber information relating to communication services for
at least six months from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an
order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively
a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory
powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

 (d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of
the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the
data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829, 102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not
struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned
agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avv phi 1

the delegate’s authority and prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber environment and organization and user’s assets. 104 This
definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation." 105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard. 106 Hence, Sections 24 and 26(a)
are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access
to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;
 e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes
prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

See Concurring & Dissenting Opinion

MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring & Dissenting Opinion (no part due to prior case)
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.*
Associate Justice Associate Justice

See Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

I join Justice Brion in all his positions

JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

No Part
BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*No part.
1
The US Supreme Court first suggested the standard by implication in footnote 4 of United States v.
Carolene Products (304 U.S. 144, 152 n.4 (1938). See Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts. Winkler, A. UCLA School of Law, Public Law & Legal
Theory Research Paper Series, Research Paper No. 06-14, http://ssrn.com/abstract=897360 (last accessed
April 10, 2013).

2
Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA 254, 278.

3
White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 437.

4
All 50 states of the United States have passed individual state laws criminalizing hacking or unauthorized
access, http://www.ncsl.org/issues-research/telecom/computer-hacking-and-unauthorized-access-laws.aspx
(last accessed May 16, 2013). The United States Congress has also passed the Computer Fraud and Abuse
Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest Convention on Cybercrime
considers hacking as an offense against the confidentiality, integrity and availability of computer data and
systems and 29 countries have already ratified or acceded,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&CL=ENG (last accessed
May 16, 2013).

5
Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10, 2013).

6
Id. at 774.

7
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554,
178581, 178890, 179157 & 179461, October 5, 2010, 632 SCRA 146, 185.

8
The intentional destruction of property is popularly referred to as vandalism. It includes behavior such as
breaking windows, slashing tires, spray painting a wall with graffiti, and destroying a computer system
through the use of a computer virus, http://legal-dictionary.thefreedictionary.com/Vandalism (last accessed
August 12, 2013).

9
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 7, at 186; Estrada
v. Sandiganbayan, 421 Phil. 290, 354 (2001).

10
Id.

11
Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v. Sandiganbayan.

12
1987 CONSTITUTION, Article III, Section 1.

13
Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA 189, 204-205.

14
130 Phil. 415 (1968)

15
535 Phil. 687, 714-715 (2006).

16
Supra note 12, Article II, Section 2.

17
Supra note 12, Article III, Section 3.

In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, supra note
18

15.

19
Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines personal information as "any
information whether recorded in a material form or not, from which the identity of an individual is apparent or
can be reasonably and directly ascertained by the entity holding the information, or when put together with
other information would directly and certainly identify an individual."

20
People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.

21
Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).

22
Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last accessed May 30, 2013).

23
Bicameral Conference Committee, pp. 5-6.

24
Id.

25
Office of the Solicitor General, COMMENT, p. 71.

26
REPUBLIC ACT 9208, Section 4(e).

27
Id., Section 3(c).

28
G.R. No. 191080, November 21, 2011, 660 SCRA 475.

29
REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential Decree 969.

30
Pita v. Court of Appeals, 258-A Phil. 134 (1989).

REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY,
31

PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES.

Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA 245, citing People v. Ventura, 114
32

Phil. 162, 167 (1962).

33
Supra note 31, Section 4(b).

34
G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp. 34-37.

White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist. LEXIS 19152 (W.D. Tex. Mar. 22,
35

2004).

36
Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health Care Association of
the Philippines v. Duque III, 561 Phil. 387, 449 (2007).

37
Supra note 29, Article 362.

38
Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

39
573 Phil. 278 (2008).

40
Vasquez v. Court of Appeals, supra note 38.

41
L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed. 2007).

Vasquez v. Court of Appeals, supra note 38, citing New York Times v. Sullivan, 376 U.S. 254, 11 L.Ed.2d
42

686 (1964).
43
Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004).

44
Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos, 37 Phil. 731 (1918).

45
Supra note 41, at 403.

46
Supra note 29, Article 354.

47
Communication 1815/2008.

48
General Comment 34, ICCPR, par. 47.

49
ICCPR, Article 19(2) and (3).

50
Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).

51
Office of the Solicitor General, MEMORANDUM, pp. 69-70.

52
REPUBLIC ACT 3701, Section 1.

53
REPUBLIC ACT 4712, Section 5.

54
LABOR CODE, Article 264.

55
G.R. No. 203440 (Sta. Maria), PETITION, p. 2.

56
http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

57
http://en.wikipedia.org/wiki/Social_networking_service (last accessed January 14, 2013).

58
http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

59
http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).

60
G. R . No. 203378 (Adonis) and G.R. No. 203391 (Palatino), CONSOLIDATED MEMORANDUM, p. 34.

61
521 U.S. 844 (1997).

62
Griswold v. Connecticut, 381 U.S. 479 (1965).

63
G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.

64
Supra note 55, at 33.

65
576 Phil. 357 (2008).

66
Id.

67
Id.

A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement "Google, Inc.: Procurer,
68

Possessor, Distributor, Aider and Abettor in Child Pornography,"

 http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed May 25, 2013).

69
Id., citing 47 U.S.C. 230.

70
Bianca Bosker, Facebook To Share Users' Home Addresses, Phone Numbers With External Sites,
http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-phone-numbers_n_829459.html (last
accessed July 18, 2013).

G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes, The Revised Penal Code:
71

Book 1, 118 (17th ed. 2008).

72
Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking, Email Accounts, http://columbia-
sc.patch.com/groups/police-and-fire/p/man-pleaded-guilty-to-hacking-usc-website-email-accounts (last
accessed July 18, 2013); Peter Ryan, Hackers target Bureau of Statistics data,
http://www.abc.net.au/news/2013-04-26/abs-targeted-by-hackers/4652758 (last accessed July 18, 2013).

73
Supra note 34, at 32.

74
Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).

75
Office of the Solicitor General, MEMORANDUM, p. 49.

76
Section 21, Article III, 1987 CONSTITUTION: "No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."

77
Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).

People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476, citing People v. Millora, 252
78

Phil. 105 (1989).

79
Supra note 14, at 436-437.

80
Ople v. Torres, 354 Phil. 948, 974-975 (1998).

81
In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298, 322
(2005); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

82
SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications
industries such as content production, telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development. The State also recognizes the
importance of providing an environment conducive to the development, acceleration, and rational application
and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible
access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of
computer, computer and communications systems, networks, and databases, and the confidentiality,
integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal
access by making punishable under the law such conduct or conducts. In this light, the State shall adopt
sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation,
and prosecution at both the domestic and international levels, and by providing arrangements for fast and
reliable international cooperation.

83
Convention on Cybercrime, Art. 20, opened for signature November 23, 2001, ETS 185.

84
Cybercrime Law, Section 4(a)(1),.

85
Id., Section 4(a)(3)
86
Id., Section 4(c)(1)

87
Id., Section 4(c)(2)

88
Supra note 14.

89
Id. at 433-437.

90
429 U.S. 589 (1977).

91
Id. at 599.

92
Supra note 13, at 206.

Jonathan Strickland, How IP Convergence Works, http://computer.howstuffworks.com/ip-

93

convergence2.htm (last accessed May 10, 2013).

94
442 U.S. 735 (1979).

95
Supra note 80, at 983.

96
Supra note 14, at 437, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law Rev. 219, 229
(1965).

97
G.R. No. 203391 (Palatino v. Ochoa).

Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA
98

78, 143; ADMINISTRATIVE CODE of 1987, Book I, Chapter 9, Section 37, and Book VII, Chapter 1, Section
13.

99
Computer data is defined by R.A. 10175 as follows:

"SEC. 3. Definition of Terms. x x x

xxxx

(e) Computer data refers to any representation of facts, information, or concepts in a form suitable
for processing in a computer system including a program suitable to cause a computer system to
perform a function and includes electronic documents and/or electronic data messages whether
stored in local computer systems or online."

100
Pita v. Court of Appeals, supra note 30, at 151.

101
Chavez v. Gonzales, 569 Phil. 155 (2008).

Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL

102

OFFENDERS.

103
Gerochi v. Department of Energy, 554 Phil. 563 (2007).

104
REPUBLIC ACT 10175, Section 3(k).

105
Supra note 94.
 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v. Provincial Board of Mindoro, 39
106

Phil. 660 (1919).

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.

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G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

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G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R.
GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

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G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR of
the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

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G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.

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G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

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G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

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G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

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G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

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G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN

HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA
FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO,
IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L.
TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory
statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

 n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful in determining
the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal
protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally condemned conduct. 4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools
and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical
hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and
give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who
come into an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. 10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency
to intimidate the free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
 (iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of Section
4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures. 13 But the Court acknowledged its existence
as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches 16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a
court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data. 19 The law
punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They express fear that
private communications of sexual character between husband and wife or consenting adults, which are not regarded
as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In common
usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or "a token of
love (as a ribbon) usually worn conspicuously." 22 This meaning given to the term "favor" embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a
proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some." 23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex. 24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam. 25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." 26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration. 27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography. 29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has
to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity. 30The
Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture
or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core
offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and imagines
a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the
idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet
could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx
(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information
in any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu. 35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom
of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or
both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for conviction. 38 Petitioners argue that inferring "presumed malice" from
the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not. 42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact,
as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. 45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to
the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression. 48Indeed,
the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special
duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and
as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that
the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times
sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea
of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace
use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a
year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or
to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is
just reposting or republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends
of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it
interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing
by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical
world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by
means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern
for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises
special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect
on those who express themselves through cyberspace posts, comments, and other messages. 64 Hence, Section 5 of
the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we must view these statements of the
Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar
as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex
web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography
and facilitates the completion of transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature
in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a
plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or
not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way,
certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal
prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet
users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section
4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted. 72 If Section 5 that
punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username
and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section
4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission
of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant provisions
of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor
General points out, there exists a substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the
determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims
that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section
4(c)(4) merely establishes the computer system as another means of publication. 75 Charging the offender under both
laws would be a blatant violation of the proscription against double jeopardy. 76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding
One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with
the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have been
connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying
service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention
on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or
record "traffic data, in real time, associated with specified communications." 83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right, 84 transmitting viruses,85 lasciviously exhibiting sexual
organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital
age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that
provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under
pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal
matters. It is the latter right—the right to informational privacy—that those who oppose government collection or
recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice call,
video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits
together with other packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient, only their coded
internet protocol (IP) addresses. The packets travel from one computer system to another where their contents are
pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are refitted
together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service
provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also
reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same
basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for
a successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making
the expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court
cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable
commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to
the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their
sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing
expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to
privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that
the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis
is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals
and place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of
a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written
with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken
the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are
to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely
keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law
now requires service providers to keep traffic data and subscriber information relating to communication services for
at least six months from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an
order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively
a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory
powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and
 (e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of
the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the
data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829, 102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not
struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned
agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avv phi 1

the delegate’s authority and prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber environment and organization and user’s assets. 104 This
definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard. 106 Hence, Sections 24 and 26(a)
are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access
to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;
 e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes
prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

See Concurring & Dissenting Opinion

MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring & Dissenting Opinion (no part due to prior case)
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.*
Associate Justice Associate Justice

See Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

I join Justice Brion in all his positions

JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

No Part
BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*No part.
1
The US Supreme Court first suggested the standard by implication in footnote 4 of United States v.
Carolene Products (304 U.S. 144, 152 n.4 (1938). See Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts. Winkler, A. UCLA School of Law, Public Law & Legal
Theory Research Paper Series, Research Paper No. 06-14, http://ssrn.com/abstract=897360 (last accessed
April 10, 2013).

2
Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA 254, 278.

3
White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 437.

4
All 50 states of the United States have passed individual state laws criminalizing hacking or unauthorized
access, http://www.ncsl.org/issues-research/telecom/computer-hacking-and-unauthorized-access-laws.aspx
(last accessed May 16, 2013). The United States Congress has also passed the Computer Fraud and Abuse
Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest Convention on Cybercrime
considers hacking as an offense against the confidentiality, integrity and availability of computer data and
systems and 29 countries have already ratified or acceded,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&CL=ENG (last accessed
May 16, 2013).

5
Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10, 2013).

6
Id. at 774.

7
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554,
178581, 178890, 179157 & 179461, October 5, 2010, 632 SCRA 146, 185.

8
The intentional destruction of property is popularly referred to as vandalism. It includes behavior such as
breaking windows, slashing tires, spray painting a wall with graffiti, and destroying a computer system
through the use of a computer virus, http://legal-dictionary.thefreedictionary.com/Vandalism (last accessed
August 12, 2013).

9
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 7, at 186; Estrada
v. Sandiganbayan, 421 Phil. 290, 354 (2001).

10
Id.

11
Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v. Sandiganbayan.

12
1987 CONSTITUTION, Article III, Section 1.

13
Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA 189, 204-205.

14
130 Phil. 415 (1968)

15
535 Phil. 687, 714-715 (2006).

16
Supra note 12, Article II, Section 2.

17
Supra note 12, Article III, Section 3.

In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, supra note
18

15.

19
Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines personal information as "any
information whether recorded in a material form or not, from which the identity of an individual is apparent or
can be reasonably and directly ascertained by the entity holding the information, or when put together with
other information would directly and certainly identify an individual."

20
People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.

21
Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).

22
Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last accessed May 30, 2013).

23
Bicameral Conference Committee, pp. 5-6.

24
Id.

25
Office of the Solicitor General, COMMENT, p. 71.

26
REPUBLIC ACT 9208, Section 4(e).

27
Id., Section 3(c).

28
G.R. No. 191080, November 21, 2011, 660 SCRA 475.

29
REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential Decree 969.

30
Pita v. Court of Appeals, 258-A Phil. 134 (1989).

REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY,
31

PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES.

Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA 245, citing People v. Ventura, 114
32

Phil. 162, 167 (1962).

33
Supra note 31, Section 4(b).

34
G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp. 34-37.

White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist. LEXIS 19152 (W.D. Tex. Mar. 22,
35

2004).

36
Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health Care Association of
the Philippines v. Duque III, 561 Phil. 387, 449 (2007).

37
Supra note 29, Article 362.

38
Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

39
573 Phil. 278 (2008).

40
Vasquez v. Court of Appeals, supra note 38.

41
L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed. 2007).

Vasquez v. Court of Appeals, supra note 38, citing New York Times v. Sullivan, 376 U.S. 254, 11 L.Ed.2d
42

686 (1964).
43
Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004).

44
Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos, 37 Phil. 731 (1918).

45
Supra note 41, at 403.

46
Supra note 29, Article 354.

47
Communication 1815/2008.

48
General Comment 34, ICCPR, par. 47.

49
ICCPR, Article 19(2) and (3).

50
Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).

51
Office of the Solicitor General, MEMORANDUM, pp. 69-70.

52
REPUBLIC ACT 3701, Section 1.

53
REPUBLIC ACT 4712, Section 5.

54
LABOR CODE, Article 264.

55
G.R. No. 203440 (Sta. Maria), PETITION, p. 2.

56
http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

57
http://en.wikipedia.org/wiki/Social_networking_service (last accessed January 14, 2013).

58
http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

59
http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).

60
G. R . No. 203378 (Adonis) and G.R. No. 203391 (Palatino), CONSOLIDATED MEMORANDUM, p. 34.

61
521 U.S. 844 (1997).

62
Griswold v. Connecticut, 381 U.S. 479 (1965).

63
G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.

64
Supra note 55, at 33.

65
576 Phil. 357 (2008).

66
Id.

67
Id.

A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement "Google, Inc.: Procurer,
68

Possessor, Distributor, Aider and Abettor in Child Pornography,"

 http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed May 25, 2013).

69
Id., citing 47 U.S.C. 230.

70
Bianca Bosker, Facebook To Share Users' Home Addresses, Phone Numbers With External Sites,
http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-phone-numbers_n_829459.html (last
accessed July 18, 2013).

G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes, The Revised Penal Code:
71

Book 1, 118 (17th ed. 2008).

72
Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking, Email Accounts, http://columbia-
sc.patch.com/groups/police-and-fire/p/man-pleaded-guilty-to-hacking-usc-website-email-accounts (last
accessed July 18, 2013); Peter Ryan, Hackers target Bureau of Statistics data,
http://www.abc.net.au/news/2013-04-26/abs-targeted-by-hackers/4652758 (last accessed July 18, 2013).

73
Supra note 34, at 32.

74
Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).

75
Office of the Solicitor General, MEMORANDUM, p. 49.

76
Section 21, Article III, 1987 CONSTITUTION: "No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."

77
Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).

People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476, citing People v. Millora, 252
78

Phil. 105 (1989).

79
Supra note 14, at 436-437.

80
Ople v. Torres, 354 Phil. 948, 974-975 (1998).

81
In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298, 322
(2005); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

82
SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications
industries such as content production, telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development. The State also recognizes the
importance of providing an environment conducive to the development, acceleration, and rational application
and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible
access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of
computer, computer and communications systems, networks, and databases, and the confidentiality,
integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal
access by making punishable under the law such conduct or conducts. In this light, the State shall adopt
sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation,
and prosecution at both the domestic and international levels, and by providing arrangements for fast and
reliable international cooperation.

83
Convention on Cybercrime, Art. 20, opened for signature November 23, 2001, ETS 185.

84
Cybercrime Law, Section 4(a)(1),.

85
Id., Section 4(a)(3)
86
Id., Section 4(c)(1)

87
Id., Section 4(c)(2)

88
Supra note 14.

89
Id. at 433-437.

90
429 U.S. 589 (1977).

91
Id. at 599.

92
Supra note 13, at 206.

Jonathan Strickland, How IP Convergence Works, http://computer.howstuffworks.com/ip-

93

convergence2.htm (last accessed May 10, 2013).

94
442 U.S. 735 (1979).

95
Supra note 80, at 983.

96
Supra note 14, at 437, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law Rev. 219, 229
(1965).

97
G.R. No. 203391 (Palatino v. Ochoa).

Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA
98

78, 143; ADMINISTRATIVE CODE of 1987, Book I, Chapter 9, Section 37, and Book VII, Chapter 1, Section
13.

99
Computer data is defined by R.A. 10175 as follows:

"SEC. 3. Definition of Terms. x x x

xxxx

(e) Computer data refers to any representation of facts, information, or concepts in a form suitable
for processing in a computer system including a program suitable to cause a computer system to
perform a function and includes electronic documents and/or electronic data messages whether
stored in local computer systems or online."

100
Pita v. Court of Appeals, supra note 30, at 151.

101
Chavez v. Gonzales, 569 Phil. 155 (2008).

Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL

102

OFFENDERS.

103
Gerochi v. Department of Energy, 554 Phil. 563 (2007).

104
REPUBLIC ACT 10175, Section 3(k).

105
Supra note 94.
 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v. Provincial Board of Mindoro, 39
106

Phil. 660 (1919).

FIRST DIVISION

MANUEL BAVIERA, G.R. No. 169098

Petitioner,

Present:

- versus - PANGANIBAN, C.J., Chairperson,

YNARES-SANTIAGO,

AUSTRIA-MARTINEZ,

ROLANDO B. ZOLETA, in his CALLEJO, SR., and

capacity as Graft Investigation CHICO-NAZARIO, JJ.

and Prosecution Officer II; MARY

SUSAN S. GUILLERMO, in her

capacity as Director, Preliminary Promulgated:

Investigation and Administrative

Adjudication Bureau-B; PELAGIO October 12, 2006

S. APOSTOL, in his capacity as

Assistant Ombudsman, PAMO;

ORLANDO C. CASIMIRO, in his

capacity as Assistant Ombudsman

for the Military and Other Law

Enforcement Offices; and MA.

MERCEDITAS N. GUTIERREZ

(Then) Undersecretary, Department

of Justice,

Respondents.

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

DECISION

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Resolution[1] of

the Court of Appeals (CA) in CA-G.R. SP No. 87472 dismissing the petition
for certiorarifiled by Manuel V. Baviera, assailing the resolution of the Office of
the Ombudsman in OMB-C-C-03-0612-J, and the resolution of the CA denying the
motion for reconsideration.

The Antecedents

Manuel V. Baviera filed several complaints[2] against officers or directors of

the Standard Chartered Bank (SCB), Philippine Branch, including Sridhar Raman,
an Indian national who was the Chief Finance Officer of the bank, as respondents
with the Securities and Exchange Commission (SEC), Bangko Sentral ng
Pilipinas (BSP), Anti-Money Laundering Council (AMLC), National Labor Relations
Commission (NLRC), and the Department of Justice (DOJ), to wit:
 DOCKET NUMBER

CASE FILED LAW AND/OR RULES VIOLATED

BANGKO SENTRAL Administrative Received by Violations of General Banking Law

NG PILIPINAS Supervision and of 2000. The New Central Bank
Examination Sector, Act, various BSP-Circular letters
SED and BSP Manual Regulations

Dept. II

SECURITIES AND CED Case No. 03-2763 Securities Regulation Code,

EXCHANGE Corporation Code of
Administrative
COMMISSION the Philippines, and/or Various
Rules and Regulations of the SEC

ANTI-MONEY Money Laundering Received by Office of Violation of Anti-Money

LAUNDERING the Executive Director Laundering Act as Amended
COUNCIL

NATIONAL LABOR Illegal Dismissal NLRC-NCR Case No. Labor Code of the Philippines
RELATIONS 006-06-07434-2003
COMMISSION

P.D. 1689 in connection with

Article 315 of the Revised Penal
DEPARTMENT OF Syndicated Estafa I.S. No. 2003-1059 Code
JUSTICE

BUREAU OF Tax Fraud and Received by National Internal Revenue Code

INTERNAL Non-declaration of Commissioners Office
REVENUE Income
 Baviera claimed that he was a former employee of the bank, and at the
same time, an investor who was victimized by the officers or directors of SCB, all
of whom conspired with one another in defrauding him as well as the investing
public by soliciting funds in unregistered and unauthorized foreign stocks and
securities.

On September 18, 2003, Baviera, through counsel, requested the Secretary

of Justice for the issuance of a Hold Departure Order (HDO) against some of the
officers and directors of SCB, including Raman.[3]

On September 26, 2003, then Secretary of Justice Simeon Datumanong issued an

Order[4] granting the request of Baviera. He issued HDO No. 0193. A copy of the
order was served on the Bureau of Immigration (BI) for implementation. On the
same day, the BI issued an Order[5] implementing that of the Secretary of Justice.

Meanwhile, Secretary Datumanong went to Vienna, Austria, to attend a

conference. Undersecretary Merceditas Navarro-Gutierrez was designated as
Acting Secretary of the DOJ.[6]

On September 28, 2003, a Sunday, Raman arrived at the Ninoy Aquino

International Airport (NAIA) for his trip to Singapore but was apprehended by BI
agents and NAIA officials based on the HDO of the Secretary of Justice. However,
the next day, September 29, 2003, Raman was able to leave the country
via Singapore Airlines-SQ-71 at an 8:15 a.m. flight. He was to attend a conference
in Singapore and to return to the Philippines on October 2, 2003.
It turned out that Acting Secretary of Justice Merceditas N. Gutierrez had verbally
allowed the departure of Raman. On the same day, Raman, through counsel,
wrote Secretary Datumanong for the lifting of the HDO insofar as his client was
concerned.[7] Acting Secretary Gutierrez issued an Order[8] allowing Raman to
leave the country. In said Order, she stated that the Chief State Prosecutor had
indicated that he interposed no objection to the travel of Raman to Singapore.

On October 3, 2003, Baviera filed a Complaint-Affidavit with the Office of the

Ombudsman charging Undersecretary Ma. Merceditas N. Gutierrez for violation
of Section 3(a), (e), and (j) of Republic Act (RA) No. 3019, as amended.

The complainant alleged, inter alia, in his complaint that upon verbal instruction
of respondent Gutierrez to the BI agents and NAIA officials, Raman was allowed to
leave the country despite the HDO issued by Secretary Simeon Datumanong. He
averred that the actuations of respondent Gutierrez were illegal, highly irregular
and questionable for the following reasons:

a) DOJ Sec. Datumanong issued a Hold Departure Order (HDO) against three foreign
nationals, including Raman, on September 26, 2003;

b) Also on September 26, 2003, BID Commissioner Danilo Cueto issued the necessary
order and notification to all airports, seaports and exit points for the
implementation of the aforesaid HDO;

c) Raman went to the NAIA for departure out of the Philippines on Sunday, September
28, 2003;

d) Raman was stopped by Immigration officials from leaving the country on Sunday on
the strength of the HDO;
e) Usec. Gutierrez admitted having interceded on behalf of the Indian national, thus
allowing him to leave the country for Singapore at about 8:15 a.m. of Monday,
September 29, 2003;

f) Obviously, the appeal of Raman to be allowed to leave the country was made
verbally either by him or thru counsel;

g) There is no written application for temporary stay of the HDO in respect to Ramans
departure;

h) There is likewise no written order by Usec. Gutierrez allowing Raman to leave;

i) Usec. Gutierrez claims that she cleared the matter with DOJ Sec. Datumanong who
was in Vienna, Austria;

j) If she did so, then she could have made the consultation only either by telephone or
e-mail

i) If she consulted Sec. Datumanong by telephone, then she must have

gone out of her way to go to the Department of Justice on a Sunday to
use the DOJ telephone;

ii) If she did not go to the DOJ on a Sunday, then she must have used her
own telephone and shouldered the expense to call Sec. Datumanong on
behalf of her beloved Indian national or the latters counsel;

iii) If she cleared the matter with Sec. Datumanong by e-mail, then the
burden is on her to prove that she did so by that means;
 k) It is obvious that Usec. Gutierrez went out of her way to accommodate an Indian
national or the latters lawyer on a Sunday (verbally, secretly, and when nobody was
looking) to allow the Indian national to leave the country despite an existing HDO-
thus giving the Indian national unwarranted, undue preference, benefit and
advantage, to the damage and prejudice of complainant.

l) There are indications that Usec. Gutierrez will also allow the other Indian national
(Ajay Kanwal) to leave for permanent posting outside the Philippines despite the
existing HDO. But thats another story. Surely, another criminal charge.[9]

Baviera further alleged that the verbal special permission granted to Raman
by respondent Gutierrez was illegal as there is no specific law or DOJ rule allowing
the grant of special permission or exception to an HDO. Worse, the complainant
alleged, respondent Gutierrez made her verbal order on a weekend, on the basis
of allegedly strong representations made by Raman. Respondent Gutierrez thus
displayed arrogance of power and insolence of office, thereby extending
unwarranted preference, benefits and advantage to Raman.

In her Counter-Affidavit, respondent Gutierrez denied the allegations

against her. She averred that she did not violate any law or rule, in allowing
Raman to leave the country. She merely upheld his rights to travel as guaranteed
under the Constitution. Moreover, the DOJ may allow persons covered by HDOs
to travel abroad, for a specific purpose and for a specific period of time. She
further averred that:

11. I allowed Mr. Raman to leave the Philippines on September 29, 2003 in my capacity
as Acting Secretary, not as Undersecretary as alleged in the Complaint-Affidavit. An
Acting Secretary has the power and authority to perform all official acts that a
Department Secretary, if personally present, could lawfully do and to exercise sound
discretion under certain circumstances. In the case of an Acting Secretary of Justice, the
authority extends to allowing the travel of a person subject of an HDO, like Mr. Raman,
whose attendance in an official business abroad was urgent and necessary. Although I
could have lifted the HDO on the ground that there was no ground for its continued
enforcement, I did not do so in deference to the Secretary who issued it but, instead,
allowed Mr. Raman to travel for a specific purpose and period. Secretary Datumanong
eventually lifted the HDO and, therefore, ratified my act.

12. An individual subject of an HDO issued by the Department may be allowed to travel
abroad. Even the court that issued an HDO may authorize the subject person to travel
for a specific purpose and for a certain period. If the person already charged in court
may be authorized to travel, there is more reason to allow the person, like Mr. Raman,
who was still subject of a preliminary investigation by a prosecutor, to travel abroad. He
continues to enjoy the constitutional presumption of innocence. Thus, his rights under
the law should not be unreasonably curtailed.

13. I allowed Mr. Raman to travel to Singapore because he, as Chief Finance Officer of
Standard Chartered Bank (an international bank with good reputation), was invited and
required to attend the Wholesale Bank International Accounting Standards Conference
from September 29 to October 2, 2003. The travel was not meant to have him
transferred to another branch of the bank abroad and frustrate the results of the
investigations, which were the cited reasons for the HDO application. Indeed, he
returned to the Philippines on October 2, 2003.

14. Allowing Mr. Raman to travel abroad under the circumstances would send a positive
message to foreigners engaged in banking and business activities in the Philippines that
the Government consistently upholds the rule of law and respects human rights,
thereby boosting investors confidence in the Philippines.

15. In allowing Mr. Raman to travel abroad, I relied on my oath as a lawyer and as a
government official to support and defend the Constitution. I also relied on the first
Whereas Clause of the above-mentioned Department Circular No. 17 dated March 19,
1998, which cites Section 6, Article III of the present Constitution that, in part, reads: xxx

Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law. Relevantly, in Kant Kwong v.
Presidential Commission on Good Government, the Supreme Court En Banc held:
 xxx. The right to travel and to freedom of movement is a fundamental
right guaranteed by the 1987 Constitution and the Universal
Declaration of Human Rights to which the Philippines is a
signatory. The right extends to all residents regardless of
nationality. And everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law. (Emphasis ours)[10]

Respondent Gutierrez requested the Office of the Ombudsman to dismiss

the complaint against her, thus:

(a) There is no basis for the complaint for violation of Section 3(a) of RA No. 3019, as
amended, because I never persuaded, induced nor influence any public officer to violate
the rules and regulations duly promulgated by competent authority. When I allowed Mr.
Raman to travel, I relied on Department Circular No. 17 (1998), particularly the first
Whereas Clause thereof, recognizing every persons right to travel, absent the grounds
for impairment of the right under the Constitution.

(b) The complaint for violation of Section 3(e) of RA No. 3019 is baseless. The
complainant has not sustained any injury by reason of the travel order, as Mr. Raman
immediately returned to the Philippines after his official business. I authorized Mr.
Raman to travel in recognition of his right thereto under the Constitution and existing
international human rights law instruments. In so doing, I did not give him unwarranted
benefit, advantage or preference in the discharge of my official functions through
manifest partiality, evident bad faith or gross inexcusable negligence.Indeed, had I
denied him the right, I would be held liable under such provision, in addition to other
liabilities under the Civil Code.

(c) Neither is there any basis for the complaint for violation of Section 3(j) of RA No.
3019, as amended. I permitted Mr. Raman to leave the country on September 29,
2003 because he had an important official business abroad and he was legally entitled
to the right to travel and the grounds mentioned in the Constitution for the impairment
of the right did not exist.
 17. The propriety of the travel authority has become moot and academic with the
return of Mr. Raman to the Philippines on October 2, 2003 and the issuance of the
Order dated October 17, 2003 by Justice Secretary Datumanong, lifting the HDO on the
ground that there is no ground for the continued enforcement of the HDO.

18. I am executing this Counter-Affidavit to attest to the truth of the foregoing

facts and to belie the incriminating allegations against me in the Complaint-Affidavit.[11]

In his Reply-Affidavit, Baviera alleged that:

2. Although it is admitted that the Constitution guarantees the right to travel of any
individual and the DOJ has wide and discretionary powers in allowing individuals subject
of an HDO to travel on certain occasions, still this does not in any way help in her
defense. The main issue against her is NOT an individuals constitutional right to travel
nor the wide discretionary powers of the DOJ to grant special permits to travel to
individuals subject of HDO BUT her abuse of such discretionary powers.

3. When she allowed the Indian National to leave the country on a mere verbal plea by
Raman or his well-connected lawyer on a Sunday and without a proper Motion for
Reconsideration yet being filed by Raman or his lawyer, she undoubtedly gave the latter
unwarranted benefit, advantage or preference in the discharge of her official duty as
Acting Secretary. The undisputable fact, which respondent herself admitted proudly,
was both plea and the Order were done verbally.

4. It was only much later that her Order dated 29 September 2003 was belatedly
released long after Raman had left the country on an early morning flight
to Singapore. It is unmistakable then that her decision to allow Raman to travel was
verbally transacted with Ramans well-connected lawyer on a Sunday, 28 September
2003 when Raman was supposed to leave for Singapore but was denied by Immigration
and NAIA officials due to the standing HDO against him. In short, respondent went out
of her way to accommodate a foreign national by hurriedly allowing the latter to leave
without going through proper procedures. Paragraph V of DOJ Circular No. 17 provides
the following procedure in appealing or lifting an HDO, to wit:

A copy of the HDO implemented by the Commissioner shall be sent to

the person subject of the order, if his postal address is known, so that
he may, if he so desires, file a MOTION FOR RECONSIDERATION with the
Secretary. (Underscoring supplied).

5. The Rules cited by respondent herself provide proper procedures and

avenues for the lifting, temporary or otherwise, of an HDO. Obviously, by swiftly
allowing Raman to leave the country on a mere verbal appeal by his well-connected
counsel, respondent disregarded proper procedures and betrayed her intentions of
giving special treatment to the Indian national.

6. Respondent tried to justify her indiscretion by attaching as Annex 4 of her

Counter-Affidavit a letter from Ramans lawyer dated 29 September 2003 requesting
that Raman be allowed to travel. Conspicuously, the letter was stamped received by
respondents office and allegedly signed and received by her staff on Monday, 29
September 2003 at 6:15 a.m. Obviously, respondent is trying to cover up her actions,
albeit to no avail. Who could possibly believe that respondents office would be open
at 6:15 in the morning of a Monday when the normal office hours is at 8 a.m.? Worse,
assuming arguendo that the letter-request was received at 6 a.m., how come Raman
was able to board Singapore Airlines Flight No. SQ-71 which left at about 8:15 a.m. or
barely two (2) hours upon the receipt of the request?

7. Res Ipsa Loquitor. It is either respondent Gutierrez, Secretary Datumanong or

the Chief State Prosecutor (whom she claimed to have consulted before giving the
order) reports to their offices at 6 a.m. and buckle down to work immediately or that
respondent Gutierrezs allegations in her defense are all concocted lies. For evidence to
be believed, it must not only proceed from the mouth of a credible witness but must be
credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstances. (Cosep vs. People, 290 SCRA 378).
 8. The belated documentation of respondents action was further proven by records
showing that the Motion for Reconsideration and the Supplement thereof were dated 5
October and 7 October 2003, respectively, or six (6) days after Raman was allowed by
respondent to leave the country.

9. Even absent any evidence of belated documentation, still, respondent cannot deny
the fact that she admitted in a hurriedly-called press conference later on 29 September
2003 before the DOJ press that she was the one who verbally gave instructions to
immigration and NAIA officials to allow Raman to leave the country. In her own words,
she proudly admitted that she based her order on strong representations made by
Ramans counsel. By such admission, respondent unwittingly admitted having violated
the provisions of the Anti-Graft and Corrupt Practices Act.

10. By persuading or influencing Immigration Officials to allow Raman to leave the

country without any motion for reconsideration or any written motion to that effect as
required by DOJ Circular No. 17, respondent committed Section 3 (a) of RA 3019. And
further by doing such act, respondent acted with manifest partiality, evident bad faith or
gross inexcusable negligence in giving Raman unwarranted benefit, advantage or
preference in the discharge of her official function as Acting Secretary of the DOJ in
violation of Section 3 (e) of RA 3019.

11. Even her claims that she has not benefited from her actions cannot be made as a
defense because the provisions of the Anti-Graft law charged against her do not require
as a pre-condition that the public officer receive (sic) any gift, present, or benefit.

12. Her decision to grant special permission to Raman (which she proudly admits) is
irregular and illegal because there is no specific law or rules of the DOJ granting special
permission or exception to the HDO.[12]

On October 5, 2003, the officers and officials of SCB, including Raman,

through counsel, filed a motion for the reconsideration of HDO No. 0193 and filed
a Supplemental to the said motion dated October 5, 2003 praying that the HDO
be lifted. On October 17, 2003, Justice Secretary Simeon Datumanong issued an
Order lifting the HDO and ordered the BI to delete the names of the officials of
the bank, including Raman, from its Watchlist.[13]

On June 22, 2004, Graft Investigation and Prosecutor Officer Rolando Zoleta
signed a Resolution recommending that the criminal complaint against
respondent Gutierrez for violation of RA No. 3019 be dismissed for insufficiency of
evidence. Zoletas findings are as follows:

After a careful evaluation of the facts and pieces of evidence on record, this
Office resolves that:

a) With respect to the charge of violation of Section 3(a) of Republic Act

3019, there is no evidence,
documentary or testimonial, to show that respondent GUTIERREZ has
received material remuneration as a consideration for her alleged use of
influence on her decision to allow Mr. RAMAN to travel abroad.

It is worthy to note the following Senate deliberations on the aforementioned

provision of Republic Act 3019, to wit:

Senate deliberations (July 13, 1960)

Senator MARCOS. I see. Now, I come to the second

most important point. Is it true as charged that this bill does not
punish influence peddling which does not result in
remuneration, or rather in which remuneration cannot be
proved? I refer to Section 3, subsection (a), lines 10 to 13 on
page 2 of the bill. It is to be noted that this section reads, as the
first corrupt practice or act of a public official:

xxxx xxxxx xxxxx

 Now, suppose the influence that is extended to
influence another public official is for the performance of an act
that is not a crime like the issuance of license by the Monetary
Board (p. 226)

Senator TOLENTINO. I see. (p. 226)

Senator MARCOS. It is claimed and charged by

observers that this bill is deliberately watered down in order to
save influence peddlers who peddle their influence in the
Monetary Board, in the Reparations Commission, in
government banks and the like. I would like the author to
explain the situation. (p. 226)

Senator TELENTINO (SIC). In the first place, I cannot

conceive of an influence peddler who acts gratis. The very term
influence peddler implies that there is something being sold,
that is, the influence. So that when we say influence peddler
who does not receive any advantage, that is inconsistency in
terms because that would apply to any congressman, for
instance, and precisely it was made clear during the debates
that if a congressman or senator tries to use influence in the act
of another by, let us say, trying to obtain a license for his
constituent, if he does not get paid for that he does not use any
influence. (p. 226)

xxxxx xxxxx xxxxx

Senator MARCOS. So, it is admitted by the author that

the lending or utilization of influence x x x provided that there is
no proof that he has been given material remuneration is not
punished by this Act. (pp. 226-227)
 Senator TOLENTINO. No, the mere fact of having used
ones influence so long as it is not to induce the commission of a
criminal act would not be punished if there is no
consideration. It would not be graft. (p. 227)

Senator MARCOS. There is no proof of consideration

because that is one thing difficult to prove. (p. 227)

Senator TOLENTINO. If you say there is no proof of

consideration, as far as the bill is concerned, there is no
offense. So, so long as there is no proof of the consideration in
the use of the influence, the offense is not committed under the
bill because that would not be graft.

Senator MARCOS. But we all admit that it is an immoral

act for a public official like the President, the Vice-President,
members of the Senate to unduly influence the members of the
Monetary Board even without remuneration and say, You
better approve this license, this application of a million dollars
of my good friend and compadre Mr. Cheng Cheng Po or
whatever he may be. But he does not receive any reward,
payment or remuneration for it. Under the bill, he can get away
with this act.

Senator TOLENTINO. If Your Honor considers it in that

light, I dont think that would constitute graft and I dont think
that would be included.

Senator MARCOS. But it is immoral.

Senator TOLENTINO. It may be so, but it depends on the

circumstances. But our idea, the main idea of the bill is to
punish graft and corrupt practices. Not every act maybe, that is
improper would fall under the provision of the bill. (p. 227)
 Henceforth, following the logic and intention of the sponsor (Senator
TOLENTINO) of the aforecited provision, respondent GUTIERREZ did not commit a
violation of the same as there is no proof that she received consideration in exchange
for her decision to allow Mr. Raman to travel abroad.

b) As to the charge of violation of Section 3(e) of Republic Act 3019, no actual or

real damage was suffered by any party, including the government as Mr.
Raman immediately returned to the Philippines, the truth of which was not
rebutted by the herein complainant in his Reply-Affidavit. Thus, the herein
complainant also did not suffer undue injury as an element required by the
law. By the same token, the essential ingredient of manifest partiality,
evident bad faith or gross inexcusable negligence required for the
commission of such offense has not been proven in the instant case. The
respondent has satisfactorily explicated that as Acting Secretary of Justice,
she has the power and authority to perform such act. In fact, she could have
even lifted the Hold Departure Order since there is no ground for its
continued enforcement but did not do so in deference to Secretary
DATUMANONG who consequently lifted such order. As correctly pointed out
by the respondent, it was as if the Secretary ratified her act of allowing Mr.
RAMAN to travel abroad despite the Hold Departure Order against the latter
and there is no question that she can do or perform such act being the Acting
Secretary at that time.

At any rate, it can not be denied that even the court (or the Sandiganbayan in
the case of IMELDA MARCOS) that requested or issued a Hold Departure Order on a
person already charged in court allows under certain conditions the accused to travel
for a specific purpose and for a certain period. There is no reason why Mr. RAMAN, who
is just a subject of a preliminary investigation by a prosecutor, should not be granted the
same benefit as he continues to enjoy not only the constitutional presumption of
innocence but the constitutional right to travel or liberty of abode; and,

c) With regard to the charge of Violation of Section 3(j) of Republic Act 3019, as
above discussed, the respondent, as Acting Secretary of Justice, is authorized or
empowered not only to allow the travel abroad of Mr. RAMAN under specific conditions
but also to order the lifting of such Hold Departure Order. In the same way, respondent
GUTIERREZ has not granted any privilege or benefit in favor of any person (or Mr.
RAMAN for that matter) not qualified or not legally entitled to such privilege or benefit
when she allowed the former to travel abroad under specific condition and for certain
 period of time as Mr. RAMAN still enjoys the constitutionally guaranteed right to travel
or liberty of abode even if a preliminary investigation involving him is still pending at the
office of the concerned DOJ Prosecutor.[14]

The Assistant Ombudsman recommended that the resolution be

approved. The Deputy Ombudsman for the Military, Orlando C. Casimiro, who
was authorized by the Ombudsman to act on the recommendation, approved the
same.[15]

Baviera received a copy of the Resolution on July 26, 2004 and filed a
motion for reconsideration of the resolution on August 2, 2004 (July 31, 2004 was
a Saturday).[16]Acting on the motion, Zoleta issued a Resolution on August 10,
2003, recommending its denial for lack of merit. Deputy Ombudsman Orlando
Casimiro again approved the recommendation.[17] Baviera received a copy of the
resolution on September 14, 2004.

On November 16, 2004, Baviera filed a petition for certiorari under Rule 65
of the Rules of Civil Procedure in the CA, assailing the resolutions of the
Ombudsman. He relied on the following arguments:

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT
GUTIERREZ CANNOT BE HELD LIABLE UNDER SECTION 3(a) OF RA 3019 ALLEGEDLY
BECAUSE THERE WAS NO EVIDENCE, DOCUMENTARY OR TESTIMONIAL, TO SHOW THAT
SHE HAS RECEIVED MATERIAL REMUNERATION AS A CONSIDERATION FOR HER USE OF
INFLUENCE ON HER DECISION TO ALLOW MR. RAMAN TO TRAVEL ABROAD.
 ii

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT
GUTIERREZ CANNOT BE HELD LIABLE UNDER SECTIONS 3(e) AND 3(j) OF RA 3019
ALLEGEDLY BECAUSE THERE WAS NO ACTUAL OR REAL DAMAGE SUFFERED BY ANY
PARTY INCLUDING THE GOVERNMENT AND THAT RESPONDENT DID NOT GRANT ANY
PRIVILEGE OR BENEFIT IN FAVOR OF ANY PERSON.

iii

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE INSTANT
CRIMINAL COMPLAINT FOR VIOLATION OF THE ANTI-GRAFT AND CORRUPT PRACTICES
ACT (RA 3019) ALLEGEDLY ON THE GROUND OF INSUFFICIENCY OF EVIDENCE.[18]

However, on January 7, 2005, the CA issued a Resolution dismissing the

petition on the ground that the proper remedy was to file a petition
for certiorari with the Supreme Court under Rule 65 of the Rules of Court,
conformably with the ruling of this Court in Enemecio v. Office of the
Ombudsman.[19] Petitioner filed a motion for reconsideration, insisting that his
petition for certiorari in the CA under Rule 65 was in accordance with the ruling
in Fabian v. Desierto.[20] He insisted that the Office of the Ombudsman is a quasi-
judicial agency of the government, and under Batas Pambansa Bilang 129, the CA
has concurrent jurisdiction with the Supreme Court over a petition
for certiorari under Rule 65 of the Rules of Court. He asserted that the filing of his
petition for certiorari with the CA conformed to the established judicial policy of
hierarchy of courts as explained by this Court in People v. Cuaresma.[21]

On July 20, 2005, CA issued a Resolution denying the motion, holding that
the ruling in Fabian v. Desierto[22] is not applicable, as it applies only in appeals
from resolutions of the Ombudsman in administrative disciplinary cases. The
remedy of the aggrieved party from resolutions of the Ombudsman in criminal
cases is to file a petition for certiorari in this Court, and not in the CA. The
applicable rule is that enunciated in Enemecio v. Ombudsman,[23] later reiterated
in Perez v. Office of the Ombudsman[24] and Estrada v. Desierto.[25]

On August 18, 2005, Baviera filed with this Court the instant petition for
review on certiorari under Rule 45, assailing the CA resolutions on the following
grounds:

I.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO TAKE COGNIZANCE OF THE

INSTANT PETITION FOR CERTIORARI DESPITE THE CLEAR RULING OF THE SUPREME
COURT IN THE CASE OF FABIAN VS. DESIERTO, 295 SCRA 470 (SEPTEMBER 16, 1998).

II.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE INSTANT

PETITION ON THE MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO HAVE
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT RULED THAT RESPONDENT GUTIERREZ CAN NOT BE HELD LIABLE UNDER
SECTION 3(a) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS NO EVIDENCE,
DOCUMENTARY OR TESTIMONIAL, TO SHOW THAT SHE HAS RECEIVED MATERIAL
REMUNERATION AS A CONSIDERATION FOR HER USE OF INFLUENCE ON HER DECISION
TO ALLOW MR. RAMAN TO TRAVEL.

III.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE INSTANT

PETITION ON THE MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO HAVE
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT RULED THAT RESPONDENT GUTIERREZ CANNOT BE HELD LIABLE UNDER
SECTIONS 3(e) AND 3(j) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS NO ACTUAL OR
REAL DAMAGE SUFFERED BY ANY PARTY INCLUDING THE GOVERNMENT AND THAT
RESPONDENT DID NOT GRANT ANY PRIVILEGE OR BENEFIT IN FAVOR OF ANY PERSON.
 IV.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE

INSTANT PETITION ON THE MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO
HAVE GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT DISMISSED THE CRIMINAL COMPLAINT FOR VIOLATION OF THE
ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019) ALLEGEDLY ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE.[26]

Petitioner insists that his petition for certiorari in the CA assailing the
resolutions of the Ombudsman under Rule 65 of the Rules of Court is proper, in
the light of Fabian v. Desierto.[27] Under B.P. No. 129, the CA and the Supreme
Court have concurrent jurisdiction to issue writs of certiorari under from
resolutions of the Ombudsman in his investigation of criminal cases.

In her comment on the petition, respondent Gutierrez maintained that

instead of filing his petition in the CA, petitioner should have filed his petition
for certiorari under Rule 65 with this Court alleging grave abuse of discretion
amounting to lack of jurisdiction committed by the respondents Office of the
Ombudsman officials.

The other respondents, for their part, insist that the ruling of this Court
in Fabian applies only to resolutions of the Office of the Ombudsman in
administrative cases and not in criminal cases.

The threshold issues in this case are (1) whether the petition
for certiorari filed by petitioner in the CA was the proper remedy to assail the
resolution of the Office of the Ombudsman; and (2) whether respondent officials
committed grave abuse of discretion amounting to excess or lack of jurisdiction in
dismissing the criminal complaint of petitioner against respondent Acting
Secretary of Justice Gutierrez for lack of probable cause.
 On the first issue, respondent Gutierrez contends that the proper remedy
of petitioner to assail the Resolutions of the Ombudsman finding no probable
cause for violation of R.A. No. 3019, Section 3(a), (e) and (j) was to file a petition
for certiorari with this Court, not with the CA. In 1999, this Court ruled in Tirol, Jr.
v. Del Rosario[28] that the remedy of the aggrieved party from a resolution of the
Office of the Ombudsman finding the presence or absence of probable cause in
criminal cases was to file a petition for certiorari under Rule 65 in this Court. The
Court reiterated its ruling in Kuizon v. Desierto[29] and Tirol, Jr. v. Del
Rosario.[30] And on February 22, 2006, in Pontejos v. Office of the
Ombudsman,[31] the Court ruled that the remedy to challenge the Resolution of
the Ombudsman at the conclusion of a preliminary investigation was to file a
petition for certiorari in this Court under Rule 65.

In Estrada v. Desierto,[32] this Court rejected the contention of petitioner

therein that petition for certiorari under Rule 65 assailing the Order/Resolution of
the OMB in criminal cases should be filed in the CA, conformably with the
principle of hierarchy of courts. In that case, the Court explained:

Petitioner contends that certiorari under Rule 65 should first be filed with the
Court of Appeals as the doctrine of hierarchy of courts precludes the immediate
invocation of this Courts jurisdiction. Unfortunately for petitioner, he is flogging a dead
horse as this argument has already been shot down in Kuizon v. Ombudsman where we
decreed

In dismissing petitioners petition for lack of jurisdiction, the

Court of Appeals cited the case of Fabian vs. Desierto. The appellate
court correctly ruled that its jurisdiction extends only to decisions of the
Office of the Ombudsman in administrative cases. In the Fabian case,
we ruled that appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the Court of
Appeals under Rule 43 of the 1997 Rules of Civil Procedure. It bears
stressing that when we declared Section 27 of Republic Act No. 6770 as
unconstitutional, we categorically stated that said provision is involved
only whenever an appeal by certiorari under Rule 45 is taken from a
 decision in an administrative disciplinary action. It cannot be taken into
account where an original action for certiorari under Rule 65 is resorted
to as a remedy for judicial review, such as from an incident in a criminal
action. In fine, we hold that the present petition should have been filed
with this Court.

Kuizon and the subsequent case of Mendoza-Arce v. Office of the Ombudsman

(Visayas) drove home the point that the remedy of aggrieved parties from resolutions of
the Office of the Ombudsman finding probable cause in criminal cases or non-
administrative cases, when tainted with grave abuse of discretion, is to file an original
action for certiorari with this Court and not with the Court of Appeals. In cases when the
aggrieved party is questioning the Office of the Ombudsmans finding of lack of probable
cause, as in this case, there is likewise the remedy of certiorari under Rule 65 to be filed
with this Court and not with the Court of Appeals following our ruling in Perez v. Office
of the Ombudsman.

As this Court had already resolved said issue of jurisdiction in the above-cited cases, it is
a salutary and necessary judicial practice to apply the rulings therein to the subject
petition. Stare decisis et non quieta movere. Stand by the decisions and disturb not what
is settled. Undaunted, petitioner now harps on the validity of Section 14 of Rep. Act No.
6770 claiming it to be unconstitutional. The Court of Appeals, it must be recalled, relied
quite heavily on Section 14 of Rep. Act No. 6770 in relation to Fabian v. Desierto in
ruling that it had no jurisdiction to entertain the petition filed thereat.[33]

On the merits of the petition, the Court finds that petitioner failed to
establish that the respondent officials committed grave abuse of discretion
amounting to excess or lack of jurisdiction. Grave abuse of discretion implies a
capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction. The Ombudsmans exercise of power must have been done in an
arbitrary or despotic manner which must be so patent and gross as to amount to
an evasion of positive duty or a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law.[34]

The Court has reviewed the assailed resolutions of the Office of the
Ombudsman, and finds that petitioner likewise failed to establish probable cause
for violation of Sections 3(a), (e) and (j) of RA No. 3019. Indeed, in the absence of
a clear case of abuse of discretion, this Court will not interfere with the exercise
of the Ombudsmans discretion, who, based on his own findings and deliberate
consideration of the case, either dismisses a complaint or proceeds with it.[35]

WHEREFORE, premises considered, the instant petition is

hereby DENIED for lack of merit. The assailed Resolutions of the Court of Appeals
are hereby AFFIRMED.Costs against the petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

Chairperson
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above decision were reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN

Chief Justice

[1]
Penned by Associate Justice Rodrigo V. Cosico, with Associate Justices Danilo B. Pine and Japar B. Dimaampao,
concurring; rollo, pp. 45-47.
[2]
Rollo, p. 90.
[3]
Id. at 88-89.
[4]
Id. at 93.
[5]
Id. at 70.
[6]
Id. at 104.
[7]
Id. at 95-96.
[8]
Id. at 106-107.
[9]
Id. at 65-66.
[10]
Id. at 78-79.
[11]
Id. at 80.
[12]
Id. at 118-120.
[13]
Id. at 108-109.
[14]
Id. at 141-146.
[15]
Id. at 147.
[16]
Id. at 149-163.
[17]
Id. at 164-167.
[18]
Id. at 179.
[19]
G.R. No. 146731, January 13, 2004, 419 SCRA 82, 91.
[20]
G.R. No. 129742, September 16, 1998, 295 SCRA 470, 479.
[21]
G.R. No. 67787, April 18, 1989, 172 SCRA 415, 424.
[22]
Supra note 20.
[23]
Supra note 19.
[24]
G.R. No. 131445, May 27, 2004, 429 SCRA 357, 360.
[25]
G.R. No. 156160, December 9, 2004, 445 SCRA 655, 665.
[26]
Rollo, pp. 15-16.
[27]
Supra note 20.
[28]
376 Phil. 115, 121 (1999).
[29]
G.R. No. 140619-24, March 9, 2001, 354 SCRA 158, 172.
[30]
Supra note 27.
[31]
G.R. No. 158613-14, February 22, 2006, 483 SCRA 83, 94.
[32]
Supra note 24, at 665.
[33]
Id. at 664-666.
[34]
Pontejos v. Office of the Ombudsman, supra note 30, at 94, citing Soria v. Desierto, 450 SCRA 339, 345 (2005)
and Perez v. Office of the Ombudsman, supra note 24, at 361-362.
[35]
Estrada v. Desierto, supra note 25, at 673.

EN BANC

June 30, 1987

G.R. Nos. L-51065-72

ARTURO A. MEJORADA, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

CORTES, J.:

This petition for certiorari seeks to reverse the May 23, 1979 decision of the Sandiganbayan finding the accused
Arturo A. Mejorada in Criminal Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section 3(E) of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Eight informations were filed by the Provincial Fiscal against the petitioner and jointly tried before the Sandiganbayan.
The eight informations substantially allege the same set of circumstances constituting the offense charged, Criminal
Case No. 002 reads as follows:

That in (sic) or about and during the period comprised from October 1977 to February 1978, in the
municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being employed in the Office of the Highway District Engineer, Pasig, Metro Manila,
as Right-of-Way-Agent conspiring and confederating together with two (2) other John Does whose true
Identities and present whereabouts are still unknown, with evident bad faith, and for personal gain, did then
and there wilfully, unlawfully and feloniously, directly intervene, work for, and facilitate the approval of one
Isagani de Leon's claim for the payment in the removal and reconstruction of his house and a part of his land
expropriated by the government having been affected by the proposed Pasig-Sta Cruz-Calamba Road. 2nd
IBRD Project at Binangonan, Rizal, while the accused, Arturo A. Mejorada is in the discharge of his official
and/or administrative functions and after said claim was approved and the corresponding PNB Check No.
SN 5625748 was issued and encashed in the amount of P7,200.00 given only P1,000.00 to claimant
(Isagani de Leon), appropriating, applying and converting to themselves the amount of P6,200.00, thereby
causing damage and prejudice to Isagani de Leon and the government in the aforementioned amount of
P6,200.00.

Contrary to law.

Except for the date of the commission of the offense, the name of the aggrieved private party, the PNB Check
number, the amount involved and the number or John Does, the seven other informations are verbatim repetitions of
the above.

The facts are found by the respondent Sandiganbayan are as follows:

Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of Public
Works on March 16, 1947, and then as right-of-way agent in the Office of the Highway District Engineer, Pasig, Metro
Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent, his main duty was to negotiate with
property owners affected by highway constructions or improvements for the purpose of compensating them for the
damages incurred by said owners.

Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. Cruz-Calamba
Road. 2nd IBRD Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos, Napoleon Maybituin, Dominga
Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog,
Binangonan, Rizal.

Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that he
could work out their claims for payment of the values of their lots and/or improvements affected by the widening of
said highway. In the process, Mejorada required the claimants to sign blank copies of the "Sworn Statement on the
Correct and Fair Market Value of Real Properties" and "Agreement to Demolish, Remove and Reconstruct
improvements" pertinent to their claims. The claimants complied without bothering to find out what the documents
were all about as they were only interested in the payment of damages.

In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the claimants
were made to appear very much higher than the actual value claimed by them. Likewise, the said "Agreements to
Demolish" reflected the value of the improvements as per assessor" which on the average was only P2,000.00 lower
than the value declared by the owners in their sworn statements. The value as per assessor was, in turn, supported
by the Declarations of Real Property in the names of the claimants containing an assessed value exactly the same as
that stated in the Agreements to Demolish "as per assessor", except the claims of De la Cruz and Aran where there is
only a difference of P400.00 and P200.00, respectively. It turned out, however, that said Declarations of Property are
not really intended for the claimants as they were registered in the names of other persons, thus showing that they
were all falsified.

A few months after processing the claims, accused accompanied the claimants to the Office of the Highway District
Engineer at the provincial capitol of Pasig, Metro Manila, to receive payments and personally assisted the claimants
in signing the vouchers and encashing the checks by certifying as to their Identities and guaranteeing payment.

Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which was
parked nearby where they were divested of the amounts paid to them leaving only the sum of P1,000.00 to each,
except Isaac Carlos to whom P5,000.00 was left, explaining to them that there were many who would share in said
amounts. All the claimants were helpless to complaint because they were afraid of the accused and his armed
companion.

The claimants, through the assistance of counsel, filed their complaints with the Provincial Fiscal's Office of Pasig,
Metro Manila, narrating in their supporting sworn statements what they later testified to in court.

Five issues are raised in this petition to review the decision of the Sandiganbayan:

I. Whether or not the essential elements constituting the offense penalized by section 3(e) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act have been clearly and convincingly proven by the
prosecution;

II. Whether or not the Sandiganbayan is a court of competent jurisdiction duly constituted in accordance with Pres.
Dec. No. 1606;

III. Whether or not the penalty imposed upon the petitioner is excessive and contrary to the three-fold rule as provided
for by Article 70 of the Revised Penal Code;

IV. Whether or not there is a variance between the offense charged in the information and the offense proved;

V. Whether or not the conclusion drawn from the record of the Sandiganbayan in arriving at a verdict of conviction of
petitioner is correct is a question of law which this Honorable Court is authorized to pass upon.

I. Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally defective in
that it failed to allege the essential ingredients or elements constituting the offense penalized by Section 3(e) of Rep.
Act No. 3019.

The section under which the accused-petitioner was charged provides:

Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful.

xxx xxx xxx

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

Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e).

First, that the accused must be a public officer charged with the duty of granting licenses or permits or other
concessions. Petitioner contends that inasmuch as he is not charged with the duty of granting licenses, permits or
other concessions, then he is not the officer contemplated by Section 3 (e).

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers declared
unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared
unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph (e) is intended
to make clear the inclusion of officers and employees of officers or government corporations which, under the
ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read
it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.

The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations did not
fail to allege.

Second, that such public officer caused undue injury to any party, including the Government, or gave any private
party unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions.

Petitioner denies that there was injury or damage caused the Government because the payments were allegedly
made on the basis of a document solely made by the Highway District Engineer to which petitioner had no hand in
preparing. The fact, however, is that the government suffered undue injury as a result of the petitioner's having
inflated the true claims of complainants which became the basis of the report submitted by the Highway District
Engineer to the Regional Director of the Department of Highways and which eventually became the basis of payment.
His contention that he had no participation is belied by the fact that as a right-of-way-agent, his duty was precisely to
negotiate with property owners who are affected by highway constructions for the purpose of compensating them.

On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of
their claims and receiving payment in an amount even lower than the actual damage they incurred. They were
deprived of the just compensation to which they are entitled.

Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was done
through manifest, partiality, evident bad faith or gross inexcusable negligence.

Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and the
government must have been caused by the public officer in the discharge of his official, administrative or judicial
functions and inasmuch as when the damage was caused to the complainants, he was no longer discharging his
official administrative functions, therefore, he is not liable for the offense charged.

The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of his
position as a right-of-way-agent by making the claimants sign the aforementioned agreements to demolish and sworn
statements which contained falsified declarations of the value of the improvements and lots. There was evident bad
faith on the part of the petitioner when he inflated the values of the true claims and when he divested the claimants of
a large share of the amounts due them.

In view of the above holding. We also dispose of the fourth issue which relates to the allegation that petitioner cannot
be convicted for a violation of the Anti-Graft Law because the evidence adduced by the prosecution is not the
violation of Section 3 (e) but the crime of robbery. Contrary to the petitioner averment. We find no variance between
the offense charged in the information and the offense proved. The prosecution was able to establish through the
corroborating testimonies of the witnesses presented how through evident bad faith, petitioner caused damage to the
claimants and the Government. The manner by which the petitioner divested the private parties of the compensation
they received was part of' the scheme which commenced when the petitioner approached the claimants and informed
them that he could work out their claims for payment of the values of their lots and/or improvements affected by the
widening of the Pasig-Sta. Cruz-Calamba Road. The evidence presented by the prosecution clearly establish a
violation of Section 3(e).

II. The petitioner also assails the competency of the Sandiganbayan to hear and decide this case. He argues that
before the Sandiganbayan could legally function as a judicial body, at least two (2) divisions, or majority of the
justices shall have been duly constituted and appointed.

We previously ruled on this matter in the case of De Guzman v. People (G.R. No. 54288, December 15, 1982, 119
SCRA 337). In that case, the petitioner De Guzman questioned the authority of the Sandiganbayan to hear and
decide his case on the same ground that herein petitioner assails its jurisdiction. The Court upheld the authority of the
Sandiganbayan saying that:

Although the Sandiganbayan is composed of a Presiding Justice, and eight Associate Justices, it does not
mean that it cannot validly function without all of the Divisions constituted. Section 3 of P.D. 1606 provides
that the "Sandiganbayan shall sit in three divisions of three justices each" while Section 5 thereof provides
that the unanimous vote of three justices of a division shall be necessary for the pronouncement of a
judgment.

Thus the Sandiganbayan functions in Divisions of three Justices each and each Division functions
independently of the other. As long as a division has been duly constituted it is a judicial body whose
pronouncements are binding as judgments of the Sandiganbayan.

The judgment convicting petitioner was a unanimous Decision of the First Division duly constituted. It thus
met the requirement for the pronouncement of a judgment as required by Section 5 of P.D. 1606 supra.

III. The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals fifty-six
(56) years and eight (8) days of imprisonment. Petitioner impugns this as contrary to the three-fold rule and insists
that the duration of the aggregate penalties should not exceed forty (40) years.

Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal Code. This
article is to be taken into account not in the imposition of the penalty but in connection with the service of the
sentence imposed (People v. Escares, 102 Phil. 677 [1957]). Article 70 speaks of "service" of sentence, "duration" of
penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about the "imposition of penalty". It
merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties
the maximum of which is forty years.

The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations filed
against the accused-petitioner. As We pointed out in the case of People v. Peralta, (No. L-19069, October 29, 1968,
25 SCRA 759, 783-784):

... Even without the authority provided by Article 70, courts can still impose as many penalties as there are
separate and distinct offenses committed, since for every individual crime committed, a corresponding
penalty is prescribed by law. Each single crime is an outrage against the State for which the latter, thru the
courts of justice, has the power to impose the appropriate penal sanctions.

In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and unusual
(See Veniegas v. People, G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792).

We deem it unnecessary to pass upon the fifth issue raised in view of the foregoing discussion.

WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin and Sarmiento, JJ., concur.
 [G.R. No. 130191. April 27, 1998]

RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN, petitioners,

vs. THE HONORABLE SANDIGANBAYAN, respondent.

DECISION
KAPUNAN, J.:

The right to preliminary investigation is not a mere formal right, it is a substantive

right. To deny the accused of such right would be to deprive him of due process.
In this special civil action for certiorari with preliminary injunction, petitioners seek to
set aside the Order of the Sandiganbayan dated 27 June 1997 denying the Motion to
Quash the information filed against them for violating Sec. 3(g) of R.A. No. 3019,
otherwise known as the Anti-Graft And Corrupt Practices Act. Petitioners similarly
impugn the Resolution of the Sandiganbayan dated 5 August 1997 which denied their
Motion for Reconsideration thereof.
Pertinent to this case are the following facts:

In 1990, the Davao City Local Automation Project was launched by the city
government of Davao. The goal of said project was to make Davao City a
leading center for computer systems and technology development. It also
aimed to provide consultancy and training services and to assist all local
government units in Mindanao set up their respective computer systems.

To implement the project, a Computerization Program Committee, composed

of the following was formed:

Chairman : Atty. Benjamin C. de Guzman, City Administrator

Members : Mr. Jorge Silvosa, Acting City Treasurer

Atty. Victorino Advincula, City Councilor

Mr. Alexis Almendras, City Councilor\

Atty. Onofre Francisco, City Legal Officer

Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office

Atty. Mariano Kintanar, COA Resident Auditor.[1]

The Committees duty was to conduct a thorough study of the different

computers in the market, taking into account the quality and acceptability of
the products, the reputation and track record of the manufacturers and/or their
Philippine distributors, the availability of service centers in the country that can
undertake preventive maintenance of the computer hardwares to ensure a
long and uninterrupted use and, last but not the least, the capability of the
manufacturers and/or Philippine distributors to design and put into place the
computer system complete with the flow of paperwork, forms to be used and
personnel required.[2]

Following these guidelines, the Committee recommended the acquisition of

Goldstar computers manufactured by Goldstar Information and Communication, Ltd.,
South Korea and exclusively distributed in the Philippines by Systems Plus, Inc. (SPI).
After obtaining prior clearance from COA Auditor Kintanar, the Committee
proceeded to negotiate with SPI, represented by its President Rodolfo V. Jao and
Executive Vice President Manuel T. Asis, for the acquisition and installation of the
computer hardware and the training of personnel for the Electronic Data-Processing
Center. The total contract cost amounted to P11,656,810.00
On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao
unanimously passed Resolution No. 1402 and Ordinance No. 173 approving the
proposed contract for computerization between Davao City and SPI. The Sanggunian,
likewise, authorized the City Mayor (petitioner Duterte) to sign the said contract for and
in behalf of Davao City.[3]
On the same day, the Sangguniang issued Resolution No. 1403 and Ordinance No.
174, the General Fund Supplemental Budget No. 07 for CY 1990
appropriating P3,000,000.00 for the citys computerization project.
Given the go-signal, the contract was duly signed by the parties thereto and on 8
November 1990, petitioner City Administrator de Guzman released to SPI PNB Check
No. 65521 in the amount of P1,748,521.58 as downpayment.
On 27 November 1990, the Office of the Ombudsman-Mindanao received a letter-
complaint from a concerned citizen, stating that some city officials are going to make a
killing in the transaction.[4] The complaint was docketed as OMB-MIN-90-
0425. However, no action was taken thereon.[5]
Thereafter, sometime in February 1991, a complaint docketed as Civil Case No.
20,550-91, was instituted before the Regional Trial Court of Davao City, Branch 12 by
Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw Foundation, Inc.
against the petitioners, the City Council, various city officials and SPI for the judicial
declaration of nullity of the aforestated resolutions and ordinances and the computer
contract executed pursuant thereto.
On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to
petitioner Duterte for the cancellation of the computerization contract.
Consequently, on 8 April 1991, the Sangguniang issued Resolution No. 449 and
Ordinance No. 53 accepting Goldstars offer to cancel the computerization contract
provided the latter return the advance payment of P1,748,521.58 to the City Treasurers
Office within a period of one month. Petitioner Duterte, as city mayor, was thus
authorized to take the proper steps for the mutual cancellation of the said contract and
to sign all documents relevant thereto.[6]
Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf of
Davao City, and SPI mutually rescinded the contract and the downpayment was duly
refunded.
In the meantime, a Special Audit Team of the Commission on Audit was tasked to
conduct an audit of the Davao City Local Automation Project to determine if said
contract conformed to government laws and regulations.
On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05
recommending rescission of the subject contract. A copy of the report was sent to
petitioner Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In the latters
transmittal letter, Chairman Domingo summarized the findings of the special audit team,
thus:

1. The award of the contract for the Davao City Local Automation Project to
Systems Plus, Inc., for P11,656,810 was done thru negotiated contract
rather than thru competitive public bidding in violation of Sections 2 and
8 of PD 526. Moreover, there was no sufficient appropriation for this
particular contract in violation of Sec. 85 of PD 1445.

2. Advance payment of P1.7M was made to Systems Plus, Inc. covering 15%
of the contract cost of P11.6M in violation of Sec. 45 of PD 477 and
Sec. 88 of PD 1445.

3. The cost of computer hardware and accessories under contract with

Systems Plus, Inc. (SPI) differed from the teams canvass by as much
as 1200% or a total of P1.8M.

4. The City had no Information System Plan (ISP) prior to the award of the
contract to SPI in direct violation of Malacaang Memo. Order No. 287
and NCC Memo. Circular 89-1 dated June 22, 1989. This omission
resulted in undue disadvantage to the City Government.
5. To remedy the foregoing deficiencies, the team recommends that the
contract with Systems Plus, Inc. be rescinded in view of the
questionable validity due to insufficient funding. Further, the provisions
of NCC-Memorandum Circular 89-1 dated June 22, 1989 regarding
procurement and/or installation of computer hardware/system should be
strictly adhered to.[7]

The city government, intent on pursuing its computerization plan, decided to follow
the audit teams recommendation and sought the assistance of the National Computer
Center (NCC).After conducting the necessary studies, the NCC recommended the
acquisition of Philips computers in the amount of P15,792,150.00. Davao City complied
with the NCCs advice and hence, was finally able to obtain the needed computers.
Subsequently, on 1 August 1991, the Anti-Graft League-Davao City Chapter,
through one Miguel C. Enriquez, filed an unverified complaint with the Ombudsman-
Mindanao against petitioners, the City Treasurer, City Auditor, the whole city
government of Davao and SPI. The League alleged that the respondents, in entering
into the computerization contract, violated R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act), PD No. 1445 (Government Auditing Code of the Philippines), COA
circulars and regulations, the Revised Penal Code and other pertinent laws. The case
was docketed as OMB-3-91-1768.[8]
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the
Office of the Ombudsman sent a letter[9] to COA Chairman Domingo requesting the
Special Audit Team to submit their joint affidavit to substantiate the complaint in
compliance with Section 4, par. (a) of the Rules of Procedure of the Office of the
Ombudsman (A. O. No. 07).
On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil
Case No. 20,550-91. The dispositive portion reads, thus:

WHEREFORE, in view of all the foregoing, this case is hereby dismissed on

the ground of prematurity and that it has become moot and academic with the
mutual cancellation of the contract. The other claims of the parties are hereby
denied. No pronouncement as to costs.

SO ORDERED.[10]

On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-91-

1768 directing petitioners, Jorge Silvosa (City Treasurer), Mariano Kintanar (City
Auditor) and Manuel T. Asis of SPI to:

xxx file in ten (10) days (1) their respective verified point-by-point comment
under oath upon every allegation of the complaint in Civil Case No. 20,550-91
in the Regional Trial Court (RTC), Branch 12, Davao City Dean Pilar C. Braga,
et al. vs. Illegality of City Council of Davao Resolutions and Ordinances, and
the Computer Contract executed Pursuant Thereto, for Recovery of Sum of
Money, Professional Fees and Costs with Injunctive Relief, including the
Issuance of a Restraining Order and/or a Writ of Preliminary Prohibitory
Injunction in which they filed a motion to dismiss, not an answer and (2) the
respective comments, also under oath, on the Special Audit Report No. 91-05,
a copy of which is attached.[11]

On 4 December 1991, the Ombudsman received the affidavits of the Special Audit
Team but failed to furnish petitioners copies thereof.
On 18 February 1992, petitioners submitted a manifestation adopting the comments
filed by their co-respondents Jorge Silvosa and Mariano Kintanar dated 25 November
1991 and 17 January 1992, respectively.
Four years after, or on 22 February 1996, petitioners received a copy of a
Memorandum prepared by Special Prosecution Officer I, Lemuel M. De Guzman dated
8 February 1996 addressed to Ombudsman Aniano A. Desierto regarding OMB-MIN-
90-0425 and OMB-3-91-1768. Prosecutor De Guzman recommended that the charges
of malversation, violation of Sec. 3(e), R.A. No. 3019 and Art. 177, Revised Penal Code
against petitioners and their co-respondents be dismissed. He opined that any issue
pertaining to unwarranted benefits or injury to the government and malversation were
rendered moot and academic by the mutual rescission of the subject contract before the
COA submitted its findings (SAR No. 91-05) or before the disbursement was
disallowed. However, Prosecutor De Guzman recommended that petitioners be charged
under Sec. 3(g) of R.A. No. 3019 for having entered into a contract manifestly and
grossly disadvantageous to the government, the elements of profit, unwarranted
benefits or loss to government being immaterial.[12]
Accordingly, the following information dated 8 February 1996 was filed against
petitioners before the Sandiganbayan (docketed as Criminal Case No. 23193):

That on or about November 5, 1990, in the City of Davao, Philippines, and

within the jurisdiction of this Honorable Court, the above-named accused, both
public officers, accused Benjamin C. De Guzman being then the City
Administrator of Davao City, committing the crime herein charged in relation
to, while in the performance and taking advantage of their official functions,
and conspiring and confederating with each other, did then and there willfully,
unlawfully and criminally enter into a negotiated contract for the purchase of
computer hardware and accessories with the Systems Plus, Incorporated for
and in consideration of the amount of PESOS: ELEVEN MILLION SIX
HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED TEN
(P11,656,810.00), which contract is manifestly and grossly disadvantageous
to the government, said accused knowing fully-well that the said acquisition
cost has been overpriced by as much as twelve hundred (1200%) percent and
without subjecting said acquisition to the required public bidding.
CONTRARY TO LAW.[13]

On 27 February 1996, petitioners filed a motion for reconsideration and on 29

March 1996, a Supplemental Motion for Reconsideration on the following grounds:

1. Petitioners were deprived of their right to a preliminary investigation, due

process and the speedy disposition of their case;

2. Petitioner Duterte acted in good faith and was clothed with authority to
enter into the subject contract;

3. There is no contract manifestly and grossly disadvantageous to the

government since the subject contract has been duly rescinded.

On 19 March 1996, the Ombudsman issued a Resolution denying petitioners motion

for reconsideration.
On 18 June 1997, petitioners filed a Motion to Quash which was denied by the
Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan ruled:

It appears, however, that the accused were able to file motions for the
reconsideration of the Resolution authorizing the filing of the Information
herein with the Ombudsman in Manila. This would mean, therefore, that
whatever decision which might have occurred with respect to the preliminary
investigation would have been remedied by the motion for consideration in the
sense that whatever the accused had to say in their behalf, they were able to
do in that motion for reconsideration.

Considering the denial thereof by the Office of the Ombudsman, the Court
does not believe itself empowered to authorize a reinvestigation on the ground
of an inadequacy of the basic preliminary investigation nor with respect to a
dispute as to the proper appreciation by the prosecution of the evidence at
that time.

In view hereof, upon further representation by Atty. Medialdea that he

represents not only Mayor Duterte but City Administrator de Guzman as well,
upon his commitment, the arraignment hereof is now set for July 25, 1997 at
8:00 oclock in the morning.[14]

On 15 July 1997, petitioners moved for reconsideration of the above order but the
same was denied by the Sandiganbayan for lack of merit in its Resolution dated 5
August 1997.[15]
Hence, the present recourse.
 Petitioners allege that:

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
DENYING PETITIONERS MOTION TO QUASH AND MOTION FOR
RECONSIDERATION, CONSIDERING THAT:
A
(1) PETITIONERS WERE EFFECTIVELY DEPRIVED OF THEIR RIGHT TO A
PRELIMINARY INVESTIGATION PURSUANT TO SEC. 4, RULE II OF
ADMINISTRATIVE ORDER NO. 07 (RULES OF PROCEDURE OF THE OFFICE
OF THE OMBUDSMAN); AND
(2) ASSUMING THAT A PRELIMINARY INVESTIGATION WAS PROPERLY
CONDUCTED, THERE WAS AN INORDINATE DELAY IN TERMINATING THE
SAME THEREBY DEPRIVING THEM OF THEIR RIGHT TO DUE PROCESS AND
SPEEDY DISPOSITION OF THE CASE.
B
THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO CHARGE
PETITIONERS DUTERTE AND DE GUZMAN OF VIOLATING SEC. 3 (G) OF R.A.
3019 IN THAT:
(1) PETITIONER DUTERTE ACTED IN GOOD FAITH AND WAS CLOTHED WITH FULL
LEGAL AUTHORITY FROM THE CITY COUNCIL TO ENTER INTO A CONTRACT
WITH SYSTEMS PLUS, INC.,
(2) THERE IS NO CONTRACT MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT TO SPEAK OF AS THE SAME HAS BEEN RESCINDED AND
NO DAMAGE WAS SUFFERED BY THE CITY GOVERNMENT;
(3) ASSUMING THAT THE CONTRACT WAS NOT RESCINDED, THE SAME CANNOT
BE CONSIDERED AS MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT.[16]
On 4 September 1997, the Court issued a Temporary Restraining Order enjoining
the Sandiganbayan from further proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.
We have judiciously studied the case records and we find that the preliminary
investigation of the charges against petitioners has been conducted not in the manner
laid down in Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were
merely directed to submit a point-by-point comment under oath on the allegations in
Civil Case No. 20,550-91 and SAR No. 91-05. The said order was not accompanied by
a single affidavit of any person charging petitioners of any offense as required by
law.[17] They were just required to comment upon the allegations in Civil Case No.
20,550-91 of the Regional Trial Court of Davao City which had earlier been dismissed
and on the COA Special Audit Report. Petitioners had no inkling that they were being
subjected to a preliminary investigation as in fact there was no indication in the order
that a preliminary investigation was being conducted. If Graft Investigator Manriquez
had intended merely to adopt the allegations of the plaintiffs in the civil case or the
Special Audit Report (whose recommendation for the cancellation of the contract in
question had been complied with) as his basis for criminal prosecution, then the
procedure was plainly anomalous and highly irregular. As a consequence, petitioners
constitutional right to due process was violated.
Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of
the Office of the Ombudsman) provide:

Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer

shall recommend whether or not it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) endorsed to the proper government office or agency which has jurisdiction

over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation

xxx

Sec. 4. Procedure. The preliminary investigation of cases falling under the

jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.

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

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

may a motion for a bill of particulars be entertained. If respondent desires any
matter in the complainants affidavit to be clarified, the particularization thereof
may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6

hereof, or having been served, does not comply therewith, the complaint shall
be deemed submitted for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences,
there are facts material to the case which the investigating officer may need to
be clarified on, he may conduct a clarificatory hearing during which the parties
shall be afforded the opportunity to be present but without the right to examine
or cross-examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the
witness concerned who shall be required to answer the same in writing and
under oath.

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

officer shall be forward the records of the case together with his resolution to
the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the

written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or the proper Deputy Ombudsman in all
other cases.

In what passes off as application of the foregoing rules, all that petitioners were
asked to do was merely to file their comment upon every allegation of the complaint in
Civil Case No. 20,550-91 in the Regional Trial Court (RTC) and on the COA Special
Audit Report. The comment referred to in Section 2(b) Rule II, of A.O. No. 07 is not part
of or is equivalent to the preliminary investigation contemplated in Sec. 4, Rule II, of the
same Administrative Order. A plain reading of Sec. 2 would convey the idea that upon
evaluation of the complaint, the investigating officer may recommend its outright
dismissal for palpable want of merit; otherwise, or if the complaint appears to have
some merit, the investigator may recommend action under any of those enumerated
from (b) to (f), that is, the investigator may recommend that the complaint be: referred to
respondent for comment, or endorsed to the proper government office or agency which
has jurisdiction over the case; or forwarded to the appropriate office of official for fact-
finding investigation. Now, if the investigator opts to recommend the filing of a comment
by the respondent, it is presumably because he needs more facts and information for
further evaluation of the merits of the complaint. That being done, the investigating
officer shall again recommend any one of the actions enumerated in Section 2, which
include the conduct of a preliminary investigation.
A preliminary investigation, on the other hand, takes on an adversarial quality and
an entirely different procedures comes into play. This must be so because the purpose
of a preliminary investigation or a previous inquiry of some kind, before an accused
person is placed on trial, is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, expenses and anxiety of public trial. [18] It is also intended to
protect the state from having to conduct useless and expensive trials. [19] While the right
is statutory rather than constitutional in its fundament, it is a component part of due
process in criminal justice. The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence, formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a
substantive right. To deny the accuseds claim to a preliminary investigation would be to
deprive him of the full measure of his right to due process.[20]
Note that in preliminary investigation, if the complaint is unverified or based only on
official reports (which is the situation obtaining in the case at bar), the complainant is
required to submit affidavits to substantiate the complaint. The investigating officer,
thereafter, shall issue an order, to which copies of the complaint-affidavit are attached,
requiring the respondent to submit his counter-affidavits. In the preliminary investigation,
what the respondent is required to file is a counter-affidavit, not a comment. It is only
when the respondent fails to file a counter-affidavit may the investigating officer
consider the respondents comment as the answer to the complaint. Against the
foregoing backdrop, there was a palpable non-observance by the Office of the
Ombudsman of the fundamental requirements of preliminary investigation.
Apparently, in the case at bar, the investigating officer considered the filing of
petitioners comment as a substantial compliance with the requirements of a preliminary
investigation. Initially, Graft Investor Manriquez directed the members of the Special
Audit Team on 9 October 1991 to submit their affidavits relative to SAR No. 91-05.
However, on 12 November 1991, before the affidavits were submitted, Manriquez
required petitioners to submit their respective comments on the complaint in the civil
case and on Special Audit Report (SAR) 91-05. Even when the required affidavits were
filed by the audit team on 4 December 1991, petitioners were still not furnished copies
thereof. The Ombudsman contends that failure to provide petitioners the complaint-
affidavits is immaterial since petitioners were well aware of the existence of the civil
complaint and SAR No. 91-05. We find the Ombudsmans reasoning flawed. The civil
complaint and the COA Special Audit Report are not equivalent to the complaint-
affidavits required by the rules. Moreover, long before petitioners were directed to file
their comments, the civil complaint (Civil Case No. 20, 550-91) was rendered moot and
academic and, accordingly, dismissed following the mutual cancellation of the
computerization contract. In SAR No. 91-05, on the other hand, petitioners were merely
advised to rescind the subject contract which was accomplished even before the audit
report came out. In light of these circumstances, the Court cannot blame petitioners for
being unaware of the proceedings conducted against them.
In Olivas vs. Office of the Ombudsman,[21] this Court, speaking through Justice
Vicente V. Mendoza, emphasized that it is mandatory requirement for the complaint to
submit his affidavit and those of his witnesses before the respondent can be compelled
to submit his counter-affidavits and other supporting documents. Thus:

Even in investigations looking to the prosecution of a party, Rule I, 3 can only

apply to the general criminal investigation, which in the case at bar was
already conducted by the PCGG. But after the Ombudsman and his deputies
have gathered evidence and their investigation has ceased to be a general
exploratory one and they decide to bring the action against a party, their
proceedings become adversary and Rule II 4(a) then applies. This means that
before the respondent can be required to submit counter-affidavits and other
supporting documents, the complaint must submit his affidavit and those of his
witnesses. This is true not only of prosecutions of graft cases under Rep. Act
No. 3019 but also of actions for the recovery of unexplained wealth under
Rep. Act No. 1379, because 2 of this latter law requires that before a petition
is filed there must be a previous inquiry similar to preliminary investigation in
criminal cases.

Indeed, since a preliminary investigation is designed to screen cases for trial,

only evidence may be considered. While reports and even raw information
may justify the initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in court. As this
Court held in Cojuangco, Jr. v. PCGG:

Although such a preliminary investigation is not a trial and is not intended to

usurp the function of the trial court, it is not a casual affair. The officer
conducting the same investigates or inquires into the facts concerning the
commission of the crime with the end in view of determining whether or not an
information may be prepared against the accused. Indeed, a preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound as a matter of law to order an
acquittal. A preliminary investigation has then been called a judicial inquiry. It
is a judicial proceeding. An act becomes judicial when there is opportunity to
be heard and for the production and weighing of evidence, and a decision is
rendered thereof.
II

Compounding the deprivation of petitioners of their right to a preliminary

investigation was the undue and unreasonable delay in the termination of the irregularity
conducted preliminary investigation. Petitioners manifestation adopting the comments of
their co-respondents was filed on 18 February 1992. However, it was only on 22
February 1996 or four (4) years later, that petitioners received a memorandum dated 8
February 1996 submitted by Special Prosecutor Officer I Lemuel M. De Guzman
recommending the filing of information against them for violation of Sec. 3(g) of R.A. No.
3019 (Anti-Graft and Corrupt Practices Act). The inordinate delay in the conduct of the
preliminary investigation infringed upon their constitutionally guaranteed right to a
speedy disposition of their case.[22] In Tatad vs. Sandiganbayan,[23] we held that an
undue delay of close to three (3) years in the termination of the preliminary investigation
in the light of the circumstances obtaining in that case warranted the dismissal of the
case:

We find the long delay in the termination of the preliminary investigation by the
Tanodbayan in the instant case to be violative of the constitutional right of the
accused to due process. Substantial adherence to the requirements of the law
governing the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the resolution of
the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. Not only under the broad
umbrella of the due process clause, but under the constitutional guarantee of
speedy disposition of cases as embodied in Section 16 of the Bill of Rights
(both in the 1973 and 1987 Constitution), the inordinate delay is violative of
the petitioners constitutional rights. A delay of close to three (3) years can not
be deemed reasonable or justifiable in the light of the circumstances obtaining
in the case at bar. We are not impressed by the attempt of the Sandiganbayan
to sanitize the long delay by indulging in the speculative assumption that the
delay may be due to a painstaking and grueling scrutiny by the Tanodbayan
as to whether the evidence presented during the preliminary investigation
merited prosecution of a former high-ranking government official. In the first
place, such a statement suggests a double standard of treatment, which must
be emphatically rejected. Secondly, three out of the five charges against the
petitioner were for his alleged failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which certainly did not involve
complicated legal and factual issues necessitating such painstaking and
grueling scrutiny as would justify a delay of almost three years in terminating
the preliminary investigation. The other two charges relating to alleged bribery
and alleged giving of unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or justify the
period of three years, which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence of a
preliminary investigation does not warrant dismissal of the information. True
but the absence of a preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct of the
preliminary investigation can not be corrected, for until now, man has not yet
invented a device for setting back time.

In the recent case of Angchangco, Jr. vs. Ombudsman,[24] the Court upheld
Angchangcos right to the speedy disposition of his case. Angchangco was a sheriff in
the Regional Trial Court of Agusan del Norte and Butuan City. In 1990 criminal
complaints were filed against him which remained pending before the Ombudsman
even after his retirement in 1994. The Court thus ruled:

Here, the Office of the Ombudsman, due to its failure to resolve the criminal
charges against petitioner for more than six years, has transgressed on the
constitutional right of petitioner to due process and to a speedy disposition of
the cases against him, as well as the Ombudsmans own constitutional duty to
act promptly on complaints filed before it. For all these past 6 years, petitioner
has remained under a cloud, and since his retirement in September 1994, he
has been deprived of the fruits of his retirement after serving the government
for over 42 years all because of the inaction of respondent Ombusman. If we
wait any longer, it may be too late for petitioner to receive his retirement
benefits, not to speak of clearing his name. This is a case of plain injustice
which calls for the issuance of the writ prayed for.[25]

We are not persuaded by the Ombudsmans argument that the Tatad ruling does not
apply to the present case which is not politically motivated unlike the former, pointing
out the following findings of the Court in the Tatad decision:

A painstaking review of the facts can not but leave the impression that political
motivations played a vital role in activating and propelling the prosecutional
process in this case. Firstly, the complaint came to life, as it were, only after
petitioner Tatad had a falling out with President Marcos. Secondly, departing
from established procedures prescribed by law for preliminary investigation,
which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan
referred the complaint to the Presidential Security Command for fact-finding
investigation and report.
We find such blatant departure from the established procedure as dubious,
but revealing attempt to involve an office directly under the President in the
prosecutional process lending credence to the suspicion that the prosecution
was politically motivated. We cannot emphasize too strongly that prosecutors
should not allow, and should avoid, giving the impression that their noble
office is being used or prostituted, wittingly or unwittingly, for political ends, or
other purposes alien to, or subversive of, the basic and fundamental objective
observing the interest of justice evenhandedly, without fear or favor to any and
all litigants alike whether rich or poor, weak or strong, powerless or mighty.
Only by strict adherence to the established procedure may be publics
perception of the impartiality of the prosecutor be enhanced.[26]

The Ombudsman endeavored to distinguish the present suit from

the Angchangco case by arguing that in the latter, Angchangco filed several motions for
early resolution, implying that in the case at bar petitioners were not as vigilant in
asserting or protecting their rights.
We disagree. The constitutional right to speedy disposition of cases does not come
into play only when political considerations are involved. The Constitution makes no
such distinction.While political motivation in Tatad may have been a factor in the undue
delay in the termination of the preliminary investigation therein to justify the invocation of
their right to speedy disposition of cases, the particular facts of each case must be
taken into consideration in the grant of the relief sought. In the Tatad case, we are
reminded:

In a number of cases, this Court has not hesitated to grant the so-called
radical relief and to spare the accused from the undergoing the rigors and
expense of a full-blown trial where it is clear that he has been deprived of due
process of law or other constitutional guaranteed rights. Of course, it goes
without saying that in the application of the doctrine enunciated in those
cases, particularly regard must be taken of the facts and circumstances
peculiar to its case.[27]

In Alviso vs. Sandiganbayan,[28] the Court observed that the concept of speedy
disposition of cases is a relative term and must necessarily be a flexible concept and
that the factors that may be considered and balanced are the length of the delay, the
assertion or failure to assert such right by the accused, and the prejudice caused by the
delay.
Petitioners in this case, however, could not have urged the speedy resolution of
their case because they were completely unaware that the investigation against them
was still on-going.Peculiar to this case, we reiterate, is the fact that petitioners were
merely asked to comment, and not file counter-affidavits which is the procedure to
follow in a preliminary investigation.After giving their explanation and after four long
years of being in the dark, petitioners, naturally, had reason to assume that the charges
against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible,
special or even novel reason which could justify the four-year delay in terminating its
investigation. Its excuse for the delay-the many layers of review that the case had to
undergo and the meticulous scrutiny it had to entail has lost its novelty and is no longer
appealing, as was the invocation in the Tatad case. The incident before us does not
involve complicated factual and legal issues, specially in view of the fact that the subject
computerization contract had been mutually cancelled by the parties thereto even
before the Anti-Graft League filed its complaint.
The Office of the Ombudsman capitalizes on petitioners three motions for extension
of the time to file comment which it imputed for the delay. However, the delay was not
caused by the motions for extension. The delay occurred after petitioners filed their
comment. Between 1992-1996, petitioners were under no obligation to make any move
because there was no preliminary investigation within the contemplation of Section 4,
Rule II of A.O. No. 07 to speak of in the first place.
III

Finally, under the facts of the case, there is no basis in the law or in fact to charge
petitioners for violation of Sec. 3(g) of R.A. No. 3019. To establish probable cause
against the offender for violation of Sec. 3(g), the following elements must be
present: (1) the offender is a public officer; (2) he entered into a contract or transaction
in behalf of the government; (3) the contract or transaction is grossly and manifestly
disadvantageous to the government. The second element of the crime that the accused
public officers entered into a contract in behalf of the government is absent. The
computerization contract was rescinded on 6 May 1991 before SAR No. 91-05 came out
on 31 May 1991 and before the Anti-Graft League filed its complaint with the
Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League instituted
their complaint and the Ombudsman issued its Order on 12 November 1991, there was
no longer any contract to speak of. The contract, after 6 May 1991 became in
contemplation of the law, non-existent, as if no contract was ever executed.
WHEREFORE, premises considered, the petition is GRANTED and Criminal Case
No. 23193 is hereby DISMISSED. The temporary restraining order issued on 4
September 1997 is made PERMANENT.
SO ORDERED.
Narvasa, C.J., Romero, and Purisima, JJ., concur.

[1] Rollo, p. 7.
[2] Ibid.
[3] Id., at 38-41.
[4] Id., at 42.
[5] Ibid.
[6] Id., at 43-45.
[7] Id., at 46-47.
[8] Id., at 48-62.
[9] Id., at 71-72.
[10] Id., at 68.
[11] Id., at 69.
[12] Id., at 75.
[13] Id., at 76.
[14] Id., at 143.
[15] Id., at 162-164.
[16] Id., at 16.
[17] A.O. No. 07, Rule II, Sec. 4(b).
[18] Rodis, Sr. vs. Sandiganbayan, 166 SCRA 618 (1988); People vs. Poculan, 167 SCRA 155 (1988).
[19] Tandoc vs. Resultan, 175 SCRA 37 (1989).
[20] Doromal vs. Sandiganbayan, 177 SCRA 354 (1980); Go vs. Court of Appeals, 206 SCRA 138 (1992).
[21] 239 SCRA 283 (1994).
[22] Section 16, Article III of the 1987 Constitution mandates that:
All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
[23] 159 SCRA 70 (1988).
[24] 268 SCRA 301 (1997).
[25] Id., at 306.
[26] See note 23 at 81.
[27] Id., at 80.
[28] 220 SCRA 55 (1993).

SECOND DIVISION

G.R. No. 110503 August 4, 1994

ANTONIO M. BOLASTIG, petitioner,

vs.
HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES, respondents.
Panganiban, Benitez, Parlade, Africa & Barinaga Law Office (Pablaw) for petitioner.

MENDOZA, J.:

This is a petition for certiorari to set aside the resolution, dated March 18, 1993, of the Sandiganbayan, granting the
motion of the Special Prosecution Officer to suspend the accused from office pendente lite and the resolution, dated
March 29, 1993, denying reconsideration of the first resolution.

Petitioner Antonio M. Bolastig is governor of Samar. On August 31, 1989, an information was filed against him and
two others for alleged overpricing of 100 reams of onion skin paper in violation of the Anti-Graft and Corrupt Practices
Act (Republic Act No. 3019). The Information alleged:

That on or about June 24, 1986, in the Municipality of Catbalogan, Samar, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused ANTONIO M. BOLASTIG,
PEDRO ASON and PRUDENCIO MACABENTA, all public officers, duly appointed and qualified as
such, being the OIC Governor, Provincial Treasurer and Property Officer respectively, all of the
Province of Samar, and being members of Bids and Awards Committee responsible for the
purchase of office supplies for the Provincial Government of Samar and while in the performance of
their respective positions, confederating and mutually helping one another and through manifest
partiality and evident bad faith, did then and there wilfully and unlawfully enter into a purchase
contract with REYNALDO ESPARAGUERRA, a private citizen, for the purchase of certain office
supplies, namely: one hundred (100) reams of Onion Skin size 11" x 17" at a unit price of Five
Hundred Fifty pesos (P550.00) or a total price of Fifty-Five Thousand Pesos (P55,000.00), which
contract was manifestly and grossly disadvantageous to the government as the prevailing unit price
for said item was only Fifty-Five Pesos (P55.00) or a total price of Five Thousand Five Hundred
Pesos (P5,500.00), thereby causing undue injury to the government in the total amount of Forty-
Nine Thousand Five Hundred Pesos (P49,500.00).

CONTRARY TO LAW.

Petitioner was arraigned on January 5, 1993, whereupon he entered a plea of "not guilty."

On January 25, 1993, Special Prosecution Officer III Wilfredo Orencia moved for petitioner's suspension, citing sec.
13 of Republic Act No. 3019 which provides in part:

Sec. 13. Suspension and loss of benefits. — Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon government or public funds or property,
whether as a simple or as a complex offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office.

Petitioner opposed the motion, arguing inter alia that:

2. Upon a bare invocation of the foregoing provision, the prosecution would have this Honorable
Court issue an Order suspending the accused, as if suspension of a public officer is a mindless and
meaningless exercise, and is imposed without regard to the spirit and intent of the law upon which
it is based.

3. Indeed, it cannot be simply assumed that laws are enacted and followed without a particular
purpose to be served, especially when a mechanical application shall injure not only the public
official concerned, but the entire electorate as well. 1

The Sandiganbayan rejected petitioner's argument and ordered the suspension of petitioner from office for a period of
90 days. It held that preventive suspension is mandatory under sec. 13, of Rep. Act No. 3019, pursuant to which all
that is required is for the court to make a finding that the accused stands charged under a valid information "for any of
the above-described crimes for the purpose of granting or denying the sought for suspension." 2
Implementation of the resolution was held in abeyance to allow petitioner to file a motion for reconsideration, which
the Sandiganbayan, however, eventually denied on March 29, 1993.

Hence, this petition. It is contended that the Sandiganbayan committed a grave abuse of its discretion in issuing its
resolution

(a) despite the failure of the prosecution to show any public interest to be served, or injury to be
prevented, or any other compelling factual circumstance which justifies the preventive suspension
of petitioner; and

(b) despite the injury not only upon petitioner but also upon the people of Samar whose political
rights are trenched upon by the suspension for no valid reason of their duly elected Governor.

To the Solicitor General's contention that upon the filing of a valid information suspension pendente lite is mandatory
as held in several decisions of this Court,3 petitioner replies that, while the Sandiganbayan has the power to order
preventive suspension, there is a "need [for the Sandiganbayan] to go further, beyond the filing of the information, to
a determination of the necessity of the preventive suspension in accordance with the spirit and intent of the Anti-Graft
Law." Petitioner explains:

In other words, when the Anti-Graft Law gave the courts the authority to order the preventive
suspension of the accused, it never intended to impose a mindless and meaningless exercise. The
exercise of such authority must always be within the confines of the legislative intent, for to go
beyond it would be to exceed the bounds of the law. Preventive suspension should therefore be
ordered only when the legislative purpose is achieved, that is, when "the suspension order . . .
prevent(s) the accused from using his office to influence potential witnesses or tamper with records
which may be vital in the prosecution of the case against him." Corollarily, when the legislative
purpose is not achieved, preventive suspension is improper and should not be decreed."4

The petitioner's contention has no merit. It is now settled that sec. 13 of Republic Act No. 3019 makes it mandatory
for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law,
Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or
property is filed.5 The court trying a case has neither discretion nor duty to determine whether preventive suspension
is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue
committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his
prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is
probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law
requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine
whether the accused is likely to escape or evade the jurisdiction of the court.

It is indeed true that in some of our decisions 6 the expression "the maximum period of ninety (90) days" is used. But
that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than
ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive
suspension is not found in sec. 13 of Republic Act No. 3019 but was adopted from sec. 42 of the Civil Service Decree
(P.D. No. 807),7 which is now sec. 52 of the Administrative Code of 1987. This latter provision states:

Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. — When the
administrative case against the officer or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted
in computing the period of suspension herein provided.

The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative
disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if
the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly,
as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety
days only if the case is decided within that period; otherwise, it will continue for ninety days.
The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the
court to decide the case but not on account of any discretion lodged in the court, taking into account the probability
that the accused may use his office to hamper his prosecution.

Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say, 80, 70 or 60
days, as petitioner asserts, it would lie in its power not to suspend the accused at all. That, of course, would be
contrary to the command of sec. 13 of Republic Act No. 3019.

Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of
the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused
under preventive suspension disposes of petitioner's other contention that since the trial in the Sandiganbayan is now
over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioner
would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses
or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, as
already stated, to prevent the accused from committing further acts of malfeasance while in office.

Finally, the fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official
elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period
prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. 8 Indeed, even the
Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of
disorderly behavior,9 thus rejecting the view expressed in one case10 that members of the legislature could not be
suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the
constituents are deprived of representation.

For the foregoing reasons, we hold that in ordering the preventive suspension of petitioner, the Sandiganbayan acted
according to law.

WHEREFORE, the Petition for Certiorari is DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

#Footnotes

1 Rollo, p. 19.

2 Rollo, p. 27.

3 Bunye v. Escareal, G.R. No. 110216, Sept. 10, 1993, 226 SCRA 332; Gonzaga v.
Sandiganbayan, G.R. No. 96131, Sept. 6, 1991, 201 SCRA 417 (1991); People v. Albano, G.R. No.
L-45376-77, July 26, 1988, 163 SCRA 511 (1988).

4 Rollo, p. 65.

5 Supra note 3.

6 E.g., Gonzaga v. Sandiganbayan, supra; Doromal v. Sandiganbayan, G.R. No. 85468, Sept. 7,
1989, 177 SCRA 354 (1989).

7 Gonzaga v. Sandiganbayan, supra note 3.

8 The Local Government Code of 1991, sec. 46(a).

9 Art. VI, sec. 16(3).

10 Alejandro v. Quezon, 46 Phil. 83, 96 (1924).