G.R. No.
83988 September 29, 1989 military manning the checkpoints, considering that their cars and vehicles are
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES
FOR PEOPLE'S RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-petitioners.
PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary
restraining order, seeking the declaration of checkpoints in Valenzuela, Metro
Manila or elsewhere, as unconstitutional and the dismantling and banning of
the same or, in the alternative, to direct the respondents to formulate
guidelines in the implementation of checkpoints, for the protection of the
people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the
Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP),
and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers
and Advocates for People's Rights (ULAP) sues in its capacity as an
association whose members are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command
(NCRDC) was activated pursuant to Letter of Instruction 02/87 of the
Philippine General Headquarters, AFP, with the mission of conducting
security operations within its area of responsibility and peripheral areas, for
the purpose of establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the social, economic
and political development of the National Capital Region.1 As part of its duty
to maintain peace and order, the NCRDC installed checkpoints in various
parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the
residents of Valenzuela are worried of being harassed and of their safety
being placed at the arbitrary, capricious and whimsical disposition of the
being subjected to regular searches and check-ups, especially at night or at
dawn, without the benefit of a search warrant and/or court order. Their
alleged fear for their safety increased when, at dawn of 9 July 1988,
Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,
was gunned down allegedly in cold blood by the members of the NCRDC
manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for
ignoring and/or refusing to submit himself to the checkpoint and for
continuing to speed off inspire of warning shots fired in the air. Petitioner
Valmonte also claims that, on several occasions, he had gone thru these
checkpoints where he was stopped and his car subjected to search/check-up
without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a
blanket authority to make searches and/or seizures without search warrant or
court order in violation of the Constitution; 2 and, instances have occurred
where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by
the military manning the checkpoints are not sufficient grounds to declare the
checkpoints as per se illegal. No proof has been presented before the Court
to show that, in the course of their routine checks, the military indeed
committed specific violations of petitioners' right against unlawful search and
seizure or other rights.
In a case filed by the same petitioner organization, Union of Lawyers and
Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was
held that individual petitioners who do not allege that any of their rights were
violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a
personal right invocable only by those whose rights have been infringed, 4 or
threatened to be infringed. What constitutes a reasonable or unreasonable
search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been
stopped and searched without a search warrant by the military manning the
checkpoints, without more, i.e., without stating the details of the incidents
which amount to a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether there was a
violation of Valmonte's right against unlawful search and seizure. Not all
searches and seizures are prohibited. Those which are reasonable are not
1
forbidden. A reasonable search is not to be determined by any fixed formula Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
but is to be resolved according to the facts of each case. 6 Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.
Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, 7 or simply looks into a
vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable
search.

The setting up of the questioned checkpoints in Valenzuela (and probably in

other areas) may be considered as a security measure to enable the NCRDC
to pursue its mission of establishing effective territorial defense and
maintaining peace and order for the benefit of the public. Checkpoints may
also be regarded as measures to thwart plots to destabilize the government,
in the interest of public security. In this connection, the Court may take
judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of
police and military men by NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the alarming rise in lawlessness and
violence in such urban centers, not all of which are reported in media, most
likely brought about by deteriorating economic conditions which all sum up
to what one can rightly consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence and promote
public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by

the men in uniform, in the same manner that all governmental power is
susceptible of abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are part of the
price we pay for an orderly society and a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of
the police and military manning the checkpoints was ordered by the National
Capital Regional Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

2
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and
KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE;
JOSE LUKBAN, in his capacity as Acting Director, National Bureau of
Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I.
PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G.
REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE
ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES
CALUAG, Court of First Instance of Rizal-Quezon City Branch, and
JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan
T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor
Camilo D. Quiason and Solicitor C. Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin 1
hereinafter referred to as Respondents-Prosecutors several judges2
hereinafter referred to as Respondents-Judges issued, on different
dates,3 a total of 42 search warrants against petitioners herein 4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to
search the persons above-named and/or the premises of their offices,
warehouses and/or residences, and to seize and take possession of the
following personal property to wit:
Books of accounts, financial records, vouchers, correspondence,
receipts, ledgers, journals, portfolios, credit journals, typewriters, and
other documents and/or papers showing all business transactions
including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of
the offense," or "used or intended to be used as the means of committing the
offense," which is described in the applications adverted to above as
"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court because, inter alia:
(1) they do not describe with particularity the documents, books and things to
be seized; (2) cash money, not mentioned in the warrants, were actually
seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the
searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts
that issued the warrants, to be disposed of in accordance with law on
March 20, 1962, said petitioners filed with the Supreme Court this original
action for certiorari, prohibition, mandamus and injunction, and prayed that,
pending final disposition of the present case, a writ of preliminary injunction
be issued restraining Respondents-Prosecutors, their agents and /or
representatives from using the effects seized as aforementioned or any
copies thereof, in the deportation cases already adverted to, and that, in due
course, thereafter, decision be rendered quashing the contested search
warrants and declaring the same null and void, and commanding the
respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents,
papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested
search warrants are valid and have been issued in accordance with law; (2)
that the defects of said warrants, if any, were cured by petitioners' consent;
and (3) that, in any event, the effects seized are admissible in evidence
against herein petitioners, regardless of the alleged illegality of the
aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed
for in the petition. However, by resolution dated June 29, 1962, the writ was
partially lifted or dissolved, insofar as the papers, documents and things
seized from the offices of the corporations above mentioned are concerned;
but, the injunction was maintained as regards the papers, documents and
things found and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority
of the warrants in question may be split into two (2) major groups, namely:
(a) those found and seized in the offices of the aforementioned corporations,
and (b) those found and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of
action to assail the legality of the contested warrants and of the seizures
3
made in pursuance thereof, for the simple reason that said corporations have
their respective personalities, separate and distinct from the personality of
herein petitioners, regardless of the amount of shares of stock or of the
interest of each of them in said corporations, and whatever the offices they
hold therein may be.8 Indeed, it is well settled that the legality of a seizure
can be contested only by the party whose rights have been impaired
thereby,9 and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. 10 Consequently,
petitioners herein may not validly object to the use in evidence against them
of the documents, papers and things seized from the offices and premises of
the corporations adverted to above, since the right to object to the admission
of said papers in evidence belongs exclusively to the corporations, to whom
the seized effects belong, and may not be invoked by the corporate officers
in proceedings against them in their individual capacity. 11 Indeed, it has
been held:
. . . that the Government's action in gaining possession of papers
belonging to the corporation did not relate to nor did it affect
the personal defendants. If these papers were unlawfully seized and
thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other
defendants. Next, it is clear that a question of the lawfulness of a
seizure can be raised only by one whose rights have been invaded.
Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been
seized or the privacy of whose homes had not been disturbed; nor
could they claim for themselves the benefits of the Fourth
Amendment, when its violation, if any, was with reference to the
rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511.
It follows, therefore, that the question of the admissibility of the
evidence based on an alleged unlawful search and seizure
does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786,
789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the
writ of preliminary injunction previously issued by this Court, 12 thereby, in
effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important
questions need be settled, namely: (1) whether the search warrants in
question, and the searches and seizures made under the authority thereof,
are valid or not, and (2) if the answer to the preceding question is in the
negative, whether said documents, papers and things may be used in
evidence against petitioners herein.1wph1.t
Petitioners maintain that the aforementioned search warrants are in the
nature of general warrants and that accordingly, the seizures effected upon
the authority there of are null and void. In this connection, the
Constitution 13provides:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.
Two points must be stressed in connection with this constitutional mandate,
namely: (1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that
the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested
warrants. Indeed, the same were issued upon applications stating that the
natural and juridical person therein named had committed a "violation of
Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged
in said applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossible for the judges
who issued the warrants to have found the existence of probable cause, for
the same presupposes the introduction of competent proof that the party
against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws.
As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of
the highest order, to convict anybody of a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code," as alleged in the aforementioned applications without reference
to any determinate provision of said laws or
4
To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the whims caprice or
passion of peace officers. This is precisely the evil sought to be remedied by
the constitutional provision above quoted to outlaw the so-called general
warrants. It is not difficult to imagine what would happen, in times of keen
political strife, when the party in power feels that the minority is likely to wrest
it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of
Rule 122 of the former Rules of Court 14 by providing in its counterpart, under
the Revised Rules of Court 15 that "a search warrant shall not issue but upon
probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no
search warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the
contested search warrants was compounded by the description therein made
of the effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance
sheets and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records
pertaining to all business transactions of petitioners herein, regardless of
whether the transactions were legal or illegal. The warrants sanctioned the
seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our
Bill of Rights that the things to be seized be particularly described as
well as tending to defeat its major objective: the elimination
of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-
Prosecutors maintain that, even if the searches and seizures under
consideration were unconstitutional, the documents, papers and things thus
seized are admissible in evidence against petitioners herein. Upon mature
deliberation, however, we are unanimously of the opinion that the position
taken in the Moncado case must be abandoned. Said position was in line
with the American common law rule, that the criminal should not be allowed
to go free merely "because the constable has blundered," 16 upon the theory
that the constitutional prohibition against unreasonable searches and
seizures is protected by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common-law action for damages against
the searching officer, against the party who procured the issuance of the
search warrant and against those assisting in the execution of an illegal
search, their criminal punishment, resistance, without liability to an unlawful
seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this
approach and eventually adopted the exclusionary rule, realizing that this
is the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures. In the language of Judge Learned
Hand:
As we understand it, the reason for the exclusion of evidence
competent as such, which has been unlawfully acquired, is that
exclusion is the only practical way of enforcing the constitutional
privilege. In earlier times the action of trespass against the offending
official may have been protection enough; but that is true no longer.
Only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong will that wrong be
repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already
declared:
If letters and private documents can thus be seized and held and
used in evidence against a citizen accused of an offense, the
protection of the 4th Amendment, declaring his rights to be secure
against such searches and seizures, is of no value, and, so far as
those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the
guilty to punishment, praiseworthy as they are, are not to be aided by
the sacrifice of those great principles established by years of
endeavor and suffering which have resulted in their embodiment in
the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent
decisions on the same Federal Court. 20After reviewing previous decisions
thereon, said Court held, in Mapp vs. Ohio (supra.):
5
. . . Today we once again examine the Wolf's constitutional
documentation of the right of privacy free from unreasonable state
intrusion, and after its dozen years on our books, are led by it to
close the only courtroom door remaining open to evidence secured
by official lawlessness in flagrant abuse of that basic right, reserved
to all persons as a specific guarantee against that very same
unlawful conduct. We hold that all evidence obtained by searches
and seizures in violation of the Constitution is, by that same
authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States through the Due Process Clause of
the Fourteenth, it is enforceable against them by the same sanction
of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be "a form of
words," valueless and underserving of mention in a perpetual charter
of inestimable human liberties, so too, without that rule the freedom
from state invasions of privacy would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish
means of coercing evidence as not to permit this Court's high regard
as a freedom "implicit in the concept of ordered liberty." At the time
that the Court held in Wolf that the amendment was applicable to the
States through the Due Process Clause, the cases of this Court as
we have seen, had steadfastly held that as to federal officers the
Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that
proposition. The right to when conceded operatively enforceable
against the States, was not susceptible of destruction by avulsion of
the sanction upon which its protection and enjoyment had always
been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches state or
federal it was logically and constitutionally necessarily that the
exclusion doctrine an essential part of the right to privacy be
also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new
constitutional Right by Wolf could not tolerate denial of its most
important constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality
to withhold its privilege and enjoyment. Only last year the Court itself
recognized that the purpose of the exclusionary rule to "is to deter
to compel respect for the constitutional guaranty in the only
effectively available way by removing the incentive to disregard it"
....
The ignoble shortcut to conviction left open to the State tends to
destroy the entire system of constitutional restraints on which the
liberties of the people rest. Having once recognized that the right to
privacy embodied in the Fourth Amendment is enforceable against
the States, and that the right to be secure against rude invasions of
privacy by state officers is, therefore constitutional in origin, we can
no longer permit that right to remain an empty promise. Because it is
enforceable in the same manner and to like effect as other basic
rights secured by its Due Process Clause, we can no longer permit it
to be revocable at the whim of any police officer who, in the name of
law enforcement itself, chooses to suspend its enjoyment. Our
decision, founded on reason and truth, gives to the individual no
more than that which the Constitution guarantees him to the police
officer no less than that to which honest law enforcement is entitled,
and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also,
to the spirit of the constitutional injunction against unreasonable searches
and seizures. To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given crime by
the party against whom the warrant is intended, then there is no reason why
the applicant should not comply with the requirements of the fundamental
law. Upon the other hand, if he has no such competent evidence, then it
is not possible for the Judge to find that there is probable cause, and, hence,
no justification for the issuance of the warrant. The only possible explanation
(not justification) for its issuance is the necessity of fishing evidence of the
commission of a crime. But, then, this fishing expedition is indicative of the
absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an
illegal search warrant and/or make unreasonable searches or seizures would
suffice to protect the constitutional guarantee under consideration, overlooks
the fact that violations thereof are, in general, committed By agents of the
party in power, for, certainly, those belonging to the minority could not
possibly abuse a power they do not have. Regardless of the handicap under
which the minority usually but, understandably finds itself in
prosecuting agents of the majority, one must not lose sight of the fact that the
psychological and moral effect of the possibility 21 of securing their
6
conviction, is watered down by the pardoning power of the party for whose
benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this
Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of
Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of
herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and
Karl Beck, respectively, and that, furthermore, the records, papers and other
effects seized in the offices of the corporations above referred to include
personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a
standing under the latest rulings of the federal courts of federal courts of the
United States. 22
of herein petitioners is hereby made permanent; that the writs prayed for are
granted, insofar as the documents, papers and other effects so seized in the
aforementioned residences are concerned; that the aforementioned motion
for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as
regards the documents, papers and other effects seized in the twenty-nine
(29) places, offices and other premises enumerated in the same Resolution,
without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.

We note, however, that petitioners' theory, regarding their alleged

possession of and control over the aforementioned records, papers and
effects, and the alleged "personal" nature thereof, has Been Advanced, not in
their petition or amended petition herein, but in the Motion for
Reconsideration and Amendment of the Resolution of June 29, 1962. In
other words, said theory would appear to be readjustment of that followed in
said petitions, to suit the approach intimated in the Resolution sought to be
reconsidered and amended. Then, too, some of the affidavits or copies of
alleged affidavits attached to said motion for reconsideration, or submitted in
support thereof, contain either inconsistent allegations, or allegations
inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions
said motion for reconsideration, and the contents of the aforementioned
affidavits and other papers submitted in support of said motion, have
sufficiently established the facts or conditions contemplated in the cases
relied upon by the petitioners; to warrant application of the views therein
expressed, should we agree thereto. At any rate, we do not deem it
necessary to express our opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be,
as it is hereby, abandoned; that the warrants for the search of three (3)
residences of herein petitioners, as specified in the Resolution of June 29,
1962, are null and void; that the searches and seizures therein made are
illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences

7
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J.
BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE
CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER,
PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE
GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto
Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with
preliminary mandatory and prohibitory injunction is the validity of two [2]
search warrants issued on December 7, 1982 by respondent Judge Ernani
Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the "Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as
numerous papers, documents, books and other written literature alleged to
be in the possession and control of petitioner Jose Burgos, Jr. publisher-
editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that
respondents, "particularly the Chief Legal Officer, Presidential Security
Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute or
successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v.
Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer
the petition. The plea for preliminary mandatory and prohibitory injunction
was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion
of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing
petitioners' prayer for a writ of preliminary mandatory injunction, manifested
that respondents "will not use the aforementioned articles as evidence in the
aforementioned case until final resolution of the legality of the seizure of the
aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the
quashal of the search warrants before respondent judge. Indeed, petitioners,
before impugning the validity of the warrants before this Court, should have
filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view
of the seriousness and urgency of the constitutional issues raised not to
mention the public interest generated by the search of the "We Forum"
offices, which was televised in Channel 7 and widely publicized in all
metropolitan dailies. The existence of this special circumstance justifies this
Court to exercise its inherent power to suspend its rules. In the words of the
revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v.
Raymundo, 4 "it is always in the power of the court [Supreme Court] to
suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches.
Considerable stress is laid on the fact that while said search warrants were
issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than six [6]
months.
Laches is failure or negligence for an unreasonable and unexplained length
of time to do that which, by exercising due diligence, could or should have
been done earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in
the filing of the petition thus:
8
 Respondents should not find fault, as they now do [p. 1,
Answer, p. 3, Manifestation] with the fact that the Petition
was filed on June 16, 1983, more than half a year after the
petitioners' premises had been raided.
The climate of the times has given petitioners no other
choice. If they had waited this long to bring their case to
court, it was because they tried at first to exhaust other
remedies. The events of the past eleven fill years had taught
them that everything in this country, from release of public
funds to release of detained persons from custody, has
become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion
of persons close to the President, like Fiscal Flaminiano,
sent a letter to President Marcos, through counsel Antonio
Coronet asking the return at least of the printing equipment
and vehicles. And after such a letter had been sent, through
Col. Balbino V. Diego, Chief Intelligence and Legal Officer of
the Presidential Security Command, they were further
encouraged to hope that the latter would yield the desired
results.
After waiting in vain for five [5] months, petitioners finally
decided to come to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in
judgment. On the contrary, the extrajudicial efforts exerted by petitioners
quite evidently negate the presumption that they had abandoned their right to
the possession of the seized property, thereby refuting the charge of laches
against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr.
had used and marked as evidence some of the seized documents in Criminal
Case No. Q- 022872, he is now estopped from challenging the validity of the
search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do
whatever he pleases with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the
search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an
examination under oath or affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional provision as wen as Sec. 4,
Rule 126 of the Rules of Court .6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during
the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two
distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, respectively. Objection is
interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was allegedly keeping and
concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon
City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments
and means of committing the crime of subversion penalized
under P.D. 885 as amended and he is keeping and
concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two
search warrants were applied for and issued because the purpose and intent
were to search two distinct premises. It would be quite absurd and illogical
for respondent judge to have issued two warrants intended for one and the
same place. Besides, the addresses of the places sought to be searched
were specifically set forth in the application, and since it was Col. Abadilla
himself who headed the team which executed the search warrants, the
ambiguity that might have arisen by reason of the typographical error is more
apparent than real. The fact is that the place for which Search Warrant No.
20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon
Avenue, Quezon City, which address appeared in the opening paragraph of
the said warrant. 7 Obviously this is the same place that respondent judge
had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to
be searched with sufficient particularity, it has been held "that the executing
officer's prior knowledge as to the place intended in the warrant is relevant.
9
This would seem to be especially true where the executing officer is the
affiant on whose affidavit the warrant had issued, and when he knows that
the judge who issued the warrant intended the building described in the
affidavit, And it has also been said that the executing officer may look to the
affidavit in the official court file to resolve an ambiguity in the warrant as to
the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles b
belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal
properties that may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant
may be issued for the search and seizure of the following
personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other
proceeds or fruits of the offense; and
[c] Property used or intended to be used as
the means of committing an offense.
The above rule does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It may or
may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property.
Necessarily, stolen property must be owned by one other than the person in
whose possession it may be at the time of the search and seizure.
Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of the
property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were
seized under the disputed warrants. Under Article 415[5] of the Civil Code of
the Philippines, "machinery, receptables, instruments or implements intended
by the owner of the tenement for an industry or works which may be carried
on in a building or on a piece of land and which tend directly to meet the
needs of the said industry or works" are considered immovable property.
In Davao Sawmill Co. v. Castillo9 where this legal provision was invoked, this
Court ruled that machinery which is movable by nature becomes immobilized
when placed by the owner of the tenement, property or plant, but not so
when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land
and/or building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon
application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.
Metrocom.10 The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom
Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search
warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents
could not have provided sufficient basis for the finding of a probable cause
upon which a warrant may validly issue in accordance with Section 3, Article
IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be
authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search
is defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the place sought
to be searched. And when the search warrant applied for is directed against
a newspaper publisher or editor in connection with the publication of
subversive materials, as in the case at bar, the application and/or its
supporting affidavits must contain a specification, stating with particularity the
alleged subversive material he has published or is intending to publish. Mere
10
generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing
equipment and other paraphernalia, news publications and other documents
which were used and are all continuously being used as a means of
committing the offense of subversion punishable under Presidential Decree
885, as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a
finding of the existence of probable cause, said allegation cannot serve as
basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the
statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro
U. Tango, "that the evidence gathered and collated by our unit clearly shows
that the premises above- mentioned and the articles and things above-
described were used and are continuously being used for subversive
activities in conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for Free
Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires
no less than personal knowledge by the complainant or his witnesses of the
facts upon which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath
required must refer to the truth of the facts within the personal knowledge of
the petitioner or his witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making the affidavit and seeking
the issuance of the warrant, of the existence of probable cause." As
couched, the quoted averment in said joint affidavit filed before respondent
judge hardly meets the test of sufficiency established by this Court in Alvarez
case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in
this wise:
1] All printing equipment, paraphernalia, paper, ink, photo
(equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders,
dictaphone and the like used and/or connected in the
printing of the "WE FORUM" newspaper and any and all
documents communication, letters and facsimile of prints
related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and
other publication to promote the objectives and piurposes of
the subversive organization known as Movement for Free
Philippines, Light-a-Fire Movement and April 6 Movement;
and,
3] Motor vehicles used in the distribution/circulation of the
"WE FORUM" and other subversive materials and
propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate
No. NKA 892;
2] DATSUN pick-up colored white with Plate
No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with
Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate
No. NGV 427 with marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the
search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the Communist
Party in Texas," was declared void by the U.S. Supreme Court for being too
general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and
that portion of a search warrant which authorized the seizure of any
"paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the crime of conspiracy]" was held
to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be
characterized differently.
11
In the Stanford case, the U.S. Supreme Courts calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were given
roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein
to such historical episode would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state
security.
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, 18 and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on
the ground that they have been sequestered under Section 8 of Presidential
Decree No. 885, as amended, which authorizes "the sequestration of the
property of any person, natural or artificial, engaged in subversive activities
against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary
of National Defense." It is doubtful however, if sequestration could validly be
effected in view of the absence of any implementing rules and regulations
promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was
reported that no less than President Marcos himself denied the request of the
military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus:
The President denied a request flied by government
prosecutors for sequestration of the WE FORUM newspaper
and its printing presses, according to Information Minister
Gregorio S. Cendana.
On the basis of court orders, government agents went to the
We Forum offices in Quezon City and took a detailed
inventory of the equipment and all materials in the premises.
Cendaa said that because of the denial the newspaper and
its equipment remain at the disposal of the owners, subject
to the discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is
further confirmed by the reply of then Foreign Minister Carlos P. Romulo to
the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall
addressed to President Marcos, expressing alarm over the "WE FORUM "
case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the
recommendation of our authorities to close the paper's
printing facilities and confiscate the equipment and materials
it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-
82[b] issued by respondent judge on December 7, 1982 are hereby declared
null and void and are accordingly set aside. The prayer for a writ of
mandatory injunction for the return of the seized articles is hereby granted
and all articles seized thereunder are hereby ordered released to petitioners.
No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,
Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.
ROWLAND KIM SANTOS, G.R. No. 165122
Petitioner,
Present:
QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
12
PRYCE GASES, INC., VELASCO, JR., JJ.
Respondent. exclusively manufactured for respondents use. The LPG cylinders are also
embossed with the Pryce marking and logo.[2]
Promulgated:

November 23, 2007 In the beginning of the year 2002, respondent noticed the decline in

x---------------------------------------------------------------------------------x the return of its LPG cylinders for refilling. Respondents employees
suspected that the LPG cylinders had been removed from market circulation
DECISION
and refilled by respondents competitors, one of whom was Sun Gas, Inc.
TINGA, J.:
Petitioner Rowland Kim Santos is the manager of Sun Gas, Inc.[3]

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Arnold T. Figueroa, respondents sales manager for Panay, sought

Civil Procedure assailing the Decision dated 16 January 2004[1] and the assistance of the Criminal Investigation and Detection Group (CIDG) to

Resolution dated 26 July 2004of the Court of Appeals in CA-G.R. SP No. recover the LPG cylinders allegedly in the possession of Sun Gas, Inc.

74563. The decision reversed the twin orders of the Regional Trial Court Acting on Figueroas complaint, CIDG operatives conducted surveillance on

(RTC) of Iloilo City, Branch 29, quashing the search warrant it issued and the warehouse of Sun Gas, Inc. located at 130 Timawa Avenue, Molo, Iloilo.

ordering the return of liquefied petroleum gas (LPG) cylinders seized from The CIDG operatives requested the Bureau of Fire Protection (BFP) to

petitioner, whereas the resolution denied petitioners motion for conduct a routine fire inspection at Sun Gas, Inc.s warehouse with some of

reconsideration of the said decision. the CIDG operatives led by PO2 Vicente D. Demandara, Jr. posing as BFP
inspectors. The CIDG operatives entered the warehouse and were able to
As culled from the records, the following antecedents appear:
take photographs of the LPG cylinders.

Respondent Pryce Gases, Inc. is a domestic corporation engaged in the

On 4 June 2002, PO2 Vicente D. Demandara, Jr. applied before the
manufacture of oxygen, acetylene and other industrial gases as well as in the
RTC of Iloilo City for a warrant to search the premises described as No.
distribution of LPG products in the Visayas and Mindanao regions. Its branch
130, Timawa Avenue, Molo, Iloilo. The application alleged that petitioner was
in Iloilo City has been selling LPG products directly or through various
in possession of Pryce LPG tanks, the Pryce logos of some of which were
dealers to hospitals, restaurants and other business establishments. The
scraped off and replaced with a Sun Gas, Inc. marking, and other materials
LPG products are contained in 11-kg, 22-kg or 50-kg steel cylinders that are
used in tampering Pryce gas tanks.[4] It also averred that petitioner was
illegally distributing Pryce LPG products without the consent of respondent,

13

in violation of Section 2 of Republic Act (R.A.) No. 623,[5] as amended by
R.A. No. 5700.[6]
After conducting searching questions on witnesses PO1 Aldrin Ligan, a CIDG
operative, and Richard Oliveros, an employee of Pryce Gases, Inc., Hon.
Rene B. Honrado, the presiding judge of Branch 29, issued the
corresponding search warrant. The search warrant authorized the seizure of
the following items:
1. Assorted sizes of PRYCE LPG GAS TANKS
CYLINDERS in different kilograms.
2. Suspected LPG gas tanks cylinders with
printed/mark SUN GAS INC., trademark and embossed
Pryce Gas Trademark scrapped off.
3. Other materials used in tampering the PRYCE
LPG GAS TANKS cylinders.[7]
On the same day, CIDG agents served the search warrant on
petitioner and were able to recover the following items:
- Five Hundred Forty Four (544) empty 11 Kgs[.]
PRYCE LPG tank cylinders;
- Two (2) filled 11 Kgs. PRYCE LPG tank cylinders
with seal;
- Seven (7) filled 11 Kgs. Pryce LPG tank cylinders
without seal;
- Forty Four (44) empty 22 Kgs. PRYCE LPG tank
cylinders;
- Ten (10) empty 50 Kgs. Pryce LPG tank cylinders;
and
- One (1) filled 6 Kgs. PRYCE LPG tank cylinder
without seal.[8]
On 7 June 2002, petitioner filed a Motion to Quash[9] the search warrant on
the grounds of lack of probable cause as well as deception and fraud
employed in obtaining evidence in support of the application therefor, in
violation of Article III, Section 2 of the Constitution and Rule 126, Sections 4
and 5 of the Rules of Court. Respondent opposed petitioners Motion to
Quash.
On the same day, the CIDG filed a criminal complaint before the Office of the
City Prosecutor of Iloilo against petitioner, charging the latter with violation of
R.A. No. 623, as amended.
After hearing, the trial court issued an Order[10] dated 16 July 2002,
granting petitioners Motion to Quash. The trial court upheld the validity of the
surveillance conducted on petitioners warehouse in order to obtain evidence
to support the application for a search warrant and declared that based on
the evidence gathered in support of the application for search warrant, the
CIDG was able to establish probable cause that petitioner was tampering
with Pryce LPG cylinders and making them appear to be those of Sun Gas,
Inc. This conclusion, notwithstanding, the trial court made a turnaround,
stating that the probable cause as found by it at the time of the application for
14
search warrant fell short of the requisite probable cause necessary to sustain seized items to respondent. Petitioner sought reconsideration but was denied
the validity of the search warrant. in an order dated 16 July 2004.[16]

The dispositive portion of the Order reads:

WHEREFORE, the Motion To Quash is hereby GRANTED.
PO2 Vicente Dernadara, Jr. and the Criminal Investigation
and Detection Group, Region VI are hereby directed to
return the Pryce LPG cylinders enumerated in Return of
Search Warrant Seized by virtue of the invalid Search
Warrant No. 02-16 to the Rowland Kim Santos immediately
upon receipt of this Order.
SO ORDERED.[11]
Respondent filed a manifestation and motion to hold in abeyance the release
of the seized items. It also filed a motion for reconsideration [12] of the 16 July
2002 Order but was denied in an Order[13] dated 9 August 2002.
Respondent elevated the matter to the Court of Appeals via a special
civil action for certiorari,[14] arguing that the trial court committed grave abuse
Hence, the instant petition for review on certiorari, raising the following
issues:
I.
WHETHER PETITIONER ROWLAND KIM SANTOS HAS
THE LEGAL PERSONALITY TO ASSAIL THE SEARCH
WARRANT FOR HE WAS NAMED RESPONDENT
THEREIN AND WAS SUBSEQUENTLY CHARGED FOR
VIOLATION OF R.A. [No.] 623, AS AMENDED BY R.A.
5700, BEFORE THE OFFICE OF THE CITY PROSECUTOR
OF ILOILO IN I.S. NO. 2015-2000 ENTITLED PNP-CIDG V.
ROWLAND KIM SANTOS.
II.
WHETHER THE PETITIONER SHOULD RETURN THE
SUBJECT PRYCE LPG CYLINDER TO RESPONDENT
DESPITE UNCONTROVERTED EVIDENCE THAT THE
SAME WERE SOLD BY THE LATTER TO ITS
CUSTOMERS.

of discretion in quashing the search warrant. The petition essentially III.

questioned the quashal of the search warrant despite a prior finding of WHETHER THE PETITION FOR CERTIORARI FILED BY
probable cause and the failure of petitioner to prove that he bought the RESPONDENT PRYCE WITH THE COURT OF APPEALS
SHOULD BE DISMISSED FOR NOT BEING THE PROPER
seized items from respondent. It also challenged petitioners personality to file REMEDY TO ASSAIL THE ORDERS OF THE TRIAL
COURT.[17]
the motion to quash.

On 16 January 2004, the Court of Appeals rendered the assailed Briefly, the petition raises the following issues: (1) whether or not
Decision,[15] which set aside the two orders of the trial court dated 16 January petitioner has authority to seek the quashal of the search warrant; (2) who
2002 and 9 August 2002. The appellate court also ordered the return of the has proper custody of the seized items; and (3) whether or not respondent

15
correctly availed of the special civil action for certiorari to assail the quashal
of the search warrant.
As to the first issue, the Court of Appeals ruled against petitioner and
reversed the trial courts quashal of the search warrant solely on the ground
that petitioner, being a mere manager of Sun Gas, Inc., failed to show his
authority to act on behalf of the corporation and, therefore, had no legal
personality to question the validity of the search warrant. Thus, it concluded
that the trial court committed grave abuse of discretion in entertaining and
subsequently granting petitioners motion to quash.
premises and articles over which petitioner had control and supervision.
Petitioner was directly prejudiced or injured by the seizure of the gas tanks
because petitioner was directly accountable as manager to the purported
owner of the seized items. It is noteworthy that at the time of the application
for search warrant, respondent recognized the authority of petitioner as
manager of Sun Gas, Inc. when the application averred that petitioner had in
his possession and control the items subject of the alleged criminal offense.
Respondent should not be allowed thereafter to question petitioners authority
to assail the search warrant. Moreover, the search warrant was directed
against petitioner for allegedly using Pryce LPG cylinders without the
authority of respondent.

The Court of Appeals misapplied the ruling in Stonehill, et al.

Petitioner takes exception to the Court of Appeals conclusion,
v. Diokno, et al.[19] that only a corporation has the exclusive right to question
contending that petitioner may assail the questioned search warrant because
the seizure of items belonging to the corporation on the ground that the latter
he was named as respondent in the application for search warrant and in the
has a personality distinct from the officers and shareholders of the
criminal complaint subsequently filed before the Office of the City Prosecutor
corporation. Assuming arguendo that Sun Gas, Inc. was the owner of the
of Iloilo.
seized items, petitioner, as the manager of Sun Gas, Inc., had the authority
to question the seizure of the items belonging to Sun Gas, Inc. Unlike natural
Well-settled is the rule that the legality of a seizure can be contested
persons, corporations may perform physical actions only through properly
only by the party whose rights have been impaired thereby, and the objection
delegated individuals; namely, their officers and/or agents. [20] As stated
to an unlawful search and seizure is purely personal and cannot be availed of
above, respondent cannot belatedly question petitioners authority to act on
by third parties.[18]
behalf of Sun Gas, Inc. when it had already acknowledged petitioners
Petitioner is the real party-in-interest to seek the quashal of the authority at the time of the application of the search warrant.
search warrant for the obvious reason that the search warrant, in which
petitioner was solely named as respondent, was directed against the

16
 The resolution of the second issue as to who has legal custody of the the latter may produce; and (4) the warrant issued must particularly describe
seized items depends upon the determination of the existence of probable the place to be searched and persons or things to be seized.[22]
cause in the issuance of the search warrant. In the questioned Order dated
The instant controversy pertains only to the existence of probable
16 July 2002, the trial court reversed its earlier finding of probable cause on
cause, which the trial court found wanting after evaluating the items seized
the ground that the failure of the CIDG agents to seize other materials and
from petitioner. Petitioner does not dispute that the items seized from him,
tools used by petitioner to tamper with the LPG cylinders invalidated the
consisting of Pryce LPG tanks of assorted weights, were particularly
search warrant because there would be nothing to show or prove that
enumerated in the search warrant. Petitioner is neither assailing the manner
accused had committed the offense.[21] The trial court elaborated that the
by which the trial court conducted the determination of probable cause.
mere possession of Pryce LPG cylinders seized from petitioner was not
illegal per se, absent any showing that petitioner illegally used the same
without the consent of respondent. Moreover, the trial court concluded that The trial court retracted its earlier finding of probable cause because

respondent had already parted ownership of its gas cylinders upon their sale the seized items were incomplete or insufficient to charge petitioner with a

to customers who paid not only for the contents but also for the value of the criminal offense, thus, negating its previous determination of probable cause.

gas cylinders.
We disagree. In quashing the search warrant, it would appear that
Although respondent advanced several arguments rebutting the
the trial court had raised the standard of probable cause to whether there
aforementioned conclusions in its petition for certiorari, the Court of Appeals
was sufficient cause to hold petitioner for trial. In so doing, the trial court
sidestepped those arguments and reversed the trial courts quashal of the
committed grave abuse of discretion.
search warrant only on the ground of the lack of legal personality on the part
of petitioner to assail the search warrant.
Probable cause for a search warrant is defined as such facts and

Supporting jurisprudence thus outlined the following requisites for a circumstances which would lead a reasonably discrete and prudent man to

search warrants validity, the absence of even one will cause its downright believe that an offense has been committed and that the objects

nullification: (1) it must be issued upon probable cause; (2) the probable
cause must be determined by the judge himself and not by the applicant or
any other person; (3) in the determination of probable cause, the judge must sought in connection with the offense are in the place sought to be

examine, under oath or affirmation, the complainant and such witnesses as searched.[23] A finding of probable cause needs only to rest on evidence
17

showing that, more likely than not, a crime has been committed and that it
was committed by the accused. Probable cause demands more than bare
suspicion; it requires less than evidence which would
conviction.[24] The existence depends to a large degree upon the finding or
opinion of the judge conducting the examination. However, the findings of the
judge should not disregard the facts before him nor run counter to the clear
dictates of reason.[25]
The application for a search warrant was based on the alleged
violation by petitioner of certain provisions of R.A. No. 623, as amended by
R.A. No. 5700. Respondent claimed that petitioner was illegally using or
distributing its LPG cylinders without its authority. The amended provisions of
R.A. No. 623 state:
Sec. 2. It shall be unlawful for any person, without
the written consent of the manufacturer, bottler, or seller,
who has successfully registered the marks of ownership in
accordance with the provisions of the next preceding
section, to fill such bottles, boxes, kegs, barrels, steel
cylinders, tanks, flasks, accumulators, or other similar
containers so marked or stamped, for the purpose of sale,
or to sell, dispose of, buy or traffic in, or wantonly destroy the
same, whether filled or not to use the same for drinking
vessels or glasses or drain pipes, foundation pipes, for any
other purpose than that registered by the manufacturer,
bottler or seller. Any violation of this section shall be
punished by a fine of not more than one thousand pesos or
imprisonment of not more than one year or both.
Sec. 3. The use by any person other than the
registered manufacturer, bottler or seller, without written
permission of the latter of any such bottler, cask, barrel, keg,
box, steel cylinders, tanks, flasks, accumulators, or other
similar containers, or the possession thereof without written
permission of the manufacturer, by any junk dealer or dealer
in casks, barrels, kegs, boxes, steel cylinders, tanks, flasks,
justify accumulators, or other similar containers, the same being
duly marked or stamped and registered as herein
provided, shall give rise to a prima facie presumption that
such use or possession is unlawful.
Section 3 of R.A. No. 623, as amended, clearly creates a prima
facie presumption of the unlawful use of gas cylinders based on two separate
acts, namely, the unauthorized use of the cylinder by a person other than the
registered manufacturer and the possession thereof by a dealer. The trial
courts conclusion that the mere possession by petitioner of the seized gas
cylinders was not punishable under Section 2 of R.A. No. 623, as amended,
is not correct. The trial court failed to consider that petitioner was not only in
possession of the gas cylinders but was also distributing the same, as
alleged by PO1 Aldrin Ligan in his answer to the searching questions asked
by the trial court.[26]
As pointed out by respondent in its petition for certiorari, the failure of
the CIDG operatives to confiscate articles and materials used in tampering
with the Pryce marking and logo did not negate the existence of probable
cause. The confluence of these circumstances, namely: the fact of
possession and distribution of the gas cylinders and the claim by respondent
that it did not authorize petitioner to distribute the same was a sufficient
indication that petitioner is probably guilty of the illegal use of the gas
cylinders punishable under Section 2 of R.A. No. 623, as amended.
18
 More importantly, at the hearing of the application for the search
warrant, various testimonies and documentary evidence based on the
surveillance by the CIDG operatives were presented. After hearing the
testimonies and examining the documentary evidence, the trial court was
convinced that there were good and sufficient reasons for the issuance of the
same. Thus, it issued the search warrant. The trial courts unwarranted
turnabout was brought about by its notion that the seized items were not
sufficient to indict petitioner for the crime charged.
In La Chemise Lacoste, S.A. v. Fernandez,[27] it was held:
True, the lower court should be given the opportunity
to correct its errors, if there be any, but the rectification must,
as earlier stated be based on sound and valid grounds. In
this case, there was no compelling justification for the about
face.
xxxx
Moreover, an application for a search warrant is
heard ex parte. It is neither a trial nor a part of the trial.
Action on these applications must be expedited for time is of
the essence. Great reliance has to be accorded by the judge
to the testimonies under oath of the complainant and the
witnesses.[28]
A word of caution, though. In affirming the sufficiency of probable
cause in the issuance of the search warrant, this Court is not preempting the
subsequent determination by the investigating prosecutor if there is cause to
hold the respondent for trial. After all, the investigating prosecutor is the
person tasked to evaluate all the evidence submitted by both parties.
The Court of Appeals, however, erred in ordering the return of the
seized items to respondent. Section 4, Rule 126[29] of the Revised Criminal
Procedure expressly mandates the delivery of the seized items to the judge
who issued the search warrant to be kept in custodia legis in anticipation of
the criminal proceedings against petitioner. The delivery of the items seized
to the court which issued the warrant together with a true and accurate
inventory thereof, duly verified under oath, is mandatory in order to preclude
the substitution of said items by interested parties. The judge who issued the
search warrant is mandated to ensure compliance with the requirements for
(1) the issuance of a detailed receipt for the property received, (2) delivery of
the seized property to the court, together with (3) a verified true inventory of
the items seized. Any violation of the foregoing constitutes contempt of
court.[30]
The CIDG operatives properly delivered the seized items to the
custody of the trial court which issued the search warrant. Thereafter, the trial
court ordered their return to petitioner after quashing the search warrant.
When the Court of Appeals reversed the trial courts quashal of the search
warrant, it erred in ordering the return of the seized items to respondent
because it would seem that respondent
instituted the special civil action for certiorari in order to regain
possession of its LPG tanks. This cannot be countenanced. The seized items
should remain in the custody of the trial court which issued the search
warrant pending the institution of criminal action against petitioner.
Last, the special civil action for certiorari was the proper recourse
availed by respondent in assailing the quashal of the search warrant. As
19
aforementioned, the trial courts unwarranted reversal of its earlier finding of
probable cause constituted grave abuse of discretion. In any case, the Court
had allowed even direct recourse to this Court [31] or to the Court of
Appeals[32] via a special civil action for certiorari from a trial courts quashal of
a search warrant.

WHEREFORE, the instant petition is DENIED and the Decision of the Court
of Appeals in CA-G.R. SP No. 74563 is AFFIRMED with the MODIFICATION
that the seized items should be kept in custodia legis. Costs against
petitioner.

SO ORDERED.

20
G.R. No. 176830 February 11, 2014 VICENTE P. LADLAD, Petitioner,
vs.
SATURNINO C. OCAMPO, Petitioner, HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of
vs. the Regional Trial Court of Manila, Branch 32, and the PEOPLE OF THE
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the PHILIPPINES, Respondents.
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN,
in. his capacity as Approving Prosecutor and Officer-in-Charge, DECISION
ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL
M. GONZALEZ, in his capacity as Secretary of the Department of SERENO, CJ.:
Justice, Respondents.
On 26 August 2006, a mass grave was discovered by elements of the 43rd
x-----------------------x Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay
Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains of
G.R. No. 185587 individuals believed to be victims of "Operation Venereal Disease" (Operation
VD) launched by members of the Communist Party of the Philippines/New
RANDALL B. ECHANIS, Petitioner, Peoples Army/National Democratic Front of the Philippines
vs. (CPP/NPA/NDFP) to purge their ranks of suspected military informers.
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of
the Regional Trial Court of Manila, Branch 32, HON. EPHREM S. While the doctrine of hierarchy of courts normally precludes a direct
ABANDO, in his capacity as Presiding Judge of the Regional Trial Court invocation of this Courts jurisdiction, we take cognizance of these petitions
of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as considering that petitioners have chosen to take recourse directly before us
Approving Prosecutor and Officer-in-Charge, ROSULO U. VIVERO, in and that the cases are of significant national interest.
his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents. Petitioners have raised several issues, but most are too insubstantial to
require consideration. Accordingly, in the exercise of sound judicial discretion
x-----------------------x and economy, this Court will pass primarily upon the following:

G.R. No. 185636
RAFAEL G. BAYLOSIS, Petitioner,
vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of
the Regional Trial Court of Manila, Branch 32, HON. EPHREM S.
ABANDO, in his capacity as Presiding Judge of the Regional Trial Court
of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as
Approving Prosecutor and Officer-in-Charge, ROSULO U. VIVERO, in
his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents.
x-----------------------x
G.R. No. 190005
1. Whether petitioners were denied due process during preliminary
investigation and in the issuance of the warrants of arrest.
2. Whether the murder charges against petitioners should be
dismissed under the political offense doctrine.
ANTECEDENT FACTS
These are petitions for certiorari and prohibition2 seeking the annulment of
the orders and resolutions of public respondents with regard to the indictment
and issuance of warrants of arrest against petitioners for the crime of multiple
murder.
Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the
Philippine National Police (PNP) Regional Office 8 and Staff Judge Advocate
21
Captain Allan Tiu (Army Captain Tiu) of the 8th Infantry Division of the
Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte
through Assistant Provincial Prosecutor Rosulo U. Vivero (Prosecutor
Vivero).3 The letters requested appropriate legal action on 12 complaint-
affidavits attached therewith accusing 71 named members of the Communist
Party of the Philippines/New Peoples Army/National Democratic Front of the
Philippines (CPP/NPA/NDFP) of murder, including petitioners herein along
with several other unnamed members.
The letters narrated that on 26 August 2006, elements of the 43rd Infantry
Brigade of the Philippine Army discovered a mass grave site of the
CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
Leyte.4Recovered from the grave site were 67 severely deteriorated skeletal
remains believed to be victims of Operation VD.5
The PNP Scene of the Crime Operation (SOCO) Team based in Regional
Office 8 was immediately dispatched to the mass grave site to conduct crime
investigation, and to collect, preserve and analyze the skeletal
remains.6 Also, from 11-17 September 2006, an investigation team
composed of intelligence officers, and medico-legal and DNA experts,
conducted forensic crime analysis and collected from alleged relatives of the
victims DNA samples for matching.7
The Initial Specialist Report8 dated 18 September 2006 issued by the PNP
Crime Laboratory in Camp Crame, Quezon City, was inconclusive with
regard to the identities of the skeletal remains and even the length of time
that they had been buried. The report recommended the conduct of further
tests to confirm the identities of the remains and the time window of death. 9
However, in a Special Report10 dated 2 October 2006, the Case Secretariat
of the Regional and National Inter-Agency Legal Action Group (IALAG) came
up with the names of ten (10) possible victims after comparison and
examination based on testimonies of relatives and witnesses.11
The 12 complaint-affidavits were from relatives of the alleged victims of
Operation VD. All of them swore that their relatives had been abducted or
last seen with members of the CPP/NPA/NDFP and were never seen again.
They also expressed belief that their relatives remains were among those
discovered at the mass grave site.
Also attached to the letters were the affidavits of Zacarias
Piedad,12 Leonardo C. Tanaid, Floro M. Tanaid, Numeriano Beringuel,
Glecerio Roluna and Veronica P. Tabara. They narrated that they were
former members of the CPP/NPA/NDFP.13 According to them, Operation VD
was ordered in 1985 by the CPP/NPA/NDFP Central Committee.14 Allegedly,
petitioners Saturnino C. Ocampo (Ocampo),15 Randall B. Echanis
(Echanis),16 Rafael G. Baylosis (Baylosis),17 and Vicente P. Ladlad
(Ladlad)18 were then members of the Central Committee.
According to these former members, four sub-groups were formed to
implement Operation VD, namely, (1) the Intel Group responsible for
gathering information on suspected military spies and civilians who would not
support the movement; (2) the Arresting Group charged with their arrests; (3)
the Investigation Group which would subject those arrested to questioning;
and (4) the Execution Group or the "cleaners" of those confirmed to be
military spies and civilians who would not support the movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied,
tortured and executed by members of the CPP/NPA/NDF20 pursuant to
Operation VD.21
On the basis of the 12 letters and their attachments, Prosecutor Vivero
issued a subpoena requiring, among others, petitioners to submit their
counter-affidavits and those of their witnesses. 22 Petitioner Ocampo
submitted his counter-affidavit.23 Petitioners Echanis24 and Baylosis25 did not
file counter-affidavits because they were allegedly not served the copy of the
complaint and the attached documents or evidence. Counsel of petitioner
Ladlad made a formal entry of appearance on 8 December 2006 during the
preliminary investigation.26 However, petitioner Ladlad did not file a counter-
affidavit because he was allegedly not served a subpoena.27
In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended
the filing of an Information for 15 counts of multiple murder against 54 named
members of the CPP/NPA/NDFP, including petitioners herein, for the death
of the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras,
4) Teodoro Recones, Jr., 5) Restituto Ejoc, 6) Rolando Vasquez, 7) Junior
Milyapis, 8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11)
Romeo Tayabas, 12) Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin
Prado, and 15) Ereberto Prado.29
Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo
Tanaid, Numeriano Beringuel and Glecerio Roluna be dropped as
respondents and utilized as state witnesses, as their testimonies were vital to
the success of the prosecution.30 The Resolution was silent with regard to
Veronica Tabara.
22
The Information was filed before the Regional Trial Court (RTC) Hilongos,
Leyte, Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S.
Abando (Judge Abando) on 28 February 2007, and docketed as Criminal
Case No. H-1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case
for Clarificatory Hearing dated 5 March 2007 prior to receiving a copy of the
Resolution recommending the filing of the Information.32
On 6 March 2007, Judge Abando issued an Order finding probable cause "in
the commission by all mentioned accused of the crime charged." 33 He
ordered the issuance of warrants of arrest against them with no
recommended bail for their temporary liberty.34
On 16 March 2007, petitioner Ocampo filed before us this special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court and
docketed as G.R. No. 176830 seeking the annulment of the 6 March 2007
Order of Judge Abando and the 16 February 2007 Resolution of Prosecutor
Vivero.35 The petition prayed for the unconditional release of petitioner
Ocampo from PNP custody, as well as the issuance of a temporary
restraining order/ writ of preliminary injunction to restrain the conduct of
further proceedings during the pendency of the petition.36
Petitioner Ocampo argued that a case for rebellion against him and 44 others
(including petitioners Echanis and Baylosis37 and Ladlad38) docketed as
Criminal Case No. 06-944 was then pending before the RTC Makati, Branch
150 (RTC Makati).39 Putting forward the political offense doctrine, petitioner
Ocampo argues that common crimes, such as murder in this case, are
already absorbed by the crime of rebellion when committed as a necessary
means, in connection with and in furtherance of rebellion.40
We required41 the Office of the Solicitor General (OSG) to comment on the
petition and the prayer for the issuance of a temporary restraining order/ writ
of preliminary injunction, and set42 the case for oral arguments on 30 March
2007. The OSG filed its Comment on 27 March 2007.43
The following were the legal issues discussed by the parties during the oral
arguments:
1. Whether the present petition for certiorari and prohibition is the
proper remedy of petitioner Ocampo;
2. Assuming it is the proper remedy, whether he was denied due
process during preliminary investigation and in the issuance of the
warrant of arrest;
3. Whether the murder charges against him are already included in
the rebellion charge against him in the RTC.44
Afterwards, the parties were ordered to submit their memoranda within 10
days.45 On 3 April 2007, the Court ordered the provisional release of
petitioner Ocampo under a 100,000 cash bond.46
Acting on the observation of the Court during the oral arguments that the
single Information filed before the RTC Hilongos, Leyte was defective for
charging 15 counts of murder, the prosecution filed a Motion to Admit
Amended Information and New Informations on 11 April 2007.47 In an Order
dated 27 July 2007, Judge Abando held in abeyance the resolution thereof
and effectively suspended the proceedings during the pendency of G.R. No.
176830 before this Court.48
While the proceedings were suspended, petitioner Echanis was arrested on
28 January 2008 by virtue of the warrant of arrest issued by Judge Abando
on 6 March 2007.49 On 1 February 2008, petitioners Echanis and Baylosis
filed a Motion for Judicial Reinvestigation/ Determination of Probable Cause
with Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/
Suspend Service of Warrant.50
On 30 April 2008, Judge Abando issued an Order denying the
motion.51 Petitioners Echanis and Baylosis filed a Motion for
Reconsideration52 dated 30 May 2008, but before being able to rule thereon,
Judge Abando issued an Order dated 12 June 2008 transmitting the records
of Criminal Case No. H-1581 to the Office of the Clerk of Court, RTC
Manila.53 The Order was issued in compliance with the Resolution dated 23
April 2008 of this Court granting the request of then Secretary of Justice Raul
Gonzales to transfer the venue of the case.
The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by
Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal
Case No. 08-262163.54 Petitioner Echanis was transferred to the PNP
Custodial Center in Camp Crame, Quezon City. On 12 August 2008,
petitioners Echanis and Baylosis filed their Supplemental Arguments to
Motion for Reconsideration.55
In an Order56 dated 27 October 2008, Judge Medina suspended the
proceedings of the case pending the resolution of G.R. No. 176830 by this
Court.
On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion
to Quash and/or Dismiss.57
23
On 23 December 2008, petitioner Echanis filed before us a special civil
action for certiorari and prohibition under Rule 65 of the Rules of Court
seeking the annulment of the 30 April 2008 Order of Judge Abando and the
27 October 2008 Order of Judge Medina.58 The petition, docketed as G.R.
No. 185587, prayed for the unconditional and immediate release of petitioner
Echanis, as well as the issuance of a temporary restraining order/writ of
preliminary injunction to restrain his further incarceration.59
On 5 January 2009, petitioner Baylosis filed before us a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court also seeking
the annulment of the 30 April 2008 Order of Judge Abando and the 27
October 2008 Order of Judge Medina.60 The petition, docketed as G.R. No.
185636, prayed for the issuance of a temporary restraining order/ writ of
preliminary injunction to restrain the implementation of the warrant of arrest
against petitioner Baylosis.61
The Court consolidated G.R. Nos. 185587 and 185636 on 12 January
2009.62
On 3 March 2009, the Court ordered the further consolidation of these two
cases with G.R. No. 176830.63 We required64 the OSG to comment on the
prayer for petitioner Echaniss immediate release, to which the OSG did not
interpose any objection on these conditions: that the temporary release shall
only be for the purpose of his attendance and participation in the formal
peace negotiations between the Government of the Republic of the
Philippines (GRP) and the CPP/NPA/NDFP, set to begin in August 2009; and
that his temporary release shall not exceed six (6) months. 65 The latter
condition was later modified, such that his temporary liberty shall continue for
the duration of his actual participation in the peace negotiations. 66
On 11 August 2009, the Court ordered the provisional release of petitioner
Echanis under a 100,000 cash bond, for the purpose of his participation in
the formal peace negotiations.67
Meanwhile, the Department of Justice (DOJ) filed its Opposition 68 to
petitioner Ladlads motion to quash before the RTC Manila. The trial court
conducted a hearing on the motion on 13 February 2009.69
On 6 May 2009, Judge Medina issued an Order70 denying the motion to
quash. The motion for reconsideration filed by petitioner Ladlad was also
denied on 27 August 2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil action
for certiorari under Rule 65 of the Rules of Court seeking the annulment of
the 6 May 2009 and 27 August 2009 Orders of Judge Medina.72 The petition
was docketed as G.R. No. 190005.
On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with
G.R. Nos. 176830, 185587 and 185636.73 We also required the OSG to file
its comment thereon. The OSG submitted its Comment74 on 7 May 2010.
On 27 July 2010, we likewise required the OSG to file its Comment in G.R.
Nos. 185636 and 185587.75 These Comments were filed by the OSG on 13
December 201076 and on 21 January 2011,77 respectively. Petitioners
Echanis and Baylosis filed their Consolidated Reply78 on 7 June 2011.
On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail. 79 On 21
July 2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post
Bail.80 The OSG interposed no objection to the grant of a 100,000 cash bail
to them considering that they were consultants of the NDFP negotiating
team, which was then holding negotiations with the GRP peace panel for the
signing of a peace accord.81
On 17 January 2012, we granted the motions of petitioners Ladlad and
Baylosis and fixed their bail in the amount of 100,000, subject to the
condition that their temporary release shall be limited to the period of their
actual participation in the peace negotiations.82
Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.
OUR RULING
Petitioners were accorded due
process during preliminary
investigation and in the issuance of
the warrants of arrest.
A. Preliminary Investigation
A preliminary investigation is "not a casual affair."84 It is conducted to protect
the innocent from the embarrassment, expense and anxiety of a public
trial.85 While the right to have a preliminary investigation before trial is
statutory rather than constitutional, it is a substantive right and a component
of due process in the administration of criminal justice.86
24
In the context of a preliminary investigation, the right to due process of law
entails the opportunity to be heard.87 It serves to accord an opportunity for
the presentation of the respondents side with regard to the accusation.
Afterwards, the investigating officer shall decide whether the allegations and
defenses lead to a reasonable belief that a crime has been committed, and
that it was the respondent who committed it. Otherwise, the investigating
officer is bound to dismiss the complaint.
"The essence of due process is reasonable opportunity to be heard and
submit evidence in support of one's defense."88 What is proscribed is lack of
opportunity to be heard.89 Thus, one who has been afforded a chance to
present ones own side of the story cannot claim denial of due process. 90
Petitioners Echanis and Baylosis allege that they did not receive a copy of
the complaint and the attached documents or evidence.91 Petitioner Ladlad
claims that he was not served a subpoena due to the false address indicated
in the 12 undated letters of P C/Insp. Almaden and Army Captain Tiu to
Prosecutor Vivero.92 Furthermore, even though his counsels filed their formal
entry of appearance before the Office of the Prosecutor, petitioner Ladlad
was still not sent a subpoena through his counsels addresses. 93 Thus, they
were deprived of the right to file counter-affidavits.
Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp.
Almaden and Army Captain Tiu, surreptitiously inserted the Supplemental
Affidavit of Zacarias Piedad in the records of the case without furnishing
petitioner Ocampo a copy. 94 The original affidavit of Zacarias Piedad dated
14 September 2006 stated that a meeting presided by petitioner Ocampo
was held in 1984, when the launching of Operation VD was agreed
upon.95Petitioner Ocampo refuted this claim in his Counter-affidavit dated 22
December 2006 stating that he was in military custody from October 1976
until his escape in May 1985.96 Thereafter, the Supplemental Affidavit of
Zacarias Piedad dated 12 January 2007 admitted that he made a mistake in
his original affidavit, and that the meeting actually took place in June
1985.97 Petitioner Ocampo argues that he was denied the opportunity to
reply to the Supplemental Affidavit by not being furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion
for reconsideration or to appeal the Resolution of Prosecutor Vivero, because
the latter deliberately delayed the service of the Resolution by 19 days,
effectively denying petitioner Ocampo his right to due process.98
As to the claim of petitioners Echanis and Baylosis, we quote the pertinent
portion of Prosecutor Viveros Resolution, which states:
In connection with the foregoing and pursuant to the Revised Rules of
Criminal Procedure[,] the respondents were issued and served with
Subpoena at their last known address for them to submit their counter-
affidavits and that of their witnesses.
Majority of the respondents did not submit their counter-affidavits because
they could no longer be found in their last known address, per return of the
subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim,
Maureen Palejaro and Ruben Manatad submitted their Counter-Affidavits.
However, Vicente Ladlad and Jasmin Jerusalem failed to submit the required
Counter Affidavits in spite entry of appearance by their respective counsels.99
Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to
resolve the complaint based on the evidence before him if a respondent
could not be subpoenaed. As long as efforts to reach a respondent were
made, and he was given an opportunity to present countervailing evidence,
the preliminary investigation remains valid.100The rule was put in place in
order to foil underhanded attempts of a respondent to delay the prosecution
of offenses.101
In this case, the Resolution stated that efforts were undertaken to serve
subpoenas on the named respondents at their last known addresses. This is
sufficient for due process. It was only because a majority of them could no
longer be found at their last known addresses that they were not served
copies of the complaint and the attached documents or evidence.
Petitioner Ladlad claims that his subpoena was sent to the nonexistent
address "53 Sct. Rallos St., QC,"102 which had never been his address at any
time.103 In connection with this claim, we take note of the fact that the
subpoena to Fides Lim, petitioner Ladlads wife,104 was sent to the same
address, and that she was among those mentioned in the Resolution as
having timely submitted their counter-affidavits.
Despite supposedly never receiving a subpoena, petitioner Ladlads counsel
filed a formal entry of appearance on 8 December 2006.105 Prosecutor Vivero
had a reason to believe that petitioner Ladlad had received the subpoena
and accordingly instructed his counsel to prepare his defense.
Petitioner Ladlad, through his counsel, had every opportunity to secure
copies of the complaint after his counsels formal entry of appearance and,
thereafter, to participate fully in the preliminary investigation. Instead, he
refused to participate.
25
We have previously cautioned that "litigants represented by counsel should
not expect that all they need to do is sit back, relax and await the outcome of
their case."106 Having opted to remain passive during the preliminary
investigation, petitioner Ladlad and his counsel cannot now claim a denial of
due process, since their failure to file a counter-affidavit was of their own
doing.
Neither do we find any merit in petitioner Ocampos allegation of collusion to
surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in the
records. There was nothing surreptitious about the Supplemental Affidavit
since it clearly alludes to an earlier affidavit and admits the mistake
committed regarding the date of the alleged meeting. The date of the
execution of the Supplemental Affidavit was also clearly stated. Thus, it was
clear that it was executed after petitioner Ocampo had submitted his counter-
affidavit. Should the case go to trial, that will provide petitioner Ocampo with
the opportunity to question the execution of Zacarias Piedads Supplemental
Affidavit.
Neither can we uphold petitioner Ocampos contention that he was denied
the right to be heard. For him to claim that he was denied due process by not
being furnished a copy of the Supplemental Affidavit of Zacarias Piedad
would imply that the entire case of the prosecution rested on the
Supplemental Affidavit. The OSG has asserted that the indictment of
petitioner Ocampo was based on the collective affidavits of several other
witnesses107 attesting to the allegation that he was a member of the
CPP/NPA/NDFP Central Committee, which had ordered the launch of
Operation VD.
As to his claim that he was denied the right to file a motion for
reconsideration or to appeal the Resolution of Prosecutor Vivero due to the
19-day delay in the service of the Resolution, it must be pointed out that the
period for filing a motion for reconsideration or an appeal to the Secretary of
Justice is reckoned from the date of receipt of the resolution of the
prosecutor, not from the date of the resolution. This is clear from Section 3 of
the 2000 National Prosecution Service Rule on Appeal:
Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15) days
from receipt of the resolution, or of the denial of the motion for
reconsideration/ reinvestigation if one has been filed within fifteen (15) days
from receipt of the assailed resolution. Only one motion for reconsideration
shall be allowed. (Emphasis supplied)
Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero
on 12 March 2007,108 the former had until 27 March 2007 within which to file
either a motion for reconsideration before the latter or an appeal before the
Secretary of Justice. Instead, petitioner Ocampo chose to file the instant
petition for certiorari directly before this Court on 16 March 2007.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the Constitution provides that "no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce."
Petitioner Ocampo alleges that Judge Abando did not comply with the
requirements of the Constitution in finding the existence of probable cause
for the issuance of warrants of arrest against petitioners.109
Probable cause for the issuance of a warrant of arrest has been defined as
"such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person
sought to be arrested."110 Although the Constitution provides that probable
cause shall be determined by the judge after an examination under oath or
an affirmation of the complainant and the witnesses, we have ruled that a
hearing is not necessary for the determination thereof. 111 In fact, the judges
personal examination of the complainant and the witnesses is not mandatory
and indispensable for determining the aptness of issuing a warrant of
arrest.112
It is enough that the judge personally evaluates the prosecutors report and
supporting documents showing the existence of probable cause for the
indictment and, on the basis thereof, issue a warrant of arrest; or if, on the
basis of his evaluation, he finds no probable cause, to disregard the
prosecutor's resolution and require the submission of additional affidavits of
witnesses to aid him in determining its existence.113
Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly
examined the records submitted by Prosecutor Vivero, the judge would have
inevitably dismissed the charge against them.114 Additionally, petitioner
Ocampo alleges that Judge Abando did not point out facts and evidence in
the record that were used as bases for his finding of probable cause to issue
a warrant of arrest.115
26
The determination of probable cause for the issuance of warrants of arrest petition for certiorari,120 such as the petitions filed in the instant consolidated
against petitioners is addressed to the sound discretion of Judge Abando as cases.
the trial judge.116 Further elucidating on the wide latitude given to trial judges
in the issuance of warrants of arrest, this Court stated in Sarigumba v. The political offense doctrine is not a
Sandiganbayan117 as follows: ground to dismiss the charge against
petitioners prior to a determination
x x x. The trial court's exercise of its judicial discretion should not, as a by the trial court that the murders
general rule, be interfered with in the absence of grave abuse of discretion. were committed in furtherance of
Indeed, certiorari will not lie to cure errors in the trial court's appreciation of rebellion.
the evidence of the parties, the conclusion of facts it reached based on the
said findings, as well as the conclusions of law. x x x. Under the political offense doctrine, "common crimes, perpetrated in
furtherance of a political offense, are divested of their character as "common"
Whether or not there is probable cause for the issuance of warrants for the offenses and assume the political complexion of the main crime of which they
arrest of the accused is a question of fact based on the allegations in the are mere ingredients, and, consequently, cannot be punished separately
Informations, the Resolution of the Investigating Prosecutor, including other from the principal offense, or complexed with the same, to justify the
documents and/or evidence appended to the Information. imposition of a graver penalty."121

Here, the allegations of petitioners point to factual matters indicated in the
affidavits of the complainants and witnesses as bases for the contention that
there was no probable cause for petitioners indictment for multiple murder or
for the issuance of warrants for their arrest. As stated above, the trial judges
appreciation of the evidence and conclusion of facts based thereon are not
interfered with in the absence of grave abuse of discretion. Again, "he
sufficiently complies with the requirement of personal determination if he
reviews the [I]nformation and the documents attached thereto, and on the
basis thereof forms a belief that the accused is probably guilty of the crime
with which he is being charged."118
Judge Abandos review of the Information and the supporting documents is
shown by the following portion of the judges 6 March 2007 Order:
On the evaluation of the Resolution and its Information as submitted and filed
by the Provincial Prosecution of Leyte Province supported by the following
documents: Affidavits of Complainants, Sworn Statements of Witnesses and
other pertinent documents issued by the Regional Crime Laboratory Office,
PNP, Region VIII and Camp Crame, Quezon City, pictures of the grave site
and skeletal remains, this court has the findings [sic] of probable cause in the
commission by all mentioned accused of the crime charged.119
At bottom, issues involving the finding of probable cause for an indictment
and issuance of a warrant of arrest, as petitioners are doubtless aware, are
primarily questions of fact that are normally not within the purview of a
Any ordinary act assumes a different nature by being absorbed in the crime
of rebellion.122 Thus, when a killing is committed in furtherance of rebellion,
the killing is not homicide or murder. Rather, the killing assumes the political
complexion of rebellion as its mere ingredient and must be prosecuted and
punished as rebellion alone.
However, this is not to say that public prosecutors are obliged to consistently
charge respondents with simple rebellion instead of common crimes. No one
disputes the well-entrenched principle in criminal procedure that the
institution of criminal charges, including whom and what to charge, is
addressed to the sound discretion of the public prosecutor.123
But when the political offense doctrine is asserted as a defense in the trial
court, it becomes crucial for the court to determine whether the act of killing
was done in furtherance of a political end, and for the political motive of the
act to be conclusively demonstrated.124
Petitioners aver that the records show that the alleged murders were
committed in furtherance of the CPP/NPA/NDFP rebellion, and that the
political motivation behind the alleged murders can be clearly seen from the
charge against the alleged top leaders of the CPP/NPA/NDFP as co-
conspirators.
We had already ruled that the burden of demonstrating political motivation
must be discharged by the defense, since motive is a state of mind which
only the accused knows.125 The proof showing political motivation is adduced
27
during trial where the accused is assured an opportunity to present evidence
supporting his defense. It is not for this Court to determine this factual matter
in the instant petitions.
As held in the case of Office of the Provincial Prosecutor of Zamboanga Del
Norte v. CA,126 if during trial, petitioners are able to show that the alleged
murders were indeed committed in furtherance of rebellion, Section 14, Rule
110 of the Rules of Court provides the remedy, to wit:
SECTION 14. Amendment or substitution. A complaint or information may
be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it can be
done without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice to
the offended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties,
especially the offended party. (n)
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (Emphasis supplied)
Thus, if it is shown that the proper charge against petitioners should have
been simple rebellion, the trial court shall dismiss the murder charges upon
the filing of the Information for simple rebellion, as long as petitioners would
not be placed in double jeopardy.
Section 7, Rule 117 of the Rules of Court, states:
SEC. 7. Former conviction or acquittal; double jeopardy. When an
accused has been convicted or acquitted, or the case against him dismissed
or otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.
Based on the above provision, double jeopardy only applies when: (1) a first
jeopardy attached; (2) it has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or
convicted, or the case has been dismissed or otherwise terminated without
his express consent, by a competent court in a valid indictment for which the
accused has entered a valid plea during arraignment.128
To recall, on 12 May 2006, an Information for the crime of rebellion, as
defined and penalized under Article 134 in relation to Article 135 of the
Revised Penal Code, docketed as Criminal Case No. 06-944 was filed before
the RTC Makati against petitioners and several others. 129
However, petitioners were never arraigned in Criminal Case No. 06-
944.1awp++i1 Even before the indictment for rebellion was filed before the
RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a
petition before this Court to seek the nullification of the Orders of the DOJ
denying their motion for the inhibition of the members of the prosecution
panel due to lack of impartiality and independence. 130 When the indictment
was filed, petitioners Ocampo, Echanis and Ladlad filed supplemental
petitions to enjoin the prosecution of Criminal Case No. 06-944.131We
eventually ordered the dismissal of the rebellion case. It is clear then that a
first jeopardy never had a chance to attach.
Petitioner Ocampo shall remain on provisional liberty under the 100,000
cash bond posted before the Office of the Clerk of Court. He shall remain on
provisional liberty until the termination of the proceedings before the RTC
Manila.1wphi1
The OSG has given its conformity to the provisional liberty of petitioners
Echanis, Baylosis and Ladlad in view of the ongoing peace negotiations.
Their provisional release from detention under the cash bond of 100,000
each shall continue under the condition that their temporary release shall be
limited to the period of their actual participation as CPP-NDF consultants in
the peace negotiations with the government or until the termination of the
proceedings before the RTC Manila, whichever is sooner. It shall be the duty
of the government to inform this Court the moment that peace negotiations
are concluded.
28
WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC
of Manila, Branch 32, is hereby ORDERED to proceed with dispatch with the
hearing of Criminal Case No. 08-262163. Petitioner Saturnino C. Ocampo
shall remain on temporary liberty under the same bail granted by this Court
until the termination of the proceedings before the RTC Manila. Petitioners
Randall B. Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall remain
on temporary liberty under the same bail granted by this Court until their
actual participation as CPP-NDF consultants in the peace negotiations with
the government are concluded or terminated, or until the termination of the
proceedings before the RTC Manila, whichever is sooner.

SO ORDERED.

29
MARIA LOURDES P. A. SERENO
Chief Justice In an Information[2] dated November 11, 2002, petitioner Abraham C.

Miclat, Jr. was charged for Violation of Section 11, Article II of RA No. 9165,
ABRAHAM MICLAT, JR. y CERBO, G.R. No. 176077
Petitioner, Present: the accusatory portion of which reads:
VELASCO, JR., J., Chairperson,
PERALTA,
ABAD, That on or about the 08th day of November 2002, in
- versus - MENDOZA, and Caloocan City, Metro Manila and within the jurisdiction of this
SERENO,* JJ. Honorable Court, the above-named accused, without the
authority of law, did then and there willfully and feloniously
Promulgated: have in his possession, custody and control
[METHAMPHETAMINE] HYDROCHLORIDE
PEOPLE OF THE PHILIPPINES, August 31, 2011 (SHABU) weighing 0.24 gram, knowing the same to be a
Respondent. dangerous drug under the provisions of the above-cited law.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x CONTRARY TO LAW. (Emphasis supplied.)[3]

DECISION
Upon arraignment, petitioner, with the assistance of counsel pleaded not

guilty to the crime charged. Consequently, trial on the merits ensued.

PERALTA, J.:

To establish its case, the prosecution presented Police Inspector

This is a petition for review on certiorari seeking to reverse and set
Jessie Abadilla Dela Rosa (P/Insp Dela Rosa), Forensic Chemical Officer of
aside the Decision[1] dated October 13, 2006 of the Court of Appeals (CA) in
the Philippine National Police (PNP) Crime Laboratory, NPD-CLO, Caloocan
CA-G.R. CR No. 28846, which in turn affirmed in toto the Decision of the
City Police Station and Police Officer 3 Rodrigo Antonio (PO3 Antonio) of the
Regional Trial Court (RTC), Branch 120, Caloocan City, in Criminal Case No.
Caloocan Police Station Drug Enforcement Unit.The testimony of the police
C-66765 convicting petitioner of Violation of Section 11, Article II of Republic
investigator, PO3 Fernando Moran (PO3 Moran), was dispensed with after
Act (RA) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.
petitioners counsel admitted the facts offered for stipulation by the
The factual and procedural antecedents are as follows:
prosecution.

On the other hand, the defense presented the petitioner as its sole

witness. The testimonies of Abraham Miclat, Sr. and Ma. Concepcion Miclat,

30

the father and sister, respectively, of the petitioner was dispensed with after
the prosecution agreed that their testimonies were corroborative in nature.
Evidence for the Prosecution
First to testify for the prosecution was P/Insp. Jessie
Abadilla Dela Rosa, Forensic Chemical Officer of the PNP
Crime Laboratory, NPD-CLO, Caloocan City Police Station
who, on the witness stand, affirmed his own findings in
Physical Science Report No. D-1222-02 (Exhs. D, D-1, and
D-2) that per qualitative examination conducted on the
specimen submitted, the white crystalline substance
weighing 0.05 gram, 0.06 gram, 0.07 gram, and 0.06 gram
then contained inside four (4) separate pieces of small heat-
sealed transparent plastic sachets (Exhs. D-4 to D-7) gave
positive result to the test for Methylamphetamine (sic)
Hydrochloride, a dangerous drug.
Also, thru the testimony of PO3 Rodrigo Antonio of
the Caloocan Police Station-Drug Enforcement
Unit, Samson Road, Caloocan City, the prosecution further
endeavored to establish the following:
Evidence for the Defense
At about 1:00 oclock in the afternoon of November
8, 2002, P/Insp. Jose Valencia of the Caloocan City Police
Station-SDEU called upon his subordinates after the (sic)
receiving an INFOREP Memo from Camp Crame relative to
the illicit and down-right drug-trading activities being
undertaken along Palmera Spring II, Bagumbong, Caloocan
City involving Abe Miclat, Wily alias Bokbok and one Mic or
Jojo (Exhs. E, E-1, and (sic) E-3, and E-4). Immediately,
P/Insp. Valencia formed a surveillance team headed by
SPO4 Ernesto Palting and is composed of five (5) more
operatives from the Drug Enforcement Unit, namely: PO3
Pagsolingan, PO2 Modina, PO2 De Ocampo, and herein
witness PO3 Antonio. After a short briefing at their station,
the team boarded a rented passenger jeepney and
proceeded to the target area to verify the said informant
and/or memorandum.
When the group of SPO4 Palting arrived at Palmera
Spring II, Caloocan City at around 3:50 oclock that same
afternoon, they were [at] once led by their informant to the
house of one Alias Abe. PO3 Antonio then positioned
himself at the perimeter of the house, while the rest of the
members of the group deployed themselves nearby. Thru a
small opening in the curtain-covered window, PO3 Antonio
peeped inside and there at a distance of 1 meters, he saw
Abe arranging several pieces of small plastic sachets which
he believed to be containing shabu. Slowly, said operative
inched his way in by gently pushing the door as well as the
plywood covering the same. Upon gaining entrance, PO3
Antonio forthwith introduced himself as a police officer while
Abe, on the other hand, after being informed of such
authority, voluntarily handed over to the former the four (4)
pieces of small plastic sachets the latter was earlier sorting
out. PO3 Antonio immediately placed the suspect under
arrest and brought him and the four (4) pieces of plastic
sachets containing white crystalline substance to their
headquarters and turned them over to PO3 Fernando Moran
for proper disposition. The suspect was identified as
Abraham Miclat y Cerbo a.k.a ABE, 19 years old, single,
jobless and a resident of Maginhawa Village, Palmera Spring
II, Bagumbong, Caloocan City.[4]
On the other hand, the [petitioner] has a different
version of the incident completely opposed to the theory of
the prosecution. On the witness stand, he alleged that at
about 4:00 oclockin the afternoon of November 8, 2002,
while he, together with his sister and father, were at the
upper level of their house watching the television soap
Cindy, they suddenly heard a commotion downstairs
prompting the three (3) of them to go down. There already
inside were several male individuals in civilian clothes who
introduced themselves as raiding police operatives from the
SDEU out to effect his (Abe) arrest for alleged drug
pushing. [Petitioner] and his father tried to plead his case to
these officers, but to no avail. Instead, one of the operatives
even kicked [petitioner] at the back when he tried to resist
the arrest. Immediately, [petitioner] was handcuffed and
together with his father, they were boarded inside the police
vehicle. That on their way to the Bagong Silang Police
31
 Station, PO3 Pagsolingan showed to [petitioner] a small
piece of plastic sachet containing white crystalline On October 13, 2006, the CA rendered a Decision[8] affirming in
substances allegedly recovered by the raiding police team
from their house. At around 9:00 oclock in the evening, toto the decision of the RTC, the dispositive portion of which reads:
[petitioner] was transferred to the Sangandaan Headquarters
where he was finally detained. That upon [petitioners]
WHEREFORE, the foregoing considered, the appeal
transfer and detention at the said headquarters, his father
is hereby DISMISSED and the assailed
was ordered to go home.[5]
Decision AFFIRMED in toto. Costs against the accused-
appellant.

On July 28, 2004, the RTC, after finding that the prosecution has SO ORDERED. (Emphasis supplied.)[9]

established all the elements of the offense charged, rendered a

Decision[6] convicting petitioner of Violation of Section 11, Article II of RA No. In affirming the RTC, the CA ratiocinated that contrary to the contention of

9165, the dispositive portion of which reads: the petitioner, the evidence presented by the prosecution were all admissible

against him. Moreover, it was established that he was informed of his

WHEREFORE, from the facts established, the Court
finds the accused ABRAHAM MICLAT Y CERBO constitutional rights at the time of his arrest. Hence, the CA opined that the
GUILTY beyond reasonable doubt of the crime of
prosecution has proven beyond reasonable doubt all of the elements
possession of a dangerous drugs (sic) defined and penalized
under the provision of Section 11, sub-paragraph No. (3), necessary for the conviction of the petitioner for the offense of illegal
Article II of Republic Act No. 9165 and hereby imposes upon
him an indeterminate penalty of six (6) years and one (1) possession of dangerous drugs.
day to twelve (12) years of imprisonment, in view of the
absence of aggravating circumstances. The Court likewise
orders the accused to pay the amount of Three Hundred
Thousand Pesos (Php300,000.00) as fine. Hence, the petition raising the following errors:

Let the 0.24 gram of shabu subject matter of this

case be confiscated and forfeited in favor of the Government 1. WHETHER OR NOT A POLICE SURVEILLANCE TEAM
and to be turned over to the Philippine Drug Enforcement SENT TO DETERMINE THE VERACITY OF
Agency for proper disposition. A CAMP CRAME MEMORANDUM OF SHABU TRADING
ACTIVITY AT CALOOCAN CITY, WHICH CONVERTED
SO ORDERED. (Emphasis supplied.)[7] THEIR MISSION FROM SURVEILLANCE TO A RAIDING
TEAM, CAN VALIDLY MAKE AN ARREST AND SEARCH
Aggrieved, petitioner sought recourse before the CA, which appeal WITHOUT A VALID WARRANT HAVING BEEN FIRST
OBTAINED FROM A COURT OF COMPETENT
was later docketed as CA-G.R. CR No. 28846. JURISDICTION.

2. WHETHER OR NOT PEEPING THROUGH A CURTAIN-

COVERED WINDOW IS WITHIN THE MEANING OF PLAIN

32
 VIEW DOCTRINE FOR A WARRANTLESS SEIZURE TO
BE LAWFUL.
3. WHETHER OR NOT THE BELIEF OF PO3 ANTONIO
THAT THE FOUR (4) PIECES OF PLASTIC SACHETS
ALLEGEDLY BEING ARRANGED BY PETITIONER
CONTAINED SHABU JUSTIFIED HIS ENTRY INTO THE
HOUSE AND ARREST PETITIONER WITHOUT ANY
WARRANT.
4. WHETHER OR NOT ARRANGING FOUR (4) PIECES OF
PLASTIC SACHETS CONSTITUTE AS A CRIME WITHIN
THE MEANING OF SECTION 5 (3), RULE 113 OF THE
RULES OF COURT.
5. WHETHER OR NOT PETITIONER WAS PROPERLY
APPRAISED (SIC) OF HIS CONSTITUTIONAL RIGHTS TO
BE INFORMED OF THE CAUSE AND NATURE OF HIS
ARREST AND RIGHT TO BE ASSISTED BY COUNSEL
DURING THE PERIOD OF HIS ARREST AND CONTINUED
DETENTION.
6. WHETHER OR NOT THE CONVICTION BY THE LOWER
COURT OF THE PETITIONER, AS AFFIRMED BY THE
HONORABLE COURT OF APPEALS, ON THE BASIS OF
AN ILLEGAL SEARCH AND ARREST, IS CORRECT.[10]
Simply stated, petitioner is assailing the legality of his arrest and the
subsequent seizure of the arresting officer of the suspected sachets of
dangerous drugs from him.Petitioner insists that he was just watching
television with his father and sister when police operatives suddenly barged
into their home and arrested him for illegal possession of shabu.
Petitioner also posits that being seen in the act of arranging several
plastic sachets inside their house by one of the arresting officers who was
peeping through a window is not sufficient reason for the police authorities to
enter his house without a valid search warrant and/or warrant of
arrest. Arguing that the act of arranging several plastic sachets by and in
itself is not a crime per se, petitioner maintains that the entry of the police
surveillance team into his house was illegal, and no amount of incriminating
evidence will take the place of a validly issued search warrant. Moreover,
peeping through a curtain-covered window cannot be contemplated as within
the meaning of the plain view doctrine, rendering the warrantless arrest
unlawful.
Petitioner also contends that the chain of custody of the alleged
illegal drugs was highly questionable, considering that the plastic sachets
were not marked at the place of the arrest and no acknowledgment receipt
was issued for the said evidence.
Finally, petitioner claims that the arresting officer did not inform him
of his constitutional rights at any time during or after his arrest and even
during his detention. Hence, for this infraction, the arresting officer should be
punished accordingly.
The petition is bereft of merit.
At the outset, it is apparent that petitioner raised no objection to the
irregularity of his arrest before his arraignment. Considering this and his
33

active participation in the trial of the case, jurisprudence dictates that
petitioner is deemed to have submitted to the jurisdiction of the trial court,
thereby curing any defect in his arrest.[11] An accused is estopped from
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.

assailing any irregularity of his arrest if he fails to raise this issue or to move
However, a settled exception to the right guaranteed by the above-
for the quashal of the information against him on this ground before
stated provision is that of an arrest made during the commission of a crime,
arraignment. Any objection involving a warrant of arrest or the procedure by
which does not require a previously issued warrant. Such warrantless arrest
which the court acquired jurisdiction over the person of the accused must be
is considered reasonable and valid under Section 5 (a), Rule 113 of the
made before he enters his plea; otherwise, the objection is deemed
Revised Rules on Criminal Procedure, to wit:
waived.[12]
Sec. 5. Arrest without warrant; when lawful. a
peace office of a private person may, without a warrant,
In the present case, at the time of petitioners arraignment, there was arrest a person:

no objection raised as to the irregularity of his arrest. Thereafter, he actively (a) When, in his presence, the person to be
arrested has committed, is actually
participated in the proceedings before the trial court. In effect, he is deemed committing, or is attempting to commit an
offense;[14]
to have waived any perceived defect in his arrest and effectively submitted

himself to the jurisdiction of the court trying his case. At any rate, the illegal
For the exception in Section 5 (a), Rule 113 to operate, this Court
arrest of an accused is not sufficient cause for setting aside a valid judgment
has ruled that two (2) elements must be present: (1) the person to be
rendered upon a sufficient complaint after a trial free from error. It will not
arrested must execute an overt act indicating that he has just committed, is
even negate the validity of the conviction of the accused. [13]
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. [15]
True, the Bill of Rights under the present Constitution provides in

part:
In the instant case, contrary to petitioners contention, he was
SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable caught in flagrante delicto and the police authorities effectively made a valid
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrantless arrest. The established facts reveal that on the date of the arrest,
warrant of arrest shall issue except upon probable cause to
34
agents of the Station Drug Enforcement Unit (SDEU) of the Caloocan City delicto as he was then committing a crime, violation of the Dangerous Drugs

Police Station were conducting a surveillance operation in the area of Act, within the view of the arresting officer.

Palmera Spring II to verify the reported drug-related activities of several

individuals, which included the petitioner. During the operation, PO3 Antonio, As to the admissibility of the seized drugs in evidence, it too falls

through petitioners window, saw petitioner arranging several plastic sachets within the established exceptions.

containing what appears to be shabu in the living room of their home. The

plastic sachets and its suspicious contents were plainly exposed to the view Verily, no less than the 1987 Constitution mandates that a search

of PO3 Antonio, who was only about one and one-half meters from where and consequent seizure must be carried out with a judicial warrant;

petitioner was seated. PO3 Antonio then inched his way in the house by otherwise, it becomes unreasonable, and any evidence obtained therefrom

gently pushing the door. Upon gaining entrance, the operative introduced shall be inadmissible for any purpose in any proceeding.[17] The right against

himself as a police officer. After which, petitioner voluntarily handed over to warrantless searches and seizure, however, is subject to legal and judicial

PO3 Antonio the small plastic sachets. PO3 Antonio then placed petitioner exceptions, namely:

under arrest and, contrary to petitioners contention, PO3 Antonio informed

1. Warrantless search incidental to a lawful arrest;
him of his constitutional rights.[16] PO3 Antonio then took the petitioner and 2. Search of evidence in "plain view";
3. Search of a moving vehicle;
the four (4) pieces of plastic sachets to their headquarters and turned them 4. Consented warrantless search;
5. Customs search;
over to PO3 Moran. Thereafter, the evidence were marked AMC 1-4, the
6. Stop and Frisk; and
initials of the name of the petitioner. The heat-sealed transparent sachets 7. Exigent and emergency circumstances.[18]

containing white crystalline substance were submitted to the PNP Crime

Laboratory for drug examination, which later yielded positive results for the What constitutes a reasonable or unreasonable warrantless search

presence of methamphetamine hydrochloride, a dangerous drug under RA or seizure is purely a judicial question, determinable from the uniqueness of

No. 9165. the circumstances involved, including the purpose of the search or seizure,

the presence or absence of probable cause, the manner in which the search

Considering the circumstances immediately prior to and surrounding and seizure was made, the place or thing searched, and the character of the

the arrest of the petitioner, petitioner was clearly arrested in flagrante articles procured.[19]

35
 officer, the results of the ensuing search and seizure were admissible in

It is to be noted that petitioner was caught in the act of arranging the evidence to prove petitioners guilt of the offense charged.

heat-sealed plastic sachets in plain sight of PO3 Antonio and he voluntarily

surrendered them to him upon learning that he is a police officer. The seizure As to petitioners contention that the police failed to comply with the

made by PO3 Antonio of the four plastic sachets from the petitioner was not proper procedure in the transfer of custody of the seized evidence thereby

only incidental to a lawful arrest, but it also falls within the purview of casting serious doubt on its seizure, this too deserves scant consideration.

the plain view doctrine.

Section 21, paragraphs 1 and 2, Article II of RA No. 9165 provides:

Objects falling in plain view of an officer who has
a right to be in a position to have that view are subject
to seizure even without a search warrant Section 21. Custody and Disposition of Confiscated,
and may be introduced in evidence. The plain view Seized, and/or Surrendered Dangerous Drugs, Plant
doctrine applies when the following requisites concur: (a) the Sources of Dangerous Drugs, Controlled Precursors and
law enforcement officer in search of the evidence has a Essential Chemicals, Instruments/Paraphernalia and/or
prior justification for an intrusion or is in a position from Laboratory Equipment. - The PDEA shall take charge and
which he can view a particular area; (b) the discovery of have custody of all dangerous drugs, plant sources of
evidence in plain view is inadvertent; (c) it is dangerous drugs, controlled precursors and essential
immediately apparent to the officer that the item he chemicals, as well as instruments/paraphernalia and/or
observes may be evidence of a crime, contraband or laboratory equipment so confiscated, seized and/or
otherwise subject to seizure. The law enforcement officer surrendered, for proper disposition in the following manner:
must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the (1) The apprehending team having initial
course of such lawful intrusion, he came inadvertently across custody and control of the drugs
a piece of evidence incriminating the accused. The object shall, immediately after seizure and
must be open to eye and hand and its discovery inadvertent. confiscation, physically inventory
(Emphasis supplied.)[20] and photograph the same in the presence of
the accused or the person/s from whom
such items were confiscated and/or
It is clear, therefore, that an object is in plain view if the object itself is seized, or his/her representative or counsel,
a representative from the media and the
plainly exposed to sight. Since petitioners arrest is among the exceptions to Department of Justice (DOJ), and any
elected public official who shall be required
the rule requiring a warrant before effecting an arrest and the evidence to sign the copies of the inventory and be
given a copy thereof;
seized from the petitioner was the result of a warrantless search incidental to

a lawful arrest, which incidentally was in plain view of the arresting (2) Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs,
plant sources of dangerous drugs, controlled
36
 precursors and essential chemicals, as well
as instruments/paraphernalia and/or seized items, as the same would be utilized in the determination of the guilt
laboratory equipment, the same shall be
submitted to the PDEA Forensic Laboratory or innocence of the accused.[23]
for a qualitative and quantitative
examination;
Here, the requirements of the law were substantially complied with
x x x x.
and the integrity of the drugs seized from the petitioner was preserved. More

importantly, an unbroken chain of custody of the prohibited drugs taken from

Corolarilly, the implementing provision of Section 21 (a), Article II of
the petitioner was sufficiently established. The factual antecedents of the
the Implementing Rules and Regulations (IRR) of RA No. 9165, provides:
case reveal that the petitioner voluntarily surrendered the plastic sachets to

(a) The apprehending team having initial custody and control PO3 Antonio when he was arrested. Together with petitioner, the evidence
of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same seized from him were immediately brought to the police station and upon
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her arriving thereat, were turned over to PO3 Moran, the investigating
representative or counsel, a representative from the media
officer. There the evidence was marked. The turn-over of the subject sachets
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the and the person of the petitioner were then entered in the official
inventory and be given a copy thereof: Provided, further, that
non-compliance with these requirements under justifiable blotter. Thereafter, the Chief of the SDEU, Police Senior Inspector Jose
grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending Ramirez Valencia, endorsed the evidence for laboratory examination to the
officer/team, shall not render void and invalid such seizures
of and custody over said items. National Police District PNP Crime Laboratory. The evidence was delivered

x x x x.[21] by PO3 Moran and received by Police Inspector Jessie Dela Rosa. [24] After a

qualitative examination of the contents of the four (4) plastic sachets by the

latter, the same tested positive for methamphetamine hydrochloride, a

From the foregoing, it is clear that the failure of the law enforcers to dangerous drug.[25]
comply strictly with the rule is not fatal. It does not render petitioners arrest

illegal nor the evidence adduced against him inadmissible.[22] What is An unbroken chain of custody of the seized drugs had, therefore,
essential is the preservation of the integrity and the evidentiary value of the been established by the prosecution from the arresting officer, to the

investigating officer, and finally to the forensic chemist. There is no doubt that

37
the items seized from the petitioner at his residence were also the same distinguish spontaneous declaration from rehearsed spiel, straightforward

items marked by the investigating officer, sent to the Crime Laboratory, and assertion from a stuttering claim, definite statement from tentative disclosure,

later on tested positive for methamphetamine hydrochloride. and to a certain degree, truth from untruth.[29]

For conviction of illegal possession of a prohibited drug to lie, the In the present case, there is no compelling reason to reverse the

following elements must be established: (1) the accused was in possession findings of fact of the trial court. No evidence exist that shows any apparent

of an item or an object identified to be a prohibited or regulated drug; (2) inconsistencies in the narration of the prosecution witnesses of the events

such possession is not authorized by law; and (3) the accused was freely which transpired and led to the arrest of petitioner. After a careful evaluation

and consciously aware of being in possession of the drug. [26] Based on the of the records, We find no error was committed by the RTC and the CA to

evidence submitted by the prosecution, the above elements were duly disregard their factual findings that petitioner committed the crime charged

established in the present case. Mere possession of a regulated drug per against him.

seconstitutes prima facie evidence of knowledge or animus

possidendi sufficient to convict an accused absent a satisfactory explanation Against the overwhelming evidence of the prosecution, petitioner

of such possession the onus probandi is shifted to the accused, to explain merely denied the accusations against him and raised the defense of frame-

the absence of knowledge or animus possidendi.[27] up. The defense of denial and frame-up has been invariably viewed by this

Court with disfavor, for it can easily be concocted and is a common and

It is a settled rule that in cases involving violations of the standard defense ploy in prosecutions for violation of the Dangerous Drugs

Comprehensive Dangerous Drugs Act, credence is given to prosecution Act. In order to prosper, the defense of denial and frame-up must be proved

witnesses who are police officers for they are presumed to have performed with strong and convincing evidence.[30]

their duties in a regular manner.[28] Although not constrained to blindly accept

the findings of fact of trial courts, appellate courts can rest assured that such As to the penalty, while We sustain the amount of fine, the

facts were gathered from witnesses who presented their statements live and indeterminate sentence imposed should, however, be modified.

in person in open court. In cases where conflicting sets of facts are Section 11, Article II, RA No. 9165, otherwise known as the

presented, the trial courts are in the best position to recognize and Comprehensive Dangerous Drugs Act of 2002, provides:

38

Section 11. Possession of Dangerous Drugs. The
penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person,
who, unless authorized by law, shall possess any dangerous
drug in the following quantities, regardless of the degree of
purity thereof:
x x x x.
twelve (12) years and one (1) day to twenty (20) years and a fine ranging
from Three Hundred Thousand Pesos (P300,000.00) to Four Hundred
Thousand Pesos (P400,000.00). The evidence adduced by the prosecution
established beyond reasonable doubt that petitioner had in his possession
0.24 gram of shabu, or less than five (5) grams of the dangerous drug,
without any legal authority.

Otherwise, if the quantity involved is less than the

foregoing quantities, the penalties shall be graduated as
follows: Applying the Indeterminate Sentence Law, the minimum period of

x x x x. the imposable penalty shall not fall below the minimum period set by the law;

the maximum period shall not exceed the maximum period allowed under the
(3) Imprisonment of twelve (12)
years and one (1) day to twenty (20) years law; hence, the imposable penalty should be within the range of twelve (12)
and a fine ranging from Three hundred
thousand pesos (P300,000.00) to Four years and one (1) day to fourteen (14) years and eight (8) months.
hundred thousand pesos (P400,000.00), if
the quantities of dangerous drugs are less WHEREFORE, premises considered, the appeal is DENIED. The
than five (5) grams of opium, morphine,
heroin, cocaine or cocaine hydrochloride, Decision dated October 13, 2006 of the Court of Appeals in CA-G.R. CR No.
marijuana resin or marijuana resin
oil, methamphetamine hydrochloride or 28846 is AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer
"shabu", or other dangerous drugs such as, the indeterminate sentence of twelve (12) years and one (1) day to fourteen
but not limited to, MDMA or "ecstasy," PMA,
TMA, LSD, GHB, and those similarly (14) years and eight (8) months.
designed or newly-introduced drugs and
their derivatives, without having any
therapeutic value or if the quantity SO ORDERED.
possessed is far beyond therapeutic
requirements; or less than three hundred
(300) grams of marijuana.[31]

From the foregoing, illegal possession of less than five (5) grams of

methamphetamine hydrochloride or shabu is penalized with imprisonment of

39
SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870
VELASCO, JR., J.:
Petitioner,
- versus - In these kindred petitions, the constitutionality of Section 36 of Republic Act

DANGEROUS DRUGS BOARD and No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs
PHILIPPINE DRUG ENFORCEMENT Act of 2002, insofar as it requires mandatory drug testing of candidates for
AGENCY (PDEA),
Respondents. public office, students of secondary and tertiary schools, officers and
x-----------------------------------------------x employees of public and private offices, and persons charged before the
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner, prosecutors office with certain offenses, among other personalities, is put in
issue.
- versus -

DANGEROUS DRUGS BOARD and

PHILIPPINE DRUG ENFORCEMENT As far as pertinent, the challenged section reads as follows:
AGENCY, SEC. 36. Authorized Drug Testing.Authorized drug
Respondents. testing shall be done by any government forensic
x-----------------------------------------------x laboratories or by any of the drug testing laboratories
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658 accredited and monitored by the DOH to safeguard the
Petitioner, quality of the test results. x x x The drug testing shall
Present: employ, among others, two (2) testing methods, the
PUNO, C.J., screening test which will determine the positive result as well
QUISUMBING, as the type of drug used and the confirmatory test which will
YNARES-SANTIAGO, confirm a positive screening test. x x x The following shall be
CARPIO, subjected to undergo drug testing:
AUSTRIA-MARTINEZ,
- versus - CORONA, xxxx
CARPIO MORALES,
AZCUNA, (c) Students of secondary and tertiary
TINGA, schools.Students of secondary and tertiary schools shall,
CHICO-NAZARIO, pursuant to the related rules and regulations as contained in
VELASCO, JR., the schools student handbook and with notice to the parents,
NACHURA, undergo a random drug testing x x x;
REYES,
LEONARDO-DE CASTRO, and (d) Officers and employees of public and private
BRION, JJ. offices.Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to undergo
COMMISSION ON ELECTIONS, Promulgated: a random drug test as contained in the companys work rules
Respondent. and regulations, x x x for purposes of reducing the risk in the
November 3, 2008 workplace. Any officer or employee found positive for use of
x-----------------------------------------------------------------------------------------x dangerous drugs shall be dealt with administratively which
DECISION shall be a ground for suspension or termination, subject to

40
 the provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutors office
with a criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1) day
shall undergo a mandatory drug test;
(g) All candidates for public office whether appointed or elected both
in the national or local government shall undergo a
mandatory drug test.
In addition to the above stated penalties in this Section,
those found to be positive for dangerous drugs use shall be
subject to the provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued
Resolution No. 6486, prescribing the rules and regulations on the mandatory
drug testing of candidates for public office in connection with the May 10,
2004 synchronized national and local elections. The pertinent portions of the
said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165
provides:
SEC. 36. Authorized Drug Testing.x x x
xxxx
(g) All candidates for public office x x x both in the national or
local government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution
provides that public officers and employees must at all times
be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory
drug test, the public will know the quality of candidates they
are electing and they will be assured that only those who can
serve with utmost responsibility, integrity, loyalty, and
efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the
authority vested in it under the Constitution, Batas
Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165
and other election laws, RESOLVED to promulgate, as it
hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for
public office[:]
SECTION 1. Coverage.All candidates for public office,
both national and local, in the May 10, 2004
Synchronized National and Local Elections shall undergo
mandatory drug test in government forensic laboratories or
any drug testing laboratories monitored and accredited by
the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed
with their respective offices, the Comelec Offices and
employees concerned shall submit to the Law Department
two (2) separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug
test while the second list shall consist of those candidates
who failed to comply x x x.
SEC. 4. Preparation and publication of names of
candidates.Before the start of the campaign period, the
[COMELEC] shall prepare two separate lists of candidates.
The first list shall consist of those candidates who complied
with the mandatory drug test while the second list shall
consist of those candidates who failed to comply with said
drug test. x x x
41
 SEC. 5. Effect of failure to undergo mandatory drug test and
file drug test certificate.No person elected to any public office
shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices
enumerated under Section 2 hereof the drug test certificate
herein required. (Emphasis supplied.)
qualification that all candidates for senator must first be certified as drug free.
He adds that there is no provision in the Constitution authorizing the
Congress or COMELEC to expand the qualification requirements of
candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a Drugs Board and Philippine Drug Enforcement Agency)
candidate for re-election in the May 10, 2004 elections,[1] filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23,
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs
2003 for being unconstitutional in that they impose a qualification for
Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from
candidates for senators in addition to those already provided for in the 1987
enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the
Constitution; and (2) to enjoin the COMELEC from implementing Resolution
ground that they are constitutionally infirm. For one, the provisions constitute
No. 6486.
undue delegation of legislative power when they give unbridled discretion to
schools and employers to determine the manner of drug testing. For another,
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
the provisions trench in the equal protection clause inasmuch as they can be
Constitution, which states:
used to harass a student or an employee deemed undesirable. And for a
third, a persons constitutional right against unreasonable searches is also
SECTION 3. No person shall be a Senator unless he
is a natural-born citizen of the Philippines, and, on the day of breached by said provisions.
the election, is at least thirty-five years of age, able to read
and write, a registered voter, and a resident of the G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Philippines for not less than two years immediately Drugs Board and Philippine Drug Enforcement Agency)
preceding the day of the election.

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in
his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d),
According to Pimentel, the Constitution only prescribes a maximum of five (5)
(f), and (g) of RA 9165 be struck down as unconstitutional for infringing on
qualifications for one to be a candidate for, elected to, and be a member of
the constitutional right to privacy, the right against unreasonable search and
the Senate. He says that both the Congress and COMELEC, by requiring, via
seizure, and the right against self-incrimination, and for being contrary to the
RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
due process and equal protection guarantees.
candidates, to undergo a mandatory drug test, create an additional
42
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and
the matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege any
incident amounting to a violation of the constitutional rights mentioned in their
separate petitions.[2]
It is basic that the power of judicial review can only be exercised in
connection with a bona fide controversy which involves the statute sought to
be reviewed.[3] But even with the presence of an actual case or controversy,
the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to
challenge it.[4] To have standing, one must establish that he or she has
suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action.[5]
The rule on standing, however, is a matter of procedure; hence, it can be
relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of
paramount public interest.[6] There is no doubt that Pimentel, as senator of
the Philippines and candidate for the May 10, 2004 elections, possesses the
requisite standing since he has substantial interests in the subject matter of
the petition, among other preliminary considerations. Regarding SJS and
Laserna, this Court is wont to relax the rule on locus standi owing primarily to
the transcendental importance and the paramount public interest involved in
the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose
an additional qualification for candidates for senator? Corollarily, can
Congress enact a law prescribing qualifications for candidates for senator in
addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional?
Specifically, do these paragraphs violate the right to privacy, the right against
unreasonable searches and seizure, and the equal protection clause? Or do
they constitute undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional qualification
on candidates for senator. He points out that, subject to the provisions on
nuisance candidates, a candidate for senator needs only to meet the
qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for
senator need not possess any other qualification to run for senator and be
voted upon and elected as member of the Senate. The Congress cannot
validly amend or otherwise modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional mandate,[7] or alter
or enlarge the Constitution.
43

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA
9165 should be, as it is hereby declared as, unconstitutional. It is basic that if
a law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic law
to which all laws must conform; no act shall be valid if it conflicts with the
Constitution.[8] In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be
observed.[9]
Congress inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in Government v. Springer,
the Court has defined, in the abstract, the limits on legislative power in the
following wise:
Someone has said that the powers of the legislative
department of the Government, like the boundaries of the
ocean, are unlimited. In constitutional governments,
however, as well as governments acting under delegated
authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution
or the charter, and each department can only exercise such
powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash,
but over which it cannot leap.[10]
Thus, legislative power remains limited in the sense that it is subject
to substantive and constitutional limitations which circumscribe both the
exercise of the power itself and the allowable subjects of legislation. [11] The
substantive constitutional limitations are chiefly found in the Bill of
Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution
prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing
and administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for senator
in addition to what the Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional qualification, the COMELEC, to
be sure, is also without such power. The right of a citizen in the democratic
process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.[13]
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec.
36(g) unmistakably requires a candidate for senator to be certified illegal-
drug clean, obviously as a pre-condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that [n]o person elected to
any public office shall enter upon the duties of his office until he has
undergone mandatory drug test. Viewed, therefore, in its proper context, Sec.
36(g) of RA 9165 and the implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at the minimum, requires for
membership in the Senate. Whether or not the drug-free bar set up under the
challenged provision is to be hurdled before or after election is really of no
moment, as getting elected would be of little value if one cannot assume
office for non-compliance with the drug-testing requirement.
44
 It may of course be argued, in defense of the validity of Sec. 36(g) of
RA 9165, that the provision does not expressly state that non-compliance
with the drug test imposition is a disqualifying factor or would work to nullify a
certificate of candidacy. This argument may be accorded plausibility if the
drug test requirement is optional. But the particular section of the law, without
exception, made drug-testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the
provision deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve around the
election and the assumption of public office of the candidates. Any other
construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a
pure jargon without meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC
Resolution No. 6486 is no longer enforceable, for by its terms, it was
intended to cover only the May 10, 2004 synchronized elections and the
candidates running in that electoral event. Nonetheless, to obviate repetition,
the Court deems it appropriate to review and rule, as it hereby rules, on its
validity as an implementing issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed
the constitutional provision defining the qualification or eligibility requirements
for one aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees,
while mandatory, is a random and suspicionless arrangement. The objective
is to stamp out illegal drug and safeguard in the process the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous
drugs. This statutory purpose, per the policy-declaration portion of the law,
can be achieved via the pursuit by the state of an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs x x x through an
integrated system of planning, implementation and enforcement of anti-drug
abuse policies, programs and projects.[14] The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as a result of
this random testing are not necessarily treated as criminals. They may even
be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent
to Confinement, Treatment and Rehabilitation.A drug
dependent or any person who violates Section 15 of this Act
may, by himself/herself or through his/her parent, [close
relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to the
Court which shall order that the applicant be examined for
drug dependency. If the examination x x x results in the
certification that the applicant is a drug dependent, he/she
shall be ordered by the Court to undergo treatment and
rehabilitation in a Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under
the Voluntary Submission Program.A drug dependent under
the voluntary submission program, who is finally discharged
from confinement, shall be exempt from the criminal liability
45
 under Section 15 of this Act subject to the following
conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable
to the physical, psychological, and addictive effects of drugs. Maturing
nervous systems of the young are more critically impaired by intoxicants and
are more inclined to drug dependency. Their recovery is also at a
depressingly low rate.[15]
The right to privacy has been accorded recognition in this jurisdiction
as a facet of the right protected by the guarantee against unreasonable
search and seizure[16] under Sec. 2, Art. III[17] of the Constitution. But while
the right to privacy has long come into its own, this case appears to be the
first time that the validity of a state-decreed search or intrusion through the
medium of mandatory random drug testing among students and employees
is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among school children,
we turn to the teachings of VernoniaSchool District 47J v. Acton (Vernonia)
and Board of Education of Independent School District No. 92 of
Pottawatomie County, et al. v. Earls, et al. (Board of Education),[18]both fairly
pertinent US Supreme Court-decided cases involving the constitutionality of
governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to
address the drug menace in their respective institutions following the
discovery of frequent drug use by school athletes. After consultation with the
parents, they required random urinalysis drug testing for the schools
athletes. James Acton, a high school student, was denied participation in the
football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the schools drug testing policy
violated, inter alia, the Fourth Amendment[19] of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised
in Vernonia, considered the following: (1) schools stand in loco parentis over
their students; (2) school children, while not shedding their constitutional
rights at the school gate, have less privacy rights; (3) athletes have less
privacy rights than non-athletes since the former observe communal undress
before and after sports events; (4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree of school supervision
and regulation; (5) requiring urine samples does not invade a students
privacy since a student need not undress for this kind of drug testing; and (6)
there is need for the drug testing because of the dangerous effects of illegal
drugs on the young. The US Supreme Court held that the policy
constituted reasonable search under the Fourth[20] and 14th Amendments
and declared the random drug-testing policy constitutional.
In Board of Education, the Board of Education of a school
in Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra-curricular activities.Lindsay Earls, a member of the
show choir, marching band, and academic team declined to undergo a drug
test and averred that the drug-testing policy made to apply to non-athletes
46
violated the Fourth and 14th Amendments. As Earls argued, unlike athletes
who routinely undergo physical examinations and undress before their peers
in locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality
of drug testing even among non-athletes on the basis of the schools
custodial responsibility and authority. In so ruling, said court made no
distinction between a non-athlete and an athlete. It ratiocinated that schools
and teachers act in place of the parents with a similar interest and duty of
safeguarding the health of the students. And in holding that the school could
implement its random drug-testing policy, the Court hinted that such a test
was a kind of search in which even a reasonable parent might need to
engage.
In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in
loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and
supervision of their parents, guardians, and schools; (3) schools, acting in
loco parentis, have a duty to safeguard the health and well-being of their
students and may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose conditions on
applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within
the prerogative of educational institutions to require, as a condition for
admission, compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited
drugs in the country that threatens the well-being of the people,[21] particularly
the youth and school children who usually end up as victims. Accordingly,
and until a more effective method is conceptualized and put in motion, a
random drug testing of students in secondary and tertiary schools is not only
acceptable but may even be necessary if the safety and interest of the
student population, doubtless a legitimate concern of the government, are to
be promoted and protected. To borrow from Vernonia, [d]eterring drug use by
our Nations schoolchildren is as important as enhancing efficient
enforcement of the Nations laws against the importation of drugs; the
necessity for the State to act is magnified by the fact that the effects of a
drug-infested school are visited not just upon the users, but upon the entire
student body and faculty.[22] Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing aims to
incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165 for
officers and employees of public and private offices is justifiable, albeit not
exactly for the same reason. The Court notes in this regard that petitioner
SJS, other than saying that subjecting almost everybody to drug testing,
without probable cause, is unreasonable, an unwarranted intrusion of the
individual right to privacy,[23] has failed to show how the mandatory, random,
and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates
the right to privacy and constitutes unlawful and/or unconsented search
47
under Art. III, Secs. 1 and 2 of the Constitution.[24] Petitioner Lasernas lament determined by a judge. Given that the drug-testing policy for employeesand
is just as simplistic, sweeping, and gratuitous and does not merit serious students for that matterunder RA 9165 is in the nature of administrative
consideration. Consider what he wrote without elaboration: search needing what was referred to in Vernonia as swift and informal
disciplinary procedures, the probable-cause standard is not required or even
The US Supreme Court and US Circuit Courts of
Appeals have made various rulings on the constitutionality of practicable. Be that as it may, the review should focus on the
mandatory drug tests in the school and the workplaces. reasonableness of the challenged administrative search in question.
The US courts have been consistent in their rulings that the
mandatory drug tests violate a citizens constitutional right to
privacy and right against unreasonable search and seizure. The first factor to consider in the matter of reasonableness is the
They are quoted extensively hereinbelow.[25]
nature of the privacy interest upon which the drug testing, which effects a
search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In
The essence of privacy is the right to be left alone. [26] In context, the
this case, the office or workplace serves as the backdrop for the analysis of
right to privacy means the right to be free from unwarranted exploitation of
the privacy expectation of the employees and the reasonableness of drug
ones person or from intrusion into ones private activities in such a way as to
testing requirement. The employees privacy interest in an office is to a large
cause humiliation to a persons ordinary sensibilities. [27] And while there has
extent circumscribed by the companys work policies, the collective
been general agreement as to the basic function of the guarantee against
bargaining agreement, if any, entered into by management and the
unwarranted search, translation of the abstract prohibition against
bargaining unit, and the inherent right of the employer to maintain discipline
unreasonable searches and seizures into workable broad guidelines for the
and efficiency in the workplace. Their privacy expectation in a regulated
decision of particular cases is a difficult task, to borrow from C. Camara v.
office environment is, in fine, reduced; and a degree of impingement upon
Municipal Court.[28] Authorities are agreed though that the right to
such privacy has been upheld.
privacy yields to certain paramount rights of the public and defers to the
states exercise of police power.[29]
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is the scope
As the warrantless clause of Sec. 2, Art III of the Constitution is
of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres,
couched and as has been held, reasonableness is the touchstone of the
is the enabling law authorizing a search narrowly drawn or narrowly
validity of a government search or intrusion.[30] And whether a search at issue
focused?[32]
hews to the reasonableness standard is judged by the balancing of the
government-mandated intrusion on the individuals privacy interest against
The poser should be answered in the affirmative. For one, Sec. 36 of
the promotion of some compelling state interest.[31] In the criminal context,
RA 9165 and its implementing rules and regulations (IRR), as couched,
reasonableness requires showing of probable cause to be personally
48
contain provisions specifically directed towards preventing a situation that
would unduly embarrass the employees or place them under a humiliating
experience. While every officer and employee in a private establishment is
under the law deemed forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in advance for drug testing. The
goal is to discourage drug use by not telling in advance anyone when and
who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient by providing that the
employees concerned shall be subjected to random drug test as contained in
the companys work rules and regulations x x x for purposes of reducing the
risk in the work place.
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the employees privacy
and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the
confirmatory test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important consideration lies in the
fact that the test shall be conducted by trained professionals in access-
controlled laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate chain of
custody.[33] In addition, the IRR issued by the DOH provides that access to
the drug results shall be on the need to know basis; [34] that the drug test
result and the records shall be [kept] confidential subject to the usual
accepted practices to protect the confidentiality of the test results.[35] Notably,
RA 9165 does not oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as a result of the
operation of the drug testing. All told, therefore, the intrusion into the
employees privacy, under RA 9165, is accompanied by proper safeguards,
particularly against embarrassing leakages of test results, and is relatively
minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal
drug in the country and thus protect the well-being of the citizens, especially
the youth, from the deleterious effects of dangerous drugs. The law intends
to achieve this through the medium, among others, of promoting and
resolutely pursuing a national drug abuse policy in the workplace via a
mandatory random drug test.[36] To the Court, the need for drug testing to at
least minimize illegal drug use is substantial enough to override the
individuals privacy interest under the premises. The Court can consider that
the illegal drug menace cuts across gender, age group, and social- economic
lines. And it may not be amiss to state that the sale, manufacture, or
trafficking of illegal drugs, with their ready market, would be an investors
dream were it not for the illegal and immoral components of any of
such activities. The drug problem has hardly abated since the martial law
public execution of a notorious drug trafficker. The state can no longer
assume a laid back stance with respect to this modern-day scourge. Drug
enforcement agencies perceive a mandatory random drug test to be an
effective way of preventing and deterring drug use among employees in
private offices, the threat of detection by random testing being higher than
other modes. The Court holds that the chosen method is a reasonable and
enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the compelling state
49
concern likely to be met by the search, and the well-defined limits set forth in
the law to properly guide authorities in the conduct of the random testing, we
hold that the challenged drug test requirement is, under the limited context of
the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and
employees also labor under reasonable supervision and restrictions imposed
by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service.[37] And if RA 9165
passes the norm of reasonableness for private employees, the more reason
that it should pass the test for civil servants, who, by constitutional command,
are required to be accountable at all times to the people and to serve them
with utmost responsibility and efficiency.[38]
Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable
on the ground of undue delegation of power hardly commends itself for
concurrence. Contrary to its position, the provision in question is not so
extensively drawn as to give unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and officers/employees
of public/private offices should be conducted. It enumerates the persons who
shall undergo drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student handbook and
with notice to parents. On the part of officers/employees, the testing shall
take into account the companys work rules. In either case, the random
procedure shall be observed, meaning that the persons to be subjected to
drug test shall be picked by chance or in an unplanned way. And in all cases,
safeguards against misusing and compromising the confidentiality of the test
results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue,
in consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the
law. In net effect then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165. It is,
therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the drug
tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the
constitutional landscape.[39] In the face of the increasing complexity of the
task of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to delegation
of power, or entrusting to administrative agencies the power of subordinate
legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the
Court finds no valid justification for mandatory drug testing for persons
accused of crimes. In the case of students, the constitutional viability of the
mandatory, random, and suspicionless drug testing for students emanates
primarily from the waiver by the students of their right to privacy when they
seek entry to the school, and from their voluntarily submitting their persons to
the parental authority of school authorities. In the case of private and public
50
employees, the constitutional soundness of the mandatory, random, and petition in G.R. Nos. 157870 and 158633 by declaring Sec.
suspicionless drug testing proceeds from the reasonableness of the drug test
36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec.
policy and requirement.
36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly,

permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No

We find the situation entirely different in the case of persons charged
before the public prosecutors office with criminal offenses punishable with six costs.

(6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are randomness and suspicionless. In the case of SO ORDERED.
persons charged with a crime before the prosecutors office, a mandatory
drug testing can never be random or suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a
criminal complaint. They are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime are charged, they
are singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutors office and
peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to
privacy.[40] To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a
persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to incriminate
themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No.

161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution

No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the

51
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO
DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @
"NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado
and Violeta Gaddao y Catama @ "Neneth" were charged with violation of
Section 4, in relation to Section 21 of the Dangerous Drugs Act of
1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping and aiding
one another and without having been authorized by law, did, then and there
willfully, unlawfully and feloniously sell, administer, deliver and give away to
another eleven (11) plastic bags of suspected marijuana fruiting tops
weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In
November 1995, members of the North Metropolitan District, Philippine
National Police (PNP) Narcotics Command (Narcom), received information
from two (2) civilian informants (CI) that one "Jun" was engaged in illegal
drug activities in Mandaluyong City. The Narcom agents decided to entrap
and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a
meeting between the Narcom agents and "Jun" was scheduled on December
5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP
Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust
operation. The Narcom agents formed Team Alpha composed of P/Insp.
Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund
Badua and four (4) other policemen as members. P/Insp. Cortes designated
PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and
the rest of the team as perimeter security. Superintendent Pedro Alcantara,
Chief of the North Metropolitan District PNP Narcom, gave the
team P2,000.00 to cover operational expenses. From this sum, PO3
Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one
hundred peso bills[3]-- as money for the buy-bust operation. The market price
of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills
with his initials and listed their serial numbers in the police blotter. [4] The team
rode in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced
PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3
Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed
PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto
Street while he got the marijuana from his associate.[5] An hour later, "Jun"
appeared at the agreed place where PO3 Manlangit, the CI and the rest of
the team were waiting. "Jun" took out from his bag an object wrapped in
plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun"
as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not
find the marked bills on him. Upon inquiry, "Jun" revealed that he left the
money at the house of his associate named "Neneth." [6] "Jun" led the police
team to "Neneth's" house nearby at Daang Bakal.
The team found the door of "Neneth's" house open and a woman inside.
"Jun" identified the woman as his associate.[7] SPO1 Badua asked "Neneth"
about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house.
Standing by the door, PO3 Manlangit noticed a carton box under the dining
table. He saw that one of the box's flaps was open and inside the box was
something wrapped in plastic. The plastic wrapper and its contents appeared
similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused,
PO3 Manlangit entered "Neneth's" house and took hold of the box. He
peeked inside the box and found that it contained ten (10) bricks of what
appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the
marked bills from "Neneth."[8] The policemen arrested "Neneth." They took
"Neneth" and "Jun," together with the box, its contents and the marked bills
and turned them over to the investigator at headquarters. It was only then
that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth"
is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's"
house were examined at the PNP Crime Laboratory.[9] The bricks, eleven
(11) in all, were found to be dried marijuana fruiting tops of various weights
totalling 7,641.08 grams.[10]
The prosecution story was denied by accused-appellants Florencio
Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified
that on December 5, 1995, at 7:00 in the morning, he was at the gate of his
house reading a tabloid newspaper. Two men appeared and asked him if he
knew a certain "Totoy." There were many "Totoys" in their area and as the
men questioning him were strangers, accused-appellant denied knowing any
"Totoy." The men took accused-appellant inside his house and accused him
of being a pusher in their community. When accused-appellant denied the
52
charge, the men led him to their car outside and ordered him to point out the
house of "Totoy." For five (5) minutes, accused-appellant stayed in the
car. Thereafter, he gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one
answered. One of the men, later identified as PO3 Manlangit, pushed open
the door and he and his companions entered and looked around the house
for about three minutes. Accused-appellant Doria was left standing at the
door. The policemen came out of the house and they saw Violeta Gaddao
carrying water from the well. He asked Violeta where "Totoy" was but she
replied he was not there. Curious onlookers and kibitzers were, by that time,
surrounding them. When Violeta entered her house, three men were already
inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw a
box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the
car. They were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta
Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and
Totoy Gaddao sometimes drank together at the neighborhood store. This
closeness, however, did not extend to Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed
that on December 5, 1995, she was at her house at Daang Bakal,
Mandaluyong City where she lived with her husband and five (5) children,
namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged
5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the
morning and bought pan de sal for her children's breakfast. Her husband,
Totoy, a housepainter, had left for Pangasinan five days earlier. She woke
her children and bathed them. Her eldest son, Arvy, left for school at 6:45
A.M. Ten minutes later, she carried her youngest son, Jayson, and
accompanied Arjay to school. She left the twins at home leaving the door
open. After seeing Arjay off, she and Jayson remained standing in front of
the school soaking in the sun for about thirty minutes. Then they headed for
home. Along the way, they passed the artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket suddenly
appeared and grabbed her left wrist. The man pulled her and took her to her
house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other
persons. They asked her about a box on top of the table. This was the first
time she saw the box. The box was closed and tied with a piece of green
straw. The men opened the box and showed her its contents. She said she
did not know anything about the box and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused
Florencio Doria was a friend of her husband, and that her husband never
returned to their house after he left for Pangasinan. She denied the charge
against her and Doria and the allegation that marked bills were found in her
person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the
accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-appellants
to death and pay a fine of P500,000.00 each. The dispositive portion of the
decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of the
present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659
which cover violations of Sec. 4 of Republic Act No. 6425 and which was
exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from
five hundred thousand pesos to ten million pesos. Taking into consideration,
however, the provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any
person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of
gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said
FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in
case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to
the Dangerous Drugs Board, NBI for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from
the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and
53
also for accused GADDAO for her transfer to the Correctional Institute for
Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme
Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE
TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN
THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE
THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS
THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND
DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE
THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE
ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST
MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND
ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND
SENTENCING HER TO DEATH DESPITE THE MANIFESTLY
IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE
POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY
WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN
THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS,
AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE
WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE
MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-
APPELLANT."[15]
The assigned errors involve two principal issues: (1) the validity of the
buy-bust operation in the apprehension of accused-appellant Doria; and (2)
the validity of the warrantless arrest of accused-appellant Gaddao, the
search of her person and house, and the admissibility of the pieces of
evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A
buy-bust operation is a form of entrapment employed by peace officers as an
effective way of apprehending a criminal in the act of the commission of an
offense.[16] Entrapment has received judicial sanction when undertaken with
due regard to constitutional and legal safeguards.[17]
Entrapment was unknown in common law. It is a judicially created
twentieth-century American doctrine that evolved from the increasing use of
informers and undercover agents in the detection of crimes, particularly liquor
and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel
and the public interest in the formulation and application of decent standards
in the enforcement of criminal law.[19] It also took off from a spontaneous
moral revulsion against using the powers of government to beguile innocent
but ductile persons into lapses that they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally
negative meaning because it is understood as the inducement of one to
commit a crime not contemplated by him, for the mere purpose of instituting
a criminal prosecution against him.[21] The classic definition of entrapment is
that articulated by Justice Roberts in Sorrells v. United States,[22] the first
Supreme Court decision to acknowledge the concept: "Entrapment is the
conception and planning of an offense by an officer, and his procurement of
its commission by one who would not have perpetrated it except for the
trickery, persuasion or fraud of the officer."[23] It consists of two (2) elements:
54
(a) acts of persuasion, trickery, or fraud carried out by law enforcement
officers or the agents to induce a defendant to commit a crime; and (b) the
origin of the criminal design in the minds of the government officials rather
than that of the innocent defendant, such that the crime is the product of the
creative activity of the law enforcement officer.[24]
It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate the law.
Not every deception is forbidden. The type of entrapment the law forbids is
the inducing of another to violate the law, the "seduction" of an otherwise
innocent person into a criminal career.[25] Where the criminal intent originates
in the mind of the entrapping person and the accused is lured into the
commission of the offense charged in order to prosecute him, there is
entrapment and no conviction may be had.[26] Where, however, the criminal
intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or public
officials furnished the accused an opportunity for commission of the offense,
or that the accused is aided in the commission of the crime in order to secure
the evidence necessary to prosecute him, there is no entrapment and the
accused must be convicted.[27] The law tolerates the use of decoys and other
artifices to catch a criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an
accused and partakes of the nature of a confession and avoidance. [29] It is a
positive defense. Initially, an accused has the burden of providing sufficient
evidence that the government induced him to commit the offense. Once
established, the burden shifts to the government to show otherwise.[30] When
entrapment is raised as a defense, American federal courts and a majority of
state courts use the "subjective" or "origin of intent" test laid down in Sorrells
v. United States[31] to determine whether entrapment actually occurred. The
focus of the inquiry is on the accused's predisposition to commit the offense
charged, his state of mind and inclination before his initial exposure to
government agents.[32] All relevant facts such as the accused's mental and
character traits, his past offenses, activities, his eagerness in committing the
crime, his reputation, etc., are considered to assess his state of mind before
the crime.[33] The predisposition test emphasizes the accused's propensity to
commit the offense rather than the officer's misconduct [34] and reflects an
attempt to draw a line between a "trap for the unwary innocent and the trap
for the unwary criminal."[35] If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the entrapment
defense will fail even if a police agent used an unduly persuasive
inducement.[36] Some states, however, have adopted the "objective"
test.[37] This test was first authoritatively laid down in the case of Grossman v.
State[38] rendered by the Supreme Court of Alaska. Several other states have
subsequently adopted the test by judicial pronouncement or legislation. Here,
the court considers the nature of the police activity involved and the propriety
of police conduct.[39] The inquiry is focused on the inducements used by
government agents, on police conduct, not on the accused and his
predisposition to commit the crime. For the goal of the defense is to deter
unlawful police conduct.[40]The test of entrapment is whether the conduct of
the law enforcement agent was likely to induce a normally law-abiding
person, other than one who is ready and willing, to commit the offense; [41] for
purposes of this test, it is presumed that a law-abiding person would normally
resist the temptation to commit a crime that is presented by the simple
opportunity to act unlawfully.[42] Official conduct that merely offers such an
opportunity is permissible, but overbearing conduct, such as badgering,
cajoling or importuning,[43] or appeals to sentiments such as pity, sympathy,
friendship or pleas of desperate illness, are not.[44] Proponents of this test
believe that courts must refuse to convict an entrapped accused not because
his conduct falls outside the legal norm but rather because, even if his guilt
has been established, the methods employed on behalf of the government to
bring about the crime "cannot be countenanced." To some extent, this
reflects the notion that the courts should not become tainted by condoning
law enforcement improprieties.[45] Hence, the transactions leading up to the
offense, the interaction between the accused and law enforcement officer
and the accused's response to the officer's inducements, the gravity of the
crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a
normal person.[46]
Both the "subjective" and "objective" approaches have been criticized
and objected to. It is claimed that the "subjective" test creates an "anything
goes" rule, i.e., if the court determines that an accused was predisposed to
commit the crime charged, no level of police deceit, badgering or other
unsavory practices will be deemed impermissible.[47] Delving into the
accused's character and predisposition obscures the more important task of
judging police behavior and prejudices the accused more generally. It
ignores the possibility that no matter what his past crimes and general
disposition were, the accused might not have committed the particular crime
unless confronted with inordinate inducements.[48] On the other extreme, the
purely "objective" test eliminates entirely the need for considering a particular
accused's predisposition. His predisposition, at least if known by the police,
may have an important bearing upon the question of whether the conduct of
the police and their agents was proper.[49] The undisputed fact that the
accused was a dangerous and chronic offender or that he was a shrewd and
active member of a criminal syndicate at the time of his arrest is relegated to
irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to
entrapment. Some states in the United States now combine both the
55
"subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme
Court declared that the permissibility of police conduct must first be
determined. If this objective test is satisfied, then the analysis turns to
whether the accused was predisposed to commit the crime. [53] In Baca v.
State,[54] the New Mexico Supreme Court modified the state's entrapment
analysis by holding that "a criminal defendant may successfully assert a
defense of entrapment, either by showing lack of predisposition to commit
the crime for which he is charged, or, that the police exceeded the standards
of proper investigation.[55] The hybrid approaches combine and apply the
"objective" and "subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers
while apprehending the accused caught in flagrante delicto. In United States
v. Phelps,[56] we acquitted the accused from the offense of smoking opium
after finding that the government employee, a BIR personnel, actually
induced him to commit the crime in order to prosecute him. Smith, the BIR
agent, testified that Phelps' apprehension came after he overheard Phelps in
a saloon say that he liked smoking opium on some occasions. Smith's
testimony was disregarded. We accorded significance to the fact that it was
Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug.[57] The conduct of the
BIR agent was condemned as "most reprehensible."[58] In People v.
Abella,[59] we acquitted the accused of the crime of selling explosives after
examining the testimony of the apprehending police officer who pretended to
be a merchant. The police officer offered "a tempting price, xxx a very high
one" causing the accused to sell the explosives. We found that there was
inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the
accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the
accused after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman
smoothed the way for the introduction of opium from Hongkong to Cebu after
the accused had already planned its importation and ordered said drug. We
ruled that the apprehending officer did not induce the accused to import
opium but merely entrapped him by pretending to have an understanding
with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se
Tieng[63] we first laid down the distinction between entrapment vis-a-vis
instigation or inducement. Quoting 16 Corpus Juris,[64] we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the
practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being criminal or punishable,
the general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the
criminal act was done at the 'decoy solicitation' of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present and
apparently assisting in its commission. Especially is this true in that class of
cases where the offense is one of a kind habitually committed, and the
solicitation merely furnishes evidence of a course of conduct. Mere deception
by the detective will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the detective. The fact that an
agent of an owner acts as a supposed confederate of a thief is no defense to
the latter in a prosecution for larceny, provided the original design was
formed independently of such agent; and where a person approached by the
thief as his confederate notifies the owner or the public authorities, and,
being authorised by them to do so, assists the thief in carrying out the plan,
the larceny is nevertheless committed. It is generally held that it is no
defense to a prosecution for an illegal sale of liquor that the purchase was
made by a 'spotter,' detective, or hired informer; but there are cases holding
the contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of the Court
of Appeals. In People v. Galicia,[66] the appellate court declared that "there is
a wide difference between entrapment and instigation." The instigator
practically induces the would-be accused into the commission of the offense
and himself becomes a co-principal. In entrapment, ways and means are
resorted to by the peace officer for the purpose of trapping and capturing the
lawbreaker in the execution of his criminal plan.[67] In People v. Tan
Tiong,[68] the Court of Appeals further declared that "entrapment is no bar to
the prosecution and conviction of the lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia was
affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further held, is
not contrary to public policy. It is instigation that is deemed contrary to public
policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American
jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense available to the
accused. It is instigation that is a defense and is considered an absolutory
cause.[72] To determine whether there is entrapment or instigation, our courts
have mainly examined the conduct of the apprehending officers, not the
predisposition of the accused to commit the crime. The "objective" test first
applied in United States v. Phelps has been followed in a series of similar
cases.[73] Nevertheless, adopting the "objective" approach has not precluded
56
us from likewise applying the "subjective" test. In People v. Boholst,[74] we
applied both tests by examining the conduct of the police officers in a buy-
bust operation and admitting evidence of the accused's membership with the
notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered
accused's previous convictions of other crimes [75] and held that his
opprobrious past and membership with the dreaded gang strengthened the
state's evidence against him. Conversely, the evidence that the accused did
not sell or smoke marijuana and did not have any criminal record was
likewise admitted in People v. Yutuc[76] thereby sustaining his defense that
led to his acquittal.
The distinction between entrapment and instigation has proven to be
very material in anti-narcotics operations. In recent years, it has become
common practice for law enforcement officers and agents to engage in buy-
bust operations and other entrapment procedures in apprehending drug
offenders. Anti-narcotics laws, like anti-gambling laws are regulatory
statutes.[77] They are rules of convenience designed to secure a more orderly
regulation of the affairs of society, and their violation gives rise to
crimes mala prohibita.[78] They are not the traditional type of criminal law
such as the law of murder, rape, theft, arson, etc. that deal with crimes mala
in se or those inherently wrongful and immoral.[79] Laws defining crimes mala
prohibita condemn behavior directed, not against particular individuals, but
against public order.[80] Violation is deemed a wrong against society as a
whole and is generally unattended with any particular harm to a definite
person.[81] These offenses are carried on in secret and the violators resort to
many devices and subterfuges to avoid detection. It is rare for any member
of the public, no matter how furiously he condemns acts mala prohibita, to be
willing to assist in the enforcement of the law. It is necessary, therefore, that
government in detecting and punishing violations of these laws, rely, not
upon the voluntary action of aggrieved individuals, but upon the diligence of
its own officials. This means that the police must be present at the time the
offenses are committed either in an undercover capacity or through
informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice legislation,
the confidential informant system breeds abominable abuse. Frequently, a
person who accepts payment from the police in the apprehension of drug
peddlers and gamblers also accept payment from these persons who
deceive the police. The informant himself may be a drug addict, pickpocket,
pimp, or other petty criminal. For whatever noble purpose it serves, the
spectacle that government is secretly mated with the underworld and uses
underworld characters to help maintain law and order is not an inspiring
one.[83] Equally odious is the bitter reality of dealing with unscrupulous,
corrupt and exploitative law enforcers. Like the informant, unscrupulous law
enforcers' motivations are legion-- harassment, extortion, vengeance,
blackmail, or a desire to report an accomplishment to their superiors. This
Court has taken judicial notice of this ugly reality in a number of
cases[84] where we observed that it is a common modus operandi of corrupt
law enforcers to prey on weak and hapless persons, particularly
unsuspecting provincial hicks.[85] The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the
hands or property of trusting and ignorant persons, and the imposed secrecy
that inevitably shrouds all drug deals have compelled this Court to be extra-
vigilant in deciding drug cases.[86]Criminal activity is such that stealth and
strategy, although necessary weapons in the arsenal of the police officer,
become as objectionable police methods as the coerced confession and the
unlawful search.As well put by the Supreme Court of California in People v.
Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and
seizures, wiretapping, false arrest, illegal detention and the third degree, it is
a type of lawless enforcement. They all spring from common
motivations. Each is a substitute for skillful and scientific investigation. Each
is condoned by the sinister sophism that the end, when dealing with known
criminals of the 'criminal classes,' justifies the employment of illegal
means."[88]
It is thus imperative that the presumption, juris tantum, of regularity in the
performance of official duty by law enforcement agents raised by the Solicitor
General be applied with studied restraint. This presumption should not by
itself prevail over the presumption of innocence and the constitutionally-
protected rights of the individual.[89] It is the duty of courts to preserve the
purity of their own temple from the prostitution of the criminal law through
lawless enforcement.[90] Courts should not allow themselves to be used as an
instrument of abuse and injustice lest an innocent person be made to suffer
the unusually severe penalties for drug offenses.[91]
We therefore stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly and
adequately shown. This must start from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment
of the consideration until the consummation of the sale by the delivery of the
illegal drug subject of the sale.[92] The manner by which the initial contact was
made, whether or not through an informant, the offer to purchase the drug,
the payment of the "buy-bust" money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of
strict scrutiny by courts to insure that law-abiding citizens are not unlawfully
induced to commit an offense. Criminals must be caught but not at all cost.
At the same time, however, examining the conduct of the police should not
57
disable courts into ignoring the accused's predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency, recidivism or plain
criminal proclivity, then this must also be considered. Courts should look at
all factors to determine the predisposition of an accused to commit an
offense in so far as they are relevant to determine the validity of the defense
of inducement.
In the case at bar, the evidence shows that it was the confidential
informant who initially contacted accused-appellant Doria. At the pre-
arranged meeting, the informant was accompanied by PO3 Manlangit who
posed as the buyer of marijuana. PO3 Manlangit handed the marked money
to accused-appellant Doria as advance payment for one (1) kilo of marijuana.
Accused-appellant Doria was apprehended when he later returned and
handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward and
categorical manner and his credibility was not crumpled on cross-
examination by defense counsel. Moreover, PO3 Manlangit's testimony was
corroborated on its material points by SPO1 Badua, his back-up security.
The non-presentation of the confidential informant is not fatal to the
prosecution. Informants are usually not presented in court because of the
need to hide their identity and preserve their invaluable service to the
police.[93] It is well-settled that except when the appellant vehemently denies
selling prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers,[94] or there are reasons to believe that
the arresting officers had motives to testify falsely against the appellant,[95] or
that only the informant was the poseur-buyer who actually witnessed the
entire transaction,[96] the testimony of the informant may be dispensed with
as it will merely be corroborative of the apprehending officers' eyewitness
testimonies.[97] There is no need to present the informant in court where the
sale was actually witnessed and adequately proved by prosecution
witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies
and the other police officers' testimonies are minor and do not detract from
the veracity and weight of the prosecution evidence. The source of the
money for the buy-bust operation is not a critical fact in the case at bar. It is
enough that the prosecution proved that money was paid to accused-
appellant Doria in consideration of which he sold and delivered the
marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana
"sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit
himself before the trial court. After appellants' apprehension, the Narcom
agents placed this one (1) brick of marijuana recovered from appellant Doria
inside the carton box lumping it together with the ten (10) bricks inside. This
is why the carton box contained eleven (11) bricks of marijuana when
brought before the trial court. The one (1) brick recovered from appellant
Doria and each of the ten (10) bricks, however, were identified and marked in
court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?
A This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated
from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the
fact that we are now dealing with eleven items when the question
posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out
item after item from the box showed to him and brought in front of
him.
COURT Noted.
Q Now tell the court, how did you know that those are the eleven
bricks?
x x x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM
and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused
Jun, your Honor?
58
 PROSECUTOR Your Honor, there is already a ruling by this Honorable
Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation of
what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun,
sir.
COURT Why do you know that that is the thing? Are you sure that is
not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
x x x.
PROSECUTOR May we request that a tag be placed on this white
plastic bag and this be marked as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the other
letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time and
this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this
morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one who
made these markings, sir.
PROSECUTOR May we place on record that the one that was enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that
enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that
was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper,
with a newspaper wrapping with a piece of paper inside which
reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x x x.
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in
the hands of Neneth and so we proceeded to the house of
Neneth, sir.
x x x."[99]
The first brick identified by P03 Manlangit was the brick of marijuana "given
to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This
brick, including the newspaper and white plastic wrapping were marked as
Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred
seventy (970) grams.[100]
We also reject appellant's submission that the fact that PO3 Manlangit
and his team waited for almost one hour for appellant Doria to give them the
one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant
cannot capitalize on the circumstance that the money and the marijuana in
the case at bar did not change hands under the usual "kaliwaan"
59
system. There is no rule of law which requires that in "buy-bust" operations
there must be a simultaneous exchange of the marked money and the
prohibited drug between the poseur-buyer and the pusher.[101] Again, the
decisive fact is that the poseur-buyer received the marijuana from the
accused-appellant.[102]
We also hold that the warrantless arrest of accused-appellant Doria is
not unlawful. Warrantless arrests are allowed in three instances as provided
by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:
"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 in fact just been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
x x x."[103]
Under Section 5 (a), as above-quoted, a person may be arrested without a
warrant if he "has committed, is actually committing, or is attempting to
commit an offense." Appellant Doria was caught in the act of committing an
offense. When an accused is apprehended in flagrante delicto as a result of
a buy-bust operation, the police are not only authorized but duty-bound to
arrest him even without a warrant.[104]
The warrantless arrest of appellant Gaddao, the search of her person
and residence, and the seizure of the box of marijuana and marked bills are
different matters.
Our Constitution proscribes search and seizure without a judicial
warrant and any evidence obtained without such warrant is inadmissible for
any purpose in any proceeding.[105] The rule is, however, not absolute.
Search and seizure may be made without a warrant and the evidence
obtained therefrom may be admissible in the following instances: [106] (1)
search incident to a lawful arrest;[107] (2) search of a moving motor
vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence
in plain view;[110] (5) when the accused himself waives his right against
unreasonable searches and seizures.[111]
The prosecution admits that appellant Gaddao was arrested without a
warrant of arrest and the search and seizure of the box of marijuana and the
marked bills were likewise made without a search warrant. It is claimed,
however, that the warrants were not necessary because the arrest was made
in "hot pursuit" and the search was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant Gaddao must fall under
any of the three (3) instances enumerated in Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure as aforequoted. The direct testimony of
PO3 Manlangit, the arresting officer, however shows otherwise:
"ATTY VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for
that question.
Q This particular exhibit that you identified, the wrapper and the contents
was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto Street, sir.
Q How about the other items that you were able to recover?
ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be
no basis for that question.
COURT There is. Answer.
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in
the hands of Neneth and so we proceeded to the house of
Neneth, sir.
Q Whereat?
A At Daang Bakal near the crime scene at Shaw Boulevard, sir.
Q And what happened upon arrival thereat?
A We saw alias Neneth inside the house and we asked him to give
us the buy-bust money, sir.
Q You mentioned "him?"
60
 A Her, sir. We asked her to give us the money, the marked money A PO3 Manlangit, sir.
which Jun gave her, sir.
Q You did not approach her because PO3 Manlangit approached her?
Q And what happened?
A Yes, sir.
A At this instance, it was SPO1 Badua who can testify regarding this buy-
bust money, sir. Q During all the time that this confrontation, arrest or whatever by SPO3
Manlangit was taking place, you were just in the side lines?
x x x."[112]
A I was just watching, sir.
SPO1 Badua testified on cross-examination that:
Q So you were just an on-looker to what Manlangit was doing, because
Q What was your intention in going to the house of Aling Neneth? precisely according to you your role in this buy-bust operation was as
a back-up?
A To arrest her, sir.
A Yes, sir.
Q But the fact is, Mr. Witness, when you reached the house of Aling
Neneth, Aling Neneth was there? Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
A Yes, sir. A PO3 Manlangit, sir.
Q As far as you can see, she was just inside her house? Q Manlangit got the marijuana?
A I saw her outside, sir. A Yes, sir.
Q She was fetching water as a matter of fact? Q And the money from Aling Neneth?
A She was `sa bandang poso.' A I don't know, sir.
Q Carrying a baby? Q You did not even know who got the money from Aling Neneth?
A No, sir. PROSECUTOR:
Q At that particular time when you reached the house of Aling There is no basis for this question, your Honor. Money, there's no
Neneth and saw her outside the house, she was not committing testimony on that.
any crime, she was just outside the house?
ATTY. VALDEZ:
A No, sir.
I was asking him precisely.
Q She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct? PROSECUTOR:

A I just saw her outside, sir. No basis.

Q And at that point in time you already wanted to arrest her. That is COURT:
correct, is it not? Sustained.
A Yes, sir. Q Alright. I will ask you a question and I expect an honest
Q Now, if any memory of your testimony is correct, according to you answer. According to the records, the amount of P1,600.00 was
SPO1 Manlangit approached her? recovered from the person of Aling Neneth. That's right?
A Yes, sir, the buy-bust money.
61
 Q What you are now saying for certain and for the record is the fact that
you were not the one who retrieved the money from Aling Neneth, it
was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
A The buy-bust money was recovered from the house of Aling Neneth,
sir.
Q It was taken from the house of Aling Neneth, not from the person of
Aling Neneth. Is that what you are trying to tell the Court?
A No, sir.
ATTY. VALDEZ: I am through with this witness, your Honor."[113]
Accused-appellant Gaddao was not caught red-handed during the buy-
bust operation to give ground for her arrest under Section 5 (a) of Rule
113. She was not committing any crime. Contrary to the finding of the trial
court, there was no occasion at all for appellant Gaddao to flee from the
policemen to justify her arrest in "hot pursuit."[114] In fact, she was going
about her daily chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the
second instance of Rule 113. "Personal knowledge" of facts in arrests
without warrant under Section 5 (b) of Rule 113 must be based upon
"probable cause" which means an "actual belief or reasonable grounds of
suspicion."[115] The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested.[116] A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officers making the
arrest.[117]
Accused-appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused. PO3 Manlangit, however,
declared in his direct examination that appellant Doria named his co-accused
in response to his (PO3 Manlangit's) query as to where the
marked money was.[118] Appellant Doria did not point to appellant Gaddao as
his associate in the drug business, but as the person with whom he left the
marked bills. This identification does not necessarily lead to the conclusion
that appellant Gaddao conspired with her co-accused in pushing
drugs. Appellant Doria may have left the money in her house, [119] with or
without her knowledge, with or without any conspiracy. Save for accused-
appellant Doria's word, the Narcom agents had no reasonable grounds to
believe that she was engaged in drug pushing. If there is no showing that the
person who effected the warrantless arrest had, in his own right, knowledge
of facts implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable.[120]
Since the warrantless arrest of accused-appellant Gaddao was illegal, it
follows that the search of her person and home and the subsequent seizure
of the marked bills and marijuana cannot be deemed legal as an incident to
her arrest. This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless
seizure valid.
Objects falling in plain view of an officer who has a right to be in the
position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence.[121] The "plain view" doctrine
applies when the following requisites concur: (a) the law enforcement officer
in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure.[122] The law enforcement officer must lawfully
make an initial intrusion or properly be in a position from which he can
particularly view the area.[123] In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. [124] The
object must be open to eye and hand[125] and its discovery inadvertent.[126]
It is clear that an object is in plain view if the object itself is plainly
exposed to sight. The difficulty arises when the object is inside a closed
container. Where the object seized was inside a closed package, the object
itself is not in plain view and therefore cannot be seized without a
warrant. However, if the package proclaims its contents, whether by its
distinctive configuration, its transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may be seized. [127] In other
words, if the package is such that an experienced observer could infer from
its appearance that it contains the prohibited article, then the article is
deemed in plain view.[128] It must be immediately apparent to the police that
the items that they observe may be evidence of a crime, contraband or
otherwise subject to seizure.[129]
PO3 Manlangit, the Narcom agent who found the box, testified on cross-
examination as follows:
"ATTY. VALDEZ:
62
 So here we are. When you and Badua arrived, Aling Neneth was A Yes, sir.
inside the house?
Q And got hold of this carton?
A Yes, sir.
A Yes, sir.
Q Badua demanded from Aling Neneth the buy-bust money?
Q Did you mention anything to Aling Neneth?
A Yes, sir.
A I asked her, what's this...
Q At that particular instance, you saw the carton?
Q No, no. no. did you mention anything to Aling Neneth before getting the
A Yes, sir. carton?
Q This carton, according to you was under a table? A I think it was Badua who accosted Aling Neneth regarding the buy-bust
money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang
A Yes, sir, dining table. buy-bust money namin?" sir.
Q I noticed that this carton has a cover? Q Making reference to the marijuana that was given by alias Jun?
A Yes, sir. A Yes, sir.
Q I ask you were the flaps of the cover raised or closed? Q When you proceeded to take hold of this carton, Aling Neneth was not
A It was open, sir. Not like that. yet frisked, is it not [sic]?

COURT A I just don't know if she was frisked already by Badua, sir.

Go down there. Show to the court. Q Who got hold of this?

INTERPRETER A I was the one, sir.

Witness went down the witness stand and approached a carton box. Q You were the one who got this?

A Like this, sir. A Yes, sir.

PROSECUTOR Q At that particular point in time, you did not know if the alleged buy-bust
money was already retrieved by Badua?
Can we describe it?
A Yes, sir.
ATTY. VALDEZ
Q You went inside the house?
Yes.
A Yes, sir.
PROSECUTOR
Q You did not have any search warrant?
One flap is inside and the other flap is standing and with the
contents visible. A Yes, sir.

COURT Q In fact, there was nothing yet as far as you were concerned to validate
the fact that Mrs. Gadao was in possession of the buy-bust money
Noted. because according to you, you did not know whether Badua already
retrieved the buy-bust money from her?
Q At this juncture, you went inside the house?

63
A Yes, sir. ATTY. VALDEZ
Q How far was this from the door? What is that? What can you say, Fiscal? I'm asking you?
A Two and a half meters from the door, sir. It was in plain view. PROSECUTOR
Q Under the table according to you? With due respect, what I am saying is, let's place the size of the
plastic. A piece of plastic may be big or a small one, for record
A Yes, sir, dining table. purposes.
Q Somewhere here? COURT
A It's far, sir. Leave that to the court.
PROSECUTOR PROSECUTOR
May we request the witness to place it, where he saw it? Leave that to the court.
A Here, sir. Q The only reason according to you, you were able to... Look at this,
Q What you see is a carton? no even Superman... I withdraw that. Not even a man with very
kin [sic] eyes can tell the contents here. And according to the
A Yes, sir, with plastic. Court, it could be "tikoy," is it not [sic]?
Q Marked "Snow Time Ice Pop?" A Yes, sir.
A Yes, sir. Q Siopao?
Q With a piece of plastic visible on top of the carton? A Yes, sir.
A Yes, sir. Q Canned goods?
Q That is all that you saw? A Yes, sir.
A Yes, sir. Q It could be ice cream because it says Snow Pop, Ice Pop?
PROSECUTOR A I presumed it was also marijuana because it may ...
For the record, your Honor... Q I am not asking you what your presumptions are. I'm asking you
what it could possibly be.
Q You were only able to verify according to you...
A It's the same plastic, sir.
PROSECUTOR
ATTY. VALDEZ
Panero, wait. Because I am objecting to the words a piece of
plastic. By reading it... I'm not even asking you that question so why are you voluntarily
saying the information. Let the prosecutor do that for you.
ATTY. VALDEZ
COURT
That's a piece of plastic.
Continue. Next question.
PROSECUTOR
x x x."[130]
By reading it, it will connote... this is not a piece of plastic.
64
PO3 Manlangit and the police team were at appellant Gaddao's house
because they were led there by appellant Doria. The Narcom agents testified
that they had no information on appellant Gaddao until appellant Doria
named her and led them to her.[131] Standing by the door of appellant
Gaddao's house, PO3 Manlangit had a view of the interior of said
house. Two and a half meters away was the dining table and underneath it
was a carton box. The box was partially open and revealed something
wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the
contents of the box were marijuana because he himself checked and marked
the said contents.[132] On cross-examination, however, he admitted that he
merely presumed the contents to be marijuana because it had the same
plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records
reveals that the plastic wrapper was not colorless and transparent as to
clearly manifest its contents to a viewer. Each of the ten (10) bricks of
marijuana in the box was individually wrapped in old newspaper and
placed inside plastic bags-- white, pink or blue in color.[133] PO3
Manlangit himself admitted on cross-examination that the contents of
the box could be items other than marijuana. He did not know exactly
what the box contained that he had to ask appellant Gaddao about its
contents.[134] It was not immediately apparent to PO3 Manlangit that the
content of the box was marijuana. The marijuana was not in plain view and
its seizure without the requisite search warrant was in violation of the law and
the Constitution.[135] It was fruit of the poisonous tree and should have been
excluded and never considered by the trial court.[136]
The fact that the box containing about six (6) kilos of marijuana [137] was
found in the house of accused-appellant Gaddao does not justify a finding
that she herself is guilty of the crime charged.[138]Apropos is our ruling
in People v. Aminnudin,[139] viz:
"The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the
liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the
guilty alike against any manner of high-handedness from the authorities,
however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding
the right of the individual in the name of order. Order is too high a price for
the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that
some criminals should escape than that the government should play an
ignoble part.' It is simply not allowed in the free society to violate a law to
enforce another, especially if the law violated is the Constitution itself."[140]
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972,
as amended by Section 13 of Republic Act No. 7659 punishes the "sale,
administration, delivery, distribution and transportation of a prohibited drug"
with the penalty of reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs.-- The penalty of reclusion perpetua to death, and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
x x x."
In every prosecution for illegal sale of dangerous drugs, what is material is
the submission of proof that the sale took place between the poseur-buyer
and the seller thereof and the presentation of the drug, i.e., the corpus delicti,
as evidence in court.[141] The prosecution has clearly established the fact that
in consideration of P1,600.00 which he received, accused-appellant Doria
sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove
that accused-appellant Gaddao conspired with accused-appellant Doria in
the sale of said drug. There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch
156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is
reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to
suffer the penalty of reclusion perpetua and to pay a fine of five hundred
thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
65
G.R. Nos. 111771-77 November 9, 1993
ANTONIO L. SANCHEZ, petitioner,
vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding
Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable
FRANKLIN DRILON (in his capacity as Secretary of Justice),
JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON,
RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P.
LORENZO, the last six respondents in their official capacities as
members of the State Prosecutor's Office), respondents.
Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.
The Solicitor General for respondents.
CRUZ, J.:
There is probably no more notorious person in the country today than Mayor
Antonio L. Sanchez of Calauan, Laguna, who stands accused of an
unspeakable crime. On him, the verdict has already been rendered by many
outraged persons who would immediately impose on him an angry sentence.
Yet, for all the prejudgments against him, he is under our Constitution
presumed innocent as long as the contrary has not been proved. Like any
other person accused of an offense, he is entitled to the full and vigilant
protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the respondent
judge denying his motion to quash the informations for rape with homicide
filed against him and six other persons. We shall treat it as we would any
other suit filed by any litigant hoping to obtain a just and impartial judgment
from this Court.
The pertinent facts are as follows:
On July 28, 1993, the Presidential Anti-Crime Commission requested the
filing of appropriate charges against several persons, including the petitioner,
in connection with the rape-slay of Mary Eileen Sarmenta and the killing of
Allan Gomez.
Acting on this request, the Panel of State Prosecutors of the Department of
Justice conducted a preliminary investigation on August 9, 1993. Petitioner
Sanchez was not present but was represented by his counsel, Atty. Marciano
Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the
petitioner requesting him to appear for investigation at Camp Vicente Lim in
Canlubang, Laguna. It was served on Sanchez in the morning of August
13,1993, and he was immediately taken to the said camp.
At a confrontation that same day, Sanchez was positively identified by
Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed
confessions implicating him as a principal in the rape-slay of Sarmenta and
the killing of Gomez. The petitioner was then placed on "arrest status" and
taken to the Department of Justice in Manila.
The respondent prosecutors immediately conducted an inquest upon his
arrival, with Atty. Salvador Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant
was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the
Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases
Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section
1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention
Center, Camp Crame, where he remains confined.
On August 16, 1993, the respondent prosecutors filed with the Regional Trial
Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez,
Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George
Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a
warrant for the arrest of all the accused, including the petitioner, in
connection with the said crime.
The respondent Secretary of Justice subsequently expressed his
apprehension that the trial of the said cases might result in a miscarriage of
justice because of the tense and partisan atmosphere in Laguna in favor of
the petitioner and the relationship of an employee, in the trial court with one
of the accused. This Court thereupon ordered the transfer of the venue of the
seven cases to Pasig, Metro Manila, where they were raffled to respondent
Judge Harriet Demetriou.
66
On September 10, 1993, the seven informations were amended to include Sanchez is concerned, We are not going to submit any
the killing of Allan Gomez as an aggravating circumstance. counter-affidavit.

On that same date, the petitioner filed a motion to quash the informations ACSP Zuo to Atty. Brion:
substantially on the grounds now raised in this petition. On September 13,
1993, after oral arguments, the respondent judge denied the motion. xxx xxx xxx
Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction. Q. So far, there are no other statements.

The petitioner argues that the seven informations filed against him should be
quashed because: 1) he was denied the right to present evidence at the
preliminary investigation; 2) only the Ombudsman had the competence to
conduct the investigation; 3) his warrantless arrest is illegal and the court has
therefore not acquired jurisdiction over him, 4) he is being charged with
seven homicides arising from the death of only two persons; 5) the
informations are discriminatory because they do not include Teofilo Alqueza
and Edgardo Lavadia; and 6) as a public officer, he can be tried for the
offense only by the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we required
a Reply from the petitioner within a non-extendible period of five days.1 The
Reply was filed five days late. 2 The Court may consider his non-compliance
an implied admission of the respondents' arguments or a loss of interest in
prosecuting his petition, which is a ground for its dismissal. Nevertheless, we
shall disregard this procedural lapse and proceed to discuss his petition on
the basis of the arguments before us.
The Preliminary Investigation.
The records of the hearings held on August 9 and 13, 1993, belie the
petitioner's contention that he was not accorded the right to present counter-
affidavits.
A. If there is none then, we will not submit
any counter-affidavit because we believe
there is nothing to rebut or countermand
with all these statements.
Q. So, you are waiving your submission of
counter-affidavit?
A. Yes, your honor, unless there are other
witnesses who will come up soon. 3
Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito
Zuo, told Atty. Brion that he could still file a counter-affidavit up to August
27, 1993. No such counter-affidavit was filed.
During the hearing on August 1'3, 1993, respondent Zuo furnished the
petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn
statements of Centeno and Malabanan, and told him he could submit
counter-affidavits on or before August 27, 1993. The following exchange
ensued:
ACSP Zuo:

During the preliminary investigation on August 9, 1993, the petitioner's For the record, we are furnishing to you the
counsel, Atty. Marciano Brion, manifested that his client was waiving the sworn statement of witness Aurelio Centeno
presentation of a counter-affidavit, thus: y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles.
Atty. Brion, Jr.:
Do I understand from you that you are again
[W]e manifest that after reviewing them there is nothing to waiving the submission of counter-affidavit?
rebut or countermand all these statements as far as Mayor
Atty. Panelo:

67
 Yes.
ACSP Zuo:
So, insofar as the respondent, Mayor
Antonio Sanchez is concerned, this case is
submitted for resolution. 4
On the other hand, there is no support for the petitioner's subsequent
manifestation that his counsel, Atty. Brion, was not notified of the inquest
held on August 13, 1993, and that he was not furnished with the affidavits
sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with
their supplemental affidavits dated August 15, 1993. Moreover, the above-
quoted excerpt shows that the petitioner's counsel at the hearing held on
August 13, 1993, was not Atty. Brion but Atty. Panelo.
The petitioner was present at that hearing and he never disowned Atty.
Panelo as his counsel. During the entire proceedings, he remained quiet and
let this counsel speak and argue on his behalf. It was only in his tardy Reply
that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.
Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the
respondent cannot be subpoenaed or, if subpoenaed, does not submit
counter-affidavits, the investigating officer shall base his resolution on the
evidence presented by the complainant.
Just as the accused may renounce the right to be present at the preliminary
investigation5, so may he waive the right to present counter-affidavits or any
other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation does
not impair the validity of the information or otherwise render the same
defective and neither does it affect the jurisdiction of the court over the case
or constitute a ground for quashing the information.6
If no preliminary investigation has been held, or if it is flawed, the trial court
may, on motion of the accused, order an investigation or reinvestigation and
hold the proceedings in the criminal case in abeyance. 7 In the case at bar,
however, the respondent judge saw no reason or need for such a step.
Finding no arbitrariness in her factual conclusions, we shall defer to her
judgment.
Jurisdiction of the Ombudsman
Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the
proceedings conducted by the Department of Justice are null and void
because it had no jurisdiction over the case. His claim is that it is the Office of
the Ombudsman that is vested with the power to conduct the investigation of
all cases involving public officers like him, as the municipal mayor of
Calauan, Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph (1) of
R.A. 6770 to investigate and prosecute, any illegal act or omission of any
public official. However, as we held only two years ago in the case
of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but
rather a shared or concurrent authority in. respect of the offense charged."
Petitioners finally assert that the information and amended
information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and
amended information here did not have the approval of the
Ombudsman. However, we do not believe that such
approval was necessary at all. In Deloso v. Domingo, 191
SCRA. 545 (1990), the Court held that the Ombudsman has
authority to investigate charges of illegal or omissions on the
part of any public official, i.e., any crime imputed to a public
official. It must, however, be pointed out that the authority of
the Ombudsman to investigate "any [illegal] act or omission
of any public official" (191 SCRA at 550)
is not an exclusiveauthority but rather a shared or concurrent
authority in respect of the offense here charged, i.e., the
crime of sedition. Thus, the non-involvement of the office of
the Ombudsman in the present case does not have any
adverse legal consequence upon the authority the panel of
prosecutors to file and prosecute the information or
amended information.
In fact, other investigatory agencies, of the government such as the
Department of Justice, in connection with the charge of sedition, 10 and the
Presidential Commission on Good Government, in ill-gotten wealth
cases,11 may conduct the investigation,
The Arrest
Was petitioner Sanchez arrested on August 13, 1993?
68
"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the
taking of a person into custody in order that he may be bound to answer for
the commission of an offense. Under Section 2 of the same Rule, an arrest is
effected by an actual restraint of the person to be arrested or by his voluntary
submission to the custody of the person making the arrest.
Application of actual force, manual touching of the body, physical restraint or
a formal declaration of arrest is not, required. It is enough that there be an
intent on the part of one of the parties to arrest the other and an intent onthe
part of the other to submit, under the belief and impression that submission is
necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue
of a letter-invitation issued by PNP Commander Rex Piad requesting him to
appear at the said camp for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an
invitation to attend a hearing and answer some questions,
which the person invited may heed or refuse at his pleasure,
is not illegal or constitutionally objectionable. Under certain
circumstances, however, such an invitation can easily
assume a different appearance. Thus, where the invitation
comes from a powerful group composed predominantly of
ranking military officers issued at a time when the country
has just emerged from martial rule and when the suspension
of the privilege of the writ of habeas corpus has not entirely
been lifted, and the designated interrogation site is a military
camp, the same can be easily taken, not as a strictly
voluntary invitation which it purports to be, but as an
authoritative command which one can only defy at his peril. .
. . (Emphasis supplied)
In the case at bar, the invitation came from a high-ranking military official and
the investigation of Sanchez was to be made at a military camp. Although in
the guise of a request, it was obviously a command or an order of arrest that
the petitioner could hardly he expected to defy. In fact, apparently cowed by
the "invitation," he went without protest (and in informal clothes and slippers
only) with the officers who had come to fetch him.
It may not be amiss to observe that under R.A. No. 7438, the requisites of a
"custodial investigation" are applicable even to a person not formally arrested
but merely "invited" for questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner was
placed on "arrest status" after he was pointed to by Centeno and Malabanan
as the person who first raped Mary Eileen Sarmenta. Respondent Zuo
himself acknowledged during the August 13, 1993 hearing that, on the basis
of the sworn statements of the two state witnesses, petitioner had been
"arrested."
We agree with the petitioner that his arrest did not come under Section 5,
Rule 113 of the Rules of Court, providing as follows:
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 in fact just been committed and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escapes from a penal establishment or place where he is
serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
It is not denied that the arresting officers were not present when the
petitioner allegedly participated in the killing of Allan Gomez and the rape-
slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge
that the petitioner was responsible therefor because the basis of the arrest
was the sworn statements of Centeno and Malabanan. Moreover, as the
rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993,
or forty-six days before the date of the arrest, it cannot be said that the
offense had "in fact just been committed" when the petitioner was arrested.
69
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the
person of the petitioner by virtue of the warrant of arrest it issued on August
26, 1993 against him and the other accused in connection with the rape-slay
cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the
trial court still lawfully acquired jurisdiction over the person of the petitioner.
The rule is that if the accused objects to the jurisdiction of the court over his
person, he may move to quash the information, but only on that ground. If, as
in this case, the accused raises other grounds in the motion to quash, he is
deemed to have waived that objection and to have submitted his person to
the jurisdiction of that court.14
The Court notes that on August 13, 1993, after the petitioner was unlawfully
arrested, Judge Lanzanas issued a warrant of arrest against Antonio L.
Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for
the rape-slay cases, this first warrant served as the initial justification for his
detention.
The Court also adverts to its uniform ruling that the filing of charges, and the
issuance of the corresponding warrant of arrest, against a person invalidly
detained will cure the defect of that detention or at least deny him the right to
be released because of such defect. * Applicable by analogy to the case at
bar is Rule 102 Section 4 of the Rules of Court that:
Sec, 4. When writ is not allowed or discharge authorized.
If it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by
a court or judge or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason
of any informality or defect in the process, judgment, or
order. Nor shall, anything in this rule be held to authorize the
discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering
imprisonment under lawful judgment.
In one case, 16 the petitioner, sued on habeas corpus on the ground that she
had been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been
issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:
The, case has, indeed, become moot and academic
inasmuch as the new warrant of arrest complies with the
requirements of the Constitution and the Rules of Court
regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void,
being a general warrant, release of the petitioner for that
reason will be a futile act as it will be followed by her
immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This
Court will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court, 17 more
recently in the Umil case. 18
The Informations
The petitioner submits that the seven informations charging seven separate
homicides are absurd because the two victims in these cases could not have
died seven times.
This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit
rape, the homicide committed on the occasion or by reason
of each rape, must be deemed as a constituent of the
special complex crime of rape with homicide. Therefore,
there will be as many crimes of rape with homicide as there
are rapes committed.
In effect, the presence of homicide qualifies the crime of
rape, thereby raising its penalty to the highest degree. Thus,
homicide committed on the occasion or by reason of rape,
loses its character as an independent offense, but assumes
a new character, and functions like a qualifying
circumstance. However,by fiction of law, it merged with rape
to constitute an constituent element of a special complex
crime of rape with homicide with a specific penalty which is
in the highest degree, i.e. death (reduced to reclusion
70
 perpetua with the suspension of the application of the death
penalty by the Constitution).
It is clearly provided in Rule 110 of the Rules of Court that:
Sec. 13. Duplicity of offense. A complaint or information
must charge but one offense, except only in those cases in
which existing laws prescribe a simple punishment for
various offenses.
Rape with homicide comes within the exception under R.A. 2632 and R.A.
4111, amending the Revised Penal Code.
The petitioner and his six co-accused are not charged with only one rape
committed by him in conspiracy with the other six. Each one of the seven
accused is charged with having himself raped Sarmenta instead of simply
helping Sanchez in committing only one rape. In other words, the allegation
of the prosecution is that the girl was raped seven times, with each of the
seven accused taking turns in abusing her with the assistance of the other
six. Afterwards, their lust satisfied, all seven of them decided to kill and thus
silence Sarmenta.
Every one of the seven accused is being charged separately for actually
raping Sarmenta and later killing her instead of merely assisting the petitioner
in raping and then slaying her. The separate informations filed against each
of them allege that each of the seven successive rapes is complexed by the
subsequent slaying of Sarmenta and aggravated by the killing of Allan
Gomez by her seven attackers. The separate rapes were committed in
succession by the seven accused, culminating in the slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan
Gomez were killed seven times, but the informations do not make such a
suggestion. It is the petitioner who does so and is thus hoist by his own
petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the non-
inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must
also be dismissed.
While the prosecuting officer is required by law to charge all those who in his
opinion, appear to be guilty, he nevertheless cannot be compelled to include
in the information a person against whom he believes no sufficient evidence
of guilt exists. 19 The appreciation of the evidence involves the use of
discretion on the part of the prosecutor, and we do not find in the case at bar
a clear showing by the petitioner of a grave abuse of such discretion. 20
The decision of the prosecutor may be reversed or modified by the Secretary
of Justice or in special cases by the President of the Philippines. 21 But even
this Court cannot order the prosecution of a person against whom the
prosecutor does not find sufficient evidence to support at least a prima
facie case. The courts try and absolve or convict the accused but as a rule
have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave
abuse of discretion that will justify judicial intrusion into the precincts of the
executive. But in such a case the proper remedy to call for such exception is
a petition for mandamus, not certiorari or prohibition.22 Moreover, before
resorting to this relief, the party seeking the inclusion of another person as a
co-accused in the same case must first avail itself of other adequate
remedies such as the filing of a motion for such inclusion.23
At any rate, it is a preposterous contention that because no charges have
been filed against Alqueza and Lavadia, the charges against the petitioner
and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent
public officials or employees at the time of the alleged commission of the
crimes, the cases against them should come under the jurisdiction of the
Sandiganbayan and not of the regular courts. This contention was withdrawn
in his Reply but we shall discuss it just the same for the guidance of all those
concerned.
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861,
provides:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:
a) Exclusive original jurisdiction in all cases involving:
71
 (1) Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code:
(2) Other offenses or felonies committed by
public officers and employees in relation to
their office, including those employed in
government-owned or controlled
corporations, whether simple or complexed
with other crimes, where the penalty
prescribed by law is higher than prision
correccional or imprisonment for six (6)
years, or a fine of P6,000.00. . . . (Emphasis
supplied)
The crime of rape with homicide with which the petitioner stands charged
obviously does not fall under paragraph (1), which deals with graft and
corruption cases. Neither is it covered by paragraph (2) because it is not an
offense committed in relation to the office of the petitioner.
In Montilla v, Hilario,24 this Court described the "offense committed in relation
to the office" as follows:
[T]he relation between the crime and the office contemplated
by the Constitution is, in our opinion, direct and not
accidental. To fall into the intent of the Constitution, the
relation has to be such that, in the legal sense, the offense
cannot exist without the office. In other words, the office
must be a constituent element of the crime as defined in the
statute, such as, for instance, the crimes defined and
punished in Chapter Two to Six, Title Seven, of the Revised
Penal Code.
Public office is not of the essence of murder. The taking of
human life is either murder or homicide whether done by a
private citizen or public servant, and the penalty is the same
except when the perpetrator. being a public functionary took
advantage of his office, as alleged in this case, in which
event the penalty is increased.
But the use or abuse of office does not adhere to the crime
as an element; and even as an aggravating circumstance, its
materiality arises not from the allegations but on the proof,
not from the fact that the criminals are public officials but
from the manner of the commission of the crime
There is no direct relation between the commission of the crime of rape with
homicide and the petitioner's office as municipal mayor because public office
is not an essential element of the crime charged. The offense can stand
independently of the office. Moreover, it is not even alleged in the information
that the commission of the crime charged was intimately connected with the
performance of the petitioner's official functions to make it fall under the
exception laid down in People v. Montejo. 25
In that case, a city mayor and several detectives were charged with murder
for the death of a suspect as a result of a "third degree" investigation held at
a police substation. The appearance of a senator as their counsel was
questioned by the prosecution on the ground that he was inhibited by the
Constitution from representing them because they were accused of an
offense committed in relation to their office. The Court agreed. It held that
even if their position was not an essential ingredient of the offense, there was
nevertheless an intimate connection between the office and the offense, as
alleged in the information, that brought it within the definition of an offense
"committed in relation to the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public
office is not an element of the crime of murder in abstract, as
committed by the main respondents herein, according to the
amended information, the offense therein charged
is intimately connected with their respective offices and was
perpetrated while they were in the performance, though
improper or irregular, of their official functions. Indeed they
had no personal motive to commit the crime and they would
not have committed it had they not held their aforesaid
offices. The co-defendants of respondent Leroy S. Brown,
obeyed his instructions because he was their superior
officer, as Mayor of Basilan City. (Emphasis supplied).
We have read the informations in the case at bar and find no allegation
therein that the crime of rape with homicide imputed to the petitioner was
connected with the discharge of his functions as municipal mayor or that
72
there is an "intimate connection" between the offense and his office. It follows
that the said crime, being an ordinary offense, is triable by the regular courts
and not the Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner are not
supported by the facts and the applicable law and jurisprudence. They must,
therefore, all be rejected. In consequence, the respondent judge, who has
started the trial of the criminal cases against the petitioner and his co-
accused, may proceed therewith without further hindrance.

It remains to stress that the decision we make today is not a decision on the
merits of the criminal cases being tried below. These will have to be decided
by the respondent judge in accordance with the evidence that is still being
received. At this time, there is yet no basis for judgment, only uninformed
conjecture. The Court will caution against such irrelevant public speculations
as they can be based only on imperfect knowledge if not officious ignorance.

WHEREFORE, the petition is DISMISSED. The respondent judge is

DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142,
101143, 101144, 101145, 101146 and 101147 and to decide them with
deliberate dispatch.

SO ORDERED.

Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo,

Quiason, Puno and Vitug, JJ., concur.

Narvasa, C.J., took no part.

Bellosillo, J., is on leave.

73
G.R. No. 127685 July 23, 1998 services on social security and reduce, if not totally eradicate
fraudulent transactions and misrepresentations;
BLAS F. OPLE, petitioner,
WHEREAS, a concerted and collaborative effort among the
vs. various basic services and social security providing agencies
and other government intrumentalities is required to achieve
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, such a system;
CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA,
CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE Republic of the Philippines, by virtue of the powers vested in
COMMISSION ON AUDIT, respondents. me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized

Identification Reference System. A decentralized
PUNO, J.: Identification Reference System among the key basic
services and social security providers is hereby established.
The petition at bar is a commendable effort on the part of Senator Blas F.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Agency Coordinating Committee (IACC) to draw-up the
Justice Brandeis considered as "the most comprehensive of rights and the
implementing guidelines and oversee the implementation of
right most valued by civilized men." 1 Petitioner Ople prays that we invalidate
the System is hereby created, chaired by the Executive
Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional Secretary, with the following as members:
grounds, viz: one, it is a usurpation of the power of Congress to legislate, and
two, it impermissibly intrudes on our citizenry's protected zone of privacy. We Head, Presidential Management Staff
grant the petition for the rights sought to be vindicated by the petitioner need
stronger barriers against further erosion. Secretary, National Economic Development Authority

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, Secretary, Department of the Interior and Local Government
1996 and reads as follows:
Secretary, Department of Health
ADOPTION OF A NATIONAL COMPUTERIZED
Administrator, Government Service Insurance System,
IDENTIFICATION REFERENCE SYSTEM
Administrator, Social Security System,
WHEREAS, there is a need to provide Filipino citizens and
foreign residents with the facility to conveniently transact Administrator, National Statistics Office
business with basic service and social security providers and
other government instrumentalities;
Managing Director, National Computer Center.

WHEREAS, this will require a computerized system to Sec. 3. Secretariat. The National Computer Center (NCC) is
properly and efficiently identify persons seeking basic
hereby designated as secretariat to the IACC and as such

74
 shall provide administrative and technical support to the of the Inter-Agency Coordinating Committee, are charged with the
IACC. implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Sec. 4. Linkage Among Agencies. The Population Reference
Number (PRN) generated by the NSO shall serve as the Petitioner contends:
common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate A. THE ESTABLISNMENT OF A NATIONAL
with the different Social Security and Services Agencies to COMPUTERIZED IDENTIFICATION REFERENCE
establish the standards in the use of Biometrics Technology SYSTEM REQUIRES A LEGISLATIVE ACT. THE
and in computer application designs of their respective ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
systems. REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE
Sec. 5. Conduct of Information Dissemination Campaign. LEGISLATIVE POWERS OF THE CONGRESS OF THE
The Office of the Press Secretary, in coordination with the REPUBLIC OF THE PHILIPPINES.
National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake a B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
massive tri-media information dissemination campaign to PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO.
educate and raise public awareness on the importance and 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
use of the PRN and the Social Security Identification EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
Reference. PUBLIC FUNDS FOR EXPENDITURE.

Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and
SSS shall submit regular reports to the Office of the
President through the IACC, on the status of implementation
of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the
year of Our Lord, Nineteen Hundred and Ninety-Six.
C. THE IMPLEMENTATION OF A.O. NO. 308
INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE
AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE
LEGISLATIVE POWERS OF CONGRESS;

(SGD.) FIDEL V. RAMOS C. THE FUNDS NECESSARY FOR THE

IMPLEMENTATION OF THE IDENTIFICATION
A.O. No. 308 was published in four newspapers of general circulation on REFERENCE SYSTEM MAY BE SOURCED FROM THE
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner BUDGETS OF THE CONCERNED AGENCIES;
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members

75
 D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I lawmaking domain of Congress is understandable. The blurring of the
As is usual in constitutional litigation, respondents raise the threshold issues
relating to the standing to sue of the petitioner and the justiciability of the
case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet
to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed
of the requisite standing to bring suit raising the issue that the issuance of
A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member
of the Government Service Insurance System (GSIS), petitioner can also
impugn the legality of the misalignment of public funds and the misuse of
GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the National Identification
(ID) card. 6 Respondent Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have completed the
guidelines for the national identification system. 7 All signals from the
respondents show their unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters insistence that we tighten the rule
on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by
this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of legislative power to Congress is
broad, general and comprehensive. 10 The legislative body possesses
plenary power for all purposes of civil government. 11 Any power, deemed to
be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. 12 In fine, except as limited
by the Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the Presidents. 15 It is
generally defined as the power to enforce and administer the laws. 16 It is the
power of carrying the laws into practical operation and enforcing their due
observance. 17
As head of the Executive Department, the President is the Chief Executive.
He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. 18 He has control
over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department,
bureau and office or interfere with the discretion of its officials. 19 Corollary to
the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It enables
76
the President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be
promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President
which relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987.
The Code is a general law and "incorporates in a unified document
the major structural, functional and procedural principles of
governance." 25 and "embodies changes in administrative structure
and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the
Distribution of Powers of the three branches of Government, Book III
on the Office of the President, Book IV on the Executive Branch,
Book V on Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure.
These Books contain provisions on the organization, powers and
general administration of the executive, legislative and judicial
branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government
budget, as well as guideline for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal
organization, personnel and recruitment, supervision and discipline,
and the effects of the functions performed by administrative officials
on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business
with government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification
card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher: ". .
. Many regulations however, bear directly on the public. It is here that
administrative legislation must he restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public law. Although
administrative regulations are entitled to respect, the authority to prescribe
rules and regulations is not an independent source of power to make
laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still
it cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to
be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United
States Supreme Court gave more substance to the right of privacy when it
ruled that the right has a constitutional foundation. It held that there is a right
77
of privacy which can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras
formed by emanations from these guarantees that help give
them life and substance . . . various guarantees create
zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the
quartering of soldiers "in any house" in time of peace without
the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ''right of the people
to be secure in their persons, houses and effects, against
unreasonable searches and seizures." The Fifth Amendment
in its Self-Incrimination Clause enables the citizen to create
a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides:
"The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold
ruling that there is a constitutional right to privacy. Speaking thru Mr.
Justice, later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which
made the use of contraceptives a criminal offence on the
ground of its amounting to an unconstitutional invasion of the
right of privacy of married persons; rightfully it stressed "a
relationship lying within the zone of privacy created by
several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has
come into its own.
So it is likewise in our jurisdiction. The right to privacy as
such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has
always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government
safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state
can control. Protection of this private sector protection, in
other words, of the dignity and integrity of the individual
has become increasingly important as modern society has
developed. All the forces of a technological age
industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a
democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions
of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.
xxx xxx xxx
78
 Sec. 6. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel
be impaired except in the interest of national security, public
safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in
the public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a witness
against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the
privacy of another. 35 It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the
Intellectual Property Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy
is a fundamental right guaranteed by the Constitution, hence, it is the burden
of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens and foreigners with the
facility to conveniently transact business with basic service and social
security providers and other government instrumentalities and (2) the need to
reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of
A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right
to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a
linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods
to biological facts; a mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable physical characteristic such
as a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke. 47 Most biometric idenfication systems use a
card or personal identificatin number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the card
or entering the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of identifying an individual
using a service. This technology requires one's fingertip to be scanned every
time service or access is provided. 50 Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary
pattern of the retina of the eye. This technology produces a unique print
similar to a finger print. 51 Another biometric method is known as the "artificial
nose." This device chemically analyzes the unique combination of
substances excreted from the skin of people. 52 The latest on the list of
biometric achievements is the thermogram. Scientists have found that by
taking pictures of a face using infra-red cameras, a unique heat distribution
pattern is seen. The different densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage.
Considering the banquest of options available to the implementors of A.O.
79
No. 308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will show that
it does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the
"generation of population data for development planning." 54 This is an
admission that the PRN will not be used solely for identification but the
generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be undarplayed as the dissenters do. Pursuant to said administrative
order, an individual must present his PRN everytime he deals with a
government agency to avail of basic services and security. His transactions
with the government agency will necessarily be recorded whether it be in
the computer or in the documentary file of the agency. The individual's file
may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better the
chance of building a huge formidable informatin base through the electronic
linkage of the files. 55 The data may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a temptation that may be
too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to
the name, address and other basic personal infomation about the
individual. 57 Even that hospitable assumption will not save A.O. No. 308
from constitutional infirmity for again said order does not tell us in clear and
categorical terms how these information gathered shall he handled. It does
not provide who shall control and access the data, under what circumstances
and for what purpose. These factors are essential to safeguard the privacy
and guaranty the integrity of the information. 58 Well to note, the computer
linkage gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When the
access code of the control programs of the particular computer system is
broken, an intruder, without fear of sanction or penalty, can make use of the
data for whatever purpose, or worse, manipulate the data stored within the
system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes. 60 The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individual's liberty of abode and
travel by enabling authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and circumvent the
right against self-incrimination; it may pave the way for "fishing expeditions"
by government authorities and evade the right against unreasonable
searches and seizures. 61 The possibilities of abuse and misuse of the PRN,
biometrics and computer technology are accentuated when we consider that
the individual lacks control over what can be read or placed on his ID, much
less verify the correctness of the data encoded. 62 They threaten the very
abuses that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-
to-grave dossier on an individual and transmit it over a national network is
one of the most graphic threats of the computer revolution. 64 The computer
is capable of producing a comprehensive dossier on individuals out of
information given at different times and for varied purposes. 65 It can continue
adding to the stored data and keeping the information up to date. Retrieval of
stored date is simple. When information of a privileged character finds its
way into the computer, it can be extracted together with other data on the
subject. 66Once extracted, the information is putty in the hands of any person.
The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's liberty
if it would not immediately smother the sparks that endanger their rights but
would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by
his conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable. 67 The
factual circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or
diminish this expectation. 69 The use of biometrics and computer technology
in A.O. No. 308 does not assure the individual of a reasonable expectation of
80
privacy. 70 As technology advances, the level of reasonably expected privacy
decreases. 71 The measure of protection granted by the reasonable
expectation diminishes as relevant technology becomes more widely
accepted. 72 The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. gives the IACC virtually infettered discretion to determine the
metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to the NSO with
imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure
of SSS employment records and reports. 74 These laws, however, apply to
records and data with the NSO and the SSS. It is not clear whether they may
be applied to data with the other government agencies forming part of the
National ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of
the right of privacy by using the rational relationship test. 75 He stressed that
the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development
planning. He cocludes that these purposes justify the incursions into the right
to privacy for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his
sources of income and expenses, did not infringe on the individual's right to
privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019
is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hod that
when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It
will not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated,
even when the government does not act irrationally. They must satisfactorily
show the presence of compelling state interests and that the law, rule or
regulation is narrowly drawn to preclude abuses. This approach is demanded
by the 1987 Constitution whose entire matrix is designed to protect human
rights and to prevent authoritarianism. In case of doubt, the least we can do
is to lean towards the stance that will not put in danger the rights protected
by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In
Whalen, the United States Supreme Court was presented with the question
of whether the State of New York could keep a centralized computer record
of the names and addresses of all persons who obtained certain drugs
pursuant to a doctor's prescription. The New York State Controlled
Substance Act of 1972 required physicians to identify parties obtaining
prescription drugs enumerated in the statute, i.e., drugs with a recognized
medical use but with a potential for abuse, so that the names and addresses
of the patients can be recorded in a centralized computer file of the State
Department of Health. The plaintiffs, who were patients and doctors, claimed
that some people might decline necessary medication because of their fear
that the computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug
addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally
protected zone of privacy, i.e., the individual interest in avoiding disclosure of
personal matters, and the interest in independence in making certain kinds of
important decisions. The U.S. Supreme Court held that while an individual's
interest in avoiding disclosuer of personal matter is an aspect of the right to
privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of dangerous drugs.
The patient-identification requirement was a product of an orderly and
rational legislative decision made upon recommmendation by a specially
appointed commission which held extensive hearings on the matter.
Moreover, the statute was narrowly drawn and contained numerous
safeguards against indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering, storage and retrieval of the
81
informatin. It ebumerated who were authorized to access the data. It also
prohibited public disclosure of the data by imposing penalties for its violation.
In view of these safeguards, the infringement of the patients' right to privacy
was justified by a valid exercise of police power. As we discussed above,
A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court
is not per se agains the use of computers to accumulate, store, process,
retvieve and transmit data to improve our bureaucracy. Computers work
wonders to achieve the efficiency which both government and private
industry seek. Many information system in different countries make use of
the computer to facilitate important social objective, such as better law
enforcement, faster delivery of public services, more efficient management of
credit and insurance programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely, data stored in the computer
could help good administration by making accurate and comprehensive
information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized information
technology. It developed the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway where the individual, armed
only with his personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and
the common good. It merely requires that the law be narrowly focused 85 and
a compelling interest justify such intrusions. 86 Intrusions into the right must
be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included the
idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed
one of the basic disctinctions between absolute and limited
government. Ultimate and pervasive control of the individual,
in all aspects of his life, is the hallmark of the absolute state.
In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can
control. Protection of this private sector protection, in
other words, of the dignity and integrity of the individual
has become increasingly important as modern society has
developed. All the forces of a technological age
industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a
democratic and a totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources governments,
journalists, employers, social scientists, etc. 88 In th case at bar, the threat
comes from the executive branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information
about themselves on the pretext that it will facilitate delivery of basic
services. Given the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing
result could be that everyone will live burdened by an unerasable record of
his past and his limitations. In a way, the threat is that because of its record-
keeping, the society will have lost its benign capacity to forget." 89 Oblivious
to this counsel, the dissents still say we should not be too quick in labelling
the right to privacy as a fundamental right. We close with the statement that
the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
82
G.R. No. 179736, June 26, 2013 construction;12 and that the acts of respondents violate petitioners right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove
SPOUSES BILL AND VICTORIA HING, Petitioners, v. ALEXANDER the video surveillance cameras and enjoined from conducting illegal
CHOACHUY, SR. AND ALLAN CHOACHUY, Respondents. surveillance.14

DECISION In their Answer with Counterclaim,15 respondents claimed that they did not
install the video surveillance cameras,16 nor did they order their employees to
DEL CASTILLO, J.: take pictures of petitioners construction.17 They also clarified that they are
not the owners of Aldo but are mere stockholders.18
The concept of liberty would be emasculated if it does not likewise compel Ruling of the Regional Trial Court
respect for [ones] personality as a unique individual whose claim to privacy
and [non]-interference demands respect.1 On October 18, 2005, the RTC issued an Order19 granting the application
for a TRO. The dispositive portion of the said Order
This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court reads:cralavvonlinelawlibrary
assails the July 10, 2007 Decision3 and the September 11, 2007
Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No. 01473. WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a
[W]rit of [P]reliminary [I]njunction is granted. Upon the filing and approval of
Factual Antecedents a bond by [petitioners], which the Court sets at P50,000.00, let a [W]rit of
[P]reliminary [I]njunction issue against the [respondents] Alexander
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Choachuy, Sr. and Allan Choachuy. They are hereby directed to immediately
Regional Trial Court (RTC) of Mandaue City a Complaint 5 for Injunction and remove the revolving camera that they installed at the left side of their
Damages with prayer for issuance of a Writ of Preliminary Mandatory building overlooking the side of [petitioners] lot and to transfer and operate it
Injunction/Temporary Restraining Order (TRO), docketed as Civil Case MAN- elsewhere at the back where [petitioners] property can no longer be viewed
5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr. within a distance of about 2-3 meters from the left corner of Aldo Servitec,
and Allan Choachuy. facing the road.
Petitioners alleged that they are the registered owners of a parcel of land (Lot IT IS SO ORDERED.20
1900-B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in
Barangay Basak, City of Mandaue, Cebu;6 that respondents are the owners Respondents moved for a reconsideration21 but the RTC denied the same in
of Aldo Development & Resources, Inc. (Aldo) located at Lots 1901 and its Order22 dated February 6, 2006.23 Thus:cralavvonlinelawlibrary
1900-C, adjacent to the property of petitioners;7 that respondents constructed
an auto-repair shop building (Aldo Goodyear Servitec) on Lot 1900-C; that in
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
April 2005, Aldo filed a case against petitioners for Injunction and Damages
merit. Issue a [W]rit of [P]reliminary [I]njunction in consonance with the
with Writ of Preliminary Injunction/TRO, docketed as Civil Case No. MAN- Order dated 18 October 2005.
5125;8 that in that case, Aldo claimed that petitioners were constructing a
fence without a valid permit and that the said construction would destroy the
IT IS SO ORDERED.24nadcralavvonlinelawlibrary
wall of its building, which is adjacent to petitioners property; 9 that the court,
in that case, denied Aldos application for preliminary injunction for failure to Aggrieved, respondents filed with the CA a Petition for Certiorari25 under
substantiate its allegations;10 that, in order to get evidence to support the said
Rule 65 of the Rules of Court with application for a TRO and/or Writ of
case, respondents on June 13, 2005 illegally set-up and installed on the Preliminary Injunction.
building of Aldo Goodyear Servitec two video surveillance cameras facing
petitioners property;11 that respondents, through their employees and without
Ruling of the Court of Appeals
the consent of petitioners, also took pictures of petitioners on-going

83
On July 10, 2007, the CA issued its Decision 26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued
with grave abuse of discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA explained that the right to
privacy of residence under Article 26(1) of the Civil Code was not violated
since the property subject of the controversy is not used as a residence. 28
The CA also said that since respondents are not the owners of the building,
they could not have installed video surveillance cameras.29 They are mere
stockholders of Aldo, which has a separate juridical personality. 30 Thus, they
are not the proper parties.31 The falloreads:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing premises, judgment is hereby
rendered by us GRANTING the petition filed in this case. The assailed orders
dated October 18, 2005 and February 6, 2006 issued by the respondent
judge are hereby ANNULLED and SET ASIDE.
SO ORDERED.32nadcralavvonlinelawlibrary
Issues
Hence, this recourse by petitioners arguing that:cralavvonlinelawlibrary
I.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
ANNULLED AND SET ASIDE THE ORDERS OF THE [RTC] DATED 18
OCTOBER 2005 AND 6 FEBRUARY 2006 HOLDING THAT THEY WERE
ISSUED WITH GRAVE ABUSE OF DISCRETION.
II.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED
THAT PETITIONER SPOUSES HING ARE NOT ENTITLED TO THE WRIT
OF PRELIMINARY INJUNCTION ON THE GROUND THAT THERE IS NO
VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY
DESPITE THE FACTUAL FINDINGS [OF] THE RTC, WHICH
RESPONDENTS CHOACHUY FAILED TO REFUTE, THAT THE
ILLEGALLY INSTALLED SURVEILLANCE CAMERAS OF RESPONDENTS
CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF
PETITIONER SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.
III.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED
THAT SINCE THE OWNER OF THE BUILDING IS ALDO DEVELOPMENT
AND RESOURCES, INC. THEN TO SUE RESPONDENTS CHOACHUY
CONSTITUTE[S] A PURPORTEDLY UNWARRANTED PIERCING OF THE
CORPORATE VEIL.
IV.
THE X X X [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
IGNORED THE SERIOUS FORMAL DEFICIENCIES OF BOTH THE
PETITION AND THE MOTION FOR RECONSIDERATION DATED 15
MARCH 2006 OF RESPONDENT[S] CHOACH[U]Y AND GAVE X X X
THEM DUE COURSE AND CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is a violation of
petitioners right to privacy, and (2) whether respondents are the proper
parties to this suit.
Petitioners Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents installation of a stationary camera directly
facing petitioners property and a revolving camera covering a significant
portion of the same property constitutes a violation of petitioners right to
privacy.34 Petitioners cite Article 26(1) of the Civil Code, which enjoins
persons from prying into the private lives of others.35 Although the said
provision pertains to the privacy of anothers residence, petitioners opine that
it includes business offices, citing Professor Arturo M. Tolentino. 36 Thus,
even assuming arguendo that petitioners property is used for business, it is
still covered by the said provision.37
As to whether respondents are the proper parties to implead in this case,
petitioners claim that respondents and Aldo are one and the same, and that
respondents only want to hide behind Aldos corporate fiction.38 They point
out that if respondents are not the real owners of the building, where the
video surveillance cameras were installed, then they had no business
consenting to the ocular inspection conducted by the court.39
Respondents Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners
cannot invoke their right to privacy since the property involved is not used as
a residence.40 Respondents maintain that they had nothing to do with the
installation of the video surveillance cameras as these were installed by Aldo,
84
the registered owner of the building,41 as additional security for its
building. 42 Hence, they were wrongfully impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our Constitution44 and in our laws. It is
defined as the right to be free from unwarranted exploitation of ones person
or from intrusion into ones private activities in such a way as to cause
humiliation to a persons ordinary sensibilities.45 It is the right of an
individual to be free from unwarranted publicity, or to live without
unwarranted interference by the public in matters in which the public is not
necessarily concerned.46 Simply put, the right to privacy is the right to be
let alone.47
The Bill of Rights guarantees the peoples right to privacy and protects them
against the States abuse of power. In this regard, the State recognizes the
right of the people to be secure in their houses. No one, not even the State,
except in case of overriding social need and then only under the stringent
procedural safeguards, can disturb them in the privacy of their homes.48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded therefrom
and only certain individuals are allowed
to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individuals
right to privacy and provides a legal remedy against abuses that may be
committed against him by other individuals. It states:cralavvonlinelawlibrary
Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and similar
acts, though they may not constitute a criminal offense, shall produce a
cause of action for damages, prevention and other
relief:cralavvonlinelawlibrary
(1) Prying into the privacy of anothers residence;chanroblesvirtualawlibrary
xxxx
This provision recognizes that a mans house is his castle, where his right to
privacy cannot be denied or even restricted by others. It includes any act of
intrusion into, peeping or peering inquisitively into the residence of another
without the consent of the latter.49 The phrase prying into the privacy of
anothers residence, however, does not mean that only the residence is
entitled to privacy. As elucidated by Civil law expert Arturo M.
Tolentino:cralavvonlinelawlibrary
Our Code specifically mentions prying into the privacy of anothers
residence. This does not mean, however, that only the residence is entitled
to privacy, because the law covers also similar acts. A business office is
entitled to the same privacy when the public is excluded therefrom and
only such individuals as are allowed to enter may come in. x x x50
(Emphasis supplied)
Thus, an individuals right to privacy under Article 26(1) of the Civil Code
should not be confined to his house or residence as it may extend to places
where he has the right to exclude the public or deny them access. The
phrase prying into the privacy of anothers residence, therefore, covers
places, locations, or even situations which an individual considers as private.
And as long as his right is recognized by society, other individuals may not
infringe on his right to privacy. The CA, therefore, erred in limiting the
application of Article 26(1) of the Civil Code only to residences.
The reasonable expectation of privacy
test is used to determine whether there
is a violation of the right to privacy.
In ascertaining whether there is a violation of the right to privacy, courts use
the reasonable expectation of privacy test. This test determines whether a
person has a reasonable expectation of privacy and whether the expectation
has been violated.51 In Ople v. Torres,52 we enunciated that the
reasonableness of a persons expectation of privacy depends on a two-part
test: (1) whether, by his conduct, the individual has exhibited an expectation
of privacy; and (2) this expectation is one that society recognizes as
reasonable. Customs, community norms, and practices may, therefore, limit
or extend an individuals reasonable expectation of privacy. 53 Hence, the
reasonableness of a persons expectation of privacy must be determined on
a case-to-case basis since it depends on the factual circumstances
surrounding the case.54
In this day and age, video surveillance cameras are installed practically
everywhere for the protection and safety of everyone. The installation of
85
these cameras, however, should not cover places where there is reasonable
expectation of privacy, unless the consent of the individual, whose right to
privacy would be affected, was obtained. Nor should these cameras be used
to pry into the privacy of anothers residence or business office as it would be
no different from eavesdropping, which is a crime under Republic Act No.
4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for Preliminary Injunction,
ruled that:cralavvonlinelawlibrary
After careful consideration, there is basis to grant the application for a
temporary restraining order. The operation by [respondents] of a revolving
camera, even if it were mounted on their building, violated the right of privacy
of [petitioners], who are the owners of the adjacent lot. The camera does not
only focus on [respondents] property or the roof of the factory at the back
(Aldo Development and Resources, Inc.) but it actually spans through a good
portion of [the] land of [petitioners].
Based on the ocular inspection, the Court understands why [petitioner] Hing
was so unyielding in asserting that the revolving camera was set up
deliberately to monitor the on[-]going construction in his property. The
monitor showed only a portion of the roof of the factory of [Aldo]. If the
purpose of [respondents] in setting up a camera at the back is to secure the
building and factory premises, then the camera should revolve only towards
their properties at the back. [Respondents] camera cannot be made to
extend the view to [petitioners] lot. To allow the [respondents] to do that
over the objection of the [petitioners] would violate the right of [petitioners] as
property owners. The owner of a thing cannot make use thereof in such a
manner as to injure the rights of a third person. 55
The RTC, thus, considered that petitioners have a reasonable expectation of
privacy in their property, whether they use it as a business office or as a
residence and that the installation of video surveillance cameras directly
facing petitioners property or covering a significant portion thereof, without
their consent, is a clear violation of their right to privacy. As we see then, the
issuance of a preliminary injunction was justified. We need not belabor that
the issuance of a preliminary injunction is discretionary on the part of the
court taking cognizance of the case and should not be interfered with, unless
there is grave abuse of discretion committed by the court.56 Here, there is no
indication of any grave abuse of discretion. Hence, the CA erred in finding
that petitioners are not entitled to an injunctive writ.
This brings us to the next question: whether respondents are the proper
parties to this suit.
A real party defendant is one who has a
correlative legal obligation to redress
a wrong done to the plaintiff by reason
of the defendant's act or omission which
had violated the legal right of the former.
Section 2, Rule 3 of the Rules of Court provides:cralavvonlinelawlibrary
SEC. 2. Parties-in-interest. A real party-in-interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party-
in-interest.
A real party defendant is one who has a correlative legal obligation to
redress a wrong done to the plaintiff by reason of the defendants act or
omission which had violated the legal right of the former. 57
In ruling that respondents are not the proper parties, the CA reasoned that
since they do not own the building, they could not have installed the video
surveillance cameras.58 Such reasoning, however, is erroneous. The fact
that respondents are not the registered owners of the building does not
automatically mean that they did not cause the installation of the video
surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used
against petitioners in another case.59 During the hearing of the application
for Preliminary Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately broached his
concerns but they did not seem to care,60 and thus, he reported the matter to
the barangay for mediation, and eventually, filed a Complaint against
respondents before the RTC.61 He also admitted that as early as 1998 there
has already been a dispute between his family and the Choachuy family
concerning the boundaries of their respective properties.62 With these factual
circumstances in mind, we believe that respondents are the proper parties to
be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from
its stockholders, records show that it is a family-owned corporation managed
by the Choachuy family.63
Also quite telling is the fact that respondents, notwithstanding their claim that
86
they are not owners of the building, allowed the court to enter the compound
of Aldo and conduct an ocular inspection. The counsel for respondents even
toured Judge Marilyn Lagura-Yap inside the building and answered all her
questions regarding the set-up and installation of the video surveillance
cameras.64 And when respondents moved for reconsideration of the Order
dated October 18, 2005 of the RTC, one of the arguments they raised is that
Aldo would suffer damages if the video surveillance cameras are removed
and transferred.65 Noticeably, in these instances, the personalities of
respondents and Aldo seem to merge.

All these taken together lead us to the inevitable conclusion that respondents
are merely using the corporate fiction of Aldo as a shield to protect
themselves from this suit. In view of the foregoing, we find that respondents
are the proper parties to this suit.

WHEREFORE, the Petition is hereby GRANTED. The Decision dated July

10, 2007 and the Resolution dated September 11, 2007 of the Court of
Appeals in CA-G.R. CEB-SP No. 01473 are hereby REVERSEDand SET
ASIDE. The Orders dated October 18, 2005 and February 6, 200[6] of
Branch 28 of the Regional Trial Court of Mandaue City in Civil Case No.
MAN-5223 are hereby REINSTATED and AFFIRMED.

SO ORDERED.

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

87
G.R. No. 182601 November 10, 2014
JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY
FERNANDEZ and RONALD MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari under Rule 45 of the Rules of
Court challenging the decision1 dated January 21, 2008 and the
resolution2 dated April 17, 2008 of the Court of Appeals (CA) in CAG.R. SP
No. 91541.
The appealed decision affirmed the Order dated March 16, 2005 of the
Regional Trial Court (RTC), Branch 96, Quezon City, denying Joey M.
Pestilos, Dwight Macapanas, Miguel Gaces, Jerry Fernandez, and Ronald
Munoz's (petitioners) Urgent Motion for Regular Preliminary Investigation, as
well as their subsequent motion for reconsideration.
The Antecedent Facts
The records of the case reveal that on February 20, 2005, at around 3: 15 in
the morning, an altercation ensued between the petitioners and Atty. Moreno
Generoso (Atty. Generoso) at Kasiyahan Street, Barangay Holy Spirit,
Quezon City where the petitioners and Atty. Generoso reside.3
Atty. Generoso called the Central Police District, Station 6 (Batas an Hills
Police Station) to report the incident.4Acting on this report, Desk Officer SPOl
Primitivo Monsalve (SPOJ Monsalve) dispatched SP02 Dominador Javier
(SP02 Javier) to go to the scene of the crime and to render
assistance.5 SP02 Javier, together with augmentation personnel from the
Airforce, A2C Alano Sayson and Airman Ruel Galvez, arrived at the scene of
the crime less than one hour after the alleged altercation 6 and they saw Atty.
Generoso badly beaten.7
Atty. Generoso then pointed to the petitioners as those who mauled him. This
prompted the police officers to "invite" the petitioners to go to Batasan Hills
Police Station for investigation.8 The petitioners went with the police officers
to Batasan Hills Police Station.9 At the inquest proceeding, the City
Prosecutor of Quezon City found that the petitioners stabbed Atty. Generoso
with a bladed weapon. Atty. Generoso fortunately survived the attack.10
In an Information dated February 22, 2005, the petitioners were indicted for
attempted murder allegedly committed as follows:
That on or about the 20th h day of February, 2005, in Quezon City,
Philippines, the said accused, conspiring together, confederating with and
mutually helping one another, with intent to kill, qualified with evident
premeditation, treachery and taking advantage of superior strength, did then
and there, willfully, unlawfully and feloniously commence the commission of
the crime of Murder directly by overt acts, by then and there stabbing one
Atty. MORENO GENEROSO y FRANCO, with a bladed weapon, but said
accused were not able to perform all the acts of execution which would
produce the crime of Murder by reason of some cause/s or accident other
than their own spontaneous desistance, that is, said complainant was able to
parry the attack, to his damage and prejudice.
CONTRARY TO LAW.11
On March 7, 2005, the petitioners filed an Urgent Motion for Regular
Preliminary Investigation12 on the ground that they had not been lawfully
arrested. They alleged that no valid warrantless arrest took place since the
police officers had no personal knowledge that they were the perpetrators of
the crime. They also claimed that they were just "invited" to the police station.
Thus, the inquest proceeding was improper, and a regular procedure for
preliminary investigation should have been performed pursuant to Rule 112
of the Rules of Court.13
On March 16, 2005, the RTC issued its order denying the petitioners' Urgent
Motion for Regular Preliminary Investigation.14 The court likewise denied the
petitioners' motion for reconsideration.15
The petitioners challenged the lower court's ruling before the CA on a Rule
65 petition for certiorari. They attributed grave abuse of discretion, amounting
to lack or excess of jurisdiction, on the R TC for the denial of their motion for
preliminary investigation.16
The Assailed CA Decision
On January 21, 2008, the CA issued its decision dismissing the petition for
lack of merit.17 The CA ruled that the word "invited" in the Affidavit of Arrest
88
executed by SP02 Javier carried the meaning of a command. The arresting
officer clearly meant to arrest the petitioners to answer for the mauling of
Atty. Generoso. The CA also recognized that the arrest was pursuant to a
valid warrantless arrest so that an inquest proceeding was called for as a
consequence. Thus, the R TC did not commit any grave abuse of discretion
in denying the Urgent Motion for Regular Preliminary Investigation.
The CA saw no merit in the petitioners' argument that the order denying the
Urgent Motion for Regular Preliminary Investigation is void for failure to
clearly state the facts and the law upon which it was based, pursuant to Rule
16, Section 3 of the Revised Rules of Court. The CA found that the RTC had
sufficiently explained the grounds for the denial of the motion.
The petitioners moved for reconsideration, but the CA denied the motion in
its Resolution of April 17, 2008;18 hence, the present petition.
The Issues
The petitioners cited the following assignment of errors:
I.
WHETHER OR NOT THE PETITIONERS WERE VALIDLY
ARRESTED WITHOUT A WARRANT.
II.
WHETHER OR NOT THE PETITIONERS WERE LAWFULLY
ARRESTED WHEN THEY WERE MERELY INVITED TO THE
POLICE PRECINCT.
III.
WHETHER OR NOT THE ORDER DENYING THE MOTION FOR
PRELIMINARY INVESTIGATION IS VOID FOR FAILURE TO
STATE THE FACTS AND THE LAW UPON WHICH IT WAS
BASED.
The petitioners primarily argue that they were not lawfully arrested. No arrest
warrant was ever issued; they went to the police station only as a response
to the arresting officers' invitation. They even cited the Affidavit of Arrest,
which actually used the word "invited. "
The petitioners also claim that no valid warrantless arrest took place under
the terms of Rule 112, Section 7 of the Revised Rules of Court. The incident
happened two (2) hours before the police officers actually arrived at the
crime scene. The police officers could not have undertaken a valid
warrantless arrest as they had no personal knowledge that the petitioners
were the authors of the crime.
The petitioners additionally argue that the R TC' s Order denying the Urgent
Motion for Regular Preliminary Investigation is void because it was not
properly issued.
The Court's Ruling
We find the petition unmeritorious and thus uphold the RTC Order. The
criminal proceedings against the petitioners should now proceed.
It is unfortunate that the kind of motion that the petitioners filed has to reach
this Court for its resolution. The thought is very tempting that the motion was
employed simply to delay the proceedings and that the use of Rule 65
petition has been abused.
But accepting things as they are, this delay can be more than compensated
by fully examining in this case the legalities surrounding warrantless warrants
and establishing the proper interpretation of the Rules for the guidance of the
bench and the bar. These Rules have evolved over time, and the present
case presents to us the opportunity to re-trace their origins, development and
the current applicable interpretation.
I. Brief history on warrantless arrests
The organic laws of the Philippines, specifically, the Philippine Bill of
1902,19 and the 1935,20 197321 and 198722Constitutions all protect the right of
the people to be secure in their persons against unreasonable searches and
seizures. Arrest falls under the term "seizure. "23
This constitutional mandate is identical with the Fourth Amendment of the
Constitution of the United States. The Fourth Amendment traces its origins to
the writings of Sir Edward Coke24 and The Great Charter of the Liberties of
England (Magna Carta Libertatum), sealed under oath by King John on the
bank of the River Thames near Windsor, England on June 15, 1215.25 The
Magna Carta Libertatum limited the King of England's powers and required
the Crown to proclaim certain liberties26 under the feudal vassals' threat of
89
civil war.27 The declarations in Chapter 29 of the Magna Carta Libertatum
later became the foundational component of the Fourth Amendment of the
United States Constitution.28 It provides:
No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold,
or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise
destroyed; nor will we not pass upon him, nor condemn him, but by lawful
Judgment of his Peers, or by the Law of the Land, We will sell to no man, we
will not deny or defer to any man either Justice or Right. 30 [Emphasis
supplied]
In United States v. Snyder,31 the United States Supreme Court held that this
constitutional provision does not prohibit arrests, searches and seizures
without judicial warrant, but only those that are unreasonable. 32 With regard
to an arrest, it is considered a seizure, which must also satisfy the test of
reasonableness.33
In our jurisdiction, early rulings of the Court have acknowledged the validity
of warrantless arrests. The Court based these rulings on the common law of
America and England that, according to the Court, were not different from the
Spanish laws.34 These court rulings likewise justified warrantless arrests
based on the provisions of separate laws then existing in the Philippines. 35
In 1905, the Court held in The United States v. Wilson36 that Section 3737 of
Act No. 183, or the Charter of Manila, defined the arresting officer's power to
arrest without a warrant, at least insofar as the City of Manila was concerned.
In The United States v. Vallejo, et al.,38 the Court held that in the absence of
any provisions under statutes or local ordinances, a police officer who held
similar functions as those of the officers established under the common law
of England and America, also had the power to arrest without a warrant in
the Philippines.
The Court also ruled in The United States v. Santos 39 that the rules on
warrantless arrest were based on common sense and reason. 40 It further
held that warrantless arrest found support under the then Administrative
Code41 which directed municipal policemen to exercise vigilance in the
prevention of public offenses.
In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and
3043 of the Provisional Law for the Application of the Penal Code which were
provisions taken from the Spanish Law.
These rules were subsequently established and incorporated in our Rules of
Court and jurisprudence. Presently, the requirements of a warrantless arrest
are now summarized in Rule 113, Section 5 which states that: Section 5.
Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraph (a) and (b) above, the person arrested
without a warrant shall be forth with delivered to the nearest police station or
jail and shall be proceeded against in accordance with section 7 of Rule 112.
A warrantless arrest under the circumstances contemplated under Section
5(a) above has been denominated as one "in flagrante delicto," while that
under Section 5(b) has been described as a "hot pursuit" arrest.44
For purposes of this case, we shall focus on Section 5(b) the provision
applicable in the present case. This provision has undergone changes
through the years not just in its phraseology but also in its interpretation in
our jurisprudence.
We shall first trace the evolution of Section 5(b) and examine the applicable
American and Philippine jurisprudence to fully understand its roots and its
appropriate present application.
II. Evolution of Section 5(b), Rule 113
A. Prior to the 1940 Rules of Court
Prior to 1940, the Court based its rulings not just on American and English
common law principle on warrantless arrests but also on laws then existing in
90
the Philippines. In Fortaleza,45 the Court cited Rule 28 of the Provisional Law
for the Application of the Penal Code which provided that:
Judicial and administrative authorities have power to detain, or to cause to be
detained, persons whom there is reasonable ground to believe guilty of some
offense. It will be the duty of the authorities, as well as of their agents, to
arrest:
First. Such persons as may be arrested under the provisions of rule 27.
Second. A person charged with a crime for which the code provides a
penalty greater than that of confinamiento.
Third. A person charged with a crime for which the code provides a penalty
less than that of confinamiento, if his antecedents or the circumstances of the
case would warrant the presumption that he would fail to appear when
summoned by the judicial authorities.
The provisions of the preceding paragraph shall not apply, however, to a
defendant who gives sufficient bond, to the satisfaction of the authority or
agent who may arrest him, and who it may reasonably be presumed will
appear whenever summoned by the judge or court competent to try him.
Fourth. A person coining under the provisions of the preceding paragraph
may be arrested, although no formal complaint has been filed against him,
provided the following circumstances are present:
First. That the authority or agent had reasonable cause to believe that an
unlawful act, amounting to a crime had been committed.
Second. That the authority or agent had sufficient reason to believe that the
person arrested participated in the commission of such unlawful act or
crime." [Emphasis and underscoring supplied]
In the same decision, the Court likewise cited Section 3 7 of the Charter of
Manila, which provided that certain officials, including police officers may,
within the territory defined in the law, pursue and arrest without warrant, any
person found in suspicious places or under suspicious circumstances,
reasonably tending to show that such person has committed, or is about to
commit any crime or breach of the peace.
In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace
officer may arrest persons walking in the street at night when there is
reasonable ground to suspect the commission of a crime, although there is
no proof of a felony having been committed.
The Court ruled in Santos that the arresting officer must justify that there was
a probable cause for an arrest without a warrant. The Court defined probable
cause as a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves as to warrant a reasonable man in believing
that the accused is guilty. Besides reasonable ground of suspicion, action in
good faith is another requirement. Once these conditions are complied with,
the peace officer is not liable even if the arrested person turned out to be
innocent.
Based on these discussions, it appears clear that prior to the 1940 Rules of
Court, it was not necessary for the arresting officer to first have knowledge
that a crime was actually committed. What was necessary was the presence
of reasonably sufficient grounds to believe the existence of an act having the
characteristics of a crime; and that the same grounds exist to believe that the
person sought to be detained participated in it. In addition, it was also
established under the old court rulings that the phrase "reasonable
suspicion" was tantamount to probable cause without which, the warrantless
arrest would be invalid and the arresting officer may be held liable for its
breach.48
In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a
Chinaman because the arresting person did not state in what way the
Chinaman was acting suspiciously or the particular act or circumstance
which aroused the arresting person's curiosity.
It appears, therefore, that prior to the establishment in our Rules of Court of
the rules on warrantless arrests, the gauge for a valid warrantless arrest was
the arresting officer's reasonable suspicion (probable cause) that a crime
was committed and the person sought to be arrested has participated in its
commission. This principle left so much discretion and leeway on the part of
the arresting officer. However, the 1940 Rules of Court has limited this
discretion.
B. The 1940 Rules of Court
(Restricting the arresting
officer's determination of
probable cause)
91
Rules 27 and 28 of the Provisional Law for the Application of the Penal Code
were substantially incorporated in Section 6, Rule 109 of the 1940 Rules of
Court as follows:50
SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has
committed it;
(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 temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
[Emphasis and underscoring supplied]
These provisions were adopted in toto in Section 6, Rule 113 of the 1964
Rules of Court. Notably, the 1940 and 1964 Rules have deviated from the old
rulings of the Court. Prior to the 1940 Rules, the actual commission of the
offense was not necessary in determining the validity of the warrantless
arrest. Too, the arresting officer's determination of probable cause (or
reasonable suspicion) applied both as to whether a crime has been
committed and whether the person to be arrested has committed it.
However, under the 1940 and the 1964 Rules of Court, the Rules required
that there should be actual commission of an offense, thus, removing the
element of the arresting officer's "reasonable suspicion of the commission of
an offense." Additionally, the determination of probable cause, or reasonable
suspicion, was limited only to the determination of whether the person to be
arrested has committed the offense. In other words, the 1940 and 1964
Rules of Court restricted the arresting officer's discretion in warrantless
arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.
C. The more restrictive 1985 Rules of Criminal Procedure
Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial
changes and was re-worded and re-numbered when it became Section 5,
Rule 113 of the 1985 Rules of Criminal Procedure, to wit:
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 in fact just been committed, and he has
personal knowledge of facts indicating 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 temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another. In
cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7. [Emphasis and underscoring
supplied]
As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the
restrictions introduced under the 1964 Rules of Court. More importantly,
however, it added a qualification that the commission of the offense should
not only have been "committed" but should have been "just committed." This
limited the arresting officer's time frame for conducting an investigation for
purposes of gathering information indicating that the person sought to be
arrested has committed the crime.
D. The Present Revised Rules of Criminal Procedure
Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further
amended with the incorporation of the word "probable cause" as the basis of
the arresting officer's determination on whether the person to be arrested has
committed the crime.
Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure provides that:
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.
92
From the current phraseology of the rules on warrantless arrest, it appears
that for purposes of Section S(b ), the following are the notable changes:
first, the contemplated offense was qualified by the word "just," connoting
immediacy; and second, the warrantless arrest of a person sought to be
arrested should be based on probable cause to be determined by the
arresting officer based on his personal knowledge of facts and circumstances
that the person to be arrested has committed it.
It is clear that the present rules have "objectified" the previously subjective
determination of the arresting officer as to the (1) commission of the crime;
and (2) whether the person sought to be arrested committed the crime.
According to Feria, these changes were adopted to minimize arrests based
on mere suspicion or hearsay.51
As presently worded, the elements under Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure are: first, an offense has just been
committed; and second, the arresting officer has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it.
For purposes of this case, we shall discuss these elements separately below,
starting with the element of probable cause, followed by the elements that
the offense has just been committed, and the arresting officer's personal
knowledge of facts or circumstances that the person to be arrested has
committed the crime.
i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure: Probable cause
The existence of "probable cause" is now the "objectifier" or the determinant
on how the arresting officer shall proceed on the facts and circumstances,
within his personal knowledge, for purposes of determining whether the
person to be arrested has committed the crime.
i.a) U.S. jurisprudence on probable cause in warrantless arrests
In Payton v. New York,52 the U.S. Supreme Court held that the Fourth
Amendment of the Federal Constitution does not prohibit arrests without a
warrant although such arrests must be reasonable. According to State v.
Quinn,53 the warrantless arrest of a person who was discovered in the act of
violating the law is not a violation of due process.
The U.S. Supreme Court, however indicated in Henry v. United States 54 that
the Fourth Amendment limited the circumstances under which warrantless
arrests may be made. The necessary inquiry is not whether there was a
warrant or whether there was time to get one, but whether at the time of the
arrest probable cause existed. The term probable cause is synonymous to
"reasonable cause" and "reasonable grounds."55
In determining the existence of probable cause, the arresting officer should
make a thorough investigation and exercise reasonable judgment. The
standards for evaluating the factual basis supporting a probable cause
assessment are not less stringent in warrantless arrest situation than in a
case where a warrant is sought from a judicial officer. The probable cause
determination of a warrantless arrest is based on information that the
arresting officer possesses at the time of the arrest and not on the
information acquired later.56
In evaluating probable cause, probability and not certainty is the determinant
of reasonableness under the Fourth Amendment. Probable cause involves
probabilities similar to the factual and practical questions of everyday life
upon which reasonable and prudent persons act. It is a pragmatic question to
be determined in each case in light of the particular circumstances and the
particular offense involved.57
In determining probable cause, the arresting officer may rely on all the
information in his possession, his fair inferences therefrom, including his
observations. Mere suspicion does not meet the requirements of showing
probable cause to arrest without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably trustworthy information as
well as personal knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a crime; and under the
circumstances, the arresting officer need not verify such information.58
In our jurisdiction, the Court has likewise defined probable cause in the
context of Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure.
In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts
must be based on probable cause, which means an actual belief or
reasonable grounds of suspicion. The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense is
based on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested.
93
A reasonable suspicion, therefore, must be founded on probable cause,
coupled with good faith on the part of the peace officers making the arrest.
i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, distinguished from probable cause in preliminary
investigations and the judicial proceeding for the issuance of a warrant of
arrest
The purpose of a preliminary investigation is to determine whether a crime
has been committed and whether there is probable cause to believe that the
accused is guilty of the crime and should be held for triat. 60 In Buchanan v.
Viuda de Esteban,61 we defined probable cause as the existence of facts and
circumstances as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted.
In this particular proceeding, the finding of the existence of probable cause
as to the guilt of the respondent was based on the submitted documents of
the complainant, the respondent and his witnesses.62
On the other hand, probable cause in judicial proceedings for the issuance of
a warrant of arrest is defined as the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be
arrested.
Hence, before issuing a warrant of arrest, the judge must be satisfied that
based on the evidence submitted, there is sufficient proof that a crime has
been committed and that the person to be arrested is probably guilty thereof.
At this stage of the criminal proceeding, the judge is not yet tasked to review
in detail the evidence submitted during the preliminary investigation. It is
sufficient that he personally evaluates the evidence in determining probable
cause63 to issue a warrant of arrest.
In contrast, the arresting officer's determination of probable cause under
Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure is based
on his personal knowledge of facts or circumstances that the person sought
to be arrested has committed the crime. These facts or circumstances
pertain to actual facts or raw evidence, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers
making.the arrest.
The probable cause to justify warrantless arrest ordinarily signifies a
reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged, 64 or an actual belief
or reasonable ground of suspicion, based on actual facts.65
It is clear therefore that the standard for determining "probable cause" is
invariable for the officer arresting without a warrant, the public prosecutor,
and the judge issuing a warrant of arrest. It is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be
arrested or held for trial, as the case may be.
However, while the arresting officer, the public prosecutor and the judge all
determine "probable cause," within the spheres of their respective functions,
its existence is influenced heavily by the available facts and circumstance
within their possession. In short, although these officers use the same
standard of a reasonable man, they possess dissimilar quantity of facts or
circumstances, as set by the rules, upon which they must determine probable
cause.
Thus, under the present rules and jurisprudence, the arresting officer should
base his determination of probable cause on his personal knowledge of facts
and circumstances that the person sought to be arrested has committed the
crime; the public prosecutor and the judge must base their determination on
the evidence submitted by the parties.
In other words, the arresting officer operates on the basis of more limited
facts, evidence or available information that he must personally gather within
a limited time frame.
Hence, in Santos,66 the Court acknowledged the inherent limitations of
determining probable cause in warrantless arrests due to the urgency of its
determination in these instances. The Court held that one should not expect
too much of an ordinary policeman. He is not presumed to exercise the
subtle reasoning of a judicial officer. Oftentimes, he has no opportunity to
make proper investigation but must act in haste on his own belief to prevent
the escape of the criminal.67
ii) Second and Third Elements of Section 5(b), Rule 113:
The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it
94
We deem it necessary to combine the discussions of these two elements as
our jurisprudence shows that these were usually taken together in the Court's
determination of the validity of the warrantless arrests that were made
pursuant to Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure.
In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on
December 8, 1994. It was only on December 11, 1994 that Chancellor
Posadas requested the NBI's assistance. On the basis of the supposed
identification of two (2) witnesses, the NBI attempted to arrest Francis Carlo
Taparan and Raymundo Narag three (3) days after the commission of the
crime. With this set of facts, it cannot be said that the officers have personal
knowledge of facts or circumstances that the persons sought to be arrested
committed the crime. Hence, the Court invalidated the warrantless arrest.
Similarly, in People v. Burgos,69 one Cesar Masamlok personally and
voluntarily surrendered to the authorities, stating that Ruben Burgos forcibly
recruited him to become a member of the NPA, with a threat of physical
harm. Upon receipt of this information, a joint team of PC-INP units was
dispatched to arrest Burgos who was then plowing the field. Indeed, the
arrest was invalid considering that the only information that the police officers
had in effecting the arrest was the information from a third person. It cannot
be also said in this case that there was certainty as regards the commission
of a crime.
In People v. del Rosario,70 the Court held that the requirement that an
offense has just been committed means that there must be a large measure
of immediacy between the time the offense was committed and the time of
the arrest. If there was an appreciable lapse of time between the arrest and
the commission of the crime, a warrant of arrest must be secured.
The Court held that the arrest of del Rosario did not comply with these
requirements because he was arrested only a day after the commission of
the crime and not immediately thereafter. Additionally, the arresting officers
were not present and were not actual eyewitnesses to the crime. Hence, they
had no personal knowledge of facts indicating that the person to be arrested
had committed the offense. They became aware of del Rosario's identity as
the driver of the getaway tricycle only during the custodial investigation.
In People v. Cendana,71 the accused was arrested one (1) day after the
killing of the victim and only on the basis of information obtained from
unnamed sources. The unlawful arrest was held invalid.
In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the
commission of the crime was held invalid because the crime had not just
been committed. Moreover, the "arresting" officers had no "personal
knowledge" of facts indicating that the accused was the gunman who had
shot the victim. The information upon which the police acted came from
statements made by alleged eyewitnesses to the shooting; one stated that
the accused was the gunman; another was able to take down the alleged
gunman's car's plate number which turned out to be registered in the name
of the accused's wife. That information did not constitute "personal
knowledge."
In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same
day was held valid. In this case, the arresting officer had knowledge of facts
which he personally gathered in the course of his investigation, indicating
that the accused was one of the perpetrators.
In People v. Gerente,74 the policemen arrested Gerente only about three (3)
hours after Gerente and his companions had killed the victim. The Court held
that the policemen had personal knowledge of the violent death of the victim
and of facts indicating that Gerente and two others had killed him. The
warrantless arrest was held valid.
In People v. Alvario,75 the warrantless arrest came immediately after the
arresting officers received information from the victim of the crime. The Court
held that the personal knowledge of the arresting officers was derived from
the information supplied by the victim herself who pointed to Alvario as the
man who raped her at the time of his arrest. The Court upheld the
warrantless arrest. In People v. Jayson,76 there was a shooting incident. The
policemen who were summoned to the scene of the crime found the victim.
The informants pointed to the accused as the assailant only moments after
the shooting. The Court held that the arresting officers acted on the basis of
personal knowledge of the death of the victim and of facts indicating that the
accused was the assailant. Thus, the warrantless arrest was held valid.
In People v. Acol,77 a group held up the passengers in a jeepney and the
policemen immediately responded to the report of the crime. One of the
victims saw four persons walking towards Fort Bonifacio, one of whom was
wearing his jacket. The victim pointed them to the policemen. When the
group saw the policemen coming, they ran in different directions. The Court
held that the arrest was valid.
In Cadua v. CA,78 there was an initial report to the police concerning a
robbery. A radio dispatch was then given to the arresting officers, who
95
proceeded to Alden Street to verify the authenticity of the radio message.
When they reached the place, they met with the complainants who initiated
the report about the robbery. Upon the officers' invitation, the victims joined
them in conducting a search of the nearby area where the accused was
spotted in the vicinity. Based on the reported statements of the complainants,
he was identified as a logical suspect in the offense just committed. Hence,
the arrest was held valid.
In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of
Criminal Procedure does not require the arresting officers to personally
witness the commission of the offense.
In this case, P/Supt. Doria alleged that his office received a telephone call
from a relative of Rosa Sia about a shooting incident. He dispatched a team
headed by SP03 Ramirez to investigate the incident. SP03 Ramirez later
reported that a certain William Sia was wounded while Judge Abelita III, who
was implicated in the incident, and his wife just left the place of the incident.
P/Supt. Doria looked for Abelita III and when he found him, he informed him
of the incident report. P/Supt. Doria requested Abelita III to go with him to the
police headquarters as he had been reported to be involved in the incident.
Abelita III agreed but suddenly sped up his vehicle and proceeded to his
residence where P/Supt. Doria caught him up as he was about to run
towards his house.
The police officers saw a gun in the front seat of the vehicle beside the
driver's seat as Abelita III opened the door. They also saw a shotgun at the
back of the driver's seat. The police officers confiscated the firearms and
arrested Abelita III. The Court held that the petitioner's act of trying to get
away, coupled with the incident report which they investigated, were enough
to raise a reasonable suspicion on the part of the police authorities as to the
existence of probable cause. Based on these discussions, it appears that the
Court's appreciation of the elements that "the offense has just been
committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular
circumstances of the case. However, we note that the element of ''personal
knowledge of facts or circumstances" under Section S(b ), Rule 113 of the
Revised Rules of Criminal Procedure requires clarification.
The phrase covers facts or, in the alternative, circumstances. According to
the Black's Law Dictionary,80"circumstances are attendant or accompanying
facts, events or conditions. " Circumstances may pertain to events or actions
within the actual perception, personal evaluation or observation of the police
officer at the scene of the crime. Thus, even though the police officer has not
seen someone actually fleeing, he could still make a warrantless arrest if,
based on his personal evaluation of the circumstances at the scene of the
crime, he could determine the existence of probable cause that the person
sought to be arrested has committed the crime. However, the determination
of probable cause and the gathering of facts or circumstances should be
made immediately after the commission of the crime in order to comply with
the element of immediacy.
In other words, the clincher in the element of ''personal knowledge of facts or
circumstances" is the required element of immediacy within which these facts
or circumstances should be gathered. This required time element acts as a
safeguard to ensure that the police officers have gathered the facts or
perceived the circumstances within a very limited time frame. This
guarantees that the police officers would have no time to base their probable
cause finding on facts or circumstances obtained after an exhaustive
investigation.
The reason for the element of the immediacy is this - as the time gap from
the commission of the crime to the arrest widens, the pieces of information
gathered are prone to become contaminated and subjected to external
factors, interpretations and hearsay. On the other hand, with the element of
immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, the police officer's determination of probable cause
would necessarily be limited to raw or uncontaminated facts or
circumstances, gathered as they were within a very limited period of time.
The same provision adds another safeguard with the requirement of probable
cause as the standard for evaluating these facts of circumstances before the
police officer could effect a valid warrantless arrest.
In light of the discussion above on the developments of Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure and our jurisprudence on the
matter, we hold that the following must be present for a valid warrantless
arrest: 1) the crime should have been just committed; and 2) the arresting
officer's exercise of discretion is limited by the standard of probable cause to
be determined from the facts and circumstances within his personal
knowledge. The requirement of the existence of probable cause objectifies
the reasonableness of the warrantless arrest for purposes of compliance with
the Constitutional mandate against unreasonable arrests.
Hence, for purposes of resolving the issue on the validity of the warrantless
arrest of the present petitioners, the question to be resolved is whether the
requirements for a valid warrantless arrest under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure were complied with, namely: 1) has
96
the crime just been committed when they were arrested? 2) did the arresting
officer have personal knowledge of facts and circumstances that the
petitioners committed the crime? and 3) based on these facts and
circumstances that the arresting officer possessed at the time of the
petitioners' arrest, would a reasonably discreet and prudent person believe
that the attempted murder of Atty. Generoso was committed by the
petitioners? We rule in the affirmative.
III. Application of Section S(b), Rule 113 of the Revised Rules
of Criminal Procedure in the present case: there was a
valid warrantless arrest
We deem it necessary to review the records of the CA because it has
misapprehended the facts in its decision.81From a review of the records, we
conclude that the police officers had personal knowledge of facts or
circumstances upon which they had properly determined probable cause in
effecting a warrantless arrest against the petitioners. We note, however, that
the determination of the facts in the present case is purely limited to the
resolution of the issue on the validity of the warrantless arrests of the
petitioners.
Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005,
the date that the alleged crime was committed, the petitioners were brought
in for investigation at the Batasan Hills Police Station. The police blotter
stated that the alleged crime was committed at 3:15 a.m. on February 20,
2005, along Kasiyahan St., Brgy. Holy Spirit, Quezon City.
The time of the entry of the complaint in the police blotter at 4:15 a.m., with
Atty. Generoso and the petitioners already inside the police station, would
connote that the arrest took place less than one hour from the time of the
occurrence of the crime. Hence, the CA finding that the arrest took place two
(2) hours after the commission of the crime is unfounded.
The arresting officers' personal observation of Atty. Generoso's bruises when
they arrived at the scene of the crime is corroborated by the petitioners'
admissions that Atty: Generoso indeed suffered blows from petitioner
Macapanas and his brother Joseph Macapanas,83 although they asserted
that they did it in self-defense against Atty. Generoso.
Atty. Generoso's bruises were also corroborated by the Medico-Legal
Certificate84 that was issued by East Avenue Medical Center on the same
date of the alleged mauling. The medical check-up of Atty. Generoso that
was made about 8:10 a.m. on the date of the incident, showed the following
findings: "Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right
midclavicular line periorbital hematoma, left eye; Abrasion, distal 3rd
posterolateral aspect of right forearm; Abrasion, 4th and fifth digit, right hand;
Abrasion on area of ih rib (L ant. Chest wall), tenderness on L peripheral
area, no visible abrasion. In addition, the attending physician, Dr. Eva P.
Javier, diagnosed Atty. Generoso of contusion hematoma, periorbital L., and
traumatic conjunctivitis, o.s.
To summarize, the arresting officers went to the scene of the crime upon the
complaint of Atty. Generoso of his alleged mauling; the police officers
responded to the scene of the crime less than one (1) hour after the alleged
mauling; the alleged crime transpired in a community where Atty. Generoso
and the petitioners reside; Atty. Generoso positively identified the petitioners
as those responsible for his mauling and, notably, the petitioners 85 and Atty.
Generoso86 lived almost in the same neighborhood; more importantly, when
the petitioners were confronted by the arresting officers, they did not deny
their participation in the incident with Atty. Generoso, although they narrated
a different version of what transpired.87
With these facts and circumstances that the police officers gathered and
which they have personally observed less than one hour from the time that
they have arrived at the scene of the crime until the time of the arrest of the
petitioners, we deem it reasonable to conclude that the police officers had
personal knowledge of facts or circumstances justifying the petitioners'
warrantless arrests. These circumstances were well within the police officers'
observation, perception and evaluation at the time of the arrest. These
circumstances qualify as the police officers' personal observation, which are
within their personal knowledge, prompting them to make the warrantless
arrests.
Similar to the factual antecedents in Jayson,88 the police officers in the
present case saw Atty. Generoso in his sorry bloodied state. As the victim,
he positively identified the petitioners as the persons who mauled him;
however, instead of fleeing like what happened in Jayson, the petitioners
agreed to go with the police officers.
This is also similar to what happened in People v. Tonog, Jr. 89 where Tonog
did not flee but voluntarily went with the police officers. More than this, the
petitioners in the present case even admitted to have been involved in the
incident with Atty. Generoso, although they had another version of what
transpired.
97
In determining the reasonableness of the warrantless arrests, it is incumbent
upon the courts to consider if the police officers have complied with the
requirements set under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, specifically, the requirement of immediacy; the police
officer's personal knowledge of facts or circumstances; and lastly, the
propriety of the determination of probable cause that the person sought to be
arrested committed the crime.
The records show that soon after the report of the incident occurred, SPOl
Monsalve immediately dispatched the arresting officer, SP02 Javier, to
render personal assistance to the victim.90 This fact alone negates the
petitioners' argument that the police officers did not have personal
knowledge that a crime had been committed - the police immediately
responded and had personal knowledge that a crime had been
committed.1wphi1
To reiterate, personal knowledge of a crime just committed under the terms
of the above-cited provision, does not require actual presence at the scene
while a crime was being committed; it is enough that evidence of the recent
commission of the crime is patent (as in this case) and the police officer has
probable cause to believe based on personal knowledge of facts or
circumstances, that the person to be arrested has recently committed the
crime.
Considering the circumstances of the stabbing, particularly the locality where
it took place, its occasion, the personal circumstances of the parties, and the
immediate on-the-spot investigation that took place, the immediate and
warrantless arrests of the perpetrators were proper. Consequently, the
inquest proceeding that the City Prosecutor conducted was appropriate
under the circumstances.
IV. The term "invited" in the Affidavit of Arrest is construed to
mean as an authoritative command
After the resolution of the validity of the warrantless arrest, the discussion of
the petitioners' second issue is largely academic. Arrest is defined as the
taking of a person into custody in order that he may be bound to answer for
the commission of an offense. An arrest is made by an actual restraint of the
person to be arrested, or by his submission to the custody of the person
making the arrest.91 Thus, application of actual force, manual touching of the
body, physical restraint or a formal declaration of arrest is not required. It is
enough that there be an intention on the part of one of the parties to arrest
the other and the intent of the other to submit, under the belief and
impression that submission is necessary.92
Notwithstanding the term "invited" in the Affidavit of Arrest, 93 SP02 Javier
could not but have the intention of arresting the petitioners following Atty.
Generoso' s account. SP02 Javier did not need to apply violent physical
restraint when a simple directive to the petitioners to follow him to the police
station would produce a similar effect. In other words, the application of
actual force would only be an alternative if the petitioners had exhibited
resistance.
To be sure, after a crime had just been committed and the attending
policemen have acquired personal knowledge of the incidents of the crime,
including the alleged perpetrators, the arrest of the petitioners as the
perpetrators pointed to by the victim, was not a mere random act but was in
connection with a particular offense. Furthermore, SP02 Javier had informed
the petitioners, at the time of their arrest, of the charges against them before
taking them to Batasan Hills Police Station for investigation.94
V. The Order denying the motion for preliminary
investigation is valid
In their last ditch attempt at avoidance, the petitioners attack the R TC Order
denying the petitioners' urgent motion for regular preliminary investigation for
allegedly having been issued in violation of Article VIII, Section 14 of the
1987 Constitution95 and Rule 16, Section 3 of the Revised Rules of Court.96
The RTC, in its Order dismissing the motion, clearly states that the Court is
not persuaded by the evidentiary nature of the allegations in the said motion
of the accused. Aside from lack of clear and convincing proof, the Court, in
the exercise of its sound discretion on the matter, is legally bound to pursue
and hereby gives preference to the speedy disposition of the case."
We do not see any taint of impropriety or grave abuse of discretion in this
Order. The RTC, in resolving the motion, is not required to state all the facts
found in the record of the case. Detailed evidentiary matters, as the RTC
decreed, is best reserved for the full-blown trial of the case, not in the
preliminary incidents leading up to the trial.
Additionally, no less than the Constitution itself provides that it is the decision
that should state clearly and distinctly the facts and the law on which it is
based. In resolving a motion, the court is only required to state clearly and
distinctly the reasons therefor. A contrary system would only prolong the
98
proceedings, which was precisely what happened to this case. Hence, we
uphold the validity of the RTC's order as it correctly stated the reason for its
denial of the petitioners' Urgent Motion for Regular Preliminary Investigation.
WHEREFORE, premises considered, we hereby DENY the petition, and
hereby AFFIRM the decision dated January 21, 2008 and the resolution
dated April 17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The
City Prosecutor of Quezon City is hereby ORDERED to proceed with the
criminal proceedings against the petitioners.

SO ORDERED.

ARTURO D. BRION
Associate Justice

99
G.R. No. L-68955 September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN BURGOS y TITO, defendant-appellant.
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Davao del
Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant-
appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms
in Furtherance of Subversion. The dispositive portion of the decision reads:
WHEREFORE, finding the guilt of accused Ruben Burgos
sufficiently established beyond reasonable doubt, of the
offense charges , pursuant to Presidential Decree No. 9, in
relation to General Order No. 6, dated September 22, 1972,
and General Order No. 7, dated September 23, 1972, in
relation further to Presidential Decree No. 885, and
considering that the firearm subject of this case was not
used in the circumstances as embraced in paragraph I
thereof, applying the provision of indeterminate sentence
law, accused Ruben Burgos is hereby sentenced to suffer an
imprisonment of twenty (20) years of reclusion temporal
maximum, as minimum penalty, to reclusion perpetua, as
maximum penalty, pursuant to sub-paragraph B, of
Presidential Decree No. 9, as aforementioned, with
accessory penalties, as provided for by law.
As a result of this judgment, the subject firearm involved in
this case (Homemade revolver, caliber .38, Smith and
Wesson, with Serial No. 8.69221) is hereby ordered
confiscated in favor of the government, to be disposed of in
accordance with law. Likewise, the subversive documents,
leaflets and/or propaganda seized are ordered disposed of in
accordance with law.
The information charged the defendant-appellant with the crime of illegal
possession of firearm in furtherance of subversion in an information which
reads as follows:
That in the afternoon of May 13, 1982 and thereabout at
Tiguman, Digos, Davao del Sur, Philippines, within the
jurisdiction of this Court, the above- named accused with
intent to possess and without the necessary license, permit
or authority issued by the proper government agencies, did
then and there wilfully, unlawfully and feloniously keep,
possess, carry and have in his possession, control and
custody one (1) homemade revolver, caliber .38, make
Smith and Wesson, with Serial No. 8.69221, which firearm
was issued to and used by the accused at Tiguman, Digos,
Davao del Sur, his area of operations by one Alias
Commander Pol for the New People's Army (NPA), a
subversive organization organized for the purpose of
overthrowing the Government of the Republic of the
Philippines through lawless and violent means, of which the
accused had knowledge, and which firearm was used by the
accused in the performance of his subversive tasks such as
the recruitment of New Members to the NPA and collection
of contributions from the members.
CONTRARY TO LAW.
The evidence for the prosecution is summarized in the decision of the lower
court as follows:
xxx xxx xxx
. . . Through the testimony of Pat. Pepito Bioco, and Sgt.
Romeo Taroy, it appears that by virtue of an intelligent
information obtained by the Constabulary and INP units,
stationed at Digos, Davao del Sur, on May 12, 1982, one
Cesar Masamlok personally and voluntarily surre0ndered to
the authorities at about 9:00 o'clock A.M. at Digos, Davao
del Sur Constabulary Headquarters, stating that he was
forcibly recruited by accused Ruben Burgos as member of
the NPA, threatening him with the use of firearm against his
life, if he refused.
Along with his recruitment, accused was asked to contribute
one (1) chopa of rice and one peso (P1.00) per month, as
his contribution to the NPA TSN, page 5, Hearing-October
14, 1982).
100
Immediately, upon receipt of said information, a joint team of
PC-INP units, composed of fifteen (15) members, headed by
Captain Melchesideck Bargio, (PC), on the following day,
May 13, 1982, was dispatched at Tiguman; Davao del Sur,
to arrest accused Ruben Burgos. The team left the
headquarter at 1:30 P.M., and arrived at Tiguman, at more
or less 2:00 o'clock PM where through the help of Pedro
Burgos, brother of accused, the team was able to locate
accused, who was plowing his field. (TSN, pages 6-7,
Hearing-October 14, 1982).
Right in the house of accused, the latter was caned by the
team and Pat. Bioco asked accused about his firearm, as
reported by Cesar Masamlok. At first accused denied
possession of said firearm but later, upon question
profounded by Sgt. Alejandro Buncalan with the wife of the
accused, the latter pointed to a place below their house
where a gun was buried in the ground. (TSN, page 8,
Hearing-October 14, 1982).
Pat. Bioco then verified the place pointed by accused's wife
and dug the grounds, after which he recovered the firearm,
Caliber .38 revolver, marked as Exhibit "A" for the
prosecution.
After the recovery of the firearm, accused likewise pointed to
the team, subversive documents which he allegedly kept in a
stock pile of qqqcogon at a distance of three (3) meters apart
from his house. Then Sgt. Taroy accordingly verified
beneath said cogon grass and likewise recovered
documents consisting of notebook colored maroon with
spiral bound, Exhibit "B" for the prosecution; a pamphlet
consisting of eight (8) leaves, including the front and back
covers entitled Ang Bayan, Pahayagan ng Partido
Komunista ng Pilipinas, Pinapatnubayan ng Marxismo,
Leninismo Kaisipang Mao qqqZedong dated December 31,
1980, marked as Exhibit "C", and another pamphlet Asdang
Pamantalaang Masa sa Habagatang Mindanao, March and
April 1981 issue, consisting of ten (10) pages, marked as
Exhibit "D" for the prosecution.
Accused, when confronted with the firearm Exhibit "A", after
its recovery, readily admitted the same as issued to him by
Nestor Jimenez, otherwise known as a certain Alias Pedipol,
allegedly team leader of the sparrow unit of New People's
Army, responsible in the liquidation of target personalities,
opposed to NPA Ideological movement, an example was the
killing of the late Mayor Llanos and Barangay Captain of
Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16,
Hearing-October 14,1982).
To prove accused's subversive activities, Cesar Masamlok, a
former NPA convert was presented, who declared that on
March 7, 1972, in his former residence at Tiguman Digos,
Davao del Sur, accused Ruben Burgos, accompanied by his
companions Landrino Burgos, Oscar Gomez and Antonio
Burgos, went to his house at about 5:00 o'clock P.M. and
called him downstair. Thereupon, accused told Masamlok,
their purpose was to ask rice and one (1) peso from him, as
his contribution to their companions, the NPA of which he is
now a member. (TSN, pages 70, 71, 72, Hearing-January 4,
1983).
Accused and his companions told Masamlok, he has to join
their group otherwise, he and his family will be killed. He was
also warned not to reveal anything with the government
authorities. Because of the threat to his life and family, Cesar
Masamlok joined the group. Accused then told him, he
should attend a seminar scheduled on April 19, 1982. Along
with this invitation, accused pulled gut from his waistline a
.38 caliber revolver which Masamlok really saw, being only
about two (2) meters away from accused, which make him
easily Identified said firearm, as that marked as Exhibit "A"
for the prosecution. (TSN, pages 72, 73, and 74, Hearing-
January 4, 1983).
On April 19, 1982, as previously invited, Masamlok,
accompanied by his father, Matuguil Masamlok, Isabel Ilan
and Ayok Ides went to the house of accused and attended
the seminar, Those present in the seminar were: accused
Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino
Burgos, alias Pedipol and one alias Jamper.
The first speaker was accused Ruben Burgos, who said very
distinctly that he is an NPA together with his companions, to
assure the unity of the civilian. That he encouraged the
101
group to overthrow the government, emphasizing that those
who attended the seminar were already members of the
NPA, and if they reveal to the authorities, they will be killed.
Accused, while talking, showed to the audience pamphlets
and documents, then finally shouted, the NPA will be
victorious. Masamlok likewise Identified the pamphlets as
those marked as Exh. exhibits "B", "C", and "D" for the
prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4,
1983)
Other speakers in said meeting were Pedipol, Jamper and
Oscar Gomez, who likewise expounded their own opinions
about the NPA. It was also announced in said seminar that a
certain Tonio Burgos, will be responsible for the collection of
the contribution from the members. (TSN, pages 78-79,
Hearing- January 4, 1983)
On May 12, 1982, however, Cesar Masamlok surrendered to
Captain Bargio of the Provincial Headquarters of the
Philippine Constabulary, Digos, Davao del Sur.
Assistant Provincial Fiscal Panfilo Lovitos was presented t
prove that on May 19, 1982, he administered the
subscription of th extra-judicial confession of accused Ruben
Burgos, marked as Exhibit "E " for the prosecution,
consisting of five (5) pages.
Appearing voluntarily in said office, for the subscription of his
confession, Fiscal Lovitos, realizing that accused was not
represented by counsel, requested the services of Atty.
Anyog, whose office is adjacent to the Fiscal's Office, to
assist accused in the subscription of his extra-judicial
statement.
Atty. Anyog assisted accused in the reading of his
confession from English to Visayan language, resulting to
the deletion of question No. 19 of the document, by an
inserted certification of Atty. Anyog and signature of
accused, indicating his having understood, the allegations of
his extra-judicial statement.
Fiscal Lovitos, before accused signed his statement,
explained to him his constitutional rights to remain silent,
right to counsel and right to answer any question
propounded or not.
With the aid of Atty. Anyog, accused signed his confession in
the presence of Atty. Anyog and Fiscal Lovitos, without the
presence of military authorities, who escorted the accused,
but were sent outside the cubicle of Fiscal Lovitos while
waiting for the accused. (TSN, pages 36-40, nearing
November 15, 1982)
Finally, in order to prove illegal possession by accused of the
subject firearm, Sgt. Epifanio Comabig in-charge of firearms
and explosives, NCO Headquarter, Philippine Constabulary,
Digos, Davao del Sur, was presented and testified, that
among the lists of firearm holders in Davao del Sur, nothing
was listed in the name of accused Ruben Burgos, neither
was his name included among the lists of persons who
applied for the licensing of the firearm under Presidential
Decree No. 1745.
After the above-testimony the prosecution formally closed its
case and offered its exhibits, which were all admitted in
evidence, despite objection interposed by counsel for
accused, which was accordingly overruled.
On the other hand, the defendant-appellant's version of the case against him
is stated in the decision as follows:
From his farm, the military personnel, whom he said he
cannot recognize, brought him to the PC Barracks at Digos,
Davao del Sur, and arrived there at about 3:00 o'clock, on
the same date. At about 8:00 o'clock P.M., in the evening, he
was investigated by soldiers, whom he cannot Identify
because they were wearing a civilian attire. (TSN, page 14 1,
Hearing-June 15, 1983)
The investigation was conducted in the PC barracks, where
he was detained with respect to the subject firearm, which
the investigator, wished him to admit but accused denied its
ownership. Because of his refusal accused was mauled,
hitting him on the left and right side of his body which
102
rendered him unconscious. Accused in an atmosphere of
tersed solemnity, crying and with emotional attachment,
described in detail how he was tortured and the ordeals he
was subjected.
He said, after recovery of his consciousness, he was again
confronted with subject firearm, Exhibit "A", for him to admit
and when he repeatedly refused to accept as his own
firearm, he was subjected to further prolong (sic) torture and
physical agony. Accused said, his eyes were covered with
wet black cloth with pungent effect on his eyes. He was
undressed, with only blindfold, pungent water poured in his
body and over his private parts, making his entire body,
particularly his penis and testicle, terribly irritating with
pungent pain.
All along, he was investigated to obtain his admission, The
process of beating, mauling, pain and/or ordeal was
repeatedly done in similar cycle, from May 13 and 14, 1982.
intercepted only whenever he fell unconscious and again
repeated after recovery of his senses,
Finally on May 15, 1982, after undergoing the same torture
and physical ordeal he was seriously warned, if he will still
adamantly refuse to accept ownership of the subject firearm,
he will be salvaged, and no longer able to bear any further
the pain and agony, accused admitted ownership of subject
firearm.
After his admission, the mauling and torture stopped, but
accused was made to sign his affidavit marked as Exhibit "E"
for the prosecution, consisting of five (5) pages, including the
certification of the administering officer, (TSN, pages 141-
148, Hearing-June 15, 1983)
In addition to how he described the torture inflicted on him,
accused, by way of explanation and commentary in details,
and going one by one, the allegations and/or contents of his
alleged extrajudicial statement, attributed his answers to
those questions involuntarily made only because of fear,
threat and intimidation of his person and family, as a result of
unbearable excruciating pain he was subjected by an
investigator, who, unfortunately he cannot Identify and was
able to obtain his admission of the subject firearm, by force
and violence exerted over his person.
To support denial of accused of being involved in any
subversive activities, and also to support his denial to the
truth of his alleged extra-judicial confession, particularly
questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along
with qqqs answers to those questions, involving Honorata
Arellano ahas Inday Arellano, said Honorata Arellano
appeared and declared categorically, that the above-
questions embraced in the numbers allegedly stated in the
extrajudicial confession of accused, involving her to such
NPA personalities, as Jamper, Pol, Anthony, etc., were not
true because on the date referred on April 28, 1982, none of
the persons mentioned came to her house for treatment,
neither did she meet the accused nor able to talk with him.
(TSN, pages 118- 121, Hearing-May 18, 1983)
She, however, admitted being familiar with one Oscar
Gomez, and that she was personally charged with
subversion in the Office of the Provincial Commander,
Philippine Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the Court. She
likewise stated that her son, Rogelio Arellano, was likewise
charged for subversion filed in the Municipal Trial Court of
Digos, Davao del Sur, but was likewise dismissed for lack of
sufficient evidence to sustain his conviction. (TSN, pages
121-122, in relation to her cross-examination, Hearing-May
18, 1983)
To support accused's denial of the charge against him,
Barangay Captain of Tiguman, Digos, Davao del Sur,
Salvador qqqGalaraga was presented, who declared, he
was not personally aware of any subversive activities of
accused, being his neighbor and member of his barrio. On
the contrary, he can personally attest to his good character
and reputation, as a law abiding citizen of his barrio, being a
carpenter and farmer thereat. (TSl pages 128-129, Hearing-
May 18, 1983)
He however, admitted in cross-examination, that there were
a lot of arrests made by the authorities in his barrio involving
subversive activities but they were released and were not
103
 formally charged in Court because they publicly took their
oath of allegiance with the government. (TSN, pages 133-
134, in relation to page 136, Hearing-May 18, 1983)
Finally, to support accused's denial of the subject firearm, his
wife, Urbana Burgos, was presented and who testified that
the subject firearm was left in their house by Cesar
Masamlok and one Pedipol on May 10, 1982. It was night
time, when the two left the gun, alleging that it was not in
order, and that they will leave it behind, temporarily for them
to claim it later. They were the ones who buried it. She said,
her husband, the accused, was not in their house at that
time and that she did not inform him about said firearm
neither did she report the matter to the authorities, for fear of
the life of her husband. (TSN, page 24, November 22, 1983)
On cross-examination, she said, even if Masamlok during
the recovery of the firearm, was wearing a mask, she can
still Identify him. (TSN, page 6, Hearing-November 22, 1983)
After the above-testimony, accused through counsel formally
rested his case in support of accused's through counsel
manifestation for the demurrer to evidence of the
prosecution, or in the alternative for violation merely of
simple illegal possession of firearm, 'under the Revised
Administrative Code, as amended by Republic Act No. 4,
reflected in the manifestation of counsel for accused. (TSN,
pages 113-114, Hearing-May 18, 1983)
Accused-appellant Ruben Burgos now raises the following assignments of
error, to wit:
I THE TRIAL COURT ERRED IN HOLDING THAT (SIC)
THE ARREST OF ACCUSED-APPELLANT WITHOUT
VALID WARRANT TO BE LAWFUL.
II THE TRIAL COURT ERRED IN HOLDING THE SEARCH
IN THE HOUSE OF ACCUSED-APPELLANT FOR
FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF P.D. No. 9 IN RELATION TO
GENERAL ORDERS NOS. 6 AND 7
Was the arrest of Ruben Burgos lawful? Were the search of his house and
the subsequent confiscation of a firearm and documents allegedly found
therein conducted in a lawful and valid manner? Does the evidence
sustaining the crime charged meet the test of proving guilt beyond
reasonable doubt?
The records of the case disclose that when the police authorities went to the
house of Ruben Burgos for the purpose of arresting him upon information
given by Cesar Masamlok that the accused allegedly recruited him to join the
New People's Army (NPA), they did not have any warrant of arrest or search
warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November
15, 1982).
Article IV, Section 3 of the Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be
authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched, and the persons or things to be seized.
The constitutional provision is a safeguard against wanton and unreasonable
invasion of the privacy and liberty of a citizen as to his person, papers and
effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why
this right is so important:
It is deference to one's personality that lies at the core of this
right, but it could be also looked upon as a recognition of a
constitutionally protected area, primarily one's home, but not
necessarily thereto confined. (Cf. Hoffa v. United States, 385
US 293 [19661) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence.
In that haven of refuge, his individuality can assert itself not
only in the choice of who shall be welcome but likewise in
the kind of objects he wants around him. There the state,
104
 however powerful, does not as such have access except
under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus
is outlawed any unwarranted intrusion by government, which
is called upon to refrain from any invasion of his dwelling and
to respect the privacies of his life, (Cf. Schmerber v.
California, 384 US 757 [1966], Brennan, J. and Boyd v.
United States, 116 US 616, 630 [1886]). In the same vein,
Landynski in his authoritative work (Search and Seizure and
the Supreme Court [1966], could fitly characterize this
constitutional right as the embodiment of a 'spiritual concept:
the belief that to value the privacy of home and person and
to afford its constitutional protection against the long reach of
government is no legs than to value human dignity, and that
his privacy must not be disturbed except in case of
overriding social need, and then only under stringent
procedural safeguards.' (Ibid, p. 47).
The trial court justified the arrest of the accused-appelant without any warrant
as falling under one of the instances when arrests may be validly made
without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the
exceptions as follows:
a) When the person to be arrested has committed, is actually committing, or
is about to commit an offense in his presence;
b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;
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
temporarily confined while his case is pending or has escaped while being
transferred from one confinement to another.
The Court stated that even if there was no warrant for the arrest of Burgos,
the fact that "the authorities received an urgent report of accused's
involvement in subversive activities from a reliable source (report of Cesar
Masamlok) the circumstances of his arrest, even without judicial warrant, is
lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and
applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and
the alleged subversive documents would become an incident to a lawful
arrest as provided by Rule 126, Section 12, which states:
A person charged with an offense may be searched for
dangerous weapons or anything which may be used as proof
of the commission of the offense.
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be committed in
his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he committing any act which
could be described as subversive. He was, in fact, plowing his field at the
time of the arrest.
The right of a person to be secure against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental one.
The statute or rule which allows exceptions to the requirement of warrants of
arrest is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly
unnecessary as provided by the Rule. We cannot liberally construe the rule
on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty
and set back a basic right so often violated and so deserving of full
protection.
The Solicitor General is of the persuasion that the arrest may still be
considered lawful under Section 6(b) using the test of reasonableness. He
submits that. the information given by Cesar Masamlok was sufficient to
induce a reasonable ground that a crime has been committed and that the
accused is probably guilty thereof.
105
In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has
committed a crime. A crime must in fact or actually have been committed
first. That a crime has actually been committed is an essential precondition. It
is not enough to suspect that a crime may have been committed. The fact of
the commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator.
In this case, the accused was arrested on the sole basis of Masamlok's
verbal report. Masamlok led the authorities to suspect that the accused had
committed a crime. They were still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the subject firearm on the basis of
information from the lips of a frightened wife cannot make the arrest lawful, If
an arrest without warrant is unlawful at the moment it is made, generally
nothing that happened or is discovered afterwards can make it lawful. The
fruit of a poisoned tree is necessarily also tainted.
More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they failed
to first go through the process of obtaining a warrant of arrest, if indeed they
had reasonable ground to believe that the accused had truly committed a
crime. There is no showing that there was a real apprehension that the
accused was on the verge of flight or escape. Likewise, there is no showing
that the whereabouts of the accused were unknown,
pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin
(supra)
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the
citizen in the position of either contesting an officer's
authority by force, or waiving his constitutional rights; but
instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely
a demonstration of regard for the supremacy of the law. (56
C.J., pp. 1180, 1181).
We apply the rule that: "courts indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S.
458).
That the accused-appellant was not apprised of any of his constitutional
rights at the time of his arrest is evident from the records:
A CALAMBA:

The basis for the action taken by the arresting officer was the verbal report Q When you went to the area to arrest
made by Masamlok who was not required to subscribe his allegations under Ruben Burgos, you were not armed with an
oath. There was no compulsion for him to state truthfully his charges under arrest warrant?
pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently,
the need to go through the process of securing a search warrant and a A None Sir.
warrant of arrest becomes even more clear. The arrest of the accused while
he was plowing his field is illegal. The arrest being unlawful, the search and Q Neither were you armed with a search
seizure which transpired afterwards could not likewise be deemed legal as warrant?
being mere incidents to a valid arrest.
A No Sir.
Neither can it be presumed that there was a waiver, or that consent was
given by the accused to be searched simply because he failed to object. To Q As a matter of fact, Burgos was not
constitute a waiver, it must appear first that the right exists; secondly, that the present in his house when you went there?
person involved had knowledge, actual or constructive, of the existence of
such a right; and lastly, that said person had an actual intention to relinquish
A But he was twenty meters away from his
the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the
house.
accused failed to object to the entry into his house does not amount to a
permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As
Q Ruben Burgos was then plowing his field?
106
A Yes Sir.
Q When you called for Ruben Burgos you
interviewed him?
A Yes Sir.
Q And that you told him that Masamlok
implicated him?
A No Sir.
Q What did you tell him?
A That we received information that you
have a firearm, you surrender that firearm,
first he denied but when Sgt. Buncalan
interviewed his wife, his wife told him that it
is buried, I dug the firearm which was
wrapped with a cellophane.
Q In your interview of Burgos you did not
remind him of his rights under the
constitution considering that he was
purposely under arrest?
A I did not.
Q As a matter of fact, he denied that he has
ever a gun?
A Yes Sir.
Q As a matter of fact, the gun was not in his
possession?
A It was buried down in his horse.
Q As a matter of fact, Burgos did not point to
where it was buried?
A Yes Sir.
(TSN, pp. 25-26, Hearing-October 14, 1982)
Considering that the questioned firearm and the alleged subversive
documents were obtained in violation of the accused's constitutional rights
against unreasonable searches and seizures, it follows that they are
inadmissible as evidence.
There is another aspect of this case.
In proving ownership of the questioned firearm and alleged subversive
documents, the prosecution presented the two arresting officers who testified
that the accused readily admitted ownership of the gun after qqqs wife
pointed to the place where it was buried. The officers stated that it was the
accused himself who voluntarily pointed to the place where the alleged
subversive documents were hidden.
Assuming this to be true, it should be recalled that the accused was never
informed of his constitutional rights at the time of his arrest. So that when the
accused allegedly admitted ownership of the gun and pointed to the location
of the subversive documents after questioning, the admissions were obtained
in violation of the constitutional right against self-incrimination under Sec. 20
of Art. IV of the Bill of Rights winch provides:
No person shall be compelled to be a witness against
himself. Any person under investigation for the commission
of an offense shall have the right to remain silent and to
counsel, and to be informed of such right.. . .
The Constitution itself mandates that any evidence obtained in violation of
this right is inadmissible in evidence. Consequently, the testimonies of the
arresting officers as to the admissions made by the appellant cannot be used
against him.
The trial court validly rejected the extra-judicial confession of the accused as
inadmissible in evidence. The court stated that the appellant's having been
exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure
to present the investigator who conducted the investigation gives rise to the
"provocative presumption" that indeed torture and physical violence may
have been committed as stated.
107
The accused-appellant was not accorded his constitutional right to be
assisted by counsel during the custodial interrogation. The lower court
correctly pointed out that the securing of counsel, Atty. Anyog, to help the
accused when he subscribed under oath to his statement at the Fiscal's
Office was too late. It could have no palliative effect. It cannot cure the
absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.
With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the only
remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.
We find the testimony of Masamlok inadequate to convict Burgos beyond
reasonable doubt. It is true that the trial court found Masamlok's testimony
credible and convincing. However, we are not necessarily bound by the
credibility which the trial court attaches to a particular witness. As stated
in People vs.. Cabrera (100 SCRA 424):
xxx xxx xxx
. . .Time and again we have stated that when it comes to
question of credibility the findings of the trial court are
entitled to great respect upon appeal for the obvious reason
th+at it was able to observe the demeanor, actuations and
deportment of the witnesses during the trial. But we have
also said that this rule is not absolute for otherwise there
would be no reversals of convictions upon appeal. We must
reject the findings of the trial court where the record
discloses circumstances of weight and substance which
were not properly appreciated by the trial court.
The situation under which Cesar Masamlok testified is analogous to that
found in People vs. Capadocia (17 SCRA 98 1):
. . . The case against appellant is built on Ternura's
testimony, and the issue hinges on how much credence can
be accorded to him. The first consideration is that said
testimony stands uncorroborated. Ternura was the only
witness who testified on the mimeographing incident. . . .
xxx xxx xxx
. . .He was a confessed Huk under detention at the time. He
knew his fate depended upon how much he cooperated with
the authorities, who were then engaged in a vigorous anti-
dissident campaign. As in the case of Rodrigo de Jesus,
whose testimony We discounted for the same reason, that of
Ternura cannot be considered as proceeding from a totally
unbiased source. . . .
In the instant case, Masamlok's testimony was totally uncorroborated.
Considering that Masamlok surrendered to the military certainly his fate
depended on how eagerly he cooperated with the authorities. Otherwise, he
would also be charged with subversion. The trade-off appears to be his
membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983).
Masamlok may be considered as an interested witness. It can not be said
that his testimony is free from the opportunity and temptation to be
exaggerated and even fabricated for it was intended to secure his freedom.
Despite the fact that there were other persons present during the alleged
NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok,
Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have
corroborated Cesar Masamlok's testimony that the accused used the gun in
furtherance of subversive activities or actually engaged in subversive acts,
the prosecution never presented any other witness.
This Court is, therefore, constrained to rule that the evidence presented by
the prosecution is insufficient to prove the guilt of the accused beyond
reasonable doubt.
As held in the case of People vs. Baia (34 SCRA 347):
It is evident that once again, reliance can be placed
on People v. Dramayo (42 SCRA 59), where after stressing
that accusation is not, according to the fundamental law,
synonymous with guilt, it was made clear: 'Only if the judge
below and the appellate tribunal could arrive at a conclusion
that the crime had been committed precisely by the person
on trial under such an exacting test should the sentence be
one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof
against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The
conscience must be satisfied that on the defendant could be
laid the responsibility for the offense charged; that not only
108
 did he perpetrate the act but that it amounted to a crime. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.
What is required then is moral certainty.' (Ibid, 64. Cf. People
v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126;
People vs. Ramirez, 69 SCRA 144; People vs. Godov 72
SCRA 69; People v. Lopez, 74 SCRA 205; People v.
Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513;
People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115
SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs.
Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur
where there appears to be a well-organized plan to overthrow the
Government through armed struggle and replace it with an alien system
based on a foreign ideology. The open defiance against duly constituted
authorities has resulted in unfortunate levels of violence and human suffering
publicized all over the country and abroad. Even as we reiterate the need for
all freedom loving citizens to assist the military authorities in their legitimate
efforts to maintain peace and national security, we must also remember the
dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the

communists, the subversives, the rebels, and the lawless
with an the means at its command, it should always be
remembered that whatever action is taken must always be
within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier

attitude towards constitutional liberties and protections will only fan the
increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is

REVERSED and SET ASIDE. The accused-appellant is hereby
ACQUITTED, on grounds of reasonable doubt, of the crime with which he
has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38,
Smith and Wesson, with Serial No. 8.69221) and the alleged subversive
documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

109
G.R. No. 81567 July 9, 1990 G.R. No. 86332 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner,
MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. vs.
SESE, petitioners, THE STATION COMMANDER OF THE MUNTINGLUPA POLICE
vs. STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. AROJADO, respondents.

G.R. Nos. 84581-82 July 9, 1990 Efren H. Mercado for petitioners in G.R. No. 81567.

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for
petitioners in G.R. Nos. 84583-84.
G.R. Nos. 84583-84 July 9, 1990
Efren H. Mercado for petitioner in G.R. No. 83162.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner
ANONUEVO and RAMON CASIPLE, petitioners, in G.R. No. 85727.
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT.
ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center,
Camp Crame, Quezon City, respondents. The Solicitor General for the respondents.

G.R. No. 83162 July 9, 1990

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF PER CURIAM:

VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
vs. The are eight (8) petitioners for habeas corpus filed before the Court, which
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, have been consolidated because of the similarity of issues raised, praying for
COL. NESTOR MARIANO, respondents. the issuance of the writ of habeas corpus, ordering the respective
respondents to produce the bodies of the persons named therein and to
G.R. No. 85727 July 9, 1990 explain why they should not be set at liberty without further delay.

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: In their respective Returns, the respondents uniformly assert that the
DEOGRACIAS ESPIRITU, petitioner, privilege of the writ of habeas corpus is not available to the petitioners as
vs. they have been legally arrested and are detained by virtue of valid
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. informations filed in court against them.

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The petitioners counter that their detention is unlawful as their arrests were
made without warrant and, that no preliminary investigation was first
conducted, so that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their
respective pleadings, and it finds that the persons detained have not been
illegally arrested nor arbitrarily deprived of their constitutional right to liberty,
and that the circumstances attending these cases do not warrant their
release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is
recognized in law. The occasions or instances when such an arrest may be
effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court,
as amended, which provides:
Sec. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating 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 temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the
person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b)
of Rule 113 of the Rules of Court, as amended, is justified when the person
arrested is caught in flagranti delicto, viz., in the act of committing an offense;
or when an offense has just been committed and the person making the
arrest has personal knowledge of the facts indicating that the person arrested
has committed it. The rationale behind lawful arrests, without warrant, was
stated by this Court in the case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many
instances.
The record of the instant cases would show that the persons in whose behalf
these petitions for habeas corpus have been filed, had freshly committed or
were actually committing an offense, when apprehended, so that their arrests
without a warrant were clearly justified, and that they are, further, detained by
virtue of valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8)
petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February
1988, the Regional Intelligence Operations Unit of the Capital Command
(RIOU-CAPCOM) received confidential information about a member of the
NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at
the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification,
it was found that the wounded person, who was listed in the hospital records
as Ronnie Javelon, is actually Rolando Dural, a member of the NPA
liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the
day before, or on 31 January 1988, in Macanining Street, Bagong Barrio,
Caloocan City. In view of this verification, Rolando Dural was transferred to
the Regional Medical Services of the CAPCOM, for security reasons. While
confined thereat, or on 4 February 1988, Rolando Dural was positively
identified by eyewitnesses as the gunman who went on top of the hood of the
CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers
seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato
Manligot.
As a consequence of this positive identification, Rolando Dural was referred
to the Caloocan City Fiscal who conducted an inquest and thereafter filed
with the Regional Trial Court of Caloocan City an information charging
Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with
111
Assault Upon Agents of Persons in Authority." The case was docketed
therein as Criminal Case No. C-30112 and no bail was recommended. On 15
February 1988, the information was amended to include, as defendant,
Bernardo Itucal, Jr. who, at the filing of the original information, was still
unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with
this Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva.
The Court issued the writ of habeas corpus on 9 February 1988 and the
respondents filed a Return of the Writ on 12 February 1988. Thereafter, the
parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted
bail before the Regional Trial Court of Pasay City where charges for violation
of the Anti-Subversion Act had been filed against them, and they were
accordingly released. The petition for habeas corpus, insofar as Umil and
Villanueva are concerned, is now moot and academic and is accordingly
dismissed, since the writ of habeas corpus does not lie in favor of an
accused in a criminal case who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the
act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he
arrested just after the commission of the said offense for his arrest came a
day after the said shooting incident. Seemingly, his arrest without warrant is
unjustified.
However, Rolando Dural was arrested for being a member of the New
Peoples Army (NPA), an outlawed subversive organization. Subversion
being a continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to commit such
crimes, and crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assaults against the State and are in
the nature of continuing crimes. As stated by the Court in an earlier case:
From the facts as above-narrated, the claim of the
petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of
insurrection or rebellion, subversion, conspiracy or proposal
to commit such crimes, and other crimes and offenses
committed in the furtherance, on the occasion thereof, or
incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common
offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly then, the arrest
of the herein detainees was well within the bounds of the law
and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as
its fighting armed elements, or for committing non-violent
acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by
a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously, the absence of a
judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against
government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture
is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and
duly constituted authorities. If killing and other acts of
violence against the rebels find justification in the exigencies
of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of
invasion, merely seizing their persons and detaining them
while any of these contingencies continues cannot be less
justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court
below and at the conclusion thereof, or on 17 August 1988, Rolando Dural
and Bernardo Itucal, Jr. were found guilty of the charge and sentenced
accordingly. Rolando Dural is now serving the sentence imposed upon him
by the trial court. Thus, the writ of habeas corpus is no longer available to
him. For, as held in the early case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his
arrest, the fact remains that the defendant was actually in
court in the custody of the law on March 29, when a
complaint sufficient in form and substance was read to him.
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 To this he pleaded not guilty. The trial followed, in which, a) One (1) Colt M16A1 long rifle with defaced serial number;
and in the judgment of guilty pronounced by the court, we
find no error. Whether, if there were irregularities in bringing b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
him personally before the court, he could have been
released on a writ of habeas corpus or now has a civil action
c) Two (2) fragmentation hand grenades;
for damages against the person who arrested him we need
not inquire. It is enough to say that such irregularities are not
sufficient to set aside a valid judgment rendered upon a d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
sufficient complaint and after a trial free from error.
e) Five (5) live ammunition for Cal. .380;
II
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified. When g) One (1) Regulated power supply 220V AC;
apprehended at the house of Renato Constantino in Marikina Heights,
Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA h) One (1) Antennae (adjustable);
courier and he had with him letters to Renato Constantino and other
members of the rebel group. Amelia Roque, upon the other hand, was a i) One (1) Speaker with cord ALEXAR;
member of the National United Front Commission, in charge of finance,
and admitted ownership of subversive documents found in the house of her
j) Voluminous Subversive documents.
sister in Caloocan City. She was also in possession of ammunition and a
fragmentation grenade for which she had no permit or authority to possess.
When confronted, Renato Constatino could not produce any permit or
authority to possess the firearms, ammunition, radio and other
The record of these two (2) cases shows that on 27 June 1988, one Rogelio
communications equipment. Hence, he was brought to the CIS Headquarters
Ramos y Ibanes, a member of the NPA, who had surrendered to the military
for investigation. When questioned, he refused to give a written statement,
authorities, told military agents about the operations of the Communist Party
although he admitted that he was a staff member of the executive committee
of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila.
of the NUFC and a ranking member of the International Department of the
He identified some of his former comrades as "Ka Mong", a staff member of
Communist Party of the Philippines (CPP).
the Communications and Transportation Bureau; "Ka Nelia", a staff member
in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez,
Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house At about 8:00 o'clock in the evening of the same day (12 August 1988),
occupied by Renato Constantino located in the Villaluz Compound, Molave Wilfredo Buenaobra arrived at the house of Renato Constantino in the
St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse Villaluz Compound. When accosted, he readily admitted to the military
of the National United Front Commission (NUFC) of the CPP-NPA. agents that he is a regular member of the CPP/NPA and that he went to the
place to deliver letters to "Ka Mong", referring to Renato Constatino, and
other members of the rebel group. On further questioning, he also admitted
In view of these revelations, the Constantino house was placed under military
that he is known as "Ka Miller" and that he was from Barangay San Pedro,
surveillance and on 12 August 1988, pursuant to a search warrant issued by
Lopez, Quezon. Among the items taken from him were the following:
Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the
house was conducted at about 5:00 o'clock in the afternoon, by a combined
team of the Criminal Investigation Service, National Capital District (CIS- (1) Handwritten letter addressed to "Ka Bing & Co. from A &
NCD) and the Constabulary Security Group (CSG). In the course of the Co." dated August 11, 1988;
search, the following articles were found and taken under proper receipt:

113
 (2) Handwritten letter addressed to "ROD from VIC (Schell
datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated
August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a
written but jumbled telephone number of Florida M. Roque, sister of Amelia
Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the
lead provided as to the whereabouts of Amelia Roque, the military agents
went to the given address the next day (13 August 1988). They arrived at the
place at about 11:00 o'clock in the morning. After identifying themselves as
military agents and after seeking permission to search the place, which was
granted, the military agents conducted a search in the presence of the
occupants of the house and the barangay captain of the place, one Jesus D.
Olba.
The military agents found the place to be another safehouse of the
NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books,
folders, computer diskettes, and subversive documents as well as live
ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal.
.45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation
grenade. As a result, Amelia Roque and the other occupants of the house
were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous
documents belonged to her and that the other occupants of the house had no
knowledge of them. As a result, the said other occupants of the house were
released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal
for inquest after which an information charging her with violation of PD 1866
was filed with the Regional Trial Court of Caloocan City. The case is
docketed therein as Criminal Case No. C-1196. Another information for
violation of the Anti-Subversion Act was filed against Amelia Roque before
the Metropolitan Trial Court of Caloocan City, which is docketed therein as
Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed
against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina,
Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail
was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court
on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the
case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-
INP Stockade at Camp Crame, Quezon City. According, the petition
for habeas corpus filed on his behalf is now moot and academic. Only the
petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are
officers and/or members of the National United Front Commission (NUFC) of
the CPP was not controverted or traversed by said petitioners. The
contention must be deemed admitted. 5 As officers and/or members of the
NUFC-CPP, their arrest, without warrant, was justified for the same reasons
earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque
was additionally justified as she was, at the time of apprehension, in
possession of ammunitions without license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the
rules. Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constatino, they had a bag
containing subversive materials, and both carried firearms and ammunition
for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the
evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple
arrived at the house of Renato Constatino at Marikina Heights, Marikina,
which was still under surveillance by military agents. The military agents
noticed bulging objects on their waist lines. When frisked, the agents found
them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could
not produce any. Hence, they were brought to PC Headquarters for
investigation. Found in their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one
(1) magazine for Cal. 7.65 containing ten (10) live
ammunition of same caliber;
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 c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit
tampered with one (1) magazine containing five (5) live
ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and
Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had
previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple
were charged with violation of Presidential Decree No. 1866 before the
Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein
as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was
recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on
behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said
Anonuevo and Casiple were unlawfully arrested without a warrant and that
the informations filed against them are null and void for having been filed
without prior hearing and preliminary investigation. On 30 August 1988, the
Court issued the writ of habeas corpus, and after the respondents had filed a
Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully
arrested because there was no previous warrant of arrest, is without merit
The record shows that Domingo Anonuevo and Ramon Casiple were
carrying unlicensed firearms and ammunition in their person when they were
apprehended.
There is also no merit in the contention that the informations filed against
them are null and void for want of a preliminary investigation. The filing of an
information, without a preliminary investigation having been first conducted,
is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as
amended, reads:
Sec. 7. When accused lawfully arrested without a warrant.
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint
or information may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having
been first conducted, on the basis of the affidavit of the
offended party or arresting officer or person.
However, before the filing of such complaint or information,
the person arrested may ask for a preliminary investigation
by a proper officer in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer
and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from
its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduced evidence in his favor in the manner
prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended. In the informations filed against them, the prosecutor made
identical certifications, as follows:
This is to certify that the accused has been charged in
accordance with Sec. 7, Rule 112 of the 1985 Rules on
Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a
waiver of the provisions of Art. 125 of the Revised Penal
Code, as amended; that based on the evidence presented,
there is reasonable ground to believe that the crime has
been committed, and that the accused is probably guilty
thereof.
Nor did petitioners ask for a preliminary investigation after the informations
had been filed against them in court. Petitioners cannot now claim that they
have been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky
Ocaya is justified under the Rules, since she had with her unlicensed
ammunition when she was arrested. The record of this case shows that on
12 May 1988, agents of the PC Intelligence and Investigation of the Rizal
115
PC-INP Command, armed with a search warrant issued by Judge Eutropio
Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a
search of a house located at Block 19, Phase II, Marikina Green Heights,
Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of
the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car
driven by Danny Rivera. Subversive documents and several rounds of
ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a
result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters
for investigation. When Vicky Ocaya could not produce any permit or
authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447. Danny
Rivera, on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on
behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky
Ocaya was illegally arrested and detained, and denied the right to a
preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti
delicto so that her arrest without a warrant is justified. No preliminary
investigation was conducted because she was arrested without a warrant
and she refused to waive the provisions of Article 125 of the Revised Penal
Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended.
V Constantino's arrest, petitioner Buenaobra arrived at
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and
Amelia Roque claim that the firearms, ammunition and subversive
documents alleged to have been found in their possession when they were
arrested, did not belong to them, but were "planted" by the military agents to
justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases
to accuse the petitioners falsely, has been shown. Besides, the arresting
officers in these cases do not appear to be seekers of glory and bounty
hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there
is absolutely nothing in the evidence submitted during the inquest that
petitioners are on the 'AFP Order of Battle with a reward of P150,000.00
each on their heads.'" 6 On the other hand, as pointed out by the Solicitor
General, the arrest of the petitioners is not a product of a witch hunt or a
fishing expedition, but the result of an in-depth surveillance of NPA
safehouses pointed to by no less than former comrades of the petitioners in
the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners
Roque, Buenaobra, Anonuevo and Casiple, was the lawful
search and seizure conducted by the military at the
residence of Renato Constantino at Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro Manila. The
raid at Constantino's residence, was not a witch hunting or
fishing expedition on the part of the military. It was a result of
an in-depth military surveillance coupled with the leads
provided by former members of the underground subversive
organizations. That raid produced positive results. to date,
nobody has disputed the fact that the residence of
Constantino when raided yielded communication equipment,
firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to
his place, reasonably conducted a "stake-out" operation
whereby some members of the raiding team were left behind
the place. True enough, barely two hours after the raid and
Constantino's residence. He acted suspiciously and when
frisked and searched by the military authorities, found in his
person were letters. They are no ordinary letters, as even a
cursory reading would show. Not only that, Buenaobra
admitted that he is a NPA courier and was there to deliver
the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and
Casiple arrived at Constantino's place. Would it be
unreasonable for the military agents to believe that
petitioners Anonuevo and Casiple are among those
expected to visit Constantino's residence considering that
Constatino's information was true, in that Buenaobra did
come to that place? Was it unreasonable under the
circumstances, on the part of the military agents, not to frisk
and search anyone who should visit the residence of
116
 Constantino, such as petitioners Anonuevo and Casiple?
Must this Honorable Court yield to Anonuevo and Casiple's
flimsy and bare assertion that they went to visit Constantino,
who was to leave for Saudi Arabia on the day they were
arrested thereat?
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering
that it was Buenaobra who provided the leads on her
identity? It cannot be denied that Buenaobra had connection
with Roque. Because the former has the phone number of
the latter. Why the necessity of jumbling Roque's telephone
number as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and Buenaobra
have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they
acted reasonably, under the time, place and circumstances
of the events in question, especially considering that at the
time of petitioner's arrest, incriminatory evidence, i.e,
firearms, ammunitions and/or subversive documents were
found in their possession.
Petitioners, when arrested, were neither taking their snacks
nor innocently visiting a camp, but were arrested in such
time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot,
involving utmost secrecy and comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed
with the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General
Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators
Nationwide (PISTON), an association of drivers and operators of public
service vehicles in the Philippines, organized for their mutual aid and
protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November
1988, while he was sleeping in his home located at 363 Valencia St., Sta.
Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him
that a group of persons wanted to hire his jeepney. When he went down to
talk to them, he was immediately put under arrest. When he asked for the
warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him
and placed him in their owner-type jeepney. He demanded that his sister,
Maria Paz Lalic, be allowed to accompany him, but the men did not accede
to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at
Blumentritt, Manila where he was interrogated and detained. Then, at about
9:00 o'clock of the same morning, he was brought before the respondent Lim
and, there and then, the said respondent ordered his arrest and detention.
He was thereafter brought to the General Assignment Section, Investigation
Division of the Western Police District under Police Capt. Cresenciano A.
Cabasal where he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is
justified in view of the Information filed against him before the Regional Trial
Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging
him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just
committed an offense in that in the afternoon of 22 November 1988, during a
press conference at the National Press Club.
Deogracias Espiritu through tri-media was heard urging all
drivers and operators to go on nationwide strike on
November 23, 1988, to force the government to give into
their demands to lower the prices of spare parts,
commodities, water and the immediate release from
detention of the president of the PISTON (Pinag-isang
Samahan ng Tsuper Operators Nationwide). Further, we
heard Deogracias Espiritu taking the place of PISTON
president Medardo Roda and also announced the formation
of the Alliance Drivers Association to go on nationwide strike
on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at
about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers
117
at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila
where he was heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol
na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng
spare parts, bilihin at and pagpapalaya sa ating pinuno na si
Ka Roda hanggang sa magkagulo na. 10 (emphasis
supplied)
The police finally caught up with the petitioner on 23 November 1988. He
was invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed
against him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with
the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the
petitioner is detained by virtue of a valid information filed with the competent
court, he may not be released on habeas corpus. He may, however be
released upon posting bail as recommended. However, we find the amount
of the recommended bail (P60,000.00) excessive and we reduce it to
P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit
in the submission of Narciso Nazarenothat he was illegally arrested and is
unlawfully detained. The record of this case shows that at about 8:30 o'clock
in the morning of 14 December 1988, one Romulo Bunye II was killed by a
group of men near the corner of T. Molina and Mendiola Streets in Alabang,
Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil
Regal who was arrested by the police on 28 December 1988. Upon
questioning, Regal pointed to Narciso Nazareno as on of his companions in
the killing of the said Romulo Bunye II. In view thereof, the police officers,
without warrant, picked up Narciso Nazareno and brought him to the police
headquarters for questioning. Obviously, the evidence of petitioner's guilt is
strong because on 3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo
Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The
case is docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the
motion was denied by the trial court in an order dated 10 January 1989, even
as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga,
was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the
writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial
Court of Bian, Laguna, Branch 24, ordering said court to hear the case on
30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge
of the Regional Trial Court of Bian, Laguna issued a resolution denying the
petition for habeas corpus, it appearing that the said Narciso Nazareno is in
the custody of the respondents by reason of an information filed against him
with the Regional Trial Court of Makati, Metro Manila which had taken
cognizance of said case and had, in fact, denied the motion for bail filed by
said Narciso Nazareno (presumably because of the strength of the evidence
against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian,
Laguna are based upon the facts and the law. Consequently, we will not
disturb the same. Evidently, the arrest of Nazareno was effected by the
police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after
he was positively implicated by his co-accused Ramil Regala in the killing of
Romulo Bunye
II; and after investigation by the police authorities. As held in People
vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by
reason of a crime, does not presuppose as a necessary
requisite for the fulfillment thereof, the indubitable existence
of a crime. For the detention to be perfectly legal, it is
sufficient that the agent or person in authority making the
arrest has reasonably sufficient grounds to believe the
existence of an act having the characteristics of a crime and
that the same grounds exist to believe that the person
sought to be detained participated therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges
have been filed in the proper courts against the petitioners. The rule is, that if
a person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court judge, and that the court or judge had
118
jurisdiction to issue the process or make the order, of if such person is
charged before any court, the writ of habeas corpus will not be allowed.
Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
Sec. 4. When writ is allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason
of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with a convicted of an offense
in the Philippines or of a person suffering imprisonment
under lawful judgment. (emphasis supplied)
issued the process, judgment or order of commitment or before whom the
detained person is charged, had jurisdiction or not to issue the process,
judgment or order or to take cognizance of the case, but rather, as the Court
itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the
court must inquire into every phase and aspect of petitioner's detention-from
the moment petition was taken into custody up to the moment the court
passes upon the merits of the petition;" and "only after such a scrutiny can
the court satisfy itself that the due process clause of our Constitution has in
fact been satisfied." This is exactly what the Court has done in the petitions
at bar. This is what should henceforth be done in all future cases of habeas
corpus. In Short, all cases involving deprivation of individual liberty should be
promptly brought to the courts for their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in
G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional
liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.

At this point, we refer to petitioner's plea for the Court of re-examine and, Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ.,
of habeas corpus is no longer available after an information is filed against concur.
the person detained and a warrant of arrest or an order of commitment, is
issued by the court where said information has been filed. 14 The petitioners
claim that the said ruling, which was handed down during the past dictatorial
regime to enforce and strengthen said regime, has no place under the
present democratic dispensation and collides with the basic, fundamental,
and constitutional rights of the people. Petitioners point out that the said
doctrine makes possible the arrest and detention of innocent persons despite
lack of evidence against them, and, most often, it is only after a petition
for habeas corpus is filed before the court that the military authorities file the
criminal information in the courts of law to be able to hide behind the
protective mantle of the said doctrine. This, petitioners assert, stands as an
obstacle to the freedom and liberty of the people and permits lawless and
arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is

based upon express provision of the Rules of Court and the exigencies
served by the law. The fears expressed by the petitioners are not really
unremediable. As the Court sees it, re-examination or reappraisal, with a
view to its abandonment, of the Ilagan case doctrine is not the answer. The
answer and the better practice would be, not to limit the function of
the habeas corpus to a mere inquiry as to whether or not the court which

119
ARSENIO VERGARA VALDEZ, G.R. No. 170180
Petitioner, guilty beyond reasonable doubt of violating Section 11 of Republic Act No.
Present: 9165 (R.A. No. 9165)[5] and sentencing him to suffer the penalty of

QUISUMBING, J., imprisonment ranging from eight (8) years and one (1) day of prision
Chairperson, mayor medium as minimum to fifteen (15) years of reclusion
- versus - CARPIO,
CARPIO MORALES, temporal medium as maximum and ordering him to pay a fine
TINGA, and of P350,000.00.[6]
VELASCO, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:
November 23, 2007
x------------------------------------------------------------------------------------x
DECISION
TINGA, J.:
The sacred right against an arrest, search or seizure without valid warrant is
not only ancient. It is also zealously safeguarded. The Constitution
guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures. [1] Any
I.
On 26 June 2003, petitioner was charged with violation of Section 11, par.
2(2) of R.A. No. 9165 in an Information[7] which reads:
That on or about the 17th day of March 2003, in the
Municipality of Aringay, Province of La Union, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession, control
and custody dried marijuana leaves wrapped in a cellophane
and newspaper page, weighing more or less twenty-five (25)
grams, without first securing the necessary permit, license or
prescription from the proper government agency.
CONTRARY TO LAW.[8]

evidence obtained in violation of said right shall be inadmissible for any

purpose in any proceeding. Indeed, while the power to search and seize may On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits

at times be necessary to the public welfare, still it must be exercised and the ensued with the prosecution presenting the three (3) barangay tanods of San

law implemented without contravening the constitutional rights of the citizens, Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor

for the enforcement of no statute is of sufficient importance to justify Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner.

indifference to the basic principles of government.[2]

Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was

On appeal is the Decision[3] of the Court of Appeals dated 28 July 2005, conducting the routine patrol along the National Highway in Barangay San

affirming the Judgment[4] of the Regional Trial Court (RTC), Branch 31, Agoo, Benito Norte, Aringay, La Union together with Aratas and Ordoo when they

La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez noticed petitioner, lugging a bag, alight from a mini-bus.

120
The tanods observed that petitioner, who appeared suspicious to them,
seemed to be looking for something. They thus approached him but the latter
purportedly attempted to run away. They chased him, put him under arrest
and thereafter brought him to the house of Barangay Captain Orencio
Mercado (Mercado) where he, as averred by Bautista, was ordered by
Mercado to open his bag. Petitioners bag allegedly contained a pair of denim
pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in
newspaper and cellophane. It was then that petitioner was taken to the police
station for further investigation.[9]
Aratas and Ordoo corroborated Bautistas testimony on most material points.
On cross-examination, however, Aratas admitted that he himself brought out
the contents of petitioners bag before petitioner was taken to the house of
Mercado.[10] Nonetheless, he claimed that at Mercados house, it was
petitioner himself who brought out the contents of his bag upon orders from
Mercado. For his part, Ordoo testified that it was he who was ordered by
Mercado to open petitioners bag and that it was then that they saw the
purported contents thereof.[11]
The prosecution likewise presented Police Inspector Valeriano Laya II
(Laya), the forensic chemist who conducted the examination of the marijuana
allegedly confiscated from petitioner. Laya maintained that the specimen
submitted to him for analysis, a sachet of the substance weighing 23.10
grams and contained in a plastic bag, tested positive of marijuana. He
disclosed on cross-examination, however, that he had knowledge neither of
how the marijuana was taken from petitioner nor of how the said substance
reached the police officers. Moreover, he could not identify whose marking
was on the inside of the cellophane wrapping the marijuana leaves. [12]
The charges were denied by petitioner. As the defenses sole
witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in
Aringay from his place in Curro-oy, Santol, La Union. After alighting from the
bus, petitioner claimed that he went to the house of a friend to drink water
and then proceeded to walk to his brothers house. As he was walking,
prosecution witness Ordoo, a cousin of his brothers wife, allegedly
approached him and asked where he was going. Petitioner replied that he
was going to his brothers house. Ordoo then purportedly requested to see
the contents of his bag and appellant acceded. It was at this point that
Bautista and Aratas joined them. After inspecting all the contents of his bag,
petitioner testified that he was restrained by the tanod and taken to the house
of Mercado. It was Aratas who carried the bag until they reached their
destination.[13]
Petitioner maintained that at Mercados house, his bag was opened
by the tanod and Mercado himself. They took out an item wrapped in
newspaper, which later turned out to be marijuana leaves. Petitioner denied
ownership thereof. He claimed to have been threatened with imprisonment
by his arrestors if he did not give the prohibited drugs to someone from the
east in order for them to apprehend such person. As petitioner declined, he
was brought to the police station and charged with the instant offense.
Although petitioner divulged that it was he who opened and took out the
contents of his bag at his friends house, he averred that it was one of
the tanod who did so at Mercados house and that it was only there that they
saw the marijuana for the first time.[14]
Finding that the prosecution had proven petitioners guilt beyond
reasonable doubt, the RTC rendered judgment against him and sentenced
him to suffer indeterminate imprisonment ranging from eight (8) years and
121
one (1) day of prision mayor medium as minimum to fifteen (15) years
of reclusion temporal medium as maximum and ordered him to pay a fine
of P350,000.00.[15]
Aggrieved, petitioner appealed the decision of the RTC to the Court of
Appeals. On 28 July 2005, the appellate court affirmed the challenged
decision. The Court of Appeals, finding no cogent reason to overturn the
presumption of regularity in favor of the barangay tanod in the absence of
evidence of ill-motive on their part, agreed with the trial court that there was
probable cause to arrest petitioner. It observed further:
That the prosecution failed to establish the chain of custody
of the seized marijuana is of no moment. Such circumstance
finds prominence only when the existence of the seized
prohibited drugs is denied. In this case, accused-appellant
himself testified that the marijuana wrapped in a newspaper
was taken from his bag. The corpus delicti of the crime, i.e.[,]
the existence of the marijuana and his possession thereof,
was amply proven by accused-appellant Valdezs own
testimony.[16]
In this appeal, petitioner prays for his acquittal and asserts that his
guilt of the crime charged had not been proven beyond reasonable doubt. He
argues, albeit for the first time on appeal, that the warrantless arrest effected
against him by the barangay tanod was unlawful and that the warrantless
search of his bag that followed was likewise contrary to law. Consequently,
he maintains, the marijuana leaves purportedly seized from him are
inadmissible in evidence for being the fruit of a poisonous tree.
Well-settled is the rule that the findings of the trial court on the
credibility of witnesses and their testimonies are accorded great respect and
weight, in the absence of any clear showing that some facts and
circumstances of weight or substance which could have affected the result of
the case have been overlooked, misunderstood or misapplied.[17]
After meticulous examination of the records and evidence on hand,
however, the Court finds and so holds that a reversal of the decision a
quo under review is in order.
II.
At the outset, we observe that nowhere in the records can we find
any objection by petitioner to the irregularity of his arrest before his
arraignment. Considering this and his active participation in the trial of the
case, jurisprudence dictates that petitioner is deemed to have submitted to
the jurisdiction of the trial court, thereby curing any defect in his arrest. The
legality of an arrest affects only the jurisdiction of the court over his
person.[18] Petitioners warrantless arrest therefore cannot, in itself, be the
basis of his acquittal.
However, to determine the admissibility of the seized drugs in
evidence, it is indispensable to ascertain whether or not the search which
yielded the alleged contraband was lawful. The search, conducted as it was
without a warrant, is justified only if it were incidental to a lawful
arrest.[19] Evaluating the evidence on record in its totality, as earlier intimated,
the reasonable conclusion is that the arrest of petitioner without a warrant is
not lawful as well.
122
 Petitioner maintains, in a nutshell, that after he was approached by
the tanod and asked to show the contents of his bag, he was simply herded
without explanation and taken to the house of the barangay captain. On their
way there, it was Aratas who carried his bag. He denies ownership over the
contraband allegedly found in his bag and asserts that he saw it for the first
time at the barangay captains house.
Even casting aside petitioners version and basing the resolution of
this case on the general thrust of the prosecution evidence, the unlawfulness
of petitioners arrest stands out just the same.
Section 5, Rule 113 of the Rules on Criminal Procedure provides the
only occasions on which a person may be arrested without a warrant, to wit:
Section 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
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another.
xxx
It is obvious that based on the testimonies of the arresting
barangay tanod, not one of these circumstances was obtaining at the time
petitioner was arrested. By their own admission, petitioner was not
committing an offense at the time he alighted from the bus, nor did he appear
to be then committing an offense.[20] The tanod did not have probable cause
either to justify petitioners warrantless arrest.
For the exception in Section 5(a), Rule 113 to operate, this Court has
ruled that two (2) elements must be present: (1) the person to be arrested
must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done
in the presence or within the view of the arresting officer. [21] Here, petitioners
act of looking around after getting off the bus was but natural as he was
finding his way to his destination. That he purportedly attempted to run away
as the tanod approached him is irrelevant and cannot by itself be construed
as adequate to charge the tanod with personal knowledge that petitioner had
just engaged in, was actually engaging in or was attempting to engage in
criminal activity. More importantly, petitioner testified that he did not run away
but in fact spoke with the barangay tanod when they approached him.
Even taking the prosecutions version generally as the truth, in line
with our assumption from the start, the conclusion will not be any different. It
is not unreasonable to expect that petitioner, walking the street at night, after
being closely observed and then later tailed by three unknown persons,
would attempt to flee at their approach. Flight per se is not synonymous with
guilt and must not always be attributed to ones consciousness of guilt.[22] Of
persuasion was the Michigan Supreme Court when it ruled in People v.
Shabaz[23] that [f]light alone is not a reliable indicator of guilt without other
123
circumstances because flight alone is inherently ambiguous. Alone, and
under the circumstances of this case, petitioners flight lends itself just as
easily to an innocent explanation as it does to a nefarious one.
Moreover, as we pointed out in People v. Tudtud,[24] [t]he phrase in
his presence therein, connot[es] penal knowledge on the part of the arresting
officer. The right of the accused to be secure against any unreasonable
searches on and seizure of his own body and any deprivation of his liberty
being a most basic and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly construed. Its
application cannot be extended beyond the cases specifically provided by
law.[25]
Indeed, the supposed acts of petitioner, even assuming that they
appeared dubious, cannot be viewed as sufficient to incite suspicion of
criminal activity enough to validate his warrantless arrest. [26] If at all, the
search most permissible for the tanod to conduct under the prevailing
backdrop of the case was a stop-and-frisk to allay any suspicion they have
been harboring based on petitioners behavior. However, a stop-and-frisk
situation, following Terry v. Ohio,[27] must precede a warrantless arrest, be
limited to the persons outer clothing, and should be grounded upon a
genuine reason, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person detained has weapons
concealed about him.[28]
Accordingly, petitioners waiver of his right to question his arrest
notwithstanding, the marijuana leaves allegedly taken during the search
cannot be admitted in evidence against him as they were seized during a
warrantless search which was not lawful.[29] As we pronounced in People v.
Bacla-an
A waiver of an illegal warrantless arrest does not
also mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest. The following
searches and seizures are deemed permissible by
jurisprudence: (1) search of moving vehicles (2) seizure in
plain view (3) customs searches (4) waiver or consent
searches (5) stop and frisk situations (Terry Search) and (6)
search incidental to a lawful arrest. The last includes a valid
warrantless search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid warrant of
arrest, the Rules of Court recognize permissible warrantless
arrests, to wit: (1) arrests in flagrante delicto, (2) arrests
effected in hot pursuit, and, (3) arrests of escaped
prisoners.[30]
When petitioner was arrested without a warrant, he was neither
caught in flagrante delicto committing a crime nor was the arrest effected in
hot pursuit. Verily, it cannot therefore be reasonably argued that the
warrantless search conducted on petitioner was incidental to a lawful arrest.
In its Comment, the Office of the Solicitor General posits that apart
from the warrantless search being incidental to his lawful arrest, petitioner
had consented to the search. We are not convinced. As we explained
in Caballes v. Court of Appeals[31]
Doubtless, the constitutional immunity against
unreasonable searches and seizures is a personal right
which may be waived. The consent must be voluntary in
order to validate an otherwise illegal detention and
124
 search, i.e., the consent is unequivocal, specific, and
intelligently given, uncontaminated by any duress or search and seizure is not tantamount to a waiver of his constitutional right or
coercion. Hence, consent to a search is not to be lightly a voluntary submission to the warrantless search and seizure.[34]
inferred, but must be shown by clear and convincing
evidence. The question whether a consent to a search was in
fact voluntary is a question of fact to be determined from the III.
totality of all the circumstances. Relevant to this
determination are the following characteristics of the person
giving consent and the environment in which consent is Notably, the inadmissibility in evidence of the seized marijuana
given: (1) the age of the defendant; (2) whether he was in a
public or secluded location; (3) whether he objected to the leaves for being the fruit of an unlawful search is not the lone cause that
search or passively looked on; (4) the education and
militates against the case of the prosecution. We likewise find that it has
intelligence of the defendant; (5) the presence of coercive
police procedures; (6) the defendant's belief that no failed to convincingly establish the identity of the marijuana leaves
incriminating evidence will be found; (7) the nature of the
police questioning; (8) the environment in which the purportedly taken from petitioners bag.
questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State
which has the burden of proving, by clear and positive In all prosecutions for violation of the Dangerous Drugs Act, the
testimony, that the necessary consent was obtained and that following elements must concur: (1) proof that the transaction took place; and
it was freely and voluntarily given.[32]
(2) presentation in court of the corpus delicti or the illicit drug as
evidence.[35] The existence of dangerous drugs is a condition sine qua
non for conviction for the illegal sale of dangerous drugs, it being the
In the case at bar, following the theory of the prosecution albeit
very corpus delicti of the crime.[36]
based on conflicting testimonies on when petitioners bag was actually
opened, it is apparent that petitioner was already under the coercive control
In a line of cases, we have ruled as fatal to the prosecutions case its
of the public officials who had custody of him when the search of his bag was
failure to prove that the specimen submitted for laboratory examination was
demanded. Moreover, the prosecution failed to prove any specific statement
the same one allegedly seized from the accused.[37] There can be no crime of
as to how the consent was asked and how it was given, nor the specific
illegal possession of a prohibited drug when nagging doubts persist on
words spoken by petitioner indicating his alleged "consent." Even granting
whether the item confiscated was the same specimen examined and
that petitioner admitted to opening his bag when Ordoo asked to see its
established to be the prohibited drug.[38] As we discussed in People v.
contents, his implied acquiescence, if at all, could not have been more than
Orteza[39], where we deemed the prosecution to have failed in establishing all
mere passive conformity given under coercive or intimidating circumstances
the elements necessary for conviction of appellant for illegal sale of shabu
and hence, is considered no consent at all within the contemplation of the
constitutional guarantee.[33] As a result, petitioners lack of objection to the First, there appears nothing in the record showing
that police officers complied with the proper procedure in the

125
 custody of seized drugs as specified in People v. Lim, i.e.,
any apprehending team having initial control of said drugs petitioner. Likewise, the Receipt[41] issued by the Aringay Police Station
and/or paraphernalia should, immediately after seizure or merely acknowledged receipt of the suspected drugs supposedly confiscated
confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be from petitioner.
any, and or his representative, who shall be required to sign
the copies of the inventory and be given a copy thereof. The
failure of the agents to comply with the requirement raises Not only did the three tanod contradict each other on the matter of
doubt whether what was submitted for laboratory when petitioners bag was opened, they also gave conflicting testimony on
examination and presented in court was actually recovered
from appellant. It negates the presumption that official duties who actually opened the same. The prosecution, despite these material
have been regularly performed by the police officers.
inconsistencies, neglected to explain the discrepancies. Even more damning
In People v. Laxa, where the buy-bust team failed to to its cause was the admission by Laya, the forensic chemist, that he did not
mark the confiscated marijuana immediately after the
apprehension of the accused, the Court held that the know how the specimen was taken from petitioner, how it reached the police
deviation from the standard procedure in anti-narcotics authorities or whose marking was on the cellophane wrapping of the
operations produced doubts as to the origins of the
marijuana. Consequently, the Court concluded that the marijuana. The non-presentation, without justifiable reason, of the police
prosecution failed to establish the identity of the corpus officers who conducted the inquest proceedings and marked the seized
delicti.
drugs, if such was the case, is fatal to the case. Plainly, the prosecution
The Court made a similar ruling in People v. Kimura,
neglected to establish the crucial link in the chain of custody of the seized
where the Narcom operatives failed to place markings on the
seized marijuana at the time the accused was arrested and marijuana leaves from the time they were first allegedly discovered until they
to observe the procedure and take custody of the drug.
were brought for examination by Laya.
More recently, in Zarraga v. People, the Court held
that the material inconsistencies with regard to when and
where the markings on the shabu were made and the lack of The Court of Appeals found as irrelevant the failure of the
inventory on the seized drugs created reasonable doubt as prosecution to establish the chain of custody over the seized marijuana as
to the identity of the corpus delicti. The Court thus acquitted
the accused due to the prosecutions failure to indubitably such [f]inds prominence only when the existence of the seized prohibited
show the identity of the shabu.
drug is denied.[42] We cannot agree.

In the case at bar, after the arrest of petitioner by the

To buttress its ratiocination, the appellate court narrowed on
barangay tanod, the records only show that he was taken to the house of
petitioners testimony that the marijuana was taken from his bag, without
the barangay captain and thereafter to the police station. The Joint
taking the statement in full context.[43] Contrary to the Court of Appeals
Affidavit[40] executed by the tanod merely states that they confiscated the
findings, although petitioner testified that the marijuana was taken from his
marijuana leaves which they brought to the police station together with
bag, he consistently denied ownership thereof.[44]Furthermore, it defies logic

126
to require a denial of ownership of the seized drugs before the principle of
chain of custody comes into play.
The onus of proving culpability in criminal indictment falls upon the
State. In conjunction with this, law enforcers and public officers alike have
the corollary duty to preserve the chain of custody over the seized drugs. The
chain of evidence is constructed by proper exhibit handling, storage, labeling
and recording, and must exist from the time the evidence is found until the
time it is offered in evidence. Each person who takes possession of the
specimen is duty-bound to detail how it was cared for, safeguarded and
preserved while in his or her control to prevent alteration or replacement
while in custody. This guarantee of the integrity of the evidence to be used
against an accused goes to the very heart of his fundamental rights.
The presumption of regularity in the performance of official duty
invoked by the prosecution and relied upon by the courts a quo cannot by
itself overcome the presumption of innocence nor constitute proof of guilt
beyond reasonable doubt.[45] Among the constitutional rights enjoyed by an
accused, the most primordial yet often disregarded is the presumption of
innocence. This elementary principle accords every accused the right to be
presumed innocent until the contrary is proven beyond reasonable
doubt. Thus, the burden of proving the guilt of the accused rests upon the
prosecution.
Concededly, the evidence of the defense is weak and
uncorroborated. Nevertheless, this [c]annot be used to advance the cause of
the prosecution as its evidence must stand or fall on its own weight and
cannot be allowed to draw strength from the weakness of the
defense.[46] Moreover, where the circumstances are shown to yield two or
more inferences, one inconsistent with the presumption of innocence and the
other compatible with the finding of guilt, the court must acquit the accused
for the reason that the evidence does not satisfy the test of moral certainty
and is inadequate to support a judgment of conviction.[47]
Drug addiction has been invariably denounced as an especially
vicious crime,[48] and one of the most pernicious evils that has ever crept into
our society,[49] for those who become addicted to it not only slide into the
ranks of the living dead, what is worse, they become a grave menace to the
safety of law-abiding members of society,[50]whereas peddlers of drugs are
actually agents of destruction.[51] Indeed, the havoc created by the ruinous
effects of prohibited drugs on the moral fiber of society cannot be
underscored enough. However, in the rightfully vigorous campaign of the
government to eradicate the hazards of drug use and drug trafficking, it
cannot be permitted to run roughshod over an accuseds right to be
presumed innocent until proven to the contrary and neither can it shirk from
its corollary obligation to establish such guilt beyond reasonable doubt.
In this case, the totality of the evidence presented utterly fails to
overcome the presumption of innocence which petitioner enjoys. The failure
of the prosecution to prove all the elements of the offense beyond
reasonable doubt must perforce result in petitioners exoneration from
criminal liability.
127
 SO ORDERED.

IV.

PEOPLE OF THE PHILIPPINES, G.R. No. 178039

A final word. We find it fitting to take this occasion to remind the
Plaintiff-Appellee,
courts to exercise the highest degree of diligence and prudence in
Present:
deliberating upon the guilt of accused persons brought before them,
CORONA, C.J.,
especially in light of the fundamental rights at stake. Here, we note that the Chairperson
courts a quo neglected to give more serious consideration to certain material VELASCO, JR.,
LEONARDO-DE CASTRO,
issues in the determination of the merits of the case. We are not oblivious to -versus-
DEL CASTILLO, and
the fact that in some instances, law enforcers resort to the practice of PEREZ, JJ.

planting evidence to extract information or even harass civilians. Accordingly,

courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an
Promulgated:
innocent person be made to suffer the unusually severe penalties for drug ERNESTO UYBOCO y RAMOS,
offenses.[52] In the same vein, let this serve as an admonition to police January 19, 2011
Defendant-Appellant.
officers and public officials alike to perform their mandated duties with
commitment to the highest degree of diligence, righteousness and respect for x----------------------------------------------------------------------------------------x

the law.
DECISION

WHEREFORE, the assailed Decision is REVERSED and SET

PEREZ, J.:
ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable
doubt. The Director of the Bureau of Corrections is directed to cause the Subject of this appeal is the 27 September 2006 Decision[1] promulgated by
immediate release of petitioner, unless the latter the Court of Appeals, affirming the Regional Trial Courts (RTC)
is being lawfully held for another cause; and to inform the Court of Judgment[2] in Criminal Case Nos. 93-130980, 93-132606, and 93-132607,
finding Ernesto Uyboco y Ramos (appellant) guilty of three (3) counts of
kidnapping for ransom.

the date of his release, or the reasons for his continued confinement, within
ten (10) days from notice. No costs.
128
 Appellant, along with now deceased Colonel Wilfredo Macias
(Macias) and several John Does were charged in three separate
Informations, which read as follow:
In Criminal Case No. 93-130980:
That in the morning of December 20, 1993 and for sometime
subsequent thereto in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did then
and there willfully, unlawfully and feloniously kidnap, carry
away and detain the minor, JESON KEVIN DICHAVES, five
(5) years old, against his will and consent, thus depriving him
of his liberty, for the purpose of extorting ransom for his
release, which after payment thereof in the amount
of P1,320,000.00 in cash and P175,000.00 worth of assorted
jewelry, including a Colt .45 Caliber Pistol with SN 14836 or
a total of ONE MILLION FIVE HUNDRED THOUSAND
PESOS (P1,500,000.00) was divided by said accused
between and/or among themselves to the damage and
prejudice of the aforementioned victim/or his parents.[3]
In Criminal Case No. 93-132606:
That in the morning of December 20, 1993 and for
sometime subsequent thereto in Manila and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully and
feloniously kidnap, carry away and detain the minor, JESON
KIRBY DICHAVES, two (2) years old, against his will and
consent, thus depriving him of his liberty, for the purpose of
extorting ransom for his release, which after payment thereof
in the amount of P1,320,000.00 in cash and P175,000.00
worth of assorted jewelry, including a Colt .45 Caliber Pistol
with SN 14836 or a total of ONE MILLION FIVE HUNDRED
THOUSAND PESOS (P1,500,000.00) was divided by said
accused between and/or among themselves to the damage
and prejudice of the aforementioned victim/or his parents.[4]
In Criminal Case No. 93-132607:
That in the morning of December 20, 1993 and for
sometime subsequent thereto in Manila and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully and
feloniously kidnap, carry away and detain NIMFA CELIZ,
against her will and consent, thus depriving her of liberty, for
the purpose of extorting ransom for her release, which after
payment thereof in the amount of P1,320,000.00 in cash
and P175,000.00 worth of assorted jewelry, including a Colt
.45 Caliber Pistol with SN 14836 or a total of ONE MILLION
FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was
divided by said accused between and/or among themselves
to the damage and prejudice of the aforementioned victim.[5]
The arraignment was held in abeyance twice.[6] Finally, the
arraignment was set on 22 October 1996. Appellant and Macias, with the
assistance of their counsels, however refused to enter a plea. This prompted
the RTC to enter a plea of Not Guilty for each of them. Trial on the merits
ensued.
The prosecution presented the following witnesses: Nimfa Celiz
(Nimfa), Jepson Dichaves (Jepson), Police Superintendent Gilbert Cruz
(P/Supt. Cruz), Police Superintendent Mario Chan (P/Supt. Chan), Police
Inspector Cesar Escandor (P/Insp. Escandor) and Carolina Alejo, whose
version of facts are summarized as follows:
At around 10:30 a.m. on 20 December 1993, Nimfa and her wards,
siblings Jeson Kevin and Jeson Kirby Dichaves were riding in the Isuzu car
of the Dichaves family, together with Yusan Dichaves (Yusan). Driver Pepito
Acon (Acon) dropped off Yusan at Metrobank in Claro M. Recto Avenue,
129
Manila. While waiting for Yusan, Acon drove along Bilibid Viejo,
Sampaloc. When the vehicle passed by in front of San Sebastian Church, a
stainless jeep with two men and one woman described as a tomboy on
board, suddenly blocked its way. One of the men, who was in police uniform
accosted Acon and accused him of hitting the son of a Presidential Security
Group (PSG) General apparently with a stone when the vehicle ran over it.
Acon denied the charges but he was transferred to the stainless jeep while
the man in police uniform drove the Isuzu car. The tomboy sat next to Nimfa
who then had Jeson Kirby sit on her lap while Jeson Kevin was sitting on
the tomboys lap. They were brought to a house in Merville Subdivision,
Paraaque.[7]
While still in garage of the house, Nimfa was able to sneak out of the
car and place a call to the secretary of her employer to inform the latter that
they were in Merville Subdivision. She came back to the car undetected and
after a while, she and her wards were asked to alight from the car and they
were locked inside the comfort room.[8]
Jepson was at his office at 10:00 a.m. of 20 December 1993. He
received a call from his wife asking him if Nimfa or Acon called up, as she
had been waiting for them at Metrobank where she was dropped off
earlier. After 15 minutes, Yusan called again and was already hysterical
because she could not find the car when she roamed around the
area. Jepson immediately called up his brother Jaime and some police
officers to inform them that his sons were missing. When Jepson arrived at
Metrobank at around 11:30 a.m., he received a call from his secretary
informing him that Nimfa called about their whereabouts. When Jepson got
back to his office, his secretary informed him that an unidentified man called
to inform them that he has custody of the children and demanded P26
Million.[9]
Meanwhile in Merville Subdivision, the man in police uniform
introduced himself to Nimfa as Sarge. He asked Nimfa for information
regarding her name and her employers telephone number. She feigned
ignorance of those information. She even claimed that she was merely a new
employee.[10] Sarge informed Nimfa that they were in Fairview and that she
was asked if she knew how to go home. Nimfa chose to stay with her
wards. When the phone rang, Sarge went out of the house and Nimfa again
sneaked a phone call to her employer informing them that they were being
held up in Merville Subdivision.[11]
Jepson, through Jaimes help, went to the house of then Vice-
President Joseph Estrada (Vice-President Estrada) at 8:00 p.m. Thereat, he
met General Jewel Canson (Gen. Canson), General Panfilo Lacson (Gen.
Lacson) and Major Ray Aquino (Major Aquino). Vice-President Estrada
ordered the police generals to rescue Jepsons sons and arrest the
kidnappers.[12]
At 6:00 p.m., the kidnappers called Jepson and reduced the ransom
to P10 Million.[13] That night, Nimfa was able to speak to Jepson when two
men handed the telephone to her. She recognized one of them as appellant,
because she had seen the latter in her employers office sometime in the first
week of December 1993.[14]
On the following noon of 21 December 1993, the kidnappers called
up Jepson numerous times to negotiate for the ransom. In one of those calls,
Jepson was able to recognize the voice of appellant because he had several
business transactions with the latter and they have talked for at least a
hundred times during a span of two to four years.[15]
On 22 December 1993, the parties finally agreed to a ransom of P1.5
Million. Jepson offered P1.3 Million in cash and the balance to be paid in
130
kind, such as jewelry and a pistol.[16] Appellant asked Jepson to bring the
ransom alone at Pancake House in Magallanes Commercial Center. Jepson
called up Gen. Canson and Gen. Lacson to inform them of the pay-off.[17]
At around 1:00 p.m. of even date, Nimfa was able to talk to Jepson
and the latter informed her that they would be released that afternoon. [18]
3:00 p.m., Jepson drove his white Toyota Corolla car and proceeded to
Pancake House in Magallanes Commercial Center. He placed the money
inside a gray bag and put it on the backseat. Jepson received a call from
appellant at 4:00 p.m. who ordered him to put the bag in the trunk, leave the
trunk unlocked, and walk away for ten (10) minutes without turning
back. Later, appellant checked on his trunk and the bag was already
gone. Appellant then apprised him that his sons and helper were already at
the Shell Gasoline Station along South Luzon Expressway. He immediately
went to the place and found his sons and helper seated at the corner of the
gas station.[19]
P/Insp. Escandor was assigned to proceed to Magallanes
Commercial Center, together with two other police officers. They reached the
place at 3:30 p.m. and positioned themselves in front of the Maranao Arcade
located at Magallanes Commercial Center. He brought a camera to cover the
supposed pay-off. He took a total of 24 shots.[20] He identified Macias
together with appellant in Magallanes Commercial Center and the latter as
the one who took the ransom.[21]
P/Supt. Chan was one of the team leaders dispatched also at
Magallanes Commercial Center in Makati on 22 December 1993 to take a
video coverage on the supposed pay-off. He witnessed the pay-off and
identified appellant as the one who took the bag containing the ransom
money from the car trunk of Jepson.[22]
P/Supt. Cruz is assigned to the now defunct Presidential Anti-Crime
Commission Task Force Habagat and one of the team leaders of Special
Project Task Force organized on 22 December 1993 with the primary task of
apprehending the kidnappers of Dichaves children and helper. His group was
assigned at Fort Bonifacio to await instructions from the overall Field
At Command Officer Gen. Lacson. They had been waiting from 4:00 p.m. until
6:00 p.m. when they received information that the kidnap victims were
released unharmed. They were further asked to maintain their position in Fort
Bonifacio. At around 7:45 p.m., they heard on their radio that the suspects
vehicle, a red Nissan Sentra was heading in their direction. A few minutes
later, they saw the red car and tailed it until it reached Dasmarias Village in
Makati. They continuously followed the car inside the village. When said car
slowed down, they blocked it and immediately approached the vehicle.[23]
They introduced themselves as police officers and accosted the
suspect, who turned out to be appellant. Appellant suddenly pulled a .38
caliber revolver and a scuffle took place. They managed to subdue appellant
and handcuffed him. Appellant was requested to open the compartment and
a gray bag was found inside. P/Supt. Cruz saw money, jewelry and a gun
inside the bag. Appellant was then brought to Camp Crame for
questioning.[24]
At 8:00 p.m., Jepson received a call from Gen. Lacson asking him to
go to Camp Crame. He and Nimfa went to Camp Crame where he saw
appellant alone in the office of Gen. Canson. He then saw the bag containing
the ransom money, pieces of jewelry and his gun on the table. Photographs
were taken and Jepson was asked to identify them.[25]
A written inventory was prepared on the contents of the bag.[26] It
was found out that a portion of the ransom money was missing. It was then
that appellant revealed that the missing money was in the possession of
131
Macias. Appellant accompanied P/Supt. Cruz and his team to the residence
of Macias in Camp Aguinaldo. P/Supt. Cruz waited for Macias until 4:00 a.m.
on the following day and placed him under arrest. Macias was asked where
the rest of the ransom money was and Macias went inside the house and
retrieved a red bag inside a small cabinet. P/Supt. Cruz prepared a receipt of
the seized property from Macias. Macias placed his signature on the
receipt.[27]
Carolina Alejo was the owner of the house in Merville Subdivision
where the kidnap victims were detained. She stated that she leased the
house to appellant. On 23 December 1993, it came to her knowledge that
said house was used in the kidnapping. She noticed that the lock of the
comfort room was reversed so that it could only be locked from the
outside. She considered this unusual because she personally caused the
door knob to be installed.[28]
The defense, on its part, presented appellant, Florinda Sese
Barcelona (Ms. Sese), Dr. Jaime Leal (Dr. Leal), and retired Colonel Ramon
Navarro (Col. Navarro).
Appellant testified that he came to know Jepson when he was
introduced to him by Col. Navarro in 1989 as the importer of police
equipment and accessories. Jepson wanted to buy revolving lights, police
sirens and paging system. Through Navarro, appellant also met Macias who
was then selling his security agency in July 1993. He admitted that Jepson
had been lending him money since 1990 and his total borrowings amounted
to P8.5 Million in December 1993. Appellant also knew Nimfa since 1990 and
had met her five (5) times in the office of Jepson where Nimfa usually served
him coffee.[29]
In December 1993, he rented a house in Merville Subdivision for his
mother. He was given the key to the house in 15 December 1993 but he
denied going to said place on 20, 21, 22, 23 of December 1993.
At 3:00 p.m. of 20 December 1993, he received a call from Jepson
asking for P1 Million, as partial payment of his loan. Jepson informed
appellant that his sons were kidnapped and he requested appellant to
negotiate with the kidnappers for the release of his children. Out of pity,
appellant agreed. He actively participated in the negotiations between 20 to
22 of December 1993, where he successfully negotiated a lower ransom
of P1.5 Million.
On 11:30 a.m. of 22 December 1993, Jepson again requested
appellant to deliver the ransom money to the kidnappers. Appellant acceded
to the request. He asked Macias, who was in his office that day, to
accompany him. The kidnappers asked appellant to proceed to the Makati
area and wait for further instructions. Appellant called up Jepson who told
him that he would deliver the money to appellant once instructions were
given by the kidnappers. The kidnappers finally called and asked appellant to
proceed to Shell Gasoline Station-Magallanes. He informed Jepson of this
fact and the latter asked appellant to meet him in Magallanes Commercial
Center where he would just put the money inside the car trunk and leave it
unlocked. Appellant took the money from Jepsons car and put it inside his
car trunk and proceeded to Shell Gasoline station.[30] Appellant and Macias
did not see the kidnappers and Jepsons children at the station. He tried
calling Jepson but failed to communicate with him. They then decided to go
back to the office in Cubao, Quezon City. At 7:00 p.m., he received a call
from the kidnappers who were cursing him because they apparently went to
the Shell Gasoline Station and noticed that there were many policemen
stationed in the area, which prompted them to release the victims. Appellant
left his office at around 7:20 p.m. to go home in Dasmarias Village,
132

Makati.When he was about ten (10) meters away from the gate of his house,
a car blocked his path. He saw P/Supt. Cruz, a certain Lt. Rodica and two
other men alight from the car and were heavily armed. They pulled him out of
the car and hit him with their firearms.[31]
Ms. Sese was at the office of appellant on 22 December 1993 when
she was told by the secretary, who appeared shaken, that a caller was
looking for appellant. She saw appellant arrive at the office with Macias.[32]
Dr. Leal, the medico-legal officer at Philippine National Police (PNP)
Crime Laboratory, presented the medico-legal certificate of appellant and
testified that the injuries of appellant could have been sustained during the
scuffle.[33]
Col. Navarro introduced appellant to Jepson. He was privy to the
loan transactions between appellant and Jepson where the former asked
loans from the latter. He even served as guarantor of some of the obligations
of appellant. When the checks issued by appellant were dishonored by the
bank, Jepson filed a case against Navarro for violation of Batas
Pambansa Blg. 22, wherein the latter was eventually acquitted.[34]
While the criminal cases were undergoing trial, Macias
died. Consequently, his criminal liability is totally extinguished under Article
89, paragraph 1 of the Revised Penal Code.[35]
On 30 August 2002, the RTC rendered judgment finding appellant guilty
beyond reasonable doubt of the crime of kidnapping for ransom. The
dispositive portion reads:
WHEREFORE, premises considered herein accused
Ernesto Ramos Uyboco is hereby found guilty beyond
reasonable doubt of the crime of Kidnapping for Ransom
penalized by Article 267 of the Revised Penal Code, as
amended by R.A. 1084. He is hereby ordered to suffer the
prison term of reclusion perpetua for three (3) counts
together with the accessory penalties provided by law. He
should pay private complainant Jepson Dichaves the amount
of P150,000.00 as moral damages.
The above-described .45 Caliber Colt Pistol and 12-gauge
Remington shotgun as well as the Nissan Sentra 4-Door
Sedan are hereby confiscated in favor of the government.
The Warden of Metro Manila Rehabilitation Center, Camp
Ricardo R. Papa, Bicutan, Taguig, Metro Manila is hereby
ordered to immediately transfer the said accused to the
Bureau of Corrections, National Bilibid Prison, Muntinlupa
City. The Jail Director of said bureau is ordered to inform this
court in writing soonest as to when the said official took
custody of the accused.[36]
The trial court held that the prosecution had established with the required
quantum of evidence that the elements of kidnapping for ransom were
present and that appellant was the author of said crime.
Appellant filed a notice of appeal to the Supreme Court. Conformably
to People v. Mateo,[37] this Court in a Resolution dated 6 September 2004,
referred the case to the Court of Appeals for appropriate action and
disposition.[38]
On 27 September 2006, the Court of Appeals affirmed in toto the Decision of
the RTC, the dispositive portion of which reads:
WHEREFORE, the August 30, 2002 Decision of the
Regional Trial Court, national Capital Judicial Region, Br. 18,
Manila, in Criminal Cases Nos. 93-130980, 93-132606, and
93-132607, in convicting Ernesto Uyboco of three (3) counts
of Kidnapping for Ransom is hereby AFFIRMED in toto. No
costs.[39]
133
 V. THE TRIAL COURT ERRED IN ADMITTING
MOST OF THE OBJECT EVIDENCE PRESENTED
A motion for reconsideration was filed by appellant but the same was denied AGAINST THE ACCUSED-APPELLANT SINCE
THEY WERE PROCURED IN VIOLATION OF HIS
in a Resolution dated 22 December 2006. Hence, this appeal. CONSTITUTIONAL RIGHTS.

VI. THE TRIAL COURT ERRED IN FINDING OF

On 3 September 2007, this Court required the parties to file their respective FACT THAT THE MERVILLE PROPERTY LEASED
supplemental briefs. On 25 October 2007, appellants counsel filed a BY ACCUSED-APPELLANT FROM MS. CAROLINA
ALEJO WAS THE VERY SAME HOUSE WHERE
withdrawal of appearance.Appellee manifested that it is no longer filing a
NIMFA CELIZ AND HER WARDS WERE
Supplemental Brief.[40] Meanwhile, this Court appointed the Public Attorneys ALLEGEDLY DETAINED.
Office as counsel de oficio for appellant. Appellee also filed a manifestation
VII. THE TRIAL COURT ERRED IN HOLDING THAT
that it is merely adopting all the arguments in the appellants brief submitted ACCUSED UYBOCO AS HAVING PARTICIPATED
before the Court of Appeals.[41] IN THE ABDUCTION OF JESON KEVIN, JESON
KIRBY, AND NIMFA CELIZ AS NOT A SINGLE
EVIDENCE ON RECORD SUPPORTS THE SAME.
Appellant prays for a reversal of his conviction on three (3) counts of
VIII. THE TRIAL COURT ERRED IN NOT ACQUITTING
kidnapping for ransom based on the following assignment of errors:
THE ACCUSED CONSIDERING THAT
ABDUCTION, AN IMPORTANT ELEMENT OF THE
I. THE TRIAL COURT ERRED IN CONVICTING CRIME, WAS NEVER ESTABLISHED AGAINST
THE ACCUSED-APPELLANT DESPITE THE HIM.
DISTURBING WHISPERS OF DOUBT REPLETE IN
THE PROSECUTIONS THEORY. IX. THE TRIAL COURT ERRED IN HOLDING THE
ACCUSED GUILTY OF KIDNAPPING FOR
II. THE TRIAL COURT ERRED IN GIVING RANSOM WITHOUT DISCUSSING THE
CREDENCE TO NIMFA CELIZ TESTIMONY PARTICIPATION OF ACCUSED MACIAS
NOTWITHSTANDING THE INCREDIBILITY OF CONSIDERING THAT THE CHARGE WAS FOR
HER STORY. CONSPIRACY.[42]

III. THE TRIAL COURT ERRED IN PRESUMING

REGULARITY IN THE PERFORMANCE OF The ultimate issue in every criminal case is whether appellants guilt
OFFICIAL FUNCTIONS OVER THE
CONSTITUTIONAL PRESUMPTION OF has been proven beyond reasonable doubt. Guided by the law and
INNOCENCE OF THE ACCUSED UYBOCO. jurisprudential precepts, this Court is unerringly led to resolve this issue in

IV. THE TRIAL COURT ERRED IN ADMITTING THE the affirmative, as we shall hereinafter discuss.
TESTIMONY OF JEPSON DICHAVEZ
NOTWITHSTANDING HIS DISPLAYED
In order for the accused to be convicted of kidnapping and serious
PROPENSITY FOR UNTRUTHFULNESS.
illegal detention under Article 267 of the Revised Penal Code, the
prosecution is burdened to prove beyond reasonable doubt all the elements
134
 3) The act of the detention or kidnapping of the
of the crime, namely: (1) the offender is a private individual; (2) he kidnaps or
three victims was indubitably illegal. Their detention
detains another, or in any manner deprives the latter of his liberty; (3) the act was not ordered by any competent authority but by
of detention or kidnapping must be illegal; and (4) in the commission of the the private individual whose mind and heart were
focused to illegally amassed huge amount of money
offense any of the following circumstances is present: (a) the kidnapping or thru force and coercion for personal gain;
detention lasts for more than three days; (b) it is committed by simulating
xxxx
public authority; (c) serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or (d) the person 5) Both accused Uyboco and Macias had
successfully extorted ransom by compelling the
kidnapped and kept in detained is a minor, the duration of his detention is
parents of the minors to give in to their unreasonable
immaterial. Likewise, if the victim is kidnapped and illegally detained for the demands to get the huge amount of money, a gun,
purpose of extorting ransom, the duration of his detention is immaterial.[43] and pieces of jewelry x x x.[44]

We are in full accord with the findings of the trial court that these These facts were based on the narrations of the prosecutions
elements were proven by the prosecution, thus: witnesses, particularly that of Nimfa, the victim herself and Jepson, the father
of the two children abducted and the person from whom ransom was
1) Accused Uyboco is a private individual;
extorted.
2) Accused Uyboco together with the unidentified
persons/companions of accused Uyboco, referred to
as John Does, forcibly abducted the two sons of
Nimfa recounted how she and her wards were abducted in the
private complainant Jepson Dichaves, namely: then
five-year-old Jeson Kevin and two-year old Jeson morning of 20 December 2003 and detained in a house in Merville
Kirby as well as their maid or yaya Nimfa Celiz. Their Subdivision, Paraaque, thus:
abduction occurred at about 10:30 in the morning of
December 20, 1993. The three victims were on
board Jepsons Isuzu pick-up driven by Jepsons A: When we arrived at the office after awhile we boarded the
driver Pepito Acon. The moving pick-up was in front pick-up and then we left, Sir.
of San Sebastian Church, Legarda, Manila when its xxxx
path was blocked by a stainless jeep. A man in white
t-shirt and brown vest accosted driver Pepito for A: Those who boarded the pick-up, the driver Pepito Acon,
having allegedly ran over a stone that hit a son of a Mrs. Yusan Dichavez, the two (2) children and myself,
general working at the Presidential Security Sir.
Group. Pepito was made to ride in a jeep. The same
xxxx
man drove the pick-up to a house in Merville
Subdivision, Paranaque, Metro Manila, where the A: We proceeded to Metrobank Recto, Sir.
victims were illegally detained from December 20 to
23, 1993. xxxx

xxxx Q: And when you stopped there, what happened?

135
A: Mrs. Yusan Dichavez alighted in order to cross the street
to go to Metrobank, Sir.
Q: And then what followed next?
A: The driver, Jeson Kirvy, Jeson Kervin and myself made a
right turn and we entered an alley, Sir.
xxxx
Q: Before reaching Legarda, do you know of any untowards
incident that happened?
A: Yes, sir.
ATTY. PAMARAN:
Q: What?
A: When we were already in front of the San Sebastian
Church and Sta. Rita College there was a stainless jeep
that block our path, Sir.
Q: How many persons were inside that stainless jeep, if you
know?
A: I have not notice, but there were many, Sir.
Q: How did that stainless jeep stop your vehicle?
A: Our driver Pepito Acon was signaled by the persons on
the stainless jeep to stay on the side, sir.
Q: What did your driver Pepito Acon do when the sign was
made to him?
A: The driver stopped the pick-up and set on the side, Sir.
Q: And then what followed next after he stopped?
xxxx
A: The man told us that we will be brought to the precinct
because when we then make a turn at Kentucky a stone
was ran and hit the son of the General of PSG from
Malacaang, Sir.
xxxx
Q: What did Pepito Acon do? When told to alight?
A: Pepito Acon alighted, Sir.
Q: Then what followed next?
A: After that Pepito alighted and the man who came from the
stainless jeep boarded and he was the one who drove,
Sir.
xxxx
A: When that man boarded the pick-up there was a T-bird
who also boarded on the passengers side, Sir.
xxxx
Q: When you entered the gate of Merville Subdivision, where
did you proceed?
A: When we entered the gate there was a street which I do
not know and when we went straight as to my estimate
we were going back to the main gate, Sir.
xxxx
A: The pick-up stopped in front of a low house near the gate,
Sir.
Q: When you stopped in front of the gate, that house which
is low, what happened?
A: The tomboy alighted and opened the gate of that low
house, Sir.
Q: What followed next after the tomboy opened the gate?
A: After the tomboy opened the gate, the driver entered the
pick-up inside, Sir.
xxxx
Q: And when you entered the house, what happened?
136
 A: When we entered the house we were confined at the
comfort room, Sir.[45]
Jepson gave an account how appellant demanded ransom from him
and eventually got hold of the money, thus:
A: Then Macias offered the release of the two (2) boys for
1.5 Million each, Sir.
A: Then I started begging and bargaining with them and then
suddenly Uyboco was again the one continuing the
conversation, Sir.
Q: What did you say?
A: After some bargaining and beggings he reduced the
demand to 1.7 million, and he asked for my wife to talk
to because according to him I was very hard to talk too,
Sir.
ATTY. PAMARAN:
Q: You said he, to whom are you referring?
A: To Mr. Uyboco, Sir.
Q: What followed?
A: After some more bargaining and begins he further
reduced their demand to1.5 million x x x.
xxxx
Q: And after that what followed?
A: I offered them to fill up the different (sic) in kind, Sir.
Q: Why to offer the different (sic) in kind?
A: To fill up the different (sic) between 1.3 million to 1.5
million, Sir.
Q: So in short, how much cash did you offer?
A: I offered it for 1.3 million, Sir.
Q: How about the different (sic), what will it be?
A: At this point, he asked me to include my gun, Sir.
Q: How about the other balance?
A: My jewelry, Sir.[46]
xxxx
Q: And what did you do after you were in possession of the
money, the jewelries, the gun and the bag?
A: I returned to my office and put the cash in the bag.
Q: In short, what were those inside the bag?
A: The P1.325 million money, the gun and the assorted
jewelries.
Q: And after placing them inside the bag, what happened?
A: I left my office at 3:00 PM to proceed to the Pancake
House at the
Magallanes Commercial Center.
Q: Where did you place that bag?
A: That bag, at that time, was placed at the back seat when I
was going to the Pancake House.
xxxx
Q: What else did he tell you?
A: x x x He told me to put the ransom bag x x x inside my
trunk compartment, leave it and lock the car, and walk
away without looking back for ten (10) minutes.
Q: After that instruction, what happened, or what did you do?
137
A: After few minutes, he called again. He told me to drive
and park the car beside the car Mitsubishi Colt Mirage
with Plate NO. NRZ-863.
Q: Did he tell you where was that Colt Mirage car parked?
A: Yes, in front of the Mercury Drug Store.
Q: And then, what did you do?
A: I followed his instruction.
Q: And what followed next?
A: After few more minutes, he called again and asked if I am
in front of the Mercury Drug Store already.
Q: And what was your answer?
A: I told him yes and he again gave me the final
arrangement, but he uttered I walk back towards the
Pancake House without looking back for ten (10)
minutes.
Q: And?
A: And informing me the whereabouts of my sons.
ATTY. PAMARAN:
Q: Did you comply with that instruction?
A: Yes, sir.
Q: What did you do?
A: I walked towards the Pancake House without looking back
for more than ten (10) minutes.
Q: That car that you parked near the Mitsubishi Colt, how far
was your car the parked form that Colt Mirage?
A: Beside the Colt Mirage, Sir.
Q: And after you parked the car, what followed?
A: I walked towards the Pancake House without looking back
and then I turned to the back of the supermarket and I
checked my trunk and saw that the bag is gone already.
Q: And what followed thereafter?
A: A few minutes, Uyboco called up and told me that my
sons were at the shell station after the Magallanes
Commercial Center inside the Bibingkahan.[47]
Now, appellant seeks to destroy the credibility of these witnesses by
imputing inconsistencies, untruthfulness and incredibility in their testimonies.
Appellant harps on the supposed inconsistencies in the testimony of
Nimfa, namely: First, Nimfa stated that on the day they were to be released,
they, together with Macias, left Merville Subdivision at 4:00 p.m. while
appellant stayed behind. However, P/Insp. Escandor testified that at around
4:00 p.m., he saw Macias and appellant at Magallanes Commercial Center.
Second, Nimfa could not properly identify the number of kidnappers. Third,
Nimfa failed to state in her affidavit and during the direct examination that
Sarge had a gun, but later on cross-examination, she intimated that Sarge
had a gun. Fourth, it was incredible that Nimfa was able to identify the route
taken by the kidnappers to the safe house because she was not allegedly
blindfolded. Fifth, it was strange for Nimfa to say that two persons, Macias
and appellant, were holding the receiver and the dialing mechanism
whenever they hand the phone to her. Sixth, it was impossible for Nimfa to
have access to an operational telephone while in captivity. [48] The Court of
Appeals correctly dismissed these inconsistencies as immaterial, in this wise:
The purported inconsistencies and discrepancies
involve estimations of time or number; hence, the reference
thereto would understandably vary. The rule is that
inconsistencies in the testimonies of prosecution witnesses
138
 on minor details and collateral matters do not affect the
substance of their declaration, their veracity or the weight of
their testimonies. The inconsistencies and discrepancies of
the testimonies, in the case at bar, are not of such nature as
would warrant the reversal of the decision appealed
from. On the contrary, such trivial inconsistencies
strengthen, rather than diminish, Celiz testimony as they
erase suspicion that the same was rehearsed.
The fact that Uyboco and his companions neither
donned masks to hide their faces nor blindfolded or tied up
their victims goes to show their brazenness in perpetrating
the crime.Besides, familiarity with the victims or their families
has never rendered the commission of the crime improbable,
but has in fact at times even facilitated its
commission. Moreover, the fact that there was a usable
phone in the house where Celiz and the kids were held
captive only proves that, in this real world, mistakes or
blunders are made and there is no such thing as a perfect
crime.On a different view, it may even be posited that the
incredible happenings narrated by Celiz only highlights the
brilliance of Uyboco and his companions. Verily, in
committing the crime of kidnapping with ransom, they
adopted and pursued unfamiliar strategies to confuse the
police authorities, the victim, and the family of the victims.[49]
Appellant then zeroes in on Jepson and accuses him of lying under
oath when he claimed that appellant owed him only P2.3 Million when in fact,
appellant owed him P8.5 Million. Appellant charges Jepson of downplaying
his closeness to him when in fact they had several business deals and
Jepson would address appellant as Ernie. Moreover, it was unbelievable for
Jepson to be able to identify with utmost certainty that the kidnapper he was
supposedly talking to was appellant. Finally, appellant claims that Jepsons
motive to maliciously impute a false kidnapping charge against him boils
down to money. Among the businesses that Jepson owns was along the
same line of business as that of appellant, which is the supply of police
equipment to the PNP. To eliminate competition and possibly procure all
contracts from the PNP and considering his brothers close association to
then Vice-President Estrada, Jepson crafted and executed a frame up of
appellant.
And the Court of Appeals had this to say:
For one, the strategy used, which is the use of
unconventional or not so commonly used strategy, to
apprehend the kidnappers of Celiz and the Dichaves
children is, by reason of their special knowledge and
expertise, the police operatives call or
prerogative. Accordingly, in the absence of any evidence
that said agents falsely testified against Uyboco, We shall
presume regularity in their performance of official duties and
disregard Uybocos unsubstantiated claim that he was
framed up.
Secondly, matters of presentation of witnesses by the
prosecution and the determination of which evidence to
present are not for Uyboco or even the trial court to decide,
but the same rests upon the prosecution. This is so since
Section 5, Rule 110 of the Revised Rules of Court expressly
vests in the prosecution the direction and control over the
prosecution of a case. As the prosecution had other
witnesses who it believes could sufficiently prove the case
against Uyboco, its non-presentation of other witnesses
cannot be taken against the same.[50]
Time and again, this court has invariably viewed the defense of
frame-up with disfavor. Like the defense of alibi, it can be just as easily
concocted.[51]
We are inclined to accord due weight and respect to the ruling of the
lower courts in giving credence to the positive testimonies of Nimfa and
Jepson, both pointing to appellant as one of the kidnappers. Both witnesses
testified in a clear and categorical manner, unfazed by efforts of the defense
to discredit them. As a rule, the assessment of the credibility of witnesses
and their testimonies is a matter best undertaken by the trial court, which had
139

a unique opportunity to observe the witnesses firsthand and to note their
demeanor, conduct and attitude.[52] While it is true that the trial judge who
conducted the hearing would be in a better position to ascertain the truth or
falsity of the testimonies of the witnesses, it does not necessarily follow that a
judge who was not present during the trial, as in this case, cannot render a
valid and just decision, since the latter can very well rely on the transcribed
stenographic notes taken during the trial as the basis of his decision. [53]
Appellant raises questions which purportedly tend to instill doubt on
the prosecutions theory, thus:
If Uyboco is really the mastermind of the kidnapping
syndicate, why would he demand only P1.325M x x x as
ransom? Why would he be the one to personally pick-up the
ransom money using his own car registered in his sons
name? Why did he not open the bag containing the ransom
to check its contents? Why would he be the one to
personally hand the phone to Nimfa Celiz without any mask
covering his face x x x. Why would he go back to his family
residence x x x with the ransom money still intact in the trunk
of his car?
If Nimfa Celiz and her wards were indeed
kidnapped, why were they not blindfolded x x x? Why were
they not tied x x x?
xxxx
If it is true that the house at Merville, Paraaque was
used by accused-appellant Uyboco as the place of the
alleged detention x x x how come Uyboco signed the lease
contract under his own name? x x x Certainly, any person
with the education attainment of at least high school degree,
much more so an established businessman like accused-
appellant would know that the lease contract and the post-
dated checks are incriminating evidence.
x x x (h)ow come no effort was exerted in apprehending
Uyboco during day 1 of the kidnapping? x x x Why is their
story focused only on the day of the ransom payment? Why
did they not apply for a warrant of arrest against accused-
appellant Uyboco when they supposedly knew that from day
1, he was the kidnapper?
Why were there no tapes presented in evidence
which recorded the conversations between the kidnappers x
x x.[54]
Furthermore, appellant stresses that his financial status as an
established and well-off businessman negates any motive on his part to
resort to kidnapping.
If we indulge appellants speculations, we could readily provide for the
answers to all these questions that appellant originally demanded P26 Million
but this had been substantially reduced due to aggressive bargaining and
negotiations; that appellant personally picked up the ransom money because
he could not trust anybody to do the work for him; that appellant did not open
the bag containing the money because he trusted Jepson, who then out of
fear, would deliver as instructed; that appellant did not cover his face in front
of Nimfa because he thought Nimfa would not recognize him; that appellant
went back to his family residence because he never thought that Jepson
would recognize him as the voice behind one of the kidnappers; that the
victims were not blindfolded or tied because Nimfa, who appeared to be
ignorant to the kidnappers and the two children barely 5 years old would be
emboldened to escape; that appellant never thought that the police would
discover the place of detention; that the police employed a different strategy,
which is to first secure the victims before they apprehend the kidnappers;
that to secure a warrant would be futile as the police then did not have
sufficient evidence to pin down appellant to the crime of kidnapping; that
there were no actual record of the telephone conversations between Jepson
and the kidnappers.
140
However, to individually address each and every question would be
tantamount to engaging in a battle of endless speculations, which do not
have a place in a court of law where proof or hard evidence takes
precedence. On the other hand, the prosecution presented testimonies and
evidence to prove that kidnapping occurred and that appellant is the author
thereof.
Appellant seeks to pierce the presumption of regularity enjoyed by police
officers to anchor his argument that he has been framed up. He belittles the
efforts of the police officers who participated in the operation. Appellant
claims that despite knowledge of the place of alleged detention, the police
did not try to rescue the kidnap victims. Appellant also notes that while
P/Supt. Chan denies installing any listening device to record the
conversations of the kidnappers and Jepson, the interview made by a
reporter for a television network shows that Major Aquino admitted to taped
conversations of appellants alleged negotiations for the ransom with
Jepson. Appellant insists that these taped conversations do exist.
Appellant cannot rely on a vague mention of an interview, if it indeed exists,
to discredit the testimony of P/Supt. Chan. The truth of the matter is appellant
failed to prove the existence of the alleged taped conversations. The matters
of failure of the police officer to properly document the alleged pay-off, the
non-production of the master copy of the video tape, and the chain of
custody supposedly broken are not semblance of neglect so as to debunk
the presumption of regularity. In the absence of proof of motive on the part of
the police officers to falsely ascribe a serious crime against the accused, the
presumption of regularity in the performance of official duty, as well as the
trial court's assessment on the credibility of the apprehending officers, shall
prevail over the accused's self-serving and uncorroborated claim of frame-
up.[55]
Appellant then questions the validity of his arrest and the search conducted
inside his car in absence of a warrant. The arrest was validly executed
pursuant to Section 5, paragraph (b) of Rule 113 of the Rules of Court, which
provides:
SEC. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a warrant,
arrest a person: (a) When, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense; (b) When an offense has
in fact been committed and he has personal knowledge
of facts indicating 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 temporarily
confined while his case is pending, or has escaped while
being transferred from one confinement to another.
(Emphasis supplied)
The second instance of lawful warrantless arrest covered by
paragraph (b) cited above necessitates two stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed;
and (2) the person making the arrest has personal knowledge of facts
indicating that the person to be arrested has committed it.[56]
Records show that both requirements are present in the instant
case. The police officers present in Magallanes Commercial Center were
able to witness the pay-off which effectively consummates the crime of
kidnapping. They all saw appellant take the money from the car trunk of
Jepson. Such knowledge was then relayed to the other police officers
stationed in Fort Bonifacio where appellant was expected to pass by.
Personal knowledge of facts must be based on probable cause,
which means an actual belief or reasonable grounds of suspicion. The
141
grounds of suspicion are reasonable when, in the absence of actual belief of
the arresting officers, the suspicion that the person to be arrested is probably
guilty of committing the offense is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause
of guilt of the person to be arrested. A reasonable suspicion, therefore, must
be founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest. Section 5, Rule 113 of the 1985 Rules on
Criminal Procedure does not require the arresting officers to personally
witness the commission of the offense with their own eyes.[57]
It is sufficient for the arresting team that they were monitoring the
pay-off for a number of hours long enough for them to be informed that it was
indeed appellant, who was the kidnapper. This is equivalent to personal
knowledge based on probable cause.
Likewise, the search conducted inside the car of appellant was legal
because the latter consented to such search as testified by P/Supt.
Cruz. Even assuming that appellant did not give his consent for the police to
search the car, they can still validly do so by virtue of a search incident to a
lawful arrest under Section 13, Rule 126 of the Rules of Court which states:
SEC. 13. Search incident to lawful arrest. A person
lawfully arrested may be searched for dangerous weapons
or anything which may have been used or constitute proof in
the commission of an offense without a search warrant.
In lawful arrests, it becomes both the duty and the right of the
apprehending officers to conduct a warrantless search not only on the person
of the suspect, but also in the permissible area within the latter's
reach. Otherwise stated, a valid arrest allows the seizure of evidence or
dangerous weapons either on the person of the one arrested or within the
area of his immediate control. The phrase "within the area of his immediate
control" means the area from within which he might gain possession of a
weapon or destructible evidence.[58] Therefore, it is only but expected and
legally so for the police to search his car as he was driving it when he was
arrested.
Appellant avers that it was not proven that appellant was present and
in fact participated in the abduction of the victims. Lacking this element,
appellant should have been acquitted. In a related argument, appellant
contends that conspiracy was not proven in the execution of the crime,
therefore, appellants participation was not sufficiently established.
The Court of Appeal effectively addressed these issues, to wit:
The prosecution was able to prove that: 1) At the
time of the kidnapping, the house where Celiz and the
Dichaves children were kept was being leased by Uyboco; 2)
Uyboco was present in the said house at the time when
Celiz and the Dichaves children were being kept thereat; 3)
there being no evidence to the contrary, Uybocos presence
in the same is voluntary; 4) that Uyboco has in his
possession some of the ransom payment; and, 5) that
Uyboco was the one who told them that the balance of the
ransom payment is with Macias. All these circumstances
clearly point out that Uyboco, together with several
unidentified persons, agreed or decided and conspired, to
commit kidnapping for ransom.
xxxx
x x x Uybocos claim, that since it was not proven that he was
one of the passengers of the jeep which waylaid the
Dichaves vehicle on December 20, 1993, he could not be
convicted of kidnapping for ransom considering that his
participation, if any, was merely to provide the house where
the victims were kept, is misplaced.
142
 Moreover, to Our mind, it is inconceivable that
members of a kidnapping syndicate would entrust the
performance of an essential and sensitive phase of their
criminal scheme, i.e. possession of the ransom payment, to
people not in cahoots with them, and who had no knowledge
whatsoever of the details of their nefarious plan.[59]
The testimonies of Nimfa and Jepson sufficiently point to the
participation of appellant. While he was not present during the abduction, he
was present in the house where the victims were detained, oftentimes giving
the phone to Nimfa to talk to Jepson. He also actively demanded ransom
from Jepson. The conspiracy was likewise proven by the
testimonies. Appellant conspired with Macias and other John Does in
committing the crime. Therefore, even with the absence of appellant in the
abduction stage, he is still liable for kidnapping for ransom because in
conspiracy, the act of one is the act of all.[60]
Based on the foregoing, we sustain appellants conviction.
WHEREFORE, the Decision dated 30 August 2002 in Criminal Case
Nos. 93-130980, 93-132606, and 93-132607 RTC, Branch 18, Manila, finding
Ernesto Uyboco y Ramos guilty of kidnapping for ransom, and the Decision
dated 27 September 2006 of the Court of Appeals, affirming in toto the
Decision of the RTC, are AFFIRMED.
SO ORDERED.
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of
Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.
above
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant
and his common-law wife, Shirley Reyes, went to the booth of the
"Manila Packing and Export Forwarders" in the Pistang Pilipino
Complex, Ermita, Manila, carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that
he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction, writing
therein his name, passport number, the date of shipment and the
name and address of the consignee, namely, "WALTER FIERZ,
Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and
inspect the packages. Appellant, however, refused, assuring her that
the packages simply contained books, cigars, and gloves and were
gifts to his friend in Zurich. In view of appellant's representation,
Anita Reyes no longer insisted on inspecting the packages. The four
(4) packages were then placed inside a brown corrugated box one
by two feet in size (1' x 2'). Styro-foam was placed at the bottom and
on top of the packages before the box was sealed with masking
tape, thus making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or
Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita
(Reyes), following standard operating procedure, opened the boxes
for final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiousity aroused, he squeezed one of the
143
 bundles allegedly containing gloves and felt dried leaves inside.
Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an
opening on one of the cellophane wrappers and took several grams
of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis
supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the
NBI and requesting a laboratory examination of the samples he
extracted from the cellophane wrapper (tsn, pp. 5-6, October 6,
1987).
He brought the letter and a sample of appellant's shipment to the
Narcotics Section of the National Bureau of Investigation (NBI), at
about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987.
He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer,
went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).
Job Reyes brought out the box in which appellant's packages were
placed and, in the presence of the NBI agents, opened the top flaps,
removed the styro-foam and took out the cellophane wrappers from
inside the gloves. Dried marijuana leaves were found to have been
contained inside the cellophane wrappers (tsn, p. 38, October 6,
1987; Emphasis supplied).
The package which allegedly contained books was likewise opened
by Job Reyes. He discovered that the package contained bricks or
cake-like dried marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It turned out that dried
marijuana leaves were neatly stocked underneath the cigars (tsn, p.
39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and
of the contents thereof, after signing a "Receipt"
acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).
Thereupon, the NBI agents tried to locate appellant but to no avail.
Appellant's stated address in his passport being the Manila Central Post
Office, the agents requested assistance from the latter's Chief Security. On
August 27, 1987, appellant, while claiming his mail at the Central Post Office,
was invited by the NBI to shed light on the attempted shipment of the seized
dried leaves. On the same day the Narcotics Section of the NBI submitted
the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering tops
as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp.
132-134).
Thereafter, an Information was filed against appellant for violation of RA
6425, otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN
THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT
DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER
THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO
THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR
PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p.
1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable
search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held inadmissible
in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
144
 under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable
search and seizure had its origin in the 1935 Charter which, worded as
follows:
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the
United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US
Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]),
this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as
inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted
in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of
evidence was not affected by the illegality of its seizure. The 1973 Charter
(Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over
up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and
has struck down the admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable searches and seizures.
(Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence
so obtained were invariably procured by the State acting through the medium
of its law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise,
may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and
seizure) refers to the immunity of one's person, whether citizen or
alien, from interference by government, included in which is his
residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the
access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by government,
which is called upon to refrain from any invasion of his dwelling and
to respect the privacies of his life. . . . (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048),
the Court there in construing the right against unreasonable searches and
seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches
and seizures, and as shown in previous cases, its protection applies
to governmental action. Its origin and history clearly show that it was
145
 intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968])
where a parking attendant who searched the automobile to ascertain the
owner thereof found marijuana instead, without the knowledge and
participation of police authorities, was declared admissible in prosecution for
illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held
that the search and seizure clauses are restraints upon the government and
its agents, not upon private individuals (citing People v. Potter, 240 Cal.
App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903
(1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The
Court there said:
The search of which appellant complains, however, was made by a
private citizen the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence***complained of. The search was made on the motel
owner's own initiative. Because of it, he became suspicious, called
the local police, informed them of the bag's contents, and made it
available to the authorities.
The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private citizen.
Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the
Government without the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent reason why the
same should not be admitted against him in the prosecution of the offense
charged.
Appellant, however, would like this court to believe that NBI agents made an
illegal search and seizure of the evidence later on used in prosecuting the
case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two
days. In both instances, the argument stands to fall on its own weight, or the
lack of it.
First, the factual considerations of the case at bar readily foreclose the
proposition that NBI agents conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly indicate that it was Mr.
Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a
standard operating procedure on the part of Mr. Reyes as a precautionary
measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo,
he took samples of the same to the NBI and later summoned the agents to
his place of business. Thereafter, he opened the parcel containing the rest of
the shipment and entrusted the care and custody thereof to the NBI agents.
Clearly, the NBI agents made no search and seizure, much less an illegal
one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed
by the Constitution. Merely to observe and look at that which is in plain sight
is not a search. Having observed that which is open, where no trespass has
been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d
135). Where the contraband articles are identified without a trespass on the
part of the arresting officer, there is not the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of
California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that
where the property was taken into custody of the police at the specific
request of the manager and where the search was initially made by the
owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be
invoked against acts of private individuals finds support in the deliberations of
the Constitutional Commission. True, the liberties guaranteed by the
fundamental law of the land must always be subject to protection. But
146
protection against whom? Commissioner Bernas in his sponsorship speech
in the Bill of Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties
in the essence of constitutional democracy. Protection against
whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not
the relation between individuals, between a private individual and
other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner Bernas , Record of
the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful searches and seizures
therefore applies as a restraint directed only against the government and its
agencies tasked with the enforcement of the law. Thus, it could only be
invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must
generally be first secured if it is to pass the test of constitutionality. However,
if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual,
not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed
by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution
has been modified by the present phraseology found in the 1987 Charter,
expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not
whether the evidence was procured by police authorities or private
individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does
not govern relationships between individuals. Moreover, it must be
emphasized that the modifications introduced in the 1987 Constitution (re:
Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof
(SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1,
1985] and Circular No. 12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed
with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may
only be invoked against the State by an individual unjustly traduced by the
exercise of sovereign authority. To agree with appellant that an act of a
private individual in violation of the Bill of Rights should also be construed as
an act of the State would result in serious legal complications and an absurd
interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the
constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the
records of the case and found nothing to indicate, as an "undisputed fact",
that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified that
accused/appellant was informed of his constitutional rights. It is presumed
that they have regularly performed their duties (See. 5(m), Rule 131) and
their testimonies should be given full faith and credence, there being no
evidence to the contrary. What is clear from the records, on the other hand,
is that appellant refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about
the accused here, did you investigate the accused together with the
girl?
WITNESS:
147
 Yes, we have interviewed the accused together with the girl but the and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss
accused availed of his constitutional right not to give any written national, was likewise convicted for drug abuse and is just about an hour's
statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. drive from appellant's residence in Zurich, Switzerland (TSN, October 8,
240) 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

The above testimony of the witness for the prosecution was not contradicted Evidence to be believed, must not only proceed from the mouth of a credible
by the defense on cross-examination. As borne out by the records, neither witness, but it must be credible in itself such as the common experience and
was there any proof by the defense that appellant gave uncounselled observation of mankind can approve as probable under the circumstances
confession while being investigated. What is more, we have examined the (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J.
assailed judgment of the trial court and nowhere is there any reference made Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga,
to the testimony of appellant while under custodial investigation which was 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records
utilized in the finding of conviction. Appellant's second assignment of error is further show, appellant did not even bother to ask Michael's full name, his
therefore misplaced. complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so
3. Coming now to appellant's third assignment of error, appellant would like indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On
us to believe that he was not the owner of the packages which contained the contrary, appellant signed the contract as the owner and shipper thereof
prohibited drugs but rather a certain Michael, a German national, whom giving more weight to the presumption that things which a person possesses,
appellant met in a pub along Ermita, Manila: that in the course of their 30- or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131).
minute conversation, Michael requested him to ship the packages and gave At this point, appellant is therefore estopped to claim otherwise.
him P2,000.00 for the cost of the shipment since the German national was
about to leave the country the next day (October 15, 1987, TSN, pp. 2-10). Premises considered, we see no error committed by the trial court in
rendering the assailed judgment.
Rather than give the appearance of veracity, we find appellant's disclaimer
as incredulous, self-serving and contrary to human experience. It can easily WHEREFORE, the judgment of conviction finding appellant guilty beyond
be fabricated. An acquaintance with a complete stranger struck in half an reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
hour could not have pushed a man to entrust the shipment of four (4) parcels
and shell out P2,000.00 for the purpose and for appellant to readily accede to SO ORDERED.
comply with the undertaking without first ascertaining its contents. As stated
by the trial court, "(a) person would not simply entrust contraband and of Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
considerable value at that as the marijuana flowering tops, and the cash
amount of P2,000.00 to a complete stranger like the Accused. The Accused,
on the other hand, would not simply accept such undertaking to take custody
of the packages and ship the same from a complete stranger on his mere
say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the
errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no
weight in law and cannot be given greater evidentiary weight than the
testimony of credible witnesses who testify on affirmative matters (People v.
Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish
by the Kleve Court in the Federal Republic of Germany on January 1, 1982

148
Near v. Minnesota, 283 U.S. 697 (1931)
Near v. Minnesota
No. 91
Argued January 30, 1931
Decided June 1, 1931
283 U.S. 697
APPEAL FROM THE SUPREME COURT OF MINNESOTA
Syllabus
1. A Minnesota statute declares that one who engages "in the business of
regularly and customarily producing, publishing," etc., "a malicious,
scandalous and defamatory newspaper, magazine or other periodical," is
guilty of a nuisance, and authorizes suits, in the name of the State, in which
such periodicals may be abated and their publishers enjoined from future
violations. In such a suit, malice may be inferred from the fact of publication.
The defendant is permitted to prove, as a defense, that his publications were
true and published "with good motives and for justifiable ends." Disobedience
of an injunction is punishable as a contempt. Held unconstitutional, as
applied to publications charging neglect of duty and corruption upon the part
of law-enforcing officers of the State. Pp. 283 U. S. 704, 283 U. S. 709, 283
U. S. 712, 283 U. S. 722.
2. Liberty of the press is within the liberty safeguarded by the due process
clause of the Fourteenth Amendment from invasion by state action. P. 283 U.
S. 707.
3. Liberty of the press is not an absolute right, and the State may punish its
abuse. P. 283 U. S. 708.
4. In passing upon the constitutionality of the statute, the court has regard for
substance, and not for form; the statute must be tested by its operation and
effect. P. 283 U. S. 708.
Page 283 U. S. 698
5. Cutting through mere details of procedure, the operation and effect of the
statute is that public authorities may bring a publisher before a judge upon a
charge of conducting a business of publishing scandalous and defamatory
matter -- in particular, that the matter consists of charges against public
officials of official dereliction -- and, unless the publisher is able and disposed
to satisfy the judge that the charges are true and are published with good
motives and for justifiable ends, his newspaper or periodical is suppressed
and further publication is made punishable as a contempt. This is the
essence of censorship. P. 283 U. S. 713.
6. A statute authorizing such proceedings in restraint of publication is
inconsistent with the conception of the liberty of the press as historically
conceived and guaranteed. P. 283 U. S. 713.
7. The chief purpose of the guaranty is to prevent previous restraints upon
publication. The libeler, however, remains criminally and civilly responsible
for his libels. P. 283 U. S. 713.
8. There are undoubtedly limitations upon the immunity from previous
restraint of the press, but they are not applicable in this case. P. 283 U. S.
715.
9. The liberty of the press has been especially cherished in this country as
respects publications censuring public officials and charging official
misconduct. P. 283 U. S. 716.
10. Public officers find their remedies for false accusations in actions for
redress and punishment under the libel laws, and not in proceedings to
restrain the publication of newspapers and periodicals. P. 283 U. S. 718.
11. The fact that the liberty of the press may be abused by miscreant
purveyors of scandal does not make any the less necessary the immunity
from previous restraint in dealing with official misconduct. P. 283 U. S. 720.
12. Characterizing the publication of charges of official misconduct as a
"business," and the business as a nuisance, does not avoid the constitutional
guaranty; nor does it matter that the periodical is largely or chiefly devoted to
such charges. P. 283 U. S. 720.
13. The guaranty against previous restraint extends to publications charging
official derelictions that amount to crimes. P.283 U. S. 720.
149
14. Permitting the publisher to show in defense that the matter published is
true and is published with good motives and for justifiable ends does not
justify the statute. P. 283 U. S. 721.
15. Nor can it be sustained as a measure for preserving the public peace and
preventing assaults and crime. Pp. 283 U. S. 721, 283 U. S. 722.
179 Minn. 40; 228 N.W. 326, reversed.
Page 283 U. S. 699
APPEAL from a decree which sustained an injunction abating the publication
of a periodical as malicious, scandalous and defamatory, and restraining
future publication. The suit was based on a Minnesota statute. See also s.c.,
174 Minn. 457, 219 N.W. 770.
Page 283 U. S. 701
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Chapter 285 of the Session Laws of Minnesota for the year 1925 [Footnote 1]
provides for the abatement, as a public nuisance, of a "malicious, scandalous
and defamatory newspaper,
Page 283 U. S. 702
magazine or other periodical." Section one of the Act is as follows:
"Section 1. Any person who, as an individual, or as a member or employee of
a firm, or association or organization, or as an officer, director, member or
employee of a corporation, shall be engaged in the business of regularly or
customarily producing, publishing or circulating, having in possession, selling
or giving away"
"(a) an obscene, lewd and lascivious newspaper, magazine, or other
periodical, or"
"(b) a malicious, scandalous and defamatory newspaper, magazine or other
periodical,"
is guilty of a nuisance, and all persons guilty of such nuisance may be
enjoined, as hereinafter provided.
"Participation in such business shall constitute a commission of such
nuisance and render the participant liable and subject to the proceedings,
orders and judgments provided for in this Act. Ownership, in whole or in part,
directly or indirectly, of any such periodical, or of any stock or interest in any
corporation or organization which owns the same in whole or in part, or which
publishes the same, shall constitute such participation."
"In actions brought under (b) above, there shall be available the defense that
the truth was published with good motives and for justifiable ends and in
such actions the plaintiff shall not have the right to report (sic) to issues or
editions of periodicals taking place more than three months before the
commencement of the action."
Section two provides that, whenever any such nuisance is committed or
exists, the County Attorney of any county where any such periodical is
published or circulated, or, in case of his failure or refusal to proceed upon
written request in good faith of a reputable citizen, the Attorney General, or,
upon like failure or refusal of the latter, any citizen of the county may
maintain an action in the district court of the county in the name of the State
to enjoin
Page 283 U. S. 703
perpetually the persons committing or maintaining any such nuisance from
further committing or maintaining it. Upon such evidence as the court shall
deem sufficient, a temporary injunction may be granted. The defendants
have the right to plead by demurrer or answer, and the plaintiff may demur or
reply as in other cases.
The action, by section three, is to be " governed by the practice and
procedure applicable to civil actions for injunctions," and, after trial, the court
may enter judgment permanently enjoining the defendants found guilty of
violating the Act from continuing the violation, and, "in and by such judgment,
such nuisance may be wholly abated." The court is empowered, as in other
cases of contempt, to punish disobedience to a temporary or permanent
injunction by fine of not more than $1,000 or by imprisonment in the county
jail for not more than twelve months.
Under this statute, clause (b), the County Attorney of Hennepin County
brought this action to enjoin the publication of what was described as a "
150
malicious, scandalous and defamatory newspaper, magazine and periodical"
known as " The Saturday Press," published by the defendants in the city of
Minneapolis. The complaint alleged that the defendants, on September 24,
1927, and on eight subsequent dates in October and November, 1927,
published and circulated editions of that periodical which were "largely
devoted to malicious, scandalous and defamatory articles" concerning
Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the
Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race,
the members of the Grand Jury of Hennepin County impaneled in November,
1927, and then holding office, and other persons, as more fully appeared in
exhibits annexed to the complaint, consisting of copies of the articles
described and constituting 327 pages of the record. While the complaint did
not so allege, it
Page 283 U. S. 704
appears from the briefs of both parties that Charles G. Davis was a special
law enforcement officer employed by a civic organization, that George E.
Leach was Mayor of Minneapolis, that Frank W. Brunskill was its Chief of
Police, and that Floyd B. Olson (the relator in this action) was County
Attorney.
Without attempting to summarize the contents of the voluminous exhibits
attached to the complaint, we deem it sufficient to say that the articles
charged in substance that a Jewish gangster was in control of gambling,
bootlegging and racketeering in Minneapolis, and that law enforcing officers
and agencies were not energetically performing their duties. Most of the
charges were directed against the Chief of Police; he was charged with gross
neglect of duty, illicit relations with gangsters, and with participation in graft.
The County Attorney was charged with knowing the existing conditions and
with failure to take adequate measures to remedy them. The Mayor was
accused of inefficiency and dereliction. One member of the grand jury was
stated to be in sympathy with the gangsters. A special grand jury and a
special prosecutor were demanded to deal with the situation in general, and,
in particular, to investigate an attempt to assassinate one Guilford, one of the
original defendants, who, it appears from the articles, was shot by gangsters
after the first issue of the periodical had been published. There is no question
but that the articles made serious accusations against the public officers
named and others in connection with the prevalence of crimes and the failure
to expose and punish them.
At the beginning of the action, on November 22, 1927, and upon the verified
complaint, an order was made directing the defendants to show cause why a
temporary injunction should not issue and meanwhile forbidding the
defendants to publish, circulate or have in their possession any editions of
the periodical from September
Page 283 U. S. 705
24, 1927, to November 19, 1927, inclusive, and from publishing, circulating,
or having in their possession, "any future editions of said The Saturday
Press" and
"any publication, known by any other name whatsoever containing malicious,
scandalous and defamatory matter of the kind alleged in plaintiff's complaint
herein or otherwise."
The defendants demurred to the complaint upon the ground that it did not
state facts sufficient to constitute a cause of action, and on this demurrer
challenged the constitutionality of the statute. The District Court overruled the
demurrer and certified the question of constitutionality to the Supreme Court
of the State. The Supreme Court sustained the statute (174 Minn. 457, 219
N.W. 770), and it is conceded by the appellee that the Act was thus held to
be valid over the objection that it violated not only the state constitution, but
also the Fourteenth Amendment of the Constitution of the United States.
Thereupon, the defendant Near, the present appellant, answered the
complaint. He averred that he was the sole owner and proprietor of the
publication in question. He admitted the publication of the articles in the
issues described in the complaint, but denied that they were malicious,
scandalous or defamatory as alleged. He expressly invoked the protection of
the due process clause of the Fourteenth Amendment. The case then came
on for trial. The plaintiff offered in evidence the verified complaint, together
with the issues of the publication in question, which were attached to the
complaint as exhibits. The defendant objected to the introduction of the
evidence, invoking the constitutional provisions to which his answer referred.
The objection was overruled, no further evidence was presented, and the
plaintiff rested. The defendant then rested without offering evidence. The
plaintiff moved that the court direct the issue of a permanent injunction, and
this was done.
Page 283 U. S. 706
The District Court made findings of fact which followed the allegations of the
complaint and found in general terms that the editions in question were
"chiefly devoted to malicious, scandalous and defamatory articles"
151
concerning the individuals named. The court further found that the
defendants, through these publications,
"did engage in the business of regularly and customarily producing,
publishing and circulating a malicious, scandalous and defamatory
newspaper,"
and that "the said publication" "under said name of The Saturday Press, or
any other name, constitutes a public nuisance under the laws of the State."
Judgment was thereupon entered adjudging that "the newspaper, magazine
and periodical known as The Saturday Press," as a public nuisance, "be and
is hereby abated." The Judgment perpetually enjoined the defendants
"from producing, editing, publishing, circulating, having in their possession,
selling or giving away any publication whatsoever which is a malicious,
scandalous or defamatory newspaper, as defined by law,"
and also "from further conducting said nuisance under the name and title of
said The Saturday Press or any other name or title."
The defendant Near appealed from this judgment to the Supreme Court of
the State, again asserting his right under the Federal Constitution, and the
judgment was affirmed upon the authority of the former decision. 179 Minn.
40, 228 N.W. 326. With respect to the contention that the judgment went too
far, and prevented the defendants from publishing any kind of a newspaper,
the court observed that the assignments of error did not go to the form of the
judgment, and that the lower court had not been asked to modify it. The court
added that it saw no reason
"for defendants to construe the judgment as restraining them from operating
a newspaper in harmony with the public welfare, to which all must yield,"
that the allegations of the complaint had been
Page 283 U. S. 707
found to be true, and, though this was an equitable action, defendants had
not indicated a desire "to conduct their business in the usual and legitimate
manner."
From the judgment as thus affirmed, the defendant Near appeals to this
Court.
This statute, for the suppression as a public nuisance of a newspaper or
periodical, is unusual, if not unique, and raises questions of grave importance
transcending the local interests involved in the particular action. It is no
longer open to doubt that the liberty of the press, and of speech, is within the
liberty safeguarded by the due process clause of the Fourteenth Amendment
from invasion by state action. It was found impossible to conclude that this
essential personal liberty of the citizen was left unprotected by the general
guaranty of fundamental rights of person and property. Gitlow v. New
York, 268 U. S. 652, 268 U. S. 666; Whitney v. California, 274 U. S. 357, 274
U. S. 362, 274 U. S. 373; Fiske v. Kansas, 274 U. S. 380, 274 U. S.
382; Stromberg v. California, ante, p. 283 U. S. 359. In maintaining this
guaranty, the authority of the State to enact laws to promote the health,
safety, morals and general welfare of its people is necessarily admitted. The
limits of this sovereign power must always be determined with appropriate
regard to the particular subject of its exercise. Thus, while recognizing the
broad discretion of the legislature in fixing rates to be charged by those
undertaking a public service, this Court has decided that the owner cannot
constitutionally be deprived of his right to a fair return, because that is
deemed to be of the essence of ownership. Railroad Commission
Cases, 116 U. S. 307, 116 U. S. 331; Northern Pacific Ry. Co. v. North
Dakota, 236 U. S. 585, 236 U. S. 596. So, while liberty of contract is not an
absolute right, and the wide field of activity in the making of contracts is
subject to legislative supervision (Frisbie v. United States, 157 U. S. 161, 157
U. S. 165), this Court has held that the power of the State stops short of
interference with what are deemed
Page 283 U. S. 708
to be certain indispensable requirements of the liberty assured, notably with
respect to the fixing of prices and wages.Tyson Bros. v. Banton, 273 U. S.
418; Ribnik v. McBride, 277 U. S. 350; Adkins v. Children's Hospital, 261 U.
S. 525, 261 U. S. 560, 261 U. S. 561. Liberty of speech, and of the press, is
also not an absolute right, and the State may punish its abuse.Whitney v.
California, supra; Stromberg v. California, supra. Liberty, in each of its
phases, has its history and connotation, and, in the present instance, the
inquiry is as to the historic conception of the liberty of the press and whether
the statute under review violates the essential attributes of that liberty.
The appellee insists that the questions of the application of the statute to
appellant's periodical, and of the construction of the judgment of the trial
court, are not presented for review; that appellant's sole attack was upon the
constitutionality of the statute, however it might be applied. The appellee
contends that no question either of motive in the publication, or whether the
152
decree goes beyond the direction of the statute, is before us. The appellant
replies that, in his view, the plain terms of the statute were not departed from
in this case, and that, even if they were, the statute is nevertheless
unconstitutional under any reasonable construction of its terms. The
appellant states that he has not argued that the temporary and permanent
injunctions were broader than were warranted by the statute; he insists that
what was done was properly done if the statute is valid, and that the action
taken under the statute is a fair indication of its scope.
With respect to these contentions, it is enough to say that, in passing upon
constitutional questions, the court has regard to substance, and not to mere
matters of form, and that, in accordance with familiar principles, the statute
must be tested by its operation and effect. Henderson v. Mayor, 92 U. S.
259, 92 U. S. 268; Bailey v. Alabama, 219
Page 283 U. S. 709
U.S. 219, 219 U. S. 244; United States v. Reynolds, 235 U. S. 133, 235 U. S.
148, 235 U. S. 149; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S.
350, 235 U. S. 362; Mountain Timber Co. v. Washington, 243 U. S. 219, 243
U. S. 237. That operation and effect we think is clearly shown by the record
in this case. We are not concerned with mere errors of the trial court, if there
be such, in going beyond the direction of the statute as construed by the
Supreme Court of the State. It is thus important to note precisely the purpose
and effect of the statute as the state court has construed it.
First. The statute is not aimed at the redress of individual or private wrongs.
Remedies for libel remain available and unaffected. The statute, said the
state court, "is not directed at threatened libel, but at an existing business
which, generally speaking, involves more than libel." It is aimed at the
distribution of scandalous matter as "detrimental to public morals and to the
general welfare," tending "to disturb the peace of the community" and "to
provoke assaults and the commission of crime." In order to obtain an
injunction to suppress the future publication of the newspaper or periodical, it
is not necessary to prove the falsity of the charges that have been made in
the publication condemned. In the present action, there was no allegation
that the matter published was not true. It is alleged, and the statute requires
the allegation, that the publication was "malicious." But, as in prosecutions
for libel, there is no requirement of proof by the State of malice in fact, as
distinguished from malice inferred from the mere publication of the
defamatory matter. [Footnote 2] The judgment in this case proceeded upon
the mere proof of publication. The statute permits the defense not of the truth
alone, but only that the truth was published with good motives and
Page 283 U. S. 710
for justifiable ends. It is apparent that, under the statute, the publication is to
be regarded as defamatory if it injures reputation, and that it is scandalous if
it circulates charges of reprehensible conduct, whether criminal or otherwise,
and the publication is thus deemed to invite public reprobation and to
constitute a public scandal. The court sharply defined the purpose of the
statute, bringing out the precise point, in these words:
"There is no constitutional right to publish a fact merely because it is true. It
is a matter of common knowledge that prosecutions under the criminal libel
statutes do not result in efficient repression or suppression of the evils of
scandal. Men who are the victims of such assaults seldom resort to the
courts. This is especially true if their sins are exposed and the only question
relates to whether it was done with good motives and for justifiable ends.
This law is not for the protection of the person attacked, nor to punish the
wrongdoer. It is for the protection of the pubic welfare."
Second. The statute is directed not simply at the circulation of scandalous
and defamatory statements with regard to private citizens, but at the
continued publication by newspapers and periodicals of charges against
public officers of corruption, malfeasance in office, or serious neglect of duty.
Such charges, by their very nature, create a public scandal. They are
scandalous and defamatory within the meaning of the statute, which has its
normal operation in relation to publications dealing prominently and chiefly
with the alleged derelictions of public officers. [Footnote 3]
Page 283 U. S. 711
Third. The object of the statute is not punishment, in the ordinary sense, but
suppression of the offending newspaper or periodical. The reason for the
enactment, as the state court has said, is that prosecutions to enforce penal
statutes for libel do not result in "efficient repression or suppression of the
evils of scandal." Describing the business of publication as a public nuisance
does not obscure the substance of the proceeding which the statute
authorizes. It is the continued publication of scandalous and defamatory
matter that constitutes the business and the declared nuisance. In the case
of public officers, it is the reiteration of charges of official misconduct, and the
fact that the newspaper or periodical is principally devoted to that purpose,
that exposes it to suppression. In the present instance, the proof was that
nine editions of the newspaper or periodical in question were published on
successive dates, and that they were chiefly devoted to charges against
public officers and in relation to the prevalence and protection of crime. In
153
such a case, these officers are not left to their ordinary remedy in a suit for
libel, or the authorities to a prosecution for criminal libel. Under this statute, a
publisher of a newspaper or periodical, undertaking to conduct a campaign to
expose and to censure official derelictions, and devoting his publication
principally to that purpose, must face not simply the possibility of a verdict
against him in a suit or prosecution for libel, but a determination that his
newspaper or periodical is a public nuisance to be abated, and that this
abatement and suppression will follow unless he is prepared with legal
evidence to prove the truth of the charges and also to satisfy the court that, in
Page 283 U. S. 712
addition to being true, the matter was published with good motives and for
justifiable ends.
This suppression is accomplished by enjoining publication, and that restraint
is the object and effect of the statute.
Fourth. The statute not only operates to suppress the offending newspaper
or periodical, but to put the publisher under an effective censorship. When a
newspaper or periodical is found to be "malicious, scandalous, and
defamatory," and is suppressed as such, resumption of publication is
punishable as a contempt of court by fine or imprisonment. Thus, where a
newspaper or periodical has been suppressed because of the circulation of
charges against public officers of official misconduct, it would seem to be
clear that the renewal of the publication of such charges would constitute a
contempt, and that the judgment would lay a permanent restraint upon the
publisher, to escape which he must satisfy the court as to the character of a
new publication. Whether he would be permitted again to publish matter
deemed to be derogatory to the same or other public officers would depend
upon the court's ruling. In the present instance, the judgment restrained the
defendants from
"publishing, circulating, having in their possession, selling or giving away any
publication whatsoever which is a malicious, scandalous or defamatory
newspaper, as defined by law."
The law gives no definition except that covered by the words "scandalous
and defamatory," and publications charging official misconduct are of that
class. While the court, answering the objection that the judgment was too
broad, saw no reason for construing it as restraining the defendants "from
operating a newspaper in harmony with the public welfare to which all must
yield," and said that the defendants had not indicated "any desire to conduct
their business in the usual and legitimate manner," the manifest inference is
that, at least with respect to a
Page 283 U. S. 713
new publication directed against official misconduct, the defendant would be
held, under penalty of punishment for contempt as provided in the statute, to
a manner of publication which the court considered to be "usual and
legitimate" and consistent with the public welfare.
If we cut through mere details of procedure, the operation and effect of the
statute, in substance, is that public authorities may bring the owner or
publisher of a newspaper or periodical before a judge upon a charge of
conducting a business of publishing scandalous and defamatory matter -- in
particular, that the matter consists of charges against public officers of official
dereliction -- and, unless the owner or publisher is able and disposed to bring
competent evidence to satisfy the judge that the charges are true and are
published with good motives and for justifiable ends, his newspaper or
periodical is suppressed and further publication is made punishable as a
contempt. This is of the essence of censorship.
The question is whether a statute authorizing such proceedings in restraint of
publication is consistent with the conception of the liberty of the press as
historically conceived and guaranteed. In determining the extent of the
constitutional protection, it has been generally, if not universally, considered
that it is the chief purpose of the guaranty to prevent previous restraints upon
publication. The struggle in England, directed against the legislative power of
the licenser, resulted in renunciation of the censorship of the press. [Footnote
4] The liberty deemed to be established was thus described by Blackstone:
"The liberty of the press is indeed essential to the nature of a free state; but
this consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matter when published. Every freeman
has an
Page 283 U. S. 714
undoubted right to lay what sentiments he pleases before the public; to forbid
this is to destroy the freedom of the press; but if he publishes what is
improper, mischievous or illegal, he must take the consequence of his own
temerity."
154
4 Bl.Com. 151, 152; see Story on the Constitution, 1884, 1889. The
distinction was early pointed out between the extent of the freedom with
respect to censorship under our constitutional system and that enjoyed in
England. Here, as Madison said,
"the great and essential rights of the people are secured against legislative
as well as against executive ambition. They are secured not by laws
paramount to prerogative, but by constitutions paramount to laws. This
security of the freedom of the press requires that it should be exempt not
only from previous restraint by the Executive, a in Great Britain, but from
legislative restraint also."
Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This
Court said, in Patterson v. Colorado, 205 U. S. 454,205 U. S. 462:
"In the first place, the main purpose of such constitutional provisions is 'to
prevent all such previous restraints upon publications as had been practiced
by other governments,' and they do not prevent the subsequent punishment
of such as may be deemed contrary to the public welfare. Commonwealth v.
Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas 319, 1 U. S.
325. The preliminary freedom extends as well to the false as to the true; the
subsequent punishment may extend as well to the true as to the false. This
was the law of criminal libel apart from statute in most cases, if not in
all. Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150."
The criticism upon Blackstone's statement has not been because immunity
from previous restraint upon publication has not been regarded as deserving
of special emphasis, but chiefly because that immunity cannot be deemed to
exhaust the conception of the liberty guaranteed by
Page 283 U. S. 715
state and federal constitutions. The point of criticism has been "that the mere
exemption from previous restraints cannot be all that is secured by the
constitutional provisions", and that
"the liberty of the press might be rendered a mockery and a delusion, and the
phrase itself a byword, if, while every man was at liberty to publish what he
pleased, the public authorities might nevertheless punish him for harmless
publications."
2 Cooley, Const.Lim., 8th ed., p. 885. But it is recognized that punishment for
the abuse of the liberty accorded to the press is essential to the protection of
the public, and that the common law rules that subject the libeler to
responsibility for the public offense, as well as for the private injury, are not
abolished by the protection extended in our constitutions.Id., pp. 883, 884.
The law of criminal libel rests upon that secure foundation. There is also the
conceded authority of courts to punish for contempt when publications
directly tend to prevent the proper discharge of judicial functions.Patterson v.
Colorado, supra; Toledo Newspaper Co. v. United States, 247 U. S. 402, 247
U. S. 419. [Footnote 5] In the present case, we have no occasion to inquire
as to the permissible scope of subsequent punishment. For whatever wrong
the appellant has committed or may commit by his publications the State
appropriately affords both public and private redress by its libel laws. As has
been noted, the statute in question does not deal with punishments; it
provides for no punishment, except in case of contempt for violation of the
court's order, but for suppression and injunction, that is, for restraint upon
publication.
The objection has also been made that the principle as to immunity from
previous restraint is stated too
Page 283 U. S. 716
broadly, if every such restraint is deemed to be prohibited. That is
undoubtedly true; the protection even as to previous restraint is not
absolutely unlimited. But the limitation has been recognized only in
exceptional cases:
"When a nation is at war, many things that might be said in time of peace are
such a hindrance to its effort that their utterance will not be endured so long
as men fight, and that no Court could regard them as protected by any
constitutional right."
Schenck v. United States, 249 U. S. 47, 249 U. S. 52. No one would question
but that a government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the number and
location of troops. [Footnote 6] On similar grounds, the primary requirements
of decency may be enforced against obscene publications. The security of
the community life may be protected against incitements to acts of violence
and the overthrow by force of orderly government. The constitutional
guaranty of free speech does not
155
"protect a man from an injunction against uttering words that may have all
the effect of force. Gompers v. Buck Stove & Range Co., 221 U. S. 418, 221
U. S. 439."
Schenck v. United States, supra. These limitations are not applicable here.
Nor are we now concerned with questions as to the extent of authority to
prevent publications in order to protect private rights according to the
principles governing the exercise of the jurisdiction of courts of equity.
[Footnote 7]
The exceptional nature of its limitations places in a strong light the general
conception that liberty of the press, historically considered and taken up by
the Federal Constitution, has meant, principally, although not exclusively,
immunity from previous restraints or censorship. The conception of the liberty
of the press in this country had broadened with the exigencies of the colonial
Page 283 U. S. 717
period and with the efforts to secure freedom from oppressive administration.
[Footnote 8] That liberty was especially cherished for the immunity it afforded
from previous restraint of the publication of censure of public officers and
charges of official misconduct. As was said by Chief Justice Parker,
in Commonwealth v. Blanding, 3 Pick. 304, 313, with respect to the
constitution of Massachusetts:
"Besides, it is well understood, and received as a commentary on this
provision for the liberty of the press, that it was intended to prevent all
such previous restraints upon publications as had been practiced by other
governments, and in early times here, to stifle the efforts of patriots towards
enlightening their fellow subjects upon their rights and the duties of rulers.
The liberty of the press was to be unrestrained, but he who used it was to be
responsible in case of its abuse."
In the letter sent by the Continental Congress (October 26, 1774) to the
Inhabitants of Quebec, referring to the "five great rights," it was said:
[Footnote 9]
"The last right we shall mention regards the freedom of the press. The
importance of this consists, besides the advancement of truth, science,
morality, and arts in general, in its diffusion of liberal sentiments on the
administration of Government, its ready communication of thoughts between
subjects, and its consequential promotion of union among them whereby
oppressive officers are shamed or intimidated into more honourable and just
modes of conducting affairs."
Madison, who was the leading spirit in the preparation of the First
Amendment of the Federal Constitution, thus described the practice and
sentiment which led to the guaranties of liberty of the press in state
constitutions: [Footnote 10]
Page 283 U. S. 718
"In every State, probably, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men of every description
which has not been confined to the strict limits of the common law. On this
footing the freedom of the press has stood; on this footing it yet stands. . . .
Some degree of abuse is inseparable from the proper use of everything, and
in no instance is this more true than in that of the press. It has accordingly
been decided by the practice of the States that it is better to leave a few of its
noxious branches to their luxuriant growth than, by pruning them away, to
injure the vigour of those yielding the proper fruits. And can the wisdom of
this policy be doubted by any who reflect that to the press alone, chequered
as it is with abuses, the world is indebted for all the triumphs which have
been gained by reason and humanity over error and oppression; who reflect
that to the same beneficent source the United States owe much of the lights
which conducted them to the ranks of a free and independent nation, and
which have improved their political system into a shape so auspicious to their
happiness? Had 'Sedition Acts,' forbidding every publication that might bring
the constituted agents into contempt or disrepute, or that might excite the
hatred of the people against the authors of unjust or pernicious measures,
been uniformly enforced against the press, might not the United States have
been languishing at this day under the infirmities of a sickly Confederation?
Might they not, possibly, be miserable colonies, groaning under a foreign
yoke?"
The fact that, for approximately one hundred and fifty years, there has been
almost an entire absence of attempts to impose previous restraints upon
publications relating to the malfeasance of public officers is significant of the
deep-seated conviction that such restraints would violate constitutional right.
Public officers, whose character and
Page 283 U. S. 719
conduct remain open to debate and free discussion in the press, find their
remedies for false accusations in actions under libel laws providing for
156
redress and punishment, and not in proceedings to restrain the publication of
newspapers and periodicals. The general principle that the constitutional
guaranty of the liberty of the press gives immunity from previous restraints
has been approved in many decisions under the provisions of state
constitutions. [Footnote 11]
The importance of this immunity has not lessened. While reckless assaults
upon public men, and efforts to bring obloquy upon those who are
endeavoring faithfully to discharge official duties, exert a baleful influence
and deserve the severest condemnation in public opinion, it cannot be said
that this abuse is greater, and it is believed to be less, than that which
characterized the period in which our institutions took shape. Meanwhile, the
administration of government has become more complex, the opportunities
for malfeasance and corruption have multiplied, crime has grown to most
serious proportions, and the danger of its protection by unfaithful officials and
of the impairment of the fundamental security of life and
Page 283 U. S. 720
property by criminal alliances and official neglect, emphasizes the primary
need of a vigilant and courageous press, especially in great cities. The fact
that the liberty of the press may be abused by miscreant purveyors of
scandal does not make any the less necessary the immunity of the press
from previous restraint in dealing with official misconduct. Subsequent
punishment for such abuses as may exist is the appropriate remedy
consistent with constitutional privilege.
In attempted justification of the statute, it is said that it deals not with
publication per se, but with the "business" of publishing defamation. If,
however, the publisher has a constitutional right to publish, without previous
restraint, an edition of his newspaper charging official derelictions, it cannot
be denied that he may publish subsequent editions for the same purpose. He
does not lose his right by exercising it. If his right exists, it may be exercised
in publishing nine editions, as in this case, as well as in one edition. If
previous restraint is permissible, it may be imposed at once; indeed, the
wrong may be as serious in one publication as in several. Characterizing the
publication as a business, and the business as a nuisance, does not permit
an invasion of the constitutional immunity against restraint. Similarly, it does
not matter that the newspaper or periodical is found to be "largely" or
"chiefly" devoted to the publication of such derelictions. If the publisher has a
right, without previous restraint, to publish them, his right cannot be deemed
to be dependent upon his publishing something else, more or less, with the
matter to which objection is made.
Nor can it be said that the constitutional freedom from previous restraint is
lost because charges are made of derelictions which constitute crimes. With
the multiplying provisions of penal codes, and of municipal charters and
ordinances carrying penal sanctions, the conduct of
Page 283 U. S. 721
public officers is very largely within the purview of criminal statutes. The
freedom of the press from previous restraint has never been regarded as
limited to such animadversions as lay outside the range of penal enactments.
Historically, there is no such limitation; it is inconsistent with the reason which
underlies the privilege, as the privilege so limited would be of slight value for
the purposes for which it came to be established.
The statute in question cannot be justified by reason of the fact that the
publisher is permitted to show, before injunction issues, that the matter
published is true and is published with good motives and for justifiable ends.
If such a statute, authorizing suppression and injunction on such a basis, is
constitutionally valid, it would be equally permissible for the legislature to
provide that at any time the publisher of any newspaper could be brought
before a court, or even an administrative officer (as the constitutional
protection may not be regarded as resting on mere procedural details) and
required to produce proof of the truth of his publication, or of what he
intended to publish, and of his motives, or stand enjoined. If this can be
done, the legislature may provide machinery for determining in the complete
exercise of its discretion what are justifiable ends, and restrain publication
accordingly. And it would be but a step to a complete system of censorship.
The recognition of authority to impose previous restraint upon publication in
order to protect the community against the circulation of charges of
misconduct, and especially of official misconduct, necessarily would carry
with it the admission of the authority of the censor against which the
constitutional barrier was erected. The preliminary freedom, by virtue of the
very reason for its existence, does not depend, as this Court has said, on
proof of truth.Patterson v. Colorado, supra.
Equally unavailing is the insistence that the statute is designed to prevent the
circulation of scandal which tends
Page 283 U. S. 722
to disturb the public peace and to provoke assaults and the commission of
crime. Charges of reprehensible conduct, and in particular of official
malfeasance, unquestionably create a public scandal, but the theory of the
157
constitutional guaranty is that even a more serious public evil would be
caused by authority to prevent publication.
"To prohibit the intent to excite those unfavorable sentiments against those
who administer the Government is equivalent to a prohibition of the actual
excitement of them, and to prohibit the actual excitement of them is
equivalent to a prohibition of discussions having that tendency and effect,
which, again, is equivalent to a protection of those who administer the
Government, if they should at any time deserve the contempt or hatred of the
people, against being exposed to it by free animadversions on their
characters and conduct. [Footnote 12]"
There is nothing new in the fact that charges of reprehensible conduct may
create resentment and the disposition to resort to violent means of redress,
but this well understood tendency did not alter the determination to protect
the press against censorship and restraint upon publication. As was said
in New Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:
"If the township may prevent the circulation of a newspaper for no reason
other than that some of its inhabitants may violently disagree with it, and
resent its circulation by resorting to physical violence, there is no limit to what
may be prohibited."
The danger of violent reactions becomes greater with effective organization
of defiant groups resenting exposure, and if this consideration warranted
legislative interference with the initial freedom of publication, the
constitutional protection would be reduced to a mere form of words.
For these reasons we hold the statute, so far as it authorized the
proceedings in this action under clause (b)
Page 283 U. S. 723
of section one, to be an infringement of the liberty of the press guaranteed by
the Fourteenth Amendment. We should add that this decision rests upon the
operation and effect of the statute, without regard to the question of the truth
of the charges contained in the particular periodical. The fact that the public
officers named in this case, and those associated with the charges of official
dereliction, may be deemed to be impeccable cannot affect the conclusion
that the statute imposes an unconstitutional restraint upon publication.
Judgment reversed.
New York Times Co. v. United States, 403 U.S. 713 (1971)
New York Times Co. v. United States
No. 1873
Argued June 26, 1971
Decided June 30, 1971*
403 U.S. 713
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
The United States, which brought these actions to enjoin publication in the
New York Times and in the Washington Post of certain classified material,
has not met the "heavy burden of showing justification for the enforcement of
such a [prior] restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___
U.S.App.D.C. ___, 446 F.2d 1327, affirmed. chanroblesvirtualawlibrary
Page 403 U. S. 714
PER CURIAM
We granted certiorari in these cases in which the United States seeks to
enjoin the New York Times and the Washington Post from publishing the
contents of a classified study entitled "History of U.S. Decision-Making
Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity." Bantam Books, Inc. v.
Sullivan, 372 U. S. 58, 372 U. S. 70 (1963); see also Near v. Minnesota, 283
U. S. 697(1931). The Government "thus carries a heavy burden of showing
justification for the imposition of such a restraint."Organization for a Better
Austin v. Keefe, 402 U. S. 415, 402 U. S. 419 (1971). The District Court for
158
the Southern District of New York, in the New York Times case, and the
District Court for the District of Columbia and the Court of Appeals for the
District of Columbia Circuit, in the Washington Post case, held that the
Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is
therefore affirmed. The order of the Court of Appeals for the Second Circuit is
reversed, and the case is remanded with directions to enter a judgment
affirming the judgment of the District Court for the Southern District of New
York. The stays entered June 25, 1971, by the Court are vacated. The
judgments shall issue forthwith.
So ordered.
* Together with No. 1885, United States v. Washington Post Co. et al., on
certiorari to the United States Court of Appeals for the District of Columbia
Circuit.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring.
I adhere to the view that the Government's case against the Washington
Post should have been dismissed, and that the injunction against the New
York Times should have been vacated without oral argument when the cases
were first presented to this Court. I believe chanroblesvirtualawlibrary
Page 403 U. S. 715
that every moment's continuance of the injunctions against these
newspapers amounts to a flagrant, indefensible, and continuing violation of
the First Amendment. Furthermore, after oral argument, I agree completely
that we must affirm the judgment of the Court of Appeals for the District of
Columbia Circuit and reverse the judgment of the Court of Appeals for the
Second Circuit for the reasons stated by my Brothers DOUGLAS and
BRENNAN. In my view, it is unfortunate that some of my Brethren are
apparently willing to hold that the publication of news may sometimes be
enjoined. Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution.
The Bill of Rights, including the First Amendment, followed in 1791. Now, for
the first time in the 182 years since the founding of the Republic, the federal
courts are asked to hold that the First Amendment does not mean what it
says, but rather means that the Government can halt the publication of
current news of vital importance to the people of this country.
In seeking injunctions against these newspapers, and in its presentation to
the Court, the Executive Branch seems to have forgotten the essential
purpose and history of the First Amendment. When the Constitution was
adopted, many people strongly opposed it because the document contained
no Bill of Rights to safeguard certain basic freedoms. [Footnote 1] They
especially feared that the chanroblesvirtualawlibrary
Page 403 U. S. 716
new powers granted to a central government might be interpreted to permit
the government to curtail freedom of religion, press, assembly, and speech.
In response to an overwhelming public clamor, James Madison offered a
series of amendments to satisfy citizens that these great liberties would
remain safe and beyond the power of government to abridge. Madison
proposed what later became the First Amendment in three parts, two of
which are set out below, and one of which proclaimed:
"The people shall not be deprived or abridged of their right to speak, to write,
or to publish their sentiments, and the freedom of the press, as one of the
great bulwarks of liberty, shall be inviolable. [Footnote 2]"
(Emphasis added.) The amendments were offered to curtail and restrict the
general powers granted to the Executive, Legislative, and Judicial Branches
two years before in the original Constitution. The Bill of Rights changed the
original Constitution into a new charter under which no branch of government
could abridge the people's freedoms of press, speech, religion, and
assembly. Yet the Solicitor General argues and some members of the Court
appear to agree that the general powers of the Government adopted in the
original Constitution should be interpreted to limit and restrict the specific and
emphatic guarantees of the Bill of Rights adopted later. I can imagine no
greater perversion of history. Madison and the other Framers of the First
Amendment, able men chanroblesvirtualawlibrary
Page 403 U. S. 717
that they were, wrote in language they earnestly believed could never be
misunderstood: "Congress shall make no law . . . abridging the freedom . . .
of the press. . . ." Both the history and language of the First Amendment
support the view that the press must be left free to publish news, whatever
the source, without censorship, injunctions, or prior restraints.
159
In the First Amendment, the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The press
was to serve the governed, not the governors. The Government's power to
censor the press was abolished so that the press would remain forever free
to censure the Government. The press was protected so that it could bare
the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in government. And
paramount among the responsibilities of a free press is the duty to prevent
any part of the government from deceiving the people and sending them off
to distant lands to die of foreign fevers and foreign shot and shell. In my view,
far from deserving condemnation for their courageous reporting, the New
York Times, the Washington Post, and other newspapers should be
commended for serving the purpose that the Founding Fathers saw so
clearly. In revealing the workings of government that led to the Vietnam war,
the newspapers nobly did precisely that which the Founders hoped and
trusted they would do.
The Government's case here is based on premises entirely different from
those that guided the Framers of the First Amendment. The Solicitor General
has carefully and emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is
well known, and I certainly respect it. You say that no law means no law, and
that should be obvious. I can only
Page 403 U. S. 718
say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean
'no law,' and I would seek to persuade the Court that that is true. . . . [T]here
are other parts of the Constitution that grant powers and responsibilities to
the Executive, and . . . the First Amendment was not intended to make it
impossible for the Executive to function or to protect the security of the
United States. [Footnote 3]"
And the Government argues in its brief that, in spite of the First Amendment,
"[t]he authority of the Executive Department to protect the nation against
publication of information whose disclosure would endanger the national
security stems from two interrelated sources: the constitutional power of the
President over the conduct of foreign affairs and his authority as
Commander-in-Chief. [Footnote 4]"
In other words, we are asked to hold that, despite the First Amendment's
emphatic command, the Executive Branch, the Congress, and the Judiciary
can make laws enjoining publication of current news and abridging freedom
of the press in the name of "national security." The Government does not
even attempt to rely on any act of Congress. Instead, it makes the bold and
dangerously far-reaching contention that the courts should take it upon
themselves to "make" a law abridging freedom of the press in the name of
equity, presidential power and national security, even when the
representatives of the people in Congress have adhered to the command of
the First Amendment and refused to make such a law. [Footnote
5] See concurring opinion of MR. JUSTICE
DOUGLAS, chanroblesvirtualawlibrary
Page 403 U. S. 719
post at 403 U. S. 721-722. To find that the President has "inherent power" to
halt the publication of news by resort to the courts would wipe out the First
Amendment and destroy the fundamental liberty and security of the very
people the Government hopes to make "secure." No one can read the history
of the adoption of the First Amendment without being convinced beyond any
doubt that it was injunctions like those sought here that Madison and his
collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not
be invoked to abrogate the fundamental law embodied in the First
Amendment. The guarding of military and diplomatic secrets at the expense
of informed representative government provides no real security for our
Republic. The Framers of the First Amendment, fully aware of both the need
to defend a new nation and the abuses of the English and Colonial
governments, sought to give this new society strength and security by
providing that freedom of speech, press, religion, and assembly should not
be abridged. This thought was eloquently expressed in 1937 by Mr. Chief
Justice Hughes -- great man and great Chief Justice that he was -- when the
Court held a man could not be punished for attending a meeting run by
Communists.
"The greater the importance of safeguarding the community from incitements
to the overthrow of our institutions by force and violence, the more imperative
is the need to preserve inviolate the constitutional rights of free speech, free
press and free
Page 403 U. S. 720
160
assembly in order to maintain the opportunity for free political discussion, to
the end that government may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government.
[Footnote 6]"
[Footnote 1]
In introducing the Bill of Rights in the House of Representatives, Madison
said:
"[B]ut I believe that the great mass of the people who opposed [the
Constitution] disliked it because it did not contain effectual provisions against
the encroachments on particular rights. . . ."
1 Annals of Cong. 433. Congressman Goodhue added:
"[I]t is the wish of many of our constituents that something should be added
to the Constitution to secure in a stronger manner their liberties from the
inroads of power."
G.R. No. 119673. July 26, 1996]
IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF
APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION and HONORABLE HENRIETTA S.
MENDEZ, respondents.
DECISION
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of the
respondent Court of Appeals affirming the action of the respondent Board of
Review for Motion Pictures and Television which x-rated the TV Program
Ang Iglesia ni Cristo.
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a
television program entitled Ang Iglesia ni Cristo aired on Channel 2 every
Saturday and on Channel 13 every Sunday. The program presents and
propagates petitioners religious beliefs, doctrines and practices often times in
comparative studies with other religions.
Sometime in the months of September, October and November 1992,
petitioner submitted to the respondent Board of Review for Motion Pictures
and Television the VTR tapes of its TV program Series Nos. 116, 119, 121
and 128. The Board classified the series as X or not for public viewing on the
ground that they offend and constitute an attack against other religions which
is expressly prohibited by law.
Petitioner pursued two (2) courses of action against the respondent
Board. On November 28, 1992, it appealed to the Office of the President the
classification of its TV Series No. 128.It succeeded in its appeal for on
December 18, 1992, the Office of the President reversed the decision of the
respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly
telecast.
On December 14, 1992, petitioner also filed against the respondent
Board Civil Case No. Q-92-14280, with the RTC, NCR, Quezon
City.[1] Petitioner alleged that the respondent Board acted without jurisdiction
or with grave abuse of discretion in requiring petitioner to submit the VTR
tapes of its TV program and in x-rating them. It cited its TV Program Series
Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its
161
power under P.D. No. 1986 in relation to Article 201 of the Revised Penal
Code.
On January 4, 1993, the trial court held a hearing on petitioners prayer
for a writ of preliminary injunction. The parties orally argued and then marked
their documentary evidence.Petitioner submitted the following as its
exhibits, viz.:
(1) Exhibit A, respondent Boards Voting Slip for Television showing
its September 9, 1992 action on petitioners Series No. 115 as
follows:[2]
REMARKS:
There are some inconsistencies in the particular program as it is very
surprising for this program to show series of Catholic ceremonies and also
some religious sects and using it in their discussion about the bible. There
are remarks which are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more
opinions.
(2) Exhibit A-1, respondent Boards Voting Slip for Television
showing its September 11, 1992 subsequent action on
petitioners Series No. 115 as follows:[3]
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own faith and
beliefs and avoid attacks on other faith.
(3) Exhibit B, respondent Boards Voting Slip for Television showing
its October 9, 1992 action on petitioners Series No. 119, as
follows:[4]
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that
our (Catholic) veneration of the Virgin Mary is not to be condoned because
nowhere it is found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and
decision.
(4) Exhibit C, respondent Boards Voting Slip for Television showing
its October 20, 1992 action on petitioners Series No. 121 as
follows:[5]
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks,
they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are
right and the rest are wrong, which they clearly present in this episode.
(5) Exhibit D, respondent Boards Voting Slip for Television showing
its November 20, 1992 action on petitioners Series No. 128 as
follows:[6]
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and
Protestants beliefs.
We suggest a second review.
(6) Exhibits E, E-1, petitioners block time contract with ABS-CBN
Broadcasting Corporation dated September 1, 1992.[7]
(7) Exhibit F, petitioners Airtime Contract with Island Broadcasting
Corporation.[8]
(8) Exhibit G, letter dated December 18, 1992 of former Executive
Secretary Edelmiro A. Amante, Sr., addressed to Henrietta S.
Mendez reversing the decision of the respondent Board which
x-rated the showing of petitioners Series No. 129. The letter
reads in part:
xxx xxx xxx
The television episode in question is protected by the constitutional
guarantee of free speech and expression under Article III, Section 4 of the
1987 Constitution.
162
We have viewed a tape of the television episode in question, as well as
studied the passages found by MTRCB to be objectionable and we find no
indication that the episode poses any clear and present danger sufficient to
limit the said constitutional guarantee.
(9) Exhibits H, H-1, letter dated November 26, 1992 of Teofilo C.
Ramos, Sr., addressed to President Fidel V. Ramos appealing
the action of the respondent Board x-rating petitioners Series
No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit 1, Permit Certificate for Television Exhibition No. 15181
dated December 18, 1992 allowing the showing of Series No.
128 under parental guidance.
(2) Exhibit 2, which is Exhibit G of petitioner.
(3) Exhibit 3, letter dated October 12, 1992 of Henrietta S. Mendez,
addressed to the Christian Era Broadcasting Service which
reads in part:
xxx
In the matter of your television show Ang Iglesia ni Cristo Series No. 119,
please be informed that the Board was constrained to deny your show a
permit to exhibit. The material involved constitute an attack against another
religion which is expressly prohibited by law. Please be guided in the
submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ
of preliminary injunction on petitioners bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their
pre-trial briefs.[9] The pre-trial briefs show that the parties evidence is
basically the evidence they submitted in the hearing of the issue of
preliminary injunction. The trial of the case was set and reset several times
as the parties tried to reach an amicable accord. Their efforts failed and the
records show that after submission of memoranda, the trial court rendered a
Judgment,[10] on December 15, 1993, the dispositive portion of which reads:
xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of
Review for Motion Pictures and Television (BRMPT) to grant petitioner
Iglesia ni Cristo the necessary permit for all the series of Ang Iglesia ni Cristo
program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing Ang Iglesia ni Cristo program.
SO ORDERED.
Petitioner moved for reconsideration[11] praying: (a) for the deletion of
the second paragraph of the dispositive portion of the Decision, and (b) for
the Board to be perpetually enjoined from requiring petitioner to submit for
review the tapes of its program. The respondent Board opposed the
motion.[12] On March 7, 1993, the trial court granted petitioners Motion for
Reconsideration. It ordered:[13]
xxx
WHEREFORE, the Motion for Reconsideration is granted. The second
portion of the Courts Order dated December 15, 1993, directing petitioner to
refrain from offending and attacking other existing religions in showing Ang
Iglesia ni Cristo program is hereby deleted and set aside. Respondents are
further prohibited from requiring petitioner Iglesia ni Cristo to submit for
review VTR tapes of its religious program Ang Iglesia ni Cristo.
Respondent Board appealed to the Court of Appeals after its motion for
reconsideration was denied.[14]
On March 5, 1995, the respondent Court of Appeals [15] reversed the trial
court. It ruled that: (1) the respondent board has jurisdiction and power to
review the TV program Ang Iglesia ni Cristo, and (2) the respondent Board
did not act with grave abuse of discretion when it denied permit for the
exhibition on TV of the three series of Ang Iglesia ni Cristo on the ground that
the materials constitute an attack against another religion. It also found the
series indecent, contrary to law and contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises
the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT ANG IGLESIA NI CRISTO PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS
EXERCISE AND EXPRESSION.
163
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM,
THE ANG IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE
POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES
A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO
CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE ANG IGLESIA NI CRISTO, A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD
CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioners TV program Ang
Iglesia ni Cristo, and (2) second, assuming it has the power, whether it
gravely abused its discretion when it prohibited the airing of petitioners
religious program, series Nos. 115, 119 and 121, for the reason that they
constitute an attack against other religions and that they are indecent,
contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board
under P.D. No. 1986. Its Section 3 pertinently provides:
Sec. 3 Powers and Functions. The BOARD shall have the following
functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein
defined, television programs, including publicity materials such as
advertisements, trailers and stills, whether such motion pictures and publicity
materials be for theatrical or non-theatrical distribution for television
broadcast or for general viewing, imported or produced in the Philippines and
in the latter case, whether they be for local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale,
lease, exhibition and/or television broadcast of the motion
pictures, television programs and publicity materials, subject of the
preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong
or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition
against the State, or otherwise threaten the economic and/or political stability
of the State;
ii) Those which tend to undermine the faith and confidence of the people,
their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence
or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation
of any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial
tribunal, or pertain to matters which are sub-judice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all
television programs. By the clear terms of the law, the Board has the power
to approve, delete x x x and/or prohibit the x x x exhibition and/or television
broadcast of x x x television programs x x x. The law also directs the Board
to apply contemporary Filipino cultural values as standard to determine those
which are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines and
its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime.
Petitioner contends that the term television program should not include
religious programs like its program Ang Iglesia ni Cristo. A contrary
164
interpretation, it is urged, will contravene Section 5, Article III of the
Constitution which guarantees that no law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed.
We reject petitioners submission which need not set us adrift in a
constitutional voyage towards an uncharted sea. Freedom of religion has
been accorded a preferred status by the framers of our fundamental laws,
past and present. We have affirmed this preferred status well aware that it is
designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as
he believes he ought to live, consistent with the liberty of others and with the
common good.[16] We have also laboriously defined in our jurisprudence the
intersecting umbras and penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known
constitutionalist:[17]
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz.,
freedom to believe and freedom to act on ones beliefs. The first is absolute
as long as the belief is confined within the realm of thought.The second is
subject to regulation where the belief is translated into external acts
that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any
god he chooses, or none at all; embrace or reject any religion; acknowledge
the divinity of God or of any being that appeals to his reverence; recognize or
deny the immortality of his soul in fact, cherish any religious conviction as he
and he alone sees fit.However absurd his beliefs may be to others, even if
they be hostile and heretical to the majority, he has full freedom to believe as
he pleases. He may not be required to prove his beliefs. He may not be
punished for his inability to do so. Religion, after all, is a matter of faith. Men
may believe what they cannot prove. Every one has a right to his beliefs and
he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on Ones Beliefs
But where the individual externalizes his beliefs in acts or omissions
that affect the public, his freedom to do so becomes subject to the
authority of the State. As great as this liberty may be, religious freedom,
like all the other rights guaranteed in the Constitution, can be enjoyed only
with a proper regard for the rights of others. It is error to think that the
mere invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The inherent police
power can be exercised to prevent religious practices inimical to society. And
this is true even if such practices are pursued out of sincere religious
conviction and not merely for the purpose of evading the reasonable
requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: The constitutional provision on
religious freedom terminated disabilities, it did not create new privileges. It
gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may not
offer the object of his piety a human sacrifice, as this would be
murder. Those who literally interpret the Biblical command to go forth and
multiply are nevertheless not allowed to contract plural marriages in violation
of the laws against bigamy. A person cannot refuse to pay taxes on the
ground that it would be against his religious tenets to recognize any authority
except that of God alone. An atheist cannot express his disbelief in acts of
derision that wound the feelings of the faithful.The police power can be
validly asserted against the Indian practice of the suttee born of deep
religious conviction, that calls on the widow to immolate herself at the funeral
pile of her husband.
We thus reject petitioners postulate that its religious program is per
se beyond review by the respondent Board. Its public broadcast on TV of its
religious program brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The Court iterates
the rule that the exercise of religious freedom can be regulated by the State
when it will bring about the clear and present danger of some substantive evil
which the State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public
welfare. A laissez faire policy on the exercise of religion can be seductive to
the liberal mind but history counsels the Court against its blind adoption as
religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars
fought by men were caused by irreconcilable religious differences. Our
country is still not safe from the recurrence of this stultifying strife considering
our warring religious beliefs and the fanaticism with which some of us cling
165
and claw to these beliefs. Even now, we have yet to settle the near century
old strife in Mindanao, the roots of which have been nourished by the
mistrust and misunderstanding between our Christian and Muslim brothers
and sisters. The bewildering rise of weird religious cults espousing violence
as an article of faith also proves the wisdom of our rule rejecting a strict let
alone policy on the exercise of religion. For sure, we shall continue to
subject any act pinching the space for the free exercise of religion to a
heightened scrutiny but we shall not leave its rational exercise to the
irrationality of man. For when religion divides and its exercise destroys,
the State should not stand still.
It is also petitioners submission that the respondent appellate court
gravely erred when it affirmed the ruling of the respondent Board x-rating its
TV Program Series Nos. 115, 119, 121 and 128. The records show that the
respondent Board disallowed the program series for attacking other
religions. Thus, Exhibits A, A-1, (respondent Boards Voting Slip for
Television) reveal that its reviewing members x-rated Series 115 for x x x
criticizing different religions, based on their own interpretation of the Bible.
They suggested that the program should only explain petitioners x x x own
faith and beliefs and avoid attacks on other faiths. Exhibit B shows that
Series No. 119 was x-rated because the Iglesia ni Cristo insists on the literal
translation of the bible and says that our Catholic veneration of the Virgin
Mary is not to be condoned because nowhere it is found in the bible that we
should do so. This is intolerance x x x. Exhibit C shows that Series No. 121
was x-rated x x x for reasons of the attacks, they do on, specifically, the
Catholic religion. x x x (T)hey can not tell, dictate any other religion that they
are right and the rest are wrong x x x. Exhibit D also shows that Series No.
128 was not favorably recommended because it x x x outrages Catholic and
Protestants beliefs. On second review, it was x-rated because of its
unbalanced interpretations of some parts of the Bible. [18] In sum, the
respondent Board x-rated petitioners TV program series Nos. 115, 119, 121
and 128 because of petitioners controversial biblical interpretations and its
attacks against contrary religious beliefs. The respondent appellate court
agreed and even held that the said attacks are indecent, contrary to law and
good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all
prior restraints on speech, including religious speech. Hence, any act that
restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows.[19] It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this burden, its act of
censorship will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated
petitioners TV series for attacking other religions, especially the Catholic
church. An examination of the evidence, especially Exhibits A, A-1, B, C, and
D will show that the so-called attacks are mere criticisms of some of the
deeply held dogmas and tenets of other religions. The videotapes were not
viewed by the respondent court as they were not presented as evidence. Yet
they were considered by the respondent court as indecent, contrary to law
and good customs, hence, can be prohibited from public viewing under
Section 3(c) of PD 1986. This ruling clearly suppresses petitioners freedom
of speech and interferes with its right to free exercise of religion. It
misappreciates the essence of freedom to differ as delineated in the
benchmark case of Cantwell v. Connecticut,[20] viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields, the tenets of one man may seem the rankest error to his
neighbor. To persuade others to his own point of view, the pleader, as we
know, at times, resorts to exaggeration, to vilification of men who have been,
or are prominent in church or state or even to false statements. But the
people of this nation have ordained in the light of history that inspite of the
probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of the citizens
of democracy.
The respondent Board may disagree with the criticisms of other religions
by petitioner but that gives it no excuse to interdict such criticisms, however,
unclean they may be. Under our constitutional scheme, it is not the task of
the State to favor any religion by protecting it against an attack by another
religion. Religious dogmas and beliefs are often at war and to preserve
peace among their followers, especially the fanatics, the establishment
clause of freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet of
options. Neutrality alone is its fixed and immovable stance. In fine,
respondent board cannot squelch the speech of petitioner Iglesia ni Cristo
simply because it attacks other religions, even if said religion happens to be
the most numerous church in our country. In a State where there ought to be
no difference between the appearance and the reality of freedom of religion,
the remedy against bad theology is better theology. The bedrock of freedom
of religion is freedom of thought and it is best served by encouraging the
marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech
for it is the spark of opposite speech, the heat of colliding ideas that can fan
the embers of truth.
166
 Third. The respondents cannot also rely on the ground attacks against
another religion in x-rating the religious program of petitioner. Even a
sideglance at Section 3 of PD 1986 will reveal that it is not among the
grounds to justify an order prohibiting the broadcast of petitioners television
program. The ground attack against another religion was merely added by
the respondent Board in its Rules.[21] This rule is void for it runs smack
against the hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize attack against any
religion as a ground allegedly x x x because Section 3 (c) of PD 1986
prohibits the showing of motion pictures, television programs and publicity
materials which are contrary to law and Article 201 (2) (b) (3) of the Revised
Penal Code punishes anyone who exhibits shows which offend any race or
religion. We respectfully disagree for it is plain that the word attack is not
synonymous with the word offend. Moreover, Article 201 (2) (b) (3) of the
Revised Penal Code should be invoked to justify the subsequent
punishment of a show which offends any religion. It cannot be utilized to
justify prior censorship of speech. It must be emphasized that E.O. 876, the
law prior to PD 1986, included attack against any religion as a ground for
censorship. The ground was not, however, carried over by PD 1986. Its
deletion is a decree to disuse it. There can be no other intent. Indeed, even
the Executive Department espouses this view. Thus, in an Opinion dated
November 28, 1985 then Minister of Justice, now President of the Senate,
Neptali Gonzales explained:
xxx
However, the question whether the BRMPT (now MTRCB) may preview and
censor the subject television program of INC should be viewed in the light of
the provision of Section 3, paragraph (c) of PD 1986, which is substantially
the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
which prescribes the standards of censorship, to wit: immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people or with dangerous tendency to encourage the
commission of violence, or of a wrong as determined by the Board, applying
contemporary Filipino cultural values as standard. As stated, the intention of
the Board to subject the INCs television program to previewing and
censorship is prompted by the fact that its religious program makes mention
of beliefs and practices of other religion. On the face of the law itself, there
can conceivably be no basis for censorship of said program by the Board as
much as the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law. (Italics supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents
failed to apply the clear and present danger rule. In American Bible
Society v. City of Manila,[22] this Court held: The constitutional guaranty of
free exercise and enjoyment of religious profession and worship carries with
it the right to disseminate religious information. Any restraint of such right can
be justified like other restraints on freedom of expression on the ground that
there is a clear and present danger of any substantive evil which the State
has the right to prevent. In Victorianovs. Elizalde Rope Workers Union,[23] we
further ruled that x x x it is only where it is unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified, and only
to the smallest extent necessary to avoid the danger.
The records show that the decision of the respondent Board, affirmed by
the respondent appellate court, is completely bereft of findings of facts to
justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type
of harm the tapes will bring about especially the gravity and imminence of
the threatened harm. Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the
showing of a substantive and imminent evil which has taken the life of
a reality already on ground.
It is suggested that we re-examine the application of clear and present
danger rule to the case at bar. In the United States, it is true that the clear
and present danger test has undergone permutations. It was Mr. Justice
Holmes who formulated the test in Schenck v. US,[24] as follows: x x x the
question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress
has a right to prevent. Admittedly, the test was originally designed to
determine the latitude which should be given to speech that espouses anti-
government action. Bannered by Justices Holmes and Brandeis, the test
attained its full flowering in the decade of the forties, when its umbrella was
used to protect speech other than subversive speech.[25] Thus, for
instance, the test was applied to annul a total ban on labor picketing. [26] The
use of the test took a downswing in the 1950s when the US Supreme Court
decided Dennis v. United States involving communist
conspiracy.[27] In Dennis, the components of the test were altered as the High
Court adopted Judge Learned Hands formulation that x x x in each case
[courts] must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid
the danger. The imminence requirement of the test was thus diminished and
to that extent, the protection of the rule was weakened. In 1969, however, the
strength of the test was reinstated in Brandenburg v. Ohio,[28] when the High
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Court restored in the test the imminence requirement, and even added an
intent requirement which according to a noted commentator ensured that
only speech directed at inciting lawlessness could be
punished.[29] Presently in the United States, the clear and present danger
test is not applied to protect low value speeches such as obscene speech,
commercial speech and defamation. Be that as it may, the test is still
applied to four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court contempt and
release of information that endangers a fair trial.[30] Hence, even following the
drift of American jurisprudence, there is reason to apply the clear and present
danger test to the case at bar which concerns speech that attacks other
religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present
danger test to the case at bar because the issue involves the content of
speech and not the time, place or manner of speech. Allegedly, unless the
speech is first allowed, its impact cannot be measured, and the causal
connection between the speech and the evil apprehended cannot be
established.The contention overlooks the fact that the case at bar involves
videotapes that are pre-taped and hence, their speech content is known and
not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can
determine whether its sulphur will bring about the substantive evil feared by
the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x the
determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the boundaries of
protected speech or expression is a judicial function which cannot be
arrogated by an administrative body such as a Board of Censors. He submits
that a system of prior restraint may only be validly administered
by judges and not left to administrative agencies. The same submission is
made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule
in our jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his
concurring opinion in the 1962 case of Manual Enterprise v. Day.[31] By 1965,
the US Supreme Court in Freedman v. Maryland[32] was ready to hold that
the teaching of cases is that, because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination suffices to
impose a valid final restraint.[33]
While the thesis has a lot to commend itself, we are not ready to hold
that it is unconstitutional for Congress to grant an administrative body quasi-
judicial power to preview and classify TV programs and enforce its decision
subject to review by our courts. As far back as 1921, we upheld this set-up
in Sotto vs. Ruiz,[34] viz.:
The use of the mails by private persons is in the nature of a privilege which
can be regulated in order to avoid its abuse. Persons possess no absolute
right to put into the mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications
from the mails, in the exercise of executive power, is extremely delicate in
nature and can only be justified where the statute is unequivocably
applicable to the supposed objectionable publication. In excluding any
publication for the mails, the object should be not to interfere with the
freedom of the press or with any other fundamental right of the people. This
is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of
law, the action of the Director of Posts must be subject to revision by
the courts in case he had abused his discretion or exceeded his
authority. (Ex-parte Jackson [1878], 96 U.S., 727; Public Clearing House vs.
Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray[1916], 23-Fed.,
773)
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous character
rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every intendment of the law is in favor of the
correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid
Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S.,
63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs.
Brown[1900], 103 Fed., 909, announcing a somewhat different doctrine and
relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the
proposition whether or not courts alone are competent to decide whether
speech is constitutionally protected.[35]The issue involves highly arguable
policy considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals
dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the
respondent MTRCB to review petitioners TV program entitled Ang Iglesia ni
Cristo, and is reversed and set aside insofar as it sustained the action of the
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respondent MTRCB x-rating petitioners TV Program Series Nos. 115, 119,
and 121. No costs.
SO ORDERED.
A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER
PRESIDENT JOSEPH E. ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA
BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO,
and ATTY. RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES,oppositors.
RESOLUTION
MENDOZA, J.:
This is a motion for reconsideration of the decision denying petitioners'
request for permission to televise and broadcast live the trial of former
President Estrada before the Sandiganbayan. The motion was filed by the
Secretary of Justice, as one of the petitioners, who argues that there is really
no conflict between the right of the people to public information and the
freedom of the press, on the one hand, and, on the other, the right of the
accused to a fair trial; that if there is a clash between these rights, it must be
resolved in favor of the right of the people and the press because the people,
as the repository of sovereignty, are entitled to information; and that live
media coverage is a safeguard against attempts by any party to use the
courts as instruments for the pursuit of selfish interests.
On the other hand, former President Joseph E. Estrada reiterates his
objection to the live TV and radio coverage of his trial on the ground that its
allowance will violate the sub judice rule and that, based on his experience
with the impeachment trial, live media coverage will only pave the way for so-
called "expert commentary" which can trigger massive demonstrations aimed
at pressuring the Sandiganbayan to render a decision one way or the other.
Mr. Estrada contends that the right of the people to information may be
served through other means less distracting, degrading, and prejudicial than
live TV and radio coverage.1wphi1.nt
The Court has considered the arguments of the parties on this important
issue and, after due deliberation, finds no reason to alter or in any way
modify its decision prohibiting live or real time broadcast by radio or
television of the trial of the former president. By a vote of nine (9) to six (6) of
its members,1 the Court denies the motion for reconsideration of the
Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the vote of
eight (8) Justices,2 has resolved to order the audio-visual recording of the
trial.
What follows is the opinion of the majority.lawphil.net
Considering the significance of the trial before the Sandiganbayan of former
President Estrada and the importance of preserving the records thereof, the
Court believes that there should be an audio-visual recording of the
proceedings. The recordings will not be for live or real time broadcast but for
documentary purposes. Only later will they be available for public showing,
after the Sandiganbayan shall have promulgated its decision in every case to
which the recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives Office for
historical preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV crews
will be regulated, consistent with the dignity and solemnity of the
proceedings. The trial shall be recorded in its entirety, except such portions
thereof as the Sandiganbayan may decide should not be held public
pursuant to Rule 119, 21 of the Revised Rules of Criminal Procedure. No
comment shall be included in the documentary except annotations which
may be necessary to explain certain scenes which are depicted. The audio-
visual recordings shall be made under the supervision and control of the
Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording.1awphil.net First, the
hearings are of historic significance. They are an affirmation of our
commitment to the rule that "the King is under no man, but he is under God
and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.)
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Second, the Estrada cases involve matters of vital concern to our people who
have a fundamental right to know how their government is conducted. This
right can be enhanced by audio visual presentation. Third, audio-visual
presentation is essential for the education and civic training of the people.
Above all, there is the need to keep audio-visual records of the hearings for
documentary purposes. The recordings will be useful in preserving the
essence of the proceedings in a way that the cold print cannot quite do
because it cannot capture the sights and sounds of events. They will be
primarily for the use of appellate courts in the event a review of the
proceedings, rulings, or decisions of the Sandiganbayan is sought or
becomes necessary. The accuracy of the transcripts of stenographic notes
taken during the trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for broadcast,
concerns that those taking part in the proceedings will be playing to the
cameras and will thus be distracted from the proper performance of their
roles -- whether as counsel, witnesses, court personnel, or judges -- will be
allayed. The possibility that parallel trials before the bar of justice and the bar
of public opinion may jeopardize, or even prevent, the just determination of
the cases can be minimized. The possibility that judgment will be rendered
by the popular tribunal before the court of justice can render its own will be
avoided.
At the same time, concerns about the regularity and fairness of the trial --
which, it may be assumed, is the concern of those opposed to, as much as of
those in favor of, televised trials - will be addressed since the tapes will not
be released for public showing until after the decision of the cases by the
Sandiganbayan. By delaying the release of the tapes, much of the problem
posed by real time TV and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trial can be
served by audio-visual recordings without impairing the right of the accused
to a fair trial.
Nor is the right of privacy of the accused a bar to the production of such
documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this Court set
aside a lower court's injunction restraining the filming of "Four Day
Revolution," a documentary film depicting, among other things, the role of
then Minister of National Defense Juan Ponce Enrile in the 1986 EDSA
people power. This Court held: "A limited intrusion into a person's privacy
has long been regarded as permissible where that person is a public figure
and the information sought to be elicited from him or to be published about
him constitute matters of a public character."6
No one can prevent the making of a movie based on the trial. But, at least, if
a documentary record is made of the proceedings, any movie that may later
be produced can be checked for its accuracy against such documentary and
any attempt to distort the truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of
celebrated cases or causes clbres was made was made way back in 1971
by Paul Freund of the Harvard Law School. As he explained:
In fairness let me refer to an American experience many of my lay
friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of
resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded --
concluded incidentally, with a verdict of acquittal.
No one could witness the trial without a feeling of profound respect
for the painstaking way in which the truth was searched for, for the
ways whereby law copes with uncertainties and ambiguities through
presumptions and burden of proof, and the sense of gravity with
which judge and jury carried out their responsibilities.
I agree in general with the exclusion of television from the courtroom,
for the familiar good reasons. And yet the use of television at a trial
for documentary purposes, not for the broadcast of live news, and
with the safeguards of completeness and consent, is an educational
experiment that I would be prepared to welcome. Properly
safeguarded and with suitable commentary, the depiction of an
actual trial is an agency of enlightenment that could have few equals
in its impact on the public understanding.
Understanding of our legal process, so rarely provided by our
educational system, is now a desperate need.7
Professor Freund's observation is as valid today as when it was made thirty
years ago. It is perceptive for its recognition of the serious risks posed to the
fair administration of justice by live TV and radio broadcasts, especially when
emotions are running high on the issues stirred by a case, while at the same
time acknowledging the necessity of keeping audio-visual recordings of the
170
proceedings of celebrated cases, for public information and exhibition, after HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of
passions have subsided. the Regional Trial Court of Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.
WHEREFORE, an audio-visual recording of the trial of former President
Estrada before the Sandiganbayan is hereby ordered to be made, for the
account of the Sandiganbayan, under the following conditions: (a) the trial
shall be recorded in its entirety, excepting such portions thereof as the FELICIANO, J.:
Sandiganbayan may determine should not be held public under Rule 119,
21 of the Rules of Criminal Procedure; (b) cameras shall be installed
Petitioner Hal McElroy an Australian film maker, and his movie production
inconspicuously inside the courtroom and the movement of TV crews shall
company, Petitioner Ayer Productions pty Ltd. (Ayer
be regulated consistent with the dignity and solemnity of the proceedings; (c)
Productions), 1 envisioned, sometime in 1987, the for commercial viewing
the audio-visual recordings shall be made for documentary purposes only
and for Philippine and international release, the histolic peaceful struggle of
and shall be made without comment except such annotations of scenes the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed
depicted therein as may be necessary to explain them; (d) the live broadcast this Project with local movie producer Lope V. Juban who suggested th they
of the recordings before the Sandiganbayan shall have rendered its decision
consult with the appropriate government agencies and also with General
in all the cases against the former President shall be prohibited under pain of
Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles
contempt of court and other sanctions in case of violations of the prohibition;
in the events proposed to be filmed.
(e) to ensure that the conditions are observed, the audio-visual recording of
the proceedings shall be made under the supervision and control of the
Sandiganbayan or its Division concerned and shall be made pursuant to The proposed motion picture entitled "The Four Day Revolution" was
rules promulgated by it; and (f) simultaneously with the release of the audio- endorsed by the Movie Television Review and Classification Board as wel as
visual recordings for public broadcast, the original thereof shall be deposited the other government agencies consulted. General Fidel Ramos also
in the National Museum and the Records Management and Archives Office signified his approval of the intended film production.
for preservation and exhibition in accordance with law.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private
SO ORDERED. respondent Juan Ponce Enrile about the projected motion picture enclosing a
synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about

People Powera unique event in modern history that-made
possible the Peaceful revolution in the Philippines in 1986.

G.R. No. 82380 April 29, 1988

Faced with the task of dramatising these rerkble events,
screenwriter David Williamson and history Prof Al McCoy
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM have chosen a "docu-drama" style and created [four]
PRODUCTIONS, petitioners, fictitious characters to trace the revolution from the death of
vs. Senator Aquino, to the Feb revolution and the fleeing of
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. Marcos from the country.

G.R. No. 82398 April 29, 1988 These character stories have been woven through the real
events to help our huge international audience understand
HAL MCELROY petitioner, this ordinary period inFilipino history.
vs.

171
First, there's Tony O'Neil, an American television journalist
working for major network. Tony reflects the average
American attitude to the Phihppinence once a colony, now
the home of crucially important military bases. Although
Tony is aware of the corruption and of Marcos'
megalomania, for him, there appears to be no alternative to
Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new
girl in town,' she is quickly caught up in the events as it
becomes dear that the time has come for a change. Through
Angle and her relationship with one of the Reform Army
Movement Colonels (a fictitious character), we follow the
developing discontent in the armed forces. Their dislike for
General Ver, their strong loyalty to Defense Minister Enrile,
and ultimately their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged
editor of a Manila newspaper who despises the Marcos
regime and is a supporter an promoter of Cory Aquino. Ben
has two daughters, Cehea left wing lawyer who is a secret
member of the New People's Army, and Eva--a -P.R. girl,
politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the
revolution.
Through the interviews and experiences of these central
characters, we show the complex nature of Filipino society,
and thintertwining series of events and characters that
triggered these remarkable changes. Through them also, we
meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates
actual documentary footage filmed during the period which
we hope will capture the unique atmosphere and forces that
combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some
14 hugely successful plays to his credit(Don's Party,' 'The
Club,' Travelling North) and 11 feature films (The Year of
Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an
American historian with a deep understanding of the
Philippines, who has worked on the research for this project
for some 18 months. Together with Davi Wilhamgon they
have developed a script we believe accurately depicts the
complex issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production
with Home Box Office in American, the Australian Broadcast
Corporation in Australia and Zenith Productions in the United
Kingdom
The proposed motion picture would be essentially a re-enact. ment of the
events that made possible the EDSA revolution; it is designed to be viewed
in a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing
actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not
and will not approve of the use, appropriation, reproduction and/or exhibition
of his name, or picture, or that of any member of his family in any cinema or
television production, film or other medium for advertising or commercial
exploitation" and further advised petitioners that 'in the production, airing,
showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or
any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private
respondent Enrile was deleted from the movie script, and petitioners
proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application
for Temporary Restraining Order and Wilt of Pretion with the Regional Trial
Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof,
seeking to enjoin petitioners from producing the movie "The Four Day
Revolution". The complaint alleged that petitioners' production of the mini-
series without private respondent's consent and over his objection,
constitutes an obvious violation of his right of privacy. On 24 February 1988,
the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to
the Petition for Preliminary Injunction contending that the mini-series fim
would not involve the private life of Juan Ponce Enrile nor that of his family
and that a preliminary injunction would amount to a prior restraint on their
172
right of free expression. Petitioner Ayer Productions also filed its own Motion
to Dismiss alleging lack of cause of action as the mini-series had not yet
been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of
Preliminary Injunction against the petitioners, the dispositive portion of which
reads thus:
WHEREFORE, let a writ of preliminary injunction be issued,
ordering defendants, and all persons and entities employed
or under contract with them, including actors, actresses and
members of the production staff and crew as well as all
persons and entities acting on defendants' behalf, to cease
and desist from producing and filming the mini-series entitled
'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any
fictitious character in lieu of plaintiff which nevertheless is
based on, or bears rent substantial or marked resemblance
or similarity to, or is otherwise Identifiable with, plaintiff in the
production and any similar film or photoplay, until further
orders from this Court, upon plaintiff's filing of a bond in the
amount of P 2,000,000.00, to answer for whatever damages
defendants may suffer by reason of the injunction if the
Court should finally decide that plaintiff was not entitled
thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a
Petition for certiorari dated 21 March 1988 with an urgent prayer for
Preliminary Injunction or Restraining Order, which petition was docketed as
G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate
Petition for certiorari with Urgent Prayer for a Restraining Order or
Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and
private respondent was required to file a consolidated Answer. Further, in the
same Resolution, the Court granted a Temporary Restraining Order partially
enjoining the implementation of the respondent Judge's Order of 16 March
1988 and the Writ of Preliminary Injunction issued therein, and allowing the
petitioners to resume producing and filming those portions of the projected
mini-series which do not make any reference to private respondent or his
family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988
invoking in the main a right of privacy.
I
The constitutional and legal issues raised by the present Petitions are
sharply drawn. Petitioners' claim that in producing and "The Four Day
Revolution," they are exercising their freedom of speech and of expression
protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the
projected mini-series would constitute an unlawful intrusion into his privacy
which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression
the Court would once more stress that this freedom includes the freedom to
film and produce motion pictures and to exhibit such motion pictures in
theaters or to diffuse them through television. In our day and age, motion
pictures are a univesally utilized vehicle of communication and medium Of
expression. Along with the press, radio and television, motion pictures
constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice
Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the
communication of Ideas and the expression of the artistic
impulse. Their effect on the perception by our people of
issues and public officials or public figures as well as the pre
cultural traits is considerable. Nor as pointed out in Burstyn
v. Wilson(343 US 495 [19421) is the Importance of motion
pictures as an organ of public opinion lessened by the fact
that they are designed to entertain as well as to inform' (Ibid,
501). There is no clear dividing line between what involves
knowledge and what affords pleasure. If such a distinction
were sustained, there is a diminution of the basic right to free
expression. ...4
This freedom is available in our country both to locally-owned and to foreign-
owned motion picture companies. Furthermore the circumstance that the
173
production of motion picture films is a commercial activity expected to yield
monetary profit, is not a disqualification for availing of freedom of speech and
of expression. In our community as in many other countries, media facilities
are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being
devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our
country and hence to exclude commercially owned and operated media from
the exerciseof constitutionally protected om of speech and of expression can
only result in the drastic contraction of such constitutional liberties in our
country.
The counter-balancing of private respondent is to a right of privacy. It was
demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
constitutional and statutory, does include a right of privacy. 5 It is left to case
law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be
let alone," 6 like the right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded as permissible
where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic
character. 7 Succinctly put, the right of privacy cannot be invoked resist
publication and dissemination of matters of public interest. 8 The interest
sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs
and activities of an individual which are outside the realm of legitimate public
concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily,
recognized a right to privacy in a context which included a claim to freedom
of speech and of expression. Lagunzad involved a suit fortion picture
producer as licensee and the widow and family of the late Moises Padilla as
licensors. This agreement gave the licensee the right to produce a motion
Picture Portraying the life of Moises Padilla, a mayoralty candidate of the
Nacionalista Party for the Municipality of Magallon, Negros Occidental during
the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried
and convicted. 11 In the judgment of the lower court enforcing the licensing
agreement against the licensee who had produced the motion picture and
exhibited it but refused to pay the stipulated royalties, the Court, through
Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the
Licensing Agreement is null and void for lack of, or for
having an illegal cause or consideration, while it is true that
petitioner bad pled the rights to the book entitled "The
Moises Padilla Story," that did not dispense with the need for
prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that
of his mother and the member of his family. As held in
Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA
286.49 Am St Rep 671), 'a privilege may be given the
surviving relatives of a deperson to protect his memory, but
the privilege wts for the benefit of the living, to protect their
feelings and to preventa violation of their own rights in the
character and memory of the deceased.'
Petitioners averment that private respondent did not have
any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a public
figure ipso facto does not automatically destroy in toto a
person's right to privacy. The right to invade a person's
privacy to disseminate public information does not extend to
a fictional or novelized representation of a person, no matter
how public a he or she may be (Garner v. Triangle
Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case
at bar, while it is true that petitioner exerted efforts to present
a true-to-life Story Of Moises Padilla, petitioner admits that
he included a little romance in the film because without it, it
would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with
contraposed claims to freedom of speech and of expression and to privacy.
Lagunzad the licensee in effect claimed, in the name of freedom of speech
and expression, a right to produce a motion picture biography at least partly
"fictionalized" of Moises Padilla without the consent of and without paying
pre-agreed royalties to the widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that
the Licensing Agreement infringes on the constitutional right
of freedom of speech and of the press, in that, as a citizen
and as a newspaperman, he had the right to express his
thoughts in film on the public life of Moises Padilla without
prior restraint.The right freedom of expression, indeed,
174
 occupies a preferred position in the "hierarchy of civil
liberties" (Philippine Blooming Mills Employees Organization
v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]).
It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger
rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television
and the movies, is the "balancing of interest test" (Chief
Justice Enrique M. Fernando on the Bill of Rights, 1970 ed.
p. 79). The principle "requires a court to take conscious and
detailed consideration of the interplay of interests observable
in given situation or type of situation" (Separation Opinion of
the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).
In the case at bar, the interests observable are the right to
privacy asserted by respondent and the right of freedom of
expression invoked by petitioner. taking into account the
interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of
expression are reached when expression touches upon
matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger
test" be applied in respect of the instant Petitions, the Court believes that a
different conclusion must here be reached: The production and filming by
petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon
private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is
a prior and direct restraint on the part of the respondent Judge upon the
exercise of speech and of expression by petitioners. The respondent Judge
has restrained petitioners from filming and producing the entire proposed
motion picture. It is important to note that in Lagunzad, there was no prior
restrain of any kind imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla. Because of the speech
and of expression, a weighty presumption of invalidity vitiates. 14 The
invalidity of a measure of prior restraint doesnot, of course, mean that no
subsequent liability may lawfully be imposed upon a person claiming to
exercise such constitutional freedoms. The respondent Judge should have
stayed his hand, instead of issuing an ex-parte Temporary Restraining Order
one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience. Neither
private respondent nor the respondent trial Judge knew what the completed
film would precisely look like. There was, in other words, no "clear and
present danger" of any violation of any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody
change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the trian of events which led up to that denouement.
Clearly, such subject matter is one of public interest and concern. Indeed, it
is, petitioners' argue, of international interest. The subject thus relates to a
highly critical stage in the history of this countryand as such, must be
regarded as having passed into the public domain and as an appropriate
subject for speech and expression and coverage by any form of mass media.
The subject mater, as set out in the synopsis provided by the petitioners and
quoted above, does not relate to the individual life and certainly not to the
private life of private respondent Ponce Enrile. Unlike in Lagunzad, which
concerned the life story of Moises Padilla necessarily including at least his
immediate family, what we have here is not a film biography, more or less
fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution"
is not principally about, nor is it focused upon, the man Juan Ponce Enrile'
but it is compelled, if it is to be historical, to refer to the role played by Juan
Ponce Enrile in the precipitating and the constituent events of the change of
government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce
Enrile that would be entailed by the production and exhibition of "The Four
Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may
be generally described as such intrusion as is reasonably necessary to keep
that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the
private life of private respondent or that of any member of his family.
175
4. At all relevant times, during which the momentous events, clearly of public
concern, that petitioners propose to film were taking place, private
respondent was what Profs. Prosser and Keeton have referred to as a
"public figure:"
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are those
who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainment. The
list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and
even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position
where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at
least, their tight to privacy. Three reasons were given, more
or less indiscrimately, in the decisions" that they had sought
publicity and consented to it, and so could not complaint
when they received it; that their personalities and their affairs
has already public, and could no longer be regarded as their
own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who
have become legitimate matters of public interest. On one or
another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional
publicity, as to matters legitimately within the scope of the
public interest they had aroused.
The privilege of giving publicity to news, and other matters of
public interest, was held to arise out of the desire and the
right of the public to know what is going on in the world, and
the freedom of the press and other agencies of information
to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which
have 'that indefinable quality of information which arouses
public attention.' To a very great extent the press, with its
experience or instinct as to what its readers will want, has
succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate. It
includes homicide and othe crimes, arrests and police
raides, suicides, marriages and divorces, accidents, a death
from the use of narcotics, a woman with a rare disease, the
birth of a child to a twelve year old girl, the reappearance of
one supposed to have been murdered years ago, and
undoubtedly many other similar matters of genuine, if more
or less deplorable, popular appeal.
The privilege of enlightening the public was not, however,
limited, to the dissemination of news in the scene of current
events. It extended also to information or education, or even
entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of
human activity in general, as well as the reproduction of the
public scene in newsreels and travelogues. In determining
where to draw the line, the courts were invited to exercise a
species of censorship over what the public may be permitted
to read; and they were understandably liberal in allowing the
benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his
participation as a principal actor in the culminating events of the change of
government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make
reference to the role played by private respondent would be grossly
unhistorical. The right of privacy of a "public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public figure."
After a successful political campaign during which his participation in the
EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between
the constitutional freedom of speech and of expression and the right of
privacy, may be marked out in terms of a requirement that the proposed
motion picture must be fairly truthful and historical in its presentation of
events. There must, in other words, be no knowing or reckless disregard of
truth in depicting the participation of private respondent in the EDSA
Revolution. 16 There must, further, be no presentation of the private life of
the unwilling private respondent and certainly no revelation of intimate or
176
embarrassing personal facts. 17 The proposed motion picture should not
enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as
"matters of essentially private concern." 18 To the extent that "The Four Day
Revolution" limits itself in portraying the participation of private respondent in
the EDSA Revolution to those events which are directly and reasonably
related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable.
Such portrayal may be carried out even without a license from private
respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this
Court that a Temporary Restraining Order dated 25 March 1988, was issued
by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in
Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions
Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP
Motion for Pictures Production" enjoining him and his production company
from further filimg any scene of the projected mini-series film. Petitioner
alleged that Honasan's complaint was a "scissors and paste" pleading, cut
out straight grom the complaint of private respondent Ponce Enrile in Civil
Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of the Court the same information
given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B.
Honasan was substantially identical to that filed by private respondent herein
and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel
for private respondent, with whom counsel for Gregorio Honasan are
apparently associated, deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that
the "slight similarity" between private respondent's complaint and that on
Honasan in the construction of their legal basis of the right to privacy as a
component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for
invasion of privacy is separate and distinct from that of Honasan's although
they arose from the same tortious act of petitioners' that the rule on
permissive joinder of parties is not mandatory and that, the cited cases on
"forum shopping" were not in point because the parties here and those in
Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court
to deal with the question of whether or not the lawyers of private respondent
Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having
refused to subject himself to the legal processes of the Republic and having
become once again in fugitive from justice, must be deemed to have forfeited
any right the might have had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order
dated 16 March 1988 of respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March
1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April
1988 as separate Petitions for Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the Court, in the exercise of its plenary and
supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case
No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988 and any Preliminary Injunction that
may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.
U.S. Supreme Court
United States v. O'Brien, 391 U.S. 367 (1968)
United States v. O'Brien
No. 232
177
Argued January 24, 1968
Decided May 27, 1968*
391 U.S. 367
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Syllabus
O'Brien burned his Selective Service registration certificate before a sizable
crowd in order to influence others to adopt his anti-war beliefs. He was
indicted, tried, and convicted for violating 50 U.S.C.App. 462(b), a part of
the Universal Military Training and Service Act, subdivision (3) of which
applies to any person "who forges, alters, knowingly destroys, knowingly
mutilates, or in any manner changes any such certificate . . . ," the words
italicized herein having been added by amendment in 1965. The District
Court rejected O'Brien's argument that the amendment was unconstitutional
because it was enacted to abridge free speech and served no legitimate
legislative purpose. The Court of Appeals held the 1965 Amendment
unconstitutional under the First Amendment as singling out for special
treatment persons engaged in protests, on the ground that conduct under the
1965 Amendment was already punishable, since a Selective Service System
regulation required registrants to keep their registration certificates in their
"personal possession at all times," 32 CFR 1617.1, and willful violation of
regulations promulgated under the Act was made criminal by 50 U.S.C.App.
462(b)(6). The court, however, upheld O'Brien's conviction under
462(b)(6), which, in its view, made violation of the nonpossession regulation
a lesser included offense of the crime defined by the 1965 Amendment.
Held:
1. The 1965 Amendment to 50 U.S.C.App. 462(b)(3) is constitutional as
applied in this case. Pp. 391 U. S. 375, 391 U. S. 376-382.
(a) The 1965 Amendment plainly does not abridge free speech on its face.
P. 391 U. S. 375.
(b) When "speech" and "nonspeech" elements are combined in the same
course of conduct, a sufficiently important governmental interest in regulating
the nonspeech element can justify incidental limitations on First Amendment
freedoms. P. 391 U. S. 376.
(c) A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government and
furthers chanroblesvirtualawlibrary
Page 391 U. S. 368
an important or substantial governmental interest unrelated to the
suppression of free expression, and if the incidental restriction on alleged
First Amendment freedom is no greater than is essential to that interest. The
1965 Amendment meets all these requirements. P. 391 U. S. 377.
(d) The 1965 Amendment came within Congress'."broad and sweeping"
power to raise and support armies and make all laws necessary to that end.
P. 391 U. S. 377.
(e) The registration certificate serves purposes in addition to initial
notification, e.g., it proves that the described individual has registered for the
draft; facilitates communication between registrants and local boards, and
provides a reminder that the registrant must notify his local board of changes
in address or status. The regulatory scheme involving the certificates
includes clearly valid prohibitions against alteration, forgery, or similar
deceptive misuse. Pp. 391 U. S. 378-380.
(f) The preexistence of the nonpossession regulation does not negate
Congress' clear interest in providing alternative statutory avenues of
prosecution to assure its interest in preventing destruction of the Selective
Service certificates. P.391 U. S. 380.
(g) The governmental interests protected by the 1965 Amendment and the
nonpossession regulation, though overlapping, are not identical. Pp. 391 U.
S. 380-381.
(h) The 1965 Amendment is a narrow and precisely drawn provision which
specifically protects the Government's substantial interest in an efficient and
easily administered system for raising armies. Pp. 391 U. S. 381-382.
(i) O'Brien was convicted only for the willful frustration of that governmental
interest. The noncommunicative impact of his conduct for which he was
178
convicted makes his case readily distinguishable from Stromberg v.
California, 283 U. S. 359 (1931). P. 391 U. S. 382.
2. The 1965 Amendment is constitutional as enacted. Pp. 391 U. S. 382-385.
(a) Congress' purpose in enacting the law affords no basis for declaring an
otherwise constitutional statute invalid.McCray v. United States, 195 U. S.
27 (1904). Pp. 391 U. S. 383-384.
(b) Grosjean v. American Press Co., 297 U. S. 233 (1936) and Gomillion v.
Lightfoot, 364 U. S. 339 (1960), distinguished. Pp. 391 U. S. 384-385.
376 F.2d 538, vacated; judgment and sentence of District Court
reinstated. chanroblesvirtualawlibrary
Page 391 U. S. 369
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
On the morning of March 31, 1966, David Paul O'Brien and three
companions burned their Selective Service registration certificates on the
steps of the South Boston Courthouse. A sizable crowd, including several
agents of the Federal Bureau of Investigation, witnessed the event. [Footnote
1] Immediately after the burning, members of the crowd began attacking
O'Brien and his companions. An FBI agent ushered O'Brien to safety inside
the courthouse. After he was advised of his right to counsel and to silence,
O'Brien stated to FBI agents that he had burned his registration certificate
because of his beliefs, knowing that he was violating federal law. He
produced the charred remains of the certificate, which, with his consent, were
photographed.
For this act, O'Brien was indicted, tried, convicted, and sentenced in the
United States District Court for the District of Massachusetts. [Footnote 2] He
did not contest the fact chanroblesvirtualawlibrary
Page 391 U. S. 370
that he had burned the certificate. He stated in argument to the jury that he
burned the certificate publicly to influence others to adopt his anti-war beliefs,
as he put it,
"so that other people would reevaluate their positions with Selective Service,
with the armed forces, and reevaluate their place in the culture of today, to
hopefully consider my position."
The indictment upon which he was tried charged that he
"willfully and knowingly did mutilate, destroy, and change by burning . . . [his]
Registration Certificate (Selective Service System Form No. 2); in violation of
Title 50, App. United States Code, Section 462(b)."
Section 462(b) is part of the Universal Military Training and Service Act of
1948. Section 462(b)(3), one of six numbered subdivisions of 462(b), was
amended by Congress in 1965, 79 Stat. 586 (adding the words italicized
below), so that, at the time O'Brien burned his certificate, an offense was
committed by any person,
"who forges, alters, knowingly destroys, knowingly mutilates, or in any
manner changes any such certificate. . . ."
(Italics supplied.) In the District Court, O'Brien argued that the 1965
Amendment prohibiting the knowing destruction or mutilation of certificates
was unconstitutional because it was enacted to abridge free speech, and
because it served no legitimate legislative purpose. [Footnote 3] The District
Court rejected these arguments, holding that the statute, on its face, did not
abridge First Amendment rights, that the court was not competent to inquire
into the motives of Congress in enacting the 1965 Amendment, and that
the chanroblesvirtualawlibrary
Page 391 U. S. 371
Amendment was a reasonable exercise of the power of Congress to raise
armies.
On appeal, the Court of Appeals for the First Circuit held the 1965
Amendment unconstitutional as a law abridging freedom of speech.
[Footnote 4] At the time the Amendment was enacted, a regulation of the
Selective Service System required registrants to keep their registration
certificates in their "personal possession at all times." 32 CFR 1617.1
(1962). [Footnote 5] Willful violations of regulations promulgated pursuant to
the Universal Military Training and Service Act were made criminal by
statute. 50 U.S.C.App. 462(b)(6). The Court of Appeals, therefore, was of
the opinion that conduct punishable under the 1965 Amendment was already
179
punishable under the nonpossession regulation, and consequently that the
Amendment served no valid purpose; further, that, in light of the prior
regulation, the Amendment must have been "directed at public, as
distinguished from private, destruction." On this basis, the court concluded
that the 1965 Amendment ran afoul of the First Amendment by singling out
persons engaged in protests for special treatment. The court ruled, however,
that O'Brien's conviction should be affirmed under the statutory provision, 50
U.S.C.App. 462(b)(6), which, in its view, made violation of the
nonpossession regulation a crime, because it regarded such violation to be a
lesser included offense of the crime defined by the 1965 Amendment.
[Footnote 6] chanroblesvirtualawlibrary
Page 391 U. S. 372
The Government petitioned for certiorari in No. 232, arguing that the Court of
Appeals erred in holding the statute unconstitutional, and that its decision
conflicted with decisions by the Courts of Appeals for the Second [Footnote
7] and Eighth Circuits [Footnote 8] upholding the 1965 Amendment against
identical constitutional challenges. O'Brien cross-petitioned for certiorari in
No. 233, arguing that the Court of Appeals erred in sustaining his conviction
on the basis of a crime of which he was neither charged nor tried. We
granted the Government's petition to resolve the conflict in the circuits, and
we also granted O'Brien's cross-petition. We hold that the 1965 Amendment
is constitutional both as enacted and as applied. We therefore vacate the
judgment of the Court of Appeals and reinstate the judgment and sentence of
the District Court without reaching the issue raised by O'Brien in No. 233.
I
When a male reaches the age of 18, he is required by the Universal Military
Training and Service Act to register with a local draft board. [Footnote 9] He
is assigned a Selective Service number, [Footnote 10] and within five days
he is issued a chanroblesvirtualawlibrary
Page 391 U. S. 373
registration certificate (SSS Form No. 2). [Footnote 11] Subsequently, and
based on a questionnaire completed by the registrant, [Footnote 12] he is
assigned a classification denoting his eligibility for induction, [Footnote 13]
and, "[a]s soon as practicable" thereafter, he is issued a Notice of
Classification (SSS Form No. 110). [Footnote 14] This initial classification is
not necessarily permanent, [Footnote 15] and if, in the interim before
induction, the registrant's status changes in some relevant way, he may be
reclassified. [Footnote 16] After such a reclassification, the local board, "as
soon as practicable," issues to the registrant a new Notice of Classification.
[Footnote 17]
Both the registration and classification certificates are small white cards,
approximately 2 by 3 inches. The registration certificate specifies the name of
the registrant, the date of registration, and the number and address of the
local board with which he is registered. Also inscribed upon it are the date
and place of the registrant's birth, his residence at registration, his physical
description, his signature, and his Selective Service number. The Selective
Service number itself indicates his State of registration, his local board, his
year of birth, and his chronological position in the local board's classification
record. [Footnote 18]
The classification certificate shows the registrant's name, Selective Service
number, signature, and eligibility classification. It specifies whether he was so
classified by his local board, an appeal board, or the President.
It chanroblesvirtualawlibrary
Page 391 U. S. 374
contains the address of his local board and the date the certificate was
mailed.
Both the registration and classification certificates bear notices that the
registrant must notify his local board in writing of every change in address,
physical condition, and occupational, marital, family, dependency, and
military status, and of any other fact which might change his classification.
Both also contain a notice that the registrant's Selective Service number
should appear on all communications to his local board.
Congress demonstrated its concern that certificates issued by the Selective
Service System might be abused well before the 1965 Amendment here
challenged. The 1948 Act, 62 Stat. 604, itself prohibited many different
abuses involving
"any registration certificate, . . . or any other certificate issued pursuant to or
prescribed by the provisions of this title, or rules or regulations promulgated
hereunder. . . ."
62 Stat. 622. Under 12(b)(1)-(5) of the 1948 Act, it was unlawful (1) to
transfer a certificate to aid a person in making false identification; (2) to
180
possess a certificate not duly issued with the intent of using it for false
identification; (3) to forge, alter, "or in any manner" change a certificate or
any notation validly inscribed thereon; (4) to photograph or make an imitation
of a certificate for the purpose of false identification, and (5) to possess a
counterfeited or altered certificate. 62 Stat. 622. In addition, as previously
mentioned, regulations of the Selective Service System required registrants
to keep both their registration and classification certificates in their personal
possession at all times. 32 CFR 1617.1 (1962) (Registration Certificates);
[Footnote 19] 32 CFR 1623.5 chanroblesvirtualawlibrary
Page 391 U. S. 375
(1962) (Classification Certificates). [Footnote 20] And 12(b)(6) of the Act,
62 Stat. 622, made knowing violation of any provision of the Act or rules and
regulations promulgated pursuant thereto a felony.
By the 1965 Amendment, Congress added to 12(b)(3) of the 1948 Act the
provision here at issue, subjecting to criminal liability not only one who
"forges, alters, or in any manner changes", but also one who "knowingly
destroys, [or] knowingly mutilates" a certificate. We note at the outset that the
1965 Amendment plainly does not abridge free speech on its face, and we
do not understand O'Brien to argue otherwise. Amended 12(b)(3), on its
face, deals with conduct having no connection with speech. It prohibits the
knowing destruction of certificates issued by the Selective Service System,
and there is nothing necessarily expressive about such conduct. The
Amendment does not distinguish between public and private destruction, and
it does not punish only destruction engaged in for the purpose of expressing
views.Compare Stromberg v. California, 283 U. S. 359 (1931). [Footnote 21]
A law prohibiting destruction of Selective Service certificates no more
abridges free speech on its face than a motor vehicle law prohibiting the
destruction of drivers' licenses, or a tax law prohibiting the destruction of
books and records. chanroblesvirtualawlibrary
Page 391 U. S. 376
O'Brien nonetheless argues that the 1965 Amendment is unconstitutional in
its application to him, and is unconstitutional as enacted because what he
calls the "purpose" of Congress was "to suppress freedom of speech." We
consider these arguments separately.
II
O'Brien first argues that the 1965 Amendment is unconstitutional as applied
to him because his act of burning his registration certificate was protected
"symbolic speech" within the First Amendment. His argument is that the
freedom of expression which the First Amendment guarantees includes all
modes of "communication of ideas by conduct," and that his conduct is within
this definition because he did it in "demonstration against the war and
against the draft."
We cannot accept the view that an apparently limitless variety of conduct can
be labeled "speech" whenever the person engaging in the conduct intends
thereby to express an idea. However, even on the assumption that the
alleged communicative element in O'Brien's conduct is sufficient to bring into
play the First Amendment, it does not necessarily follow that the destruction
of a registration certificate is constitutionally protected activity. This Court has
held that, when "speech" and "nonspeech" elements are combined in the
same course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms. To characterize the quality of the governmental
interest which must appear, the Court has employed a variety of descriptive
terms: compelling; [Footnote 22] substantial; [Footnote 23] subordinating;
[Footnote 24] chanroblesvirtualawlibrary
Page 391 U. S. 377
paramount; [Footnote 25] cogent; [Footnote 26] strong. [Footnote 27]
Whatever imprecision inheres in these terms, we think it clear that a
government regulation is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression, and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance
of that interest. We find that the 1965 Amendment to 12(b)(3) of the
Universal Military Training and Service Act meets all of these requirements,
and consequently that O'Brien can be constitutionally convicted for violating
it.
The constitutional power of Congress to raise and support armies and to
make all laws necessary and proper to that end is broad and
sweeping. Lichter v. United States, 334 U. S. 742, 334 U. S. 755-758
(1948); Selective Draft Law Cases,245 U. S. 366 (1918); see also Ex parte
Quirin, 317 U. S. 1, 317 U. S. 25-26 (1942). The power of Congress to
181
classify and conscript manpower for military service is "beyond
question." Lichter v. United States, supra, at 334 U. S. 756; Selective Draft
Law Cases, supra. Pursuant to this power, Congress may establish a system
of registration for individuals liable for training and service, and may require
such individuals, within reason, to cooperate in the registration system. The
issuance of certificates indicating the registration and eligibility classification
of individuals is a legitimate and substantial administrative aid in the
functioning of this system. And legislation chanroblesvirtualawlibrary
Page 391 U. S. 378
to insure the continuing availability of issued certificates serves a legitimate
and substantial purpose in the system's administration.
O'Brien's argument to the contrary is necessarily premised upon his
unrealistic characterization of Selective Service certificates. He essentially
adopts the position that such certificates are so many pieces of paper
designed to notify registrants of their registration or classification, to be
retained or tossed in the wastebasket according to the convenience or taste
of the registrant. Once the registrant has received notification, according to
this view, there is no reason for him to retain the certificates. O'Brien notes
that most of the information on a registration certificate serves no notification
purpose at all; the registrant hardly needs to be told his address and physical
characteristics. We agree that the registration certificate contains much
information of which the registrant needs no notification. This circumstance,
however, does not lead to the conclusion that the certificate serves no
purpose, but that, like the classification certificate, it serves purposes in
addition to initial notification. Many of these purposes would be defeated by
the certificates' destruction or mutilation. Among these are:
1. The registration certificate serves as proof that the individual described
thereon has registered for the draft. The classification certificate shows the
eligibility classification of a named but undescribed individual. Voluntarily
displaying the two certificates is an easy and painless way for a young man
to dispel a question as to whether he might be delinquent in his Selective
Service obligations. Correspondingly, the availability of the certificates for
such display relieves the Selective Service System of the administrative
burden it would otherwise have in verifying the registration and classification
of all suspected delinquents. Further, since both certificates are in the nature
of "receipts" attesting that the registrant chanroblesvirtualawlibrary
Page 391 U. S. 379
has done what the law requires, it is in the interest of the just and efficient
administration of the system that they be continually available, in the event,
for example, of a mix-up in the registrant's file. Additionally, in a time of
national crisis, reasonable availability to each registrant of the two small
cards assures a rapid and uncomplicated means for determining his fitness
for immediate induction, no matter how distant in our mobile society he may
be from his local board.
2. The information supplied on the certificates facilitates communication
between registrants and local boards, simplifying the system and benefiting
all concerned. To begin with, each certificate bears the address of the
registrant's local board, an item unlikely to be committed to memory. Further,
each card bears the registrant's Selective Service number, and a registrant
who has his number readily available so that he can communicate it to his
local board when he supplies or requests information can make simpler the
board's task in locating his file. Finally, a registrant's inquiry, particularly
through a local board other than his own, concerning his eligibility status is
frequently answerable simply on the basis of his classification certificate;
whereas, if the certificate were not reasonably available and the registrant
were uncertain of his classification, the task of answering his questions would
be considerably complicated.
3. Both certificates carry continual reminders that the registrant must notify
his local board of any change of address, and other specified changes in his
status. The smooth functioning of the system requires that local boards be
continually aware of the status and whereabouts of registrants, and the
destruction of certificates deprives the system of a potentially useful notice
device.
4. The regulatory scheme involving Selective Service certificates includes
clearly valid prohibitions against the alteration, forgery, or similar deceptive
misuse of certificates. chanroblesvirtualawlibrary
Page 391 U. S. 380
The destruction or mutilation of certificates obviously increases the difficulty
of detecting and tracing abuses such as these. Further, a mutilated certificate
might itself be used for deceptive purposes.
The many functions performed by Selective Service certificates establish
beyond doubt that Congress has a legitimate and substantial interest in
preventing their wanton and unrestrained destruction and assuring their
continuing availability by punishing people who knowingly and willfully
182
destroy or mutilate them. And we are unpersuaded that the preexistence of
the nonpossession regulations in any way negates this interest.
In the absence of a question as to multiple punishment, it has never been
suggested that there is anything improper in Congress' providing alternative
statutory avenues of prosecution to assure the effective protection of one and
the same interest. Compare the majority and dissenting opinions in Gore v.
United States, 357 U. S. 386 (1958). [Footnote 28] Here, the preexisting
avenue of prosecution was not even statutory. Regulations may be modified
or revoked from time to time by administrative discretion. Certainly, the
Congress may change or supplement a regulation.
Equally important, a comparison of the regulations with the 1965 Amendment
indicates that they protect overlapping but not identical governmental
interests, and that they reach somewhat different classes of wrongdoers.
[Footnote 29] The gravamen of the offense defined by the statute is the
deliberate rendering of certificates unavailable for the various purposes
which they may serve. Whether registrants keep their certificates in their
personal chanroblesvirtualawlibrary
Page 391 U. S. 381
possession at all times, as required by the regulations, is of no particular
concern under the 1965 Amendment, as long as they do not mutilate or
destroy the certificates so as to render them unavailable. Although as we
note below we are not concerned here with the nonpossession regulations, it
is not inappropriate to observe that the essential elements of nonpossession
are not identical with those of mutilation or destruction. Finally, the 1965
Amendment, like 12(b), which it amended, is concerned with abuses
involving any issued Selective Service certificates, not only with the
registrant's own certificates. The knowing destruction or mutilation of
someone else's certificates would therefore violate the statute, but not the
nonpossession regulations.
We think it apparent that the continuing availability to each registrant of his
Selective Service certificates substantially furthers the smooth and proper
functioning of the system that Congress has established to raise armies. We
think it also apparent that the Nation has a vital interest in having a system
for raising armies that functions with maximum efficiency and is capable of
easily and quickly responding to continually changing circumstances. For
these reasons, the Government has a substantial interest in assuring the
continuing availability of issued Selective Service certificates.
It is equally clear that the 1965 Amendment specifically protects this
substantial governmental interest. We perceive no alternative means that
would more precisely and narrowly assure the continuing availability of
issued Selective Service certificates than a law which prohibits their willful
mutilation or destruction. Compare Sherbert v. Verner, 374 U. S. 398,374 U.
S. 407-408 (1963), and the cases cited therein. The 1965 Amendment
prohibits such conduct and does nothing more. In other words, both the
governmental interest and the operation of the 1965 Amendment are limited
to the noncommunicative chanroblesvirtualawlibrary
Page 391 U. S. 382
aspect of O'Brien's conduct. The governmental interest and the scope of the
1965 Amendment are limited to preventing harm to the smooth and efficient
functioning of the Selective Service System. When O'Brien deliberately
rendered unavailable his registration certificate, he willfully frustrated this
governmental interest. For this noncommunicative impact of his conduct, and
for nothing else, he was convicted.
The case at bar is therefore unlike one where the alleged governmental
interest in regulating conduct arises in some measure because the
communication allegedly integral to the conduct is itself thought to be
harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this
Court struck down a statutory phrase which punished people who expressed
their "opposition to organized government" by displaying "any flag, badge,
banner, or device." Since the statute there was aimed at suppressing
communication it could not be sustained as a regulation of
noncommunicative conduct. See also NLRB v. Fruit & Vegetable Packers
Union, 377 U. S. 58, 377 U. S. 79 (1964) (concurring opinion).
In conclusion, we find that, because of the Government's substantial interest
in assuring the continuing availability of issued Selective Service certificates,
because amended 462(b) is an appropriately narrow means of protecting
this interest and condemns only the independent noncommunicative impact
of conduct within its reach, and because the noncommunicative impact of
O'Brien's act of burning his registration certificate frustrated the
Government's interest, a sufficient governmental interest has been shown to
justify O'Brien's conviction.
183
III
O'Brien finally argues that the 1965 Amendment is unconstitutional as
enacted because what he calls the "purpose" of Congress was "to suppress
freedom of chanroblesvirtualawlibrary
Page 391 U. S. 383
speech." We reject this argument because under settled principles the
purpose of Congress, as O'Brien uses that term, is not a basis for declaring
this legislation unconstitutional.
It is a familiar principle of constitutional law that this Court will not strike down
an otherwise constitutional statute on the basis of an alleged illicit legislative
motive. As the Court long ago stated:
"The decisions of this court from the beginning lend no support whatever to
the assumption that the judiciary may restrain the exercise of lawful power on
the assumption that a wrongful purpose or motive has caused the power to
be exerted."
McCray v. United States, 195 U. S. 27, 195 U. S. 56 (1904). This
fundamental principle of constitutional adjudication was reaffirmed and the
many cases were collected by Mr. Justice Brandeis for the Court in Arizona
v. California, 23 U. S. 423,23 U. S. 455 (1931).
Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature,
[Footnote 30] because the benefit to sound decisionmaking
in chanroblesvirtualawlibrary
Page 391 U. S. 384
this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void
a statute that is, under well settled criteria, constitutional on its face, on the
basis of what fewer than a handful of Congressmen said about it. What
motivates one legislator to make a speech about a statute is not necessarily
what motivates scores of others to enact it, and the stakes are sufficiently
high for us to eschew guesswork. We decline to void essentially on the
ground that it is unwise legislation which Congress had the undoubted power
to enact and which could be reenacted in its exact form if the same or
another legislator made a "wiser" speech about it.
O'Brien's position, and, to some extent, that of the court below, rest upon a
misunderstanding of Grosjean v. American Press Co., 297 U. S. 233 (1936),
and Gomillion v. Lightfoot, 364 U. S. 339 (1960). These cases stand not for
the proposition that legislative motive is a proper basis for declaring a statute
unconstitutional, but that the inevitable effect of a statute on its face may
render it unconstitutional. Thus, in Grosjean, the Court, having concluded
that the right of publications to be free from certain kinds of taxes was a
freedom of the press protected by the First Amendment, struck down a
statute which on its face did nothing other than
impose chanroblesvirtualawlibrary
Page 391 U. S. 385
just such a tax. Similarly, in Gomillion, the Court sustained a complaint which
if true, established that the "inevitable effect," 364 U.S. at 364 U. S. 341, of
the redrawing of municipal boundaries was to deprive the petitioners of their
right to vote for no reason other than that they were Negro. In these cases,
the purpose of the legislation was irrelevant, because the inevitable effect --
the "necessary scope and operation," McCray v. United States, 195 U. S.
27, 195 U. S. 59(1904) -- abridged constitutional rights. The statute attacked
in the instant case has no such inevitable unconstitutional effect, since the
destruction of Selective Service certificates is in no respect inevitably or
necessarily expressive. Accordingly, the statute itself is constitutional.
We think it not amiss, in passing, to comment upon O'Brien's legislative
purpose argument. There was little floor debate on this legislation in either
House. Only Senator Thurmond commented on its substantive features in
the Senate. 111 Cong.Rec.19746, 20433. After his brief statement, and
without any additional substantive comments, the bill, H.R. 10306, passed
the Senate. 111 Cong.Rec. 20434. In the House debate only two
Congressmen addressed themselves to the Amendment -- Congressmen
Rivers and Bray. 111 Cong.Rec.19871, 19872. The bill was passed after
their statements without any further debate by a vote of 393 to 1. It is
principally on the basis of the statements by these three Congressmen that
O'Brien makes his congressional "purpose" argument. We note that, if we
were to examine legislative purpose in the instant case, we would be obliged
to consider not only these statements, but also the more authoritative reports
of the Senate and House Armed Services Committees. The portions of those
reports explaining the purpose of the Amendment are reproduced in the 391
184
U. S. While both reports make clear a concern with the
"defiant" chanroblesvirtualawlibrary
Page 391 U. S. 386
destruction of so-called "draft cards" and with "open" encouragement to
others to destroy their cards, both reports also indicate that this concern
stemmed from an apprehension that unrestrained destruction of cards would
disrupt the smooth functioning of the Selective Service System.
IV
Since the 1965 Amendment to 12(b)(3) of the Universal Military Training
and Service Act is constitutional as enacted and as applied, the Court of
Appeals should have affirmed the judgment of conviction entered by the
District Court. Accordingly, we vacate the judgment of the Court of Appeals,
and reinstate the judgment and sentence of the District Court. This
disposition makes unnecessary consideration of O'Brien's claim that the
Court of Appeals erred in affirming hie conviction on the basis of the
nonpossession regulation. [Footnote 31]
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of
these cases.
|391 U.S. 367app|
APPENDIX TO OPINION OF THE COURT
PORTIONS OF THE REPORTS OF THE COMMITTEES ON
ARMED SERVICES OF THE SENATE AND HOUSE
EXPLAINING THE 1965 AMENDMENT
The "Explanation of the Bill" in the Senate Report is as follows:
"Section 12(b)(3) of the Universal Military Training and Service Act of 1951,
as amended, provides, among other things, that a person who forges, alters,
or changes
Page 391 U. S. 387
a draft registration certificate is subject to a fine of not more than $10,000 or
imprisonment of not more than 5 years, or both. There is no explicit
prohibition in this section against the knowing destruction or mutilation of
such cards."
"The committee has taken notice of the defiant destruction and mutilation of
draft cards by dissident persons who disapprove of national policy. If allowed
to continue unchecked, this contumacious conduct represents a potential
threat to the exercise of the power to raise and support armies."
"For a person to be subject to fine or imprisonment, the destruction or
mutilation of the draft card must be 'knowingly' done. This qualification is
intended to protect persons who lose or mutilate draft cards accidentally."
S.Rep. No. 589, 89th Cong., 1st Sess. (1965). And the House Report
explained:
"Section 12(b)(3) of the Universal Military Training and Service Act of 1951,
as amended, provides that a person who forges, alters, or in any manner
changes his draft registration card, or any notation duly and validly inscribed
thereon, will be subject to a fine of $10,000 or imprisonment of not more than
5 years. H.R. 10306 would amend this provision to make it apply also to
those persons who knowingly destroy or knowingly mutilate a draft
registration card."
"The House Committee on Armed Services is fully aware of, and shares in,
the deep concern expressed throughout the Nation over the increasing
incidences in which individuals and large groups of individuals openly defy
and encourage others to defy the authority of their Government by destroying
or mutilating their draft cards."
"While the present provisions of the Criminal Code with respect to the
destruction of Government property
Page 391 U. S. 388
may appear broad enough to cover all acts having to do with the
mistreatment of draft cards in the possession of individuals, the committee
feels that, in the present critical situation of the country, the acts of destroying
or mutilating these cards are offenses which pose such a grave threat to the
185
security of the Nation that no question whatsoever should be left as to the Hearing and Adjudication Committee of the
intention of the Congress that such wanton and irresponsible acts should be MTRCB, JESSIE L. GALAPON, ANABEL M.
punished." DELA CRUZ, MANUEL M. HERNANDEZ,
JOSE L. LOPEZ, CRISANTO SORIANO,
"To this end, H.R. 10306 makes specific that knowingly mutilating or BERNABE S. YARIA, JR., MICHAEL M.
knowingly destroying a draft card constitutes a violation of the Universal SANDOVAL, and ROLDAN A. GAVINO,
Military Training and Service Act and is punishable thereunder, and that a in their capacity as complainants before
person who does so destroy or mutilate a draft card will be subject to a fine the MTRCB,
of not more than $10,000 or imprisonment of not more than 5 years." Respondents.

H.R.Rep. No. 747, 89th Cong., 1st Sess. (1965).

Promulgated:
ELISEO F. SORIANO, G.R. No. 164785
Petitioner, April 29, 2009
Present:
- versus - x-----------------------------------------------------------------------------------------x
PUNO, C.J.,
MA. CONSOLIZA P. LAGUARDIA, in her QUISUMBING, DECISION
capacity as Chairperson of the Movie and YNARES-SANTIAGO, VELASCO, JR., J.:
Television Review and Classification Board, CARPIO,
MOVIE AND TELEVISION REVIEW AND AUSTRIA-MARTINEZ,
CLASSIFICATION BOARD, JESSIE L. CORONA,
In these two petitions for certiorari and prohibition under Rule 65,
GALAPON, ANABEL M. DELA CRUZ, CARPIO MORALES,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, TINGA, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a
CRISANTO SORIANO, BERNABE S. YARIA, CHICO-NAZARIO,
JR., MICHAEL M. SANDOVAL, and ROLDAN VELASCO, JR., decision of the Movie and Television Review and Classification Board
A. GAVINO, NACHURA, (MTRCB) in connection with certain utterances he made in his television
Respondents. LEONARDO-DE CASTRO,
x-------------------------------------------x BRION, show, Ang Dating Daan.
ELISEO F. SORIANO, PERALTA, and
Petitioner, BERSAMIN, JJ.
Facts of the Case
- versus -
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the
MOVIE AND TELEVISION REVIEW AND G.R. No. 165636 program Ang Dating Daan, aired on UNTV 37, made the following remarks:
CLASSIFICATION BOARD, ZOSIMO G.
ALEGRE, JACKIE AQUINO-GAVINO,NOEL R. Lehitimong anak ng demonyo; sinungaling;
DEL PRADO, EMMANUEL BORLAZA, JOSE
E. ROMERO IV, and FLORIMONDO C. Gago ka talaga Michael, masahol ka pa sa putang babae o
ROUS, in their capacity as members of the di ba. Yung putang babae ang gumagana lang doon yung

186
 ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko certiorari and prohibition,[8] docketed as G.R. No. 164785, to nullify the
masahol pa sa putang babae yan. Sobra ang preventive suspension order thus issued.
kasinungalingan ng mga demonyong ito.[1] x x x

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB

Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other
private respondents, all members of the Iglesia ni Cristo (INC), [2] against
petitioner in connection with the above broadcast. Respondent Michael M.
Sandoval, who felt directly alluded to in petitioners remark, was then a
minister of INC and a regular host of the TV program Ang Tamang
Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on
August 16, 2004 in relation to the alleged use of some cuss words in the
August 10, 2004 episode of Ang Dating Daan.[4]
issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a
Decision is hereby rendered, finding respondent Soriano
liable for his utterances and thereby imposing on him a
penalty of three (3) months suspension from his program,
Ang Dating Daan.
Co-respondents Joselito Mallari, Luzviminda Cruz
and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.
SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with
After a preliminary conference in which petitioner appeared, the
prayer for injunctive relief, docketed as G.R. No. 165636.
MTRCB, by Order of August 16, 2004, preventively suspended the showing
of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of
In a Resolution dated April 4, 2005, the Court consolidated G.R. No.
Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec.
164785 with G.R. No. 165636.
3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD
1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.[5] The same
order also set the case for preliminary investigation. In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION

PROMULGATED BY RESPONDENT [MTRCB] DATED 16
The following day, petitioner sought reconsideration of the preventive
AUGUST 2004 AGAINST THE TELEVISION
suspension order, praying that Chairperson Consoliza P. Laguardia and two PROGRAM ANG DATING DAAN x x x IS NULL AND
VOID FOR BEING ISSUED WITH GRAVE ABUSE OF
other members of the adjudication board recuse themselves from hearing the DISCRETION AMOUNTING TO LACK OR EXCESS OF
case.[6] Two days after, however, petitioner sought to withdraw[7] his motion JURISDICTION

for reconsideration, followed by the filing with this Court of a petition for (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR
AS IT PROVIDES FOR THE ISSUANCE OF
PREVENTIVE SUSPENSION ORDERS;
187
(B) BY REASON OF LACK OF DUE HEARING IN THE THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
CASE AT BENCH; AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE
UNDER THE LAW; AT BENCH; AND
(D) FOR BEING VIOLATIVE OF FREEDOM OF
RELIGION; AND III
(E) FOR BEING VIOLATIVE OF FREEDOM OF
SPEECH AND EXPRESSION.[10] [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT
PROVIDE FOR A SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON
In G.R. No. 165636, petitioner relies on the following grounds: THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR
VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY,
SECTION 3(C) OF [PD] 1986, IS THE [IRR], RULES OF PROCEDURE, AND OFFICIAL
PATENTLY UNCONSTITUTIONAL AND ENACTED ACTS OF THE MTRCB PURSUANT THERETO, I.E.
WITHOUT OR IN EXCESS OF JURISDICTION x x x DECISION DATED 27 SEPTEMBER 2004 AND ORDER
CONSIDERING THAT: DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE
I AT BENCH[11]

SECTION 3(C) OF [PD] 1986, AS APPLIED TO

PETITIONER, UNDULY INFRINGES ON THE G.R. No. 164785
CONSTITUTIONAL GUARANTEE OF FREEDOM OF
RELIGION, SPEECH, AND EXPRESSION AS IT
PARTAKES OF THE NATURE OF A SUBSEQUENT We shall first dispose of the issues in G.R. No. 164785, regarding
PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND the assailed order of preventive suspension, although its implementability
REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL had already been overtaken and veritably been rendered moot by the equally
ACTS OF THE MTRCB PURSUANT THERETO, I.E.
DECISION DATED 27 SEPTEMBER 2004 AND ORDER assailed September 27, 2004 decision.
DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE
AT BENCH; It is petitioners threshold posture that the preventive suspension
imposed against him and the relevant IRR provision authorizing it are invalid
inasmuch as PD 1986 does not expressly authorize the MTRCB to issue
II
preventive suspension.
SECTION 3(C) OF [PD] 1986, AS APPLIED TO
PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF Petitioners contention is untenable.
LAW AND EQUAL PROTECTION UNDER THE LAW;
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT
188

Administrative agencies have powers and functions which may be
administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or
a mix of the five, as may be conferred by the Constitution or by
statute.[12] They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law.[13] And in determining whether an
agency has certain powers, the inquiry should be from the law itself. But
once ascertained as existing, the authority given should be liberally
construed.[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals the
possession by the agency of the authority, albeit impliedly, to issue the
challenged order of preventive suspension. And this authority stems naturally
from, and is necessary for the exercise of, its power of regulation and
supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall have the
following functions, powers and duties:
xxxx
c) To approve or disapprove, delete objectionable portions
from and/or prohibit the x x x production, x x x exhibition
and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding
paragraph, which, in the judgment of the board applying
contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of
wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good
name and reputation of any person, whether living or
dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel,
permits for the x x x production, copying, distribution, sale,
lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the
end that no such pictures, programs and materials as
are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x
produced, copied, reproduced, distributed, sold,
leased, exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as may be
necessary or incidental to the attainment of the purposes
and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the
scope of the MTRCBs authority and functions expressly set forth in PD 1986,
more particularly under its Sec. 3(d), as quoted above, which empowers the
MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x
x exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs
and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or
broadcast by television.
Surely, the power to issue preventive suspension forms part of the
MTRCBs express regulatory and supervisory statutory mandate and its
investigatory and disciplinary authority subsumed in or implied from such
189
mandate. Any other construal would render its power to regulate, supervise,
or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself,
being merely a preliminary step in an administrative investigation. [15] And the
power to discipline and impose penalties, if granted, carries with it the power
to investigate administrative complaints and, during such investigation, to
preventively suspend the person subject of the complaint.[16]
To reiterate, preventive suspension authority of the MTRCB springs
from its powers conferred under PD 1986. The MTRCB did not, as petitioner
insinuates, empower itself to impose preventive suspension through the
medium of the IRR of PD 1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR of PD 1986. Sec. 3,
Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any
time during the pendency of the case, and in order to
prevent or stop further violations or for the interest and
welfare of the public, the Chairman of the Board may issue a
Preventive Suspension Order mandating the preventive x x x
suspension of the permit/permits involved, and/or closure of
the x x x television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall have a
life of not more than twenty (20) days from the date of
issuance.
But the mere absence of a provision on preventive suspension in PD
1986, without more, would not work to deprive the MTRCB a basic
disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise television
programs to obviate the exhibition or broadcast of, among others, indecent or
immoral materials and to impose sanctions for violations and, corollarily, to
prevent further violations as it investigates. Contrary to petitioners assertion,
the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended
the effect of the law. Neither did the MTRCB, by imposing the assailed
preventive suspension, outrun its authority under the law. Far from it. The
preventive suspension was actually done in furtherance of the law, imposed
pursuant, to repeat, to the MTRCBs duty of regulating or supervising
television programs, pending a determination of whether or not there has
actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the
2004 IRR merely formalized a power which PD 1986 bestowed, albeit
impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case,
sufficient to authorize the MTRCBs assailed action. Petitioners restrictive
reading of PD 1986, limiting the MTRCB to functions within the literal
confines of the law, would give the agency little leeway to operate, stifling
and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant
the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate,
provides, To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x
x. Indeed, the power to impose preventive suspension is one of the implied
powers of MTRCB. As distinguished from express powers, implied powers
are those that can be inferred or are implicit in the wordings or conferred by
necessary or fair implication of the enabling act. [17] As we held in Angara v.
Electoral Commission, when a general grant of power is conferred or a duty
enjoined, every particular power necessary for the exercise of one or the
performance of the other is also conferred by necessary
190
implication.[18] Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR
provision on preventive suspension is applicable only to motion pictures and
publicity materials. The scope of the MTRCBs authority extends beyond
motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a
television network, the suspension of a television program is a far less
punitive measure that can be undertaken, with the purpose of stopping
further violations of PD 1986. Again, the MTRCB would regretfully be
rendered ineffective should it be subject to the restrictions petitioner
envisages.
Just as untenable is petitioners argument on the nullity of the
preventive suspension order on the ground of lack of hearing. As it were, the
MTRCB handed out the assailed order after petitioner, in response to a
written notice, appeared before that Board for a hearing on private
respondents complaint. No less than petitioner admitted that the order was
issued after the adjournment of the hearing,[19] proving that he had already
appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD
1986, preventive suspension shall issue [a]ny time during the pendency of
the case. In this particular case, it was done after MTRCB duly apprised
petitioner of his having possibly violated PD 1986[20] and of administrative
complaints that had been filed against him for such violation.[21]
At any event, that preventive suspension can validly be meted out
even without a hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the
equal protection of the law, arguing that, owing to the preventive suspension
order, he was unable to answer the criticisms coming from the INC ministers.
Petitioners position does not persuade. The equal protection clause
demands that all persons subject to legislation should be treated alike, under
like circumstances and conditions both in the privileges conferred and
liabilities imposed.[23] It guards against undue favor and individual privilege as
well as hostile discrimination.[24] Surely, petitioner cannot, under the
premises, place himself in the same shoes as the INC ministers, who, for
one, are not facing administrative complaints before the MTRCB. For
another, he offers no proof that the said ministers, in their TV programs, use
language similar to that which he used in his own, necessitating the MTRCBs
disciplinary action. If the immediate result of the preventive suspension order
is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection
guarantee. The Court need not belabor the fact that the circumstances of
petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers,
as hosts of Ang Tamang Daan, on the other, are, within the purview of this
case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that
what he uttered was religious speech, adding that words like putang
babae were said in exercise of his religious freedom.
The argument has no merit.
191
 The Court is at a loss to understand how petitioners utterances in
question can come within the pale of Sec. 5, Article III of the 1987
Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment
of a religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise
of civil or political rights.
There is nothing in petitioners statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a
televised bible exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults directed at
another person cannot be elevated to the status of religious speech. Even
petitioners attempts to place his words in context show that he was moved by
anger and the need to seek retribution, not by any religious conviction. His
claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daanowed to a TV station does
not convert the foul language used in retaliation as religious speech. We
cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation
of the alleged lies being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of name-calling and foul-
language discourse. Petitioner could have chosen to contradict and disprove
his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court
nullify the 20-day preventive suspension order, being, as insisted, an
unconstitutional abridgement of the freedom of speech and expression and
an impermissible prior restraint. The main issue tendered respecting the
adverted violation and the arguments holding such issue dovetails with those
challenging the three-month suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of review under G.R. No.
165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him
from hosting Ang Dating Daan for three months on the main ground that the
decision violates, apart from his religious freedom, his freedom of speech
and expression guaranteed under Sec. 4, Art. III of the Constitution, which
reads:
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government
for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in
particular, unconstitutional for reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we
restate certain general concepts and principles underlying the freedom of
speech and expression.
192
 It is settled that expressions by means of newspapers, radio,
television, and motion pictures come within the broad protection of the free
speech and expression clause.[25]Each method though, because of its
dissimilar presence in the lives of people and accessibility to children, tends
to present its own problems in the area of free speech protection,
with broadcast media, of all forms of communication, enjoying a lesser
degree of protection.[26] Just as settled is the rule that restrictions, be it in the
form of prior restraint, e.g., judicial injunction against publication or threat of
cancellation of license/franchise, or subsequent liability, whether in libel and
damage suits, prosecution for sedition, or contempt proceedings, are
anathema to the freedom of expression. Prior restraint means official
government restrictions on the press or other forms of expression in advance
of actual publication or dissemination.[27] The freedom of expression, as with
the other freedoms encased in the Bill of Rights, is, however, not absolute. It
may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the
freedom of expression are reached when the expression touches upon
matters of essentially private concern.[28] In the oft-quoted expression of
Justice Holmes, the constitutional guarantee obviously was not intended to
give immunity for every possible use of language.[29] From Lucas v.
Royo comes this line: [T]he freedom to express ones sentiments and belief
does not grant one the license to vilify in public the honor and integrity of
another. Any sentiments must be expressed within the proper forum and with
proper regard for the rights of others.[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there
are certain well-defined and narrowly limited classes of speech that are
harmful, the prevention and punishment of which has never been thought to
raise any Constitutional problems. In net effect, some forms of speech are
not protected by the Constitution, meaning that restrictions on unprotected
speech may be decreed without running afoul of the freedom of speech
clause.[32] A speech would fall under the unprotected type if the utterances
involved are no essential part of any exposition of ideas, and are of such
slight social value as a step of truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality.[33] Being of little or no value, there is, in dealing with or regulating
them, no imperative call for the application of the clear and present danger
rule or the balancing-of-interest test, they being essentially modes of
weighing competing values,[34] or, with like effect, determining which of the
clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of
speech.
The Court rules otherwise. It has been established in this jurisdiction
that unprotected speech or low-value expression refers to libelous
statements, obscenity or pornography, false or misleading advertisement,
insulting or fighting words, i.e., those which by their very utterance inflict
injury or tend to incite an immediate breach of peace and expression
endangering national security.
The Court finds that petitioners statement can be treated as
obscene, at least with respect to the average child. Hence, it is, in that
context, unprotected speech. In Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a definition of obscenity that would apply
to all cases, but nonetheless stated the ensuing observations on the matter:
193

There is no perfect definition of obscenity but the
latest word is that of Miller v. California which established
basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken
as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the
trier of facts has the unbridled discretion in determining what
is patently offensive. x x x What remains clear is that
obscenity is an issue proper for judicial determination and
should be treated on a case to case basis and on the judges
sound discretion.[35]
Following the contextual lessons of the cited case of Miller v.
California,[36] a patently offensive utterance would come within the pale of the
term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.
A cursory examination of the utterances complained of and the
circumstances of the case reveal that to an average adult, the
utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! may not constitute obscene but merely
indecent utterances. They can be viewed as figures of speech or merely a
play on words. In the context they were used, they may not appeal to the
prurient interests of an adult. The problem with the challenged statements is
that they were uttered in a TV program that is rated G or for general
viewership, and in a time slot that would likely reach even the eyes and ears
of children.
While adults may have understood that the terms thus used were not
to be taken literally, children could hardly be expected to have the same
discernment. Without parental guidance, the unbridled use of such language
as that of petitioner in a television broadcast could corrupt impressionable
young minds. The term putang babae means a female prostitute, a term
wholly inappropriate for children, who could look it up in a dictionary and just
get the literal meaning, missing the context within which it was
used. Petitioner further used the terms, ang gumagana lang doon yung
ibaba, making reference to the female sexual organ and how a female
prostitute uses it in her trade, then stating that Sandoval was worse than that
by using his mouth in a similar manner. Children could be motivated by
curiosity and ask the meaning of what petitioner said, also without placing the
phrase in context. They may be inquisitive as to why Sandoval is different
from a female prostitute and the reasons for the dissimilarity. And upon
learning the meanings of the words used, young minds, without the guidance
of an adult, may, from their end, view this kind of indecent speech as
obscene, if they take these words literally and use them in their own speech
or form their own ideas on the matter. In this particular case, where children
had the opportunity to hear petitioners words, when speaking of the average
person in the test for obscenity, we are speaking of the average child, not the
average adult. The average child may not have the adults grasp of figures of
speech, and may lack the understanding that language may be colorful, and
words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such.
In this sense, we find petitioners utterances obscene and not entitled to
protection under the umbrella of freedom of speech.
194
Even if we concede that petitioners remarks are not obscene but merely an afternoon radio broadcast when children were undoubtedly in the
indecent speech, still the Court rules that petitioner cannot avail himself of audience. Acting on the question of whether the FCC could regulate the
the constitutional protection of free speech. Said statements were made in a subject utterance, the US Supreme Court ruled in the affirmative, owing to
medium easily accessible to children. With respect to the young minds, said two special features of the broadcast medium, to wit: (1) radio is a pervasive
utterances are to be treated as unprotected speech. medium and (2) broadcasting is uniquely accessible to children. The US
Court, however, hastened to add that the monologue would be protected
No doubt what petitioner said constitutes indecent or offensive speech in other contexts, albeit it did not expound and identify a compelling
utterances. But while a jurisprudential pattern involving certain offensive state interest in putting FCCs content-based regulatory action under scrutiny.
utterances conveyed in different mediums has emerged, this case is veritably
one of first impression, it being the first time that indecent speech The Court in Chavez[41] elucidated on the distinction between regulation or
communicated via television and the applicable norm for its regulation are, in restriction of protected speech that is content-based and that which is
this jurisdiction, made the focal point. Federal Communications content-neutral. A content-based restraint is aimed at the contents or idea of
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark the expression, whereas a content-neutral restraint intends to regulate the
case cited inEastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. time, place, and manner of the expression under well-defined standards
Gonzales,[39] is a rich source of persuasive lessons. Foremost of these tailored to serve a compelling state interest, without restraint on the message
relates to indecent speech without prurient appeal component coming under of the expression. Courts subject content-based restraint to strict scrutiny.
the category of protected speech depending on the context within which it
was made, irresistibly suggesting that, within a particular context, such With the view we take of the case, the suspension MTRCB imposed under
indecent speech may validly be categorized as unprotected, ergo, the premises was, in one perspective, permissible restriction. We make this
susceptible to restriction. disposition against the backdrop of the following interplaying factors: First,
the indecent speech was made via television, a pervasive medium that, to
In FCC, seven of what were considered filthy words[40] earlier recorded in a borrow from Gonzales v. Kalaw Katigbak,[42]easily reaches every home
monologue by a satiric humorist later aired in the afternoon over a radio where there is a set [and where] [c]hildren will likely be among the avid
station owned by Pacifica Foundation. Upon the complaint of a man who viewers of the programs therein shown; second, the broadcast was aired at
heard the pre-recorded monologue while driving with his son, FCC declared the time of the day when there was a reasonable risk that children might be
the language used as patently offensive and indecentunder a prohibiting in the audience; and third, petitioner uttered his speech on a G or for general
law, though not necessarily obscene. FCC added, however, that its patronage rated program.Under Sec. 2(A) of Chapter IV of the IRR of the
declaratory order was issued in a special factual context, referring, in gist, to MTRCB, a show for general patronage is [s]uitable for all ages, meaning that

195
the material for television x x x in the judgment of the BOARD, does not
contain anything unsuitable for children and minors, and may be viewed
without adult guidance or supervision. The words petitioner used were, by
any civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioners utterances on a general-patronage
rated TV program, it may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to
pornography,[43] false or misleading advertisement,[44] advocacy of imminent
lawless action, and expression endangering national security. But this list is
not, as some members of the Court would submit, exclusive or carved in
stone. Without going into specifics, it may be stated without fear of
contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the
rule against censorship in the past, this particular case constitutes yet
another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech,
petitioners utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since
1978, petitioner asserts that his utterances must present a clear and present
danger of bringing about a substantive evil the State has a right and duty to
prevent and such danger must be grave and imminent.[45]
Petitioners invocation of the clear and present danger doctrine, arguably the
most permissive of speech tests, would not avail him any relief, for the
application of said test is uncalled for under the premises. The doctrine, first
formulated by Justice Holmes, accords protection for utterances so that the
printed or spoken words may not be subject to prior restraint or subsequent
punishment unless its expression creates a clear and present danger of
bringing about a substantial evil which the government has the power to
prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible
of restriction when and only when necessary to prevent grave and immediate
danger to interests which the government may lawfully protect. As it were,
said doctrine evolved in the context of prosecutions for rebellion and other
crimes involving the overthrow of government.[47] It was originally designed to
determine the latitude which should be given to speech that espouses anti-
government action, or to have serious and substantial deleterious
consequences on the security and public order of the community.[48] The
clear and present danger rule has been applied to this jurisdiction. [49] As a
standard of limitation on free speech and press, however, the clear and
present danger test is not a magic incantation that wipes out all problems
and does away with analysis and judgment in the testing of the legitimacy of
claims to free speech and which compels a court to release a defendant from
liability the moment the doctrine is invoked, absent proof of imminent
catastrophic disaster.[50] As we observed in Eastern Broadcasting
Corporation, the clear and present danger test does not lend itself to a
simplistic and all embracing interpretation applicable to all utterances in all
forums.[51]
To be sure, the clear and present danger doctrine is not the only test which
has been applied by the courts. Generally, said doctrine is applied to cases
involving the overthrow of the government and even other evils which do not
clearly undermine national security. Since not all evils can be measured in
terms of proximity and degree the Court, however, in several casesAyer
Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied the
196

balancing of interests test. Former Chief Justice Fred Ruiz Castro,
in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the
legislation under constitutional attack interferes with the freedom of speech
and assembly in a more generalized way and where the effect of the speech
and assembly in terms of the probability of realization of a specific danger is
not susceptible even of impressionistic calculation,[54] then the balancing of
interests test can be applied.
The Court explained also in Gonzales v. COMELEC the balancing of
interests test:
When particular conduct is regulated in the interest of
public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the
courts is to determine which of the two conflicting
interests demands the greater protection under the
particular circumstances presented. x x x We must,
therefore, undertake the delicate and difficult task x x x
to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the
regulation of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing
of the conflicting social values and individual interests
competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what
has been called the balancing-of-interests test which has
found application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the balancing test
requires a court to take conscious and detailed
consideration of the interplay of interests observable in a
given situation or type of situation.
xxxx
Although the urgency of the public interest sought to be
secured by Congressional power restricting the
individuals freedom, and the social importance and value
of the freedom so restricted, are to be judged in the
concrete, not on the basis of abstractions, a wide range
of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the
social value and importance of the specific aspect of the
particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the
restriction is direct or indirect, whether or not the persons
affected are few; (c) the value and importance of the
public interest sought to be secured by the legislationthe
reference here is to the nature and gravity of the evil
which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably
appropriate and necessary for the protection of such
public interest; and (e) whether the necessary
safeguarding of the public interest involved may be
achieved by some other measure less restrictive of the
protected freedom.[55]
This balancing of interest test, to borrow from Professor Kauper, [56] rests on
the theory that it is the courts function in a case before it when it finds public
interests served by legislation, on the one hand, and the free expression
clause affected by it, on the other, to balance one against the other and
arrive at a judgment where the greater weight shall be placed. If, on balance,
it appears that the public interest served by restrictive legislation is of such
nature that it outweighs the abridgment of freedom, then the court will find
the legislation valid. In short, the balance-of-interests theory rests on the
basis that constitutional freedoms are not absolute, not even those stated in
the free speech and expression clause, and that they may be abridged to
some extent to serve appropriate and important interests.[57] To the mind of
the Court, the balancing of interest doctrine is the more appropriate test to
follow.
In the case at bar, petitioner used indecent and obscene language and a
three (3)-month suspension was slapped on him for breach of MTRCB
rules. In this setting, the assertion by petitioner of his enjoyment of his
197
freedom of speech is ranged against the duty of the government to protect
and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by
petitioner in support of his claim to free speech, the Court rules that the
governments interest to protect and promote the interests and welfare of the
children adequately buttresses the reasonable curtailment and valid restraint
on petitioners prayer to continue as program host of Ang Dating Daan during
the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of
a State is the freedom of speech or expression, for without the enjoyment of
such right, a free, stable, effective, and progressive democratic state would
be difficult to attain. Arrayed against the freedom of speech is the right of the
youth to their moral, spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover, the State is also
mandated to recognize and support the vital role of the youth in nation
building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and
responsibility on the State to provide protection to the youth against illegal or
improper activities which may prejudice their general well-being. The Article
on youth, approved on second reading by the Constitutional Commission,
explained that the State shall extend social protection to minors against all
forms of neglect, cruelty, exploitation, immorality, and practices which may
foster racial, religious or other forms of discrimination.[58]
Indisputably, the State has a compelling interest in extending social
protection to minors against all forms of neglect, exploitation, and immorality
which may pollute innocent minds. It has a compelling interest in helping
parents, through regulatory mechanisms, protect their childrens minds from
exposure to undesirable materials and corrupting experiences. The
Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social
well-being of the youth to better prepare them fulfill their role in the field of
nation-building.[59] In the same way, the State is mandated to support parents
in the rearing of the youth for civic efficiency and the development of moral
character.[60]
Petitioners offensive and obscene language uttered in a television broadcast,
without doubt, was easily accessible to the children. His statements could
have exposed children to a language that is unacceptable in everyday
use. As such, the welfare of children and the States mandate to protect and
care for them, as parens patriae,[61] constitute a substantial and compelling
government interest in regulating petitioners utterances in TV broadcast as
provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect
the children who, because of age or interest capacity, are susceptible of
being corrupted or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those
too young to read. Although Cohens written message, [Fuck
the Draft], might have been incomprehensible to a first
grader, Pacificas broadcast could have enlarged a childs
vocabulary in an instant. Other forms of offensive expression
may be withheld from the young without restricting the
expression at its source.Bookstores and motion picture
198
 theaters, for example, may be prohibited from making
indecent material available to children. We held in Ginsberg
v. New York that the governments interest in the well-being
of its youth and in supporting parents claim to authority in
their own household justified the regulation of otherwise
protected expression. The ease with which children may
obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special
treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the
State to attend to the welfare of the young:
x x x It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This
is so because unlike motion pictures where the patrons have
to pay their way, television reaches every home where there
is a set. Children then will likely will be among the avid
viewers of the programs therein shown. As was observed by
Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the
adult population. It cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.[62]
The compelling need to protect the young impels us to sustain the regulatory
action MTRCB took in the narrow confines of the case. To
reiterate, FCC justified the restraint on the TV broadcast grounded on the
following considerations: (1) the use of television with its unique accessibility
to children, as a medium of broadcast of a patently offensive speech; (2) the
time of broadcast; and (3) the G rating of the Ang Dating Daan program. And
in agreeing with MTRCB, the court takes stock of and cites with approval the
following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the
narrowness of our holding. This case does not involve a two-
way radio conversation between a cab driver and a
dispatcher, or a telecast of an Elizabethan comedy. We have
not decided that an occasional expletive in either setting
would justify any sanction. x x x The [FFCs] decision rested
entirely on a nuisance rationale under which context is all
important. The concept requires consideration of a host of
variables. The time of day was emphasized by the [FFC].
The content of the program in which the language is used
will affect the composition of the audience x x x. As Mr.
Justice Sutherland wrote a nuisance may be merely a right
thing in the wrong place, like a pig in the parlor instead of the
barnyard.We simply hold that when the [FCC] finds that a pig
has entered the parlor, the exercise of its regulatory power
does not depend on proof that the pig is obscene. (Citation
omitted.)
There can be no quibbling that the remarks in question petitioner uttered on
prime-time television are blatantly indecent if not outright obscene. It is the
kind of speech that PD 1986 proscribes necessitating the exercise by
MTRCB of statutory disciplinary powers. It is the kind of speech that the
State has the inherent prerogative, nay duty, to regulate and prevent should
such action served and further compelling state interests. One who utters
indecent, insulting, or offensive words on television when unsuspecting
children are in the audience is, in the graphic language of FCC, a pig in the
parlor. Public interest would be served if the pig is reasonably restrained or
even removed from the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior
restraint.
Petitioner theorizes that the three (3)-month suspension is either prior
restraint or subsequent punishment that, however, includes prior restraint,
albeit indirectly.
199

After a review of the facts, the Court finds that what MTRCB imposed on
petitioner is an administrative sanction or subsequent punishment for his
offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal
and presumed unconstitutional breaches of the freedom of speech. The
exceptions to prior restraint are movies, television, and radio broadcast
censorship in view of its access to numerous people, including the young
who must be insulated from the prejudicial effects of unprotected speech. PD
1986 was passed creating the Board of Review for Motion Pictures and
Television (now MTRCB) and which requires prior permit or license before
showing a motion picture or broadcasting a TV program. The Board can
classify movies and television programs and can cancel permits for exhibition
of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on
radio and television shows, even religious programs, was upheld in Iglesia Ni
Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno,
the Court wrote:
We thus reject petitioners postulate that its religious program
is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches
even the eyes and ears of children. The Court iterates the
rule that the exercise of religious freedom can be regulated
by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty
bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public
welfare. x x x
xxxx
While the thesis has a lot to commend itself, we are not
ready to hold that [PD 1986] is unconstitutional for Congress
to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision
subject to review by our courts. As far back as 1921, we
upheld this setup in Sotto vs. Ruiz, viz:
The use of the mails by private persons is in
the nature of a privilege which can be regulated in
order to avoid its abuse. Persons possess no
absolute right to put into the mail anything they
please, regardless of its character.[63]
Bernas adds:
Under the decree a movie classification board is
made the arbiter of what movies and television programs or
parts of either are fit for public consumption. It decides what
movies are immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of
the Philippines or its people, and what tend to incite
subversion, insurrection, rebellion or sedition, or tend to
undermine the faith and confidence of the people in their
government and/or duly constituted authorities,
etc. Moreover, its decisions are executory unless stopped by
a court.[64]
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held
that the power of review and prior approval of MTRCB extends to all
television programs and is valid despite the freedom of speech guaranteed
by the Constitution. Thus, all broadcast networks are regulated by the
MTRCB since they are required to get a permit before they air their television
programs. Consequently, their right to enjoy their freedom of speech is
subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
200
government regulations through the MTRCB became a necessary evil with
the government taking the role of assigning bandwidth to individual
broadcasters. The stations explicitly agreed to this regulatory scheme;
otherwise, chaos would result in the television broadcast industry as
competing broadcasters will interfere or co-opt each others signals. In this
scheme, station owners and broadcasters in effect waived their right to the
full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior
restraintdenial of permit or subsequent punishment, like suspension or
cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the
right of petitioner to continue with the broadcast of Ang Dating Daan as a
permit was already issued to him by MTRCB for such broadcast. Rather, the
suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on
the evening of August 10, 2004 in his television program, Ang Dating Daan. It
is a sanction that the MTRCB may validly impose under its charter without
running afoul of the free speech clause. And the imposition is separate and
distinct from the criminal action the Board may take pursuant to Sec. 3(i) of
PD 1986 and the remedies that may be availed of by the aggrieved private
party under the provisions on libel or tort, if applicable. As FCC teaches, the
imposition of sanctions on broadcasters who indulge in profane or indecent
broadcasting does not constitute forbidden censorship. Lest it be overlooked,
the sanction imposed is not per se for petitioners exercise of his freedom of
speech via television, but for the indecent contents of his utterances in a G
rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full
enjoyment of his freedom of speech to regulation under PD 1986 and its IRR
as television station owners, program producers, and hosts have impliedly
accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the
period of suspension be plausibly treated as prior restraint on future
speech. For viewed in its proper perspective, the suspension is in the nature
of an intermediate penalty for uttering an unprotected form of speech. It is
definitely a lesser punishment than the permissible cancellation of exhibition
or broadcast permit or license. In fine, the suspension meted was simply part
of the duties of the MTRCB in the enforcement and administration of the law
which it is tasked to implement. Viewed in its proper context, the suspension
sought to penalize past speech made on prime-time G rated TV program; it
does not bar future speech of petitioner in other television programs; it is a
permissible subsequent administrative sanction; it should not be confused
with a prior restraint on speech. While not on all fours, the Court,
in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast
company for exhibiting/airing a pre-taped TV episode without Board
authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the
limits of its authority were it to regulate and even restrain the prime-time
television broadcast of indecent or obscene speech in a G rated program is
not acceptable. As made clear in Eastern Broadcasting Corporation, the
freedom of television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspaper and print media. The MTRCB, as a
regulatory agency, must have the wherewithal to enforce its mandate, which
would not be effective if its punitive actions would be limited to mere
201
fines. Television broadcasts should be subject to some form of regulation,
considering the ease with which they can be accessed, and violations of the
regulations must be met with appropriate and proportional disciplinary
action. The suspension of a violating television program would be a sufficient
punishment and serve as a deterrent for those responsible. The prevention of
the broadcast of petitioners television program is justified, and does not
constitute prohibited prior restraint. It behooves the Court to respond to the
needs of the changing times, and craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as
unconstitutional the very law creating the MTRCB, arguing that PD 1986, as
applied to him, infringes also upon his freedom of religion. The Court has
earlier adequately explained why petitioners undue reliance on the religious
freedom cannot lend justification, let alone an exempting dimension to his
licentious utterances in his program. The Court sees no need to address
anew the repetitive arguments on religious freedom. As earlier discussed in
the disposition of the petition in G.R. No. 164785, what was uttered was in no
way a religious speech. Parenthetically, petitioners attempt to characterize
his speech as a legitimate defense of his religion fails miserably. He tries to
place his words in perspective, arguing evidently as an afterthought that this
was his method of refuting the alleged distortion of his statements by the INC
hosts of Ang Tamang Daan. But on the night he uttered them in his television
program, the word simply came out as profane language, without any
warning or guidance for undiscerning ears.
As to petitioners other argument about having been denied due process and
equal protection of the law, suffice it to state that we have at length debunked
similar arguments in G.R. No. 164785. There is no need to further delve into
the fact that petitioner was afforded due process when he attended the
hearing of the MTRCB, and that he was unable to demonstrate that he was
unjustly discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative
power, as PD 1986 does not provide for the range of imposable penalties
that may be applied with respect to violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation
of legislative power in the following wise:
It is a fundamental principle flowing from the doctrine
of separation of powers that Congress may not delegate its
legislative power to the two other branches of the
government, subject to the exception that local governments
may over local affairs participate in its exercise. What cannot
be delegated is the authority under the Constitution to make
laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions
when it leaves the hands of the legislature. To determine
whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and
definiteness of the measure enacted. The legislature does
not abdicate its functions when it describes what job must be
done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the
only way in which the legislative process can go forward. A
distinction has rightfully been made between delegation of
power to make laws which necessarily involves a discretion
as to what it shall be, which constitutionally may not be
done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law,
to which no valid objection can be made. The Constitution is
thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.
202
 To avoid the taint of unlawful delegation, there must
be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays
down fundamental policy. Otherwise, the charge of complete
abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.[67]
Based on the foregoing pronouncements and analyzing the law in
question, petitioners protestation about undue delegation of legislative power
for the sole reason that PD 1986 does not provide for a range of penalties for
violation of the law is untenable. His thesis is that MTRCB, in promulgating
the IRR of PD 1986, prescribing a schedule of penalties for violation of the
provisions of the decree, went beyond the terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it
together, the first assumption being that PD 1986 does not prescribe the
imposition of, or authorize the MTRCB to impose, penalties for violators of
PD 1986. As earlier indicated, however, the MTRCB, by express and direct
conferment of power and functions, is charged with supervising and
regulating, granting, denying, or canceling permits for the exhibition and/or
television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and
materials shall be exhibited and/or broadcast by television. Complementing
this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise
such powers and functions as may be necessary or incidental to the
attainment of the purpose and objectives of [the law]. As earlier explained,
the investiture of supervisory, regulatory, and disciplinary power would surely
be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense
committed, charged, and proved. As the Court said in Chavez v. National
Housing Authority:
x x x [W]hen a general grant of power is conferred or
duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also
conferred. x x x [W]hen the statute does not specify the
particular method to be followed or used by a government
agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to
carry out its function.[68]
Given the foregoing perspective, it stands to reason that the power of the
MTRCB to regulate and supervise the exhibition of TV programs carries with
it or necessarily implies the authority to take effective punitive action for
violation of the law sought to be enforced. And would it not be logical too to
say that the power to deny or cancel a permit for the exhibition of a TV
program or broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a)
which, for reference, provides that agency with the power [to] promulgate
such rules and regulations as are necessary or proper for the implementation
of this Act, and the accomplishment of its purposes and objectives x x x. And
Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE
SANCTIONS.Without prejudice to the immediate filing of the
appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of
PD 1986 and its Implementing Rules and Regulations
203
 governing motion pictures, television programs, and
related promotional materials shall be penalized with and the increased difficulty of administering the law.[71] Allowing the MTRCB
suspension or cancellation of permits and/or licenses some reasonable elbow-room in its operations and, in the exercise of its
issued by the Board and/or with the imposition of fines and
other administrative penalty/penalties.The Board recognizes statutory disciplinary functions, according it ample latitude in fixing, by way of
the existing Table of Administrative Penalties attached an appropriate issuance, administrative penalties with due regard for the
without prejudice to the power of the Board to amend it when
the need arises. In the meantime the existing revised Table severity of the offense and attending mitigating or aggravating
of Administrative Penalties shall be enforced. (Emphasis circumstances, as the case may be, would be consistent with its mandate to
added.)
effectively and efficiently regulate the movie and television industry.

This is, in the final analysis, no more than a measure to specifically

But even as we uphold the power of the MTRCB to review and
implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what
impose sanctions for violations of PD 1986, its decision to suspend petitioner
petitioner implies, the IRR does not expand the mandate of the MTRCB
must be modified, for nowhere in that issuance, particularly the power-
under the law or partake of the nature of an unauthorized administrative
defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties
legislation. The MTRCB cannot shirk its responsibility to regulate the public
effective January 1, 1999 is the Board empowered to suspend the program
airwaves and employ such means as it can as a guardian of the public.
host or even to prevent certain people from appearing in television programs.
In Sec. 3(c), one can already find the permissible actions of the
The MTRCB, to be sure, may prohibit the broadcast of such television
MTRCB, along with the standards to be applied to determine whether there
programs or cancel permits for exhibition, but it may not suspend television
have been statutory breaches.The MTRCB may evaluate motion pictures,
personalities, for such would be beyond its jurisdiction. The MTRCB cannot
television programs, and publicity materials applying contemporary Filipino
extend its exercise of regulation beyond what the law provides. Only
cultural values as standard, and, from there, determine whether these audio
persons, offenses, and penalties clearly falling clearly within the letter and
and video materials are objectionable for being immoral, indecent, contrary to
spirit of PD 1986 will be considered to be within the decrees penal or
law and/or good customs, [etc.] x x x and apply the sanctions it deems
disciplinary operation. And when it exists, the reasonable doubt must be
proper.The lawmaking body cannot possibly provide for all the details in the
resolved in favor of the person charged with violating the statute and for
enforcement of a particular statute.[69] The grant of the rule-making power to
whom the penalty is sought. Thus, the MTRCBs decision in Administrative
administrative agencies is a relaxation of the principle of separation of
Case No. 01-04 dated September 27, 2004 and the subsequent order issued
powers and is an exception to the non-delegation of legislative
pursuant to said decision must be modified. The suspension should cover
powers.[70] Administrative regulations or subordinate legislation calculated to
only the television program on which petitioner appeared and uttered the
promote the public interest are necessary because of the growing complexity
offensive and obscene language, which sanction is what the law and the
of modern life, the multiplication of the subjects of governmental regulations,
facts obtaining call for.

204
 ELISEO F. SORIANO, G.R. No. 164785
Petitioner,
In ending, what petitioner obviously advocates is an unrestricted - versus - Present:
speech paradigm in which absolute permissiveness is the norm. Petitioners MA. CONSOLIZA P. LAGUARDIA, in her Present:
flawed belief that he may simply utter gutter profanity on television without capacity as Chairperson of the Movie and
Television Review and Classification Board, PUNO, C.J.,
adverse consequences, under the guise of free speech, does not lend itself MOVIE AND TELEVISION REVIEW AND CARPIO,
to acceptance in this jurisdiction. We repeat: freedoms of speech and CLASSIFICATION BOARD, JESSIE L. CORONA,
GALAPON, ANABEL M. DELA CRUZ, CARPIO MORALES,
expression are not absolute freedoms. To say any act that restrains speech MANUEL M. HERNANDEZ, JOSE L. LOPEZ, VELASCO, JR.,
CRISANTO SORIANO, BERNABE S. YARIA, NACHURA,
should be greeted with furrowed brows is not to say that any act that
JR., MICHAEL M. SANDOVAL, and ROLDAN LEONARDO-DE CASTRO,
restrains or regulates speech or expression is per se invalid. This only A. GAVINO, BRION,
Respondents. PERALTA,
recognizes the importance of freedoms of speech and expression, and x-------------------------------------------x BERSAMIN,
indicates the necessity to carefully scrutinize acts that may restrain or DEL CASTILLO,
ELISEO F. SORIANO, ABAD,
regulate speech. Petitioner, VILLARAMA, JR.,
PEREZ, and
- versus - MENDOZA, JJ.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04
MOVIE AND TELEVISION REVIEW AND
dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of G.R. No. 165636
CLASSIFICATION BOARD, ZOSIMO G.
limiting the suspension to the program Ang Dating Daan. As thus modified, ALEGRE, JACKIE AQUINO-GAVINO,NOEL R.
DEL PRADO, EMMANUEL BORLAZA, JOSE
the fallo of the MTRCB shall read as follows: E. ROMERO IV, and FLORIMONDO C.
ROUS, in their capacity as members of the
WHEREFORE, in view of all the foregoing, a Hearing and Adjudication Committee of the
Decision is hereby rendered, imposing a penalty of THREE MTRCB, JESSIE L. GALAPON, ANABEL M.
(3) MONTHS SUSPENSION on the television DELA CRUZ, MANUEL M. HERNANDEZ,
program, Ang Dating Daan, subject of the instant petition. JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M.
Co-respondents Joselito Mallari, Luzviminda Cruz, SANDOVAL, and ROLDAN A. GAVINO,
and UNTV Channel 37 and its owner, PBC, are hereby in their capacity as complainants before
exonerated for lack of evidence. the MTRCB,
Respondents.

Costs against petitioner.

SO ORDERED.

Promulgated:
205
 March 15, 2010 sufficiently discussed in some detail, and found to be without merit in our
x-----------------------------------------------------------------------------------------x Decision. It would, thus, make little sense to embark on another lengthy

RESOLUTION discussion of the same issues and arguments.

VELASCO, JR., J.:

Suffice it to reiterate that the sanction imposed on the TV program in

question does not, under the factual milieu of the case, constitute prior
Before us is this motion of petitioner Eliseo F. Soriano for
restraint, but partakes of the nature of subsequent punishment for past
reconsideration of the Decision of the Court dated April 29, 2009, modifying
violation committed by petitioner in the course of the broadcast of the program
that of the Movie and Television Review and Classification Board (MTRCB)
on August 10, 2004. To be sure, petitioner has not contested the fact of his
by imposing the penalty of three-month suspension on the television
having made statements on the air that were contextually violative of the
show Ang Dating Daan, instead of on petitioner Soriano, as host of that
programs G rating. To merit a G rating, the program must be suitable for all
program.
ages, which, in turn, means that the material for television [does not], in the
judgment of the [MTRCB], x x x contain anything unsuitable for children and
Petitioner seeks reconsideration on the following grounds or
minors, and may be viewed without adult guidance or supervision.[3] As
issues: (1) the suspension thus meted out to the program constitutes prior
previously discussed by the Court, the vulgar language petitioner used on
restraint; (2) the Court erred in ruling that his utterances [1] did not constitute
prime-time television can in no way be characterized as suitable for all ages,
exercise of religion; (3) the Court erred in finding the language used as
and is wholly inappropriate for children.
offensive and obscene; (4) the Court should have applied its policy of non-
interference in cases of conflict between religious groups; and (5) the Court
Petitioner next harps on the primacy of his freedoms, referring
erred in penalizing the television program for the acts of petitioner.
particularly to the exercise of his religious beliefs and profession, as presiding
minister of his flock, over the right and duty of the state
The motion has no merit.
as parens patriae. Petitioners position may be accorded some cogency, but
for the fact that it fails to consider that the medium he used to make his
Petitioners threshold posture that the suspension thus imposed
statements was a television broadcast, which is accessible to children of
constitutes prior restraint and an abridgement of his exercise of religion and
virtually all ages. As already laid down in the Decision subject of this
freedom of expression is a mere rehash of the position he articulated in the
recourse, the interest of the government in protecting children who may be
underlying petitions for certiorari and expounded in his memorandum. [2] So
subjected to petitioners invectives must take precedence over his desire to air
are the supportive arguments and some of the citations of decisional law,
publicly his dirty laundry. The public soapbox that is television must be
Philippine and American, holding it together. They have been considered,
206
guarded by the state, which purpose the MTRCB serves, and has served, in
suspending Ang Dating Daan for petitioners statements. As emphasized
in Gonzalez v. Kalaw Katigbak,[4] the freedom of broadcast media is, in terms
of degree of protection it deserves, lesser in scope, especially as regards
television, which reaches every home where there is a set, and where
children will likely be among the avid viewers of the programs shown. The
same case also laid the basis for the classification system of the MTRCB
when it stated, It cannot be denied though that the State as parens patriae is
called upon to manifest an attitude of caring for the welfare of the young.[5]
The penalty of suspension imposed on petitioner has driven him to
liken the Court to a blind man who was asked to describe an elephant, and by
his description he stubbornly believed that an elephant is just the same as
a Meralco post after touching one if its legs.[6] Petitioner makes this
comparison with the view that the factual backdrop against which his
statements were made was purportedly not considered by the Court. As he
presently argues:
The Honorable Court should have rendered its
decision in light of the surrounding circumstances why and
what prompted herein petitioner to utter those words.
Clearly, he was provoked because of the malicious and
blatant splicing by the INC ministers of his recorded voice.
Verily, Petitioner submits that the choice of words he used
has been harsh but strongly maintains that the same was
consistent with his constitutional right of freedom of speech
and religion.
Contrary to petitioners impression, the Court has, in fact, considered
the factual antecedents of and his motive in making his utterances, and has
found those circumstances wanting as defense for violating the programs G
rating. Consider the following excerpts from the Courts Decision:
There is nothing in petitioners statements subject of
the complaints expressing any particular religious belief,
nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible
exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults
directed at another person cannot be elevated to the status
of religious speech. Even petitioners attempts to place his
words in context show that he was moved by anger and the
need to seek retribution, not by any religious conviction. His
claim, assuming its veracity, that some INC ministers
distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious
speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged
lies being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of name-
calling and foul-language discourse. Petitioner could have
chosen to contradict and disprove his detractors, but opted
for the low road.
And just to set things straight, the penalty imposed is on the program,
not on petitioner.
Petitioner would next have the Court adopt a hands-off approach to
the conflict between him and the Iglesia Ni Cristo. In support of his urging, he
cites Iglesia ni Cristo v. Court of Appeals.[7]
Petitioners invocation of Iglesia ni Cristo to support his hands-off
thesis is erroneous. Obviously, he fails to appreciate what the Court stated in
that particular case when it rejected the argument that a religious program is
207
beyond MTRCBs review and regulatory authority. We reproduce what the
Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioners postulate that its religious
program is per se beyond review by the respondent
[MTRCB]. Its public broadcast on TV of its religious program
brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of
children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it
will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e.
serious detriment to the more overriding interest of public
health, public morals, or public welfare. A laissez faire policy
on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption
as religion is and continues to be a volatile area of concern
in our country today. Across the sea and in our shore, the
bloodiest and bitterest wars fought by men were caused by
irreconcilable religious differences. Our country is still not
safe from the recurrence of this stultifying strife considering
our warring religious beliefs and the fanaticism with which
some of us cling and claw to these beliefs. x x x For when
religion divides and its exercise destroys, the State
should not stand still.[8] (Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law,
alleging that the registered producer of the program is not a party to the
proceedings. Hence, the program cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioners admission in his petition for certiorari filed with the
Court, he is the Executive Producer of Ang Dating Daan, a televised bible
exposition program produced by the Philippine-based religious
organization, Church of God International.[9] It is unclear, then, which producer
the movant is referring to in claiming that there was no representation before
the MTRCB. He was and is the representative of Ang Dating Daan, and the
claim that there was no due process of law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the
instant motion, certain relevant issues have been raised by some members of
the Court that ought to be addressed if only to put things in their proper
perspective. We refer to the matter of obscenity.
As stressed at every possible turn in the challenged Courts Decision,
the defining standards to be employed in judging the harmful effects of the
statements petitioner used would be those for the average child, not those for
the average adult. We note that the ratings and regulation of television
broadcasts take into account the protection of the child, and it is from the
childs narrow viewpoint that the utterances must be considered, if not
measured. The ratings G, PG (parental guidance), PG-13, and R (restricted or
for adults only) suggest as much. The concern was then, as now, that the
program petitioner hosted and produced would reach an unintended
audience, the average child, and so it is how this audience would view his
words that matters. The average child would not be concerned with colorful
speech, but, instead, focus on the literal, everyday meaning of words used. It
was this literal approach that rendered petitioners utterances obscene.
The Court has taken stock of Action for Childrens Television v.
FCC,[10] but finds this U.S. case not to be of governing application to this
jurisdiction under the present state of things. The so-called safe harbor of
10:00 p.m. to 6:00 a.m., adverted to in Action for Childrens Television as the
time wherein broadcast of indecent material may be permitted, is believed
208
inapplicable here. As it were, there is no legislative enactment or executive No further pleadings shall be entertained in this case. Let entry of
issuance setting a similar period in the Philippines wherein indecent material judgment be made in due course.
may be broadcast. Rather than fix a period for allowing indecent
programming, what is used in this jurisdiction is the system of classification of SO ORDERED.
television programs, which the petitioner violated. His program was rated G,
purported to be suitable for all ages. We cannot lose sight of the violation of PRESBITERO J. VELASCO, JR.
his programs classification that carried with it the producers implied
assurance that the program did not contain anything unsuitable for children
and minors. The hour at which it was broadcasted was of little moment in light
of the guarantee that the program was safe for childrens viewing.

The suspension of the program has not been arrived at lightly. Taking
into account all the factors involved and the arguments pressed on the Court,
the suspension of the program is a sufficiently limited disciplinary action, both
to address the violation and to serve as an object lesson for the future. The
G.R. No. 203335 February 11, 2014
likelihood is great that any disciplinary action imposed on petitioner would be
met with an equally energetic defense as has been put up here. The simple JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P.
MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
but stubborn fact is that there has been a violation of government regulations vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
that have been put in place with a laudable purpose, and this violation must
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
accordingly be dealt with. We are not unmindful of the concerns on the EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE
restriction of freedoms that may occur in imposing sanctions upon erring PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
individuals and institutions, but it cannot be over-emphasized that the NATIONAL BUREAU OF INVESTIGATION, Respondents.

freedoms encased in the Bill of Rights are far from absolute. Each has its own
x-----------------------x
limits, responsibilities, and obligations. Everyone is expected to bear the
G.R. No. 203299
burden implicit in the exercise of these freedoms. So it must be here.

LOUIS "BAROK" C. BIRAOGO, Petitioner,

WHEREFORE, petitioners motion for reconsideration is hereby DENIED. vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.

209
x-----------------------x G.R. No. 203391

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.
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

x-----------------------x G.R. No. 203407

G.R. No. 203359 BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO

M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson
SENATOR TEOFISTO DL GUINGONA III, Petitioner, of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson
vs. of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES
and DIRECTOR OF THE NATIONAL BUREAU OF P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
INVESTIGATION, Respondents. vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
x-----------------------x
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
G.R. No. 203378 FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES- Director of the Information and Communications Technology Office,
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
GILBERT T. ANDRES, Petitioners, Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
vs. Philippine National Police, MANUEL A. ROXAS II, Secretary of the
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND Department of the Interior and Local Government, Respondents.
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL x-----------------------x
BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE,
AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
G.R. No. 203440
OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA

x-----------------------x
STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
210
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.
211
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU
OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE
HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by
Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIO, NOEMI LARDIZABAL-
DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE,
JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic
Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional
and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and
videos, for the general public or for special audiences like
associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases
and payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-
mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet.
212
The cyberspace is a boon to the need of the current generation for greater their commission as well as provisions that would enable the government to
information and facility of communication. But all is not well with the system track down and penalize violators. These provisions are:
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 a. Section 4(a)(1) on Illegal Access;
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
b. Section 4(a)(3) on Data Interference;
can read.
c. Section 4(a)(6) on Cyber-squatting;
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 d. Section 4(b)(3) on Identity Theft;
defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography e. Section 4(c)(1) on Cybersex;
guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and f. Section 4(c)(2) on Child Pornography;
contain and punish wrongdoings.
g. Section 4(c)(3) on Unsolicited Commercial Communications;
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or h. Section 4(c)(4) on Libel;
highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
viruses or virtual dynamites that destroy those computer systems, networks,
Cybercrimes;
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. j. Section 6 on the Penalty of One Degree Higher;

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
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;

Petitioners challenge the constitutionality of the following provisions of the q. Section 17 on Destruction of Computer Data;
cybercrime law that regard certain acts as crimes and impose penalties for

213
 r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. The access to the whole or any part of a computer
system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of
laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for
the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the
client, such permission would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
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.
214
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.7 But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of
vandalism,8 the act of willfully destroying without right the things that belong
to others, in this case their computer data, electronic document, or electronic
data message. Such act has no connection to guaranteed freedoms. There is
no freedom to destroy other peoples computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what
is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it
seeks to punish and creates no tendency to intimidate the free exercise of
ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
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
215
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use,
misuse, transfer, possession, alteration, or deletion of identifying information
belonging to another, whether natural or juridical, without right: Provided: that
if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom
of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord
to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also
from our adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the right
to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how
government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to acquire
anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press
in that journalists would be hindered from accessing the unrestricted user
account of a person in the news to secure information about him that could
be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be
intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of
theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As
such, the press, whether in quest of news reporting or social investigation,
has nothing to fear since a special circumstance is present to negate intent to
gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
216
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of
the Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies
into the bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section
of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up the
cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam. 25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or
sexual activityis not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any
act, transaction, scheme, or design involving the use of a person by another,
for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging
in sexual acts privately through internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30The Court will not declare Section
4(c)(1) unconstitutional where it stands a construction that makes it apply
only to persons engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of sexual organs or
sexual activity with the aid of a computer system as Congress has intended.
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, ACPAs definition of child pornography already embraces
the use of "electronic, mechanical, digital, optical, magnetic or any other
means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a
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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 Pythons Flying Circus scene in which actors would keep
saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass
to ones privacy since the person sending out spams enters the recipients
domain without prior permission. The OSG contends that commercial speech
enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right
to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed
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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 code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it
with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the
accuseds defamatory statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he published.
Gross or even extreme negligence is not sufficient to establish actual
malice.43
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The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement where the offended party is a
public figure. Societys interest and the maintenance of good government
demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in
Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence
of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
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 countrys obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis
v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good
motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a
crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the discharge
of their official duties.
In such cases if the defendant proves the truth of the imputation made by
him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy
freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law. 49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely affirms that online
defamation constitutes "similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings
with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from that
of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
readers reaction to defamatory statements posted in cyberspace, facilitated
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by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement posted on
the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of
the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement
agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest,52 smuggling merchandise into the country, 53 or interfering in the
peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users.55 Based on a recent survey, the Philippines ranks 6th in the top
10 most engaged countries for social networking.56 Social networking sites
build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book
of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can
post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only
to his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the programs screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the
original "posting" will appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of
up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital contentwhich could be in the form
of text, pictures, links, short videos, or other mediaon the internet. Instead
of friends, a Twitter user has "Followers," those who subscribe to this
particular users posts, enabling them to read the same, and "Following,"
those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just reposting or
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republishing another persons tweet without the need of copying and pasting
it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that
may have provided the computer used for posting the blog; e) the person
who makes a favorable comment on the blog; and f) the person who posts a
link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Marias friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Marias original post is then multiplied by her friends
and the latters friends, and down the line to friends of friends almost ad
infinitum. Nena, who is a stranger to both Maria and Linda, comes across this
blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nenas "Followers" then "Retweet" the link to
that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of
Nenas original tweet and posts this on her Facebook account. Immediately,
Pamelas Facebook Friends start Liking and making Comments on the
assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting
libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be guilty
of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of
age; and (2) the knowing use of an interactive computer service to send to a
specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context,
depict or describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendments guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. 223, is a matter of special concern for two reasons. First, the CDA
is a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to
the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of
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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 CDAs burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which seeks
to regulate the use of this cyberspace communication technology to protect a
persons reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected freedoms. 62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion
of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement. 63 The
terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes
as appropriate only insofar as these doctrines are used to mount facial
challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use
it. In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizens
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the internet, it will
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destroy relationships and, under certain circumstances, will generate enmity
and tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child pornography,"
does this make Google and its users aiders and abettors in the commission
of child pornography crimes?68 Byars highlights a feature in the American law
on child pornography that the Cybercrimes law lacksthe exemption of a
provider or notably a plain user of interactive computer service from civil
liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily
taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make him
a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is
forwarded to third parties and unsolicited commercial communication could
be disseminated on the basis of this information.70 As the source of this
information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated.71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on
Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3)
on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that
is necessary to illegally access another partys computer system but the
security employed by the systems lawful owner could frustrate his effort.
Another hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is alerted. 72 If
Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not
right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent.73 While this may be true with respect to cybercrimes that
tend to sneak past the area of free expression, any attempt to commit the
other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section
4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and
abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 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.
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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 ACPAs scope so as to include identical activities in
cyberspace. As previously discussed, ACPAs definition of child pornography
in fact already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under both
Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
Section 8 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 (Ph200,000.00) 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 (Ph500,000.00) 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 (Ph500,000.00) 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 (Ph200,000.00) but not
exceeding One million pesos (Ph1,000,000.00) 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 (Ph50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph250,000.00) 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
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prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph100,000.00) but not exceeding Five hundred thousand pesos
(Ph500,000.00) 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 communications origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed will require a court
warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence
that will be obtained is essential to the conviction of any person for, or to the
solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to
collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they
are to be protected. Petitioners invoke the right of every individual to privacy
and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a
rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn. 80 In
assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime
law for there is a need to put order to the tremendous activities in cyberspace
for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of
traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes committed
in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires
signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with
specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such
data.
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But is not evidence of yesterdays traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual
activity for favor or consideration;86 and producing child pornography87 could
easily evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafs,
from kindred places that provide free internet services, and from unregistered
mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber
criminals can quickly erase their tracks. Those who peddle child pornography
could use relays of computers to mislead law enforcement authorities
regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search
and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the peoples right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc 88 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 privacythat those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion.91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of
privacy over a certain matter. The second is an objective test, where his or
her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to
its application to a particular person or group, petitioners challenge to
Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general publics point of
view. Without reasonable expectation of privacy, the right to it would have no
basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient, accompanying
the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal
service. Those who post letters have no expectations that no one will read
the information appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers
where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where
the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times
across the ocean do not disclose the actual names and addresses
(residential or office) of the sender and the recipient, only their coded internet
protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
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For example, when one calls to speak to another through his cellphone, the
service providers communications system will put his voice message into
packets and send them to the other persons cellphone where they are
refitted together and heard. The latters spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals
his cellphone number to the service provider when he puts his call through.
He also reveals the cellphone number to the person he calls. The other ways
of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the 70s must realize that
they necessarily convey phone numbers to the telephone company in order
to complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate
or exchange data with one another over cyberspace except through some
service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to recognize as
reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data,
analysts may be able to determine a persons close associations, religious
views, political affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has the procedure that Section
12 of the law provides been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in
drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning
since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will
be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection should
not disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these
data in their hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation
at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection
of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of
probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not
provided in Section 12.
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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 subscribers information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.
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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
providers storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of
property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider
for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
230
Sec. 19. Restricting or Blocking Access to Computer Data. When a
computer data is prima facie found to be in violation of the provisions of this
Act, the DOJ shall issue an order to restrict or block access to such computer
data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy discussion of property rights
in the digital space, it is indisputable that computer data, produced or created
by their writers or authors may constitute personal property. Consequently,
they are protected from unreasonable searches and seizures, whether while
stored in their personal computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be
secure in ones papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further,
it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search
warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without
any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule. 101 Section
19, however, merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down Section 19 for being violative
of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
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.
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Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies
to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President,
for policy coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers
and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when
it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms
and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The
second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegates authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy
of the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of
law and order, which has been considered as sufficient standard. 106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes
posting of unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of
traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer
system without right;
b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring
domain name over the internet in bad faith to the prejudice of
others;
d. Section 4(b)(3) that penalizes identity theft or the use or
misuse of identifying information belonging to another;
232
 e. Section 4(c)(1) that penalizes cybersex or the lascivious
exhibition of sexual organs or sexual activity for favor or
consideration;
f. Section 4(c)(2) that penalizes the production of child
pornography;
g. Section 6 that imposes penalties one degree higher when
crimes defined under the Revised Penal Code are
committed with the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to
require service providers to preserve traffic data and
subscriber information as well as specified content data for
six months;
j. Section 14 that authorizes the disclosure of computer data
under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and
examination of computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously
preserved computer data after the expiration of the
prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation
to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation
and Coordinating Center (CICC);
o. Section 26(a) that defines the CICCs Powers and
Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal
Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only
in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the
correct application of Section 7 that authorizes prosecution of the offender
under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal
Code constitutes a violation of the proscription against double
jeopardy; as well as
2. Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to
these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
ROBERTO A. ABAD
233
 F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo
Taada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process
by Congress calling a halt to the undesirable practice of prolonged political
campaign bringing in their wake serious evils not the least of which is the
ever increasing cost of seeking public office, is challenged on constitutional
grounds. More precisely, the basic liberties of free speech and free press,
freedom of assembly and freedom of association are invoked to nullify the
act. Thus the question confronting this Court is one of transcendental
significance.

It is faced with the reconciliation of two values esteemed highly and

cherished dearly in a constitutional democracy. One is the freedom of belief
and of expression availed of by an individual whether by himself alone or in
association with others of similar persuasion, a goal that occupies a place
and to none in the legal hierarchy. The other is the safeguarding of the
equally vital right of suffrage by a prohibition of the early nomination of
candidates and the limitation of the period of election campaign or partisan
political activity, with the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that may end in
violence, to paraphrase the explanatory note of the challenged legislation,
could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of
judicial duty. To paraphrase a landmark opinion, 1 when we act in these
matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we cannot
escape under the Constitution, one that history authenticates, to pass upon
every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.

G.R. No. L-27833 April 18, 1969 This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory Relief with
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE Preliminary Injunction, filed on July 22, 1967, a proceeding that should have
CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES been started in the of Court of First Instance but treated by this Court as one
and FELICISIMO R. CABIGAO, petitioners, of prohibition in view of the seriousness and the urgency of the constitutional
vs. issue raised. Petitioners challenged the validity of two new sections now
COMMISSION ON ELECTIONS, respondent. included in the Revised Election Code, under Republic Act No. 4880, which
234
was approved and took effect on June 17, 1967, prohibiting the too early
nomination of candidates 2 and limiting the period of election campaign or
partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity"
are likewise defined. The former according to Act No. 4880 "refers to any
person aspiring for or seeking an elective public office regarded of whether or
not said person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate." "Election campaign" or
"partisan political activity" refers to acts designed to have a candidate elected
or not or promote the candidacy of a person or persons to a public office."
Then the acts were specified. There is a proviso that simple expression of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign. There is the further proviso that nothing stated in
the Act "shall be understood to prevent any person from expressing his views
on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official
candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private
individual, a registered voter in the City of Manila and a political leader of his
co-petitioner. It is their claim that "the enforcement of said Republic Act No.
4880 in question [would] prejudice [their] basic rights..., such as their
freedom of speech, their freedom of assembly and their right to form
associations or societies for purpose not contrary to law, guaranteed under
the Philippine Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press,
freedom of association and freedom of assembly with a citation of two
American Supreme Court decisions, 5 they asserted that "there is nothing in
the spirit or intention of the law that would legally justify its passage and
[enforcement] whether for reasons of public policy, public order or morality,
and that therefore the enactment of Republic Act [No.] 4880 under, the guise
of regulation is but a clear and simple abridgment of the constitutional rights
of freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..." There was
the further allegation that the nomination of a candidate and the fixing of
period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among
themselves through self-restraint or mutual understanding or agreement and
that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render
the constitutional rights of petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be
declared unconstitutional, null and void, respondent Commission on
Elections, in its answer filed on August 1, 1967, after denying the allegations
as to the validity of the act "for being mere conclusions of law, erroneous at
that," and setting forth special affirmative defenses, procedural and
substantive character, would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same
date a resolution was passed by us to the following effect: "At the hearing of
case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty.
F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios
appeared for the respondent and they were given a period of four days from
today within which to submit, simultaneously,, their respective memorandum
in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came
from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al.
vs. Commission on Elections), the Court, with eight (8) Justice present,
having deliberated on the issue of the constitutionality of Republic Act No.
4880; and a divergence of views having developed among the Justices as to
the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised
Election Code: considering the Constitutional provision that "no treaty or law
may be declared unconstitutional without the concurrence of two-thirds of all
the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved]
to defer final voting on the issue until after the return of the Justices now on
official leave."
The case was then reset for oral argument. At such hearing, one of the co-
petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting
as counsel, assailed the validity of the challenged legislation relying primarily
on American Supreme Court opinion that warn against curtailment in
whatever guise or form of the cherished freedoms of expression, of assemble
and of association, all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly represented by
Atty. Ramon Barrios.
Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he
did, arguing most impressively with a persuasive exposition of the existence
of undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked
235
upon as a limitation on the preferred rights of speech and press, of assembly
and of association. He did justify its enactment however under the clear and
present danger doctrine, there being the substantive evil of elections,
whether for national or local officials, being debased and degraded by
unrestricted campaigning, excess of partisanship and undue concentration in
politics with the loss not only of efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken.
The divergence of views with reference to the paragraphs above mentioned
having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity
of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were
included, among them. They did file their respective memoranda with this
Court and aided it in the consideration of the constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was
raised by five members of the Court. 6 It is their view that respondent
Commission on Elections not being sought to be restrained from performing
any specific act, this suit cannot be characterized as other than a mere
request for an advisory opinion. Such a view, from the remedial law
standpoint, has much to recommend it. Nonetheless, a majority would affirm,
the original stand that under the circumstances it could still rightfully be
treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this
Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ... be now
resolved." 7 It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the undeniable
necessity for a ruling, the national elections being, barely six months away,
reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate
invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the
matter.
There is another procedural obstacle raised by respondent to be hurdled. It is
not insuperable. It is true that ordinarily, a party who impugns the validity of a
statute or ordinance must have a substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement. 8 Respondent cannot see such interest as being possessed by
petitioners. It may indicate the clarity of vision being dimmed, considering
that one of the petitioners was a candidate for an elective position. Even if
such were the case, however, the objection is not necessarily fatal. In this
jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring
an action to restrain the expenditure of public funds through the enforcement
of an invalid or unconstitutional legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was
laid on Republic Act No. 4880 as an exercise of the police power of the state,
designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long
period before elections it necessarily entails huge expenditures of funds on
the part of the candidates, precipitates violence and even deaths, results in
the corruption of the electorate, and inflicts direful consequences upon public
interest as the vital affairs of the country are sacrificed to purely partisan
pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech,
free press, freedom of assembly and 'freedom' of association. Would it were
as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though
against such a cavalier approach. "The case confronts us again with the duty
our system places on this Court to say where the individual's, freedom ends
the State's power begins. Choice on that border, now as always delicate, is
perhaps more so where the usual. presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment.... That
priority gives these liberties a sanctity and a sanction not permitting dubious
intrusions. And it is the character of the right, not of the limitation, which
determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure
dealing with elections, cited in the answer of respondent, militates against a
stand minimizing the importance and significance of the alleged violation of
individual rights: "As so construed by us, it has not been made to appear that
section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
violative of any provision of either the state or Federal Constitution on the
subject of free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11Another leading State
decision is much more emphatic: "Broad as the power of the legislature is
with respect to regulation of elections, that power is not wholly without
limitation. Under the guise of regulating elections, the legislature may not
236
deprive a citizen of the right of trial by jury. A person charged with its violation
may not be compelled to give evidence against himself. If it destroys the right
of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be
squarely met.lawphi1.nt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may prove
illuminating. The primacy, the high estate accorded freedom of expression is
of course a fundamental postulate of our constitutional system. No law shall
be passed abridging the freedom of speech or of the press .... 13 What does it
embrace? At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public interest
without censorship or punishment. 14 There is to be then no previous restraint
on the communication of views or subsequent liability whether in libel
suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt
proceedings 18 unless there be a clear and present danger of substantive evil
that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is
undeniable whether as a means of assuring individual self-fulfillment, of
attaining the truth, of assuring participation by the people in social including
political decision-making, and of maintaining the balance between stability
and change. 19 The trend as reflected in Philippine and American decisions is
to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the principle
that debate of public issue should be uninhibited, robust, and wide-open. 20 It
is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." 21 Freedom of speech
and of the press thus means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official
measures, to take refuge in the existing climate of opinion on any matter of
public consequence. So atrophied, the right becomes meaningless. The right
belongs as well, if not more, for those who question, who do not conform,
who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that
was awakened and invigorated by the idea of new society in which man's
mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited.
It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode of life
that, through encouraging toleration, skepticism, reason and initiative, will
allow man to realize his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times
and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition. How is it to be
limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply
an acceptable criterion for permissible restriction. Thus: "These are the 'clear
and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be extremely serious and the degree of
imminence extremely high' before the utterance can be punished. The
danger to be guarded against is the 'substantive evil' sought to be
prevented." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous
tendency" rule and explained it thus: "If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body
seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC
237
create a danger sufficiently imminent to come under the two rules mentioned
above?" The choice of this Court was manifest and indisputable. It adopted
the clear and present danger test. As a matter of fact, in an earlier
decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of
the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence." 26 For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting
a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." 27 Only thus may
there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except
at those extreme borders where thought merges into action." 28 It received its
original formulation from Holmes. Thus: "The question in every case is
whether the words used in such circumstances and of such a nature as to
create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree." 29
This test then as a limitation on freedom of expression is justified by the
danger or evil a substantive character that the state has a right to prevent.
Unlike the dangerous tendency doctrine, the danger must not only be clear
but also present. The term clear seems to point to a causal connection with
the danger of the substantially evil arising from the utterance questioned.
Present refers to the time element. It used to be identified with imminent and
immediate danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits
abridgment by law of freedom of speech or of the press. It likewise extends
the same protection to the right of the people peaceably to assemble. As was
pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this
right is a necessary consequence of our republican institution and
complements the right of free speech. Assembly means a right on the part of
citizens to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and orderly
administration of government have demanded protection for public opinion."
To paraphrase the opinion of Justice Rutledge speaking for the majority in
Thomas v. Collins,31 it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guaranty with
the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights while not identical are
inseparable. They are cognate rights and the assurance afforded by the
clause of this section of the Bill of Rights wherein they are contained, applies
to all. As emphatically put in the leading case of United States v.
Cruikshank, 32 "the very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for consultation in respect
to public affairs and to petition for redress of grievances." As in the case of
freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for
purposes not contrary to law. 33 With or without a constitutional provision of
this character, it may be assumed that the freedom to organize or to be a
member of any group or society exists. With this explicit provision, whatever
doubts there may be on the matter are dispelled. Unlike the cases of other
guarantee which are mostly American in origin, this particular freedom has
an indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character,
it is the view of Justice Douglas that it is primarily the first amendment of her
Constitution, which safeguards freedom of speech and of the press, of
assembly and of petition "that provides [associations] with the protection they
need if they are to remain viable and continue to contribute to our Free
Society." 34 He adopted the view of De Tocqueville on the importance and the
significance of the freedom to associate. Thus: "The most natural privilege of
man, next to the right of acting for himself, is that of combining his exertions
with those of his fellow creatures and of acting in common with them. The
right of association therefore appears to me almost inalienable in its nature
as the right of personal liberty. No legislator can attack it without impairing
the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De
Tocqueville. Since man lives in social it would be a barren existence if he
could not freely associate with others of kindred persuasion or of congenial
frame of mind. As a matter of fact, the more common form of associations
may be likely to be fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness and
isolation life is enriched and becomes more meaningful.
238
In a sense, however, the stress on this freedom of association should be on
its political significance. If such a right were non-existent then the likelihood
of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority
groups may be outlawed, constitutional democracy as intended by the
Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of
being in the majority or in the minority as the will of the electorate dictates,
will lose their constitutional protection. It is undeniable therefore, that the
utmost scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be
accorded a human personality but equally so for its assurance that the
wishes of any group to oppose whatever for the moment is the party in power
and with the help of the electorate to set up its own program of government
would not be nullified or frustrated. To quote from Douglas anew: "Justice
Frankfurter thought that political and academic affiliations have a preferred
position under the due process version of the First Amendment. But the
associational rights protected by the First Amendment are in my view much
broader and cover the entire spectrum in political ideology as well as in art, in
journalism, in teaching, and in religion. In my view, government can neither
legislate with respect to nor probe the intimacies of political, spiritual, or
intellectual relationships in the myriad of lawful societies and groups, whether
popular or unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that
there could be an abridgment of the right to form associations or societies
when their purposes are "contrary to law". How should the limitation "for
purposes not contrary to law" be interpreted? It is submitted that it is another
way of expressing the clear and present danger rule for unless an
association or society could be shown to create an imminent danger to public
safety, there is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course consistent with
the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he
embraces, and the people he associates with are no concern to government
until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles
in mind, we now consider the validity of the prohibition in Republic Act No.
4880 of the too early nomination of candidates and the limitation found
therein on the period of election campaign or partisan political activity alleged
by petitioners to offend against the rights of free speech, free press, freedom
of assembly and freedom of association. In effect what are asked to do is to
declare the act void on its face evidence having been introduced as to its
actual operation. There is respectable authority for the court having the
power to so act. Such fundamental liberties are accorded so high a place in
our constitutional scheme that any alleged infringement manifest in the
wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot
ignore of course the legislative declaration that its enactment was in
response to a serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and likely to
continue unless curbed or remedied. To assert otherwise would be to close
one's eyes to the realities of the situation. Nor can we ignore the express
legislative purpose apparent in the proviso "that simple expressions of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign," and in the other proviso "that nothing herein stated
shall be understood to prevent any person from expressing his views on
current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the
entire provision restricting the period of an election campaign or partisan
political activity.
The prohibition of too early nomination of candidates presents a question that
is not too formidable in character. According to the act: "It shall be unlawful
for any political party political committee, or political group to nominate
candidates for any elective public officio voted for at large earlier than one
hundred and fifty days immediately preceding an election, and for any other
elective public, office earlier than ninety days immediately preceding an
election." 40
The right of association is affected. Political parties have less freedom as to
the time during which they may nominate candidates; the curtailment is not
such, however, as to render meaningless such a basic right. Their scope of
legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such a
purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political
activity" calls for a more intensive scrutiny. According to Republic Act No.
4880: "It is unlawful for any person whether or not a voter or candidate, or for
any group or association of persons whether or not a political party or
political committee, to engage in an election campaign or partisan political
239
activity except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and ninety
days immediately preceding an election for any other elective public office.
The term 'candidate' refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its
candidate. The term 'election campaign' or 'partisan political activity' refers to
acts designed to have a candidate elected or not or promote the candidacy of
a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional
infirmity of vagueness and may be stricken down. What other conclusion can
there be extending as it does to so wide and all-encompassing a front that
what is valid, being a legitimate exercise of press freedom as well as
freedom of assembly, becomes prohibited? That cannot be done; such an
undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory
vagueness may be applied to a statute having inhibiting effect on speech; a
man may the less be required to act at his peril here, because the free
dissemination of ideas may be the loser.41 Where the statutory provision then
operates to inhibit the exercise of individual freedom affirmatively protected
by the Constitution, the imputation of vagueness sufficient to invalidate the
statute is inescapable. 42 The language of Justice Douglas, both appropriate
and vigorous, comes to mind: "Words which are vague and fluid ... may be
as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is
the reason difficult to discern: ."These freedoms are delicate and vulnerable,
as well as supremely precious in our society. The threat of sanctions may
deter their exercise almost as potently as the actual application of
sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that
the limitations thus imposed on the constitutional rights of free speech and
press, of assembly, and of association cut deeply, into their substance. This
on the one hand.
On the other, it cannot be denied either that evils substantial in character
taint the purity of the electoral process. There can be under the
circumstances then no outright condemnation of the statute. It could not be
said to be unwarranted, much less arbitrary. There is need for refraining from
the outright assumption that the constitutional infirmity is apparent from a
mere reading thereof.
For under circumstances that manifest abuses of the gravest character,
remedies much more drastic than what ordinarily would suffice would indeed
be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in
the appraisal of the aforesaid restrictions to which such precious freedoms
are subjected. They are not unaware of the clear and present danger that
calls for measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit
to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be
limited in scope.
There are still constitutional questions of a serious character then to be
faced. The practices which the act identifies with "election campaign" or
"partisan political activity" must be such that they are free from the taint of
being violative of free speech, free press, freedom of assembly, and freedom
of association. What removes the sting from constitutional objection of
vagueness is the enumeration of the acts deemed included in the terms
"election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate or
party;(c) making speeches, announcements or commentaries or holding
interviews for or against the election or any party or candidate for public
office; (d) publishing or distributing campaign literature or materials; (e)
directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any party; (f) giving, soliciting, or receiving
contributions for election campaign purposes, either directly or
indirectly." 45 As thus limited the objection that may be raised as to
vagueness has been minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the
view that no unconstitutional infringement exists insofar as the formation of
organization, associations, clubs, committees, or other groups of persons for
the purpose of soliciting votes or undertaking any campaign or propaganda
or both for or against a candidate or party is restricted 47 and that the
240
prohibition against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from constitutional
infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or
party, 49 leaving untouched all other legitimate exercise of such poses a more
difficult question. Nevertheless, after a thorough consideration, and with the
same Justices entertaining the opposite conviction, we reject the contention
that it should be annulled. Candor compels the admission that the writer of
this opinion suffers from the gravest doubts. For him, such statutory
prescription could very well be within the outermost limits of validity, beyond
which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan
political activity" tax to the utmost the judicial predisposition to view with
sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression.
From the outset, such provisions did occasion divergence of views among
the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that
the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and
present danger of a substantive evil, the debasement of the electoral
process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or indirectly, by
an individual, 51 the making of speeches, announcements or commentaries or
holding interview for or against the election for any party or candidate for
public office, 52 or the publication or distribution of campaign literature or
materials, 53 suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns.
The direful consequences and the harmful effects on the public interest with
the vital affairs of the country sacrificed many a time to purely partisan
pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was
further magnified.
Under the police power then, with its concern for the general welfare and with
the commendable aim of safe-guarding the right of suffrage, the legislative
body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set
forth in the challenged legislation, the laudable purpose of Republic Act No.
4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that the above
poisons of the statute now assailed has passed the constitutional test is
devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against
the election of any party or candidate for public office and the prohibition of
the publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged
statute prohibits what under the Constitution cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that
otherwise could be justified under the clear and present danger doctrine, it is
the consideration opinion of the majority, though lacking the necessary vote
for an adjudication of invalidity, that the challenged statute could have been
more narrowly drawn and the practices prohibited more precisely delineated
to satisfy the constitutional requirements as to a valid limitation under the
clear and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the
Court could discern "an over breadth that makes possible oppressive or
capricious application" 55 of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose constitutionally subject
to control or prevent activities state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. 56
241
It is undeniable, therefore, that even though the governmental purposes be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so
closely related to our most precious freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to
view the statutory provisions in question as unconstitutional on their face
inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court.
For this minority group, no judgment of nullity insofar as the challenged
sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their
latitudinarian scope, for Congress was not at all insensible to the problem
that an all-encompassing coverage of the practices sought to be restrained
would seriously pose.
Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Taada, appearing before us as amicus
curiae. He did clearly explain that such provisions were deemed by the
legislative body to be part and parcel of the necessary and appropriate
response not merely to a clear and present danger but to the actual
existence of a grave and substantive evil of excessive partisanship,
dishonesty and corruption as well as violence that of late has invariably
marred election campaigns and partisan political activities in this country. He
did invite our attention likewise to the well-settled doctrine that in the choice
of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed
by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded.
More than that, he would stress the two provisos already mentioned,
precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of
assembly and of association. It is thus provided: "That simple expressions or
opinion and thoughts concerning the election shall not be considered as part
of an election campaign [and that nothing in the Act] shall be understood to
prevent any person from expressing his views on current political problems
or issues, or from mentioning the names of the candidates for public office
whom he supports. 60 If properly implemented then, as it ought to, the barrier
to free, expression becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution commands
as far as freedom of the mind and of association are concerned. It is its
opinion that it would be premature to say the least, for a judgment of nullity of
any provision found in Republic Act No. 4880. The need for adjudication
arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called upon, under
this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that
requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to
cleanse, and, if possible, render spotless, the electoral process. There is full
acceptance by the Court of the power of Congress, under narrowly drawn
legislation to impose the necessary restrictions to what otherwise would be
liberties traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are called upon
to safeguard individual rights. In the language of Justice Laurel: "This Court
is perhaps the last bulwark of constitutional government. It shall not obstruct
the popular will as manifested through proper organs... But, in the same way
that it cannot renounce the life breathed into it by the Constitution, so may it
not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital
interests. Considering the responsibility incumbent on the judiciary, it is not
always possible, even with the utmost sympathy shown for the legislative
choice of means to cure an admitted evil, that the legislative judgment arrived
at, with its possible curtailment of the preferred freedoms, be accepted
uncritically. There may be times, and this is one of them, with the majority,
with all due reject to a coordinate branch, unable to extend their approval to
the aforesaid specific provisions of one of the sections of the challenged
statute. The necessary two-third vote, however, not being obtained, there is
no occasion for the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic Act No.
4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied.
Without costs.
242
Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in
the result.
On the complaint of Atty. Carlos Ding So of the Bureau of Customs, four (4)
separate informations were filed on September 8, 1999 with the Regional
Trial Court in (RTC) PasayCity. These were assigned to Branch 112 and
ERWIN TULFO, G.R. No. 161032
Petitioner, docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged
Present: petitioners Erwin Tulfo, as author/writer, Susan Cambri, as managing editor,
- versus - QUISUMBING, J., Chairperson,
CARPIO MORALES, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip
VELASCO, JR., Pichay, as president of the Carlo Publishing House, Inc., of the daily
PEOPLE OF THE PHILIPPINES NACHURA,* and
and ATTY. CARLOS T. SO, BRION, JJ. tabloid Remate, with the crime of libel in connection with the publication of
Respondents.
the articles in the column Direct Hit in the issues of May 11, 1999; May 12,
x-------------------------------------------x
1999; May 19, 1999; and June 25, 1999.[1] The four informations read as
SUSAN CAMBRI, REY SALAO, G.R. No. 161176
JOCELYN BARLIZO, and follows:
PHILIP PICHAY,
Criminal Case No. 99-1598
Petitioners,
That on or about the 11th day of May, 1999 in Pasay
City, Metro Manila, Philippines and within the jurisdiction of
- versus -
COURT OF APPEALS, PEOPLE this Honorable Court, the above-named accused, conspiring
OF THE PHILIPPINES, and Promulgated: and confederating together and mutually helping one
CARLOS SO, another, being then the columnist, publisher and managing
Respondents. September 16, 2008 editor, respectively of REMATE, a tabloid published daily
and of general circulation in the Philippines, did then and
x-----------------------------------------------------------------------------------------x
there willfully, unlawfully and feloniously and with malicious
DECISION intent to discredit or dishonor complainant, ATTY. CARLOS
DING SO, and with the malicious intent of injuring and
VELASCO, JR., J.: exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said
The freedom of the press is one of the cherished hallmarks of our publication on May 11, 1999, its daily column DIRECT HIT,
quoted hereunder, to wit:
democracy; but even as we strive to protect and respect the fourth estate,
the freedom it enjoys must be balanced with responsibility. There is a fine PINAKAMAYAMAN SA CUSTOMS
line between freedom of expression and libel, and it falls on the courts to Ito palang si Atty. Ding So ng Intelligence
determine whether or not that line has been crossed. Division ng Bureau of Customs and [sic]
pinakamayaman na yata na government
official sa buong bansa sa pangungurakot
The Facts lamang diyan sa South Harbor.

243

Hindi matibag ang gagong attorney dahil
malakas daw ito sa Iglesia ni Kristo.
Hoy, So! . . nakakahiya ka sa mga INC, ikaw
na yata ang pinakagago at magnanakaw na
miyembro nito.
Balita ko, malapit ka nang itiwalag ng
nasabing simbahan dahil sa mga kalokohan
mo.
Abangan bukas ang mga raket ni So sa
BOC.
WHEREIN said complainant was indicated as an
extortionist, a corrupt public official, smuggler and having
illegally acquired wealth, all as already stated, with the object
of destroying his reputation, discrediting and ridiculing him
before the bar of public opinion.[2]
Criminal Case No. 99-1599
That on or about the 12th day of May, 1999 in Pasay
City, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one
another, being then the columnist, publisher and managing
editor, respectively of REMATE, a tabloid published daily
and of general circulation in the Philippines, did then and
there willfully, unlawfully and feloniously and with malicious
intent to discredit or dishonor complainant, ATTY. CARLOS
DING SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said
publication on May 12, 1999, in daily column DIRECT HIT,
quoted hereunder, to wit:
SI ATTY. SO NG BOC
LINTEK din sa pangungurakot itong
Ding So ng Bureau of Customs Intelligence
Unit sa South Harbor.
Daan-daang libong piso ang kinikita ng
masiba at matakaw na si So sa mga
importer na ayaw ideklara ang totoong
laman ng mga container para makaiwas sa
pagbayad ng malaking customs duties at
taxes.
Si So ang nagpapadrino sa mga pag-
inspection ng mga container na
ito. Siyempre-binibigyan din niya ng salapi
yung ibang mga ahensiya para pumikit na
lang at itikom ang kanilang nga [sic] bibig
diyan sa mga buwayang taga BOC.
Awang-awa ako sa ating
gobyerno. Bankrupt na nga, ninanakawan
pa ng mga kawatan tulad ni So.
Ewan ko ba rito kay Atty. So, bakit hindi na
lang tumayo ng sarili niyang robbery-hold-up
gang para kumita ng mas mabilis.
Hoy So.. hindi bagay sa iyo ang pagiging
attorney . . . Mas bagay sa iyo ang pagiging
buwayang naka korbata at
holdaper. Magnanakaw ka So!!
WHEREIN said complainant was indicated as an
extortionist, a corrupt public official, smuggler and having
illegally acquired wealth, all as already stated, with the object
of destroying his reputation, discrediting and ridiculing him
before the bar of public opinion.[3]
Criminal Case No. 99-1600
That on or about 19th day of May, 1999 in Pasay
City, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one
another, being then the columnist, publisher and managing
editor, respectively of REMATE, a tabloid published daily
and of general circulation in the Philippines, did then and
there willfully, unlawfully and feloniously and with malicious
intent to discredit or dishonor complainant, ATTY. CARLOS
DING SO, and with the malicious intent of injuring and
244
exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said
publication on May 19, 1999, in daily column DIRECT HIT,
quoted hereunder, to wit:
xxxx
Tulad ni Atty. Ding So ng Bureau of
Customs Intelligence Division, saksakan din
ng lakas itong si Daniel Aquino ng
Presidential Anti-Smuggling Unit na
nakatalaga sa SouthHarbor.
Tulad ni So, magnanakaw na tunay itong si
Aquino.
Panghihingi ng pera sa mga brokers, ang
lakad nito.
Pag hindi nagbigay ng pera ang mga
brokers, maiipit ang pagre-release ng
kanilang kargamento.
WHEREIN said complainant was indicated as an extortionist,
a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of
destroying his reputation, discrediting and ridiculing him
before the bar of public opinion.[4]
Criminal Case No. 99-1597
That on or about 25th day of June, 1999 in Pasay
City, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one
another, being then the columnist, publisher and managing
editor, respectively of REMATE, a tabloid published daily
and of general circulation in the Philippines, did then and
there willfully, unlawfully and feloniously and with malicious
intent to discredit or dishonor complainant, ATTY. CARLOS
DING T. SO, and with the malicious intent of injuring and
exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said
publication on June 25, 1999, its daily column DIRECT HIT,
quoted hereunder, to wit:
xxxx
Nagfile ng P10 M na libel suit itong
si Atty. Carlos So ng Bureau of Customs
laban sa inyong lingkod at ilang opisyales ng
Remate sa Pasay City Court. Nagalit itong
tarantadong si Atty. So dahil binanatan ko
siya at inexpose ang kagaguhan niya sa
BOC.
Hoy, So . . . dagdagan mo pa ang
pagnanakaw mo dahil hindi kita
tatantanan. Buhay ka pa sinusunog na ang
iyong kaluluwa sa impyerno.
WHEREIN said complainant was indicated as an
extortionist, a corrupt public official, smuggler and having
illegally acquired wealth, all as already stated, with the object
of destroying his reputation, discrediting and ridiculing him
before the bar of public opinion.[5]
On November 3, 1999, Tulfo, Salao, and Cambri were arraigned,
while Barlizo and Pichay were arraigned on December 15, 1999. They all
pleaded not guilty to the offenses charged.
At pre-trial, the following were admitted by petitioners: (1) that during
the four dates of the publication of the questioned articles, the complaining
witness was not assigned at South Harbor; (2) that the accused and
complaining witness did not know each other during all the time material to
the four dates of publication; (3) that Remate is a newspaper/tabloid of
general circulation in the Philippines; (4) the existence and genuineness of
the Remate newspaper; (5) the column therein and its authorship and the
alleged libelous statement as well as the editorial post containing the
designated positions of the other accused; and (6) the prosecutions qualified
admission that it is the duty of media persons to expose corruption.[6]
245
 The prosecution presented four witnesses, namely: Oscar M. Ablan,
Atty. James Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The
prosecution presented documentary evidence as well.
Ablan testified that he had read the four columns written by Tulfo,
and that the articles were untrue because he had known Atty. So since 1992
and had worked with him in the Customs Intelligence and Investigation
Service Division of the Bureau of Customs. He further testified that upon
reading the articles written by Tulfo, he concluded that they referred to Atty.
So because the subject articles identified Atty. Carlos as Atty. Ding So of the
Customs Intelligence and Investigation Service Division, Bureau of Customs
and there was only one Atty. Carlos Ding So of the Bureau of Customs. [7]
Fontanilla, Records Officer I of the Bureau of Customs, testified that
she issued a certification in connection with these cases upon the request of
Atty. So.[8] This certification stated that as per records available in her office,
there was only one employee by the name of Atty. Carlos T. So who was
also known as Atty. Ding So in the Intelligence Division of the Customs
Intelligence and Investigation Service or in the entire Bureau of Customs.[9]
Atty. Fortes testified that he knew Atty. So as a fellow member of
the Iglesia Ni Kristo and as a lawyer, and that having read the articles of
Tulfo, he believed that these were untrue, as he knew Atty. Carlos Ding
So.[10]
Atty. So testified that he was the private complainant in these
consolidated cases. He further testified that he is also known as Atty. Ding
So, that he had been connected with the Bureau of Customs since October
1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs
Intelligence and Investigation Service Division at the Manila International
Container Port since December 27, 1999. He executed two complaint-
affidavits, one dated June 4, 1999 and the other dated July 5, 1999, for
Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases
of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that
petitioner Tulfos act of imputing upon him criminality, assailing his honesty
and integrity, caused him dishonor, discredit, and contempt among his co-
members in the legal profession, co-officers of the Armed Forces of the
Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and
employees and superior officers in the Bureau of Customs, and among
ordinary persons who had read said articles. He said it also caused him and
his family sleepless nights, mental anguish, wounded feelings, intrigues, and
embarrassment. He further testified that he included in his complaint for libel
the officers of Remate such as the publisher, managing editor, city editor,
and national editor because under Article 360 of the Revised Penal Code
(RPC), they are equally responsible and liable to the same extent as if they
were the author of the articles. He also testified that Ding is his nickname and
that he is the only person in the entire Bureau of Customs who goes by the
name of Atty. Carlos T. So or Atty. Carlos Ding So.[11]
In his defense, petitioner Tulfo testified that he did not write the
subject articles with malice, that he neither knew Atty. So nor met him before
the publication of the articles. He testified that his criticism of a certain Atty.
So of the South Harbor was not directed against the complainant, but against
a person by the name of Atty. Ding So at the South Harbor. Tulfo claimed
that it was the practice of certain people to use other peoples names to
advance their corrupt practices. He also claimed that his articles had neither
246
discredited nor dishonored the complainant because as per his source in the
Bureau of Customs, Atty. So had been promoted. He further testified that he
did not do any research on Atty. So before the subject articles, because as a
columnist, he had to rely on his source, and that he had several sources in
the Bureau of Customs, particularly in the SouthHarbor.[12]
Petitioner Salao testified that he came to know Atty. Carlos Ding So
when the latter filed a case against them. He testified that he is an employee
of Carlo Publishing House, Inc.; that he was designated as the national editor
of the newspaper Remate since December 1999; that the duties of the
position are to edit, evaluate, encode, and supervise layout of the news from
the provinces; and that Tulfo was under the supervision of Rey Briones, Vice
President for Editorial and Head of the Editorial Division. Salao further
testified that he had no participation in the subject articles of Tulfo, nor had
he anything to do with the latters column.[13]
Petitioner Cambri, managing editor of Remate, testified that she
classifies the news articles written by the reporters, and that in the Editorial
Division, the officers are herself; Briones, her supervisor; Lydia Bueno, as
news and city editor; and Salao as national editor. She testified that petitioner
Barlizo is her subordinate, whose duties and responsibilities are the
typesetting, editing, and layout of the page assigned to her, the Metro
page. She further testified that she had no participation in the writing, editing,
or publication of the column of Tulfo because the column was not edited. She
claimed that none among her co-accused from the Remate newspaper
edited the columns of Tulfo, that the publication and editing of the subject
articles were the responsibility of Tulfo, and that he was given blanket
authority to write what he wanted to write. She also testified that the page
wherein Tulfos column appeared was supervised by Bueno as news
editor.[14]
Petitioner Pichay testified that he had been the president of Carlo
Publishing House, Inc. since December 1998. He testified that the company
practice was to have the columnists report directly to the vice-president of
editorials, that the columnists were given autonomy on their columns, and
that the vice-president for editorials is the one who would decide what
articles are to be published and what are not. He further testified that Tulfo
was already a regular contributor.[15]
The Ruling of the RTC
In a Decision dated November 17, 2000, the RTC found petitioners guilty of
the crime of Libel. The dispositive portion reads as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO,
SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO and
PHILIP PICHAY guilty beyond reasonable doubt of four (4)
counts of the crime of LIBEL, as defined in Article 353 of the
Revised Penal Code, and penalized by prision correccional
in its minimum and medium periods, or a fine ranging from
P200.00 Pesos to P6,000.00 Pesos or both, under Article
355 of the same Code.
Applying the Indeterminate Sentence Law, the Court hereby
sentences EACH of the accused to suffer imprisonment of
SIX (6) MONTHS of arresto mayor, as minimum, to FOUR
(4) YEARS and TWO (2) MONTHS of prision correccional,
as maximum, for EACH count with accessory penalties
provided by law.
Considering that the accused Erwin Tulfo, Susan Cambri,
Rey Salao, Jocelyn Barlizo and Philip Pichay wrote and
published the four (4) defamatory articles with reckless
247
 disregard, being, in the mind of the Court, of whether it was
false or not, the said articles libelous per se, they are hereby
ordered to pay, jointly and severally, the sum of EIGHT
HUNDRED THOUSAND (P800,000.00) PESOS, as actual
damages, the sum of ONE MILLION PESOS
(P1,000,000.00), as moral damages, and an additional
amount of FIVE HUNDRED THOUSAND PESOS
(P500,000.00), by way of exemplary damages, all with
subsidiary imprisonment, in case of insolvency, and to pay
the costs.
SO ORDERED.[16]
B
The trial court seriously erred in concluding that libel was
committed by all of the accused on the basis of its finding
that the elements of libel have been satisfactorily established
by evidence on record.
C
The trial court seriously erred in considering complainant to
be the one referred to by Erwin Tulfo in his articles in
question.[18]

The Ruling of the Court of Appeals

In a Decision[19] dated June 17, 2003, the Eighth Division of the CA
dismissed the appeal and affirmed the judgment of the trial court. A motion
Before the Court of Appeals (CA), Tulfo assigned the following errors:
for reconsideration dated June 30, 2003 was filed by Tulfo, while the rest of
his co-accused filed a motion for reconsideration dated July 2, 2003. In a
1. THE LOWER COURT ERRED IN IGNORING THE
UNREBUTTED TESTIMONY OF THE APPELLANT Resolution dated December 11, 2003, both motions were denied for lack of
THAT HE DID NOT CRITICIZE THE PRIVATE
COMPLAINANT WORKING AT THE NAIA. HE merit.[20]
CRITICIZED ANOTHER PERSON WORKING AT
THE SOUTH HARBOR. HENCE, THE ELEMENT OF
IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE Petitions for Review on Certiorari under Rule 45
LACK OF THE ESSENTIAL ELEMENT OF DISCREDIT
OR DISHONOR, AS DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE
Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse
COMPLAINANT ATTY. CARLOS DING SO.[17]
the Decision of the CA in CA-G.R. CR No. 25318 which affirmed the decision
His co-accused assigned the following errors:
of the RTC.Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar
A
petition docketed as G.R. No. 161176, seeking the nullification of the same
The trial court seriously erred in holding accused Susan CA decision.
Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay liable
for the defamations contained in the questioned articles
despite the fact that the trial court did not have any finding as
to their participation in the writing, editing and/or publication
of the questioned articles.

248

In a Resolution dated March 15, 2004, the two cases were consolidated
since both cases arise from the same set of facts, involve the same parties,
assail the same decision of the CA, and seek identical reliefs.[21]
Assignment of Errors
Petitioner Tulfo submitted the following assignment of errors:
I Published Articles Was Private Complainant Atty. Carlos
Assuming that the Prosecution presented credible and
relevant evidence, the Honorable CA erred in not declaring
the assailed articles as privileged; the CA erred in
concluding that malice in law exists by the courts having
incorrectly reasoned out that malice was presumed in the
instant case.
II
Even assuming arguendo that the articles complained of are
not privileged, the lower court, nonetheless, committed gross
error as defined by the provisions of Section 6 of Rule 45 by
its misappreciation of the evidence presented on matters
substantial and material to the guilt or innocence of the
petitioner.[22]
Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own
assignment of errors, as follows:
A - The Court of Appeals Seriously Erred In Its Application of
Article 360 Of The Revised Penal Code By Holding Cambri,
Salao And Barlizo Liable For The Defamatory Articles In The
May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply
Because They Were Managing Editor, National Editor And
City Editor Respectively Of Remate And By Holding Pichay
Also Liable For Libel Merely Because He Was The President
Of Carlo Publishing House, Inc. Without Taking Into Account
The Unrebutted Evidence That Petitioners Had No
Participation In The Editing Or Publication Of The
Defamatory Articles In Question.
B - The Court Of Appeals Committed Grave Abuse Of
Discretion In Manifestly Disregarding The Unrebutted
Evidence That Petitioners Had No Participation In The
Editing Or Publication Of The Defamatory Articles In
Question.
C - The Court Of Appeals Seriously Misappreciated The
Evidence In Holding That The Person Referred To In The
So.[23]
Our Ruling
The petitions must be dismissed.
The assignment of errors of petitioner Tulfo shall be discussed first.
In his appeal, Tulfo claims that the CA erred in not applying the ruling
in Borjal v. Court of Appeals.[24] In essence, he argues that the subject
articles fall under qualifiedly privileged communication under Borjal and that
the presumption of malice in Art. 354 of the RPC does not apply. He argues
that it is the burden of the prosecution to prove malice in fact.
This case must be distinguished from Borjal on several points, the first being
that Borjal stemmed from a civil action for damages based on libel, and was
not a criminal case.Second, the ruling in Borjal was that there was no
sufficient identification of the complainant, which shall be differentiated from
the present case in discussing the second assignment of error of Tulfo. Third,
the subject in Borjal was a private citizen, whereas in the present case, the
subject is a public official. Finally, it was held in Borjal that the articles written
249
by Art Borjal were fair commentaries on matters of public interest. [25] It shall
be discussed and has yet to be determined whether or not the articles fall
under the category of fair commentaries.
In passing, it must be noted that the defense of Tulfos articles being
qualifiedly privileged communication is raised for the first time in the present
petition, and this particular issue was never brought before either the RTC or
the CA. Thus, neither the RTC nor the CA had a chance to properly consider
and evaluate this defense. Tulfo now draws parallels between his case and
that of Art Borjal, and argues that the prosecution should have proved malice
in fact, and it was error on the part of the trial and appellate courts to use the
presumption of malice in law in Art. 354 of the RPC. This lays an unusual
burden on the part of the prosecution, the RTC, and the CA to refute a
defense that Tulfo had never raised before them. Whether or not the subject
articles are privileged communications must first be established by the
defense, which it failed to do at the level of the RTC and the CA. Even so, it
shall be dealt with now, considering that an appeal in a criminal proceeding
throws the whole case open for review.
There is no question of the status of Atty. So as a public official, who served
as the OIC of the Bureau of Customs Intelligence and Investigation Service
at the Ninoy Aquino International Airport (NAIA) at the time of the printing of
the allegedly libelous articles. Likewise, it cannot be refuted that the goings-
on at the Bureau of Customs, a government agency, are matters of public
interest. It is now a matter of establishing whether the articles of Tulfo are
protected as qualified privileged communication or are defamatory and
written with malice, for which he would be liable.
Freedom of the Press v. Responsibility of the Press
The Court has long respected the freedom of the press, and upheld the same
when it came to commentaries made on public figures and matters of public
interest. Even in cases wherein the freedom of the press was given greater
weight over the rights of individuals, the Court, however, has stressed that
such freedom is not absolute and unbounded. The exercise of this right or
any right enshrined in the Bill of Rights, indeed, comes with an equal burden
of responsible exercise of that right. The recognition of a right is not free
license for the one claiming it to run roughshod over the rights of others.
The Journalists Code of Ethics adopted by the National Union of Journalists
of the Philippines shows that the press recognizes that it has standards to
follow in the exercise of press freedom; that this freedom carries duties and
responsibilities. Art. I of said code states that journalists recognize the duty to
air the other side and the duty to correct substantive errors promptly. Art. VIII
states that journalists shall presume persons accused of crime of being
innocent until proven otherwise.
In the present case, it cannot be said that Tulfo followed the Journalists Code
of Ethics and exercised his journalistic freedom responsibly.
In his series of articles, he targeted one Atty. Ding So of the Bureau of
Customs as being involved in criminal activities, and was using his public
position for personal gain. He went even further than that, and called Atty. So
an embarrassment to his religion, saying ikaw na yata ang pinakagago at
250
magnanakaw sa miyembro nito.[26] He accused Atty. So of stealing from the
government with his alleged corrupt activities.[27] And when Atty. So filed a
libel suit against him, Tulfo wrote another article, challenging Atty. So,
saying, Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-
expose ang kagaguhan niya sa [Bureau of Customs].[28]
In his testimony, Tulfo admitted that he did not personally know Atty. So, and
had neither met nor known him prior to the publication of the subject
articles. He also admitted that he did not conduct a more in-depth research of
his allegations before he published them, and relied only on his source at the
Bureau of Customs.
In his defense before the trial court, Tulfo claimed knowledge of people using
the names of others for personal gain, and even stated that he had been the
victim of such a practice. He argued then that it may have been someone
else using the name of Atty. So for corrupt practices at the South Harbor, and
this person was the target of his articles.This argument weakens his case
further, for even with the knowledge that he may be in error, even knowing of
the possibility that someone else may have used Atty. Sos name, as Tulfo
surmised, he made no effort to verify the information given by his source or
even to ascertain the identity of the person he was accusing.
The trial court found Tulfos accusations against Atty. So to be false, but Tulfo
argues that the falsity of contents of articles does not affect their privileged
character. It may be that the falsity of the articles does not prove
malice. Neither did Borjal give journalists carte blanche with regard to their
publications. It cannot be said that a false article accusing a public figure
would always be covered by the mantle of qualified privileged
communication. The portion of Borjal cited by Tulfo must be scrutinized
further:
Even assuming that the contents of the articles are
false, mere error, inaccuracy or even falsity alone does not
prove actual malice. Errors or misstatements are inevitable
in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care,
the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in
our democracy. In Bulletin Publishing Corp. v. Noel we held
A newspaper especially one national in
reach and coverage, should be free to report
on events and developments in which the
public has a legitimate interest with
minimum fear of being hauled to court by
one group or another on criminal or civil
charges for libel, so long as the newspaper
respects and keeps within the standards of
morality and civility prevailing within the
general community.
To avoid the self-censorship that would necessarily
accompany strict liability for erroneous statements, rules
governing liability for injury to reputation are required to allow
an adequate margin of error by protecting some
inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the
absence of proof of actual malice on the part of the person
making the libelous statement.[29] (Emphasis supplied.)
Reading more deeply into the case, the exercise of press freedom must be
done consistent with good faith and reasonable care. This was clearly
abandoned by Tulfo when he wrote the subject articles. This is no case of
251
mere error or honest mistake, but a case of a journalist abdicating his
responsibility to verify his story and instead misinforming the
public. Journalists may be allowed an adequate margin of error in the
exercise of their profession, but this margin does not expand to cover every
defamatory or injurious statement they may make in the furtherance of their
profession, nor does this margin cover total abandonment of responsibility.
Borjal may have expanded the protection of qualified privileged
communication beyond the instances given in Art. 354 of the RPC, but this
expansion does not cover Tulfo. The addition to the instances of qualified
privileged communications is reproduced as follows:
To reiterate, fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action for
libel or slander. The doctrine of fair comment means that
while in general every discreditable imputation publicly made
is deemed false, because every man is presumed innocent
until his guilt is judicially proved, and every false imputation
is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a
comment based on a false supposition. If the comment is
an expression of opinion, based on established facts, then it
is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the
facts.[30] (Emphasis supplied.)
The expansion speaks of fair commentaries on matters of public
interest. While Borjal places fair commentaries within the scope of qualified
privileged communication, the mere fact that the subject of the article is a
public figure or a matter of public interest does not automatically exclude the
author from liability. Borjal allows that for a discreditable imputation to a
public official to be actionable, it must be a false allegation of fact or a
comment based on a false supposition. As previously mentioned, the trial
court found that the allegations against Atty. So were false and that Tulfo did
not exert effort to verify the information before publishing his articles.
Tulfo offered no proof for his accusations. He claimed to have a source in the
Bureau of Customs and relied only on this source for his columns, but did no
further research on his story. The records of the case are bereft of any
showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfos
articles related no specific details or acts committed to prove Atty. So was
indeed a corrupt public official. These columns were unsubstantiated attacks
on Atty. So, and cannot be countenanced as being privileged simply because
the target was a public official. Although wider latitude is given to defamatory
utterances against public officials in connection with or relevant to their
performance of official duties, or against public officials in relation to matters
of public interest involving them, such defamatory utterances do not
automatically fall within the ambit of constitutionally protected
speech.[31] Journalists still bear the burden of writing responsibly when
practicing their profession, even when writing about public figures or matters
of public interest.As held in In Re: Emil P. Jurado:
Surely it cannot be postulated that the law protects a
journalist who deliberately prints lies or distorts the truth; or
that a newsman may ecape liability who publishes
derogatory or defamatory allegations against a person or
entity, but recognizes no obligation bona fide to establish
beforehand the factual basis of such imputations and refuses
to submit proof thereof when challenged to do so. It outrages
all notions of fair play and due process, and reduces to
uselessness all the injunctions of the Journalists Code of
Ethics to allow a newsman, with all the potential of his
profession to influence popular belief and shape public
opinion, to make shameful and offensive charges destructive
of personal or institutional honor and repute, and when
252
 called upon to justify the same, cavalierly beg off by claiming without any bona fide effort to ascertain the truth
that to do so would compromise his sources and demanding thereof. That this norm represents the generally accepted
acceptance of his word for the reliability of those sources. [32] point of balance or adjustment between the two interests
involved is clear from a consideration of both the pertinent
civil law norms and the Code of Ethics adopted by the
journalism profession in the Philippines.[33]
The prosecution showed that Tulfo could present no proof of his allegations
against Atty. So, only citing his one unnamed source. It is not demanded of
Tulfo has clearly failed in this regard. His articles cannot even be
him that he name his source. The confidentiality of sources and their
considered as qualified privileged communication under the second
importance to journalists are accepted and respected. What cannot be
paragraph of Art. 354 of the RPC which exempts from the presumption of
accepted are journalists making no efforts to verify the information given by a
malice a fair and true report, made in good faith, without any comments or
source, and using that unverified information to throw wild accusations and
remarks, of any judicial, legislative, or other official proceedings which are
besmirch the name of possibly an innocent person. Journalists have a
not of confidential nature, or any statement, report, or speech delivered in
responsibility to report the truth, and in doing so must at least investigate
said proceedings, or of any other act performed by public officers in the
their stories before publication, and be able to back up their stories with
exercise of their functions. This particular provision has several elements
proof. The rumors and gossips spread by unnamed sources are not
which must be present in order for the report to be exempt from the
truth. Journalists are not storytellers or novelists who may just spin tales out
presumption of malice. The provision can be dissected as follows:
of fevered imaginings, and pass them off as reality. There must be some
foundation to their reports; these reports must be warranted by facts.
In order that the publication of a report of an official
proceeding may be considered privileged, the following
Jurado also established that the journalist should exercise some degree of conditions must exist:

care even when writing about public officials. The case stated: (a) That it is a fair and true report of a
Clearly, the public interest involved in freedom of speech judicial, legislative, or other
and the individual interest of judges (and for that matter, all official proceedings which are not of
other public officials) in the maintenance of private honor confidential nature, or of a statement,
and reputation need to be accommodated one to the report or speech delivered in said
other. And the point of adjustment or accommodation proceedings, or of any other act performed
between these two legitimate interests is precisely found in by a public officer in the exercise of his
the norm which requires those who, invoking freedom of functions;
speech, publish statements which are clearly defamatory to (b) That it is made in good faith; and
identifiable judges or other public officials to exercise bona (c) That it is without any comments or
fide care in ascertaining the truth of the statements they remarks.[34]
publish. The norm does not require that a journalist
guarantee the truth of what he says or publishes. But the The articles clearly are not the fair and true reports contemplated by
norm does prohibit the reckless disregard of private the provision. They provide no details of the acts committed by the subject,
reputation by publishing or circulating defamatory statements
253
Atty. So. They are plain and simple baseless accusations, backed up by the
word of one unnamed source. Good faith is lacking, as Tulfo failed to
substantiate or even attempt to verify his story before publication. Tulfo goes
even further to attack the character of the subject, Atty. So, even calling him
a disgrace to his religion and the legal profession. As none of the elements of
the second paragraph of Art. 354 of the RPC is present in Tulfos articles, it
cannot thus be argued that they are qualified privileged communications
under the RPC.
Breaking down the provision further, looking at the terms fair and
true, Tulfos articles do not meet the standard. Fair is defined as having the
qualities of impartiality and honesty. [35] True is defined as conformable to
fact; correct; exact; actual; genuine; honest.[36] Tulfo failed to satisfy these
requirements, as he did not do research before making his allegations, and it
has been shown that these allegations were baseless. The articles are not
fair and true reports, but merely wild accusations.
Even assuming arguendo that the subject articles are covered by the
shield of qualified privileged communication, this would still not protect Tulfo.
In claiming that his articles were covered by qualified privileged
communication, Tulfo argues that the presumption of malice in law under Art.
354 of the RPC is no longer present, placing upon the prosecution the
burden of proving malice in fact. He then argues that for him to be liable,
there should have been evidence that he was motivated by ill will or spite in
writing the subject articles.
The test to be followed is that laid down in New York Times Co. v.
Sullivan,[37] and reiterated in Flor v. People, which should be to determine
whether the defamatory statement was made with actual malice, that is, with
knowledge that it was false or with reckless disregard of whether it was false
or not.[38]
The trial court found that Tulfo had in fact written and published the
subject articles with reckless disregard of whether the same were false or
not, as proven by the prosecution. There was the finding that Tulfo failed to
verify the information on which he based his writings, and that the defense
presented no evidence to show that the accusations against Atty. So were
true. Tulfo cannot argue that because he did not know the subject, Atty. So,
personally, there was no malice attendant in his articles. The test laid down is
the reckless disregard test, and Tulfo has failed to meet that test.
The fact that Tulfo published another article lambasting respondent
Atty. So can be considered as further evidence of malice, as held in U.S. vs.
Montalvo,[39] wherein publication after the commencement of an action was
taken as further evidence of a malicious design to injure the victim. Tulfo did
not relent nor did he pause to consider his actions, but went on to continue
defaming respondent Atty. So. This is a clear indication of his intent to malign
Atty. So, no matter the cost, and is proof of malice.
Leaving the discussion of qualified privileged communication, Tulfo
also argues that the lower court misappreciated the evidence presented as to
the identity of the complainant: that Tulfo wrote about Atty. Ding So, an
official of the Bureau of Customs who worked at the South Harbor, whereas
the complainant was Atty. Carlos So who worked at the NAIA. He claims that
254
there has arisen a cloud of doubt as to the identity of the real party referred
to in the articles.
This argument is patently without merit.
The prosecution was able to present the testimonies of two other
witnesses who identified Atty. So from Tulfos articles. There is the
certification that there is only one Atty. So in the Bureau of Customs. And
most damning to Tulfos case is the last column he wrote on the matter,
referring to the libel suit against him by Atty. So of the Bureau of Customs. In
this article, Tulfo launched further attacks against Atty. So, stating that the
libel case was due to the exposs Tulfo had written on the corrupt acts
committed by Atty. So in the Bureau of Customs. This last article is an
admission on the part of Tulfo that Atty. So was in fact the target of his
attacks. He cannot now point to a putative Atty. Ding So at South Harbor, or
someone else using the name of Atty. So as the real subject of his attacks,
when he did not investigate the existence or non-existence of an Atty. So
at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the
Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of
the Atty. So referred to in his articles, when all the evidence points to one
Atty. So, the complainant in the present case.
Having discussed the issue of qualified privileged communication
and the matter of the identity of the person referred to in the subject articles,
there remains the petition of the editors and president of Remate, the paper
on which the subject articles appeared.
In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that
they had no participation in the editing or writing of the subject articles, and
are thus not liable.
The argument must fail.
The language of Art. 360 of the RPC is plain. It lists the persons
responsible for libel:
Art. 360. Persons responsible.Any person who shall publish,
exhibit, or cause the publication or exhibition of any
defamation in writing or by similar means, shall be
responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author
thereof.
The claim that they had no participation does not shield them from
liability. The provision in the RPC does not provide absence of participation
as a defense, but rather plainly and specifically states the responsibility of
those involved in publishing newspapers and other periodicals. It is not a
matter of whether or not they conspired in preparing and publishing the
subject articles, because the law simply so states that they are liable as they
were the author.
Neither the publisher nor the editors can disclaim liability for libelous
articles that appear on their paper by simply saying they had no participation
in the preparation of the same. They cannot say that Tulfo was all alone in
the publication of Remate, on which the subject articles appeared, when they
255

themselves clearly hold positions of authority in the newspaper, or in the
case of Pichay, as the president in the publishing company.
As Tulfo cannot simply say that he is not liable because he did not
fulfill his responsibility as a journalist, the other petitioners cannot simply say
that they are not liable because they did not fulfill their responsibilities as
editors and publishers. An editor or manager of a newspaper, who has active
charge and control of its management, conduct, and policy, generally is held
to be equally liable with the owner for the publication therein of a libelous
article.[40] On the theory that it is the duty of the editor or manager to know
and control the contents of the paper,[41] it is held that said person cannot
evade responsibility by abandoning the duties to employees, [42] so that it is
immaterial whether or not the editor or manager knew the contents of the
publication.[43] In Fermin v. People of the Philippines,[44] the Court held that
the publisher could not escape liability by claiming lack of participation in the
preparation and publication of a libelous article. The Court cited U.S. v.
Ocampo, stating the rationale for holding the persons enumerated in Art. 360
of the RPC criminally liable, and it is worth reiterating:
According to the legal doctrines and jurisprudence of
the United States, the printer of a publication containing
libelous matter is liable for the same by reason of his direct
connection therewith and his cognizance of the contents
thereof. With regard to a publication in which a libel is
printed, not only is the publisher but also all other persons
who in any way participate in or have any connection with its
publication are liable as publishers.
xxxx
In the case of State vs. Mason (26 L.R.A., 779; 26
Oreg., 273, 46 Am. St. Rep., 629), the question of the
responsibility of the manager or proprietor of a newspaper
was discussed. The court said, among other things (pp. 782,
783):
The question then recurs as to whether the manager
or proprietor of a newspaper can escape criminal
responsibility solely on the ground that the libelous article
was published without his knowledge or consent. When a
libel is published in a newspaper, such fact alone is sufficient
evidence prima facie to charge the manager or proprietor
with the guilt of its publication.
The manager and proprietor of a newspaper, we
think ought to be held prima facie criminally for whatever
appears in his paper; and it should be no defense that the
publication was made without his knowledge or consent, x x
x.
One who furnishes the means for carrying on the
publication of a newspaper and entrusts its management to
servants or employees whom he selects and controls may
be said to cause to be published what actually appears, and
should be held responsible therefore, whether he was
individually concerned in the publication or not, x x
x. Criminal responsibility for the acts of an agent or servant
in the course of his employment necessarily implies some
degree of guilt or delinquency on the part of the publisher; x
x x.
We think, therefore, the mere fact that the libelous
article was published in the newspaper without the
knowledge or consent of its proprietor or manager is no
defense to a criminal prosecution against such proprietor or
manager.
In the case of Commonwealth vs. Morgan (107
Mass., 197), this same question was considered and the
court held that in the criminal prosecution of a publisher of a
newspaper in which a libel appears, he is prima
facie presumed to have published the libel, and that the
exclusion of an offer by the defendant to prove that he never
saw the libel and was not aware of its publication until it was
pointed out to him and that an apology and retraction were
afterwards published in the same paper, gave him no ground
256
 for exception. In this same case, Mr. Justice Colt, speaking
for the court, said:
It is the duty of the proprietor of a public paper,
which may be used for the publication of improper
communications, to use reasonable caution in the conduct of
his business that no libels be published. (Whartons Criminal
Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219,
221; People vs. Wilson, 64 Ill., 195; Commonwealth vs.
Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established
by the English courts. In the case of Rex vs. Walter (3 Esp.,
21) Lord Kenyon said that he was clearly of the opinion that
the proprietor of a newspaper was answerable criminally as
well as civilly for the acts of his servants or agents for
misconduct in the management of the paper.
This was also the opinion of Lord Hale, Mr. Justice
Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and
Slander, said:
An information for libel will lie against the publisher
of a papers, although he did not know of its being put into
the paper and stopped the sale as soon as he discovered it.
In the case of People vs. Clay (86 Ill., 147) the court
held that
A person who makes a defamatory statement to the
agent of a newspaper for publication, is liable both civilly and
criminally, and his liability is shared by the agent and all
others who aid in publishing it.[45]
Under Art. 360 of the RPC, as Tulfo, the author of the subject
articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo,
and Pichay.
Though we find petitioners guilty of the crime charged, the
punishment must still be tempered with justice. Petitioners are to be
punished for libel for the first time. They did not apply for probation to avoid
service of sentence possibly in the belief that they have not committed any
crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel,
removed the penalty of imprisonment and instead imposed a fine as
penalty. In Sazon v. Court of Appeals,[47] the accused was merely fined in
lieu of the original penalty of imprisonment and fine. Freedom of expression
as well as freedom of the press may not be unrestrained, but neither must it
be reined in too harshly. In light of this, considering the necessity of a free
press balanced with the necessity of a responsible press, the penalty of a
fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in
case of insolvency, should suffice.[48] Lastly, the responsibilities of the
members of the press notwithstanding, the difficulties and hazards they
encounter in their line of work must also be taken into consideration.
The award of damages by the lower court must be modified. Art.
2199 of the Civil Code provides, Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages. There was no showing of any pecuniary
loss suffered by the complainant Atty. So. Without proof of actual loss that
can be measured, the award of actual damages cannot stand.
In Del Mundo v. Court of Appeals, it was held, as regards actual and
moral damages:
A party is entitled to an adequate compensation for
such pecuniary loss actually suffered by him as he has duly
257
 proved. Such damages, to be recoverable, must not only be
capable of proof, but must actually be proved with a was proven before the trial court does not adversely affect the offended
reasonable degree of certainty. We have emphasized that partys right to recover moral damages.[50]
these damages cannot be presumed, and courts, in making
an award must point out specific facts which could afford a
basis for measuring whatever compensatory or actual And while on the subject of moral damages, it may not be amiss to
damages are borne.
state at this juncture that Tulfos libelous articles are abhorrent not only
Moral damages, upon the other hand, may be because of its vilifying and demeaning effect on Atty. So himself, but also
awarded to compensate one for manifold injuries such as
physical suffering, mental anguish, serious anxiety, because of their impact on members of his family, especially on the children
besmirched reputation, wounded feelings and social
and possibly even the childrens children.
humiliation. These damages must be understood to be in the
concept of grants, not punitive or corrective in nature,
calculated to compensate the claimant for the injury
suffered. Although incapable of exactness and no proof of The Court can perhaps take judicial notice that the sense of kinship
pecuniary loss is necessary in order that moral damages runs deeply in a typical Filipino family, such that the whole family usually
may be awarded, the amount of indemnity being left to the
sound discretion of the court, it is imperative, nevertheless, suffers or rejoices at the misfortune or good fortune, as the case may be, of
that (1) injury must have been suffered by the claimant, and any of its member. Accordingly, any attempt to dishonor or besmirch the
(2) such injury must have sprung from any of the cases
expressed in Article 2219 and Article 2220 of the Civil name and reputation of the head of the family, as here, invariably puts the
Code. A causal relation, in fine, must exist between the act
other members in a state of disrepute, distress, or anxiety. This reality adds
or omission referred to in the Code which underlies, or gives
rise to, the case or proceeding on the one hand, and the an imperative dimension to the award of moral damages to the defamed
resulting injury, on the other hand; i.e. the first must be the
proximate cause and the latter the direct consequence party.
thereof.[49]

The award of exemplary damages, however, cannot be

It was the articles of Tulfo that caused injury to Atty. So, and for that justified. Under Art. 2230 of the Civil Code, In criminal offenses, exemplary

Atty. So deserves the award of moral damages. Justification for the award of damages as a part of the civil liability may be imposed when the crime was

moral damages is found in Art. 2219(7) of the Civil Code, which states that committed with one or more aggravating circumstances. Such damages are

moral damages may be recovered in cases of libel, slander, or any other separate and distinct from fines and shall be paid to the offended party. No

form of defamation. As the cases involved are criminal cases of libel, they fall aggravating circumstances accompanied the commission of the libelous acts;

squarely within the ambit of Art. 2219(7). thus, no exemplary damages can be awarded.

Moral damages can be awarded even in the absence of actual or Conclusion

compensatory damages. The fact that no actual or compensatory damage

258
 The press wields enormous power. Through its widespread reach
and the information it imparts, it can mold and shape thoughts and opinions
of the people. It can turn the tide of public opinion for or against someone, it
can build up heroes or create villains.
It is in the interest of society to have a free press, to have liberal
discussion and dissemination of ideas, and to encourage people to engage in
healthy debate. It is through this that society can progress and develop.
Those who would publish under the aegis of freedom of the press
must also acknowledge the corollary duty to publish responsibly. To show
that they have exercised their freedom responsibly, they must go beyond
merely relying on unfounded rumors or shadowy anonymous sources. There
must be further investigation conducted, some shred of proof found to
support allegations of misconduct or even criminal activity. It is in fact too
easy for journalists to destroy the reputation and honor of public officials, if
they are not required to make the slightest effort to verify their
accusations. Journalists are supposed to be reporters of facts, not fiction,
and must be able to back up their stories with solid research. The power of
the press and the corresponding duty to exercise that power judiciously
cannot be understated.
But even with the need for a free press, the necessity that it be free
does not mean that it be totally unfettered. It is still acknowledged that the
freedom can be abused, and for the abuse of the freedom, there must be a
corresponding sanction. It falls on the press to wield such enormous power
responsibly. It may be a clich that the pen is mightier than the sword, but in
this particular case, the lesson to be learned is that such a mighty weapon
should not be wielded recklessly or thoughtlessly, but always guided by
conscience and careful thought.
A robust and independently free press is doubtless one of the most
effective checks on government power and abuses. Hence, it behooves
government functionaries to respect the value of openness and refrain from
concealing from media corruption and other anomalous practices occurring
within their backyard. On the other hand, public officials also deserve respect
and protection against false innuendoes and unfounded accusation of official
wrongdoing from an abusive press. As it were, the law and jurisprudence on
libel heavily tilt in favor of press freedom. The common but most unkind
perception is that government institutions and their officers and employees
are fair game to official and personal attacks and even ridicule. And the
practice on the ground is just as disconcerting. Reports and accusation of
official misconduct often times merit front page or primetime treatment, while
defenses set up, retraction issued, or acquittal rendered get no more, if ever,
perfunctory coverage. The unfairness needs no belaboring. The balm of clear
conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government
impasse is the fact that a maliciously false imputation of corruption and
dishonesty against a public official, as here, leaves a stigmatizing mark not
only on the person but also the office to which he belongs. In the ultimate
analysis, public service also unduly suffers.
WHEREFORE, in view of the foregoing, the petitions in G.R. Nos.
161032 and 161176 are DISMISSED. The CA Decision dated June 17, 2003
in CA-G.R. CR No. 25318 is hereby AFFIRMED with
the MODIFICATIONS that in lieu of imprisonment, the penalty to be imposed
upon petitioners shall be a fine of six thousand pesos (PhP 6,000) for each
259

count of libel, with subsidiary imprisonment in case of insolvency, while the
award of actual damages and exemplary damages is DELETED. The
Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in
Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows:
WHEREFORE, the Court finds the accused ERWIN
TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN
BARLIZO, and PHILIP PICHAY guilty beyond reasonable
doubt of four (4) counts of the crime of LIBEL, as defined in
Article 353 of the Revised Penal Code, and sentences
EACH of the accused to pay a fine of SIX THOUSAND
PESOS (PhP 6,000) per count of libel with subsidiary
imprisonment, in case of insolvency.
Considering that the accused Erwin Tulfo, Susan
Cambri, Rey Salao, Jocelyn Barlizo, and Philip Pichay wrote
and published the four (4) defamatory articles with reckless
disregard whether it was false or not, the said articles being
libelous per se, they are hereby ordered to pay
complainant Atty. Carlos T. So, jointly and severally, the
sum of ONE MILLION PESOS (PhP 1,000,000) as moral
damages. The claim of actual and exemplary damages is
denied for lack of merit.
Costs against petitioners.
U.S. Supreme Court
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg v. Ohio
No. 492
Argued February 27, 1969
Decided June 9, 1969
395 U.S. 444
APPEAL FROM THE SUPREME COURT OF OHIO
Syllabus
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal
Syndicalism statute for
"advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage,
violence, or unlawful methods of terrorism as a means of accomplishing
industrial or political reform"
and for
"voluntarily assembl[ing] with any society, group or assemblage of persons
formed to teach or advocate the doctrines of criminal syndicalism."
Neither the indictment nor the trial judge's instructions refined the statute's
definition of the crime in terms of mere advocacy not distinguished from
incitement to imminent lawless action.
Held: Since the statute, by its words and as applied, purports to punish mere
advocacy and to forbid, on pain of criminal punishment, assembly with others
merely to advocate the described type of action, it falls within the
condemnation of the First and Fourteenth Amendments. Freedoms of speech
and press do not permit a State to forbid advocacy of the use of force or of
law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action. Whitney v. California, 274 U. S. 357, overruled.
Reversed.
PER CURIAM.
The appellant, a leader of a Ku Klux Klan group, was convicted under the
Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or
propriety chanroblesvirtualawlibrary
Page 395 U. S. 445
of crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform" and for
260
"voluntarily assembl[ing] with any society, group, or assemblage of persons
formed to teach or advocate the doctrines of criminal syndicalism."
Ohio Rev.Code Ann. 2923.13. He was fined $1,000 and sentenced to one
to 10 years' imprisonment. The appellant challenged the constitutionality of
the criminal syndicalism statute under the First and Fourteenth Amendments
to the United States Constitution, but the intermediate appellate court of Ohio
affirmed his conviction without opinion. The Supreme Court of Ohio
dismissed his appeal sua sponte "for the reason that no substantial
constitutional question exists herein." It did not file an opinion or explain its
conclusions. Appeal was taken to this Court, and we noted probable
jurisdiction. 393 U. S. 94 (196). We reverse.
The record shows that a man, identified at trial as the appellant, telephoned
an announcer-reporter on the staff of a Cincinnati television station and
invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton
County. With the cooperation of the organizers, the reporter and a
cameraman attended the meeting and filmed the events. Portions of the films
were later broadcast on the local station and on a national network.
The prosecution's case rested on the films and on testimony identifying the
appellant as the person who communicated with the reporter and who spoke
at the rally. The State also introduced into evidence several articles
appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a
Bible, and a red hood worn by the speaker in the films.
One film showed 12 hooded figures, some of whom carried firearms. They
were gathered around a large wooden cross, which they burned. No one was
present chanroblesvirtualawlibrary
Page 395 U. S. 446
other than the participants and the newsmen who made the film. Most of the
words uttered during the scene were incomprehensible when the film was
projected, but scattered phrases could be understood that were derogatory of
Negroes and, in one instance, of Jews. [Footnote 1] Another scene on the
same film showed the appellant, in Klan regalia, making a speech. The
speech, in full, was as follows:
"This is an organizers' meeting. We have had quite a few members here
today which are -- we have hundreds, hundreds of members throughout the
State of Ohio. I can quote from a newspaper clipping from the Columbus,
Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more
members in the State of Ohio than does any other organization. We're not a
revengent organization, but if our President, our Congress, our Supreme
Court, continues to suppress the white, Caucasian race, it's possible that
there might have to be some revengeance taken."
"We are marching on Congress July the Fourth, four hundred thousand
strong. From there, we are dividing into two groups, one group to march on
St. Augustine, Florida, the other group to march into Mississippi. Thank you.
"
Page 395 U. S. 447
The second film showed six hooded figures one of whom, later identified as
the appellant, repeated a speech very similar to that recorded on the first
film. The reference to the possibility of "revengeance" was omitted, and one
sentence was added: "Personally, I believe the nigger should be returned to
Africa, the Jew returned to Israel." Though some of the figures in the films
carried weapons, the speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to
1920, identical or quite similar laws were adopted by 20 States and two
territories. E. Dowell, A History of Criminal Syndicalism Legislation in the
United States 21 (1939). In 1927, this Court sustained the constitutionality of
California's Criminal Syndicalism Act, Cal.Penal Code 11400-11402, the
text of which is quite similar to that of the laws of Ohio. Whitney v.
California, 274 U. S. 357 (1927). The Court upheld the statute on the ground
that, without more, "advocating" violent means to effect political and
economic change involves such danger to the security of the State that the
State may outlaw it. Cf. Fiske v. Kansas, 274 U. S. 380 (1927).
But Whitney has been thoroughly discredited by later decisions. See Dennis
v. United States, 341 U. S. 494, at 341 U. S. 507 (1951). These later
decisions have fashioned the principle that the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action. [Footnote 2] As we chanroblesvirtualawlibrary
Page 395 U. S. 448
said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961),
261
"the mere abstract teaching . . . of the moral propriety or even moral PHILIPPINES represented by its
necessity for a resort to force and violence is not the same as preparing a National President, Jose Anselmo I. Present:
group for violent action and steeling it to such action." Cadiz, H. HARRY L. ROQUE, and
JOEL RUIZ BUTUYAN, PUNO, C.J., Chairperson,
See also Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259-261 (1937); Bond Petitioners, CARPIO MORALES,
v. Floyd, 385 U. S. 116, 385 U. S. 134(1966). A statute which fails to draw LEONARDO-DE CASTRO,
this distinction impermissibly intrudes upon the freedoms guaranteed by the BERSAMIN, and
First and Fourteenth Amendments. It sweeps within its condemnation speech - versus - VILLARAMA, JR., JJ.
which our Constitution has immunized from governmental control. Cf. Yates
v. United States, 354 U. S. 298 (1957); De Jonge v. Oregon, 299 U. S.
353 (1937); Stromberg v. California, 283 U. S. 359 (1931). See also United HONORABLE MANILA MAYOR JOSE
States v. Robel, 389 U. S. 258 (1967); Keyishian v. Board of Regents, 385 U. LITO ATIENZA,
S. 589 (1967); Elfbrandt v. Russell, 384 U. S. 11 (1966); Aptheker v. Respondent. Promulgated:
Secretary of State, 378 U. S. 500 (1964); Baggett v. Bullitt, 377 U. S. February 24, 2010
360 (1964).
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained.
The Act punishes persons who "advocate or teach the duty, necessity, or
propriety" of violence "as a means of accomplishing industrial or political
DECISION
reform"; or who publish or circulate or display any book or paper containing
such advocacy; or who "justify" the commission of violent acts "with intent to
exemplify, spread or advocate the propriety of the doctrines of criminal
syndicalism"; or who "voluntarily assemble" with a group formed "to teach or
advocate the doctrines of criminal syndicalism." Neither the indictment nor CARPIO MORALES, J.:
the trial judge's instructions to the jury in any way refined the statute's bald
definition of the crime chanroblesvirtualawlibrary Petitioners Integrated Bar of the Philippines[1] (IBP) and lawyers H. Harry L.

Page 395 U. S. 449 Roque and Joel R. Butuyan appeal the June 28, 2006 Decision[2] and the
October 26, 2006 Resolution[3] of the Court of Appeals that found no grave
in terms of mere advocacy not distinguished from incitement to imminent
abuse of discretion on the part of respondent Jose Lito Atienza, the then
lawless action. [Footnote 3]
mayor of Manila, in granting a permit to rally in a venue other than the one
Accordingly, we are here confronted with a statute which, by its own words applied for by the IBP.
and as applied, purports to punish mere advocacy and to forbid, on pain of
criminal punishment, assembly with others merely to advocate the described
type of action. [Footnote 4] Such a statute falls within the condemnation of On June 15, 2006, the IBP, through its then National President Jose
the First and Fourteenth Amendments. The contrary teaching of Whitney v.
Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a
California, supra, cannot be supported, and that decision is therefore
overruled. letter application[4] for a permit to rally at the foot of Mendiola Bridge on June
22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers
Reversed.
and members, law students and multi-sectoral organizations.
INTEGRATED BAR OF THE G.R. No. 175241
262
 The MPD thereupon instituted on June 26, 2006 a criminal
Respondent issued a permit[5] dated June 16, 2006 allowing the IBP to action,[8] docketed as I.S. No. 06I-12501, against Cadiz for violating the
stage a rally on given date but indicated therein Plaza Miranda as the Public Assembly Act in staging a rally at a venue not indicated in the permit,
venue, instead of Mendiola Bridge, which permit the IBP received on June to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
19, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a first assailed issuance, that the petition became moot and lacked merit. The
petition for certiorari docketed as CA-G.R. SP No. 94949.[6] The petition appellate court also denied petitioners motion for reconsideration by the
having been unresolved within 24 hours from its filing, petitioners filed second assailed issuance.
before this Court on June 22, 2006 a petition for certiorari docketed as G.R.
No. 172951 which assailed the appellate courts inaction or refusal to resolve Hence, the filing of the present petition for review on certiorari, to which
the petition within the period provided under the Public Assembly Act of respondent filed his Comment of November 18, 2008 which merited
1985.[7] petitioners Reply of October 2, 2009.

The Court, by Resolutions of July 26, 2006, August 30, 2006 and
The main issue is whether the appellate court erred in holding that the
November 20, 2006, respectively, denied the petition for being moot and
modification of the venue in IBPs rally permit does not constitute grave
academic, denied the relief that the petition be heard on the merits in view of
abuse of discretion.
the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration.
Petitioners assert that the partial grant of the application runs
contrary to the Pubic Assembly Act and violates their constitutional right to
freedom of expression and public assembly.
The rally pushed through on June 22, 2006 at Mendiola Bridge,
after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent
from the Manila Police District (MPD) earlier barred petitioners from
proceeding thereto. Petitioners allege that the participants voluntarily
The Court shall first resolve the preliminary issue of mootness.
dispersed after the peaceful conduct of the program.

263
Undoubtedly, the petition filed with the appellate court on June 21,
2006 became moot upon the passing of the date of the rally on June 22,
2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness. However, even in
cases where supervening events had made the cases moot, this Court did
not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. Moreover, as an
exception to the rule on mootness, courts will decide a question otherwise
moot if it is capable of repetition, yet evading review. [9]
In the present case, the question of the legality of a modification of a permit
to rally will arise each time the terms of an intended rally are altered by the
concerned official, yet it evades review, owing to the limited time in
processing the application where the shortest allowable period is five days
prior to the assembly. The susceptibility of recurrence compels the Court to
definitively resolve the issue at hand.
Respecting petitioners argument that the issues presented in CA-G.R. SP
No. 94949 pose a prejudicial question to the criminal case against Cadiz,
the Court finds it improper to resolve the same in the present case.
Under the Rules,[10] the existence of a prejudicial question is a ground in a
petition to suspend proceedings in a criminal action. Since suspension of
the proceedings in the criminal action may be made only upon petition and
not at the instance of the judge or the investigating prosecutor, [11] the latter
cannot take cognizance of a claim of prejudicial question without a petition
to suspend being filed. Since a petition to suspend can be filed only in the
criminal action,[12] the determination of the pendency of a prejudicial
question should be made at the first instance in the criminal action, and not
before this Court in an appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found
no grave abuse of discretion on the part of respondent because the Public
Assembly Act does not categorically require respondent to specify in writing
the imminent and grave danger of a substantive evil which warrants the
denial or modification of the permit and merely mandates that the action
taken shall be in writing and shall be served on respondent within 24
hours. The appellate court went on to hold that respondent is authorized to
regulate the exercise of the freedom of expression and of public assembly
which are not absolute, and that the challenged permit is consistent with
Plaza Mirandas designation as a freedom park where protest rallies are
allowed without permit.
The Court finds for petitioners.
264

Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on
the application within two (2) working days from the date the
application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the application for
a permit, said application shall be posted by the applicant on
the premises of the office of the mayor and shall be deemed
to have been filed.
(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on
the application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of
law.
(f) In case suit is brought before the Metropolitan Trial Court,
the Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within
forty-eight (48) hours after receipt of the same. No appeal
bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to
the applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are
hereby allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
Ermita,[13] the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even
prior to the 1935 Constitution, Justice Malcolm had occasion
to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the
majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of
grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged
governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to
265
 the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a imprimatur as the appellate court would have it, render illusory any judicial
serious evil to public safety, public morals, public health, scrutiny thereof.
or any other legitimate public interest.[14] (emphasis
supplied)
It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered
The Court in Bayan stated that the provisions of the Public Assembly Act of
discretion. While prudence requires that there be a realistic
1985 practically codified the 1983 ruling in Reyes v. Bagatsing.[15] In appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still
juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent the assumption especially so where the assembly is
portion of the Reyes case, the Court elucidated as follows: scheduled for a specific public place is that the permit must
be for the assembly being held there. The exercise of such
a right, in the language of Justice Roberts, speaking for
x x x [The public official concerned shall] appraise whether there the American Supreme Court, is not to be "abridged on
may be valid objections to the grant of the permit or to its grant but the plea that it may be exercised in some other
at another public place. It is an indispensable condition to such place.[17] (emphasis and underscoring supplied)
refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision,
Notably, respondent failed to indicate in his Comment any basis or
whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to explanation for his action. It smacks of whim and caprice for respondent to
the proper judicial authority.[16] (italics and underscoring supplied)
just impose a change of venue for an assembly that was slated for a specific
In modifying the permit outright, respondent gravely abused his discretion
public place. It is thus reversible error for the appellate court not to have
when he did not immediately inform the IBP who should have been heard
found such grave abuse of discretion and, under specific statutory
first on the matter of his perceived imminent and grave danger of a
substantive evil that may warrant the changing of the venue. The
provision, not to have modified the permit in terms satisfactory to the
opportunity to be heard precedes the action on the permit, since the
applicant.[18]
applicant may directly go to court after an unfavorable action on the permit.

WHEREFORE, the assailed Decision and Resolution of the Court of

Respondent failed to indicate how he had arrived at modifying the terms of
Appeals in CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES
the permit against the standard of a clear and present danger test which, it
that respondent committed grave abuse of discretion in modifying the rally
bears repeating, is an indispensable condition to such modification. Nothing
permit issued on June 16, 2006 insofar as it altered the venue
in the issued permit adverts to an imminent and grave danger of a
from Mendiola Bridge to Plaza Miranda.
substantive evil, which blank denial or modification would, when granted
266
 G.R. No. 199462 relates to Criminal Case Nos. 146413-PSG, 146414-PSG
and 146415-PSG, entitled "People of the Philippines v. P/SINSP Hansel M.
Marantan, et al.," pending before the Regional Trial Court of Pasig City,
Branch 265 (RTC), where Marantan and his co-accused are charged with
SO ORDERED. homicide. The criminal cases involve an incident which transpired on
November 7, 2005, where Anton Cu-Unjieng (son of respondent LaO),
Francis Xavier Manzano, and Brian Anthony Dulay, were shot and killed by
police officers in front of the AIC Gold Tower at Ortigas Center, which
CONCHITA CARPIO MORALES incident was captured by a television crew from UNTV 37 (Ortigas incident).
Associate Justice
In G.R. No. 199462, LaO, together with the other petitioners, prayed, among
others, that the resolution of the Office of the Ombudsman downgrading the
charges from murder to homicide be annulled and set aside; that the
corresponding informations for homicide be withdrawn; and that charges for
murder be filed.

In the meantime, on January 6, 2013, a shooting incident occurred in

Barangay Lumutan, Municipality of Atimonan, Province of Quezon, where
Marantan was the ground commander in a police-military team, which
resulted in the death of thirteen (13) men (Atimonan incident). This
encounter, according to Marantan, elicited much negative publicity for him.

Marantan alleges that, riding on the unpopularity of the Atimonan incident,

G.R. No. 205956 February 12, 2014 LaO and her counsel, Atty. Diokno, and one Ernesto Manzano, organized
and conducted a televised/radio broadcasted press conference. During the
press conference, they maliciously made intemperate and unreasonable
P/SUPT. HANSEL M. MARANTAN, Petitioner,
comments on the conduct of the Court in handling G.R. No. 199462, as well
vs.
as contumacious comments on the merits of the criminal cases before the
ATTY. JOSE MANUEL DIOKNO and MONIQUE CU-UNJIENG
RTC, branding Marantan and his co-accused guilty of murder in the Ortigas
LA'O, Respondents.
incident.

RESOLUTION
MENDOZA, J.:
Before the Court is a petition to cite respondents in contempt of Court.
Petitioner P/Supt. Hansel M. Marantan (Marantan) is the respondent in G.R.
No. 199462,1 a petition filed on December 6, 2011, but already dismissed
although the disposition is not yet final. Respondent Monique Cu-Unjieng
La'O (La O) is one of the petitioners in the said case, while respondent Atty.
Jose Manuel Diokno (Atty. Diokno) is her counsel therein.
On January 29, 2013, this interview was featured in "TV Patrol," an ABS-
CBN news program. Marantan quotes2 a portion of the interview, as follows:
Atty. Diokno
So ang lumabas din sa video that the actual raw footage of the UNTV is very
long. Ang nangyari, you see the police officers may nilalagay sila sa loob ng
sasakyan ng victims na parang pinapalabas nila that there was a shootout
pero ang nangyari na yon e tapos na, patay na.
Ernesto Manzano

267
Kung sinasabi nilang carnapper dapat huliin nilang buhay yong mga mahal
naming sa buhay and kinasuhan pero ang ginawa nila, sila mismo na ang
nagbigay ng hatol.
Monique Cu-Unjieng Lao
Sinasabi nila na may kinarnap siya, tinutukan ng baril, hindi magagawa yong
kasi kilala ko siya, anak ko yon e x x x he is already so arrogant because
they protected him all these years. They let him get away with it. So even
now, so confident of what he did, I mean confident of murdering so many
innocent individuals.
Atty. Diokno
Despite the overwhelming evidence, however, Supt. Marantan and company
have never been disciplined, suspended or jailed for their participation in the
Ortigas rubout, instead they were commended by their superiors and some
like Marantan were even promoted to our consternation and disgust. Ang
problema po e hangang ngayon, we filed a Petition in the Supreme Court
December 6, 2011, humihingi po kami noon ng Temporary Restraining
Order, etc. hangang ngayon wala pa pong action ang Supreme Court yong
charge kung tama ba yong pag charge ng homicide lamang e subalit kitang
kita naman na they were killed indiscriminately and maliciously.
Atty. Diokno
Eight years have passed since our love ones were murdered, but the
policemen who killed them led by Supt. Hansel Marantan the same man who
is involved in the Atimonan killings still roam free and remain unpunished.
Mr. President, while we are just humble citizens, we firmly believe that police
rub-out will not stop until you personally intervene.
Ernesto Manzano
Up to this date, we are still praying for justice.
Monique Cu-Unjieng Lao
Ilalaban namin ito no matter what it takes, we have the evidence with us, I
mean everything shows that they were murdered.
(Emphasis supplied by petitioner)
Marantan submits that the respondents violated the sub judice rule, making
them liable for indirect contempt under Section 3(d) of Rule 71 of the Rules
of Court, for their contemptuous statements and improper conduct tending
directly or indirectly to impede, obstruct or degrade the administration of
justice. He argues that their pronouncements and malicious comments
delved not only on the supposed inaction of the Court in resolving the
petitions filed, but also on the merits of the criminal cases before the RTC
and prematurely concluded that he and his co-accused are guilty of murder.
It is Marantas position that the press conference was organized by the
respondents for the sole purpose of influencing the decision of the Court in
the petition filed before it and the outcome of the criminal cases before the
RTC by drawing an ostensible parallelism between the Ortigas incident and
the Atimonan incident.
The respondents, in their Comment,3 argue that there was no violation of the
sub judice rule as their statements were legitimate expressions of their
desires, hopes and opinions which were taken out of context and did not
actually impede, obstruct or degrade the administration of justice in a
concrete way; that no criminal intent was shown as the utterances were not
on their face actionable being a fair comment of a matter of public interest
and concern; and that this petition is intended to stifle legitimate speech.
The petition must fail.
The sub judice rule restricts comments and disclosures pertaining to the
judicial proceedings in order to avoid prejudging the issue, influencing the
court, or obstructing the administration of justice. A violation of this rule may
render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules
of Court,4 which reads:
Section 3. Indirect contempt to be punished after charge and hearing. x x x
a person guilty of any of the following acts may be punished for indirect
contempt:
xxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice[.]
The proceedings for punishment of indirect contempt are criminal in
nature.5 This form of contempt is conduct that is directed against the dignity
and authority of the court or a judge acting judicially; it is an act obstructing
the administration of justice which tends to bring the court into disrepute or
268
disrespect. Intent is a necessary element in criminal contempt, and no one
can be punished for a criminal contempt unless the evidence makes it clear
that he intended to commit it.6
For a comment to be considered as contempt of court "it must really appear"
that such does impede, interfere with and embarrass the administration of
justice.7 What is, thus, sought to be protected is the all-important duty of the
court to administer justice in the decision of a pending case. 8 The specific
rationale for the sub judice rule is that courts, in the decision of issues of fact
and law should be immune from every extraneous influence; that facts
should be decided upon evidence produced in court; and that the
determination of such facts should be uninfluenced by bias, prejudice or
sympathies.91wphi1
The power of contempt is inherent in all courts in order to allow them to
conduct their business unhampered by publications and comments which
tend to impair the impartiality of their decisions or otherwise obstruct the
administration of justice. As important as the maintenance of freedom of
speech, is the maintenance of the independence of the Judiciary. The "clear
and present danger" rule may serve as an aid in determining the proper
constitutional boundary between these two rights.10
The "clear and present danger" rule means that the evil consequence of the
comment must be "extremely serious and the degree of imminence
extremely high" before an utterance can be punished. There must exist a
clear and present danger that the utterance will harm the administration of
justice. Freedom of speech should not be impaired through the exercise of
the power of contempt of court unless there is no doubt that the utterances in
question make a serious and imminent threat to the administration of justice.
It must constitute an imminent, not merely a likely, threat.11
As to the conduct of the Court, a review of the respondents' comments
reveals that they were simply stating that it had not yet resolved their petition.
There was no complaint, express or implied, that an inordinate amount of
time had passed since the petition was filed without any action from the
Court. There appears no attack or insult on the dignity of the Court either.
"A public utterance or publication is not to be denied the constitutional
protection of freedom of speech and press merely because it concerns a
judicial proceeding still pending in the cou1is, upon the theory that in such a
case, it must necessarily tend to obstruct the orderly and fair administration
of justice."12 By no stretch of the imagination could the respondents'
comments pose a serious and imminent threat to the administration of
justice. No criminal intent to impede, obstruct, or degrade the administration
of justice can be inferred from the comments of the respondents.
Freedom of public comment should, in borderline instances, weigh heavily
against a possible tendency to influence pending cases. 13 The power to
punish for contempt, being drastic and extraordinary in its nature, should not
be resorted to unless necessary in the interest of justice. 14 In the present
case, such necessity is wanting.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

The contemptuous statements made by the respondents allegedly relate to

the merits of the case, particularly the guilt of petitioner, and the conduct of
the Court as to its failure to decide G.R. No. 199462.

As to the merits, the comments seem to be what the respondents claim to be

an expression of their opinion that their loved ones were murdered by
Marantan. This is merely a reiteration of their position in G.R. No. 199462,
which precisely calls the Court to upgrade the charges from homicide to
murder. The Court detects no malice on the face of the said statements. The
mere restatement of their argument in their petition cannot actually, or does
not even tend to, influence the Court.

269
 Syllabus

1. In the Roth case, the constitutionality of 18 U.S.C. 1461, which makes

punishable the mailing of material that is "obscene, lewd, lascivious, or filthy .
. . or other publication of an indecent character," and Roth's conviction
thereunder for mailing an obscene book and obscene circulars and
advertising, are sustained. Pp. 354 U. S. 479-494.

2. In the Albert case, the constitutionality of 311 of West's California Penal

Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale,
or to advertise, material that is "obscene or indecent," and Alberts' conviction
thereunder for lewdly keeping for sale obscene and indecent books and for
writing, composing, and publishing an obscene advertisement of them, are
sustained. Pp. 354 U. S. 479-494.

3. Obscenity is not within the area of constitutionally protected freedom of

speech or press either (1) under the First Amendment, as to the Federal
Government, or (2) under the Due Process Clause of the Fourteenth
Amendment, as to the States. Pp. 354 U. S. 481-485.

(a) In the light of history, it is apparent that the unconditional phrasing of the
First Amendment was not intended to protect every utterance. Pp. 354 U. S.
482-483.

U.S. Supreme Court (b) The protection given speech and press was fashioned to assure
unfettered interchange of ideas for the bringing about of political and social
Roth v. United States, 354 U.S. 476 (1957) changes desired by the people. P. 354 U. S. 484.

Roth v. United States (c) All ideas having even the slightest redeeming social importance --
unorthodox ideas, controversial ideas, even ideas hateful to the prevailing
No. 582 climate of opinion -- have the full protection of the guaranties, unless
excludable because they encroach upon the limited area of more important
Argued April 22, 1957 interests; but implicit in the history of the First Amendment is the rejection of
obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484-
485. chanroblesvirtualawlibrary
Decided June 24, 1957*

Page 354 U. S. 477

354 U.S. 476

4. Since obscenity is not protected, constitutional guaranties were not

CERTIORARI TO THE UNITED STATES COURT OF APPEALS
violated in these cases merely because, under the trial judges' instructions to
the juries, convictions could be had without proof either that the obscene
FOR THE SECOND CIRCUIT material would perceptibly create a clear and present danger of antisocial

270
conduct, or probably would induce its recipients to such
conduct. Beauharnais v. Illinois, 343 U. S. 250. Pp. 354 U. S. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material
which deals with sex in a manner appealing to prurient interest --
i.e., material having a tendency to excite lustful thoughts. P. 354 U. S. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection
of freedom of speech and press for material which does not treat sex in a
manner appealing to prurient interest. Pp. 354 U. S. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of
constitutional infirmity, is whether, to the average person, applying
contemporary community standards, the dominant theme of the material,
taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard
and used the proper definition of obscenity. Pp. 354 U. S. 489-490.
5. When applied according to the proper standard for judging obscenity, 18
U.S.C. 1461, which makes punishable the mailing of material that is
"obscene, lewd, lascivious, or filthy . . . or other publication of an indecent
character," does not (1) violate the freedom of speech or press guaranteed
by the First Amendment, or (2) violate the constitutional requirements of due
process by failing to provide reasonably ascertainable standards of guilt.
Pp. 354 U. S. 491-492.
6. When applied according to the proper standard for judging obscenity,
311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a
misdemeanor to keep for sale or to advertise material that is "obscene or
indecent," does not (1) violate the freedom of speech or press guaranteed by
the Fourteenth Amendment against encroachment by the States, or (2)
violate the constitutional requirements of due process by failing to provide
reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.
7. The federal obscenity statute, 18 U.S.C. 1461, punishing the use of the
mails for obscene material, is a proper exercise of the postal power
delegated to Congress by Art. I, 8, cl. 7, and it chanroblesvirtualawlibrary
Page 354 U. S. 478
does not unconstitutionally encroach upon the powers reserved to the States
by the Ninth and Tenth Amendments. Pp.354 U. S. 492-493.
8. The California obscenity statute here involved is not repugnant to Art. I,
8, cl. 7, since it does not impose a burden upon, or interfere with, the federal
postal functions -- even when applied to a mail-order business. Pp. 354 U. S.
493-494.
237 F.2d 796, affirmed.
138 Cal.App.2d Supp. 909, 292 P.2d 90, affirmed. chanroblesvirtualawlibrary
Page 354 U. S. 479
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The constitutionality of a criminal obscenity statute is the question in each of
these cases. In Roth, the primary constitutional question is whether the
federal obscenity statute [Footnote 1] violates the provision of the First
Amendment that "Congress shall make no law . . . abridging the freedom of
speech, or of the press. . . ." In Alberts, the primary constitutional question is
whether the obscenity provisions of the California Penal Code [Footnote 2]
invade the freedoms of speech and press as they may be incorporated
in chanroblesvirtualawlibrary
Page 354 U. S. 480
the liberty protected from state action by the Due Process Clause of the
Fourteenth Amendment.
Other constitutional questions are: whether these statutes violate due
process, [Footnote 3] because too vague to support conviction for crime;
whether power to punish speech and press offensive to decency and morality
is in the States alone, so that the federal obscenity statute violates the Ninth
and Tenth Amendments (raised in Roth), and whether Congress, by enacting
the federal obscenity statute, under the power delegated by Art. I, 8, cl. 7,
to establish post offices and post roads, preempted the regulation of the
subject matter (raised in Alberts).
Roth conducted a business in New York in the publication and sale of books,
photographs and magazines. He used circulars and advertising matter to
solicit sales. He was convicted by a jury in the District Court for the Southern
271
District of New York upon 4 counts of a 26-count indictment charging him
with mailing obscene circulars and advertising, and an obscene book, in
violation of the federal obscenity statute. His conviction was affirmed by the
Court of Appeals for the Second Circuit. [Footnote 4] We granted certiorari.
[Footnote 5] chanroblesvirtualawlibrary
Page 354 U. S. 481
Alberts conducted a mail-order business from Los Angeles. He was
convicted by the Judge of the Municipal Court of the Beverly Hills Judicial
District (having waived a jury trial) under a misdemeanor complaint which
charged him with lewdly keeping for sale obscene and indecent books, and
with writing, composing and publishing an obscene advertisement of them, in
violation of the California Penal Code. The conviction was affirmed by the
Appellate Department of the Superior Court of the State of California in and
for the County of Los Angeles. [Footnote 6] We noted probable jurisdiction.
[Footnote 7]
The dispositive question is whether obscenity is utterance within the area of
protected speech and press. [Footnote 8] Although this is the first time the
question has been squarely presented to this Court, either under the First
Amendment or under the Fourteenth Amendment, expressions found in
numerous opinions indicate that this Court has always assumed that
obscenity is not protected by the freedoms of speech and press. Ex parte
Jackson, 96 U. S. 727, 96 U. S. 736-737; United States v. Chase, 135 U. S.
255, 135 U. S. 261; Robertson v. Baldwin, 165 U. S. 275, 165 U. S.
281; Public Clearing House v. Coyne, 194 U. S. 497, 194 U. S. 508; Hoke v.
United States, 227 U. S. 308, 227 U. S. 322; Near v. Minnesota, 283 U. S.
697, 283 U. S. 716; Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S.
571-572; Hannegan v. Esquire, Inc., 327 U. S. 146, 327 U. S. 158; Winters v.
New York, 333 U. S. 507, 333 U. S. 510; Beauharnais v. Illinois, 343 U. S.
250, 343 U. S. 266. [Footnote 9] chanroblesvirtualawlibrary
Page 354 U. S. 482
The guaranties of freedom of expression [Footnote 10] in effect in 10 of the
14 States which by 1792 had ratified the Constitution, gave no absolute
protection for every utterance. Thirteen of the 14 States provided for the
prosecution of libel, [Footnote 11] and all of those States made either
blasphemy or profanity, or both, statutory crimes. [Footnote 12] As early
as chanroblesvirtualawlibrary
Page 354 U. S. 483
1712, Massachusetts made it criminal to publish "any filthy, obscene, or
profane song, pamphlet, libel or mock sermon" in imitation or mimicking of
religious services. Acts and Laws of the Province of Mass. Bay, c. CV, 8
(1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and
obscenity were related offenses.
In light of this history, it is apparent that the unconditional phrasing of the
First Amendment was not intended to protect every utterance. This phrasing
did not prevent this Court from concluding that libelous utterances are not
within the area of constitutionally protected speech. Beauharnais v.
Illinois, 343 U. S. 250, 343 U. S. 266. At the time of the adoption of the First
Amendment, obscenity law was not as fully developed as libel law, but there
is sufficiently contemporaneous evidence to show that obscenity, too, was
outside the protection intended for speech and press. [Footnote
13] chanroblesvirtualawlibrary
Page 354 U. S. 484
The protection given speech and press was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social changes
desired by the people. This objective was made explicit as early as 1774 in a
letter of the Continental Congress to the inhabitants of Quebec:
"The last right we shall mention regards the freedom of the press. The
importance of this consists, besides the advancement of truth, science,
morality, and arts in general, in its diffusion of liberal sentiments on the
administration of Government, its ready communication of thoughts between
subjects, and its consequential promotion of union among them, whereby
oppressive officers are shamed or intimidated into more honourable and just
modes of conducting affairs."
1 Journals of the Continental Congress 108 (1774).
All ideas having even the slightest redeeming social importance --
unorthodox ideas, controversial ideas, even ideas hateful to the prevailing
climate of opinion -- have the full protection of the guaranties, unless
excludable because they encroach upon the limited area of more important
interests. [Footnote 14] But implicit in the history of the First Amendment is
the rejection of obscenity as utterly without redeeming social importance.
This rejection for chanroblesvirtualawlibrary
Page 354 U. S. 485
272
that reason is mirrored in the universal judgment that obscenity should be
restrained, reflected in the international agreement of over 50 nations,
[Footnote 15] in the obscenity laws of all of the 48 States, [Footnote 16] and
in the 20 obscenity laws enacted by the Congress from 1842 to 1956.
[Footnote 17] This is the same judgment expressed by this Court
in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:
". . . There are certain well defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene. . . . It has
been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality. . . ."
(Emphasis added.) We hold that obscenity is not within the area of
constitutionally protected speech or press.
It is strenuously urged that these obscenity statutes offend the constitutional
guaranties because they punish chanroblesvirtualawlibrary
Page 354 U. S. 486
incitation to impure sexual thoughts, not shown to be related to any overt
antisocial conduct which is or may be incited in the persons stimulated to
such thoughts. In Roth, the trial Judge instructed the jury:
"The words 'obscene, lewd and lascivious' as used in the law, signify that
form of immorality which has relation to sexual impurity and has a tendency
to excite lustful thoughts."
(Emphasis added.) In Alberts, the trial judge applied the test laid down
in People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, namely,
whether the material has "a substantial tendency to deprave or corrupt its
readers by inciting lascivious thoughts or arousing lustful desires." (Emphasis
added.) It is insisted that the constitutional guaranties are violated because
convictions may be had without proof either that obscene material will
perceptibly create a clear and present danger of anti-social conduct,
[Footnote 18] or will probably induce its recipients to such conduct. [Footnote
19] But, in light of our holding that obscenity is not protected speech, the
complete answer to this argument is in the holding of this Court
in Beauharnais v. Illinois, supra, at 343 U. S. 266:
"Libelous utterances not being within the area of constitutionally protected
speech, it is unnecessary, either for us or for the State courts, to consider the
issues behind the phrase 'clear and present danger.' Certainly no one would
contend that obscene speech,
Page 354 U. S. 487
for example, may be punished only upon a showing of such circumstances.
Libel, as we have seen, is in the same class."
However, sex and obscenity are not synonymous. Obscene material is
material which deals with sex in a manner appealing to prurient interest.
[Footnote 20] The portrayal of sex, e.g., in art, literature and scientific works,
[Footnote 21] is not itself sufficient reason to deny material the constitutional
protection of freedom of speech and press. Sex, a great and mysterious
motive force in human life, has indisputably been a subject of absorbing
interest to mankind through the ages; it is one of the vital problems of human
interest and public concern. As to all such
problems, chanroblesvirtualawlibrary
Page 354 U. S. 488
this Court said in Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102:
"The freedom of speech and of the press guaranteed by the Constitution
embraces at the least the liberty to discuss publicly and truthfully all matters
of public concern without previous restraint or fear of subsequent
punishment. The exigencies of the colonial period and the efforts to secure
freedom from oppressive administration developed a broadened conception
of these liberties as adequate to supply the public need for information and
education with respect to the significant issues of the times. . . . Freedom of
discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to
enable the members of society to cope with the exigencies of their period."
(Emphasis added.)
The fundamental freedoms of speech and press have contributed greatly to
the development and wellbeing of our free society and are indispensable to
its continued growth. [Footnote 22] Ceaseless vigilance is the watchword to
prevent their erosion by Congress or by the States. The door barring federal
and state intrusion into this area cannot be left ajar; it must be kept tightly
273
closed, and opened only the slightest crack necessary to prevent
encroachment upon more important interests. [Footnote 23] It is therefore
vital that the standards for judging obscenity safeguard the protection of
freedom of speech and press for material which does not treat sex in a
manner appealing to prurient interest.
The early leading standard of obscenity allowed material to be judged merely
by the effect of an isolated chanroblesvirtualawlibrary
Page 354 U. S. 489
excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L.R.
3 Q.B. 360. [Footnote 24] Some American courts adopted this standard,
[Footnote 25] but later decisions have rejected it and substituted this test:
whether, to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole, appeals to
prurient interest. [Footnote 26] The Hicklin test, judging obscenity by the
effect of isolated passages upon the most susceptible persons, might well
encompass material legitimately treating with sex, and so it must be rejected
as unconstitutionally restrictive of the freedoms of speech and press. On the
other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity.
Both trial courts below sufficiently followed the proper standard. Both courts
used the proper definition of obscenity. In addition, in the Alberts case, in
ruling on a motion to dismiss, the trial judge indicated that, as
the chanroblesvirtualawlibrary
Page 354 U. S. 490
trier of facts, he was judging each item as a whole as it would affect the
normal person, [Footnote 27] and, in Roth, the trial judge instructed the jury
as follows:
". . . The test is not whether it would arouse sexual desires or sexual impure
thoughts in those comprising a particular segment of the community, the
young, the immature or the highly prudish or would leave another segment,
the scientific or highly educated or the so-called worldly wise and
sophisticated indifferent and unmoved. . . ."
"* * * *"
"The test in each case is the effect of the book, picture or publication
considered as a whole not upon any particular class, but upon all those
whom it is likely to reach. In other words, you determine its impact upon the
average person in the community. The books, pictures and circulars must be
judged as a whole, in their entire context, and you are not to consider
detached or separate portions in reaching a conclusion. You judge the
circulars, pictures and publications which have been put in evidence by
present-day standards of the community. You may ask yourselves does it
offend the common conscience of the community by present-day standards."
"* * * *"
"In this case, ladies and gentlemen of the jury, you and you alone are the
exclusive judges of what the common conscience of the community is, and,
in determining that conscience, you are to consider the community as a
whole, young and old, educated and uneducated, the religious and the
irreligious -- men, women and children. "
Page 354 U. S. 491
It is argued that the statutes do not provide reasonably ascertainable
standards of guilt, and therefore violates the constitutional requirements of
due process. Winters v. New York, 333 U. S. 507. The federal obscenity
statute makes punishable the mailing of material that is "obscene, lewd,
lascivious, or filthy . . . or other publication of an indecent character."
[Footnote 28] The California statute makes punishable, inter alia, the keeping
for sale or advertising material that is "obscene or indecent." The thrust of the
argument is that these words are not sufficiently precise, because they do
not mean the same thing to all people, all the time, everywhere.
Many decisions have recognized that these terms of obscenity statutes are
not precise. [Footnote 29] This Court, however, has consistently held that
lack of precision is not itself offensive to the requirements of due process. ". .
. [T]he Constitution does not require impossible standards"; all that is
required is that the language "conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practices. . . ." United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These
words, applied according to the proper standard for judging obscenity,
already discussed, give adequate warning of the conduct proscribed, and
mark
274
". . . boundaries sufficiently distinct for judges and juries fairly to administer
the law. . . . That there may be marginal cases in which it is difficult to
determine the side of the line on
Page 354 U. S. 492
which a particular fact situation falls is no sufficient reason to hold the
language too ambiguous to define a criminal offense. . . ."
Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S.
624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S.
340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United
States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266
U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U.
S. 373. [Footnote 30]
In summary, then, we hold that these statutes, applied according to the
proper standard for judging obscenity, do not offend constitutional
safeguards against convictions based upon protected material, or fail to give
men in acting adequate notice of what is prohibited.
Roth's argument that the federal obscenity statute unconstitutionally
encroaches upon the powers reserved by the Ninth and Tenth Amendments
to the States and to the people to punish speech and press where offensive
to decency and morality is hinged upon his contention that obscenity is
expression not excepted from the sweep of the provision of the First
Amendment that "Congress shall make no law . . . abridging the freedom of
speech, or of the press. . . ." (Emphasis added.) That argument falls in light
of our holding that obscenity is not expression protected by the First
Amendment. [Footnote 31] We chanroblesvirtualawlibrary
Page 354 U. S. 493
therefore hold that the federal obscenity statute punishing the use of the
mails for obscene material is a proper exercise of the postal power delegated
to Congress by Art. I, 8, cl. 7. [Footnote 32] In United Public Workers v.
Mitchell, 330 U. S. 75, 330 U. S. 95-96, this Court said:
". . . The powers granted by the Constitution to the Federal Government are
subtracted from the totality of sovereignty originally in the states and the
people. Therefore, when objection is made that the exercise of a federal
power infringes upon rights reserved by the Ninth and Tenth Amendments,
the inquiry must be directed toward the granted power under which the action
of the Union was taken. If granted power is found, necessarily the objection
of invasion of those rights, reserved by the Ninth and Tenth Amendments,
must fail. . . ."
Alberts argues that, because his was a mail-order business, the California
statute is repugnant to Art. I, 8, cl. 7, under which the Congress allegedly
preempted the regulatory field by enacting the federal obscenity statute
punishing the mailing or advertising by mail of obscene material. The federal
statute deals only with actual chanroblesvirtualawlibrary
Page 354 U. S. 494
mailing; it does not eliminate the power of the state to punish "keeping for
sale" or "advertising" obscene material. The state statute in no way imposes
a burden or interferes with the federal postal functions.
". . . The decided cases which indicate the limits of state regulatory power in
relation to the federal mail service involve situations where state regulation
involved a direct, physical interference with federal activities under the postal
power or some direct, immediate burden on the performance of the postal
functions. . . ."
Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96.
The judgments are
Affirmed.
G.R. No. L-7491 August 8, 1955
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GO PIN, defendant-appellant.
J. Perez Cardenas and Castao and Ampil for defendant.
Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A.
Avancea for appellee.
MONTEMAYOR, J.:
275
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article
201 of the Revised Penal Code for having exhibited in the City of Manila at
the Globe Arcade, a recreation center, a large number of one-real 16-
millimeter films about 100 feet in length each, which are allegedly indecent
and/or immoral. At first, he pleaded not guilty of the information but later was
allowed by the court to change his plea to that of guilty which he did. Not
content with the plea of guilty the trial court had the films in question
projected and were viewed by it in order to evaluate the same from the
standpoint of decency and morality. Thereafter, and considering the plea of
guilty entered by the accused, and the fact that after viewing the films the trial
court noted only a slight degree of obscenity, indecency and immorality in
them, it sentenced the appellant to 6 months and 1 day of prision
correcciconal and to pay a fine of P300, with subsidiary imprisonment in case
of insolvency, and to pay the costs. He is now appealing from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances
surrounding the case, particularly the slight degree of obscenity, indecency
and immorality noted by the court in the films, the prison sentence should be
eliminated from the penalty imposed. His counsel brings to our attention
some authorities to the effect that paintings and pictures of women in the
nude, including sculptures of that kind are not offensive because they are
made and presented for the sake of art. We agree with counsel for appellant
in part. If such pictures, sculptures and paintings are shown in art exhibits
and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the pictures
here in question were used not exactly for art's sake but rather for
commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been
the main, if not the exclusive consideration in their exhibition; and it would not
be surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their immaturity are not in a
position to resist and shield themselves from the ill and perverting effects of
these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for
this recommendation and said official recommendation that "considering that
the accused Go Pin is an alien who is supposed to maintain a high degree of
morality while he is in the Philippines", and "considering that he engaged in a
very nefarious trade, which degenerates the moral character of our youth,
who are usually the regular customers of his trade", he recommended that
appellant be sentenced to 2 years imprisonment and a fine of P300.
Notwithstanding this recommendation, the trial court as already said,
probably considering its opinion that the pictures were not so obscene,
indecent and immoral but only slightly so, gave appellant only 6 months and
1 day of prision correccional in addition to P300 fine.
The penalty imposed by the trial court is within the range provided by Article
201 of the Revised Code. We are satisfied that in imposing the penalty the
trial court made use of its sound discretion, and we find no reason for
modifying the said sentence. The Solicitor General in his brief even urges
that we recommend to the proper authorities that deportation proceedings be
instituted against appellant as an undesirable alien. The trial court could have
done this but did not do so, believing perhaps that it was warranted. We
repeat that we do not feel justified in interfering with the discretion of the trial
court in the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY
PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO
CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the
review of the decision of the Court of Appeals, 1 rejecting his appeal from the
decision of the Regional Trial Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty against unreasonable searches
and seizures of the Constitution, as well as its prohibition against deprivation
276
of property without due process of law. There is no controversy as to the
facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut
Campaign initiated by the Mayor of the City of Manila,
Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District,
INP of the Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand owners
and peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to be
obscene, pornographic and indecent and later burned the
seized materials in public at the University belt along C.M.
Recto Avenue, Manila, in the presence of Mayor Bagatsing
and several officers and members of various student
organizations.
Among the publications seized, and later burned, was "Pinoy
Playboy" magazines published and co-edited by plaintiff Leo
Pita.
On December 7, 1983, plaintiff filed a case for injunction with
prayer for issuance of the writ of preliminary injunction
against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of
Manila, seeking to enjoin and/or restrain said defendants
and their agents from confiscating plaintiffs magazines or
from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and
educational magazine which is not per se obscene, and that
the publication is protected by the Constitutional guarantees
of freedom of speech and of the press.
By order dated December 8, 1 983 the Court set the hearing
on the petition for preliminary injunction on December
14,1983 and ordered the defendants to show cause not later
than December 13, 1983 why the writ prayed for should not
be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for
issuance of a temporary restraining order. against
indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition
for preliminary injunction in view of Mayor Bagatsing's
pronouncement to continue the Anti-Smut Campaign. The
Court granted the temporary restraining order on December
14, 1983.
In his Answer and Opposition filed on December 27,1983
defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and
3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that
the said confiscation and seizure was (sic) undertaken
pursuant to P.D. No. 960, as amended by P.D. No. 969,
which amended Article 201 of the Revised Penal Code. In
opposing the plaintiffs application for a writ of preliminary
injunction, defendant pointed out that in that anti- smut
campaign conducted on December 1 and 3, 1983, the
materials confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered their
reading materials, and that the plaintiffs establishment was
not raided.
The other defendant, WPD Superintendent, Narcisco
Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in
support of the issuance of the writ of preliminary injunction,
raising the issue as to "whether or not the defendants and/or
their agents can without a court order confiscate or seize
plaintiffs magazine before any judicial finding is made on
whether said magazine is obscene or not".
The restraining order issued on December 14,1983 having
lapsed on January 3,1984, the plaintiff filed an urgent motion
for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a
second restraining order would violate the Resolution of the
Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary
restraining order shall be effective only for twenty days from
date of its issuance.
277
 On January 9, 1984 defendant filed his Comment and/or
Rejoinder Memorandum in support of his opposition to the
issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting
the case for hearing on January 16, 1984 "for the parties to
adduce evidence on the question of whether the publication
'Pinoy Playboy Magazine alleged (sic) seized, confiscated
and/or burned by the defendants, are obscence per se or
not".
On January 16, 1984, the Court issued an order granting
plaintiffs motion to be given three days "to file a reply to
defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file
a rejoinder within the same period from receipt, after which
the issue of Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January
18, 1984. Defendant filed his Comment on plaintiff s
supplemental Memorandum on January 20, 1984, and
plaintiff filed his "Reply-Memorandum" to defendants'
Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order
appealed from denying the motion for a writ of preliminary
injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other
things, as follows:
We cannot quarrel with the basic postulate suggested by
appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express
oneself in print (Sec. 9, Art. IV), and the protection afforded
by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded,
however, that freedom of the press is not without restraint as
the state has the right to protect society from pornographic
literature that is offensive to public morals, as indeed we
have laws punishing the author, publishers and sellers of
obscene publications (Sec. I , Art. 201, Revised Penal Code,
as amended by P.D. No. 960 and P.D. No. 969). Also well
settled is the rule that the right against unreasonable
searches and seizures recognizes certain exceptions, as
when there is consent to the search or seizure, (People vs.
Malesugui 63 Phil. 22) or search is an incident to an arrest,
(People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil.
637) or is conducted in a vehicle or movable structure (See
Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the police officers could
without any court warrant or order seize and confiscate
petitioner's magazines on the basis simply of their
determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the trial court could
dismiss the case on its merits without any hearing thereon
when what was submitted to it for resolution was merely the
application of petitioner for the writ of preliminary injunction.4
The Court states at the outset that it is not the first time that it is being asked
to pronounce what "obscene" means or what makes for an obscene or
pornographic literature. Early on, in People vs. Kottinger,5 the Court laid
down the test, in determining the existence of obscenity, as follows: "whether
the tendency of the matter charged as obscene, is to deprave or corrupt
those whose minds are open to such immoral influences and into whose
hands a publication or other article charged as being obscene may
fall." 6 "Another test," so Kottinger further declares, "is that which shocks the
ordinary and common sense of men as an indecency. " 7 Kottinger hastened
to say, however, that "[w]hether a picture is obscene or indecent must
depend upon the circumstances of the case, 8 and that ultimately, the
question is to be decided by the "judgment of the aggregate sense of the
community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded
merely in generalizing a problem that has grown increasingly complex over
the years. Precisely, the question is: When does a publication have a
corrupting tendency, or when can it be said to be offensive to human
sensibilities? And obviously, it is to beg the question to say that a piece of
literature has a corrupting influence because it is obscene, and vice-versa.
278
Apparently, Kottinger was aware of its own uncertainty because in the same
breath, it would leave the final say to a hypothetical "community standard"
whatever that is and that the question must supposedly be judged from
case to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a
prosecution under Article 201 of the Revised Penal Code. Go Pin, was also
even hazier:
...We agree with counsel for appellant in part. If such
pictures, sculptures and paintings are shown in art exhibit
and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no
offense committed. However, the pictures here in question
were used not exactly for art's sake but rather for
commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that
the cause of art was of secondary or minor importance. Gain
and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not
be surprising if the persons who went to see those pictures
and paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for
love for excitement, including the youth who because of their
immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these
pictures.11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines
have neither been drawn nor divided. It is easier said than done to say,
indeed, that if "the pictures here in question were used not exactly for art's
sake but rather for commercial purposes," 12 the pictures are not entitled to
any constitutional protection.
It was People v. Padan y Alova ,13 however, that introduced to Philippine
jurisprudence the "redeeming" element that should accompany the work, to
save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the
exhibition of still or moving pictures of women in the nude,
which we have condemned for obscenity and as offensive to
morals. In those cases, one might yet claim that there was
involved the element of art; that connoisseurs of the same,
and painters and sculptors might find inspiration in the
showing of pictures in the nude, or the human body exhibited
in sheer nakedness, as models in tableaux vivants. But an
actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is
no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public
morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on
the youth of the land. ...14
Padan y Alova, like Go Pin, however, raised more questions than answers.
For one thing, if the exhibition was attended by "artists and persons
interested in art and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes,"15 could the same legitimately lay
claim to "art"? For another, suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors might find inspiration,"16 in
it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial
arbitrament, which has permitted an ad lib of Ideas and "two-cents worths"
among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following
trends in the United States, adopted the test: "Whether to the average
person, applying contemporary standards, the dominant theme of the
material taken as a whole appeals to prurient interest."18 Kalaw-
Katigbak represented a marked departure from Kottinger in the sense that it
measured obscenity in terms of the "dominant theme" of the work, rather
than isolated passages, which were central to Kottinger (although both cases
are agreed that "contemporary community standards" are the final arbiters of
what is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law
enforcers.
It is significant that in the United States, constitutional law on obscenity
continues to journey from development to development, which, states one
279
authoritative commentator (with ample sarcasm), has been as "unstable as it
is unintelligible."19
Memoirs v. Massachusettes,20 a 1966 decision, which characterized
obscenity as one "utterly without any redeeming social value,"21 marked yet
another development.
The latest word, however, is Miller v. California,22 which expressly
abandoned Massachusettes, and established "basic guidelines,"23 to wit: "(a)
whether 'the average person, applying contemporary standards' would find
the work, taken as a whole, appeals to the prurient interest . . .; (b) whether
the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value."24
(A year later, the American Supreme Court decided Hamling v. United
States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another
reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen,
although the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes
"obscenity" has been attributed to the reluctance of the courts to recognize
the constitutional dimension of the problem .27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an
assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable
to society. And "[t]here is little likelihood," says Tribe, "that this development
has reached a state of rest, or that it will ever do so until the Court
recognizes that obscene speech is speech nonetheless, although it is subject
as in all speech to regulation in the interests of [society as a whole]
but not in the interest of a uniform vision of how human sexuality should be
regarded and portrayed."28
In the case at bar, there is no challenge on the right of the State, in the
legitimate exercise of police power, to suppress smut provided it is smut. For
obvious reasons, smut is not smut simply because one insists it is smut. So
is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is not necessarily repulsive to
the present generation. James Joyce and D.H. Lawrence were censored in
the thirties yet their works are considered important literature
today.29 Goya's La Maja desnuda was once banned from public exhibition
but now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter
of opinion. As we said earlier, it is the divergent perceptions of men and
women that have probably compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not,
and has not been, an easy one to answer, as it is far from being a settled
matter. We share Tribe's disappointment over the discouraging trend in
American decisional law on obscenity as well as his pessimism on whether
or not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than
rushing to a "perfect" definition of "obscenity", if that is possible, as evolving
standards for proper police conduct faced with the problem, which, after all,
is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free
expression, although not its protection. In free expression cases, this Court
has consistently been on the side of the exercise of the right, barring a "clear
and present danger" that would warrant State interference and action. 30 But,
so we asserted in Reyes v. Bagatsing,31"the burden to show the existence of
grave and imminent danger that would justify adverse action ... lies on the. . .
authorit[ies]."32
"There must be objective and convincing, not subjective or conjectural, proof
of the existence of such clear and present danger."33 "It is essential for the
validity of ... previous restraint or censorship that the ... authority does not
rely solely on his own appraisal of what the public welfare, peace or safety
may require."34
"To justify such a limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger test."35
The above disposition must not, however, be taken as a neat effort to arrive
at a solution-so only we may arrive at one-but rather as a serious attempt to
put the question in its proper perspective, that is, as a genuine constitutional
issue.
280
It is also significant that in his petition, the petitioner asserts constitutional
issues, mainly, due process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a
political speech, the presumption is that the speech may validly be said. The
burden is on the State to demonstrate the existence of a danger, a danger
that must not only be: (1) clear but also, (2) present, to justify State action to
stop the speech. Meanwhile, the Government must allow it (the speech). It
has no choice. However, if it acts notwithstanding that (absence of evidence
of a clear and present danger), it must come to terms with, and be held
accountable for, due process.
The Court is not convinced that the private respondents have shown the
required proof to justify a ban and to warrant confiscation of the literature for
which mandatory injunction had been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by
way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not
without restraint, as the state has the right to protect society from
pornographic literature that is offensive to public morals."36 Neither do we.
But it brings us back to square one: were the "literature" so confiscated
"pornographic"? That we have laws punishing the author, publisher and
sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969),"37 is also fine, but the question,
again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police
power" is no license to seize property in disregard of due process.
In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as
"state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ." 39 Presidential Decrees
Nos. 960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin presidential issuances (Mr.
Marcos'), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures,
specifically. Significantly, the Decrees themselves lay down procedures for
implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The
disposition of the literature, films, prints, engravings,
sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as
amended) shall be governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of
the Government to be destroyed.
(b) Where the criminal case against any violator of this
decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculptures, paintings or
other materials and articles involved in the violation referred
to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be
destroyed, after forfeiture proceedings conducted by the
Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief
of Constabulary may, within fifteen (15) days after his receipt
of a copy of the decision, appeal the matter to the Secretary
of National Defense for review. The decision of the Secretary
of National Defense shall be final and unappealable. (Sec. 2,
PD No, 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. Additional penalties shall be
imposed as follows:
1. In case the offender is a government official or employee
who allows the violations of Section I hereof, the penalty as
provided herein shall be imposed in the maximum period
and, in addition, the accessory penalties provided for in the
Revised Penal Code, as amended, shall likewise be
imposed .40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be
authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may
281
 produce, and particularly describing the place to be 1. The authorities must apply for the issuance of a search
searched, and the persons or things to be seized. warrant from a judge, if in their opinion, an obscenity rap is in
order;
It is basic that searches and seizures may be done only through a judicial
warrant, otherwise, they become unreasonable and subject to challenge. 2. The authorities must convince the court that the materials
In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the sought to be seized are "obscene", and pose a clear and
Regional Trial Court authorizing the search of the premises of We present danger of an evil substantive enough to warrant
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a State interference and action;
defective warrant. We have greater reason here to reprobate the questioned
raid, in the complete absence of a warrant, valid or invalid. The fact that the 3. The judge must determine whether or not the same are
instant case involves an obscenity rap makes it no different from Burgos, a indeed "obscene:" the question is to be resolved on a case-
political case, because, and as we have indicated, speech is speech, to-case basis and on His Honor's sound discretion.
whether political or "obscene".
4. If, in the opinion of the court, probable cause exists, it may
The Court is not ruling out warrantless searches, as the Rules of Court (1964 issue the search warrant prayed for;
rev.) (the Rules then prevailing), provide:
5. The proper suit is then brought in the court under Article
SEC. 12. Search without warrant of personarrested. A 201 of the Revised Penal Code;
person charged with an offense may be searched for
dangerous weapons or anything which may be used as proof
6. Any conviction is subject to appeal. The appellate court
of the commission of the offense.44
may assess whether or not the properties seized are indeed
"obscene".
but as the provision itself suggests, the search must have been an incident to
a lawful arrest, and the arrest must be on account of a crime committed.
These do not foreclose, however, defenses under the Constitution or
Here, no party has been charged, nor are such charges being readied
applicable statutes, or remedies against abuse of official power under the
against any party, under Article 201, as amended, of the Revised Penal
Civil Code" 47 or the Revised Penal code .48
Code.
WHEREFORE, the petition is GRANTED. The decision of the respondent
We reject outright the argument that "[t]here is no constitutional nor legal
court is REVERSED and SET ASIDE. It appearing, however, that the
provision which would free the accused of all criminal responsibility because
magazines subject of the search and seizure ave been destroyed, the Court
there had been no warrant," 45 and that "violation of penal law [must] be
declines to grant affirmative relief. To that extent, the case is moot and
punished." 46 For starters, there is no "accused" here to speak of, who ought academic.
to be "punished". Second, to say that the respondent Mayor could have
validly ordered the raid (as a result of an anti-smut campaign) without a
lawful search warrant because, in his opinion, "violation of penal laws" has SO ORDERED.
been committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint of the
petitioner.

We make this resume.

282

G.R. No. L-1800 January 27, 1948
CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced
Minority Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for
respondent.
FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano Primicias,
a campaig manager of the Coalesced Minority Parties against Valeraino
Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit
for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for
redress to grievances on the groun that the respondent refused to grant such
permit. Due to urgency of the case, this Court, after mature deliberation,
issued a writ of mandamus, as prayed for in the petition of November 15,
1947, without prejudice to writing later an extended and reasoned decision.
The right of freedom of speech and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the Constitutions of democratic
countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, not injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities, and
cities authorizing their legislative bodies, called municipal and city councils to
enact ordinances for the purpose.
The Philippine legislature has delegated the exercise of the police power to
the Municipal Board of the City of Manila, which according to section 2439 of
the Administrative Code is the legislative body of the City. Section 2444 of
the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of
riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use
of streets, avenues ... parks, cemeteries and other public places" and "for the
abatement of nuances in the same," and "(ee) to enact all ordinances it may
deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City of Manila,
enacted sections 844 and 1119. Section of the Revised Ordinances of 1927
prohibits as an offense against public peace, and section 1262 of the same
Revised Ordinance penalizes as a misdemeanor, "any act, in any public
place, meeting, or procession, tending to disturb the peace or excite a riot; or
collect with other persons in a body or crowd for any unlawful purpose; or
disturb or disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:
"SEC. 1119 Free for use of public The streets and public places of
the city shall be kept free and clear for the use of the public, and the
sidewalks and crossings for the pedestrians, and the same shall only
be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or
exercise during the celebration of national holidays in any streets or
public places of the city and on the patron saint day of any district in
question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions
thereof, where such athletic games, sports, or exercises may be
held: And provided, further, That the holding of any parade or
procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor who shall, on every
such ocassion, determine or specify the streets or public places for
the formation, route, and dismissal of such parade or procession:
283
 And provided, finally, That all applications to hold a parade or
procession shall be submitted to the Mayor not less than twenty-four
hours prior to the holding of such parade or procession."
As there is no express and separate provision in the Revised Ordinance of
the City regulating the holding of public meeting or assembly at any street or
public places, the provisions of saif section 1119 regarding the holding of any
parade or procession in any street or public paces may be applied by
analogy to meeting and assembly in any street or public places.
Said provision is susceptible to two constructions: one is that the Mayor of
the City of Manila is vested with unregulated discretion to grant or refuse, to
grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and
the other is that the applicant has the right to a permit which shall be granted
by the Mayor, subject only to the latter's reasonable discretion to determine
or specify the streets or public places to be used for the purpose, with the
view to prevent confusion by overlapping, to secure convenient use of the
streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we must
adopt the second construction, that is construe the provisions of the said
ordinance to mean that it does not confer upon the Mayor the power to
refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held.
Our conclusions find support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. Chap. 145, section 2, providing that "no parade or
procession upon any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the select men of the town
or from licensing committee," was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfetted discretion to
refuse to grant the license, and held valid. And the Supreme Court of the
United States in its decision (1941) penned by Chief Justice Hughes firming
the judgement of the State Supreme Court, held that " a statute requiring
pewrsons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional
abridgement of the rights of assembly or a freedom of speech and press,
where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration,
the time, place, and manner of the parade and procession, with a view to
conserving the public convenience and of affording an opportunity to provide
proper policing and are not invested with arbitrary discretion to issue or
refuse license, ... ."
We can not adopt the alternative construction or constru the ordinance under
consideration as conferring upon the Mayor power to grant or refuse to grant
the permit, which would be tantamount to authorizing him to prohibit the use
of the streets and other public places for holding of meetings, parades or
processions, because such a construction would make the ordinance invalid
and void or violative of the constitutional limitations. As the Municipal Boards
is empowered only to regulate the use of streets, parks, and the other public
places, and the word "regulate," as used in section 2444 of the Revised
Administrative Code, means and includes the power to control, to govern,
and to restrain, but can not be construed a synonimous with construed
"suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the
Municipal Board can not grant the Mayor a power that it does not have.
Besides, the powers and duties of the Mayor as the Chief Executive of the
City are executive and one of them is "to comply with and enforce and give
the necessary orders for the faithful performance and execution of laws and
ordinances" (section 2434 [b] of the Revised Administrative Code), the
ligislative police power of the Municipal Board to enact ordinances regulating
reasonably the excercise of the fundamental personal rights of the citizens in
the streets and other public places, can not be delgated to the Mayor or any
other officer by conferring upon him unregulated discretion or without laying
down rules to guide and control his action by which its impartial execution
can be secured or partiality and oppression prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court
of Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which empowers
city councils to regulate the use of public streets, the council has no power to
ordain that no processions shall be allowed upon the streets until a permit
shall be obtained from the superintendent of police, leaving the issuance of
such permits to his discretion, since the powers conferred on the council
cannot be delegated by them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84
Wis., 585; 54 N.W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs. Radecke,
49 Md., 217, were also, in substance, the same, for the ordinance in
that case upon its face committed to the unrestrained will of a single
public officer the power to determine the rights of parties under it,
284
 when there was nothing in the ordinance to guide or cintrol his
action, and it was held void because "it lays down no rules by which
its impartial execution can be secured, or partiality and oppression
prevented." and that "when we remember that action or nonaction
may proceed from enmity or prejudice, from partisan zeal or
animosity, from favoritism and other improper influences and motives
easy of concealment and difficult to be detected and exposed, it
becomes unnecessary to suggest or to comment upon the injustice
capable of being wrought under cover of such a power, for that
becomes apparent to every one who gives to the subject a moment's
consideration. In fact, an ordinance which clothes a single individual
with such power hardly falls within the domain of law, and we are
constrained to pronounce it inoperative and void." ... In the exercise
of police power, the council may, in its discretion, regulate the
exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of
doing so to the mayor or any other officer. The discretion with which
the council is vested is a legal discretion, to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a
petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that
"no person or persons, or associations or organizations shall march, parade,
ride or drive, in ou upon or through the public streets of the City of Grand
Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held
by the Supreme Court of Michigan to be unreasonable and void. Said
Supreme Court in the course of the decision held:
". . . We must therefore construe this charter, and the powers it
assumes to grant, so far as it is not plainly unconstitutional, as only
conferring such power over the subjects referred to as will enable the
city to keep order, and suppress mischief, in accordance with the
limitations and conditions required by the rights of the people
themselves, as secured by the principles of law, which cannot be
less careful of private rights under the constitution than under the
common law."
"It is quite possible that some things have a greater tendency to
produce danger and disorder in cities than in smaller towns or in
rural places. This may justify reasonable precautionary measures,
but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of
absolute discretion to suppress lawful action altogther can be
granted at all. . . . ."
"It has been customary, from time immemorial, in all free countries,
and in most civilized countries, for people who are assembled for
common purposes to parade together, by day or reasonable hours at
night, with banners and other paraphernalia, and with music of
various kinds. These processions for political, religious, and social
demonstrations are resorted to for the express purpose of keeping
unity of feeling and enthusiasm, and frequently to produce some
effect on the public mind by the spectacle of union and numbers.
They are a natural product and exponent of common aims, and
valuable factors in furthering them. ... When people assemble in
riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors
become punishable. . . ."
"It is only when political, religious, social, or other demonstrations
create public disturbances, or operate as a nuisance, or create or
manifestly threaten some tangible public or private mischief, that the
law interferes."
"This by-law is unreasonable, because it suppresses what is in
general perfectly lawful, and because it leaves the power of
permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at
all, must be permanent, legal provisions, operating generally and
impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the
validity of the city ordinance which made it unlawful for any person, society or
club, or association of any kind, to parade any of the streets, with flags,
banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The
appellants were members of the Salvation Army, and were prosecuted for a
violation of the ordinance, and the court in holding the ordinance invalid said,
"Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their
enforcement to rest on official discretion ... Ever since the landing of the
Pilgrims from the Mayflower the right to assemble and worship accordingto
the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as
285
among the fundamental rights of a free people. The spirit of our free
institutions allows great latitude in public parades and emonstrations whether
religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes
in politics or religion, and permit like parades of those whose nations do.
When men in authority are permitted in their discretion to exercise power so
arbitrary, liberty is subverted, and the spirit of of our free institutions violated.
... Where the granting of the permit is left to the unregulated discretion of a
small body of city eldermen, the ordinance cannot be other than partial and
discriminating in its practical operation. The law abhors partiality and
discrimination. ... (19 L.R.A., p. 861)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d],
1081, the Supreme Court of Colorado, in construing the provision of section
1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it
shall be unlawful for any person or persons or association to use the street of
the City of Walsenburg, Colorado for any parade, procession or assemblage
without first obtaining a permit from the Chief of Police of the City of
Walsenburg so to do," held the following:
"[1] The power of municipalities, under our state law, to regulate the
use of public streets is conceded. "35 C.S.A., chapter 163, section
10, subparagraph 7. "The privilege of a citizen of the United States to
use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the
general, be abridged or denied." Hague, Mayor vs. Committee for
Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83
Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose
regulations in the use of public streets is found in the recent case of
Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law,
ed. 1049; 133 A.L.R., 1936, in which the following appears; "The
authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need.
Where a restriction of the use of highways in that relation is designed
to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted excercise of some civil right which in
other circumstances would be entitled to protection. One would not
be justified in ignoring the familiar red traffic light because he thought
it his religious duty to disobey the municipal command or sought by
that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and
processions is a traditional excercise of control by local government,
the question in a particular case is whether that control is exerted so
as not to deny or unwarrantedly abridge the right of assembly and
the opportunities for the communication of thought and the
discussion of public questions immemorially associated with resort to
public places. Lovell vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666,
668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial
Organization, 307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83
Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey
[Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146, 150; 84 Law.
ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307;
60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R.
1352."
[4] Our concern here is the validity or nonvalidity of an ordinance
which leaves to the uncontrolled official discretion of the chief of
police of the municipal corporation to say who shall, who shall not,
be accorded the privilege of parading on its public streets. No
standard of regulation is even remotely suggested. Moreover, under
the ordinance as drawn, the chief of police may for any reason which
he may entertain arbitrarily deny this privelege to any group. in
Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054,
said:
"In the instant case the uncontrolled official suppression of the
privilege of using the public streets in a lawful manner clearly is
apparent from the face of the ordinance before us, and we therefore
hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for
Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423,
declared that a municipal ordinance requiring the obtaining of a permit for a
public assembly in or upon the public streets, highways, public parks, or
public buildings of the city and authorizing the director of public safety, for the
purpose of preventing riots, disturbances, or disorderly assemblage, to
refuse to issue a permit when after investigation of all the facts and
circumstances pertinent to the application he believes it to be proper to
refuse to issue a permit, is not a valid exercise of the police power. Said
Court in the course of its opinion in support of the conclusion said:
286
 ". . . Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks
for communication of views on national questions may be regulated
in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied.
"We think the court below was right in holding the ordinance quoted
in Note 1 void upon its face. It does not make comfort or
convenience in the use of streets or parks the standard of official
action. It enables the Director of Safety to refuse a permit on his
mere opinion that such refusal will prevent 'riots, disturbances or
disorderly assemblage.' It can thus, as the record discloses, be made
the instrument of arbitrary suppression of free expression of views on
national affairs for the prohibition of all speaking will undoubtedly
'prevent' such eventualities. But uncontrolled official suppression of
the privilege cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of the City of
Manila, which provides that the Mayor shall have the power to grant and
refuse municipal licenses or permits of all classes, cannot be cited as an
authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by
the Municipal Board requiring licenses or permits to be issued by the Mayor,
such as those found in Chapters 40 to 87 of the Revised Ordinances of the
City of Manila. It is not a specific or substantive power independent from the
corresponding municipal ordinances which the Mayor, as Chief Executive of
the City, is required to enforce under the same section 2434. Moreover "one
of the settled maxims in constitutional law is that the power conferred upon
the Legislature to make laws cannot be delegated by that department to any
other body or authority," except certain powers of local government, specially
of police regulation which are conferred upon the legislative body of a
municipal corporation. Taking this into consideration, and that the police
power to regulate the use of streets and other public places has been
delegated or rather conferred by the Legislature upon the Municipal Board of
the City (section 2444 [u] of the Administrative Code) it is to be presumed
that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m) the same power, specially if we take into account that its
exercise may be in conflict with the exercise of the same power by the
Municipal Board.
Besides, assuming arguendo that the Legislature has the power to confer,
and in fact has conferred, upon the Mayor the power to grant or refuse
licenses and permits of all classes, independent from ordinances enacted by
the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the
contrary notwithstanding, such grant of unregulated and unlimited power to
grant or refuse a permit for the use of streets and other public places for
processions, parades, or meetings, would be null and void, for the same
reasons stated in the decisions in the cases above quoted, specially in Willis
Cox vs. New Hampshire, supra, wherein the question involved was also the
validity of a similar statute of New Hamsphire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained
discretion upon a city officer are applicable to a law or statute that confers
unlimited power to any officer either of the municipal or state governments.
Under our democratic system of government no such unlimited power may
be validly granted to any officer of the government, except perhaps in cases
of national emergency. As stated in State ex rel. Garrabad vs. Dering, supra,
"The discretion with which the council is vested is a legal discretion to be
exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a
petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of
the Administrative Code apparently in support of the decision in the case of
Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of
said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for
the decision rendered. The popular meeting or assemblage intended to be
held therein by the Communist Party of the Philippines was clearly an
unlawful one, and therefore the Mayor of the City of Manila had no power to
grant the permit applied for. On the contrary, had the meeting been held, it
was his duty to have the promoters thereof prosecuted for violation of section
844, which is punishable as misdemeanor by section 1262 of the Revised
Ordinances of the City of Manila. For, according to the decision, "the doctrine
and principles advocated and urged in the Constitution and by-laws of the
said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or gatherings, as
above stated, are highly seditious, in that they suggest and incite rebelious
conspiracies and disturb and obstruct the lawful authorities in their duty."
287
The reason alleged by the respondent in his defense for refusing the permit and punishment for violations of the law, not abridgment of the rights
is, "that there is a reasonable ground to believe, basing upon previous of free speech and assembly." Whitney vs. California, U. S. Sup. Ct.
utterances and upon the fact that passions, specially on the part of the losing Rep., 71 Law., ed., pp. 1106-1107.)
groups, remains bitter and high, that similar speeches will be delivered
tending to undermine the faith and confidence of the people in their In view of all the foregoing, the petition for mandamus is granted and, there
government, and in the duly constituted authorities, which might threaten appearing no reasonable objection to the use of the Plaza Miranda, Quiapo,
breaches of the peace and a disruption of public order." As the request of the for the meeting applied for, the respondent is ordered to issue the
petition was for a permit "to hold a peaceful public meeting," and there is no corresponding permit, as requested. So ordered.
denial of that fact or any doubt that it was to be a lawful assemblage, the
reason given for the refusal of the permit can not be given any consideration.
As stated in the portion of the decision in Hague vs. Committee on Industrial
Organization, supra, "It does not make comfort and convenience in the use
of streets or parks the standard of official action. It enables the Director of
Safety to refuse the permit on his mere opinion that such refusal will prevent G.R. No. L-31195 June 5, 1973
riots, disturbances or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free expression PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION,
of views on national affairs, for the prohibition of all speaking will undoubtedly NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS
'prevent' such eventualities." To this we may add the following, which we MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA,
make our own, said by Mr. Justice Brandeis in his concurring opinion in BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107: vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
"Fear of serious injury cannot alone justify suppression of free RELATIONS, respondents.
speech and assembly. Men feared witches and burned women. It is
the function of speech to free men from the bondage of irrational L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is Demetrio B. Salem & Associates for private respondent.
practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground
to believe that the evil to be prevented is a serious one . . .
MAKASIAR, J.:
"Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the
The petitioner Philippine Blooming Mills Employees Organization (hereinafter
cost of liberty. . . .
referred to as PBMEO) is a legitimate labor union composed of the
employees of the respondent Philippine Blooming Mills Co., Inc., and
"Moreover, even imminent danger cannot justify resort to prohibition petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano
of these functions essential effective democracy, unless the evil de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and
apprehended is relatively serious. Prohibition of free speech and Rodulfo Munsod are officers and members of the petitioner Union.
assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to a society. . . . The
Petitioners claim that on March 1, 1969, they decided to stage a mass
fact that speech is likely to result in some violence or in destruction
demonstration at Malacaang on March 4, 1969, in protest against alleged
of property is not enough to justify its suppression. There must be
abuses of the Pasig police, to be participated in by the workers in the first
the probability of serious injury to the state. Among freemen, the
shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third
deterrents ordinarily to be applied to prevent crimes are education

288
shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and
that they informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge
Joaquin M. Salvador of the respondent Court reproduced the following
stipulation of facts of the parties parties
3. That on March 2, 1969 complainant company learned of
the projected mass demonstration at Malacaang in protest
against alleged abuses of the Pasig Police Department to be
participated by the first shift (6:00 AM-2:00 PM) workers as
well as those working in the regular shifts (7:00 A.M. to 4:00
PM and 8:00 AM to 5:00 PM) in the morning of March 4,
1969;
4. That a meeting was called by the Company on March 3,
1969 at about 11:00 A.M. at the Company's canteen, and
those present were: for the Company: (1) Mr. Arthur L. Ang
(2) Atty. S. de Leon, Jr., (3) and all department and section
heads. For the PBMEO (1) Florencio Padrigano, (2) Rufino
Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5)
Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or
deny said projected mass demonstration at Malacaang on
March 4, 1969. PBMEO thru Benjamin Pagcu who acted as
spokesman of the union panel, confirmed the planned
demonstration and stated that the demonstration or rally
cannot be cancelled because it has already been agreed
upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because
the union has no quarrel or dispute with Management;
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
demonstration is an inalienable right of the union guaranteed
by the Constitution but emphasized, however, that any
demonstration for that matter should not unduly prejudice the
normal operation of the Company. For which reason, the
Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and
regular shifts, who without previous leave of absence
approved by the Company, particularly , the officers present
who are the organizers of the demonstration, who shall fail to
report for work the following morning (March 4, 1969) shall
be dismissed, because such failure is a violation of the
existing CBA and, therefore, would be amounting to an
illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another
meeting was convoked Company represented by Atty. C.S.
de Leon, Jr. The Union panel was composed of: Nicanor
Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio
Padrigano. In this afternoon meeting of March 3, 1969,
Company reiterated and appealed to the PBMEO
representatives that while all workers may join the
Malacaang demonstration, the workers for the first and
regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and
thus utilize the workers in the 2nd and 3rd shifts in order not
to violate the provisions of the CBA, particularly Article XXIV:
NO LOCKOUT NO STRIKE'. All those who will not follow
this warning of the Company shall be dismiss; De Leon
reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather
too late to change their plans inasmuch as the Malacaang
demonstration will be held the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO
sent a cablegram to the Company which was received 9:50
A.M., March 4, 1969, the contents of which are as follows:
'REITERATING REQUEST EXCUSE DAY SHIFT
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded
with the demonstration despite the pleas of the respondent Company that the
first shift workers should not be required to participate in the demonstration
and that the workers in the second and third shifts should be utilized for the
demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent
Company prior notice of the mass demonstration on March 4, 1969, with the
respondent Court, a charge against petitioners and other employees who
composed the first shift, charging them with a "violation of Section 4(a)-6 in
relation to Sections 13 and 14, as well as Section 15, all of Republic Act No.
875, and of the CBA providing for 'No Strike and No Lockout.' " (Annex "A",
289
pp. 19-20, rec.). The charge was accompanied by the joint affidavit of Arthur
L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18, 1969, by Acting Chief
Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex
"C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not
violate the existing CBA because they gave the respondent Company prior
notice of the mass demonstration on March 4, 1969; that the said mass
demonstration was a valid exercise of their constitutional freedom of speech
against the alleged abuses of some Pasig policemen; and that their mass
demonstration was not a declaration of strike because it was not directed
against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the
parties, Judge Joaquin M. Salvador, in an order dated September 15, 1969,
found herein petitioner PBMEO guilty of bargaining in bad faith and herein
petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Munsod as directly responsible for perpetrating the said unfair labor practice
and were, as a consequence, considered to have lost their status as
employees of the respondent Company (Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the
aforesaid order (p. 11, rec.); and that they filed on September 29, 1969,
because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for
reconsideration of said order dated September 15, 1969, on the ground that
it is contrary to law and the evidence, as well as asked for ten (10) days
within which to file their arguments pursuant to Sections 15, 16 and 17 of the
Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63,
rec.), respondent Company averred that herein petitioners received on
September 22, 1969, the order dated September 17 (should be September
15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22,
1969 or until September 27, 1969, within which to file their motion for
reconsideration; and that because their motion for reconsideration was two
(2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,1 which held among others, that a motion for extension of the five-
day period for the filing of a motion for reconsideration should be filed before
the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written
arguments dated October 11, 1969, in support of their motion for
reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the
motion for reconsideration of herein petitioners for being pro forma as it was
filed beyond the reglementary period prescribed by its Rules (Annex "J", pp.
74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 &
76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was
released on October 24, 1969 and addressed to the counsels of the parties
(pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as
amended, of the Rules of the Court of Industrial Relations, that a motion for
reconsideration shall be filed within five (5) days from receipt of its decision
or order and that an appeal from the decision, resolution or order of the
C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt
thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a
petition for relief from the order dated October 9, 1969, on the ground that
their failure to file their motion for reconsideration on time was due to
excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the
affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order
dated October 9, 1969, herein petitioners filed on November 3, 1969, with the
Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which
underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and
worth of the human personality is the central core as well as the cardinal
article of faith of our civilization. The inviolable character of man as an
individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."2
290
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality
and security "against the assaults of opportunism, the expediency of the
passing hour, the erosion of small encroachments, and the scorn and
derision of those who have no patience with general principles."3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of
Rights is to withdraw "certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials, and
to establish them as legal principles to be applied by the courts. One's rights
to life, liberty and property, to free speech, or free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to a vote;
they depend on the outcome of no elections."4 Laski proclaimed that "the
happiness of the individual, not the well-being of the State, was the criterion
by which its behaviour was to be judged. His interests, not its power, set the
limits to the authority it was entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign
people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that
we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the
majority who refuse to listen.6 And as Justice Douglas cogently stresses it,
the liberties of one are the liberties of all; and the liberties of one are not safe
unless the liberties of all are protected.7
(4) The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment. Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of
human rights over property rights is recognized.8 Because these freedoms
are "delicate and vulnerable, as well as supremely precious in our society"
and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive,"
permitting government regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of time,
then the Bill of Rights is a useless attempt to limit the power of government
and ceases to be an efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of oligarchs political,
economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and
vitality of our civil and political institutions; 10 and such priority "gives these
liberties the sanctity and the sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the
fact that a mere reasonable or rational relation between the means employed
by the law and its object or purpose that the law is neither arbitrary nor
discriminatory nor oppressive would suffice to validate a law which
restricts or impairs property rights. 12 On the other hand, a constitutional or
valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the
State has the right to prevent. So it has been stressed in the main opinion of
Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of
the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice
Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black and
Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of
speech and of the press as well as of peaceful assembly and of petition for
redress of grievances are absolute when directed against public officials or
"when exercised in relation to our right to choose the men and women by
whom we shall be governed," 15 even as Mr. Justice Castro relies on the
balancing-of-interests test. 16 Chief Justice Vinson is partial to the improbable
danger rule formulated by Chief Judge Learned Hand, viz. whether the
gravity of the evil, discounted by its improbability, justifies such invasion of
free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their
"concerted act and the occurrence temporary stoppage of work," herein
petitioners are guilty bargaining in bad faith and hence violated the collective
bargaining agreement with private respondent Philippine Blooming Mills Co.,
inc.. Set against and tested by foregoing principles governing a democratic
society, such conclusion cannot be sustained. The demonstration held
petitioners on March 4, 1969 before Malacaang was against alleged abuses
291
of some Pasig policemen, not against their employer, herein private
respondent firm, said demonstrate was purely and completely an exercise of
their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the
municipality of Pasig. They exercise their civil and political rights for their
mutual aid protection from what they believe were police excesses. As matter
of fact, it was the duty of herein private respondent firm to protect herein
petitioner Union and its members fro the harassment of local police officers.
It was to the interest herein private respondent firm to rally to the defense of,
and take up the cudgels for, its employees, so that they can report to work
free from harassment, vexation or peril and as consequence perform more
efficiently their respective tasks enhance its productivity as well as profits.
Herein respondent employer did not even offer to intercede for its employees
with the local police. Was it securing peace for itself at the expenses of its
workers? Was it also intimidated by the local police or did it encourage the
local police to terrorize or vex its workers? Its failure to defend its own
employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby
subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of
assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for
their very survival, utilizing only the weapons afforded them by the
Constitution the untrammelled enjoyment of their basic human rights. The
pretension of their employer that it would suffer loss or damage by reason of
the absence of its employees from 6 o'clock in the morning to 2 o'clock in the
afternoon, is a plea for the preservation merely of their property rights. Such
apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees'
pathetic situation was a stark reality abused, harassment and persecuted
as they believed they were by the peace officers of the municipality. As
above intimated, the condition in which the employees found themselves vis-
a-vis the local police of Pasig, was a matter that vitally affected their right to
individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being
broken in morale and brutalized in spirit-can never be fully evaluated in
monetary terms. The wounds fester and the scars remain to humiliate him to
his dying day, even as he cries in anguish for retribution, denial of which is
like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights freedom of expression,
of peaceful assembly and of petition for redress of grievances over
property rights has been sustained. 18 Emphatic reiteration of this basic tenet
as a coveted boon at once the shield and armor of the dignity and worth of
the human personality, the all-consuming ideal of our enlightened civilization
becomes Our duty, if freedom and social justice have any meaning at all
for him who toils so that capital can produce economic goods that can
generate happiness for all. To regard the demonstration against police
officers, not against the employer, as evidence of bad faith in collective
bargaining and hence a violation of the collective bargaining agreement and
a cause for the dismissal from employment of the demonstrating employees,
stretches unduly the compass of the collective bargaining agreement, is "a
potent means of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression, of peaceful
assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe regular working hours." The
strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration
against police abuses during working hours, constitutes a virtual tyranny over
the mind and life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a slender
ground.
The mass demonstration staged by the employees on March 4, 1969 could
not have been legally enjoined by any court, such an injunction would be
trenching upon the freedom expression of the workers, even if it legally
appears to be illegal picketing or strike. 20 The respondent Court of Industrial
Relations in the case at bar concedes that the mass demonstration was not a
declaration of a strike "as the same not rooted in any industrial dispute
although there is concerted act and the occurrence of a temporary stoppage
work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that
only the first and regular shift from 6 A.M. to 2 P.M. should report for work in
order that loss or damage to the firm will be averted. This stand failed
appreciate the sine qua non of an effective demonstration especially by a
labor union, namely the complete unity of the Union members as well as their
total presence at the demonstration site in order to generate the maximum
sympathy for the validity of their cause but also immediately action on the
part of the corresponding government agencies with jurisdiction over the
issues they raised against the local police. Circulation is one of the aspects
292
of freedom of expression. 21 If demonstrators are reduced by one-third, then
by that much the circulation of the issues raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of
the purpose of the rally. Moreover, the absence of one-third of their members
will be regarded as a substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police persecution. At any
rate, the Union notified the company two days in advance of their projected
demonstration and the company could have made arrangements to
counteract or prevent whatever losses it might sustain by reason of the
absence of its workers for one day, especially in this case when the Union
requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the morning of March 4, 1969,
the day of the mass demonstration (pp. 42-43, rec.). There was a lack of
human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry
out its mass demonstration. And to regard as a ground for dismissal the
mass demonstration held against the Pasig police, not against the company,
is gross vindictiveness on the part of the employer, which is as unchristian as
it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because
the refusal on the part of the respondent firm to permit all its employees and
workers to join the mass demonstration against alleged police abuses and
the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression,
freedom of assembly and freedom petition for redress of grievances, the
respondent firm committed an unfair labor practice defined in Section 4(a-1)
in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the
employees the right "to engage in concert activities for ... mutual aid or
protection"; while Section 4(a-1) regards as an unfair labor practice for an
employer interfere with, restrain or coerce employees in the exercise their
rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the
workers of the respondent firm on March 4, 1969, was for their mutual aid
and protection against alleged police abuses, denial of which was
interference with or restraint on the right of the employees to engage in such
common action to better shield themselves against such alleged police
indignities. The insistence on the part of the respondent firm that the workers
for the morning and regular shift should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent
means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at
least equal protection as the concerted action of employees in giving publicity
to a letter complaint charging bank president with immorality, nepotism,
favoritism an discrimination in the appointment and promotion of ban
employees. 23 We further ruled in the Republic Savings Bank case, supra,
that for the employees to come within the protective mantle of Section 3 in
relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary that
union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order
of respondent Court dated September 15, 1969, the company, "while
expressly acknowledging, that the demonstration is an inalienable right of the
Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal
operation of the company" and "warned the PBMEO representatives that
workers who belong to the first and regular shifts, who without previous leave
of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed, because such failure
is a violation of the existing CBA and, therefore, would be amounting to an
illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to
coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more
important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen
to them was to lose a day's wage by reason of their absence from work on
the day of the demonstration. One day's pay means much to a laborer, more
especially if he has a family to support. Yet, they were willing to forego their
one-day salary hoping that their demonstration would bring about the desired
relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly
and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to
demand from the workers proof of the truth of the alleged abuses inflicted on
them by the local police, it thereby concedes that the evidence of such
abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred
293
by the President of the Philippines for proper investigation and action with a
view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found
that the demonstration "paralyzed to a large extent the operations of the
complainant company," the respondent Court of Industrial Relations did not
make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss
or damage. It did not present evidence as to whether it lost expected profits
for failure to comply with purchase orders on that day; or that penalties were
exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by
reason of its failure to deliver the materials ordered; or that its own
equipment or materials or products were damaged due to absence of its
workers on March 4, 1969. On the contrary, the company saved a sizable
amount in the form of wages for its hundreds of workers, cost of fuel, water
and electric consumption that day. Such savings could have amply
compensated for unrealized profits or damages it might have sustained by
reason of the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and
assembly as well as the right to petition for redress of grievances of the
employees, the dismissal of the eight (8) leaders of the workers for
proceeding with the demonstration and consequently being absent from
work, constitutes a denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5 of Article II of the
Constitution imposes upon the State "the promotion of social justice to insure
the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the
Constitution that "the State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State is under obligation at
all times to give meaning and substance to these constitutional guarantees in
favor of the working man; for otherwise these constitutional safeguards would
be merely a lot of "meaningless constitutional patter." Under the Industrial
Peace Act, the Court of Industrial Relations is enjoined to effect the policy of
the law "to eliminate the causes of industrial unrest by encouraging and
protecting the exercise by employees of their right to self-organization for the
purpose of collective bargaining and for the promotion of their moral, social
and economic well-being." It is most unfortunate in the case at bar that
respondent Court of Industrial Relations, the very governmental agency
designed therefor, failed to implement this policy and failed to keep faith with
its avowed mission its raison d'etre as ordained and directed by the
Constitution.
V
It has been likewise established that a violation of a constitutional right
divests the court of jurisdiction; and as a consequence its judgment is null
and void and confers no rights. Relief from a criminal conviction secured at
the sacrifice of constitutional liberties, may be obtained through habeas
corpus proceedings even long after the finality of the judgment. Thus, habeas
corpus is the remedy to obtain the release of an individual, who is convicted
by final judgment through a forced confession, which violated his
constitutional right against self-incrimination; 25 or who is denied the right to
present evidence in his defense as a deprivation of his liberty without due
process of law, 26 even after the accused has already served sentence for
twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched
upon these constitutional immunities of petitioners. Both failed to accord
preference to such rights and aggravated the inhumanity to which the
aggrieved workers claimed they had been subjected by the municipal police.
Having violated these basic human rights of the laborers, the Court of
Industrial Relations ousted itself of jurisdiction and the questioned orders it
issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as
private citizens and corporations, the exercise and enjoyment of which must
not be nullified by mere procedural rule promulgated by the Court Industrial
Relations exercising a purely delegate legislative power, when even a law
enacted by Congress must yield to the untrammelled enjoyment of these
human rights. There is no time limit to the exercise of the freedoms. The right
to enjoy them is not exhausted by the delivery of one speech, the printing of
one article or the staging of one demonstration. It is a continuing immunity to
be invoked and exercised when exigent and expedient whenever there are
errors to be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of Rights would be
vitiated by rule on procedure prescribing the period for appeal. The battle
then would be reduced to a race for time. And in such a contest between an
employer and its laborer, the latter eventually loses because he cannot
employ the best an dedicated counsel who can defend his interest with the
required diligence and zeal, bereft as he is of the financial resources with
which to pay for competent legal services. 28-a
VI
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The Court of Industrial Relations rule prescribes that motion for
reconsideration of its order or writ should filed within five (5) days from notice
thereof and that the arguments in support of said motion shall be filed within
ten (10) days from the date of filing of such motion for reconsideration (Sec.
16). As above intimated, these rules of procedure were promulgated by the
Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven
(7) days from notice on September 22, 1969 of the order dated September
15, 1969 or two (2) days late. Petitioners claim that they could have filed it on
September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days
late defeat the rights of the petitioning employees? Or more directly and
concretely, does the inadvertent omission to comply with a mere Court of
Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a
legislative delegation, prevail over constitutional rights? The answer should
be obvious in the light of the aforecited cases. To accord supremacy to the
foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of
constitutional government that the Constitution is superior to any statute or
subordinate rules and regulations, but also does violence to natural reason
and logic. The dominance and superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule of necessity should be
affirmed. Such a Court of Industrial Relations rule as applied in this case
does not implement or reinforce or strengthen the constitutional rights
affected,' but instead constrict the same to the point of nullifying the
enjoyment thereof by the petitioning employees. Said Court of Industrial
Relations rule, promulgated as it was pursuant to a mere legislative
delegation, is unreasonable and therefore is beyond the authority granted by
the Constitution and the law. A period of five (5) days within which to file a
motion for reconsideration is too short, especially for the aggrieved workers,
who usually do not have the ready funds to meet the necessary expenses
therefor. In case of the Court of Appeals and the Supreme Court, a period of
fifteen (15) days has been fixed for the filing of the motion for re hearing or
reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised
Rules of Court). The delay in the filing of the motion for reconsideration could
have been only one day if September 28, 1969 was not a Sunday. This fact
accentuates the unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated
September 27, 1969, is based on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence and facts adduced
during the hearing," and likewise prays for an extension of ten (10) days
within which to file arguments pursuant to Sections 15, 16 and 17 of the
Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.);
although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period
required for the filing of such supporting arguments counted from the filing of
the motion for reconsideration. Herein petitioners received only on October
28, 1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the
reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is
filed out of time, or where the arguments in suppf such motion are filed
beyond the 10 day reglementary period provided for by the Court of Industrial
Relations rules, the order or decision subject of 29-a reconsideration becomes
final and unappealable. But in all these cases, the constitutional rights of free
expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and defenses
presently available must be specifically raised in the complaint or answer; so
that any cause of action or defense not raised in such pleadings, is deemed
waived. However, a constitutional issue can be raised any time, even for the
first time on appeal, if it appears that the determination of the constitutional
issue is necessary to a decision of the case, the very lis mota of the case
without the resolution of which no final and complete determination of the
dispute can be made. 30 It is thus seen that a procedural rule of Congress or
of the Supreme Court gives way to a constitutional right. In the instant case,
the procedural rule of the Court of Industrial Relations, a creature of
Congress, must likewise yield to the constitutional rights invoked by herein
petitioners even before the institution of the unfair labor practice charged
against them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no
less by the organic law, is a most compelling reason to deny application of a
Court of Industrial Relations rule which impinges on such human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power to
"suspend its own rules or to except a particular case from its operation,
whenever the purposes of justice require." 30-b Mr. Justice Barredo in his
concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle
and added that
295
 Under this authority, this Court is enabled to cove with all
situations without concerning itself about procedural niceties
that do not square with the need to do justice, in any case,
without further loss of time, provided that the right of the
parties to a full day in court is not substantially impaired.
Thus, this Court may treat an appeal as a certiorari and vice-
versa. In other words, when all the material facts are spread
in the records before Us, and all the parties have been duly
heard, it matters little that the error of the court a quo is of
judgment or of jurisdiction. We can then and there render the
appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of
this Court to strike down in an appeal acts without or in
excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in
appropriate cases, to reverse in a certain proceed in any
error of judgment of a court a quo which cannot be exactly
categorized as a flaw of jurisdiction. If there can be any
doubt, which I do not entertain, on whether or not the errors
this Court has found in the decision of the Court of Appeals
are short of being jurisdiction nullities or excesses, this Court
would still be on firm legal grounds should it choose to
reverse said decision here and now even if such errors can
be considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the
unnecessary return of this case to the lower court for the
sole purpose of pursuing the ordinary course of an appeal.
(Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule
in this particular case at bar would an unreasoning adherence to "Procedural
niceties" which denies justice to the herein laborers, whose basic human
freedoms, including the right to survive, must be according supremacy over
the property rights of their employer firm which has been given a full hearing
on this case, especially when, as in the case at bar, no actual material
damage has be demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial
Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It
should be stressed that the application in the instant case Section 15 of the
Court of Industrial Relations rules relied upon by herein respondent firm is
unreasonable and therefore such application becomes unconstitutional as it
subverts the human rights of petitioning labor union and workers in the light
of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial
Relations rules with reference to the case at is also authorized by Section 20
of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of
Industrial Relations to "act according to justice and equity and substantial
merits of the case, without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by
Mr. Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan,
etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the
petitioners in the motion for new trial is not "newly
discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion
is not binding upon the Court of Industrial Relations. Under
Section 20 of Commonwealth Act No. 103, 'The Court of
Industrial Relations shall adopt its, rules or procedure and
shall have such other powers as generally pertain to a court
of justice: Provided, however, That in the hearing,
investigation and determination of any question or
controversy and in exercising any duties and power under
this Act, the Court shall act according to justice and equity
and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in
such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity
of the technicalities applicable to ordinary courts. Said court
is not even restricted to the specific relief demanded by the
parties but may issue such orders as may be deemed
necessary or expedient for the purpose of settling the
dispute or dispelling any doubts that may give rise to future
disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17,
1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil.
124.) For these reasons, We believe that this provision is
ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners
constitute a minority was founded on fact, without regard to
the technical meaning of newly discovered evidence. ...
296
 (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46
Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic
rigor" in the instant case is to rule in effect that the poor workers, who can ill-
afford an alert competent lawyer, can no longer seek the sanctuary of human
freedoms secured to them by the fundamental law, simply because their
counsel erroneously believing that he received a copy of the decision on
September 23, 1969, instead of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which practically is only one day late
considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they
ceased to be instruments of justice, for the attainment of which such rules
have been devised. Summarizing the jurisprudence on this score, Mr. Justice
Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v.
Villamor (16 Phil. 315 [1910]. The Villamor decision was
cited with approval in Register of Deeds v. Phil. Nat. Bank,
84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104
Phil. 156 [1958] and Uy v. Uy, 14243, June 30, 1961, 2
SCRA 675.), decided as far back as 1910, "technicality.
when it deserts its proper-office as an aid to justice and
becomes its great hindrance and chief enemy, deserves
scant consideration from courts." (Ibid., p, 322.) To that
norm, this Court has remained committed. The late Justice
Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a
similar mind. For him the interpretation of procedural rule
should never "sacrifice the ends justice." While "procedural
laws are no other than technicalities" view them in their
entirety, 'they were adopted not as ends themselves for the
compliance with which courts have organized and function,
but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained
steadfastly opposed, in the highly rhetorical language Justice
Felix, to "a sacrifice of substantial rights of a litigant in altar
of sophisticated technicalities with impairment of the sacred
principles of justice." (Potenciano v. Court of Appeals, 104
Phil. 156, 161 [1958]). As succinctly put by Justice
Makalintal, they "should give way to the realities of the
situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5
SCRA 1016, 1019). In the latest decision in point
promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.)
Justice Zaldivar was partial to an earlier formulation of
Justice Labrador that rules of procedure "are not to be
applied in a very rigid, technical sense"; but are intended "to
help secure substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to
be given effect, the dismissal or termination of the employment of the
petitioning eight (8) leaders of the Union is harsh for a one-day absence from
work. The respondent Court itself recognized the severity of such a sanction
when it did not include the dismissal of the other 393 employees who are
members of the same Union and who participated in the demonstration
against the Pasig police. As a matter of fact, upon the intercession of the
Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were
specifically named as respondents in the unfair labor practice charge filed
against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and
"C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the
400 or so employee participated in the demonstration, for which reason only
the Union and its thirteen (13) officers were specifically named in the unfair
labor practice charge (p. 20, respondent's brief). If that were so, then many, if
not all, of the morning and regular shifts reported for work on March 4, 1969
and that, as a consequence, the firm continued in operation that day and did
not sustain any damage.
The appropriate penalty if it deserves any penalty at all should have
been simply to charge said one-day absence against their vacation or sick
leave. But to dismiss the eight (8) leaders of the petitioner Union is a most
cruel penalty, since as aforestated the Union leaders depend on their wages
for their daily sustenance as well as that of their respective families aside
from the fact that it is a lethal blow to unionism, while at the same time
strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from
those who consciously seek to destroy our system of
Government, but from men of goodwill good men who
allow their proper concerns to blind them to the fact that
what they propose to accomplish involves an impairment of
liberty.
297
 ... The Motives of these men are often commendable. What
we must remember, however, is thatpreservation of liberties
does not depend on motives. A suppression of liberty has
the same effect whether the suppress or be a reformer or an
outlaw. The only protection against misguided zeal is a
constant alertness of the infractions of the guarantees of
liberty contained in our Constitution. Each surrender of
liberty to the demands of the moment makes easier another,
larger surrender. The battle over the Bill of Rights is a never
ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties
of all are protected.
... But even if we should sense no danger to our own
liberties, even if we feel secure because we belong to a
group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less
fortunate that we in all honor and good conscience must be
observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a
complete lack of sympathetic understanding of the plight of its laborers who
claim that they are being subjected to indignities by the local police, It was
more expedient for the firm to conserve its income or profits than to assist its
employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such
opportunism and expediency resorted to by the respondent company
assaulted the immunities and welfare of its employees. It was pure and
implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs.
C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for having
written and published "a patently libelous letter ... to the Bank president
demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank
employees." Therein, thru Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their
individual capacities when they wrote the letter-charge they
were nonetheless protected for they were engaged in
concerted activity, in the exercise of their right of self
organization that includes concerted activity for mutual aid
and protection, (Section 3 of the Industrial Peace Act ...) This
is the view of some members of this Court. For, as has been
aptly stated, the joining in protests or demands, even by a
small group of employees, if in furtherance of their interests
as such, is a concerted activity protected by the Industrial
Peace Act. It is not necessary that union activity be involved
or that collective bargaining be contemplated. (Annot., 6
A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the
respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline
for what it calls the respondents' libel in giving undue
publicity to their letter-charge. To be sure, the right of self-
organization of employees is not unlimited (Republic Aviation
Corp. vs. NLRB 324 U.S. 793 [1945]), as the right of the
employer to discharge for cause (Philippine Education Co. v.
Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the
normal exercise of the right of the employer to select his
employees or to discharge them. It is directed solely against
the abuse of that right by interfering with the countervailing
right of self organization (Phelps Dodge Corp. v. NLRB 313
U.S. 177 [1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity that
the Bank's conduct, identified as an interference with the
employees' right of self-organization or as a retaliatory
action, and/or as a refusal to bargain collectively, constituted
an unfair labor practice within the meaning and intendment
298
 of section 4(a) of the Industrial Peace Act. (Emphasis
supplied.) 33
If free expression was accorded recognition and protection to fortify labor
unionism in the Republic Savings case, supra, where the complaint assailed
the morality and integrity of the bank president no less, such recognition and
protection for free speech, free assembly and right to petition are rendered all
the more justifiable and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of
Industrial Relations dated September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with full
back pay from the date of their separation from the service until re instated,
minus one day's pay and whatever earnings they might have realized from
other sources during their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
[G.R. Nos. 117267-117310. August 22, 1996]
GENEROSO N. SUBAYCO, ALFREDO T. ALCALDE, and ELEUTERIO O.
IBAEZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PUNO, J.:
The year was 1985, the month, September. The Marcos government
was fast sliding into its sunset days. Yet, it was again set to celebrate with
pomp, September 21, the day it proclaimed martial law some thirteen (13)
years ago. The people, however, were not in the mood to be joyous. They
planned massive public protests in different parts of the country. One of the
biggest protest rallies was blueprinted as a Welga ng Bayan at Escalante,
Negros Occidental. It ended in tragedy which will not easily recede in the
mist of our history. Twenty (20) demonstrators were shot dead and twenty-
four (24) others were wounded by the military and para-military forces of the
Marcos government. Of several persons charged with various counts of
murder and frustrated murder, only three (3) were convicted Generoso N.
Subayco, Alfredo T. Alcalde and Eleuterio O. Ibaez were convicted by the
respondent Sandiganbayan. They now come to this Court insisting on their
innocence and pleading to be set free. We deny their petition and we warn
our military and police authorities that they cannot shoot people who are
exercising their right to peacefully assemble and petition the government for
redress of grievance.[1]
As aforestated, twenty (20) demonstrators were killed and twenty-four
(24) others were seriously wounded by gunshots during the Welga ng
Bayan held on September 20, 1985 at Escalante, Negros Occidental. Twenty
(20) counts of Murder and twenty-four (24) counts of Frustrated
Murder[2] were filed with respondent Sandiganbayan against those allegedly
responsible for the death and injuries of the victims. Charged were several
civilian government officials, personnel from the Philippine Constabulary and
the Integrated National Police, and from the para-military group Civilian
Home Defense Force (CHDF), namely:
1. Ex-Mayor Braulio P. Lumayno,
2. Ex-Governor Armando C. Gustilo,[3]
3. Danilo Nonoy Jimenez,
4. Capt. Modesto E. Sanson, Jr.,
5. CIC Alfredo T. Alcalde,
6. CIC Eleuterio O. Ibaez,
7. C2C Rufino L. Lerado,
8. C2C Carlos L. Santiago,
9. T/Sgt. Generoso N. Subayco,
10. S/Sgt. Quirino L. Amar,
11. Sgt. Rolando A. Braa,
12. P/Capt. Rafael C. Jugan,
13. P/Pfc. Mariano C. Juarez, Jr.,
14. P/Pfc. Alfonso Birao,
15. P/Pfc. Wilfredo Carreon,
299
 16. P/Pfc. Rogelio Pea, 8. Rolando Braa,
17. P/Pfc. Iluminado D. Guillen, 9. Rafael Jugan,
18. Pat. Ludovico Cajurao, 10. Mariano Juarez,
19. Pat. Luisito T. Magalona, 11. Alfonso Birao,
20. Pat. Alex Francisco M. Liguaton, 12. Wilfredo Carreon
21. Pat. Porfirio Q. Sypongco, 13. Rogelio Pea,
22. Pat. Prudencio M. Panagsagan, 14. Iluminado Guillen,
23. Pat. Danilo P. Antones, 15. Ludovico Cajurao,
24. Pat. Elmer Sinadjan, 16. Luisito Magalona,
25. Pat. Grant L. Batomalaque, 17. Alex Francisco Liguaton,
26. Pat. Lino F. Mercado, 18. Porfirio Sypongco,
27. F/Cpl. Casimiro Pandongan, 19. Prudencio Panagsagan,
28. Fmn. Gene Legaspina, 20. Danilo Antones,
29. Fmn. Giomar D. Gale, 21. Elmer Sinadjan,
30. Fmn. Edwin T. Gustilo, 22. Grant Batomalaque,
31. Fmn. Joel B. Rosal, 23. Casimiro Pandongan,
32. Chdf Teddy Magtubo, 24. Gene Legaspina,
33. Chdf Elias Torias, 25. Socrates Jarina,
34. Chdf Jose Boy Parcon, 26. Giomar Gale,
35. Chdf Jeremias Villanueva, 27. Edwin Gustilo, and
36. Chdf Dante P. Diaz, 28. Joel Rosal.
37. Chdf Amador O. Villa,
38. Chdf Antonio A. Caete, Upon conclusion of the trial, respondent court acquitted all the accused
39. Chdf Jimmy Mayordomo, except petitioners Alfredo Alcalde, Eleuterio Ibaez and Generoso
40. Chdf Jerry L. Espinosa, Subayco. The dispositive portion of the Decision held:
41. Chdf Francisco A. Morante,
42. Chdf Bernie C. Muoz, WHEREFORE, for all the foregoing, the Court finds the evidence against the
43. Chdf Ernesto V. Olaera, following accused to be insufficient to establish their liability in the instant
44. Chdf Dione L. Sesbreno, and charges and therefore ACQUITS them in all the herein cases:
45. Chdf Alfredo A. Quinatagcan alias Pidong Bagis.
1. Modesto Sanson
All of the accused were part of the police-military group which undertook the 2. Rufino Leado
dispersal operation during the rally. 3. Carlos Santiago
Only twenty-eight (28) of the above accused were arrested and tried as 4. Quirino Amar
the others remained at large. The twenty-eight (28) were all members of the 5. Rolando Braa
Philippine Constabulary and the Integrated National Police, viz: 6. Rafael Jugan
7. Mariano Juarez
1. Modesto Sanson, 8. Alfonso Birao
2. Alfredo Alcalde, 9. Wilfredo Carreon
3. Eleuterio Ibaez, 10. Rogelio Pea
4. Rufino Lerado, 11. Iluminado Guillen
5. Carlos Santiago, 12. Ludivico Cajurao
6. Generoso Subayco, 13. Luisito Magalona
7. Quirino Amar, 14. Alex Francisco Liguaton
300
 15. Porfirio Sypongco 1) imprisonment for an indeterminate period ranging from a
16. Prudencio Panagsagan minimum of seventeen (17) years and one (1) day of reclusion
17. Danilo Antones temporal to a maximum of reclusion perpetua for EACH of the
18. Elmer Sinadjan above sixteen cases;
19. Grant Batomalaque
20. Casimiro Pandongan 2) to jointly pay indemnity to the heirs for the death of the above
21. Gene Legaspina mentioned victims at P50,000.00 for each victim, or a total of
22. Socrates Jarina P800,000.00;
23. Giomar Gale 3) to jointly pay moral damages to the heirs of the above victims at
24. Edwin Gustilo P20,000.00 for each victim of a total of P320,000.00;
25. Joel Rosal, and
26. Francisco Morante.
B. FOR FRUSTRATED MURDER for the injuries sustained under the
following Criminal Cases:
The same evidence, however, has established the guilt beyond reasonable
doubt of the following accused who stood trial:
No. 12039 by Buenaventura Jaravelo
No. 12041 by Alejandro Bocabal
1. Alfredo Alcalde No. 12042 by Elias Hermogenes
2. Eleuterio Ibaez, and No. 12046 by Luvimin Leones
3. Generoso Subayco No. 12047 by Gloven Gabrido
No. 12051 by Henry Sernal
and the Court hereby renders judgment CONVICTING them and imposing No. 12053 by Virgirita Mabuyao
upon them the corresponding penalties, to wit: No. 12059 by Federico Dogomeo
No. 12060 by Wenefreda Loquinario
A. FOR MURDER in the following Criminal Cases: No. 12062 by Luzviminda Gemola
1) imprisonment for an indeterminate period ranging from a
of Rodolfo Montealto in No. 12063 minimum of eight (8) years and one (1) day of prision mayor to
of Claro Monares in No. 12064 a maximum of fourteen (14) years, ten (10) months and twenty
of Edgardo Salili in No. 12065 (20) daysof reclusion temporal for EACH of the above ten (10)
of William Alegre in No. 12066 cases;
of Rovena Franco in No. 12067
of Cesar Tejones in No. 12067 2) to jointly pay actual damages incurred only by the following
of Juvely Jaravelo in No. 12070 victims, as follows:
of Rodney Demigilio in No. 12071
of Manuel Tan in No. 12072 Alejandro Bocabal (No. 12040) - P800.00
of Michael Dayanan in No. 12073
of Maria Luz Mondejar in No. 12074 Luzminda Gemola (No. 12062) - P700.00
of Aniano Ornopia in No. 12076
of Nenita Orot in No. 12077
or a total of P1,500.00; no other damage having been actually
of Johnny Suarez in No. 12078
proven at trial;
of Ronilo Sta. Ana in No. 12080
of Angelina Lape in No. 12081
3) to jointly pay moral damages to the following victims:
Buenaventura Jaravelo (No.12039) P10,000.00
301
 Alejandro Bocabal (No. 12040) P10,000.00 3) to jointly pay moral damages to the victims at P5,000.00 for each
Elias Hermogenes (No. 12042) P10,000.00 of the victims in the fourteen cases or a total of P70,000.00.
Luvimin Leones (No. 12046) P10,000.00
Gloven Gabrido (No. 12047) P10,000.00 These three accused, namely, Alfredo Alcalde, Eleuterio Ibaez and
Henry Sernal (No. 12051) P10,000.00 Genoroso Subayco are, however, ACQUITTED in the four murder cases (No.
Virginita Mabuyao (No. 12053) P10,000.00 12069, No. 12075, No. 12079 and No. 12082 charging the deaths of Alex
Federico Dogomeo (No. 12059) P15,000.00 Lobatos, Rodolfo Mahinay, Rogelio Magallen, Jr. and Norberto Locanilao,
Wenefrida Loquinario (No. 12060) P15,000.00 respectively) for failure of the prosecution to prove their guilt beyond
Luzminda Gemola (No. 12062) P10,000.00 reasonable doubt.
or a total of P110,000.00.
LET an alias warrant of arrest issue for the following accused who, up to this
C. FOR ATTEMPTED MURDER for the injuries sustained under the following time, had eluded arrest:
Criminal Cases:
1. Ex-Mayor Braulio Lumayno
No. 12041 of Celso Saburdo 2. Danilo Nonoy Jimenez
No. 12043 of Eduardo Latosa 3. Pat. Lino F. Mercado
No. 12044 of Nelly Artajo 4. CHDF Teddy G. Magtubo
No. 12045 of Renato Tapel 5. CHDF Elias Torias
No. 12048 of Joel Quiamco 6. CHDF Jose Boy Parcon
No. 12049 of Magdalena Hemola 7. CHDF Jeremias Villanueva
No. 12050 of Lucia Ravanes 8. CHDF Dante P. Diaz
No. 12052 of Ernesto Caro 9. CHDF Amador O. Villa
No. 12054 of Renato Saratobias 10. CHDF Antonio A. Caete
No. 12055 of Elisa Zarraga 11. CHDF Jimmy Mayordomo
No. 12056 of Julio Iwayan 12. CHDF Jerry L. Espinosa
No. 12057 of Nelson Cabahug 13. CHDF Bernie C. Muoz
No. 12058 of Felix Almonia 14. CHDF Ernesto V. Olaera
No. 12061 of Abundia Caraat-Petrano 15. CHDF Dione L. Sebreno, and
1) imprisonment for an indeterminate period ranging from a 16. CHDF Alfredo M. Quinatagcan alias Pidong Baguis.
minimum of four (4) years, one (1) month and one (1)
day of prision correccional to a maximum of eight (8) years of In the meantime, the cases with respect to the above-named accused who
prision mayor for EACH of the above fourteen (14) cases; remain at large shall be archived pending their arrest or voluntary submission
to the jurisdiction of this Court.
2) to jointly pay actual damages incurred by the victims, as follows:
Celso Saburdo (No. 12041) P800.00 SO ORDERED.[4]
Renato Tapel (No. 12045) P300.00
Joel Quiamco (No. 12048) P15,000.00 Petitioners now come before us by way of certiorari raising the following
Lucia Ravanes (No. 12050) P2,000.00 issues:
Renato Saratobias (No. 12054) P2,000.00
Elisa Zarraga (No. 12055) P300.00 1. Whether respondent Sandiganbayan committed serious error
Nelson Cahabug (No. 12057) P2,000.00 of law in convicting the petitioners based merely on alleged
Abundia Petrano (No. 12061) P200.00 implied conspiracy to perpetrate the crimes charged and not on
or a total of P22,600.00 clear, positive and convincing proof of conspiracy; and

302
 2. Whether respondent Sandiganbayan committed serious error
of law in convicting the petitioners despite that the quantum of
evidence required for a finding of guilt that is proof beyond
reasonable doubt was not satisfied.[5]
The petition must fail.
The undisputed facts are summarized by the respondent court in its
exhaustive Decision, as follows:
xxx xxx xxx
There was a rally held at Escalante, Negros Occidental that started on
September 18, 1985. It was planned to go on until September 21, 1985, the
anniversary of the proclamation of martial law by then President Marcos. This
rally was participated in by members of the Bagong Alyansang Makabayan
or BAYAN, the National Federation of Sugar Workers, the Kristianong
Katilingban, the CYO, the KMU, the League of Filipino Students, and
others. It was spearheaded by the BAYAN whose leader at Escalante was
Rolando Ponseca.
The rally was without permit from the local authorities, although the plan was
not kept secret from them. In fact, this planned demonstration was taken up
at a conference called by the Provincial Command and attended by the
accused Capt. Sanson of the 334th PC Company stationed at Sagay, among
other unit commanders. At that meeting, the operational guidelines were laid
down on how to deal with the planned demonstration as well as with
contingencies in connection therewith. The local command headed by Capt.
Sanson had met with the leaders of the projected Welga ng Bayan in order to
agree on ground rules for the conduct of the rally.
The Welga ng Bayan started as scheduled on September 18, 1985. It started
with a torch parade that evening. The demonstrators came to Escalante and
stayed, occupying the national highway in front of the Rural Bank of
Escalante and the other converging point at the market site. By the 20th, the
crowd was at its thickest. Estimates of the attendance therein ranged from
3,000 to 10,000.
At around noontime on that day, there were speeches delivered by speakers
from among the demonstrators using the public address system on an
improvised platform, addressing the crowd assembled in front of the Rural
Bank. The crowd also shouted anti-Marcos and anti-Military slogans, among
others.
Capt. Sanson had been constantly apprised of the activities of the
demonstrators by reports coming from Capt. Rafael Jugan, the Station
Commander of the INP at Escalante. He was informed by the latter that the
rallyists had failed to honor their commitment not to barricade the entire
portion of the national highway so as not to obstruct traffic. He was likewise
informed that the demonstrators were collecting money from passing
motorists and that the demonstrators were becoming unruly.
Capt. Sanson in turn reported these pieces of information to the Provincial
Command. As he was in charge of the area, Capt. Sanson took it upon
himself to personally talk to Ponseca, when he believed that his Station
Commander had failed to get in touch with Ponseca, to remind him of his
commitment. After Ponseca had failed to effect a dispersal of the crowd or to
open at least half of the road to allow passage to vehicles, he had prepared a
dispersal operation and had called fire-fighting personnel and equipment
from the towns of Sagay and Escalante, as well as from the cities of San
Carlos and Cadiz. He had also summoned his men under Capt. Jugan of the
Escalante INP, the CHDF headed by Sgt. Subayco and another team
headed by Lt. Supaco.
After a last-ditch effort to peacefully disperse the crowd by Ponseca through
a letter to the demonstrators in front of the Rural Bank had failed, the
dispersal operation by Capt. Sanson began. Four firetrucks were dispatched
to the crowd of demonstrators, two of them the Cadiz and Escalante
firetrucks towards the demonstrators massed in front of the Rural Bank of
Escalante. These hosed the demonstrators with water but even after the
water from them had been exhausted, the demonstrators stayed put. Capt.
Sanson then ordered the throwing of teargas to the demonstrators by two of
his men, Amar and Mercado. The tear gas caused the demonstrators to lie
face down on the ground; they persisted in their places rather than
disperse. Then, a single shot rang out followed by successive gunfire from
different directions. As one witness had described it, it was like New Years
Eve (TSN, February 7, 1994, testimony of accused CHDF Morante). This
firing lasted for a few minutes.
Capt. Sanson had been heard by some of the witnesses to have shouted
Stop firing repeatedly and, after some time, the firing had stopped, but not
soon enough for men and women from the rallyists group who died and
others who were wounded as a result of the gunfire.[6]
It was the thesis of the prosecution that the whole dispersal operation
was an unlawful conspiracy, that the firing at the crowd was part of the
dispersal operation, and that all those who took part in the dispersal
303
operation should be held liable for each death and each injury that resulted
therefrom.[7]
The accused denied the existence of conspiracy. Subayco and Ibaez
claimed that they merely fired into the air but not toward the crowd. On his
part, Alcalde admitted that he fired his weapon to prevent the rallyists from
climbing the Cadiz City firetruck.[8]
In its Decision, the respondent court ruled there was no sufficient
evidence to prove general conspiracy of the forty-five (45) accused as
alleged by the prosecution.[9] It then examined the individual acts of the
accused during the dispersal operation to determine their liability for the
death and injuries of the victims. It found implied conspiracy only on the part
of all the accused who fired at the demonstrators.
Per finding of the respondent Sandiganbayan, the firing came from the
Cadiz City firetruck and the jeep which witnesses referred to as a weapons
carrier. After the rallyists were hosed with water, the Cadiz City firetruck
attempted to move back, but was trapped by the logs and rocks ostensibly
put by the rallyists under its wheels. The weapons carrier was then
maneuvered behind the Cadiz City firetruck. Thereafter, teargas canisters
were lobbed at the rallyists. Jovy Jaravelo, a rallyist, picked up one of the
canisters and threw it back where it came from. Hell broke
loose. CHDF Alfredo Quinatagcan (a.k.a. Pidong Bagis) shot
Jaravelo. Successive gunfire followed. Several witnesses saw
the CHDF personnel and the PC men on board the Cadiz City firetruck and
the weapons carrier fire their guns. Some fired into the air while the others
directed their gun shots at the rallyists. When the dust settled down, twenty
(20) of the demonstrators were dead, twenty-four (24) others were wounded
and seventy-nine (79) empty shells were recovered from the scene of the
crime. They were later traced to four firearms belonging
to CHDF Caete, CHDF Parcon, C2C Lerado and CIC Ibaez.[10]
The following were identified by witnesses to have fired their
guns: CHDF Alfredo M. Quinatagcan alias Pidong Bagis, CHDF Elias
Torias, CHDF Jimmy Mayordomo, CHDF Teddy Magtubo, CHDF Jeremias
Villanueva, CHDF Jose Boy Parcon, Roming Javier, C1C Eleuterio O. Ibaez,
T/Sgt. Generoso N. Subayco, C1C Alfredo Alcalde.[11]
On the basis of the evidence adduced and following its theory of implied
conspiracy, the respondent Court held petitioners liable for the deaths and
injuries of all the victims.[12] It is this finding of implied conspiracy that
petitioners assail in the petition at bar.
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. It may be
deduced from the mode and manner in which the offense was
committed. The concerned acts of petitioners to achieve the same objective
signify conspiracy.[13] In the case of People vs. Guevarra,[14] we enunciated
the doctrine of implied conspiracy as follows:
xxx xxx xxx
Although there is no well-founded evidence that the appellant and Romero
had conferred and agreed to kill Joselito, their complicity can be justified by
circumstantial evidence, that is, their community of purpose and their unity of
design in the contemporaneous or simultaneous performance of the act of
assaulting the deceased.
xxx xxx xxx
There can be no question that the appellants act in holding the victim from
behind immediately before the latter was stabbed by Eduardo constitutes a
positive and overt act towards the realization of a common criminal intent,
although the intent may be classified as instantaneous. The act was
impulsively done on the spur of the moment. It sprang from the turn of
events, thereby uniting the criminal design of the slayer immediately before
the commission of the offense. That is termed as implied conspiracy. The
appellants voluntary and indispensable cooperation was a concurrence of the
criminal act to be executed. Consequently, he is a co-conspirator by
indispensable cooperation, although the common desire or purpose was
never bottled up by previous undertaking. (italics supplied)
We therefore uphold the respondent court in ruling that the following
circumstances proved the existence of an implied conspiracy among the
petitioners in the cases at bar:
1. After the Escalante firetruck exhausted its supply of water, it
withdrew from the scene.
2. The Cadiz City firetruck took over hosing the crowd. It also ran
out of water, tried to back out but was prevented by the logs and
rocks strewn behind it.
3. The weapons carrier then moved behind the Cadiz City firetruck.
4. Teargas canisters were thrown into the crowd. Jovy Jaravelo, a
rallyist, picked up one of the canisters and threw it back to
where it came from. At this juncture, CHDF Alfredo Quinatagcan
a.k.a. Pidong Bagis shot Jaravelo. Successive gunfire followed.
304
 5. The seventy-nine (79) empty shells recovered from the scene of
the crime were traced to four M-16 rifles issued to CHDF Caete,
CHDF Parcon, C2C Lerado and C1C Ibaez. Caete and Parcon
were on board the weapons carrier while Lerado and Ibaez
were on board the Cadiz City firetruck.
6. The other personnel who were also on these two vehicles were
also scene to have fired at the crowd.
All these circumstances intersect to show a community of purpose among
the petitioners and their companions, that is, to fire at the
demonstrators. This common purpose was pursued by the petitioners and
their companions who used firepower against the rallyists. As proved, the
plan to disperse the demonstrators did not include the use of guns, yet,
petitioners and their cohorts did. At the first crack of gunfire coming from
CHDF Alfredo Quinatagcan (a.k.a. Pidong Bagis), petitioners and their
companions commenced firing at the demonstrators, as if on signal. They
fired indiscriminately toward the demonstrators who were then already lying
prone on the ground. There was no imminent danger to their safety. Not just
one or a few shots were fired but several. The firing lasted a few minutes and
cost the lives and limbs of the demonstrators. We agree with the respondent
court that the collective acts of the petitioners and their companions clearly
show the existence of a common design toward the accomplishment of a
united purpose.[15] They were therefore properly convicted for all the crimes
they were charged with.
The use of bullets to break up an assembly of people petitioning for
redress of grievance cannot but be bewailed. It is bound to happen again for
as long as abuses in government abound. Precisely to help put a brake on
official abuses, people empowerment was codified in various provisions of
the 1987 Constitution. It is high time to remind our officials that under our
Constitution power does not come from the barrel of a gun but from the
ballots of the people. It is thus important to know the unexpurgated will of the
people for in a republican government, it is the people who should truly rule.
Consequently, the right of the people to assemble peacefully and to petition
for redress of grievance should not be abridged by officials momentarily
holding the powers of government. So we expressly held in the early case
of US v. Apurado.[16]
It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling it always brought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising.
The Constitution did not engage in mystical teaching when it proclaimed in
solemn tone that sovereignty resides in the people and all government
authority emanates from them.[17] It should be clear even to those with
intellectual deficits that when the sovereign people assemble to petition for
redress of grievances, all should listen, especially the government. For in a
democracy, it is the people who count; those who are deaf to their
grievances are ciphers.
Our affirmance of the conviction of the petitioners does not give
complete justice to the victims of the Escalante massacre, subject of the
cases at bar. Until today, sixteen (16) of the other accused have successfully
eluded arrest by the authorities. Not until they have been arrested and tried
will justice emerge triumphant for justice cannot come in fraction.
IN VIEW WHEREOF, the Decision of the Sandiganbayan promulgated
October 3, 1994 is affirmed. Let copies of this Decision be furnished the
Secretary of Justice and the Secretary of Interior and Local Government that
they may undertake the necessary efforts to effectuate the early arrest of the
other accused in the cases at bar. Costs against petitioners.
SO ORDERED.
Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.
G.R. No. 169838 April 25, 2006
305
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL
GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP
Fahima Tajar, Petitioners, MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City DECISION
Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen.
ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and
AZCUNA, J.:
Western Police District Chief Gen. PEDRO BULAONG, Respondents.
Petitioners come in three groups.
x---------------------------------x
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are
G.R. No. 169848 April 25, 2006
citizens and taxpayers of the Philippines and that their rights as organizations
and individuals were violated when the rally they participated in on October
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, 6, 2005 was violently dispersed by policemen implementing Batas Pambansa
Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia (B.P.) No. 880.
dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales,
Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, The second group consists of 26 individual petitioners, Jess del Prado, et
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, al., in G.R. No. 169848,2 who allege that they were injured, arrested and
Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat,
detained when a peaceful mass action they held on September 26, 2005 was
Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
preempted and violently dispersed by the police. They further assert that on
vs.
October 5, 2005, a group they participated in marched to Malacaang to
EDUARDO ERMITA, in his official capacity as The Executive Secretary
protest issuances of the Palace which, they claim, put the country under an
and in his personal capacity, ANGELO REYES, in his official capacity
"undeclared" martial rule, and the protest was likewise dispersed violently
as Secretary of the Interior and Local Governments, ARTURO
and many among them were arrested and suffered injuries.
LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National
Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
official capacity as the Chief, Manila Police District (MPD) AND ALL 169881,3 allege that they conduct peaceful mass actions and that their rights
OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS as organizations and those of their individual members as citizens,
ACTING UNDER THEIR CONTROL, SUPERVISION AND specifically the right to peaceful assembly, are affected by Batas Pambansa
INSTRUCTIONS, Respondents. No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being
followed to implement it.
x---------------------------------x
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to
be conducted at the Mendiola bridge but police blocked them along C.M.
G.R. No. 169881 April 25, 2006
Recto and Lepanto Streets and forcibly dispersed them, causing injuries to
several of their members. They further allege that on October 6, 2005, a
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. multi-sectoral rally which KMU also co-sponsored was scheduled to proceed
LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL along Espaa Avenue in front of the University of Santo Tomas and going
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU- towards Mendiola bridge. Police officers blocked them along Morayta Street
KMU), represented by its National President, JOSELITO V. USTAREZ, and prevented them from proceeding further. They were then forcibly
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, dispersed, causing injuries on one of them.4 Three other rallyists were
FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, arrested.
vs.
306
All petitioners assail Batas Pambansa No. 880, some of them in toto and
others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of
CPR. They seek to stop violent dispersals of rallies under the "no permit, no
rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably
To Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. This Act shall be known as "The Public Assembly Act of
1985."
Sec. 2. Declaration of policy. The constitutional right of the people
peaceably to assemble and petition the government for redress of grievances
is essential and vital to the strength and stability of the State. To this end, the
State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march,
parade, procession or any other form of mass or concerted action
held in a public place for the purpose of presenting a lawful cause; or
expressing an opinion to the general public on any particular issue;
or protesting or influencing any state of affairs whether political,
economic or social; or petitioning the government for redress of
grievances.
The processions, rallies, parades, demonstrations, public meetings
and assemblages for religious purposes shall be governed by local
ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other
concerted action in strike areas by workers and employees resulting
from a labor dispute as defined by the Labor Code, its implementing
rules and regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue,
road, street, bridge or other thoroughfare, park, plaza, square, and/or
any open space of public ownership where the people are allowed
access.
(c) "Maximum tolerance" means the highest degree of restraint that
the military, police and other peace keeping authorities shall observe
during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place
and time of the public assembly, rerouting of the parade or street
march, the volume of loud-speakers or sound system and similar
changes.
Sec. 4. Permit when required and when not required. A written permit shall
be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or
ordinance or in private property, in which case only the consent of the owner
or the one entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall be
subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for
by law are not covered by this Act.
Sec. 5. Application requirements. All applications for a permit shall comply
with the following guidelines:
(a) The applications shall be in writing and shall include the names of
the leaders or organizers; the purpose of such public assembly; the
date, time and duration thereof, and place or streets to be used for
the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
used.
(b) The application shall incorporate the duty and responsibility of the
applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the
city or municipality in whose jurisdiction the intended activity is to be
held, at least five (5) working days before the scheduled public
assembly.
307
 (d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor
shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official acting in his behalf
to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his behalf refuse to
accept the application for a permit, said application shall be posted
by the applicant on the premises of the office of the mayor and shall
be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be
heard on the matter.
(d) The action on the permit shall be in writing and served on the
applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal shall be
required. A decision granting such permit or modifying it in terms
satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder shall
be immediately endorsed to the executive judge for disposition or, in
his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed.
Sec. 7. Use of Public throroughfare. Should the proposed public assembly
involve the use, for an appreciable length of time, of any public highway,
boulevard, avenue, road or street, the mayor or any official acting in his
behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic
to another direction so that there will be no serious or undue interference with
the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of
the leaders and organizers of a public assembly to take all reasonable
measures and steps to the end that the intended public assembly shall be
conducted peacefully in accordance with the terms of the permit. These shall
include but not be limited to the following:
(a) To inform the participants of their responsibility under the
permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-
demonstrators from disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials concerned and law
enforcers to the end that the public assembly may be held
peacefully;
(d) To see to it that the public assembly undertaken shall not go
beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any
person or do any act unduly interfering with the rights of other
persons not participating in the public assembly.
308
Sec. 9. Non-interference by law enforcement authorities. Law enforcement
agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial. Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front
and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry
any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot
device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate
destruction of property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn
the participants that if the disturbance persists, the public assembly
will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith
disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code,
as amended;
(e) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for
dispersal.
Sec. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any
leader or organizer without having first secured that written permit
where a permit is required from the office concerned, or the use of
such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished
or held criminally liable for participating in or attending an otherwise
peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in
violation of the provisions of this Act by the mayor or any other
official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge
receipt of the application for a permit by the mayor or any official
acting in his behalf;
309
 (d) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100)
meters from the area of activity of the public assembly or on the
occasion thereof:
1. the carrying of a deadly or offensive weapon or device
such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or
thoroughfares;
4. the carrying of firearms by members of the law
enforcement unit;
5. the interfering with or intentionally disturbing the holding of
a public assembly by the use of a motor vehicle, its horns
and loud sound systems.
Sec. 14. Penalties. Any person found guilty and convicted of any of the
prohibited acts defined in the immediately preceding section shall be
punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment
of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4,
subparagraph (g) shall be punished by imprisonment of six months
and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years without
prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be
punished by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at least
one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of
any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
Sec. 16. Constitutionality. Should any provision of this Act be declared
invalid or unconstitutional, the validity or constitutionality of the other
provisions shall not be affected thereby.
Sec. 17. Repealing clause. All laws, decrees, letters of instructions,
resolutions, orders, ordinances or parts thereof which are inconsistent with
the provisions of this Act are hereby repealed, amended, or modified
accordingly.
Sec. 18. Effectivity. This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by
Malacaang dated September 21, 2005, shown in Annex "A" to the Petition
in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
310
In view of intelligence reports pointing to credible plans of anti-government
groups to inflame the political situation, sow disorder and incite people
against the duly constituted authorities, we have instructed the PNP as well
as the local government units to strictly enforce a "no permit, no rally" policy,
disperse groups that run afoul of this standard and arrest all persons violating
the laws of the land as well as ordinances on the proper conduct of mass
actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of
maximum tolerance. The authorities will not stand aside while those with ill
intent are herding a witting or unwitting mass of people and inciting them into
actions that are inimical to public order, and the peace of mind of the national
community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens
have the right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and
peaceful conduct befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule of
law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and
Political Rights and other human rights treaties of which the Philippines is a
signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the
freedom of expression clause as the time and place of a public assembly
form part of the message for which the expression is sought. Furthermore, it
is not content-neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or influencing"
suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As a
content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions
are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger
and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the
standard of maximum tolerance set forth in B.P. No. 880, aside from being
void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on
the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can
set limits to this right, the limits provided are unreasonable: First, allowing the
Mayor to deny the permit on clear and convincing evidence of a clear and
present danger is too comprehensive. Second, the five-day requirement to
apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government
takes action even before the rallyists can perform their act, and that no law,
ordinance or executive order supports the policy. Furthermore, it contravenes
the maximum tolerance policy of B.P. No. 880 and violates the Constitution
as it causes a chilling effect on the exercise by the people of the right to
peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District
(MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive
Secretary and in his personal capacity; Angelo Reyes, as Secretary of the
Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as
Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
PNP Director General Arturo Lomibao, the Honorable Mayor Joselito
Atienza, and PNP MPD Chief Pedro Bulaong.
311
Respondents argue that:
1. Petitioners have no standing because they have not presented
evidence that they had been "injured, arrested or detained because
of the CPR," and that "those arrested stand to be charged with
violating Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners
cannot honestly claim that the time, place and manner regulation
embodied in B.P. No. 880 violates the three-pronged test for such a
measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no
reference to content of regulated speech; (b) B.P. No. 880 is
narrowly tailored to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open
alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law.
Section 5 requires the statement of the public assemblys time, place
and manner of conduct. It entails traffic re-routing to prevent grave
public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880
authorizes the denial of a permit on the basis of a rallys program
content or the statements of the speakers therein, except under the
constitutional precept of the "clear and present danger test." The
status of B.P. No. 880 as a content-neutral regulation has been
recognized in Osmea v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral
regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely,
these regulations need only a substantial governmental interest to
support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief
executive has the authority to exercise police power to meet "the
demands of the common good in terms of traffic decongestion and
public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience,
public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present
danger test."10
7. CPR is simply the responsible and judicious use of means allowed
by existing laws and ordinances to protect public interest and restore
public order. Thus, it is not accurate to call it a new rule but rather it
is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does
not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment
that the petition in G.R. No. 169838 should be dismissed on the ground that
Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the
"clear and present danger" rule as there was a clamor to stop rallies that
disrupt the economy and to protect the lives of other people; that J. B. L.
Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit is for
the use of a public place and not for the exercise of rights; and that B.P. No.
880 is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the
submission of all the Comments, the Court set the cases for oral arguments
on April 4, 2006,14 stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No.
7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and
the Universal Declaration of Human Rights?
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 2. On the constitutionality and legality of the policy of Calibrated
Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of
September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took
place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions,
withdrew the portions of their petitions raising factual issues,
particularly those raising the issue of whether B.P. No. 880 and/or
CPR is void as applied to the rallies of September 20, October 4, 5
and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief
Justice that CPR should no longer be used as a legal term inasmuch
as, according to respondents, it was merely a "catchword" intended
to clarify what was thought to be a misunderstanding of the
maximum tolerance policy set forth in B.P. No. 880 and that, as
stated in the affidavit executed by Executive Secretary Eduardo
Ermita and submitted to the Ombudsman, it does not replace B.P.
No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into
account the foregoing developments.
Petitioners standing cannot be seriously challenged. Their right as citizens to
engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which
requires a permit for all who would publicly assemble in the nations streets
and parks. They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such permit can be
validly required without violating the Constitutional guarantee. Respondents,
on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and
of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless
and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the
onset of this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to
petition the government for a redress of grievances and, for that matter, to
organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no
less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence
abounds with hallowed pronouncements defending and promoting the
peoples exercise of these rights. As early as the onset of this century, this
Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising."
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Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of
freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-ordered
civil societies that the exercise of those rights is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is
termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and cities
by authorizing their legislative bodies called municipal and city councils to
enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise
of the cognate rights to free speech and peaceful assembly, arising
from the denial of a permit. The Constitution is quite explicit: "No law
shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like free press,
may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. There is
to be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings unless there be a
"clear and present danger of a substantive evil that [the State] has a
right to prevent." Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters
of public concern. It is entitled to be accorded the utmost deference
and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and
present danger of a substantive evil that the state has a right to
prevent. Even prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the majority
of the American Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of speech and of
the press were coupled in a single guarantee with the rights of the
people peaceably to assemble and to petition the government for
redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate
public interest.
2. Nowhere is the rationale that underlies the freedom of expression
and peaceable assembly better expressed than in this excerpt from
an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the
mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free
speech was given a generous scope. But utterance in a context of
violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully
stressed is the abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if
contrary to the prevailing climate of opinion. For if the peaceful
means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that
there may be something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not
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advocate disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: "It is rather to be expected
that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch
of excitement, and the greater the grievance and the more intense
the feeling, the less perfect, as a rule, will be the disciplinary control
of the leaders over their irresponsible followers." It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury
to property, and acts of vandalism must be avoided. To give free rein
to ones destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our
scheme of values.
There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the
place where the peace rally would start. The Philippines is committed
to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and
parks may rest, they have immemorially been held in trust for the use
of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good
order; but must not, in the guise of regulation, be abridged or
denied." The above excerpt was quoted with approval in Primicias v.
Fugoso. Primicias made explicit what was implicit in Municipality of
Cavite v. Rojas, a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce
of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," which certainly is not the only purpose
that it could serve. To repeat, there can be no valid reason why a
permit should not be granted for the proposed march and rally
starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to
the gates of the US embassy, hardly two blocks away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of
Manila should grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox v. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. chap. 145, section 2, providing that no parade or
procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee, was construed
by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license,
and held valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that a statute requiring
persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state
courts, the licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and manner of the
parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or
refuse license, * * *. "Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored: "Civil
liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestricted abuses. The authority
of a municipality to impose regulations in order to assure the safety
and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as
one of the means of safeguarding the good order upon which they
ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to
promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in
other circumstances would be entitled to protection."
xxx
315
6. x x x The principle under American doctrines was given utterance felicitiously termed by Justice Holmes "as the sovereign prerogative
by Chief Justice Hughes in these words: "The question, if the rights of judgment." Nonetheless, the presumption must be to incline the
of free speech and peaceable assembly are to be preserved, is not weight of the scales of justice on the side of such rights, enjoying as
as to the auspices under which the meeting is held but as to its they do precedence and primacy. x x x.
purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
Constitution protects." There could be danger to public peace and
safety if such a gathering were marked by turbulence. That would The provisions of B.P. No. 880 practically codify the ruling in Reyes:
deprive it of its peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing official, here
respondent Mayor, is not devoid of discretion in determining whether
or not a permit would be granted. It is not, however, unfettered Reyes v. Bagatsing B.P. No. 880
discretion. While prudence requires that there be a realistic appraisal
not of what may possibly occur but of what may probably occur, (G.R. No. L-65366, November 9, Sec. 4. Permit when required and
given all the relevant circumstances, still the assumption especially 1983, when not required.-- A written
so where the assembly is scheduled for a specific public place is permit shall be required for any
that the permit must be for the assembly being held there. The 125 SCRA 553, 569) person or persons to organize and
exercise of such a right, in the language of Justice Roberts, speaking hold a public assembly in a public
for the American Supreme Court, is not to be "abridged on the plea place. However, no permit shall be
that it may be exercised in some other place." 8. By way of a summary. The
required if the public assembly
applicants for a permit to hold an
shall be done or made in a
assembly should inform the
xxx freedom park duly established by
licensing authority of the date, the
public place where and the time law or ordinance or in private
8. By way of a summary. The applicants for a permit to hold an when it will take place. If it were a property, in which case only the
assembly should inform the licensing authority of the date, the public private place, only the consent of consent of the owner or the one
place where and the time when it will take place. If it were a private entitled to its legal possession is
the owner or the one entitled to its
place, only the consent of the owner or the one entitled to its legal required, or in the campus of a
legal possession is required. Such
possession is required. Such application should be filed well ahead government-owned and operated
application should be filed well
in time to enable the public official concerned to appraise whether educational institution which shall
ahead in time to enable the public
there may be valid objections to the grant of the permit or to its grant official concerned to appraise be subject to the rules and
but at another public place. It is an indispensable condition to such regulations of said educational
whether there may be valid
refusal or modification that the clear and present danger test be the institution. Political meetings or
objections to the grant of the
standard for the decision reached. If he is of the view that there is rallies held during any election
permit or to its grant but at another
such an imminent and grave danger of a substantive evil, the campaign period as provided for
public place. It is an indispensable
applicants must be heard on the matter. Thereafter, his decision, condition to such refusal or by law are not covered by this Act.
whether favorable or adverse, must be transmitted to them at the modification that the clear and
earliest opportunity. Thus if so minded, they can have recourse to present danger test be the Sec. 5. Application requirements.--
the proper judicial authority. Free speech and peaceable assembly, standard for the decision reached. All applications for a permit shall
along with the other intellectual freedoms, are highly ranked in our If he is of the view that there is comply with the following
scheme of constitutional values. It cannot be too strongly stressed such an imminent and grave guidelines:
that on the judiciary, -- even more so than on the other departments danger of a substantive evil, the
rests the grave and delicate responsibility of assuring respect for applicants must be heard on the (a) The applications shall
and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so
316
matter. Thereafter, his decision,
whether favorable or adverse,
must be transmitted to them at the
earliest opportunity. Thus if so
minded, they can have recourse to
the proper judicial authority.
Sec. 6. Action to be taken on the
be in writing and shall
include the names of the
leaders or organizers; the
purpose of such public
assembly; the date, time
and duration thereof, and
place or streets to be used
for the intended activity;
and the probable number
of persons participating,
the transport and the
public address systems to
be used.
(b) The application shall
incorporate the duty and
responsibility of applicant
under Section 8 hereof.
(c) The application shall be
filed with the office of the
mayor of the city or
municipality in whose
jurisdiction the intended
activity is to be held, at
least five (5) working days
before the scheduled
public assembly.
(d) Upon receipt of the
application, which must be
duly acknowledged in
writing, the office of the
city or municipal mayor
shall cause the same to
immediately be posted at a
conspicuous place in the
city or municipal building.
application.
(a) It shall be the duty of
the mayor or any official
acting in his behalf to
issue or grant a permit
unless there is clear and
convincing evidence that
the public assembly will
create a clear and present
danger to public order,
public safety, public
convenience, public
morals or public health.
(b) The mayor or any
official acting in his behalf
shall act on the application
within two (2) working
days from the date the
application was filed,
failing which, the permit
shall be deemed granted.
Should for any reason the
mayor or any official acting
in his behalf refuse to
accept the application for a
permit, said application
shall be posted by the
applicant on the premises
of the office of the mayor
and shall be deemed to
have been filed.
(c) If the mayor is of the
view that there is imminent
and grave danger of a
substantive evil warranting
the denial or modification
of the permit, he shall
immediately inform the
317
applicant who must be (24) hours from date of
heard on the matter. filing. Cases filed
hereunder shall be
(d) The action on the immediately endorsed to
permit shall be in writing the executive judge for
and served on the disposition or, in his
applica[nt] within twenty- absence, to the next in
four hours. rank.

(e) If the mayor or any (h) In all cases, any

official acting in his behalf decision may be appealed
denies the application or to the Supreme Court.
modifies the terms thereof
in his permit, the applicant (i) Telegraphic appeals to
may contest the decision be followed by formal
in an appropriate court of appeals are hereby
law. allowed.

(f) In case suit is brought

before the Metropolitan It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
Trial Court, the Municipal assemblies but a restriction that simply regulates the time, place and manner
Trial Court, the Municipal of the assemblies. This was adverted to in Osmea v. Comelec,20 where the
Circuit Trial Court, the Court referred to it as a "content-neutral" regulation of the time, place, and
Regional Trial Court, or manner of holding public assemblies.21
the Intermediate Appellate
Court, its decisions may
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
be appealed to the
to all kinds of public assemblies22 that would use public places. The
appropriate court within
reference to "lawful cause" does not make it content-based because
forty-eight (48) hours after
assemblies really have to be for lawful causes, otherwise they would not be
receipt of the same. No
"peaceable" and entitled to protection. Neither are the words "opinion,"
appeal bond and record on
"protesting" and "influencing" in the definition of public assembly content
appeal shall be required. A
based, since they can refer to any subject. The words "petitioning the
decision granting such
government for redress of grievances" come from the wording of the
permit or modifying it in
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for
terms satisfactory to the
the protection and benefit of all rallyists and is independent of the content of
applicant shall be
the expressions in the rally.
immediately executory.

Furthermore, the permit can only be denied on the ground of clear and
(g) All cases filed in court
present danger to public order, public safety, public convenience, public
under this section shall be
morals or public health. This is a recognized exception to the exercise of the
decided within twenty-four

318
right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and
full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for
the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic
society.
3. These rights and freedoms may in no case be exercised contrary
to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
(ordre public), or of public health or morals.
Contrary to petitioners claim, the law is very clear and is nowhere vague in
its provisions. "Public" does not have to be defined. Its ordinary meaning is
well-known. Websters Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally,
demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place." So it does not cover any and all
kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard the clear and present danger test stated in Sec. 6(a).
The reference to "imminent and grave danger of a substantive evil" in Sec.
6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under
Republic Act No. 716024 is thus not necessary to resolve in these
proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior permit
is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at least
one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of
any prior permit.
319
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that every
city and municipality set aside a freedom park within six months from its
effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
matter appears to have been taken for granted amidst the swell of freedom
that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of
the laws system of regulation of the peoples exercise of their right to
peacefully assemble and petition, the Court is constrained to rule that after
thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with Section 15
of the law. For without such alternative forum, to deny the permit would in
effect be to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is
in consonance with the legal definition of "maximum tolerance" under Section
3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the
military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning over the
years. Many have taken it to mean inaction on the part of law enforcers even
in the face of mayhem and serious threats to public order. More so, other felt
that they need not bother secure a permit when holding rallies thinking this
would be "tolerated." Clearly, the popular connotation of "maximum
tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided
under the same law which requires all pubic assemblies to have a permit,
which allows the dispersal of rallies without a permit, and which recognizes
certain instances when water cannons may be used. This could only mean
that "maximum tolerance" is not in conflict with a "no permit, no rally policy"
or with the dispersal and use of water cannons under certain circumstances
for indeed, the maximum amount of tolerance required is dependent on how
peaceful or unruly a mass action is. Our law enforcers should calibrate their
response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to its legal
definition but to the distorted and much abused definition that it has now
acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even
when confronted with dangerously threatening behavior. I wanted to send a
message that we would no longer be lax in enforcing the law but would
henceforth follow it to the letter. Thus I said, "we have instructed the PNP as
well as the local government units to strictly enforce a no permit, no rally
policy . . . arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed." None of these is at loggerheads with the letter and
spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even
claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated
by B.P. No. 880, CPR serves no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means something else. Accordingly,
what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
320
xxx
Sec. 9. Non-interference by law enforcement authorities. Law enforcement
agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial.1avvphil.net Towards
this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front
and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry
any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot
device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate
destruction of property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn
the participants that if the disturbance persists, the public assembly
will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith
disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code,
as amended;
(d) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for
dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
xxx
321
4. the carrying of firearms by members of the law enforcement unit; law, all public parks and plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of whatever kind shall be
5. the interfering with or intentionally disturbing the holding of a public required to hold an assembly therein. The only requirement will be written
assembly by the use of a motor vehicle, its horns and loud sound systems. notices to the police and the mayors office to allow proper coordination and
orderly activities.
Furthermore, there is need to address the situation adverted to by petitioners
where mayors do not act on applications for a permit and when the police WHEREFORE, the petitions are GRANTED in part, and respondents, more
demand a permit and the rallyists could not produce one, the rally is particularly the Secretary of the Interior and Local Governments,
immediately dispersed. In such a situation, as a necessary consequence and are DIRECTED to take all necessary steps for the immediate compliance
part of maximum tolerance, rallyists who can show the police an application with Section 15 of Batas Pambansa No. 880 through the establishment or
duly filed on a given date can, after two days from said date, rally in designation of at least one suitable freedom park or plaza in every city and
accordance with their application without the need to show a permit, the municipality of the country. After thirty (30) days from the finality of this
grant of the permit being then presumed under the law, and it will be the Decision, subject to the giving of advance notices, no prior permit shall be
burden of the authorities to show that there has been a denial of the required to exercise the right to peaceably assemble and petition in the
application, in which case the rally may be peacefully dispersed following the public parks or plazas of a city or municipality that has not yet complied with
procedure of maximum tolerance prescribed by the law. Section 15 of the law. Furthermore, Calibrated Preemptive Response
(CPR), insofar as it would purport to differ from or be in lieu of maximum
tolerance, is NULL and VOID and respondents
In sum, this Court reiterates its basic policy of upholding the fundamental
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the
rights of our people, especially freedom of expression and freedom of
requirements of maximum tolerance. The petitions are DISMISSED in all
assembly. In several policy addresses, Chief Justice Artemio V. Panganiban
other respects, and the constitutionality of Batas Pambansa No. 880
has repeatedly vowed to uphold the liberty of our people and to nurture their
is SUSTAINED.
prosperity. He said that "in cases involving liberty, the scales of justice
should weigh heavily against the government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Indeed, laws No costs.
and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected SO ORDERED.
to heightenedscrutiny."26
ADOLFO S. AZCUNA
For this reason, the so-called calibrated preemptive response policy has no Associate Justice
place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place
and manner of assemblies. Far from being insidious, "maximum tolerance" is
for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty
by giving local governments a deadline of 30 days within which to designate
specific freedom parks as provided under B.P. No. 880. If, after that period,
no such parks are so identified in accordance with Section 15 of the
322

U.S. Supreme Court
Reynolds v. United States, 98 U.S. 145 (1878)
Reynolds v. United States
98 U.S. 145
ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH
Syllabus
1. Sect. 808 of the Revised Statutes, providing for impaneling grand juries
and prescribing the number of which they shall consist, applies only to the
Circuit and the District Courts of the United States. An indictment for bigamy
under sect. 5352 may, therefore, be found in a district court of Utah, by a
grand jury of fifteen persons, impaneled pursuant to the laws of that Territory.
2. A petit juror in a criminal case testified on his voire dire that he believed
that he had formed an opinion, although not upon evidence produced in
court, as to the guilt or innocence of the prisoner, but that he had not
expressed it, and did not think that it would influence his verdict. He was
thereupon challenged by the prisoner for cause. The court overruled the
challenge. Held, that its action was not erroneous.
3. Where it is apparent from the record that the challenge of a petit juror, if it
had been made by the United States for favor, should have been sustained,
the judgment against the prisoner will not be reversed simply because the
challenge was in form for cause.
4. Although the Constitution declares that, in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him,
yet, if they are absent by his procurement, or when enough has been proved
to cast upon him the burden of showing, and he, having full opportunity
therefor, fails to show that he has not been instrumental in concealing them
or in keeping them away, he is in no condition to assert that his constitutional
right has been violated by allowing competent evidence of the testimony
which they gave on a previous trial between the United States and him upon
the same issue. Such evidence is admissible.
5. Said sect. 5352 is in all respects constitutional and valid.
6. The scope and meaning of the first article of the amendments to the
Constitution discussed.
7. A party's religious belief cannot be accepted as a justification for his
committing an overt act, made criminal by the law of the land. Where,
therefore, the prisoner, knowing that his wife was living, married again in
Utah, and, when indicted and tried therefor, set up that the church whereto
he belonged enjoined upon its male members to practise polygamy, and that
he, with the sanction of the recognized authorities of the church, and by a
ceremony performed pursuant to its doctrines, did marry again -- held, that
the court properly refused to charge the jury that he was entitled to an
acquittal although they should find that he had contracted such second
marriage pursuant to, and in conformity with, what he believed at the time to
be a religious duty.
8. The court told the jury to
"consider what are to be the consequences to the innocent victims of this
delusion [the doctrine of polygamy]. As this contest goes on, they multiply,
and there are pure-minded women and there are innocent children --
innocent in a sense even beyond the degree of the innocence of childhood
itself. These are to be the sufferers; and as jurors fail to do their duty, and as
these cases come up in the Territory of Utah, just so do these victims
multiply and spread themselves over the land."
Held, that the charge was not improper. chanroblesvirtualawlibrary
Page 98 U. S. 146
This is an indictment found in the District Court for the third judicial district of
the Territory of Utah, charging George Reynolds with bigamy, in violation of
323
sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as A. "No; I don't think it does; I only glanced over it, as everybody else does."
follows:
Q. "Do you think you could try the case wholly uninfluenced by anything?"
"Every person having a husband or wife living, who marries another, whether
married or single, in a Territory, or other place over which the United States A. "Yes."
have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a
fine of not more than $500, and by imprisonment for a term of not more than Charles Read, called as a juror, was asked by the district attorney, "Have
five years." you formed or expressed any opinion as to the guilt or innocence of this
charge?"
The prisoner pleaded in abatement that the indictment was not found by a
legal grand jury, because fifteen persons, and no more, were impaneled and
A. "I believe I have formed an opinion."
sworn to serve as a grand jury at the term of the court during which the
indictment was found, whereas sect. 808 of the Revised Statutes of the
United States enacts that every grand jury impaneled before any District or By the court: "Have you formed and expressed an opinion?"
Circuit Court shall consist of not less than sixteen persons.
A. "No, sir; I believe not."
An act of the legislature of Utah of Feb. 18, 1870, provides that the court
shall impanel fifteen men to serve as a grand jury. Compiled Laws of Utah, Q. "You say you have formed an opinion?"
ed. of 1876, p. 357, sect. 4.
A. "I have."
The court overruled the plea, on the ground that the territorial enactment
governed. Q. "Is that based upon evidence?"

The prisoner then pleaded not guilty. Several jurors were examined on A. "Nothing produced in court."
their voire dire by the district attorney. Among them was Eli Ransohoff, who,
in answer to the question, "Have you formed or expressed an opinion as to Q. "Would that opinion influence your verdict?"
the guilt or innocence of the prisoner at the bar?" said, "I have expressed an
opinion by reading the papers with the reports of the trial."
A. "I don't think it would."
Q. "Would that opinion influence your verdict in hearing the evidence?"
By defendant: "I understood you to say that you had formed an opinion, but
not expressed it."
A. "I don't think it would."
A. "I don't know that I have expressed an opinion; I have formed one."
By the defendant: "You stated that you had formed some opinion by reading
the reports of the previous trial?"
Q. "Do you now entertain that opinion?"
"Yes."
A. "I do."
Q. "Is that an impression which still remains upon your
The defendant challenged each of these jurors for cause. The court
mind?" chanroblesvirtualawlibrary
overruled the challenge, and permitted them to be sworn. The defendant
excepted.
Page 98 U. S. 147
324
The court also, when Homer Brown was called as a juror, allowed the district A. "He said she was not at home."
attorney to ask him the following questions: Q. "Are you living in polygamy?"
A. "I would rather not answer that." The court instructed the witness that he Q. "Did he say anything further."
must answer the question, unless it would criminate him. By the district
attorney: "You understand the conditions upon which you refuse?" A. "Yes,
A. "I asked him then where I could find her. I said, "Where is she? And he
sir." Q. "Have you such an opinion that you could not find a verdict for the
said, "You will have to find out."
commission of that crime?" A. "I have no opinion on it in this particular case. I
think, under the evidence and the law, I could render a verdict accordingly."
Whereupon the United States challenged the said Brown for favor, which Q. "Did he know you to be a deputy marshal?"
challenge was sustained by the court, and the defendant
excepted. chanroblesvirtualawlibrary A. "Yes, sir."

Page 98 U. S. 148 Q. "Did you tell him what your business was as deputy marshal?"

John W. Snell, also a juror, was asked by the district attorney on voire dire:
Q. "Are you living in polygamy?" A. "I decline to answer that question." Q.
"On what ground?" A. "It might criminate myself; but I am only a fornicator."
Whereupon Snell was challenged by the United States for cause, which
challenge was sustained, and the defendant excepted.
A. "I don't remember now; I don't think I did."
Q. "What else did he say?" chanroblesvirtualawlibrary
Page 98 U. S. 149

After the trial commenced, the district attorney, after proving that the A. "He said, just as I was leaving, as I understood it, that she did not appear
defendant had been married on a certain day to Mary Ann Tuddenham, in this case."
offered to prove his subsequent marriage to one Amelia Jane Schofield
during the lifetime of said Mary. He thereupon called one Pratt, the deputy
The court then ordered a subpoena to issue for Amelia Jane Schofield,
marshal, and showed him a subpoena for witnesses in this case, and among
returnable instanter.
other names thereon was the name of Mary Jane Schobold, but no such
name as Amelia Jane Schofield. He testified that this subpoena was placed
in his hands to be served. Upon the following day, at ten o'clock A.M., the said subpoena for the said
witness having issued about nine o'clock P.M. of the day before, the said
Arthur Pratt was again called upon, and testified as follows:
Q. "Did you see Mr. Reynolds when you went to see Miss Schofield?"

Q. (By district attorney.) "State whether you are the officer that had subpoena
A. "Yes, sir."
in your hands." (Exhibiting subpoena last issued, as above set forth.)
Q. "Who did you inquire for?"
A. "Yes, sir."
A. "I inquired for Mary Jane Schofield, to the best of my knowledge. I will
Q. "State to the court what efforts you have made to serve it."
state this, that I inserted the name in the subpoena, and intended it for the
name of the woman examined in this case at the former term of the court,
and inquired for Mary Jane Schofield, or Mrs. Reynolds, I do not recollect A. "I went to the residence of Mr. Reynolds, and a lady was there, his first
certainly which." wife, and she told me that this woman was not there; that that was the only
home that she had, but that she hadn't been there for two or three weeks. I
went again this morning, and she was not there."
Q. "State the reply."

325
Q. "Do you know anything about her home -- where she resides?"
A. "I know where I found her before."
Q. "Where?"
A. "At the same place."
Q. "You are the deputy marshal that executed the process of the court?"
A. "Yes, sir."
Q. "Repeat what Mr. Reynolds said to you when you went with the former
subpoena introduced last evening."
A. "I will state that I put her name on the subpoena myself. I know the party,
and am well acquainted with her, and I intended it for the same party that I
subpoenaed before in this case. He said that she was not in, and that I could
get a search warrant if I wanted to search the house. I said, "Will you tell me
where she is?" He said, "No; that will be for you to find out." He said, just as I
was leaving the house -- I don't remember exactly what it was, but my best
recollection is that he said she would not appear in this
case." chanroblesvirtualawlibrary
Page 98 U. S. 150
Q. "Can't you state that more particularly?"
A. "I can't give you the exact words, but I can say that was the purport of
them."
Q. "Give the words as nearly as you can."
A. "Just as I said, I think those were his words."
The district attorney then offered to prove what Amelia Jane Schofield had
testified to on a trial of another indictment charging the prisoner with bigamy
in marrying her, to which the prisoner objected on the ground that a sufficient
foundation had not been laid for the introduction of the evidence.
A. S. Patterson, having been sworn, read, and other witnesses stated, said
Amelia's testimony on the former trial tending to show her marriage with the
defendant. The defendant excepted to the admission of the evidence.
The court, in summing up to the jury, declined to instruct them, as requested
by the prisoner, that if they found that he had married in pursuance of and
conformity with what he believed at the time to be a religious duty, their
verdict should be "not guilty," but instructed them that if he, under the
influence of a religious belief that it was right, had
"deliberately married a second time, having a first wife living, the want of
consciousness of evil intent -- the want of understanding on his part that he
was committing crime -- did not excuse him, but the law inexorably, in such
cases, implies criminal intent."
The court also said:
"I think it not improper, in the discharge of your duties in this case, that you
should consider what are to be the consequences to the innocent victims of
this delusion. As this contest goes on, they multiply, and there are pure-
minded women and there are innocent children -- innocent in a sense even
beyond the degree of the innocence of childhood itself. These are to be the
sufferers; and as jurors fail to do their duty, and as these cases come up in
the Territory, just so do these victims multiply and spread themselves over
the land."
To the refusal of the court to charge as requested, and to the charge as
given, the prisoner excepted. The jury found him guilty, as charged in the
indictment, and the judgment that he be imprisoned at hard labor for a term
of two years, and pay chanroblesvirtualawlibrary
Page 98 U. S. 151
a fine of $500, rendered by the District Court, having been affirmed by the
Supreme Court of the Territory, he sued out this writ of error.
The assignments of error are set out in the opinion of the
court. chanroblesvirtualawlibrary
Page 98 U. S. 153
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
326
The assignments of error, when grouped, present the following questions:
1. Was the indictment bad because found by a grand jury of less than sixteen
persons?
2. Were the challenges of certain petit jurors by the accused improperly
overruled?
3. Were the challenges of certain other jurors by the government improperly
sustained?
4. Was the testimony of Amelia Jane Schofield, given at a former trial for the
same offence, but under another indictment, improperly admitted in
evidence?
5. Should the accused have been acquitted if he married the second time,
because he believed it to be his religious duty?
6. Did the court err in that part of the charge which directed the attention of
the jury to the consequences of polygamy?
These questions will be considered in their order.
1. As to the grand jury.
The indictment was found in the District Court of the third judicial district of
the Territory. The act of Congress "in relation to courts and judicial officers in
the Territory of Utah," approved June 23, 1874 (18 Stat. 253), while
regulating the qualifications of jurors in the Territory and prescribing the
mode of preparing the lists from which grand and petit jurors are to be drawn,
as well as the manner of drawing, makes no provision in respect to the
number of persons of which a grand jury shall consist. Sect. 808, Revised
Statutes, requires that a grand jury impaneled before any district or circuit
court of the United States shall consist of not less than sixteen nor more than
twenty-three persons, while a statute of the Territory limits the number in the
district courts of the Territory chanroblesvirtualawlibrary
Page 98 U. S. 154
to fifteen. Comp.Laws Utah, 1876, 357. The grand jury which found this
indictment consisted of only fifteen persons, and the question to be
determined is whether the section of the Revised Statutes referred to or the
statute of the Territory governs the case.
By sect. 1910 of the Revised Statutes, the district courts of the Territory have
the same jurisdiction in all cases arising under the Constitution and laws of
the United States as is vested in the circuit and district courts of the United
States; but this does not make them circuit and district courts of the United
States. We have often so decided. American Insurance Co. v. Canter, 1 Pet.
511; Benner et al. v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall.
434. They are courts of the Territories, invested for some purposes with the
powers of the courts of the United States. Writs of error and appeals lie from
them to the Supreme Court of the Territory, and from that court as a territorial
court to this in some cases.
Sect. 808 was not designed to regulate the impaneling of grand juries in all
courts where offenders against the laws of the United States could be tried,
but only in the circuit and district courts. This leaves the territorial courts free
to act in obedience to the requirements of the territorial laws in force for the
time being. Clinton v. Englebrecht, supra; 85 U. S.Toombs, 18 Wall. 648. As
Congress may at any time assume control of the matter, there is but little
danger to be anticipated from improvident territorial legislation in this
particular. We are therefore of the opinion that the court below no more erred
in sustaining this indictment than it did at a former term, at the instance of
this same plaintiff in error, in adjudging another bad which was found against
him for the same offence by a grand jury composed of twenty-three persons.
1 Utah 226.
2. As to the challenges by the accused.
By the Constitution of the United States (Amend. VI.), the accused was
entitled to a trial by an impartial jury. A juror to be impartial must, to use the
language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt. 155b.
Lord Coke also says that a principal cause of challenge is
"so called because, if it be found true, it standeth sufficient of itself, without
Page 98 U. S. 155
leaving anything to the conscience or discretion of the triers"
327
(id., 156b); or, as stated in Bacon's Abridgment, "it is grounded on such a
manifest presumption of partiality that, if found to be true, it unquestionably
sets aside the . . . juror." Bac.Abr., tit. Juries, E.1.
"If the truth of the matter alleged is admitted, the law pronounces the
judgment; but if denied, it must be made out by proof to the satisfaction of the
court or the triers."
Id., E.12. To make out the existence of the fact, the juror who is challenged
may be examined on his voire dire, and asked any questions that do not tend
to his infamy or disgrace.
All of the challenges by the accused were for principal cause. It is good
ground for such a challenge that a juror has formed an opinion as to the
issue to be tried. The courts are not agreed as to the knowledge upon which
the opinion must rest in order to render the juror incompetent, or whether the
opinion must be accompanied by malice or ill will; but all unite in holding that
it must be founded on some evidence, and be more than a mere impression.
Some say it must be positive (Gabbet, Criminal Law, 391); others, that it
must be decided and substantial (Armistead's Case, 11 Leigh (Va.)
659; Wormley's Case, 10 Gratt. (Va.) 658; Neely v. The People, 13 Ill. 685);
others, fixed (State v. Benton, 2 Dev. & B. (N.C.) L. 196); and still others
deliberate and settled (Staup v. Commonwealth, 74 Pa.St. 458; Curley v.
Commonwealth,84 id. 151). All concede, however, that, if hypothetical only,
the partiality is not so manifest as to necessarily set the juror aside. Mr. Chief
Justice Marshall, in Burr's Trial (1 Burr's Trial 416), states the rule to be that
"light impressions, which may fairly be presumed to yield to the testimony
that may be offered, which may leave the mind open to a fair consideration of
the testimony, constitute no sufficient objection to a juror, but that those
strong and deep impressions which close the mind against the testimony that
may be offered in opposition to them, which will combat that testimony and
resist its force, do constitute a sufficient objection to him."
The theory of the law is that a juror who has formed an opinion cannot be
impartial. Every opinion which he may entertain need not necessarily have
that effect. In these days of newspaper enterprise and universal education,
every case of public interest is almost, as a matter of
necessity, chanroblesvirtualawlibrary
Page 98 U. S. 156
brought to the attention of all the intelligent people in the vicinity, and
scarcely anyone can be found among those best fitted for jurors who has not
read or heard of it, and who has not some impression or some opinion in
respect to its merits. It is clear, therefore, that upon the trial of the issue of
fact raised by a challenge for such cause, the court will practically be called
upon to determine whether the nature and strength of the opinion formed are
such as in law necessarily to raise the presumption of partiality. The question
thus presented is one of mixed law and fact, and to be tried, as far as the
facts are concerned, like any other issue of that character, upon the
evidence. The finding of the trial court upon that issue ought not to be set
aside by a reviewing court, unless the error is manifest. No less stringent
rules should be applied by the reviewing court in such a case than those
which govern in the consideration of motions for new trial because the verdict
is against the evidence. It must be made clearly to appear that upon the
evidence the court ought to have found the juror had formed such an opinion
that he could not, in law, be deemed impartial. The case must be one in
which it is manifest the law left nothing to the "conscience or discretion" of
the court.
The challenge in this case most relied upon in the argument here is that of
Charles Read. He was sworn on his voire dire,and his evidence,{1} taken as
a whole, shows that he "believed" he had formed an opinion which he had
never expressed, but which he did not think would influence his verdict on
hearing the testimony. We cannot think this is such a manifestation of
partiality as to leave nothing to the "conscience or discretion" of the triers.
The reading of the evidence leaves the impression that the juror had some
hypothetical opinion about the case, but it falls far short of raising a manifest
presumption of partiality. In considering such questions in a reviewing court,
we ought not to be unmindful of the fact we have so often observed in our
experience, that jurors not unfrequently seek to excuse themselves on the
ground of having formed an opinion, when, on examination, it turns out that
no real disqualification exists. In such cases, the manner of
the chanroblesvirtualawlibrary
Page 98 U. S. 157
juror while testifying is oftentimes more indicative of the real character of his
opinion than his words. That is seen below, but cannot always be spread
upon the record. Care should, therefore, be taken in the reviewing court not
to reverse the ruling below upon such a question of fact, except in a clear
case. The affirmative of the issue is upon the challenger. Unless he shows
the actual existence of such an opinion in the mind of the juror as will raise
the presumption of partiality, the juror need not necessarily be set aside, and
328
it will not be error in the court to refuse to do so. Such a case, in our opinion,
was not made out upon the challenge of Read. The fact that he had not
expressed his opinion is important only as tending to show that he had not
formed one which disqualified him. If a positive and decided opinion had
been formed, he would have been incompetent even though it had not been
expressed. Under these circumstances, it is unnecessary to consider the
case of Ransohoff, for it was confessedly not as strong as that of Read.
3. As to the challenges by the government.
The questions raised upon these assignments of error are not whether the
district attorney should have been permitted to interrogate the jurors while
under examination upon their voire dire as to the fact of their living in
polygamy. No objection was made below to the questions, but only to the
ruling of the court upon the challenges after the testimony taken in answer to
the questions was in. From the testimony, it is apparent that all the jurors to
whom the challenges related were or had been living in polygamy. It needs
no argument to show that such a jury could not have gone into the box
entirely free from bias and prejudice, and that, if the challenge was not good
for principal cause, it was for favor. A judgment will not be reversed simply
because a challenge good for favor was sustained in form for cause. As the
jurors were incompetent and properly excluded, it matters not here upon
what form of challenge they were set aside. In one case, the challenge was
for favor. In the courts of the United States, all challenges are tried by the
court without the aid of triers (Rev.Stat. sect. 819), and we are not advised
that the practice in the territorial courts of Utah is
different. chanroblesvirtualawlibrary
Page 98 U. S. 158
4. As to the admission of evidence to prove what was sworn to by Amelia
Jane Schofield on a former trial of the accused for the same offence but
under a different indictment.
The Constitution gives the accused the right to a trial at which he should be
confronted with the witnesses against him; but if a witness is absent by his
own wrongful procurement, he cannot complain if competent evidence is
admitted to supply the place of that which he has kept away. The
Constitution does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the privilege of being
confronted with the witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If, therefore, when absent
by his procurement, their evidence is supplied in some lawful way, he is in no
condition to assert that his constitutional rights have been violated.
In Lord Morley's Case (6 State Trials, 770), as long ago as the year 1666, it
was resolved in the House of Lords
"that, in case oath should be made that any witness, who had been
examined by the coroner and was then absent, was detained by the means
or procurement of the prisoner, and the opinion of the judges asked whether
such examination might be read, we should answer, that, if their lordships
were satisfied by the evidence they had heard that the witness was detained
by means or procurement of the prisoner, then the examination might be
read; but whether he was detained by means or procurement of the prisoner
was matter of fact, of which we were not the judges, but their lordships."
This resolution was followed in Harrison's Case (12 id. 851), and seems to
have been recognized as the law in England ever since. In Regina v.
Scaife (17 Ad. & El.N.S. 242), all the judges agreed that, if the prisoner had
resorted to a contrivance to keep a witness out of the way, the deposition of
the witness, taken before a magistrate and in the presence of the prisoner,
might be read. Other cases to the same effect are to be found, and in this
country the ruling has been in the same way. Drayton v. Wells, 1 Nott & M.
(S.C.) 409; Williams v. The State, 19 Ga. 403. So that now, in the leading
textbooks, it is laid down that, if a witness is kept away by the adverse
party, chanroblesvirtualawlibrary
Page 98 U. S. 159
his testimony, taken on a former trial between the same parties upon the
same issues, may be given in evidence. 1 Greenl.Evid., sect. 163; 1 Taylor,
Evid., sect. 446. Mr. Wharton (1 Whart.Evid., sect. 178) seemingly limits the
rule somewhat, and confines it to cases where the witness has been
corruptly kept away by the party against whom he is to be called, but in
reality his statement is the same as that of the others; for in all it is implied
that the witness must have been wrongfully kept away. The rule has its
foundation in the maxim that no one shall be permitted to take advantage of
his own wrong, and, consequently, if there has not been, in legal
contemplation, a wrong committed, the way has not been opened for the
introduction of the testimony. We are content with this long-established
usage, which, so far as we have been able to discover, has rarely been
departed from. It is the outgrowth of a maxim based on the principles of
common honesty, and, if properly administered, can harm no one.
329
Such being the rule, the question becomes practically one of fact, to be
settled as a preliminary to the admission of secondary evidence. In this
respect, it is like the preliminary question of the proof of loss of a written
instrument, before secondary evidence of the contents of the instrument can
be admitted. In Lord Morley's Case (supra), it would seem to have been
considered a question for the trial court alone, and not subject to review on
error or appeal; but without deeming it necessary in this case to go so far as
that, we have no hesitation in saying that the finding of the court below is, at
least, to have the effect of a verdict of a jury upon a question of fact, and
should not be disturbed unless the error is manifest.
The testimony shows that the absent witness was the alleged second wife of
the accused; that she had testified on a former trial for the same offence
under another indictment; that she had no home, except with the accused;
that, at some time before the trial, a subpoena had been issued for her, but,
by mistake, she was named as Mary Jane Schobold; that an officer who
knew the witness personally went to the house of the accused to serve the
subpoena, and on his arrival inquired for her, either by the name of Mary
Jane Schofield or Mrs. Reynolds; that he was told by the accused she was
not at home; chanroblesvirtualawlibrary
Page 98 U. S. 160
that he then said, "Will you tell me where she is?" that the reply was "No; that
will be for you to find out;" that the officer then remarked she was making him
considerable trouble, and that she would get into trouble herself; and the
accused replied, "Oh, no; she won't, till the subpoena is served upon her,"
and then, after some further conversation, that "She does not appear in this
case."
It being discovered after the trial commenced that a wrong name had been
inserted in the subpoena, a new subpoena was issued with the right name, at
nine o'clock in the evening. With this, the officer went again to the house, and
there found a person known as the first wife of the accused. He was told by
her that the witness was not there, and had not been for three weeks. He
went again the next morning, and, not finding her or being able to ascertain
where she was by inquiring in the neighborhood, made return of that fact to
the court. At ten o'clock that morning, the case was again called, and, the
foregoing facts being made to appear, the court ruled that evidence of what
the witness had sworn to at the former trial was admissible.
In this we see no error. The accused was himself personally present in court
when the showing was made, and had full opportunity to account for the
absence of the witness, if he would, or to deny under oath that he had kept
her away. Clearly, enough had been proven to cast the burden upon him of
showing that he had not been instrumental in concealing or keeping the
witness away. Having the means of making the necessary explanation, and
having every inducement to do so if he would, the presumption is that he
considered it better to rely upon the weakness of the case made against him
than to attempt to develop the strength of his own. Upon the testimony as it
stood, it is clear to our minds that the judgment should not be reversed
because secondary evidence was admitted.
This brings us to the consideration of what the former testimony was, and the
evidence by which it was proven to the jury.
It was testimony given on a former trial of the same person for the same
offence, but under another indictment. It was chanroblesvirtualawlibrary
Page 98 U. S. 161
substantially testimony given at another time in the same cause. The
accused was present at the time the testimony was given, and had full
opportunity of cross-examination. This brings the case clearly within the well
established rules. The cases are fully cited in 1 Whart.Evid., sect. 177.
The objection to the reading by Mr. Patterson of what was sworn to on the
former trial does not seem to have been because the paper from which he
read was not a true record of the evidence as given, but because the
foundation for admitting the secondary evidence had not been laid. This
objection, as has already been seen, was not well taken.
5. As to the defence of religious belief or duty.
On the trial, the plaintiff in error, the accused, proved that, at the time of his
alleged second marriage, he was, and for many years before had been, a
member of the Church of Jesus Christ of Latter-Day Saints, commonly called
the Mormon Church, and a believer in its doctrines; that it was an accepted
doctrine of that church
"that it was the duty of male members of said church, circumstances
permitting, to practise polygamy; . . . that this duty was enjoined by different
books which the members of said church believed to be of divine origin, and,
among others, the Holy Bible, and also that the members of the church
believed that the practice of polygamy was directly enjoined upon the male
330
members thereof by the Almighty God, in a revelation to Joseph Smith, the
founder and prophet of said church; that the failing or refusing to practise
polygamy by such male members of said church, when circumstances would
admit, would be punished, and that the penalty for such failure and refusal
would be damnation in the life to come."
He also proved
"that he had received permission from the recognized authorities in said
church to enter into polygamous marriage; . . . that Daniel H. Wells, one
having authority in said church to perform the marriage ceremony, married
the said defendant on or about the time the crime is alleged to have been
committed, to some woman by the name of Schofield, and that such
marriage ceremony was performed under and pursuant to the doctrines of
said church."
Upon this proof, he asked the court to instruct the jury that, if they found from
the evidence that he
"was married as
Page 98 U. S. 162
charged -- if he was married -- in pursuance of and in conformity with what
he believed at the time to be a religious duty, that the verdict must be 'not
guilty.'"
This request was refused, and the court did charge
"that there must have been a criminal intent, but that if the defendant, under
the influence of a religious belief that it was right -- under an inspiration, if
you please, that it was right -- deliberately married a second time, having a
first wife living, the want of consciousness of evil intent -- the want of
understanding on his part that he was committing a crime -- did not excuse
him, but the law inexorably in such case implies the criminal intent."
Upon this charge and refusal to charge, the question is raised whether
religious belief can be accepted as a justification of an overt act made
criminal by the law of the land. The inquiry is not as to the power of Congress
to prescribe criminal laws for the Territories, but as to the guilt of one who
knowingly violates a law which has been properly enacted if he entertains a
religious belief that the law is wrong.
Congress cannot pass a law for the government of the Territories which shall
prohibit the free exercise of religion. The first amendment to the Constitution
expressly forbids such legislation. Religious freedom is guaranteed
everywhere throughout the United States, so far as congressional
interference is concerned. The question to be determined is, whether the law
now under consideration comes within this prohibition.
The word "religion" is not defined in the Constitution. We must go elsewhere,
therefore, to ascertain its meaning, and nowhere more appropriately, we
think, than to the history of the times in the midst of which the provision was
adopted. The precise point of the inquiry is what is the religious freedom
which has been guaranteed.
Before the adoption of the Constitution, attempts were made in some of the
colonies and States to legislate not only in respect to the establishment of
religion, but in respect to its doctrines and precepts as well. The people were
taxed, against their will, for the support of religion, and sometimes for the
support of particular sects to whose tenets they could not and did not
subscribe. Punishments were prescribed for a failure to attend upon public
worship, and sometimes for entertaining chanroblesvirtualawlibrary
Page 98 U. S. 163
heretical opinions. The controversy upon this general subject was animated
in many of the States, but seemed at last to culminate in Virginia. In 1784,
the House of Delegates of that State, having under consideration "a bill
establishing provision for teachers of the Christian religion," postponed it until
the next session, and directed that the bill should be published and
distributed, and that the people be requested "to signify their opinion
respecting the adoption of such a bill at the next session of assembly."
This brought out a determined opposition. Amongst others, Mr. Madison
prepared a "Memorial and Remonstrance," which was widely circulated and
signed, and in which he demonstrated "that religion, or the duty we owe the
Creator," was not within the cognizance of civil government. Semple's
Virginia Baptists, Appendix. At the next session, the proposed bill was not
only defeated, but another, "for establishing religious freedom," drafted by
Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In
the preamble of this act (12 Hening's Stat. 84) religious freedom is defined,
and, after a recital
"that to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
331
supposition of their ill tendency is a dangerous fallacy which at once destroys
all religious liberty,"
it is declared
"that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against peace
and good order."
In these two sentences is found the true distinction between what properly
belongs to the church and what to the State.
In a little more than a year after the passage of this statute, the convention
met which prepared the Constitution of the United States. Of this convention,
Mr. Jefferson was not a member, he being then absent as minister to France.
As soon as he saw the draft of the Constitution proposed for adoption, he, in
a letter to a friend, expressed his disappointment at the absence of an
express declaration insuring the freedom of religion (2 Jeff.Works 355), but
was willing to accept it as it was, trusting that the good sense and honest
intentions of the people would bring about the necessary
alterations. chanroblesvirtualawlibrary
Page 98 U. S. 164
1 Jeff. Works 79. Five of the States, while adopting the Constitution,
proposed amendments. Three -- New Hampshire, New York, and Virginia --
included in one form or another a declaration of religious freedom in the
changes they desired to have made, as did also North Carolina, where the
convention at first declined to ratify the Constitution until the proposed
amendments were acted upon. Accordingly, at the first session of the first
Congress, the amendment now under consideration was proposed with
others by Mr. Madison. It met the views of the advocates of religious
freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address
to him by a committee of the Danbury Baptist Association (8 id.113), took
occasion to say:
"Believing with you that religion is a matter which lies solely between man
and his God; that he owes account to none other for his faith or his worship;
that the legislative powers of the government reach actions only, and not
opinions -- I contemplate with sovereign reverence that act of the whole
American people which declared that their legislature should 'make no law
respecting an establishment of religion or prohibiting the free exercise
thereof,' thus building a wall of separation between church and State.
Adhering to this expression of the supreme will of the nation in behalf of the
rights of conscience, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore man to all his natural rights,
convinced he has no natural right in opposition to his social duties."
Coming as this does from an acknowledged leader of the advocates of the
measure, it may be accepted almost as an authoritative declaration of the
scope and effect of the amendment thus secured. Congress was deprived of
all legislative power over mere opinion, but was left free to reach actions
which were in violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western nations
of Europe, and, until the establishment of the Mormon Church, was almost
exclusively a feature of the life of Asiatic and of African people. At common
law, the second marriage was always void (2 Kent, Com. 79), and from the
earliest history of England, polygamy has been treated as an offence against
society. After the establishment of the
ecclesiastical chanroblesvirtualawlibrary
Page 98 U. S. 165
courts, and until the time of James I, it was punished through the
instrumentality of those tribunals not merely because ecclesiastical rights had
been violated, but because upon the separation of the ecclesiastical courts
from the civil the ecclesiastical were supposed to be the most appropriate for
the trial of matrimonial causes and offences against the rights of marriage,
just as they were for testamentary causes and the settlement of the estates
of deceased persons.
By the statute of 1 James I (c. 11), the offence, if committed in England or
Wales, was made punishable in the civil courts, and the penalty was death.
As this statute was limited in its operation to England and Wales, it was at a
very early period reenacted, generally with some modifications, in all the
colonies. In connection with the case we are now considering, it is a
significant fact that, on the 8th of December, 1788, after the passage of the
act establishing religious freedom, and after the convention of Virginia had
recommended as an amendment to the Constitution of the United States the
declaration in a bill of rights that "all men have an equal, natural, and
unalienable right to the free exercise of religion, according to the dictates of
conscience," the legislature of that State substantially enacted the statute of
James I., death penalty included, because, as recited in the preamble, "it
hath been doubted whether bigamy or poligamy be punishable by the laws of
this Commonwealth." 12 Hening's Stat. 691. From that day to this, we think it
332
may safely be said there never has been a time in any State of the Union
when polygamy has not been an offence against society, cognizable by the
civil courts and punishable with more or less severity. In the face of all this
evidence, it is impossible to believe that the constitutional guaranty of
religious freedom was intended to prohibit legislation in respect to this most
important feature of social life. Marriage, while from its very nature a sacred
obligation, is nevertheless, in most civilized nations, a civil contract, and
usually regulated by law. Upon it society may be said to be built, and out of
its fruits spring social relations and social obligations and duties with which
government is necessarily required to deal. In fact, according as
monogamous or polygamous marriages are allowed, do we find the
principles on which the government of chanroblesvirtualawlibrary
Page 98 U. S. 166
the people, to a greater or less extent, rests. Professor, Lieber says,
polygamy leads to the patriarchal principle, and which, when applied to large
communities, fetters the people in stationary despotism, while that principle
cannot long exist in connection with monogamy. Chancellor Kent observes
that this remark is equally striking and profound. 2 Kent, Com. 81, note (e).
An exceptional colony of polygamists under an exceptional leadership may
sometimes exist for a time without appearing to disturb the social condition of
the people who surround it; but there cannot be a doubt that, unless
restricted by some form of constitution, it is within the legitimate scope of the
power of every civil government to determine whether polygamy or
monogamy shall be the law of social life under its dominion.
In our opinion, the statute immediately under consideration is within the
legislative power of Congress. It is constitutional and valid as prescribing a
rule of action for all those residing in the Territories, and in places over which
the United States have exclusive control. This being so, the only question
which remains is whether those who make polygamy a part of their religion
are excepted from the operation of the statute. If they are, then those who do
not make polygamy a part of their religious belief may be found guilty and
punished, while those who do, must be acquitted and go free. This would be
introducing a new element into criminal law. Laws are made for the
government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices. Suppose one believed that
human sacrifices were a necessary part of religious worship; would it be
seriously contended that the civil government under which he lived could not
interfere to prevent a sacrifice? Or if a wife religiously believed it was her
duty to burn herself upon the funeral pile of her dead husband; would it be
beyond the power of the civil government to prevent her carrying her belief
into practice?
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be allowed.
Can a man excuse his practices to the contrary because of his religious
belief? chanroblesvirtualawlibrary
Page 98 U. S. 167
To permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and, in effect, to permit every citizen to
become a law unto himself. Government could exist only in name under such
circumstances.
A criminal intent is generally an element of crime, but every man is presumed
to intend the necessary and legitimate consequences of what he knowingly
does. Here, the accused knew he had been once married, and that his first
wife was living. He also knew that his second marriage was forbidden by law.
When, therefore, he married the second time, he is presumed to have
intended to break the law. And the breaking of the law is the crime. Every act
necessary to constitute the crime was knowingly done, and the crime was
therefore knowingly committed. Ignorance of a fact may sometimes be taken
as evidence of a want of criminal intent, but not ignorance of the law. The
only defence of the accused in this case is his belief that the law ought not to
have been enacted. It matters not that his belief was a part of his professed
religion; it was still belief, and belief only.
In Regina v. Wagstaff (10 Cox Crim.Cases, 531), the parents of a sick child,
who omitted to call in medical attendance because of their religious belief
that what they did for its cure would be effective, were held not to be guilty of
manslaughter, while it was said the contrary would have been the result if the
child had actually been starved to death by the parents under the notion that
it was their religious duty to abstain from giving it food. But when the offence
consists of a positive act which is knowingly done, it would be dangerous to
hold that the offender might escape punishment because he religiously
believed the law which he had broken ought never to have been made. No
case, we believe, can be found that has gone so far.
6. As to that part of the charge which directed the attention of the jury to the
consequences of polygamy.
The passage complained of is as follows:
333
"I think it not improper, in the discharge of your duties in this case, that you
should consider what are to be the consequences to the innocent victims of
this delusion. As this contest goes on, they multiply,
Page 98 U. S. 168
and there are pure-minded women and there are innocent children --
innocent in a sense even beyond the degree of the innocence of childhood
itself. These are to be the sufferers; and as jurors fail to do their duty, and as
these cases come up in the Territory of Utah, just so do these victims
multiply and spread themselves over the land."
While every appeal by the court to the passions or the prejudices of a jury
should be promptly rebuked, and while it is the imperative duty of a reviewing
court to take care that wrong is not done in this way, we see no just cause for
complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make
bigamy a crime in the Territories. This was done because of the evil
consequences that were supposed to flow from plural marriages. All the court
did was to call the attention of the jury to the peculiar character of the crime
for which the accused was on trial, and to remind them of the duty they had
to perform. There was no appeal to the passions, no instigation of prejudice.
Upon the showing made by the accused himself, he was guilty of a violation
of the law under which he had been indicted, and the effort of the court
seems to have been not to withdraw the minds of the jury from the issue to
be tried, but to bring them to it; not to make them partial, but to keep them
impartial.
Upon a careful consideration of the whole case, we are satisfied that no error
was committed by the court below.
Judgment affirmed.
G.R. No. L-9637 April 30, 1957
AMERICAN BIBLE SOCIETY, plaintiff-appellant,
vs.
CITY OF MANILA, defendant-appellee.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Naawa for appellee.
FELIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary
corporation duly registered and doing business in the Philippines through its
Philippine agency established in Manila in November, 1898, with its principal
office at 636 Isaac Peral in said City. The defendant appellee is a municipal
corporation with powers that are to be exercised in conformity with the
provisions of Republic Act No. 409, known as the Revised Charter of the City
of Manila.
In the course of its ministry, plaintiff's Philippine agency has been distributing
and selling bibles and/or gospel portions thereof (except during the Japanese
occupation) throughout the Philippines and translating the same into several
Philippine dialects. On May 29 1953, the acting City Treasurer of the City of
Manila informed plaintiff that it was conducting the business of general
merchandise since November, 1945, without providing itself with the
necessary Mayor's permit and municipal license, in violation of Ordinance
No. 3000, as amended, and Ordinances Nos. 2529, 3028 and 3364, and
required plaintiff to secure, within three days, the corresponding permit and
license fees, together with compromise covering the period from the 4th
quarter of 1945 to the 2nd quarter of 1953, in the total sum of P5,821.45
(Annex A).
Plaintiff protested against this requirement, but the City Treasurer demanded
that plaintiff deposit and pay under protest the sum of P5,891.45, if suit was
to be taken in court regarding the same (Annex B). To avoid the closing of its
business as well as further fines and penalties in the premises on October
24, 1953, plaintiff paid to the defendant under protest the said permit and
license fees in the aforementioned amount, giving at the same time notice to
the City Treasurer that suit would be taken in court to question the legality of
the ordinances under which, the said fees were being collected (Annex C),
which was done on the same date by filing the complaint that gave rise to
this action. In its complaint plaintiff prays that judgment be rendered
declaring the said Municipal Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and that
the defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid
under protest, together with legal interest thereon, and the costs, plaintiff
further praying for such other relief and remedy as the court may deem just
equitable.
334
Defendant answered the complaint, maintaining in turn that said ordinances
1st quarter 1948 11,143.90
were enacted by the Municipal Board of the City of Manila by virtue of the
power granted to it by section 2444, subsection (m-2) of the Revised 2nd quarter 1948 14,715.26
Administrative Code, superseded on June 18, 1949, by section 18,
subsection (1) of Republic Act No. 409, known as the Revised Charter of the 3rd quarter 1948 38,333.83
City of Manila, and praying that the complaint be dismissed, with costs
against plaintiff. This answer was replied by the plaintiff reiterating the 4th quarter 1948 16,179.90
unconstitutionality of the often-repeated ordinances.
1st quarter 1949 23,975.10
Before trial the parties submitted the following stipulation of facts:
2nd quarter 1949 17,802.08
COME NOW the parties in the above-entitled case, thru their
3rd quarter 1949 16,640.79
undersigned attorneys and respectfully submit the following
stipulation of facts: 4th quarter 1949 15,961.38

1. That the plaintiff sold for the use of the purchasers at its principal 1st quarter 1950 18,562.46
office at 636 Isaac Peral, Manila, Bibles, New Testaments, bible
portions and bible concordance in English and other foreign 2nd quarter 1950 21,816.32
languages imported by it from the United States as well as Bibles,
New Testaments and bible portions in the local dialects imported 3rd quarter 1950 25,004.55
and/or purchased locally; that from the fourth quarter of 1945 to the
first quarter of 1953 inclusive the sales made by the plaintiff were as 4th quarter 1950 45,287.92
follows:
1st quarter 1951 37,841.21

Quarter Amount of Sales 2nd quarter 1951 29,103.98

4th quarter 1945 P1,244.21 3rd quarter 1951 20,181.10

1st quarter 1946 2,206.85 4th quarter 1951 22,968.91

2nd quarter 1946 1,950.38 1st quarter 1952 23,002.65

3rd quarter 1946 2,235.99 2nd quarter 1952 17,626.96

4th quarter 1946 3,256.04 3rd quarter 1952 17,921.01

1st quarter 1947 13,241.07 4th quarter 1952 24,180.72

2nd quarter 1947 15,774.55 1st quarter 1953 29,516.21

3rd quarter 1947 14,654.13

2. That the parties hereby reserve the right to present evidence of
4th quarter 1947 12,590.94 other facts not herein stipulated.

335
 WHEREFORE, it is respectfully prayed that this case be set for
hearing so that the parties may present further evidence on their
behalf. (Record on Appeal, pp. 15-16).
When the case was set for hearing, plaintiff proved, among other things, that
it has been in existence in the Philippines since 1899, and that its parent
society is in New York, United States of America; that its, contiguous real
properties located at Isaac Peral are exempt from real estate taxes; and that
it was never required to pay any municipal license fee or tax before the war,
nor does the American Bible Society in the United States pay any license fee
or sales tax for the sale of bible therein. Plaintiff further tried to establish that
it never made any profit from the sale of its bibles, which are disposed of for
as low as one third of the cost, and that in order to maintain its operating cost
it obtains substantial remittances from its New York office and voluntary
contributions and gifts from certain churches, both in the United States and in
the Philippines, which are interested in its missionary work. Regarding
plaintiff's contention of lack of profit in the sale of bibles, defendant retorts
that the admissions of plaintiff-appellant's lone witness who testified on
cross-examination that bibles bearing the price of 70 cents each from
plaintiff-appellant's New York office are sold here by plaintiff-appellant at
P1.30 each; those bearing the price of $4.50 each are sold here at P10 each;
those bearing the price of $7 each are sold here at P15 each; and those
bearing the price of $11 each are sold here at P22 each, clearly show that
plaintiff's contention that it never makes any profit from the sale of its bible, is
evidently untenable.
After hearing the Court rendered judgment, the last part of which is as
follows:
As may be seen from the repealed section (m-2) of the Revised
Administrative Code and the repealing portions (o) of section 18 of
Republic Act No. 409, although they seemingly differ in the way the
legislative intent is expressed, yet their meaning is practically the
same for the purpose of taxing the merchandise mentioned in said
legal provisions, and that the taxes to be levied by said ordinances is
in the nature of percentage graduated taxes (Sec. 3 of Ordinance
No. 3000, as amended, and Sec. 1, Group 2, of Ordinance No. 2529,
as amended by Ordinance No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of
the opinion and so holds that this case should be dismissed, as it is
hereby dismissed, for lack of merits, with costs against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the Court of
Appeals which certified the case to Us for the reason that the errors assigned
to the lower Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively
amended, are not unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised
Administrative Code under which Ordinances Nos. 2592 and 3000
were promulgated, was not repealed by Section 18 of Republic Act
No. 409;
3. In not holding that an ordinance providing for taxes based on
gross sales or receipts, in order to be valid under the new Charter of
the City of Manila, must first be approved by the President of the
Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have
assumed commercial proportions, it cannot escape from the
operation of said municipal ordinances under the cloak of religious
privilege.
The issues. As may be seen from the proceeding statement of the case,
the issues involved in the present controversy may be reduced to the
following: (1) whether or not the ordinances of the City of Manila, Nos. 3000,
as amended, and 2529, 3028 and 3364, are constitutional and valid; and (2)
whether the provisions of said ordinances are applicable or not to the case at
bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of
the Philippines, provides that:
(7) No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religion test shall be
required for the exercise of civil or political rights.
Predicated on this constitutional mandate, plaintiff-appellant contends that
Ordinances Nos. 2529 and 3000, as respectively amended, are
336
unconstitutional and illegal in so far as its society is concerned, because they
provide for religious censorship and restrain the free exercise and enjoyment
of its religious profession, to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We
shall first consider the provisions of the questioned ordinances in relation to
their application to the sale of bibles, etc. by appellant. The records, show
that by letter of May 29, 1953 (Annex A), the City Treasurer required plaintiff
to secure a Mayor's permit in connection with the society's alleged business
of distributing and selling bibles, etc. and to pay permit dues in the sum of
P35 for the period covered in this litigation, plus the sum of P35 for
compromise on account of plaintiff's failure to secure the permit required by
Ordinance No. 3000 of the City of Manila, as amended. This Ordinance is of
general application and not particularly directed against institutions like the
plaintiff, and it does not contain any provisions whatever prescribing religious
censorship nor restraining the free exercise and enjoyment of any religious
profession. Section 1 of Ordinance No. 3000 reads as follows:
SEC. 1. PERMITS NECESSARY. It shall be unlawful for any
person or entity to conduct or engage in any of the businesses,
trades, or occupations enumerated in Section 3 of this Ordinance or
other businesses, trades, or occupations for which a permit is
required for the proper supervision and enforcement of existing laws
and ordinances governing the sanitation, security, and welfare of the
public and the health of the employees engaged in the business
specified in said section 3 hereof, WITHOUT FIRST HAVING
OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE
NECESSARY LICENSE FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this case is not
particularly mentioned in Section 3 of the Ordinance, and the record does not
show that a permit is required therefor under existing laws and ordinances for
the proper supervision and enforcement of their provisions governing the
sanitation, security and welfare of the public and the health of the employees
engaged in the business of the plaintiff. However, sections 3 of Ordinance
3000 contains item No. 79, which reads as follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the power of
the City to license or tax said business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the
society to pay from the 4th quarter of 1945 to the 1st quarter of 1953 in the
sum of P5,821.45, including the sum of P50 as compromise, Ordinance No.
2529, as amended by Ordinances Nos. 2779, 2821 and 3028 prescribes the
following:
SEC. 1. FEES. Subject to the provisions of section 578 of the
Revised Ordinances of the City of Manila, as amended, there shall
be paid to the City Treasurer for engaging in any of the businesses
or occupations below enumerated, quarterly, license fees based on
gross sales or receipts realized during the preceding quarter in
accordance with the rates herein prescribed: PROVIDED,
HOWEVER, That a person engaged in any businesses or occupation
for the first time shall pay the initial license fee based on the
probable gross sales or receipts for the first quarter beginning from
the date of the opening of the business as indicated herein for the
corresponding business or occupation.
xxx xxx xxx
GROUP 2. Retail dealers in new (not yet used) merchandise,
which dealers are not yet subject to the payment of any municipal
tax, such as (1) retail dealers in general merchandise; (2) retail
dealers exclusively engaged in the sale of . . . books, including
stationery.
xxx xxx xxx
As may be seen, the license fees required to be paid quarterly in Section 1 of
said Ordinance No. 2529, as amended, are not imposed directly upon any
religious institution but upon those engaged in any of the business or
occupations therein enumerated, such as retail "dealers in general
merchandise" which, it is alleged, cover the business or occupation of selling
bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444,
subsection (m-2) of said legal body, as amended by Act No. 3659, approved
on December 8, 1929, empowers the Municipal Board of the City of Manila:
337
 (M-2) To tax and fix the license fee on (a) dealers in new
automobiles or accessories or both, and (b) retail dealers in new (not
yet used) merchandise, which dealers are not yet subject to the
payment of any municipal tax.
For the purpose of taxation, these retail dealers shall be classified as
(1) retail dealers in general merchandise, and (2) retail dealers
exclusively engaged in the sale of (a) textiles . . . (e) books, including
stationery, paper and office supplies, . . .: PROVIDED,
HOWEVER, That the combined total tax of any debtor or
manufacturer, or both, enumerated under these subsections (m-1)
and (m-2), whether dealing in one or all of the articles mentioned
herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED PESOS
PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000,
as amended, were enacted in virtue of the power that said Act No. 3669
conferred upon the City of Manila. Appellant, however, contends that said
ordinances are longer in force and effect as the law under which they were
promulgated has been expressly repealed by Section 102 of Republic Act
No. 409 passed on June 18, 1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that Republic Act
No. 409 expressly repealed the provisions of Chapter 60 of the Revised
Administrative Code but in the opinion of the trial Judge, although Section
2444 (m-2) of the former Manila Charter and section 18 (o) of the new
seemingly differ in the way the legislative intent was expressed, yet their
meaning is practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances Nos. 2529
and 3000, as amended, are to be considered as still in full force and effect
uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing
statute, will repeal the old statute in its entirety and by the same
enactment re-enact all or certain portions of the preexisting law. Of
course, the problem created by this sort of legislative action involves
mainly the effect of the repeal upon rights and liabilities which
accrued under the original statute. Are those rights and liabilities
destroyed or preserved? The authorities are divided as to the effect
of simultaneous repeals and re-enactments. Some adhere to the
view that the rights and liabilities accrued under the repealed act are
destroyed, since the statutes from which they sprang are actually
terminated, even though for only a very short period of time. Others,
and they seem to be in the majority, refuse to accept this view of the
situation, and consequently maintain that all rights an liabilities which
have accrued under the original statute are preserved and may be
enforced, since the re-enactment neutralizes the repeal, therefore,
continuing the law in force without interruption. (Crawford-Statutory
Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No, 409
introduces a new and wider concept of taxation and is different from the
provisions of Section 2444(m-2) that the former cannot be considered as a
substantial re-enactment of the provisions of the latter. We have quoted
above the provisions of section 2444(m-2) of the Revised Administrative
Code and We shall now copy hereunder the provisions of Section 18,
subdivision (o) of Republic Act No. 409, which reads as follows:
(o) To tax and fix the license fee on dealers in general merchandise,
including importers and indentors, except those dealers who may be
expressly subject to the payment of some other municipal tax under
the provisions of this section.
Dealers in general merchandise shall be classified as (a) wholesale
dealers and (b) retail dealers. For purposes of the tax on retail
dealers, general merchandise shall be classified into four main
classes: namely (1) luxury articles, (2) semi-luxury articles, (3)
essential commodities, and (4) miscellaneous articles. A separate
license shall be prescribed for each class but where commodities of
different classes are sold in the same establishment, it shall not be
compulsory for the owner to secure more than one license if he pays
the higher or highest rate of tax prescribed by ordinance. Wholesale
dealers shall pay the license tax as such, as may be provided by
ordinance.
For purposes of this section, the term "General merchandise" shall
include poultry and livestock, agricultural products, fish and other
allied products.
The only essential difference that We find between these two provisions that
may have any bearing on the case at bar, is that, while subsection (m-2)
prescribes that the combined total tax of any dealer or manufacturer, or both,
enumerated under subsections (m-1) and (m-2), whether dealing in one or all
of the articles mentioned therein, shall not be in excess of P500 per annum,
the corresponding section 18, subsection (o) of Republic Act No. 409, does
not contain any limitation as to the amount of tax or license fee that the retail
338
dealer has to pay per annum. Hence, and in accordance with the weight of
the authorities above referred to that maintain that "all rights and liabilities
which have accrued under the original statute are preserved and may be
enforced, since the reenactment neutralizes the repeal, therefore continuing
the law in force without interruption", We hold that the questioned ordinances
of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be valid, must
first be approved by the President of the Philippines as per section 18,
subsection (ii) of Republic Act No. 409, which reads as follows:
(ii) To tax, license and regulate any business, trade or occupation
being conducted within the City of Manila, not otherwise enumerated
in the preceding subsections, including percentage taxes based on
gross sales or receipts, subject to the approval of the PRESIDENT,
except amusement taxes.
but this requirement of the President's approval was not contained in section
2444 of the former Charter of the City of Manila under which Ordinance No.
2529 was promulgated. Anyway, as stated by appellee's counsel, the
business of "retail dealers in general merchandise" is expressly enumerated
in subsection (o), section 18 of Republic Act No. 409; hence, an ordinance
prescribing a municipal tax on said business does not have to be approved
by the President to be effective, as it is not among those referred to in said
subsection (ii). Moreover, the questioned ordinances are still in force, having
been promulgated by the Municipal Board of the City of Manila under the
authority granted to it by law.
The question that now remains to be determined is whether said ordinances
are inapplicable, invalid or unconstitutional if applied to the alleged business
of distribution and sale of bibles to the people of the Philippines by a religious
corporation like the American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779,
2821 and 3028, appellant contends that it is unconstitutional and illegal
because it restrains the free exercise and enjoyment of the religious
profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines
aforequoted, guarantees the freedom of religious profession and worship.
"Religion has been spoken of as a profession of faith to an active power that
binds and elevates man to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has
reference to one's views of his relations to His Creator and to the obligations
they impose of reverence to His being and character, and obedience to His
Will (Davis vs. Beason, 133 U.S., 342). The constitutional guaranty of the
free exercise and enjoyment of religious profession and worship carries with
it the right to disseminate religious information. Any restraints of such right
can only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive evil
which the State has the right to prevent". (Taada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the
license fee herein involved is imposed upon appellant for its distribution and
sale of bibles and other religious literature:
In the case of Murdock vs. Pennsylvania, it was held that an
ordinance requiring that a license be obtained before a person could
canvass or solicit orders for goods, paintings, pictures, wares or
merchandise cannot be made to apply to members of Jehovah's
Witnesses who went about from door to door distributing literature
and soliciting people to "purchase" certain religious books and
pamphlets, all published by the Watch Tower Bible & Tract Society.
The "price" of the books was twenty-five cents each, the "price" of
the pamphlets five cents each. It was shown that in making the
solicitations there was a request for additional "contribution" of
twenty-five cents each for the books and five cents each for the
pamphlets. Lesser sum were accepted, however, and books were
even donated in case interested persons were without funds.
On the above facts the Supreme Court held that it could not be said
that petitioners were engaged in commercial rather than a religious
venture. Their activities could not be described as embraced in the
occupation of selling books and pamphlets. Then the Court
continued:
"We do not mean to say that religious groups and the press are free
from all financial burdens of government. See Grosjean vs. American
Press Co., 297 U.S., 233, 250, 80 L. ed. 660, 668, 56 S. Ct. 444. We
have here something quite different, for example, from a tax on the
income of one who engages in religious activities or a tax on
property used or employed in connection with activities. It is one
thing to impose a tax on the income or property of a preacher. It is
quite another to exact a tax from him for the privilege of delivering a
sermon. The tax imposed by the City of Jeannette is a flat license
tax, payment of which is a condition of the exercise of these
constitutional privileges. The power to tax the exercise of a privilege
is the power to control or suppress its enjoyment. . . . Those who can
339
tax the exercise of this religious practice can make its exercise so
costly as to deprive it of the resources necessary for its
maintenance. Those who can tax the privilege of engaging in this
form of missionary evangelism can close all its doors to all those who
do not have a full purse. Spreading religious beliefs in this ancient
and honorable manner would thus be denied the needy. . . .
It is contended however that the fact that the license tax can
suppress or control this activity is unimportant if it does not do so.
But that is to disregard the nature of this tax. It is a license tax a
flat tax imposed on the exercise of a privilege granted by the Bill of
Rights . . . The power to impose a license tax on the exercise of
these freedom is indeed as potent as the power of censorship which
this Court has repeatedly struck down. . . . It is not a nominal fee
imposed as a regulatory measure to defray the expenses of policing
the activities in question. It is in no way apportioned. It is flat license
tax levied and collected as a condition to the pursuit of activities
whose enjoyment is guaranteed by the constitutional liberties of
press and religion and inevitably tends to suppress their exercise.
That is almost uniformly recognized as the inherent vice and evil of
this flat license tax."
Nor could dissemination of religious information be conditioned upon
the approval of an official or manager even if the town were owned
by a corporation as held in the case of Marsh vs. State of
Alabama (326 U.S. 501), or by the United States itself as held in the
case of Tucker vs. Texas (326 U.S. 517). In the former case the
Supreme Court expressed the opinion that the right to enjoy freedom
of the press and religion occupies a preferred position as against the
constitutional right of property owners.
"When we balance the constitutional rights of owners of property
against those of the people to enjoy freedom of press and religion,
as we must here, we remain mindful of the fact that the latter occupy
a preferred position. . . . In our view the circumstance that the
property rights to the premises where the deprivation of property
here involved, took place, were held by others than the public, is not
sufficient to justify the State's permitting a corporation to govern a
community of citizens so as to restrict their fundamental liberties and
the enforcement of such restraint by the application of a State
statute." (Taada and Fernando on the Constitution of the
Philippines, Vol. 1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National
Internal Revenue Code, provides:
SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. The
following organizations shall not be taxed under this Title in respect
to income received by them as such
(e) Corporations or associations organized and operated exclusively
for religious, charitable, . . . or educational purposes, . . .: Provided,
however, That the income of whatever kind and character from any
of its properties, real or personal, or from any activity conducted for
profit, regardless of the disposition made of such income, shall be
liable to the tax imposed under this Code;
Appellant's counsel claims that the Collector of Internal Revenue has
exempted the plaintiff from this tax and says that such exemption clearly
indicates that the act of distributing and selling bibles, etc. is purely religious
and does not fall under the above legal provisions.
It may be true that in the case at bar the price asked for the bibles and other
religious pamphlets was in some instances a little bit higher than the actual
cost of the same but this cannot mean that appellant was engaged in the
business or occupation of selling said "merchandise" for profit. For this
reason We believe that the provisions of City of Manila Ordinance No. 2529,
as amended, cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and worship as well as
its rights of dissemination of religious beliefs.
With respect to Ordinance No. 3000, as amended, which requires the
obtention the Mayor's permit before any person can engage in any of the
businesses, trades or occupations enumerated therein, We do not find that it
imposes any charge upon the enjoyment of a right granted by the
Constitution, nor tax the exercise of religious practices. In the case
of Coleman vs. City of Griffin, 189 S.E. 427, this point was elucidated as
follows:
An ordinance by the City of Griffin, declaring that the practice of
distributing either by hand or otherwise, circulars, handbooks,
advertising, or literature of any kind, whether said articles are being
delivered free, or whether same are being sold within the city limits of
the City of Griffin, without first obtaining written permission from the
city manager of the City of Griffin, shall be deemed a nuisance and
punishable as an offense against the City of Griffin, does not deprive
340
 defendant of his constitutional right of the free exercise and
enjoyment of religious profession and worship, even though it
prohibits him from introducing and carrying out a scheme or purpose
which he sees fit to claim as a part of his religious system.
It seems clear, therefore, that Ordinance No. 3000 cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No.
2529 of the City of Manila, as amended, is not applicable to plaintiff-appellant
and defendant-appellee is powerless to license or tax the business of plaintiff
Society involved herein for, as stated before, it would impair plaintiff's right to
the free exercise and enjoyment of its religious profession and worship, as
well as its rights of dissemination of religious beliefs, We find that Ordinance
No. 3000, as amended is also inapplicable to said business, trade or
occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We hereby
reverse the decision appealed from, sentencing defendant return to plaintiff
the sum of P5,891.45 unduly collected from it. Without pronouncement as to
costs. It is so ordered.
Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and
Endencia, JJ., concur.
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.
ESCRITOR, respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To be
held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking religious
freedom, the consequences of the case are not only temporal. The task is
not made easier by the American origin of our religion clauses and the wealth
of U.S. jurisprudence on these clauses for in the United States, there is
probably no more intensely controverted area of constitutional interpretation
than the religion clauses.[1] The U.S. Supreme Court itself has acknowledged
that in this constitutional area, there is considerable internal inconsistency in
the opinions of the Court.[2] As stated by a professor of law, (i)t is by now
notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional
law have confusion and inconsistency achieved such undisputed
sovereignty.[3] Nevertheless, this thicket is the only path to take to conquer
the mountain of a legal problem the case at bar presents. Both the
penetrating and panoramic view this climb would provide will largely chart the
course of religious freedom in Philippine jurisdiction. That the religious
freedom question arose in an administrative case involving only one person
does not alter the paramount importance of the question for the constitution
commands the positive protection by government of religious freedom -not
only for a minority, however small- not only for a majority, however large- but
for each of us.[4]
I. Facts
The facts of the case will determine whether respondent will prevail in
her plea of religious freedom. It is necessary therefore to lay down the facts
in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, requesting for an investigation of
rumors that respondent Soledad Escritor, court interpreter in said court, is
living with a man not her husband. They allegedly have a child of eighteen to
twenty years old. Estrada is not personally related either to Escritor or her
partner and is a resident not of Las Pias City but of Bacoor,
Cavite. Nevertheless, he filed the charge against Escritor as he believes that
she is committing an immoral act that tarnishes the image of the court, thus
she should not be allowed to remain employed therein as it might appear that
the court condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is no
truth as to the veracity of the allegation and challenged Estrada to appear in
the open and prove his allegation in the proper forum.[6] Judge Caoibes set a
341
preliminary conference on October 12, 2000. Escritor moved for the inhibition
of Judge Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said case was
still pending in the Office of the Court Administrator (OCA). Escritors motion
was denied. The preliminary conference proceeded with both Estrada and
Escritor in attendance. Estrada confirmed that he filed the letter-complaint for
immorality against Escritor because in his frequent visits to the Hall of Justice
of Las Pias City, he learned from conversations therein that Escritor was
living with a man not her husband and that she had an eighteen to twenty-
year old son by this man. This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and Escritors
live-in arrangement did not command respect.[7]
Respondent Escritor testified that when she entered the judiciary in
1999,[8] she was already a widow, her husband having died in 1998.[9] She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living together,
she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.
Quilapio, Jr., as my mate in marital relationship; that I have done all within
my ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I
therefore make this public declaration pledging faithfulness in this marital
relationship.
I recognize this relationship as a binding tie before Jehovah God and before
all persons to be held to and honored in full accord with the principles of
Gods Word. I will continue to seek the means to obtain legal recognition of
this relationship by the civil authorities and if at any future time a change in
circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar pledge on the same
day.[11] Both pledges were executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed her pledge, her husband was
still alive but living with another woman. Quilapio was likewise married at that
time, but had been separated in fact from his wife. During her testimony,
Escritor volunteered to present members of her congregation to confirm the
truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes
deemed it unnecessary and considered her identification of her signature and
the signature of Quilapio sufficient authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment
on the charge against her. In her comment, Escritor reiterated her religious
congregations approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to
state with candor that there is no truth as to the veracity of same
allegation. Included herewith are documents denominated as Declaration of
Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH
God and before all persons to be held to and honored in full accord with the
principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority in
relation to her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch
255, Las Pias City for investigation, report and recommendation. In the
course of Judge Macedas investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does not
consider it immoral. She offered to supply the investigating judge some
clippings which explain the basis of her congregations belief and practice
regarding her conjugal arrangement.Escritor started living with Quilapio
twenty years ago when her husband was still alive but living with another
woman. She met this woman who confirmed to her that she was living with
her (Escritors) husband.[14]
342
 Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a Declaration of
Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can
you cite some particular rules and regulations in your
congregation?
A: Well, we of course, talk to the persons with regards (sic) to all
the parties involved and then we request them to execute a
Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of
faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders
of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with
this document?
A: Actually, sir, the signing of that document, ah, with the couple
has consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on
record before God and man that they are faithful to each
other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the
congregation?
A: It is a pledge and a document. It is a declaration, pledge of a
(sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the
one who contracted with the opposite member of my
congregation, opposite sex, and that this document will give
us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or
living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein
stated in the Book of Matthew, Chapter Five, Verse Twenty-
two. So, in that verse of the Bible, Jesus said that everyone
divorcing his wife, except on account of fornication, makes her
a subject for adultery, and whoever marries a divorced woman
commits adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the
Almanza Congregation in Las Pias, in May 2001. The declarations having
been executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when they
executed their declarations. However, when the two transferred to Almanza,
Salazar inquired about their status from the Atimonan Congregation,
gathered comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the personal
circumstances of the couple had been considered by the Atimonan
Congregation when they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower
Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted from
the article, Maintaining Marriage in Honor Before God and Men, [16] in the
March 15, 1977 issue of the Watch Tower magazine, entitled The
Watchtower.
The declaration requires the approval of the elders of the Jehovahs
Witnesses congregation and is binding within the congregation all over the
world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital relationship
because of legal impediments. It is thus standard practice of the
congregation to check the couples marital status before giving imprimatur to
343
the conjugal arrangement. The execution of the declaration finds scriptural
basis in Matthew 5:32 that when the spouse commits adultery, the offended
spouse can remarry. The marital status of the declarants and their respective
spouses commission of adultery are investigated before the declarations are
executed. Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status before the
declaration was approved and the declaration is valid everywhere, including
the Almanza Congregation. That Escritors and Quilapios declarations were
approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregations branch
office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal impediments for
both are lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine
law. In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and
Quilapio and they remain members in good standing in the congregation. [17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovahs Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled, Maintaining
Marriage Before God and Men to which Escritor and Minister Salazar
referred in their testimonies. The article appeared in the March 15, 1977
issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S.
Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the
article. The article is distributed to the Jehovahs Witnesses congregations
which also distribute them to the public.[18]
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and binding in
their own religious congregation, the Jehovahs Witnesses. Complainant
Estrada adds however, that the effect of the relationship to Escritors
administrative liability must likewise be determined. Estrada argued, through
counsel, that the Declaration of Pledging Faithfulness recognizes the
supremacy of the proper public authorities such that she bound herself to
seek means to . . . legalize their union. Thus, even assuming arguendo that
the declaration is valid and binding in her congregation, it is binding only to
her co-members in the congregation and serves only the internal purpose of
displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law for
government employees. To rule otherwise would create a dangerous
precedent as those who cannot legalize their live-in relationship can simply
join the Jehovahs Witnesses congregation and use their religion as a
defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of her
religion, the Jehovahs Witnesses. She quoted portions of the magazine
article entitled, Maintaining Marriage Before God and Men, in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by
the respondent and her mate greatly affect the administrative liability of
respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of
the proper public authorities in the marriage arrangement. However, it is
helpful to understand the relative nature of Caesars authority regarding
marriage. From country to country, marriage and divorce legislation presents
a multitude of different angles and aspects. Rather than becoming entangled
in a confusion of technicalities, the Christian, or the one desiring to become a
disciple of Gods Son, can be guided by basic Scriptural principles that hold
true in all cases.
Gods view is of first concern. So, first of all the person must consider whether
that ones present relationship, or the relationship into which he or she
contemplates entering, is one that could meet with Gods approval, or
whether in itself, it violates the standards of Gods Word. Take, for example,
the situation where a man lives with a wife but also spends time living with
another woman as a concubine. As long as such a state of concubinage
prevails, the relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the woman or
the man make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a member of ones
immediate family, or a homosexual relationship or other such situation
condemned by Gods Word. It is not the lack of any legal validation that
makes such relationships unacceptable; they are in themselves unscriptural
and hence, immoral. Hence, a person involved in such a situation could not
make any kind of Declaration of Faithfulness, since it would have no merit in
Gods eyes.
If the relationship is such that it can have Gods approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce
344
is possible, then such step should now be taken so that, having obtained the
divorce (on whatever legal grounds may be available), the present union can
receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles
of Gods Word, and if one has done all that can reasonably be done to have it
recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has
been noted, the extreme slowness of official action may make accomplishing
of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need
years to be able to meet. In such cases, the declaration pledging faithfulness
will provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister
of Jehovah God, should be able to approach the matter in a balanced way,
neither underestimating nor overestimating the validation offered by the
political state. She always gives primary concern to Gods view of the
union. Along with this, every effort should be made to set a fine example of
faithfulness and devotion to ones mate, thus, keeping the marriage
honorable among all. Such course will bring Gods blessing and result to the
honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-
33)[20]
Respondent also brought to the attention of the investigating judge that
complainants Memorandum came from Judge Caoibes chambers [21] whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by testimonial
and documentary evidence. He also noted that (b)y strict Catholic standards,
the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs.
Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more
relevant question is whether or not to exact from respondent Escritor, a
member of Jehovahs Witnesses, the strict moral standards of the Catholic
faith in determining her administrative responsibility in the case at bar. [22] The
investigating judge acknowledged that religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at
p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and
thereby recommended the dismissal of the complaint against Escritor. [23]
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time
she joined the judiciary as her husband had died a year before, it is due to
her relationship with a married man, voluntarily carried on, that respondent
may still be subject to disciplinary action.[24] Considering the ruling of the
Court in Dicdican v. Fernan, et al.[25] that court personnel have been
enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and
integrity of the court of justice, DCA Lock found Escritors defense of freedom
of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months and one
day without pay with a warning that a repetition of a similar act will be dealt
with more severely in accordance with the Civil Service Rules.[26]
II. Issue
Whether or not respondent should be found guilty of the administrative
charge of gross and immoral conduct. To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondents right to religious
freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable.
III. Applicable Laws
Respondent is charged with committing gross and immoral conduct
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative
Code which provides, viz:
345
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the
Civil Service shall be suspended or dismissed except for cause as provided
by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in laymans terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovahs Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct
for which she should be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its conception in
the Old World. One cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
experience.[27] This fresh look at the religion clauses is proper in deciding this
case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was marked by
religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a
custom violated a taboo which would then bring upon him the wrathful
vengeance of a superhuman mysterious power.[28] Distinction between the
religious and non-religious would thus have been meaningless to him. He
sought protection from all kinds of evil - whether a wild beast or tribe enemy
and lightning or wind - from the same person. The head of the clan or the Old
Man of the tribe or the king protected his wards against both human and
superhuman enemies. In time, the king not only interceded for his people
with the divine powers, but he himself was looked upon as a divine being and
his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated from
the responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class. This saw the birth of
the social and communal problem of the competing claims of the king and
priest.Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also
performed priestly functions, he carried out these functions because he was
the head and representative of the community.[30]
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man and
man promulgated laws concerning mans obligations to the supernatural. This
authority was the king who was the head of the state and the source of all
law and who only delegated performance of rituals and sacrifice to the
priests. The Code of Hammurabi, king of Babylonia, imposed penalties for
homicide, larceny, perjury, and other crimes; regulated the fees of surgeons
and the wages of masons and tailors and prescribed rules for inheritance of
property;[31] and also catalogued the gods and assigned them their places in
the divine hierarchy so as to put Hammurabis own god to a position of
equality with existing gods.[32] In sum, the relationship of religion to the state
(king) in pre-Hebreic times may be characterized as a union of the two
forces, with the state almost universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic
religion: theocracy. The authority and power of the state was ascribed to
God.[34] The Mosaic creed was not merely regarded as the religion of the
state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God,
Moses decided when the people should travel and when to pitch camp, when
they should make war and when peace. Saul and David were made kings by
the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi,
the Mosaic code combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary importance. On the
contrary, religious motivation was primary and all-embracing: sacrifices were
346
made and Israel was prohibited from exacting usury, mistreating aliens or
using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion
as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-god
to a primary position over the previous reigning gods.[35] Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom
and independence to further Gods purposes. Liberation and Exodus were
preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan
was a preparation for the building of the temple and the full worship of
God.[36]
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not only the
future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is acknowledged
by many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion.Ancient religions
were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not
arise. It was not until an exclusive fellowship, that the questions of
proselytism, change of belief and liberty of religion arose.[37] (emphasis
supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors was
the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from Samuel
the prophet and disciple of Eli the priest, but soon the king dominated
prophet and priest. Saul disobeyed and even sought to slay Samuel the
prophet of God.[38] Under Solomon, the subordination of religion to state
became complete; he used religion as an engine to further the states
purposes. He reformed the order of priesthood established by Moses
because the high priest under that order endorsed the claim of his rival to the
throne.[39]
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became head of
the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of pre-Christian
Rome - the worship of the head of the state. He set his great uncle Julius
Caesar among the gods, and commanded that worship of Divine Julius
should not be less than worship of Apollo, Jupiter and other gods. When
Augustus died, he also joined the ranks of the gods, as other emperors
before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as
the Christians dogmatic exclusiveness prevented them from paying homage
to publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was hatred of the human
race, placing them in the same category as pirates and brigands and other
enemies of mankind who were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire
and make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state
over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution,
destroyed the churches, confiscated sacred books, imprisoned the clergy
and by torture forced them to sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two co-rulers of
the empire, in issuing an edict of toleration to Christians on condition that
nothing is done by them contrary to discipline.[43] A year later, after Galerius
died, Constantine and Licius jointly issued the epochal Edict of Milan (312
or 313), a document of monumental importance in the history of religious
liberty. It provided that liberty of worship shall not be denied to any, but
that the mind and will of every individual shall be free to manage divine
affairs according to his own choice. (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted that every person who cherishes
the desire to observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance. Furthermore, it was
provided that the same free and open power to follow their own religion or
worship is granted also to others, in accordance with the tranquillity of our
times, in order that every person may have free opportunity to worship
the object of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of
unifying his complex empire. Within seven years after the Edict of Milan,
347
under the emperors command, great Christian edifices were erected, the
clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors called and
dismissed church councils, and enforced unity of belief and practice. Until
recently the church had been the victim of persecution and repression, but
this time it welcomed the states persecution and repression of the
nonconformist and the orthodox on the belief that it was better for heretics to
be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state
was not easy. It was a constant struggle of one claiming dominance over the
other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood
as the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leos crowning of Charlemagne,
became the churchs accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state was
now a union of the state in the church. The rulers of the states did not
concede to this claim of supremacy. Thus, while Charlemagne received his
crown from the Pope, he himself crowned his own son as successor to nullify
the inference of supremacy.[45] The whole history of medieval Europe was
a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At
about the second quarter of the 13th century, the Inquisition was established,
the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed to
ascribe to the Reformation the rise of religious liberty and its acceptance as
the principle governing the relations between a democratic state and its
citizens, history shows that it is more accurate to say that the same causes
that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the principle
of separation of church and state.[46] Pleas for tolerance and freedom of
conscience can without doubt be found in the writings of leaders of the
Reformation.But just as Protestants living in the countries of papists pleaded
for toleration of religion, so did the papists that lived where Protestants were
dominant.[47] Papist and Protestant governments alike accepted the idea of
cooperation between church and state and regarded as essential to national
unity the uniformity of at least the outward manifestations of
religion.[48]Certainly, Luther, leader of the Reformation, stated that neither
pope, nor bishop, nor any man whatever has the right of making one syllable
binding on a Christian man, unless it be done with his own consent.[49] But
when the tables had turned and he was no longer the hunted heretic, he
likewise stated when he made an alliance with the secular powers that
(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source,
and bathe their hands in the blood of the Catholic bishops, and of the Pope,
who is a devil in disguise.[50] To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities in
the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the sermon a
crime, he included criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.[51]
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the Reformation,
wrote that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings,
all these things I can see accomplish nothing except to make the evil more
widespread.[52] The minority or dissident sects also ardently advocated
religious liberty. The Anabaptists, persecuted and despised, along with the
Socinians (Unitarians) and the Friends of the Quakers founded by George
Fox in the 17th century, endorsed the supremacy and freedom of the
individual conscience. They regarded religion as outside the realm of political
governments.[53] The English Baptists proclaimed that the magistrate is not to
meddle with religion or matters of conscience, nor compel men to this or that
form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist.The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luthers belief that civic cohesion could not
exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use
of state machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in the
New World, was discernibly in its incipient form in the arguments of
some dissident minorities that the magistrate should not intermeddle in
348
religious affairs.[55] After the Reformation, Erastianism pervaded all Europe
except for Calvins theocratic Geneva. In England, perhaps more than in
any other country, Erastianism was at its height. To illustrate, a statute
was enacted by Parliament in 1678, which, to encourage woolen trade,
imposed on all clergymen the duty of seeing to it that no person was buried
in a shroud made of any substance other than wool.[56] Under Elizabeth,
supremacy of the crown over the church was complete: ecclesiastical offices
were regulated by her proclamations, recusants were fined and imprisoned,
Jesuits and proselytizing priests were put to death for high treason, the thirty-
nine Articles of the Church of England were adopted and English
Protestantism attained its present doctrinal status.[57] Elizabeth was to be
recognized as the only Supreme Governor of this realm . . . as well in all
spiritual or ecclesiastical things or causes as temporal. She and her
successors were vested, in their dominions, with all manner of jurisdictions,
privileges, and preeminences, in any wise touching or concerning any
spiritual or ecclesiastical jurisdiction.[58] Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant sects,
but denied toleration to Catholics.[59] In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except
Catholics. The Catholics achieved religious liberty in the 19th century
when the Roman Catholic Relief Act of 1829 was adopted. The Jews
followed suit in 1858 when they were finally permitted to sit in
Parliament.[60]
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in Israel,
Judea, the Holy Roman Empire and Geneva was completely gone. The
prevailing church-state relationship in Europe was Erastianism embodied in
the system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with freedom
in various degrees. No nation had yet adopted as the basis of its church-
state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used
as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities
and intellectual leaders of the Renaissance. The religious wars of
16th and 17th century Europe were a thing of the past by the time
America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant
sects had persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of
a particular time and place, men and women had been fined, cast in jail,
cruelly tortured, and killed. Among the offenses for which these punishments
had been inflicted were such things as speaking disrespectfully of the views
of ministers of government-established churches, non-attendance at those
churches, expressions of non-belief in their doctrines, and failure to pay
taxes and tithes to support them.[61]
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States Constitution
was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular
arm to extinguish religious discord, by proscribing all differences in religious
opinions.[62]
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the
willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes
and emperors in exchange for religions invaluable service. This was the
context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.[63]
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American
349
colonies. British thought pervaded these colonies as the immigrants brought
with them their religious and political ideas from England and English books
and pamphlets largely provided their cultural fare.[64] But although these
settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some
of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to
the individuals and companies designated to make the laws which would
control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to support
or attend.[65] At one time, six of the colonies established a state religion.
Other colonies, however, such as Rhode Island and Delaware tolerated a
high degree of religious diversity. Still others, which originally tolerated only a
single religion, eventually extended support to several different faiths. [66]
This was the state of the American colonies when the unique
American experiment of separation of church and state came
about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors
contributed in bringing it forth. Among these were the English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation on
the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the
success of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European rationalism and
deism.[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in the
colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies were
large financial investments which would be profitable only if people would
settle there. It would be difficult to engage in trade with persons one seeks to
destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them to think less of the Church and more of the
State and of commerce.[68] The diversity brought about by the colonies open
gates encouraged religious freedom and non-establishment in several
ways. First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive
rightness of ones religion, which impels persecution for the sake of ones
religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment could
not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire population
of the country had a church affiliation at the time the republic was
founded.[70] This might be attributed to the drifting to the American colonies of
the skepticism that characterized European Enlightenment.[71] Economic
considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal non-
institutional matter. The prevalence of lack of church affiliation contributed to
religious liberty and disestablishment as persons who were not connected
with any church were not likely to persecute others for similar independence
nor accede to compulsory taxation to support a church to which they did not
belong.[72]
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters
the right to hold public services subject to registration of their ministers and
places of worship.[73] Although the toleration accorded to Protestant
dissenters who qualified under its terms was only a modest advance in
religious freedom, it nevertheless was of some influence to the American
experiment.[74] Even then, for practical considerations, concessions had to be
made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-
18th century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal
religion that appealed directly to the individual, putting emphasis on the rights
and duties of the individual conscience and its answerability exclusively to
God. Thus, although they had no quarrel with orthodox Christian theology as
in fact they were fundamentalists, this group became staunch advocates of
separation of church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a community of
Baptists, Quakers and other nonconformists. In this colony, religious freedom
was not based on practical considerations but on the concept of mutual
independence of religion and government. In 1663, Rhode Island obtained a
charter from the British crown which declared that settlers have it much on
their heart to hold forth a livelie experiment that a most flourishing civil state
may best be maintained . . . with full libertie in religious concernments. [76] In
350
Williams pamphlet, The Bloudy Tenent of Persecution for cause of
Conscience, discussed in a Conference between Truth and Peace,[77]he
articulated the philosophical basis for his argument of religious liberty. To
him, religious freedom and separation of church and state did not constitute
two but only one principle. Religious persecution is wrong because it
confounds the Civil and Religious and because States . . . are proved
essentially Civil. The power of true discerning the true fear of God is not one
of the powers that the people have transferred to Civil
Authority.[78] Williams Bloudy Tenet is considered an epochal milestone in the
history of religious freedom and the separation of church and state. [79]
William Penn, proprietor of the land that became Pennsylvania, was
also an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers. He opposed
coercion in matters of conscience because imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative. Aside
from his idealism, proprietary interests made toleration in Pennsylvania
necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At
the end of the colonial period, Pennsylvania had the greatest variety of
religious groups. Penn was responsible in large part for the Concessions and
agreements of the Proprietors, Freeholders, and inhabitants of West Jersey,
in America, a monumental document in the history of civil liberty which
provided among others, for liberty of conscience.[80] The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition
started by the leaders of their denominations. Aside from the Baptists and the
Quakers, the Presbyterians likewise greatly contributed to the evolution of
separation and freedom.[81] The Constitutional fathers who convened in
Philadelphia in 1787, and Congress and the states that adopted the First
Amendment in 1791 were very familiar with and strongly influenced by the
successful examples of Rhode Island and Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also
contributed to the American experiment. The social contract theory
popularized by Locke was so widely accepted as to be deemed self-evident
truth in Americas Declaration of Independence. With the doctrine of natural
rights and equality set forth in the Declaration of Independence, there was no
room for religious discrimination. It was difficult to justify inequality in religious
treatment by a new nation that severed its political bonds with the English
crown which violated the self-evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a natural right
that is entirely personal and not within the scope of the powers of a political
body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the
memorial presented by the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in
every one the better to preserve himself, his liberty and property. The power
of the society, or Legislature constituted by them, can never be supposed to
extend any further than the common good, but is obliged to secure every
ones property. To give laws, to receive obedience, to compel with the sword,
belong to none but the civil magistrate; and on this ground we affirm that the
magistrates power extends not to establishing any articles of faith or forms of
worship, by force of laws; for laws are of no force without penalties. The care
of souls cannot belong to the civil magistrate, because his power
consists only in outward force; but pure and saving religion consists in
the inward persuasion of the mind, without which nothing can be
acceptable to God.[84] (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to the
rationalist, the power to act in the realm of religion was not one of the powers
conferred on government as part of the social contract. [85]
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and post-revolutionary
period were also influenced by European deism and rationalism,[86] in
general, and some were apathetic if not antagonistic to formal religious
worship and institutionalized religion. Jefferson, Paine, John Adams,
Washington, Franklin, Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to the
emphasis on secular interests and the relegation of historic theology to the
background.[87] For these men of the enlightenment, religion should be
allowed to rise and fall on its own, and the state must be protected from the
clutches of the church whose entanglements has caused intolerance and
corruption as witnessed throughout history.[88] Not only the leaders but also
the masses embraced rationalism at the end of the eighteenth century,
accounting for the popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of the First
Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and
state.[90] Many factors contributed to this, among which were that half to two-
thirds of the population were organized dissenting sects, the Great
351
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had
alienated many influential laymen with its identification with the Crowns
tyranny, and above all, present in Virginia was a group of political leaders
who were devoted to liberty generally,[91] who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of
the following provision in the Bill of Rights of the states first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence; and therefore, all men are equally entitled to the free
exercise of religion according to the dictates of conscience; and that it is
the mutual duty of all to practice Christian forbearance, love, and charity
towards each other.[92] (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776
abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed
the laws punishing heresy and absence from worship and requiring the
dissenters to contribute to the support of the establishment. [93] But the
dissenters were not satisfied; they not only wanted abolition of support for the
establishment, they opposed the compulsory support of their own religion as
others. As members of the established church would not allow that only they
would pay taxes while the rest did not, the legislature enacted in 1779 a bill
making permanent the establishments loss of its exclusive status and its
power to tax its members; but those who voted for it did so in the hope that a
general assessment bill would be passed. Without the latter, the
establishment would not survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with the county clerk and indicate
which society for the purpose of Religious Worship he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned
over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies.[94] The bill
evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers
of the Christian Religion was introduced requiring all persons to pay a
moderate tax or contribution annually for the support of the Christian religion,
or of some Christian church, denomination or communion of Christians, or for
some form of Christian worship.[95] This likewise aroused the same
opposition to the 1779 bill. The most telling blow against the 1784 bill was the
monumental Memorial and Remonstrance against Religious Assessments
written by Madison and widely distributed before the reconvening of
legislature in the fall of 1785.[96] It stressed natural rights, the
governments lack of jurisdiction over the domain of religion, and the
social contract as the ideological basis of separation while also citing
practical considerations such as loss of population through migration. He
wrote, viz:
Because we hold it for a fundamental and undeniable truth, that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence. The religion, then, of every man, must be left to the conviction
and conscience of every man; and it is the right of every man to
exercise it as these may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the opinions of men, depending
only on the evidence contemplated in their own minds, cannot follow the
dictates of other men; it is unalienable, also, because what is here a right
towards men, is a duty towards the creator. It is the duty of every man to
render the creator such homage, and such only as he believes to be
acceptable to him; this duty is precedent, both in order of time and
degree of obligation, to the claims of civil society. Before any man can
be considered as a member of civil society, he must be considered as a
subject of the governor of the universe; and if a member of civil society,
who enters into any subordinate association, must always do it with a
reservation of his duty to the general authority, much more must every man
who becomes a member of any particular civil society do it with the saving
his allegiance to the universal sovereign.[97] (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the Bill for Establishing
Religious Freedom, and it was finally passed in January 1786. It
provided, viz:
352
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the Holy Author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by coercions
on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be
compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in his
body or goods, nor shall otherwise suffer on account of his religious opinions
or beliefs, but that all men shall be free to profess, and by argument to
maintain, their opinions in matters of religion, and that the same shall in
no wise diminish, enlarge or affect their civil capacities. [98] (emphases
supplied)
This statute forbade any kind of taxation in support of religion and effectually
ended any thought of a general or particular establishment in Virginia.[99] But
the passage of this law was obtained not only because of the influence of the
great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians
and the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious to pull
down the existing state church as they realized that it was impossible for
them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates
of separation[100] grounded on rational, secular arguments and to the
language of natural religion.[101] Influenced by Roger Williams, the Baptists,
on the other hand, assumed that religion was essentially a matter of concern
of the individual and his God, i.e., subjective, spiritual and supernatural,
having no relation with the social order.[102] To them, the Holy Ghost was
sufficient to maintain and direct the Church without governmental assistance
and state-supported religion was contrary ti the spirit of the Gospel. [103] Thus,
separation was necessary.[104] Jeffersons religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First
Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference
with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by restricting its
free exercise or establishing it was implicit in the Constitution of 1787. This
could be deduced from the prohibition of any religious test for federal office in
Article VI of the Constitution and the assumed lack of power of Congress to
act on any subject not expressly mentioned in the Constitution. [105] However,
omission of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution.[106] In the ratifying
conventions of almost every state, some objection was expressed to the
absence of a restriction on the Federal Government as regards legislation on
religion.[107] Thus, in 1791, this restriction was made explicit with the adoption
of the religion clauses in the First Amendment as they are worded to this day,
with the first part usually referred to as the Establishment Clause and the
second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as regards its
exact meaning and the paucity of records in Congress renders it difficult to
ascertain its meaning.[108] Consequently, the jurisprudence in this area is
volatile and fraught with inconsistencies whether within a Court
decision or across decisions.
One source of difficulty is the difference in the context in which the
First Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.[109] Government runs even family planning, sex education, adoption and
foster care programs.[110] Stated otherwise and with some exaggeration,
(w)hereas two centuries ago, in matters of social life which have a significant
moral dimension, government was the handmaid of religion, today religion, in
its social responsibilities, as contrasted with personal faith and collective
worship, is the handmaid of government.[111] With government regulation of
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individual conduct having become more pervasive, inevitably some of those
regulations would reach conduct that for some individuals are religious. As a
result, increasingly, there may be inadvertent collisions between purely
secular government actions and religion clause values.[112]
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of activities
undertaken, and sheer variety of denominations, sects and cults. Churches
run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports
facilities, theme parks, publishing houses and mass media programs. In
these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as a
necessary outgrowth of religious faith as witnessed in pastoral letters on war
and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these developments have
brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children from
exposure to competing values. The result is disagreement over what laws
should require, permit or prohibit;[113] and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just
due, a rigid, wooden interpretation of the religion clauses that is blind to
societal and political realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits religion.
These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
of intent to aid or inhibit religion.[115] The more difficult religion clause cases
involve government action with a secular purpose and general applicability
which incidentally or inadvertently aids or burdens religious exercise. In Free
Exercise Clause cases, these government actions are referred to as those
with burdensome effect on religious exercise even if the government action is
not religiously motivated.[116] Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
protection.[117] Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a burdensome
effect.[118]
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task
for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes.[119] It was in the 1890 case of Davis
v. Beason[120] that the United States Supreme Court first had occasion to
define religion, viz:
The term religion has reference to ones views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. It is often confounded with
the cultus or form of worship of a particular sect, but is distinguishable from
the latter. The First Amendment to the Constitution, in declaring that
Congress shall make no law respecting the establishment of religion, or
forbidding the free exercise thereof, was intended to allow everyone under
the jurisdiction of the United States to entertain such notions respecting his
relations to his Maker and the duties they impose as may be approved by his
judgment and conscience, and to exhibit his sentiments in such form of
worship as he may think proper, not injurious to the equal rights of others,
and to prohibit legislation for the support of any religious tenets, or the modes
of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free
exercise of religion embraces the right to maintain theories of life and of
death and of the hereafter which are rank heresy to followers of the
orthodox faiths.[123] By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism and
Taoism.[124]In 1961, the Court, in Torcaso v. Watkins,[125] expanded the
term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger[126] which involved four men
who claimed conscientious objector status in refusing to serve in the Vietnam
War. One of the four, Seeger, was not a member of any organized religion
opposed to war, but when specifically asked about his belief in a Supreme
Being, Seeger stated that you could call (it) a belief in a Supreme Being or
God. These just do not happen to be the words that I use. Forest Peter,
another one of the four claimed that after considerable meditation and
reflection on values derived from the Western religious and philosophical
tradition, he determined that it would be a violation of his moral code to take
354
human life and that he considered this belief superior to any obligation to the
state. The Court avoided a constitutional question by broadly interpreting not
the Free Exercise Clause, but the statutory definition of religion in the
Universal Military Training and Service Act of 1940 which exempt from
combat anyone who, by reason of religious training and belief, is
conscientiously opposed to participation in war in any form. Speaking for the
Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the
designation God, was merely clarifying the meaning of religious tradition and
belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the test of belief in relation to a
Supreme Being is whether a given belief that is sincere and meaningful
occupies a place in the life of its possessor parallel to the orthodox
belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of
religion in Seeger to include even non-theistic beliefs such as Taoism or
Zen Buddhism. It has been proposed that basically, a creed must meet four
criteria to qualify as religion under the First Amendment. First, there must be
belief in God or some parallel belief that occupies a central place in the
believers life.Second, the religion must involve a moral code transcending
individual belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.[127] Fourth, there must be some associational
ties,[128] although there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind of group or sect
are entitled to the protection of the Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under
the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same
coin.[130] In devoting two clauses to religion, the Founders were stating not
two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
circumstances.[131] The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the
free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of
religious liberty.[132] The end, the goal, and the rationale of the religion
clauses is this liberty.[133] Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are
directed is government-induced homogeneity.[134] The Free Exercise
Clause directly articulates the common objective of the two clauses and
the Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which
government historically had demonstrated a propensity. [135] In other words,
free exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
religion is established.[136] It has even been suggested that the sense of the
First Amendment is captured if it were to read as Congress shall make no
law respecting an establishment of religion or otherwise prohibiting the free
exercise thereof because the fundamental and single purpose of the two
religious clauses is to avoid any infringement on the free exercise of
religions[137] Thus, the Establishment Clause mandates separation of church
and state to protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all [138] because history
has shown that religious fervor conjoined with state power is likely to tolerate
far less religious disagreement and disobedience from those who hold
different beliefs than an enlightened secular state.[139] In the words of the
U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of
our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
religious liberty from the invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause
cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or favored, none commanded
and none inhibited.[141] (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,[142] even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version
of strict neutrality or separation) and benevolent
neutrality or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains, the scope
355
of protection of each clause, and the tests used in religious clause
cases. Most of these cases are cited as authorities in Philippine religion
clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case
of Reynolds v. United States.[143] This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jeffersons Bill Establishing
Religious Freedom which, according to the Court, declares the true
distinction between what properly belongs to the Church and what to the
State.[144] The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against
peace and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties or
subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a necessary part
of religious worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her
dead husband, would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be
allowed. Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself.Government could exist only in name
under such circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed
no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied
by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative of
the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the
legislatures religious preferences. Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any
problem.[147] The Free Exercise Clause thus gave no protection against the
proscription of actions even if considered central to a religion unless the
legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on polygamy
such as the Davis case and Church of Latter Day Saints v. United
States.[149] However, more than a century since Reynolds was decided, the
Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings in
the earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.[150]
356
 The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs[151] and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs and
unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court struck down
a state law requiring as a qualification for public office an oath declaring
belief in the existence of God. The protection also allows courts to look into
the good faith of a person in his belief, but prohibits inquiry into the truth of
a persons religious beliefs. As held in United States v.
Ballard,[153] (h)eresy trials are foreign to the Constitution. Men may believe
what they cannot prove. They may not be put to the proof of their religious
doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,[154] the Court struck down a state law prohibiting door-to-door
solicitation for any religious or charitable cause without prior approval of a
state agency. The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The Court
invalidated the state statute as the prior approval necessary was held to be a
censorship of religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields the tenets of one may seem the rankest error to his
neighbor. To persuade others to his point of view, the pleader, as we know,
resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of
this nation have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of citizens of a
democracy.[155]
Cantwell took a step forward from the protection afforded by
the Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of
society. . . In every case, the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected
freedom. (emphasis supplied)[156]
The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,[157] ruled that police could not prohibit members of the Jehovahs
Witnesses from peaceably and orderly proselytizing on Sundays merely
because other citizens complained. In another case likewise involving the
Jehovahs Witnesses, Niemotko v. Maryland,[158] the Court unanimously
held unconstitutional a city councils denial of a permit to the Jehovahs
Witnesses to use the city park for a public meeting. The city councils refusal
was because of the unsatisfactory answers of the Jehovahs Witnesses to
questions about Catholicism, military service, and other issues. The denial of
the public forum was considered blatant censorship. While protected,
religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain
areas to maintain the safe and orderly flow of pedestrians and vehicular
traffic as held in the case of Heffron v. International Society for Krishna
Consciousness.[159]
The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious
practices. Protection in this realm depends on the character of the action
and the government rationale for regulating the action. [160] The Mormons
religious conduct of polygamy is an example of unconventional religious
practice. As discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case
of Davis again involving Mormons, where the Court held, viz: (c)rime is not
the less odious because sanctioned by what any particular sect may
designate as religion.[161]
The belief-action test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of religiously dictated conduct
would be upheld no matter how central the conduct was to the exercise of
religion and no matter how insignificant was the governments non-religious
regulatory interest so long as the government is proscribing action and not
belief. Thus, the Court abandoned the simplistic belief-action distinction and
instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and governments
inadvertent interference with religion in pursuing some secular
objective.[162] In the 1940 case of Minersville School District v.
Gobitis,[163] the Court upheld a local school board requirement that all public
school students participate in a daily flag salute program, including the
357
Jehovahs Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship of a
graven image. The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses
practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the basis of national
security. Thus, although the Court was already aware of the deliberate-
inadvertent distinction in government interference with religion, it continued to
hold that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no
matter how trivial the states non-religious objectives, and no matter how
many alternative approaches were available to the state to pursue its
objectives with less impact on religion, so long as government was acting in
pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West
Virginia v. Barnette[164] which involved a similar set of facts and issue. The
Court recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of students
to declare a belief. The Court ruled that compulsory unification of opinions
leads only to the unanimity of the graveyard and exempt the students who
were members of the Jehovahs Witnesses from saluting the flag. A close
scrutiny of the case, however, would show that it was decided not on the
issue of religious conduct as the Court said, (n)or does the issue as we see it
turn on ones possession of particular religious views or the sincerity with
which they are held. While religion supplies appellees motive for enduring the
discomforts of making the issue in this case, many citizens who do not share
these religious views hold such a compulsory rite to infringe constitutional
liberty of the individual. (emphasis supplied)[165] The Court pronounced,
however, that, freedoms of speech and of press, of assembly, and of worship
. . . are susceptible only of restriction only to prevent grave and immediate
danger to interests which the state may lawfully protect.[166] The Court
seemed to recognize the extent to which its approach
in Gobitis subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and public
welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to
override religious liberty. But the seeds of this heightened scrutiny would only
grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence. [168] A two-
part balancing test was established in Braunfeld v. Brown[169] where the
Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were alternative ways of achieving the
states interest. He employed a two-part balancing test of validity where
the first step was for plaintiff to show that the regulation placed a real burden
on his religious exercise. Next, the burden would be upheld only if the state
showed that it was pursuing an overriding secular goal by the means which
imposed the least burden on religious practices.[170] The Court found that the
state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this
interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.[171] This test was similar to the two-part
balancing test in Braunfeld,[172] but this latter test stressed that the state
interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellants constitutional challenge, it must
be either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or
because any incidental burden on the free exercise of appellants
religion may be justified by a compelling state interest in the regulation
of a subject within the States constitutional power to regulate. .
. NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation. Thomas v.
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Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315. [174] The Court
found that there was no such compelling state interest to override Sherberts
religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however, did
not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice
placed the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship. This germinal case
of Sherbert firmly established the exemption doctrine, [175] viz:
It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the
Free Exercise Clause in the absence of a compelling state interest - the
highest level of constitutional scrutiny short of a holding of a per
se violation. Thus, the problem posed by the belief-action test and
the deliberate-inadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas
v. Review Board[177] and Hobbie v. Unemployment Appeals
[178]
Division, for example, the Court reiterated the exemption doctrine and
held that in the absence of a compelling justification, a state could not
withhold unemployment compensation from an employee who resigned or
was discharged due to unwillingness to depart from religious practices and
beliefs that conflicted with job requirements.But not every governmental
refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or heightened
scrutiny is applied. In United States v. Lee,[179] for instance, the Court using
strict scrutiny and referring to Thomas, upheld the federal governments
refusal to exempt Amish employers who requested for exemption from
paying social security taxes on wages on the ground of religious beliefs. The
Court held that (b)ecause the broad public interest in maintaining a sound tax
system is of such a high order, religious belief in conflict with the payment of
taxes affords no basis for resisting the tax.[180] It reasoned that unlike
in Sherbert, an exemption would significantly impair governments
achievement of its objective - the fiscal vitality of the social security system;
mandatory participation is indispensable to attain this objective. The Court
noted that if an exemption were made, it would be hard to justify not allowing
a similar exemption from general federal taxes where the taxpayer argues
that his religious beliefs require him to reduce or eliminate his payments so
that he will not contribute to the governments war-related activities, for
example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that
collided with religious practices. Although the members of the Court often
disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in
favor of the free exercise of religion.[181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder[182] where the Court upheld the religious practice of the Old Order
Amish faith over the states compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority,
held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does
not deny the free exercise of religious belief by its requirement, or that
there is a state interest of sufficient magnitude to override the interest
claiming protection under the Free Exercise Clause. Long before there
was general acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests of
admittedly high social importance. . .
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The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It is
true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power
to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations of
general applicability. . . .This case, therefore, does not become easier
because respondents were convicted for their actions in refusing to send
their children to the public high school; in this context belief and action
cannot be neatly confined in logic-tight compartments. . . [183]
The onset of the 1990s, however, saw a major setback in the
protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,[184] the
sharply divided Rehnquist Court dramatically departed from the heightened
scrutiny and compelling justification approach and imposed serious limits on
the scope of protection of religious freedom afforded by the First
Amendment. In this case, the well-established practice of the Native
American Church, a sect outside the Judeo-Christian mainstream of
American religion, came in conflict with the states interest in prohibiting the
use of illicit drugs. Oregons controlled substances statute made the
possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social
service agency in Oregon. Along with other church members, Smith and
Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony
practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as job-related
misconduct. They applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were discharged
for job-related misconduct. Justice Scalia, writing for the majority, ruled that if
prohibiting the exercise of religion . . . is . . . merely the incidental effect
of a generally applicable and otherwise valid law, the First Amendment
has not been offended. In other words, the Free Exercise Clause would be
offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in
effect, equated Oregons drug prohibition law with the anti-polygamy statute
in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The governments ability to enforce
generally applicable prohibitions of socially harmful conduct, like its ability to
carry out other aspects of public policy, cannot depend on measuring the
effects of a governmental action on a religious objectors spiritual
development. . . .To make an individuals obligation to obey such a law
contingent upon the laws coincidence with his religious beliefs except
where the States interest is compelling - permitting him, by virtue of his
beliefs, to become a law unto himself, . . . - contradicts both
constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the
majoritys rejection of the compelling governmental interest test was the most
controversial part of the decision.Although she concurred in the result that
the Free Exercise Clause had not been offended, she sharply criticized the
majority opinion as a dramatic departure from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nations fundamental
commitment to religious liberty. This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from
the Courts decision. Justice OConnor asserted that (t)he compelling state
interest test effectuates the First Amendments command that religious
liberty is an independent liberty, that it occupies a preferred position,
and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling
government interest of the highest order. Justice Blackmun registered a
separate dissenting opinion, joined by Justices Brennan and Marshall. He
charged the majority with mischaracterizing precedents and overturning. . .
settled law concerning the Religion Clauses of our Constitution. He pointed
out that the Native American Church restricted and supervised the
sacramental use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use.He also observed that
Oregon had not attempted to prosecute Smith or Black, or any Native
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Americans, for that matter, for the sacramental use of peyote. In conclusion,
he said that Oregons interest in enforcing its drug laws against religious use
of peyote (was) not sufficiently compelling to outweigh respondents right to
the free exercise of their religion.
The Court went back to the Reynolds and Gobitis doctrine
in Smith. The Courts standard in Smith virtually eliminated the requirement
that the government justify with a compelling state interest the burdens on
religious exercise imposed by laws neutral toward religion. The Smith
doctrine is highly unsatisfactory in several respects and has been criticized
as exhibiting a shallow understanding of free exercise
jurisprudence.[185] First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. A deliberate
regulatory interference with minority religious freedom is the worst form of
this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an
interference with the minoritys religious freedom. If the regulation had instead
restricted the majoritys religious practice, the majoritarian legislative process
would in all probability have modified or rejected the regulation. Thus, the
imposition of the political majoritys non-religious objectives at the expense of
the minoritys religious interests implements the majoritys religious viewpoint
at the expense of the minoritys. Second, government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering
the political culture where direct and deliberate regulatory imposition of
religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could
not afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on
religion.[186]
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of mainstream
religious groups against smaller, more peripheral groups who lack legislative
clout,[187] contrary to the original theory of the First
Amendment.[188] Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions
and Smith virtually wiped out their judicial recourse for exemption. [189] Thus,
the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing
the Free Exercise Clause to disappear.[190] So much was the uproar that a
majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all
levels from substantially burdening a persons free exercise of religion, even if
such burden resulted from a generally applicable rule, unless the government
could demonstrate a compelling state interest and the rule constituted the
least restrictive means of furthering that interest.[191] RFRA, in effect, sought
to overturn the substance of the Smith ruling and restore the status
quo prior to Smith. Three years after the RFRA was enacted, however, the
Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne
v. Flores.[192] The Court ruled that RFRA contradicts vital principles
necessary to maintain separation of powers and the federal balance. It
emphasized the primacy of its role as interpreter of the Constitution and
unequivocally rejected, on broad institutional grounds, a direct congressional
challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah[193] which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean by East African slaves. An
ordinance made it a crime to unnecessarily kill, torment, torture, or mutilate
an animal in public or private ritual or ceremony not for the primary purpose
of food consumption. The ordinance came as a response to the local concern
over the sacrificial practices of the Santeria. Justice Kennedy, writing for the
majority, carefully pointed out that the questioned ordinance was not a
generally applicable criminal prohibition, but instead singled out practitioners
of the Santeria in that it forbade animal slaughter only insofar as it took place
within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to non-
religious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be accorded
protection as shown in Wisconsin.[194]
B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the
1947 case of Everson v. Board of Education.[195] Prior cases had made
passing reference to the Establishment Clause[196] and raised establishment
questions but were decided on other grounds.[197] It was in the Everson
case that the U.S. Supreme Court adopted Jeffersons metaphor of a wall of
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separation between church and state as encapsulating the meaning of the
Establishment Clause. The often and loosely used phrase separation of
church and state does not appear in the U.S. Constitution. It became part of
U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist
Association in narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that
the legislative powers of the Government reach actions only, and not
opinions, I contemplate with sovereign reverence that act of the whole
American people which declared that their Legislature should make no law
respecting an establishment of religion or prohibiting the free exercise
thereof, thus building a wall of separation between Church and
State.[199] (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as this
does from an acknowledged leader of the advocates of the measure, it may
be accepted almost as an authoritative declaration of the scope and effect of
the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools and
prayer in public schools.[201] In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to and
from Catholic schools. The reimbursement was part of a general program
under which all parents of children in public schools and nonprofit private
schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided Court,
justified the reimbursements on the child benefit theory, i.e., that the school
board was merely furthering the states legitimate interest in getting children
regardless of their religion, safely and expeditiously to and from accredited
schools. The Court, after narrating the history of the First Amendment in
Virginia, interpreted the Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a person
to go to or remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for entertaining
or professing religious beliefs or disbeliefs, for church attendance or non-
attendance. No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion. Neither a state
nor the Federal Government can, openly or secretly participate in the affairs
of any religious organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by law was
intended to erect a wall of separation between Church and State.[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That
wall must be kept high and impregnable. We could not approve the slightest
breach. New Jersey has not breached it here.[203]
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
and laid down a three-pronged test in Lemon v. Kurtzman[204] in determining
the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing
publicly funded reimbursement for the cost of teachers salaries, textbooks,
and instructional materials in secular subjects and a Rhode Island statute
providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the following
criteria to pass scrutiny under the Establishment Clause. First, the statute
must have a secular legislative purpose; second, its primary or
principal effect must be one that neither advances nor inhibits religion
(Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88
S Ct 1923 [1968]); finally, the statute must not foster an excessive
entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668,
25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)[205] Using
this test, the Court held that the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering excessive entanglement
between government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. Few decisions of the
modern Supreme Court have been criticized more intensely than the school
prayer decisions of the early 1960s.[206] In the 1962 case of Engel v.
Vitale,[207] the Court invalidated a New York Board of Regents policy that
established the voluntary recitation of a brief generic prayer by children in the
public schools at the start of each school day. The majority opinion written by
Justice Black stated that in this country it is no part of the business of
government to compose official prayers for any group of the American people
to recite as part of a religious program carried on by government. In fact,
history shows that this very practice of establishing governmentally
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composed prayers for religious services was one of the reasons that caused
many of the early colonists to leave England and seek religious freedom in
America. The Court called to mind that the first and most immediate purpose
of the Establishment Clause rested on the belief that a union of government
and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School
District v. Schempp[208] and Murray v. Curlett[209] where the Court struck
down the practice of Bible reading and the recitation of the Lords prayer in
the Pennsylvania and Maryland schools. The Court held that to withstand the
strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from
a recognition of the teachings of history that powerful sects or groups might
bring about a fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official support of the State
of Federal Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a further reason
for neutrality is found in the Free Exercise Clause, which recognizes the
value of religious training, teaching and observance and, more particularly,
the right of every person to freely choose his own course with reference
thereto, free of any compulsion from the state.[210]
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.[211] On several occasions,
constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has
in fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where the
Court struck down an Alabama law that required public school students to
observe a moment of silence for the purpose of meditation or voluntary
prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within public
school premises and instructional time were declared offensive of the
Establishment Clause in the 1948 case of McCollum v. Board of
Education,[213] decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer
classes in religious instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents signed printed
cards requesting that their children be permitted to attend. The classes were
taught in three separate groups by Protestant teachers, Catholic priests and
a Jewish rabbi and were held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school authorities but
they were subject to the approval and supervision of the superintendent of
schools.Students who did not choose to take religious instruction were
required to leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from their
secular study for religious instruction were required to attend the religious
classes. The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a prohibited
use of tax-established and tax-supported public school system to aid
religious groups spread their faith. The Court rejected the claim that the
Establishment Clause only prohibited government preference of one religion
over another and not an impartial governmental assistance of all
religions. In Zorach v. Clauson,[214] however, the Court upheld released time
programs allowing students in public schools to leave campus upon parental
permission to attend religious services while other students attended study
hall. Justice Douglas, the writer of the opinion, stressed that (t)he First
Amendment does not require that in every and all respects there shall be a
separation of Church and State. The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and
the force of the public school was used to promote that instruction. . . We
follow the McCollum case. But we cannot expand it to cover the present
released time program unless separation of Church and State means that
public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill
of Rights such a philosophy of hostility to religion.[215]
In the area of government displays or affirmations of belief, the Court
has given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,[216] the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the obvious
religious underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this day of rest
happened to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions and
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people with no religion regard Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate
Nebraskas policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers expense. The majority
opinion did not rely on the Lemon test and instead drew heavily from
history and the need for accommodation of popular religious
beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions with
prayer has become the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances, an
establishment of religion or a step toward establishment; it is simply
a tolerable acknowledgement of beliefs widely held among the people
of this country. As Justice Douglas observed, (w)e are a religious
people whose institutions presuppose a Supreme Being. (Zorach c.
Clauson, 343 US 306, 313 [1952])[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
inevitably be embarrassed if it were to attempt to strike down a practice that
occurs in nearly every legislature in the United States, including the U.S.
Congress.[220] That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a city-
sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history
and the fact that the creche had become a neutral harbinger of the
holiday season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt
from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New
York City Tax Commissions grant of property tax exemptions to churches as
allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of religious
worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these
groups as beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest.[223]
The Court added that the exemption was not establishing religion but sparing
the exercise of religion from the burden of property taxation levied on private
profit institutions[224] and preventing excessive entanglement between state
and religion. At the same time, the Court acknowledged the long-standing
practice of religious tax exemption and the Courts traditional deference to
legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for the
government to exercise . . . this kind of benevolent neutrality toward
churches and religious exercise generally so long as none was favored
over others and none suffered interference.[225] (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon. Court rulings contrary to or making nuances of the above cases may
be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister
to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-
93[1983]), but unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38,
56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees work schedules to their sabbath observances
(Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath
leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior (Bowen v.
Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of Education
v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433
US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board
364
of Education, 330 US 1, 17 [1947]), but not from school to a museum on a
field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and Religious
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-
related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-
80 [1973]). It is a mess.[226]
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation
(in the form of strict separation or the tamer version of strict neutrality
or separation) and benevolent neutrality or accommodation. The weight
of current authority, judicial and in terms of sheer volume, appears to lie with
the separationists, strict or tame.[227] But the accommodationists have also
attracted a number of influential scholars and jurists.[228] The two standards
producing two streams of jurisprudence branch out respectively from the
history of the First Amendment in England and the American colonies and
climaxing in Virginia as narrated in this opinion and officially acknowledged
by the Court in Everson, and from American societal life which reveres
religion and practices age-old religious traditions. Stated
otherwise, separation - strict or tame - protects the principle of church-state
separation with a rigid reading of the principle while benevolent
neutrality protects religious realities, tradition and established practice with a
flexible reading of the principle.[229] The latter also appeals to history in
support of its position, viz:
The opposing school of thought argues that the First Congress intended
to allow government support of religion, at least as long as that support
did not discriminate in favor of one particular religion. . . the Supreme
Court has overlooked many important pieces of history. Madison, for
example, was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency,
and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover,
while president, Jefferson allowed federal support of religious missions to the
Indians. . . And so, concludes one recent book, there is no support in the
Congressional records that either the First Congress, which framed the First
Amendment, or its principal author and sponsor, James Madison, intended
that Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public documents goes
the other way.[230] (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of
benevolent neutrality that gives room for accommodation, less than
twenty-four hours after Congress adopted the First Amendments prohibition
on laws respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. Only two members of Congress
opposed the resolution, one on the ground that the move was a mimicking of
European customs, where they made a mere mockery of thanksgivings, the
other on establishment clause concerns. Nevertheless, the salutary effect of
thanksgivings throughout Western history was acknowledged and the motion
was passed without further recorded discussion.[231] Thus,
accommodationists also go back to the framers to ascertain the meaning of
the First Amendment, but prefer to focus on acts rather than words. Contrary
to the claim of separationists that rationalism pervaded America in the late
19thcentury and that America was less specifically Christian during those
years than at any other time before or since,[232] accommodationaists claim
that American citizens at the time of the Constitutions origins were a
remarkably religious people in particularly Christian terms. [233]
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the wall of
separation. The strict separtionist view holds that Jefferson meant the wall
of separation to protect the state from the church. Jefferson was a man of the
Enlightenment Era of the eighteenth century, characterized by the rationalism
and anticlericalism of that philosophic bent.[234] He has often been regarded
as espousing Deism or the rationalistic belief in a natural religion and natural
law divorced from its medieval connection with divine law, and instead
adhering to a secular belief in a universal harmony. [235] Thus, according to
this Jeffersonian view, the Establishment Clause being meant to protect the
state from the church, the states hostility towards religion allows no
interaction between the two.[236] In fact, when Jefferson became President,
he refused to proclaim fast or thanksgiving days on the ground that these are
religious exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute barrier to
formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on
believers.[238] Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict wall of separation is
necessary.[239] Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts of
aid, both direct and indirect, flow to religion from government in return for
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huge amounts of mostly indirect aid from religion. Thus, strict separationists
are caught in an awkward position of claiming a constitutional principle that
has never existed and is never likely to.[240]
A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court, showing the
Courts tendency to press relentlessly towards a more secular society. [241] It
finds basis in the Everson case where the Court declared that Jeffersons
wall of separation encapsulated the meaning of the First Amendment but at
the same time held that the First Amendment requires the state to
be neutral in its relations with groups of religious believers and non-
believers; it does not require the state to be their adversary.State power
is no more to be used so as to handicap religions than it is to favor
them. (emphasis supplied)[242] While the strict neutrality approach is not
hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit,
much less require, accommodation of secular programs to religious
belief.[243] Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses
of the first amendment is that the freedom and separation clauses should be
read as a single precept that government cannot utilize religion as a standard
for action or inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden.[244]
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted
this policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects.[245]
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
public schools as in Engel and Schempp.[246] The McCollum
case prohibiting optional religious instruction within public school premises
during regular class hours also demonstrates strict neutrality. In these
education cases, the Court refused to uphold the government action as they
were based not on a secular but on a religious purpose. Strict neutrality was
also used in Reynolds and Smith which both held that if government acts in
pursuit of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not been
offended.However, if the strict neutrality standard is applied in interpreting
the Establishment Clause, it could de facto void religious expression in the
Free Exercise Clause. As pointed out by Justice Goldberg in his concurring
opinion in Schempp, strict neutrality could lead to a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the religious
which is prohibited by the Constitution.[247] Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion
but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme Court has
rejected strict neutrality, permitting and sometimes mandating religious
classifications.[248]
The separationist approach, whether strict or tame, is caught in a dilemma
because while the Jeffersonian wall of separation captures the spirit of the
American ideal of church-state separation, in real life church and state are
not and cannot be totally separate.[249] This is all the more true in
contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points. [250]
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the wall of separation associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian wall
that is meant to protect the state from the church; instead, the wall is meant
to protect the church from the state,[251] i.e., the garden of the church must be
walled in for its own protection from the wilderness of the world[252] with its
potential for corrupting those values so necessary to religious
commitment.[253] Howe called this the theological or evangelical rationale for
church-state separation while the wall espoused by enlightened statesmen
such as Jefferson and Madison, was a political rationale seeking to protect
politics from intrusions by the church.[254] But it has been asserted that this
contrast between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as a
conflict between religious and secular (political); the religious style was
biblical and evangelical in character while the secular style was grounded in
natural religion, more generic and philosophical in its religious orientation.[255]
366
 The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious
liberty. Williams view would therefore allow for interaction between church
and state, but is strict with regard to state action which would threaten the
integrity of religious commitment.[256] His conception of separation is not total
such that it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality.[257] This theological view of
separation is found in Williams writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between
the garden of the church and the wilderness of the world, God hath ever
broke down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His
garden and paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has
been said by the Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise
to exist without sponsorship and without interference.[259] (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection
to religious groups. Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help me God in our
courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United
States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . . When the
state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the
best of our traditions. For it then respects the religious nature of our
people and accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw
its weight against efforts to widen their effective scope of religious
influence.[261] (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus there
is no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not,
which is why there is no human society without one or more ways of
performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate
religion(s) in their ideology.[262] As one sociologist wrote:
It is widely held by students of society that there are certain functional
prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most
writers list religion among the functional prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: There is no known human
society without something which modern social scientists would classify as a
religionReligion is as much a human universal as language.[264]
Benevolent neutrality thus recognizes that religion plays an important
role in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of In God We Trust on American
currency, the recognition of America as one nation under God in the official
367
pledge of allegiance to the flag, the Supreme Courts time-honored practice of
opening oral argument with the invocation God save the United States and
this honorable Court, and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant
denomination to lead representatives in prayer.[265] These practices clearly
show the preference for one theological viewpoint -the existence of and
potential for intervention by a god - over the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the building of
low-cost housing and in other forms of poor relief, in the treatment of
alcoholism and drug addiction, in foreign aid and other government activities
with strong moral dimension.[266] The persistence of these de
facto establishments are in large part explained by the fact that throughout
history, the evangelical theory of separation, i.e., Williams wall, has
demanded respect for these de facto establishments.[267] But the
separationists have a different explanation. To characterize these as de
jure establishments according to the principle of the Jeffersonian wall, the
U.S. Supreme Court, the many dissenting and concurring opinions explain
some of these practices as de minimis instances of government
endorsement or as historic governmental practices that have largely lost their
religious significance or at least have proven not to lead the government into
further involvement with religion.[268]
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take
religion specifically into account not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their
religion without hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a persons or institutions religion. As
Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without state involvement
an atmosphere in which voluntary religious exercise may
flourish.[269] (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for the
conflict between the temporal and spiritual authority in which the minority
finds itself.[270]
Accommodation is distinguished from strict neutrality in that the
latter holds that government should base public policy solely on
secular considerations, without regard to the religious consequences
of its actions. The debate between accommodation and strict neutrality is at
base a question of means: Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of religious blindness -
keeping government aloof from religious practices and issues? An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other hand, the
strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy
even at the cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take
the accommodationist position rather than the strict neutrality
position. First, the accommodationist interpretation is most consistent
with the language of the First Amendment. The religion clauses contain
two parallel provisions, both specifically directed at religion. The government
may not establish religion and neither may government prohibit it. Taken
together, the religion clauses can be read most plausibly as warding off two
equal and opposite threats to religious freedom - government action that
promotes the (political) majoritys favored brand of religion and government
action that impedes religious practices not favored by the
majority. The substantive endin view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other hand,
strict neutrality interprets the religion clauses as allowing government to do
whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses violate
the religion clauses, so to speak, since the religion clauses single out religion
by name for special protection. Second, the accommodationist position
best achieves the purposes of the First Amendment. The principle
underlying the First Amendment is that freedom to carry out ones duties to
a Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Although inalienable, it is necessarily limited by the
rights of others, including the public right of peace and good
order. Nevertheless it is a substantive right and not merely a privilege against
discriminatory legislation. The accomplishment of the purpose of the First
Amendment requires more than the religion blindness of strict neutrality. With
the pervasiveness of government regulation, conflicts with religious practices
become frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government must
make special provisions to preserve a degree of independence for religious
entities for them to carry out their religious missions according to their
religious beliefs. Otherwise, religion will become just like other secular
368
entities subject to pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to protect
adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility
to the minority. In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come into conflict
with the religious scruples of those holding different world views, even in the
absence of a deliberate intent to interfere with religious practice. At times,
this effect is unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement
of public purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not
always be the case when the religious practice is either unknown at the time
of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths
that are less able to protect themselves in the political
arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different
faiths in a pluralistic nation. Without accommodation, many otherwise
beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in construction
areas can effectively exclude Amish and Sikhs from the workplace, or
employment anti-discrimination laws can conflict with the Roman Catholic
male priesthood, among others. Exemptions from such laws are easy to craft
and administer and contribute much to promoting religious freedom at little
cost to public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment
of the population or dispensing with legislation it considers beneficial
to society as a whole. Exemption seems manifestly more reasonable
than either of the alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds
of accommodation: those which are constitutionally compelled, i.e., required
by the Free Exercise Clause; and those which are discretionary or legislative,
i.e., and those not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause.[273] Some Justices of the Supreme
Court have also used the term accommodation to describe government
actions that acknowledge or express prevailing religious sentiments of the
community such as display of a religious symbol on public property or the
delivery of a prayer at public ceremonial events. [274] Stated otherwise,
using benevolent neutrality as a standard could result to three situations
of accommodation:those where accommodation is required, those where
it is permissible, and those where it is prohibited. In the first situation,
accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for religious
freedom. Contrary to the Smith declaration that free exercise exemptions are
intentional government advancement, these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious adherent
to be left alone. The state must create exceptions to laws of general
applicability when these laws threaten religious convictions or practices in the
absence of a compelling state interest.[275] By allowing such exemptions, the
Free Exercise Clause does not give believers the right or privilege to choose
for themselves to override socially-prescribed decision; it allows them to obey
spiritual rather than temporal authority[276] for those who seriously invoke the
Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom
is a matter less of rights than duties; more precisely, it is a matter of rights
derived from duties. To deny a person or a community the right to act upon
such a duty can be justified only by appeal to a yet more compelling duty. Of
course, those denied will usually not find the reason for the denial
compelling. Because they may turn out to be right about the duty in question,
and because, even if they are wrong, religion bears witness to that which
transcends the political order, such denials should be rare and painfully
reluctant.[277]
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling
their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of
Sherbert.[278]In these cases of burdensome effect, the modern approach of
the Court has been to apply strict scrutiny, i.e., to declare the burden as
permissible, the Court requires the state to demonstrate that the regulation
which burdens the religious exercise pursues a particularly important or
compelling government goal through the least restrictive means. If the states
objective could be served as well or almost as well by granting an exemption
to those whose religious beliefs are burdened by the regulation, such an
exemption must be given.[279] This approach of the Court on burdensome
effect was only applied since the 1960s. Prior to this time, the Court took the
separationist view that as long as the state was acting in pursuit of non-
religious ends and regulating conduct rather than pure religious beliefs, the
Free Exercise Clause did not pose a hindrance such as in Reynolds.[280] In
369
the second situation where accommodation is permissible, the state may, but
is not required to, accommodate religious interests. The Walz case illustrates
this situation where the Court upheld the constitutionality of tax exemption
given by New York to church properties, but did not rule that the state was
required to provide tax exemptions. The Court declared that (t)he limits of
permissible state accommodation to religion are by no means co-extensive
with the noninterference mandated by the Free Exercise Clause. [281] The
Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public
schools and Marsh allowing payment of legislative chaplains from public
funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid. [282] An
example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school
premises.[283] In effect, the last situation would arrive at a strict neutrality
conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimants beliefs must
be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free
Exercise Clause; secular beliefs, however sincere and conscientious, do not
suffice.[284]
In other words, a three-step process (also referred to as the two-step
balancing process supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in this
process. First, (h)as the statute or government action created a burden on
the free exercise of religion? The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because the
Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is ascertained
to avoid the mere claim of religious beliefs to escape a mandatory
regulation. As evidence of sincerity, the U.S. Supreme Court has considered
historical evidence as in Wisconsin where the Amish people had held a
long-standing objection to enrolling their children in ninth and tenth grades in
public high schools. In another case, Dobkin v. District of Columbia,[285] the
Court denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of sincerity, this is
not as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular
case.[286] Aside from the sincerity, the court may look into the centrality of
those beliefs, assessing them not on an objective basis but in terms of the
opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish peoples convictions against
becoming involved in public high schools were central to their way of life and
faith. Similarly, in Sherbert, the Court concluded that the prohibition against
Saturday work was a cardinal principle.[287] Professor Lupu puts to task the
person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh
custom, individual conscience should count for more than personal
convenience, and theological principle should be of greater significance than
institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individuals religious tradition -
reinforces sincerity. Most importantly, the law of free exercise must be
inclusive and expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of fundamentalist
creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state interest
to justify this infringement of religious liberty? In this step, the government
has to establish that its purposes are legitimate for the state and that
they are compelling. Government must do more than assert the objectives
at risk if exemption is given; it must precisely show how and to what extent
those objectives will be undermined if exemptions are granted.[289] The
person claiming religious freedom, on the other hand, will endeavor to show
that the interest is not legitimate or that the purpose, although legitimate, is
not compelling compared to infringement of religious liberty. This step
involves balancing, i.e., weighing the interest of the state against religious
370
liberty to determine which is more compelling under the particular set of
facts. The greater the states interests, the more central the religious belief
would have to be to overcome it. In assessing the state interest, the court will
have to determine the importance of the secular interest and the extent to
which that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by
granting the exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to show that the means in which it
is achieving its legitimate state objective is the least intrusive means, i.e., it
has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties. In Cantwell, for example, the Court invalidated
the license requirement for the door-to-door solicitation as it was a forbidden
burden on religious liberty, noting that less drastic means of insuring peace
and tranquility existed. As a whole, in carrying out the compelling state
interest test, the Court should give careful attention to context, both religious
and regulatory, to achieve refined judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society. [293]
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars exercised
civil powers.[294] Catholics alone enjoyed the right of engaging in public
ceremonies of worship.[295] Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in
our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of
the offenses in chapter six of the Penal Code entitled Crimes against
Religion and Worship referred to crimes against the state religion. [296] The
coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment
of separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the
United States and Spain on December 10, 1898, the American guarantee of
religious freedom had been extended to the Philippines. The Treaty provided
that the inhabitants of the territories over which Spain relinquishes or cedes
her sovereignty shall be secured in the free exercise of religion. [297] Even the
Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos Constitution of the
Philippine Republic under General Emilio Aguinaldo. It provided that the
State recognizes the liberty and equality of all religion (de todos los cultos) in
the same manner as the separation of the Church and State. But the Malolos
Constitution and government was short-lived as the Americans took over the
reigns of government.[298]
With the Philippines under the American regime, President McKinley
issued Instructions to the Second Philippine Commission, the body created
to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no minister
of religion shall be forced upon the community or upon any citizen of the
Islands, that, on the other hand, no minister of religion shall be interfered with
or molested in following his calling.[299]
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation
between State and Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the Instructions,
the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof, and that free exercise and enjoyment of religious
worship, without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902
caused the complete separation of church and state, and the abolition of all
371
special privileges and all restrictions theretofor conferred or imposed upon
any particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it
with a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. No public money or property shall
ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-
McDuffie Law of 1934 which guaranteed independence to the Philippines
and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the
grant of independence. The law prescribed that (a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious
belief or mode of worship.[303]
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of
the Committee on Bill of Rights acknowledged that (i)t was the Treaty of
Paris of December 10, 1898, which first introduced religious toleration in our
country. President McKinleys Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law. [304] In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This provision, borrowed from the Jones Law, was readily approved by the
Convention.[305] In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because the
principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted by
the great statesmen and jurists that vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the Bill of
Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This time, however, the General Provisions in Article XV added in Section 15
that (t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill of
Rights in Article III, Section 5.[307]Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles
and State Policies.
Considering the American origin of the Philippine religion clauses and
the intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in explaining
the nature, extent and limitations of these clauses. However, a close scrutiny
of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on
this subject is for the most part, benevolent neutrality which gives
room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of religion. Religion is derived from
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the Middle English religioun, from Old French religion, from Latin religio,
vaguely referring to a bond between man and the gods.[308] This pre-
Christian term for the cult and rituals of pagan Rome was first Christianized
in the Latin translation of the Bible.[309] While the U.S. Supreme Court has
had to take up the challenge of defining the parameters and contours of
religion to determine whether a non-theistic belief or act is covered by the
religion clauses, this Court has not been confronted with the same issue. In
Philippine jurisprudence, religion, for purposes of the religion clauses, has
thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay
v. Ruiz[310] involving the Establishment Clause, defined religion as a
profession of faith to an active power that binds and elevates man to his
Creator. Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,[311] a case involving the Free
Exercise clause. The latter also cited the American case of Davis in defining
religion, viz: (i)t has reference to ones views of his relations to His Creator
and to the obligations they impose of reverence to His being and character
and obedience to His Will. The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience
and prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of ones religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups on
their intrinsic merits and not on the support of the state. [312]
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education[313] is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by
ones imagination and thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may appear
to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into speech
and action.
Religious speech comes within the pale of the Free Exercise Clause
as illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in
the course of its ministry. The defendant City of Manila required plaintiff to
secure a mayors permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the citys
ordinances. Plaintiff argued that this amounted to religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of
the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear
and present danger of any substantive evil which the State has the right
to prevent. (Tanada and Fernando on the Constitution of the Philippines,
vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Courts maiden unequivocal affirmation of the clear and
present danger rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.[315] The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of the
case, i.e., it did not identify the secular value the government regulation
sought to protect, whether the religious speech posed a clear and present
danger to this or other secular value protected by government, or whether
there was danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present danger,
and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances
were not applicable to plaintiff as it was not engaged in the business or
occupation of selling said merchandise for profit. To add, the Court,
citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of
dissemination of religious beliefs as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment. Thus,
in American Bible Society, the clear and present danger rule was laid down
but it was not clearly applied.
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 In the much later case of Tolentino v. Secretary of Finance,[317] also
involving the sale of religious books, the Court distinguished the American
Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible
Society challenged the validity of the registration provisions of the Value
Added Tax (VAT) Law as a prior restraint. The Court held, however, that the
fixed amount of registration fee was not imposed for the exercise of a
privilege like a license tax which American Bible Society ruled was violative
of religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a
central feature of the VAT system. Citing Jimmy Swaggart Ministries v.
Board of Equalization,[318] the Court also declared prefatorily that the Free
Exercise of Religion Clause does not prohibit imposing a generally applicable
sales and use tax on the sale of religious materials by a religious
organization. In the Courts resolution of the motion for reconsideration of
the Tolentino decision, the Court noted that the burden on religious
freedom caused by the tax was just similar to any other economic imposition
that might make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of
Gerona v. Secretary of Education,[319] this time
involving conduct expressive of religious belief colliding with a rule
prescribed in accordance with law. In this case, petitioners were members of
the Jehovahs Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265 which
prescribed compulsory flag ceremonies in all public schools. In violation of
the Order, petitioners children refused to salute the Philippine flag, sing the
national anthem, or recite the patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious
belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions
of society and with the law, then the former must yield to the latter. The
Government steps in and either restrains said exercise or even prosecutes
the one exercising it. (emphasis supplied)[320]
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or
sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations
and meaning to be given to a certain ritual or ceremony as there are religious
groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or
ceremony.[321]
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the
national anthem as it speaks only of love of country, patriotism, liberty and
the glory of suffering and dying for it. The Court upheld the questioned Order
and the expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the
flag, national unity and patriotism, they can hardly afford to differ, for these
are matters in which they are mutually and vitally interested, for to them, they
mean national existence and survival as a nation or national extinction. [322]
In support of its ruling, the Court cited Justice Frankfurters dissent in
the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable and
non-discriminatory laws, rules and regulations promulgated by competent
authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are:
(1) it is incumbent upon the Court to determine whether a certain ritual is
religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when
a law of general applicability (in this case the Department Order)
incidentally burdens the exercise of ones religion, ones right to
religious freedom cannot justify exemption from compliance with the
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law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v.
Elizalde Rope Workers Union.[326] In this unanimously decided en
banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits
the affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers
Union which had with the company a closed shop provision pursuant to
Republic Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the application and
coverage of a closed shop agreement employees belonging to any religious
sect which prohibits affiliation of their members with any labor
organization. Victoriano resigned from the union after Republic Act No. 3350
took effect. The union notified the company of Victorianos resignation, which
in turn notified Victoriano that unless he could make a satisfactory
arrangement with the union, the company would be constrained to dismiss
him from the service. Victoriano sought to enjoin the company and the union
from dismissing him.The court having granted the injunction, the union came
to this Court on questions of law, among which was whether Republic Act
No. 3350 was unconstitutional for impairing the obligation of contracts and for
granting an exemption offensive of the Establishment Clause. With respect to
the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right
and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60
S.Ct. 146) and has a preferred position in the hierarchy of
values. Contractual rights, therefore, must yield to freedom of religion. It is
only where unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement
of religious freedom may be justified, and only to the smallest extent
necessary.[327] (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of ones chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common
good. (footnote omitted). Any legislation whose effect or purpose is to
impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden
may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the states secular goals, the statute is
valid despite its indirect burden on religious observance, unless the
state can accomplish its purpose without imposing such burden.
(Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis
supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. It also cited Board
of Education v. Allen,[330] which held that in order to withstand the strictures
of constitutional prohibition, a statute must have a secular legislative purpose
and a primary effect that neither advances nor inhibits religion. Using these
criteria in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by averting
that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest
means of livelihood, by reason of union security agreements. . . . The primary
effects of the exemption from closed shop agreements in favor of members
of religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force
of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent
economic insecurity due to unemployment.[331]
The Court stressed that (a)lthough the exemption may benefit those
who are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved
the exercise of religion by certain persons of a burden imposed by
union security agreements which Congress itself also imposed through
the Industrial Peace Act. The Court concluded the issue of exemption by
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citing Sherbert which laid down the rule that when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some
compelling state interest intervenes. The Court then abruptly added that (i)n
the instant case, We see no compelling state interest to withhold
exemption.[333]
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly limited. First, the
Court mentioned the test of immediate and grave danger to the security and
welfare of the community and infringement of religious freedom only to the
smallest extent necessary to justify limitation of religious
freedom. Second, religious exercise may be indirectly burdened by a general
law which has for its purpose and effect the advancement of the states
secular goals, provided that there is no other means by which the state can
accomplish this purpose without imposing such burden. Third, the Court
referred to the compelling state interest test which grants exemptions when
general laws conflict with religious exercise, unless a compelling state
interest intervenes.
It is worth noting, however, that the first two tests were mentioned only
for the purpose of highlighting the importance of the protection of religious
freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on
religious freedom caused by another law, i.e, the Industrial Peace Act
providing for union shop agreements. The first two tests were only mentioned
in Victoriano but were not applied by the Court to the facts and issues of the
case. The third, the compelling state interest test was employed by the Court
to determine whether the exemption provided by Republic Act No. 3350 was
not unconstitutional. It upheld the exemption, stating that there was no
compelling state interest to strike it down. However, after careful
consideration of the Sherbert case from which Victoriano borrowed this
test, the inevitable conclusion is that the compelling state interest test was
not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious freedom in seeking
exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment
benefits. It was the appellees, members of the South Carolina Employment
Commission, a government agency, who propounded the state interest to
justify overriding Sherberts claim of religious freedom. The U.S. Supreme
Court, considering Sherberts and the Commissions arguments, found that
the state interest was not sufficiently compelling to prevail over Sherberts
free exercise claim. This situation did not obtain in the Victoriano
case where it was the government itself, through Congress, which provided
the exemption in Republic Act No. 3350 to allow Victorianos exercise of
religion. Thus, the government could not argue against the exemption on the
basis of a compelling state interest as it would be arguing against itself; while
Victoriano would not seek exemption from the questioned law to allow the
free exercose of religion as the law in fact provides such an exemption. In
sum, although Victoriano involved a religious belief and conduct, it did not
involve a free exercise issue where the Free Exercise Clause is invoked to
exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,[334] Anucension v.
National Labor Union, et al.,[335] and Gonzales, et al. v. Central Azucarera
de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church within the
Malacanang security area to pray for an end to violence when they were
barred by the police. Invoking their constitutional freedom of religious worship
and locomotion, they came to the Court on a petition for mandamus to allow
them to enter and pray inside the St. Jude Chapel. The Court was divided on
the issue. The slim majority of six recognized their freedom of religion but
noted their absence of good faith and concluded that they were using their
religious liberty to express their opposition to the
government. Citing Cantwell, the Court distinguished between freedom to
believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute, but in the nature of things, the
second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of
belief or choice of their religion, but only in the manner by which they had
attempted to translate the same to action. This curtailment is in accord
with the pronouncement of this Court in Gerona v. Secretary of Education
(106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either
restrains said exercise or even prosecutes the one exercising it. (italics
supplied)
376
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of the
government, which petitioners mass action would certainly disrupt [338] and
denied the petition. Thus, without considering the tests mentioned
in Victoriano, German went back to the Gerona rule that religious
freedom will not be upheld if it clashes with the established institutions
of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in
the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983])
should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of our
Bill of Rights. (footnote omitted) Freedom of worship, alongside with
freedom of expression and speech and peaceable assembly along with
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary
- even more so than on the other departments - rests the grave and delicate
responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with
what has been so felicitously termed by Justice Holmes as the sovereign
prerogative of judgment. Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-
570)
2. In the free exercise of such preferred rights, there is to be no prior restraint
although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health
or any other legitimate public interest, that the State has a right (and
duty) to prevent (Idem, at pp. 560-561).[339] (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-
Bases Coalition, from the City of Manila to hold a peaceful march and rally
from the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his
dissent which had overtones of petitioner German and his companions right
to assemble and petition the government for redress of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.[341] A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona, this case involved several
Jehovahs Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of
the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the grave and imminent
danger test laid down in Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion of the
school population will shake up our part of the globe and suddenly produce a
nation untaught and uninculcated in and unimbued with reverence for the
flag, patriotism, love of country and admiration for national heroes (Gerona v.
Secretary of Education, 106 Phil. 224). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from the public
schools where they may study the Constitution, the democratic way of life
and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation or profession and
be taught the virtues of patriotism, respect for human rights, appreciation of
national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will
bring about the very situation that this Court has feared in Gerona. Forcing a
small religious group, through the iron hand of the law, to participate in a
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ceremony that violates their religious beliefs, will hardly be conducive to love
of country or respect for duly constituted authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained through
coercion- is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).[344]
Towards the end of the decision, the Court also cited the Victoriano
case and its use of the compelling state interest test in according exemption
to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83
S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs
Witnesses with regard to the observance of the flag ceremony out of respect
for their religious beliefs, however bizarre those beliefs may seem to
others.[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship, speech
or assembly. Although, it might be observed that the Court faintly implied
that Ebralinag also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate in the flag
ceremony is alien to the conscience of the present generation of Filipinos
who cut their teeth on the Bill of Rights which guarantees their rights to free
speech and the free exercise of religious profession and worship; the Court
then stated in a footnote that the flag salute, singing the national anthem and
reciting the patriotic pledge are all forms of utterances.[346]
The compelling state interest test was not fully applied by the Court
in Ebralinag. In the Solicitor Generals consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that (t)he States compelling interests being pursued by the
DECs lawful regulations in question do not warrant exemption of the school
children of the Jehovahs Witnesses from the flag salute ceremonies on the
basis of their own self-perceived religious convictions.[347] The Court,
however, referred to the test only towards the end of the decision and did not
even mention what the Solicitor General argued as the compelling state
interest, much less did the Court explain why the interest was not sufficiently
compelling to override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al.[348] Although there was a dissent with
respect to the applicability of the clear and present danger test in this case,
the majority opinion in unequivocal terms applied the clear and present
danger test to religious speech. This case involved the television program,
Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner
Iglesia ni Cristos submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified
these as X or not for public viewing on the ground that they offend and
constitute an attack against other religions which is expressly prohibited by
law.Invoking religious freedom, petitioner alleged that the Board acted
without jurisdiction or with grave abuse of discretion in requiring it to submit
the VTR tapes of its television program and x-rating them. While upholding
the Boards power to review the Iglesia television show, the Court was
emphatic about the preferred status of religious freedom. Quoting
Justice Cruz commentary on the constitution, the Court held that freedom to
believe is absolute but freedom to act on ones belief, where it affects the
public, is subject to the authority of the state. The commentary quoted
Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz:
(t)he constitutional provision on religious freedom terminated disabilities, it
did not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.[349]Nevertheless, the Court
was quick to add the criteria by which the state can regulate the exercise of
religious freedom, that is, when the exercise will bring about the clear and
present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare.[350]
378
 In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioners freedom of speech
as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions
may criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid
down in the American Bible Society case and the test of immediate and
grave danger with infringement only to the smallest extent necessary to avoid
danger in Victoriano and pointed out that the reviewing board failed to apply
the clear and present danger test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of
harm the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on
ground.
Replying to the challenge on the applicability of the clear and present danger
test to the case, the Court acknowledged the permutations that the test has
undergone, but stressed that the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that
endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply
the clear and present danger test to the case at bar which concerns speech
that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb
terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as holding
that religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens ones religious exercise. It also reiterated the clear
and present danger test in American Bible Society and the grave and
imminent danger in Victoriano, but this time clearly justifying its applicability
and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious
exercise where it is justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the
values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the human
conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism because
compulsory faith lacks religious efficacy. Compelled religion is a contradiction
in terms.[354] As a social value, it means that the growth of a religious sect as
a social force must come from the voluntary support of its members because
of the belief that both spiritual and secular society will benefit if religions are
allowed to compete on their own intrinsic merit without benefit of official
patronage. Such voluntarism cannot be achieved unless the political process
is insulated from religion and unless religion is insulated from
politics.[355] Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith
dissension.[356]
The neutrality principle was applied in the first significant non-
establishment case under the 1935 Constitution. In the 1937 case of Aglipay
v. Ruiz,[357] the Philippine Independent Church challenged the issuance and
sale of postage stamps commemorating the Thirty-Third International
Eucharistic Congress of the Catholic Church on the ground that the
constitutional prohibition against the use of public money for religious
purposes has been violated. It appears that the Director of Posts issued the
questioned stamps under the provisions of Act No. 4052[358] which
appropriated a sum for the cost of plates and printing of postage stamps with
new designs and authorized the Director of Posts to dispose of the sum in a
manner and frequency advantageous to the Government. The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President. Justice Laurel, speaking for the Court, took
pains explaining religious freedom and the role of religion in society, and in
conclusion, found no constitutional infirmity in the issuance and sale of the
stamps, viz:
379
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that
the union of church and state is prejudicial to both, for occasions might
arise when the state will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims . . . It is
almost trite to say now that in this country we enjoy both religious and civil
freedom. All the officers of the Government, from the highest to the lowest, in
taking their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with
its inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in
so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy, they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations. . .[359]
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may
be said to be inseparably linked with an event of a religious character, the
resulting propaganda, if any, received by the Roman Catholic Church, was
not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply because
of incidental results, more or less religious in character, if the purpose
had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)[360] (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it
incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces v.
Estenzo.[361] Although the Court found that the separation of church and
state was not at issue as the controversy was over who should have custody
of a saints image, it nevertheless made pronouncements on the separation of
church and state along the same line as the Aglipay ruling. The Court held
that there was nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered to the barrio resolutions of
the barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an ingrained tradition in rural
communities that relieves the monotony and drudgery of the lives of the
masses. Corollarily, the Court found nothing illegal about any activity
intended to facilitate the worship of the patron saint such as the acquisition
and display of his image bought with funds obtained through solicitation from
the barrio residents. The Court pointed out that the image of the patron saint
was purchased in connection with the celebration of the barrio fiesta
honoring the patron saint, San Vicente Ferrer, and not for the purpose of
favoring any religion nor interfering with religious matters or the religious
beliefs of the barrio residents. Citing the Aglipay ruling, the Court
declared, viz:
Not every governmental activity which involves the expenditure of public
funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and
banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.[362] which
presented a novel issue involving the religion clauses. In this case, Section
2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics
from appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue. Seven
members of the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective
and considered the law a religious test offensive of the constitution. They
were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente,
stated, viz: The challenged Administrative Code provision, certainly insofar
380
as it declares ineligible ecclesiastics to any elective or appointive office, is,
on its face, inconsistent with the religious freedom guaranteed by the
Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive
weight. What was there involved was the validity of a provision in the
Maryland Constitution prescribing that no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State, other
than a declaration of belief in the existence of God ***. Such a constitutional
requirement was assailed as contrary to the First Amendment of the United
States Constitution by an appointee to the office of notary public in Maryland,
who was refused a commission as he would not declare a belief in God. He
failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have
been otherwise. As emphatically declared by Justice Black: this Maryland
religious test for public office unconstitutionally invades the appellants
freedom of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God
that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied
upon by petitioner and an express constitutional mandate.[364]
On the other hand, the prevailing five other members of the Court -
Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino -
approached the case from a non-establishment perspective and upheld the
law as a safeguard against the constant threat of union of church and state
that has marked Philippine history. Justice Makasiar stated: To allow an
ecclesiastic to head the executive department of a municipality is to permit
the erosion of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion which the
constitutional provision seeks to enforce and protect. Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative Code
and declared respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals[365] is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court plainly violates the law
it professes to administer, or is in conflict with the law of the land, it will not
be followed by the civil courts. . . In some instances, not only have the civil
courts the right to inquire into the jurisdiction of the religious tribunals and the
regularity of their procedure, but they have subjected their decisions to the
test of fairness or to the test furnished by the constitution and the law of the
church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,[368] declared that the rule in property controversies
within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is that
the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within the
congregation, then that should be followed. Applying these rules, Fonacier
lost the case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church
those allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts.[369]
VIII. Free Exercise Clause vis--vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a
command not to establish religion and a command not to inhibit its practice;
this tension between the religion clauses often leaves the courts with a
choice between competing values in religion cases.[370]
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of
381
ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was the
case in the Free Exercise Clause case of Sherbert where the U.S. Supreme
Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the
Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in
the face of religious differences, and does not represent that involvement
of religious with secular institutions which it is the object of the Establishment
Clause to forestall.[371] (emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where the
appellant argued that the exemption granted to religious organizations, in
effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case
of establishing religion but merely upholding the Free Exercise Clause by
sparing the exercise of religion from the burden of property taxation levied on
private profit institutions. Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion
clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other. [372]
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely
to relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements.[373] (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: (t)here are certain practices, conceivably violative of
the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First
Amendment.
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the actual
cases that come to the Court. In cases involving both the Establishment
Clause and the Free Exercise Clause, the two clauses should be balanced
against each other. The courts must review all the relevant facts and
determine whether there is a sufficiently strong free exercise right that should
prevail over the Establishment Clause problem. In the United States, it has
been proposed that in balancing, the free exercise claim must be given an
edge not only because of abundant historical evidence in the colonial and
early national period of the United States that the free exercise principle long
antedated any broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a citizens
free exercise of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the Establishment
Clause in cases involving tension between the two religion clauses, the
courts convey a message of hostility to the religion that in that case cannot
be freely exercised.[374] American professor of constitutional law, Laurence
Tribe, similarly suggests that the free exercise principle should be dominant
in any conflict with the anti-establishment principle. This dominance would be
the result of commitment to religious tolerance instead of thwarting at all
costs even the faintest appearance of establishment.[375] In our jurisdiction,
Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
clauses does not suffice. Modern society is characterized by the expanding
regulatory arm of government that reaches a variety of areas of human
conduct and an expanding concept of religion. To adequately meet the
demands of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and resolution
of the tension. This, in fact, has been the approach followed by the Philippine
Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
382
 The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in
the 1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to
adopt its historical background, nature, extent and limitations. At that time,
there were not too many religion clause cases in the United States as the
U.S. Supreme Court decided an Establishment Clause issue only in the
1947 Everson case. The Free Exercise Clause cases were also scarce
then. Over the years, however, with the expanding reach of government
regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S.
exponentially increased. With this increase came an expansion of the
interpretation of the religion clauses, at times reinforcing prevailing case law,
at other times modifying it, and still at other times creating contradictions so
that two main streams of jurisprudence had become identifiable. The first
stream employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change in the
landscape of U.S. religion clause jurisprudence, the Philippines continued to
adopt the 1935 Constitution religion clauses in the 1973 Constitution and
later, the 1987 Constitution.Philippine jurisprudence and commentaries
on the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when a
religion clause case comes before the Court, a separationist approach or
a benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports
the separationistapproach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses history. As a result, in a
case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would
not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to
all of them full force and effect.[377] From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent
neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of
construing the constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church property
in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively
for religious, charitable, or educational purposes shall be exempt from
taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative
Code provided for a similar exemption. To the same effect, the Tydings-
McDuffie Law contained a limitation on the taxing power of the Philippine
government during the Commonwealth period.[379] The original draft of the
Constitution placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by the
Tydings-McDuffie Law. However, in order to have a constitutional guarantee
for such an exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that if
churches, convents [rectories or parsonages] and their accessories are
always necessary for facilitating the exercise of such [religious] freedom, it
would also be natural that their existence be also guaranteed by exempting
them from taxation.[380] The amendment was readily approved with 83
affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify
this kind of exemption to withstand Establishment Clause scrutiny by stating
that church property was not singled out but was exempt along with property
owned by non-profit, quasi-public corporations because the state upheld the
secular policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and
in the public interest. The Court also stated that the exemption was meant to
relieve the burden on free exercise imposed by property taxation. At the
same time, however, the Court acknowledged that the exemption was an
exercise of benevolent neutrality to accommodate a long-standing tradition
of exemption. With the inclusion of the church property tax exemption in the
body of the 1935 Constitution and not merely as an ordinance appended to
the Constitution, the benevolent neutrality referred to in the Walz case was
383
given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the exercise of
religious liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution or system of religion, for the use, benefit
or support of any priest, preacher, ministers or other religious teacher or
dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3
of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or dignitary as such[382]
In the deliberations of this draft provision, an amendment was proposed to
strike down everything after church denomination.[383] The proposal intended
to imitate the silence of the U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of the silence of the Malolos
Constitution to restore the situation under the Malolos Constitution and prior
to the Jones Law, when chaplains of the revolutionary army received pay
from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations
were made to chaplains of the national penitentiary and the Auditor General
upheld its validity on the basis of a similar United States practice. But it was
also pointed out that the U.S. Constitution did not contain a prohibition on
appropriations similar to the Jones Law.[384] To settle the question on the
constitutionality of payment of salaries of religious officers in certain
government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and
approved. The provision garnered 74 affirmative votes against 34 negative
votes.[385] As pointed out in the deliberations, the U.S. Constitution does not
provide for this exemption. However, the U.S. Supreme Court in Cruz v.
Beto, apparently taking a benevolent neutrality approach, implicitly approved
the state of Texas payment of prison chaplains salaries as reasonably
necessary to permit inmates to practice their religion. Also, in the Marsh
case, the U.S. Supreme Court upheld the long-standing tradition of
beginning legislative sessions with prayers offered by legislative chaplains
retained at taxpayers expense. The constitutional provision exempting
religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of
benevolent neutrality in Philippine jurisdiction.While the provision prohibiting
aid to religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality is contemplated
in the Philippine Establishment Clause, the 1935 Constitution provides for
optional religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as
now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established
in the town where a public school is situated, either in person or by a
designated teacher of religion, to teach religion for one-half hour three times
a week, in the school building, to those public-school pupils whose parents or
guardians desire it and express their desire therefor in writing filed with the
principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first held
that the teaching of religion in public schools should be prohibited as this was
a violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes. The second
favored the proposed optional religious instruction as authorized by the
Administrative Code and recognized that the actual practice of allowing
religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the
schools.[386] The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the
option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional
teaching of religion in public schools, despite the opposition to the provision
on the ground of separation of church and state.[387] As in the provisions on
church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional
384
religious instruction in public schools. In fact, in the McCollum case, the
Court, using strict neutrality, prohibited this kind of religious instruction
where the religion teachers would conduct class within the school
premises. The constitutional provision on optional religious instruction shows
that Philippine jurisdiction rejects the strict neutrality approach which does
not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the
Filipino people implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and develop
the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime
of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution. A preamble is a key to open the mind of the authors of the
constitution as to the evil sought to be prevented and the objects sought to
be accomplished by the provisions thereof.[388] There was no debate on the
inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel
noted that when the Filipino people implored the aid of Divine Providence,
(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and
nations.[389] The 1935 Constitutions religion clauses, understood alongside
the other provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively for
religious or charitable purposes. Parallel to Article VI, Section 23(3) of the
1935 Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV,
Section 8(8) with the modification that optional religious instruction shall be
conducted as may be provided by law and not as now authorized by law as
stated in the 1935 Constitution. The 1973 counterpart, however, made
explicit in the constitution that the religious instruction in public elementary
and high schools shall be done (a)t the option expressed in writing by the
parents or guardians, and without cost to them and the government. With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article XV,
Section 15 of the General Provisions of the 1973 Constitution this provision
made its maiden appearance: (t)he separation of church and state shall be
inviolable. The 1973 Constitution retained the portion of the preamble
imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the absolute separation of
Church and State as enunciated in the Everson case and reiterated
in Schempp - i.e., neutrality not only as between one religion and another
but even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committees answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the elevating influence of
religion in human society and the Filipinos imploring of Divine Providence in
the 1935 Constitution, the sub-committee asserted that the state may not
prefer or aid one religion over another, but may aid all religions equally or the
cause of religion in general.[391] Among the position papers submitted to the
Committee on Church on State was a background paper for reconsideration
of the religion provisions of the constitution by Fr. Bernas, S.J. He stated
therein that the Philippine Constitution is not hostile to religion and in fact
recognizes the value of religion and accommodates religious
values.[392] Stated otherwise, the Establishment Clause contemplates not a
strict neutrality but benevolent neutrality. While the Committee introduced the
provision on separation of church and state in the General Provisions of the
1973 Constitution, this was nothing new as according to it, this principle was
implied in the 1935 Constitution even in the absence of a similar
provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification in
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing
the government to spend public money for purposes which might have
religious connections but which would benefit the public generally. Citing
the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted within the
regular class hours and without additional cost to the government. There
were protracted debates on what additional cost meant, i.e., cost over and
above what is needed for normal operations such as wear and tear,
electricity, janitorial services,[395] and when during the day instruction would
be conducted.[396] In deliberating on the phrase within the regular class
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hours, Commissioner Aquino expressed her reservations to this proposal as
this would violate the time-honored principle of separation of church and
state.She cited the McCullom case where religious instruction during regular
school hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and state
in Surach v. Clauson where the U.S. Supreme Court allowed only release
time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to
the rule on non-establishment of religion, because if it were not
necessary to make this exception for purposes of allowing religious
instruction, then we could just drop the amendment. But, as a matter of fact,
this is necessary because we are trying to introduce something here
which is contrary to American practices.[397](emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State Policies
in Article II, Section 6. In opting to retain the wording of the provision, Fr.
Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The
separation of Church and State is inviolable, is almost a useless statement;
but at the same time it is a harmless statement. Hence, I am willing to
tolerate it there, because, in the end, if we look at the jurisprudence on
Church and State, arguments are based not on the statement of separation
of church and state but on the non-establishment clause in the Bill of
Rights.[398]
The preamble changed Divine Providence in the 1935 and 1973
Constitutions to Almighty God. There was considerable debate on whether to
use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to
reference to a personal God.[399] God of History, Lord of History and God
were also proposed, but the phrase Almighty God prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not
hostile nor indifferent to religion;[400] its wall of separation is not a wall of
hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal without
doubt that the Filipino people, in adopting these constitutions, did not intend
to erect a high and impregnable wall of separation between the church and
state.[402]The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in
interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the religious
nature of the Filipino people and the elevating influence of religion in society;
at the same time, it acknowledges that government must pursue its secular
goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It allows these
breaches in the wall of separation to uphold religious liberty, which after all is
the integral purpose of the religion clauses. The case at bar involves this first
type of accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation
mandate benevolent neutrality, benevolent neutrality does not mean
that the Court ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and
that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss
a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the
protection afforded by the religion clauses of the Constitution, i.e., that
in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion
clauses justify it. While the Court cannot adopt a doctrinal formulation that
can eliminate the difficult questions of judgment in determining the degree of
burden on religious practice or importance of the state interest or the
sufficiency of the means adopted by the state to pursue its interest, the Court
can set a doctrine on the ideal towards which religious clause jurisprudence
should be directed.[403] We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
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which this approach is directed is the protection of religious liberty not
only for a minority, however small- not only for a majority, however
large- but for each of us to the greatest extent possible within flexible
constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has
also been recognized in Philippine jurisprudence, albeit not expressly called
benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but
acknowledged the Constitutional provisions on exemption from tax of church
property, salary of religious officers in government institutions, and optional
religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays
legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and
denominations, but also acknowledged that government participation in long-
standing traditions which have acquired a social character - the barrio fiesta
is a socio-religious affair - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from closed shop
provisions of members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a violation of
the Establishment Clause but was only meant to relieve the burden on free
exercise of religion. In Ebralinag,members of the Jehovahs Witnesses were
exempt from saluting the flag as required by law, on the basis not of a statute
granting exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form
and origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own,
breathing the air of benevolent neutrality and accommodation. Thus, the
wall of separation in Philippine jurisdiction is not as high and impregnable as
the wall created by the U.S. Supreme Court in Everson.[404] While the
religion clauses are a unique American experiment which understandably
came about as a result of Americas English background and colonization, the
life that these clauses have taken in this jurisdiction is the Philippines own
experiment, reflective of the Filipinos own national soul, history and
tradition. After all, the life of the law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do
this, a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher interest
of the state. To do otherwise is self-defeating for unlimited freedom would
erode order in the state and foment anarchy, eventually destroying the very
state its members established to protect their freedoms. The very purpose of
the social contract by which people establish the state is for the state to
protect their liberties; for this purpose, they give up a portion of these
freedoms - including the natural right to free exercise - to the state. It was
certainly not the intention of the authors of the constitution that free exercise
could be used to countenance actions that would undo the constitutional
order that guarantees free exercise.[405]
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the clear and present danger test but did not
employ it.Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the compelling state interest test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the grave
and immediate danger test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the clear and present danger test in
the maiden case of American Bible Society. Not surprisingly, all the
cases which employed the clear and present danger or grave and
immediate danger test involved, in one form or another, religious
speech as this test is often used in cases on freedom of expression. On
the other hand, the Geronaand German cases set the rule that religious
freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the grave and immediate danger
test. Victoriano was the only case that employed the compelling state
interest test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible
Society, Ebralinag and Iglesia ni Cristo where the clear and present
danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German
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doctrine, aside from having been overruled, is not congruent with
the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The compelling state interest test is
proper where conduct is involved for the whole gamut of human
conduct has different effects on the states interests: some effects may
be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom
as this is a fundamental right that enjoys a preferred position in the hierarchy
of rights - the most inalienable and sacred of all human rights, in the words of
Jefferson.[406] This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher
sovereignty,[407] thus the Filipinos implore the aid of Almighty God in order to
build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. [408] In determining
which shall prevail between the states interest and religious liberty,
reasonableness shall be the guide.[409] The compelling state interest serves
the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the compelling state interest test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty
will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of disgraceful and immoral conduct for
which he/she may be held administratively liable.[410] In these cases, there
was not one dissent to the majoritys ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their
conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts of
the 1975 case of De Dios v. Alejo[411]and the 1999 case of Maguad v. De
Guzman,[412] are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit
relation, there is no proof of scandal or offense to the moral sensibilities of
the community in which the respondent and the partner live and work, and
the government employee is capacitated to marry while the partner is not
capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for disgraceful and immoral
conduct and only considered the foregoing circumstances to mitigate the
penalty. Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and immoral
conduct for which a government employee is held liable. Nor is there an
allegation that the norms of morality with respect to illicit relations have
shifted towards leniency from the time these precedent cases were
decided. The Court finds that there is no such error or shift, thus we find no
reason to deviate from these rulings that such illicit relationship constitutes
disgraceful and immoral conduct punishable under the Civil Service Law.
Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively
liable. However, there is a distinguishing factor that sets the case at bar apart
from the cited precedents, i.e., as a defense, respondent invokes religious
freedom since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the
churchs religious beliefs and practices. This distinguishing factor compels the
Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of morality
than on the religion clauses in deciding the instant case. A discussion on
morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and
why. Any definition of morality beyond Socrates simple formulation is bound
to offend one or another of the many rival theories regarding what it means to
live morally.[413] The answer to the question of how we ought to live
necessarily considers that man does not live in isolation, but in society.Devlin
posits that a society is held together by a community of ideas, made up not
only of political ideas but also of ideas about the manner its members should
behave and govern their lives. The latter are their morals; they constitute the
public morality. Each member of society has ideas about what is good and
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what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society
on common agreement, the agreement collapses, the society will
disintegrate. Society is kept together by the invisible bonds of common
thought so that if the bonds are too loose, the members would drift apart. A
common morality is part of the bondage and the bondage is part of the price
of society; and mankind, which needs society, must pay its price. [414] This
design is parallel with the social contract in the realm of politics: people give
up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement
about the powers of government and their liberties and embody this
agreement in a constitution, hence referred to as the fundamental law of the
land. A complete break of this fundamental agreement such as by revolution
destroys the old order and creates a new one.[415] Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the manner a
societys members should behave and govern their lives would disintegrate
society. Thus, society is justified in taking steps to preserve its moral code by
law as it does to preserve its government and other essential
institutions.[416] From these propositions of Devlin, one cannot conclude that
Devlin negates diversity in society for he is merely saying that in the midst of
this diversity, there should nevertheless be a fundamental agreement about
good and evil that will govern how people in a society ought to live. His
propositions, in fact, presuppose diversity hence the need to come to an
agreement; his position also allows for change of morality from time to time
which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of society,
laws that may be amended from time to time. Harts argument propounded in
Mr. Justice Vitugs separate opinion that, Devlins view of people living in a
single society as having common moral foundation (is) overly simplistic
because societies have always been diverse fails to recognize the necessity
of Devlins proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this
democratic governance.[417] Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median
groups.[418] Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of religious
freedom not only for a minority, however small- not only for a majority,
however large- but for each of us -- the majority imposes upon itself a self-
denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.[419] In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries
out this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the preservation of
religious liberty. That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless. It is
not surprising that Smith is much criticized for it blocks the judicial recourse
of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, (t)he law is the witness and deposit of our moral life. [420] In a
liberal democracy, the law reflects social morality over a period of
time.[421] Occasionally though, a disproportionate political influence might
cause a law to be enacted at odds with public morality or legislature might fail
to repeal laws embodying outdated traditional moral views. [422] Law has also
been defined as something men create in their best moments to protect
themselves in their worst moments.[423] Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a
given time. After all, the life of the law...has been experience, in the words of
Justice Holmes. This is not to say though that law is all of morality. Law deals
with the minimum standards of human conduct while morality is concerned
with the maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher moral
standards set by society for him to be called a morally upright
person.[424] Law also serves as a helpful starting point for thinking about a
proper or ideal public morality for a society[425] in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship
between law and public morality. We held that under the utilitarian theory, the
protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which
are detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society. This disapprobation is
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inevitable to the extent that morality is generally founded and built upon a
certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation:
the method of punishment is in reality the amount of punishment.[427]Stated
otherwise, there are certain standards of behavior or moral principles which
society requires to be observed and these form the bases of criminal
law. Their breach is an offense not only against the person injured but
against society as a whole.[428] Thus, even if all involved in the misdeed are
consenting parties, such as in the case at bar, the injury done is to the public
morals and the public interest in the moral order.[429] Mr. Justice Vitug
expresses concern on this point in his separate opinion. He observes that
certain immoral acts which appear private and not harmful to society such as
sexual congress between a man and a prostitute, though consensual and
private, and with no injured third party, remains illegal in this country. His
opinion asks whether these laws on private morality are justified or they
constitute impingement on ones freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondents
conduct, which constitutes concubinage,[430] is private in the sense that there
is no injured party or the offended spouse consents to the concubinage, the
inescapable fact is that the legislature has taken concubinage out of the
sphere of private morals. The legislature included concubinage as a crime
under the Revised Penal Code and the constitutionality of this law is not
being raised in the case at bar. In the definition of the crime of concubinage,
consent of the injured party, i.e., the legal spouse, does not alter or negate
the crime unlike in rape[431] where consent of the supposed victim negates
the crime. If at all, the consent or pardon of the offended spouse in
concubinage negates the prosecution of the action, [432] but does not alter the
legislatures characterization of the act as a moral disapprobation punishable
by law. The separate opinion states that, (t)he ponencia has taken pains to
distinguish between secular and private morality, and reached the conclusion
that the law, as an instrument of the secular State should only concern itself
with secular morality. The Court does not draw this distinction in the case at
bar. The distinction relevant to the case is not, as averred and discussed by
the separate opinion, between secular and private morality, but between
public and secular morality on the one hand, and religious morality on the
other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary
Title of the New Civil Code, dealing with Human Relations, provide for the
recognition of the wrong and the concomitant punishment in the form of
damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due and observe honesty and
good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate
the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers
of moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every
good law draws its breath of life from morals, from those principles which
are written with words of fire in the conscience of man. If this premise is
admitted, then the proposed rule is a prudent earnest of justice in the face of
the impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its
ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting
to every legal system that enduring quality which ought to be one of its
superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social
order than that a person may with impunity cause damage to his fellow-men
so long as he does not break any law of the State, though he may be defying
the most sacred postulates of morality. What is more, the victim loses faith in
the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826
of the German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from
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a persons views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will, in
accordance with this Courts definition of religion in American Bible
Society citing Davis. Religion also dictates how we ought to live for the
nature of religion is not just to know, but often, to act in accordance with
mans views of his relations to His Creator. [434] But the Establishment Clause
puts a negative bar against establishment of this morality arising from one
religion or the other, and implies the affirmative establishment of a civil order
for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the war of all sects against all; the
establishment of a secular public moral order is the social contract produced
by religious truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or
immoral in the Code of Professional Responsibility for lawyers [436], or public
morals in the Revised Penal Code,[437]or morals in the New Civil Code,[438] or
moral character in the Constitution,[439] the distinction between public and
secular morality on the one hand, and religious morality, on the other, should
be kept in mind.[440] The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms.[441] Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a compelled religion, anathema to religious freedom. Likewise,
if government based its actions upon religious beliefs, it would tacitly approve
or endorse that belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are second-class
citizens.Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality. [442]
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because it
is detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered
a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with
a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven.[443] Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny
of the religion clauses. Otherwise, if a law has an apparent secular purpose
but upon closer examination shows a discriminatory and prohibitory religious
purpose, the law will be struck down for being offensive of the religion
clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance prohibiting animal sacrifice of the
Santeria.Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitutions religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although
the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not
offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . . moral laws are justified only to
the extent that they directly or indirectly serve to protect the interests of the
larger society. It is only where their rigid application would serve to obliterate
the value which society seeks to uphold, or defeat the purpose for which they
are enacted would, a departure be justified. In religion clause parlance, the
separate opinion holds that laws of general applicability governing morals
should have a secular purpose of directly or indirectly protecting the interests
of the state. If the strict application of these laws (which are the Civil Service
Law and the laws on marriage) would erode the secular purposes of the law
(which the separate opinion identifies as upholding the sanctity of marriage
and the family), then in a benevolent neutrality framework,
an accommodation of the unconventional religious belief and practice
(which the separate opinion holds should be respected on the ground of
freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration
Pledging Faithfulness that makes the union binding and honorable before
God and men, is required by the Free Exercise Clause. The separate opinion
then makes a preliminary discussion of the values society seeks to protect in
adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and
391
evidence in relation thereto presented in the
OCA. The accommodation approach in the case at bar would also require a
similar discussion of these values and presentation of evidence before the
OCA by the state that seeks to protect its interest on marriage and opposes
the accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed -
albeit not exclusively - in the law, on the one hand, and religious morality, on
the other, is important because the jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court makes
in the case at bar should be understood only in this realm where it has
authority. More concretely, should the Court declare respondents conduct as
immoral and hold her administratively liable, the Court will be holding that in
the realm of public morality, her conduct is reprehensible or there are state
interests overriding her religious freedom. For as long as her conduct is
being judged within this realm, she will be accountable to the state. But in so
ruling, the Court does not and cannot say that her conduct should be made
reprehensible in the realm of her church where it is presently sanctioned and
that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the
Court declare her conduct permissible, the Court will be holding that under
her unique circumstances, public morality is not offended or that upholding
her religious freedom is an interest higher than upholding public morality thus
her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches which
do not allow respondents conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and
therefore members of these churches are not answerable for immorality to
their Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that courts cannot
inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court
declared that matters dealing with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a churchare unquestionably
ecclesiastical matters which are outside the province of the civil
courts.[444] But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious
clauses, the social contract and the constitutional order are designed in such
a way that when religious belief flows into speech and conduct that step out
of the religious sphere and overlap with the secular and public realm, the
state has the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The
states inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American
history narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase disgraceful and immoral
conduct for which a government employee may be held administratively
liable. The line is not easy to draw for it is like a line that divides land and
sea, a coastline of irregularities and indentations. [445] But the case at bar
does not require us to comprehensively delineate between those immoral
acts for which one may be held administratively liable and those to which
administrative liability does not attach. We need not concern ourselves in this
case therefore whether laziness, gluttony, vanity, selfishness, avarice and
cowardice are immoral acts which constitute grounds for administrative
liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these
observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the law
is the witness and deposit of our moral life, then the rule is not true; in fact,
that there are exceptions only affirms the truth of the rule. Likewise, the
observation that morality is relative in different jurisdictions only affirms the
truth that there is morality in a particular jurisdiction; without, however,
discounting the truth that underneath the moral relativism are certain moral
absolutes such as respect for life and truth-telling, without which no society
will survive. Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both
immoral and illegal. Lest the Court inappropriately engage in the impossible
task of prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion
of Mme. Justice Ynares-Santiago groped for standards of morality and stated
that the ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards but did not articulate how these
standards are to be ascertained. Instead, it held that, (f)or those in the
service of the Government, provisions of law and court precedents . . . have
to be considered. It identified the Civil Service Law and the laws on adultery
and concubinage as laws which respondents conduct has offended and cited
a string of precedents where a government employee was found guilty of
committing a disgraceful and immoral conduct for maintaining illicit relations
and was thereby penalized. As stated above, there is no dispute that under
settled jurisprudence, respondents conduct constitutes disgraceful and
392
immoral conduct. However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar
invokes. Those cited cases cannot therefore serve as precedents in settling
the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United
States[446] in laying down the standard of morality, viz: (w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondents concept of morality. The law provides the standard; the offense
is complete if respondent intended to perform, and did in fact perform, the act
which it condemns. The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of any
woman or girl for the purpose of prostitution or debauchery, or for any other
immoral purpose.[447] The resolution of that case hinged on the interpretation
of the phrase immoral purpose. The U.S. Supreme Court held that the
petitioner Mormons act of transporting at least one plural wife whether for the
purpose of cohabiting with her, or for the purpose of aiding another member
of their Mormon church in such a project, was covered by the phrase immoral
purpose. In so ruling, the Court relied on Reynolds which held that the
Mormons practice of polygamy, in spite of their defense of religious freedom,
was odious among the northern and western nations of Europe, [448] a return
to barbarism,[449] contrary to the spirit of Christianity and of the civilization
which Christianity has produced in the Western world,[450] and thus
punishable by law.
The Cleveland standard, however, does not throw light to the issue in
the case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically odious or barbaric do not apply in the Philippines
where Muslims, by law, are allowed to practice polygamy. Unlike
in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that
the defense of religious freedom of a member of the Jehovahs Witnesses
under the same circumstances as respondent will not prevail over the laws
on adultery, concubinage or some other law. We cannot summarily conclude
therefore that her conduct is likewise so odious and barbaric as to be
immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more
on determining the applicable moral standards and less on religious freedom,
Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents
plea of religious freedom and disposed of this defense by stating that (a)
clear and present danger of a substantive evil, destructive to public morals, is
a ground for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in
this case is the tearing down of morality, good order, and discipline in the
judiciary. However, the foregoing discussion has shown that the clear and
present danger test that is usually employed in cases involving freedom of
expression is not appropriate to the case at bar which involves purely
religious conduct. The dissent also cites Reynolds in supporting its
conclusion that respondent is guilty of disgraceful and immoral
conduct. The Reynolds ruling, however, was reached with a strict neutrality
approach, which is not the approach contemplated by the Philippine
constitution. As discussed above, Philippine jurisdiction adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality does not reflect the constitutional intent of employing benevolent
neutrality in interpreting the Philippine religion clauses. His dissent avers
that respondent should be held administratively liable not for disgraceful and
immoral conduct but conduct prejudicial to the best interest of the service as
she is a necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of conduct prejudicial to the best interest of the service. In
addition, there is no evidence of the alleged prejudice to the best interest of
the service. Most importantly, the dissent concludes that respondents plea of
religious freedom cannot prevail without so much as employing a test that
would balance respondents religious freedom and the states interest at stake
in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondents plea of religious freedom without
even subjecting it to the compelling state interest test that would balance her
freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v.
Bitdu decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik[451] cited in Mr. Justice Carpios dissent decisive of the
immorality issue in the case at bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for engaging in an adulterous
relationship with another woman with whom he had three children because it
(was) not immoral by Muslim standards for Judge Malik to marry a second
time while his first marriage (existed). Putting the quoted portion in its proper
context would readily show that the Sulu Islamic case does not provide a
precedent to the case at bar. Immediately prior to the portion quoted by the
dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides that
393
the penal laws relative to the crime of bigamy shall not apply to a person
married x x x under Muslim Law, it is not immoral by Muslim standards for
Judge Malik to marry a second time while his first marriage exists. [452] It was
by law, therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general
standards of morality. The constitutionality of P.D. No. 1083 when measured
against the Establishment Clause was not raised as an issue in the Sulu
Islamic case. Thus, the Court did not determine whether P.D. No. 1083
suffered from a constitutional infirmity and instead relied on the provision
excepting the challenged Muslim conduct from the crime of bigamy in holding
that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court
can apply as basis for treating respondents conduct as an exception to the
prevailing jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest test
from a benevolent neutrality stance - i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in demonstrating
a more compelling state interest.
In applying the test, the first inquiry is whether respondents right
to religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and
keeping her religious practice and family on the other hand, puts a burden on
her free exercise of religion. In Sherbert, the Court found that Sherberts
religious exercise was burdened as the denial of unemployment benefits
forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand. The burden on
respondent in the case at bar is even greater as the price she has to pay for
her employment is not only her religious precept but also her family which, by
the Declaration Pledging Faithfulness, stands honorable before God and
men.
The second step is to ascertain respondents sincerity in her
religious belief. Respondent appears to be sincere in her religious belief
and practice and is not merely using the Declaration of Pledging Faithfulness
to avoid punishment for immorality. She did not secure the Declaration only
after entering the judiciary where the moral standards are strict and defined,
much less only after an administrative case for immorality was filed against
her. The Declaration was issued to her by her congregation after ten years of
living together with her partner, Quilapio, and ten years before she entered
the judiciary. Ministers from her congregation testified on the authenticity of
the Jehovahs Witnesses practice of securing a Declaration and their doctrinal
or scriptural basis for such a practice. As the ministers testified, the
Declaration is not whimsically issued to avoid legal punishment for illicit
conduct but to make the union of their members under respondents
circumstances honorable before God and men. It is also worthy of notice that
the Report and Recommendation of the investigating judge annexed
letters[453] of the OCA to the respondent regarding her request to be exempt
from attending the flag ceremony after Circular No. 62-2001 was issued
requiring attendance in the flag ceremony. The OCAs letters were not
submitted by respondent as evidence but annexed by the investigating judge
in explaining that he was caught in a dilemma whether to find respondent
guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondents request for
exemption from the flag ceremony on the ground of the Jehovahs Witnesses
contrary belief and practice. Respondents request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovahs Witnesses
beliefs and not using them merely to escape punishment. She is a practicing
member of the Jehovahs Witnesses and the Jehovah ministers testified that
she is a member in good standing. Nevertheless, should the government,
thru the Solicitor General, want to further question the respondents sincerity
and the centrality of her practice in her faith, it should be given the
opportunity to do so.The government has not been represented in the case
at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents
evidence on the sincerity of her religious belief and its centrality in her
faith, the case at bar cannot still be decided using the compelling state
interest test. The case at bar is one of first impression, thus the parties
were not aware of the burdens of proof they should discharge in the Courts
use of the compelling state interest test. We note that the OCA found
respondents defense of religious freedom unavailing in the face of the Courts
ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat, from the
394
judge to the lowest of its personnel. Court personnel have been enjoined to
adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and
integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and
decency. However, there is nothing in the OCAs memorandum to the Court
that demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive to
respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in the
case at bar, the government should be given the opportunity to demonstrate
the compelling state interest it seeks to uphold in opposing the respondents
stance that her conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the Court
prohibit and punish her conduct where it is protected by the Free
Exercise Clause, the Courts action would be an unconstitutional
encroachment of her right to religious freedom. [454] We cannot therefore
simply take a passing look at respondents claim of religious freedom, but
must instead apply the compelling state interest test.The government must
be heard on the issue as it has not been given an opportunity to discharge its
burden of demonstrating the states compelling interest which can override
respondents religious belief and practice. To repeat, this is a case of first
impression where we are applying the compelling state interest test in a case
involving purely religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference
in the life of the respondent who stands not only before the Court but before
her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where
it will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on
the states compelling interest to override respondents religious belief and
practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court
Administrators receipt of this Decision.
SO ORDERED.
[G.R. No. 153888. July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein
represented by PROF. ABDULRAFIH H. SAYEDY, petitioner, vs.
OFFICE OF THE EXECUTIVE SECRETARY of the Office of the
President of the Philippines, herein represented by HON.
ALBERTO G. ROMULO, Executive Secretary, and the OFFICE
ON MUSLIM AFFAIRS, herein represented by its Executive
Director, HABIB MUJAHAB HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Dawah
Council of the Philippines, Inc. (IDCP) praying for the declaration of nullity of
Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents
Office of the Executive Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social
Welfare and Development License No. SB-01-085, is a non-governmental
organization that extends voluntary services to the Filipino people, especially
to Muslim communities. It claims to be a federation of national Islamic
organizations and an active member of international organizations such as
the Regional Islamic Dawah Council of Southeast Asia and the Pacific
(RISEAP)[1] and The World Assembly of Muslim Youth. The RISEAP
accredited petitioner to issue halal[2] certifications in the Philippines. Thus,
among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified
products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food
products as halal and also due to halal food producers request, petitioner
formulated in 1995 internal rules and procedures based on the Quran[3] and
the Sunnah[4] for the analysis of food, inspection thereof and issuance of
halal certifications. In that same year, petitioner began to issue, for a fee,
certifications to qualified products and food manufacturers. Petitioner even
395
adopted for use on its halal certificates a distinct sign or logo registered in the
Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary
issued EO 46[5] creating the Philippine Halal Certification Scheme and
designating respondent OMA to oversee its implementation. Under the EO,
respondent OMA has the exclusive authority to issue halal certificates and
perform other related regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing
Illegal Halal Certification was published in the Manila Bulletin, a newspaper
of general circulation. In said article, OMA warned Muslim consumers to buy
only products with its official halal certification since those without said
certification had not been subjected to careful analysis and therefore could
contain pork or its derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only from OMA
lest they violate EO 46 and RA 4109.[6]As a result, petitioner lost revenues
after food manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional
provision on the separation of Church and State.[7] It is unconstitutional for
the government to formulate policies and guidelines on the halal certification
scheme because said scheme is a function only religious organizations,
entity or scholars can lawfully and validly perform for the Muslims. According
to petitioner, a food product becomes halal only after the performance of
Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified
to slaughter animals for food. A government agency like herein respondent
OMA cannot therefore perform a religious function like certifying qualified
food products as halal.
Petitioner also maintains that the respondents violated Section 10,
Article III of the 1987 Constitution which provides that (n)o law impairing the
obligation of contracts, shall be passed. After the subject EO was
implemented, food manufacturers with existing contracts with petitioner
ceased to obtain certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15
and 16 of Article XIII of the 1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with identifiable
leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by law, facilitate, the
establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and
without even consulting Muslim peoples organizations like petitioner before it
became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to
ensure the integration of Muslim Filipinos into the mainstream of Filipino
society with due regard to their beliefs, customs, traditions, and
institutions.[8] OMA deals with the societal, legal, political and economic
concerns of the Muslim community as a national cultural community and not
as a religious group. Thus, bearing in mind the constitutional barrier between
the Church and State, the latter must make sure that OMA does not intrude
into purely religious matters lest it violate the non-establishment clause and
the free exercise of religion provision found in Article III, Section 5 of the
1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good.[10]
Without doubt, classifying a food product as halal is a religious function
because the standards used are drawn from the Quran and Islamic beliefs.
By giving OMA the exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its own
interpretation of the Quran and Sunnah on halal food.
396
 To justify EO 46s intrusion into the subject religious activity, the Solicitor
General argues that the freedom of religion is subservient to the police power
of the State. By delegating to OMA the authority to issue halal certifications,
the government allegedly seeks to protect and promote the muslim Filipinos
right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security
and welfare of the community can justify the infringement of religious
freedom.[11] If the government fails to show the seriousness and immediacy
of the threat, State intrusion is constitutionally unacceptable. In a society with
a democratic framework like ours, the State must minimize its interference
with the affairs of its citizens and instead allow them to exercise reasonable
freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government
to deprive Muslim organizations, like herein petitioner, of their religious right
to classify a product as halal, even on the premise that the health of Muslim
Filipinos can be effectively protected by assigning to OMA the exclusive
power to issue halal certifications. The protection and promotion of the
Muslim Filipinos right to health are already provided for in existing laws and
ministered to by government agencies charged with ensuring that food
products released in the market are fit for human consumption, properly
labeled and safe. Unlike EO 46, these laws do not encroach on the religious
freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National
Meat Inspection Commission (NMIC) of the Department of Agriculture (DOA)
the power to inspect slaughtered animals intended for human consumption to
ensure the safety of the meat released in the market. Another law, RA 7394,
otherwise known as The Consumer Act of 1992, gives to certain government
departments the duty to protect the interests of the consumer, promote his
general welfare and to establish standards of conduct for business and
industry.[12] To this end, a food product, before its distribution to the market,
is required to secure the Philippine Standard Certification Mark after the
concerned department inspects and certifies its compliance with quality and
safety standards.[13]
One such government agency designated by RA 7394 is the Bureau of
Food and Drugs (BFD) of the Department of Health (DOH). Under Article 22
of said law, BFD has the duty to promulgate and enforce rules and
regulations fixing and establishing a reasonable definition and standard of
identity, a standard of quality and a standard of fill of containers for food. The
BFD also ensures that food products released in the market are not
adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of Trade and
Industry (DTI) is tasked to protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in Article 50. [15] DTI also
enforces compulsory labeling and fair packaging to enable the consumer to
obtain accurate information as to the nature, quality and quantity of the
contents of consumer products and to facilitate his comparison of the value
of such products.[16]
With these regulatory bodies given detailed functions on how to screen
and check the quality and safety of food products, the perceived danger
against the health of Muslim and non-Muslim Filipinos alike is totally avoided.
Of great help are the provisions on labeling of food products (Articles 74 to
85)[17] of RA 7394. In fact, through these labeling provisions, the State ably
informs the consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the
State indirectly aids Muslim consumers in differentiating food from non-food
products. The NMIC guarantees that the meat sold in the market has been
thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that
food products are properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the DTI, Muslim
consumers are adequately apprised of the products that contain substances
or ingredients that, according to their Islamic beliefs, are not fit for human
intake. These are the non-secular steps put in place by the State to ensure
that the Muslim consumers right to health is protected. The halal
certifications issued by petitioner and similar organizations come forward as
the official religious approval of a food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a
central administrative body to regulate halal certifications might give rise to
schemers who, for profit, will issue certifications for products that are not
actually halal. Aside from the fact that Muslim consumers can actually verify
through the labels whether a product contains non-food substances, we
believe that they are discerning enough to know who the reliable and
competent certifying organizations in their community are. Before purchasing
a product, they can easily avert this perceived evil by a diligent inquiry on the
reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001,
is hereby declared NULL AND VOID. Consequently, respondents are
prohibited from enforcing the same.
SO ORDERED.
397

G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner,
vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine
Independent Church, seeks the issuance from this court of a writ of
prohibition to prevent the respondent Director of Posts from issuing and
selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in
the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of
what he considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent
publicly announced having sent to the United States the designs of the
postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border
design. The stamps are blue, green, brown, cardinal red, violet and orange, 1
inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50
centavos." The said stamps were actually issued and sold though the greater
part thereof, to this day, remains unsold. The further sale of the stamps is
sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper
legal remedy in the instant case, although he admits that the writ may
properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of
other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . .
inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516
and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution
is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person
whose acts are without or in excess of his authority. Not infrequently, "the
writ is granted, where it is necessary for the orderly administration of justice,
or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, secretarian, institution, or system of religion,
or for the use, benefit, or support of any priest, preacher, minister, or
other religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to
any penal institution, orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of church and
398
state in the early stages of our constitutional development; it was inserted in
the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions of the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act
of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers
of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious
toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines
and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec.
344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned
to the armed forces or to any penal institution, orphanage or leprosarium 9
sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code).
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conclusive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the
Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY
THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT
OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE
APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF
POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the
same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and
made immediately available out of any funds in the Insular Treasury not
otherwise appropriated, for the costs of plates and printing of postage stamps
with new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or
any portion of the amount herein appropriated in the manner indicated and
as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for
the costs of plates and printing of postage stamps with new designs and
other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as
may be deemed advantageous to the Government". The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President of the Philippines in a letter dated September 1,
1936, made part of the respondent's memorandum as Exhibit A. The
respondent alleges that the Government of the Philippines would suffer
399
losses if the writ prayed for is granted. He estimates the revenue to be
derived from the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the
Director of Posts is the discretionary power to determine when the issuance
of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize
the violation of the Constitution. It does not authorize the appropriation, use
or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of international
importance "to give publicity to the Philippines and its people" (Letter of the
Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains a map of
the Philippines and the location of the City of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937."
What is emphasized is not the Eucharistic Congress itself but Manila, the
capital of the Philippines, as the seat of that congress. It is obvious that while
the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere incidental results
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the
petitioner to maintain inviolate the complete separation of church and state
and curb any attempt to infringe by indirection a constitutional inhibition.
Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political
development nothing is done by the Government or its officials that may lead
to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we have come to
the conclusion that there has been no constitutional infraction in the case at
bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage
stamps in question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting
aside the official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement
as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ.,
concur.
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA,
NICETAS DAGAR and JESUS EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First
Instance of Leyte, Ormoc City Branch V, BARANGAY COUNCIL of
Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO,
Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and
MAXIMINO NAVARRO, Barangay Secretary CONCHITA MARAYA and
Barangay Treasurer LUCENA BALTAZAR, respondents.
AQUINO, J.:1wph1.t
This case is about the constitutionality of four resolutions of the barangay
council of Valencia, Ormoc City, regarding the acquisition of the wooden
400
image of San Vicente Ferrer to be used in the celebration of his annual feast
day. That issue was spawned by the controversy as to whether the parish
priest or a layman should have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution No. 5,
"reviving the traditional socio-religious celebration" every fifth day of April "of
the feast day of Seor San Vicente Ferrer, the patron saint of Valencia".
That resolution designated the members of nine committees who would take
charge of the 1976 festivity. lt provided for (1) the acquisition of the image of
San Vicente Ferrer and (2) the construction of a waiting shed as the
barangay's projects. Funds for the two projects would be obtained through
the selling of tickets and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which
specified that, in accordance with the practice in Eastern Leyte, Councilman
Tomas Cabatingan, the Chairman or hermano mayor of the fiesta, would be
the caretaker of the image of San Vicente Ferrer and that the image would
remain in his residence for one year and until the election of his successor as
chairman of the next feast day.
It was further provided in the resolution that the image would be made
available to the Catholic parish church during the celebration of the saint's
feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly
ratified by the barangay general assembly on March 26, 1976. Two hundred
seventy-two voters ratified the two resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations of the
barangay residents and those of the neighboring places of Valencia. With
those funds, the waiting shed was constructed and the wooden image of San
Vicente Ferrer was acquired in Cebu City by the barangay council for four
hundred pesos (Exh. F-l, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of the
Catholic church of Barangay Valencia so that the devotees could worship the
saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father Sergio
Marilao Osmea refused to return that image to the barangay council on the
pretext that it was the property of the church because church funds were
used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his
sermon during a mass, Father Osmea allegedly uttered defamatory remarks
against the barangay captain, Manuel C. Veloso, apparently in connection
with the disputed image. That incident provoked Veloso to file against Father
Osmea in the city court of Ormoc City a charge for grave oral defamation.
Father Osmea retaliated by filing administrative complaints against Veloso
with the city mayor's office and the Department of Local Government and
Community Development on the grounds of immorality, grave abuse of
authority, acts unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church
of Valencia. Because Father Osmea did not accede to the request of
Cabatingan to have custody of the image and "maliciously ignored" the
council's Resolution No. 6, the council enacted on May 12, 1976 Resolution
No. 10, authorizing the hiring of a lawyer to file a replevin case against
Father Osmea for the recovery of the image (Exh. C or 8). On June 14,
1976, the barangay council passed Resolution No. 12, appointing Veloso as
its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father
Osmea and Bishop Cipriano Urgel (Exh. F). After the barangay council had
posted a cash bond of eight hundred pesos, Father Osmea turned over the
image to the council (p. 10, Rollo). ln his answer to the complaint for replevin,
he assailed the constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the
Aglipayan Church, and two Catholic laymen, Jesus Edullantes and Nicetas
Dagar, filed against the barangay council and its members (excluding two
members) a complaint in the Court of First Instance at Ormoc City, praying
for the annulment of the said resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of the
resolutions. The petitioners appealed under Republic Act No. 5440. The
petitioners contend that the barangay council was not duly constituted
because lsidoro M. Maago, Jr., the chairman of the kabataang barangay,
was not allowed to participate in its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees
Nos. 86 and 86-A). Presidential Decree No. 557, which took effect on
401
September 21, 1974, 70 O.G. 8450-L, directed that all barrios should be
known as barangays and adopted the Revised Barrio Charter as the
Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are
situated. They are quasi-municipal corporations endowed with such powers"
as are provided by law "for the performance of particular government
functions, to be exercised by and through their respective barrio
governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A.
No. 3590).
The barrio assembly consists of all persons who are residents of the barrio
for at least six months, eighteen years of age or over and Filipino citizens
duly registered in the list kept by the barrio secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay
captain and six councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree
No. 684, which took effect on April 15, 1975, provides that "the barangay
youth chairman shall be an ex-officio member of the barangay council",
having the same powers and functions as a barangay councilman.
In this case, Maago, the barangay youth chairman, was notified of the
sessions of the barangay council to be held on March 23 and 26, 1976 but he
was not able to attend those sessions because he was working with a
construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).
Maago's absence from the sessions of the barangay council did not render
the said resolutions void. There was a quorum when the said resolutions
were passed.
The other contention of the petitioners is that the resolutions contravene the
constitutional provisions that "no law shall be made respecting an
establishment of religion" and that "no public money or property shall ever be
appropriated, applied, paid, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian institution, or system
of religion, or for the use, benefit, or support of any priest, preacher, minister,
or other religious teacher or dignitary as such. except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium (Sec. 8, Article IV
and sec. 18[2], Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do
not directly or indirectly establish any religion, nor abridge religious liberty,
nor appropriate public money or property for the benefit of any sect, priest or
clergyman. The image was purchased with private funds, not with tax money.
The construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the barangay
council favored the Catholic religion by using the funds raised by solicitations
and donations for the purchase of the patron saint's wooden image and
making the image available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact
that counsel advanced that argument in behalf of the petitioner, Father
Osmea the parish priest.
The wooden image was purchased in connection with the celebration of the
barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the
purpose of favoring any religion nor interfering with religious matters or the
religious beliefs of the barrio residents. One of the highlights of the fiesta was
the mass. Consequently, the image of the patron saint had to be placed in
the church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a
patron saint for the barrio, then any activity intended to facilitate the worship
of the patron saint (such as the acquisition and display of his image) cannot
be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its
celebration is an ingrained tradition in rural communities. The fiesta relieves
the monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden
image in order to forestall any suspicion that it is favoring the Catholic
church. A more practical reason for that arrangement would be that the
image, if placed in a layman's custody, could easily be made available to any
family desiring to borrow the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits.
Petitioner Garces swore that the said resolutions favored the Catholic
church. On the other hand, petitioners Dagar and Edullantes swore that the
resolutions prejudiced the Catholics because they could see the image in the
church only once a year or during the fiesta (Exh. H and J).
402
We find that the momentous issues of separation of church and state,
freedom of religion annd the use of public money to favor any sect or church
are not involved at all in this case even remotely or indirectly. lt is not a
microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt would
never have arisen if the parties had been more diplomatic and tactful and if
Father Osmea had taken the trouble of causing contributions to be solicited
from his own parishioners for the purchase of another image of San Vicente
Ferrer to be installed in his church.
There can be no question that the image in question belongs to the barangay
council. Father Osmea claim that it belongs to his church is wrong. The
barangay council, as owner of the image, has the right to determine who
should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic
church. that action would not violate the Constitution because the image was
acquired with private funds and is its private property.
The council has the right to take measures to recover possession of the
image by enacting Resolutions Nos. 10 and 12.
Monsignor Gregorio Aglipay, the founder and head of the Philippine
Independent Church, sought to enjoin the sale of those commemorative
postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an
event of a religious character, was not designed as a propaganda for the
Catholic Church. Aglipay's prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs. Fernandez, 49
Phil., 627 and 55 Phil. 307, where a religious brotherhood, La Archicofradia
del Santisimo Sacramento, organized for the purpose of raising funds to
meet the expenses for the annual fiesta in honor of the Most Holy Sacrament
and the Virgin Lady of Guadalupe, was held accountable for the funds which
it held as trustee. 0
Finding that the petitioners have no cause of action for the annulment of the
barangay resolutions, the lower court's judgment dismissing their amended
petition is affirmed. No costs.
SO ORDERED.

Not every governmental activity which involves the expenditure of public

funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and
banning the use of public money or property.

In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which
appropriated sixty thousand pesos for the cost of plates and the printing of
postage stamps with new designs. Under the law, the Director of Posts, with
the approval of the Department Head and the President of the Philippines,
issued in 1936 postage stamps to commemorate the celebration in Manila of
the 33rd International Eucharistic Congress sponsored by the Catholic
Church.

The purpose of the stamps was to raise revenue and advertise the
Philippines. The design of the stamps showed a map of the Philippines and
nothing about the Catholic Church. No religious purpose was intended.

403

G.R. No. 133250 July 9, 2002
FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY
DEVELOPMENT CORPORATION, respondents.
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary
injunction and a temporary restraining order. The petition seeks to compel
the Public Estates Authority ("PEA" for brevity) to disclose all facts on PEA's
then on-going renegotiations with Amari Coastal Bay and Development
Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The
petition further seeks to enjoin PEA from signing a new agreement with
AMARI involving such reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner of
Public Highways, signed a contract with the Construction and Development
Corporation of the Philippines ("CDCP" for brevity) to reclaim certain
foreshore and offshore areas of Manila Bay. The contract also included the
construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP
obligated itself to carry out all the works in consideration of fifty percent of the
total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA "to
reclaim land, including foreshore and submerged areas," and "to develop,
improve, acquire, x x x lease and sell any and all kinds of lands." 1 On the
same date, then President Marcos issued Presidential Decree No. 1085
transferring to PEA the "lands reclaimed in the foreshore and offshore of the
Manila Bay"2 under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP).
On December 29, 1981, then President Marcos issued a memorandum
directing PEA to amend its contract with CDCP, so that "[A]ll future works in
MCCRRP x x x shall be funded and owned by PEA." Accordingly, PEA and
CDCP executed a Memorandum of Agreement dated December 29, 1981,
which stated:
"(i) CDCP shall undertake all reclamation, construction, and such
other works in the MCCRRP as may be agreed upon by the parties,
to be paid according to progress of works on a unit price/lump sum
basis for items of work to be agreed upon, subject to price
escalation, retention and other terms and conditions provided for in
Presidential Decree No. 1594. All the financing required for such
works shall be provided by PEA.
xxx
(iii) x x x CDCP shall give up all its development rights and hereby
agrees to cede and transfer in favor of PEA, all of the rights, title,
interest and participation of CDCP in and to all the areas of land
reclaimed by CDCP in the MCCRRP as of December 30, 1981 which
have not yet been sold, transferred or otherwise disposed of by
CDCP as of said date, which areas consist of approximately Ninety-
Nine Thousand Four Hundred Seventy Three (99,473) square
meters in the Financial Center Area covered by land pledge No. 5
and approximately Three Million Three Hundred Eighty Two
Thousand Eight Hundred Eighty Eight (3,382,888) square meters of
reclaimed areas at varying elevations above Mean Low Water Level
located outside the Financial Center Area and the First
Neighborhood Unit."3
On January 19, 1988, then President Corazon C. Aquino issued Special
Patent No. 3517, granting and transferring to PEA "the parcels of land so
reclaimed under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP) containing a total area of one million nine hundred fifteen
thousand eight hundred ninety four (1,915,894) square meters."
Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of
Paraaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312,
in the name of PEA, covering the three reclaimed islands known as the
"Freedom Islands" located at the southern portion of the Manila-Cavite
Coastal Road, Paraaque City. The Freedom Islands have a total land area
of One Million Five Hundred Seventy Eight Thousand Four Hundred and
Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for
brevity) with AMARI, a private corporation, to develop the Freedom Islands.
404
The JVA also required the reclamation of an additional 250 hectares of
submerged areas surrounding these islands to complete the configuration in
the Master Development Plan of the Southern Reclamation Project-
MCCRRP. PEA and AMARI entered into the JVA through negotiation without
public bidding.4 On April 28, 1995, the Board of Directors of PEA, in its
Resolution No. 1245, confirmed the JVA.5 On June 8, 1995, then President
Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved
the JVA.6
On November 29, 1996, then Senate President Ernesto Maceda delivered a
privilege speech in the Senate and denounced the JVA as the "grandmother
of all scams." As a result, the Senate Committee on Government
Corporations and Public Enterprises, and the Committee on Accountability of
Public Officers and Investigations, conducted a joint investigation. The
Senate Committees reported the results of their investigation in Senate
Committee Report No. 560 dated September 16, 1997. 7 Among the
conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer
to AMARI under the JVA are lands of the public domain which the
government has not classified as alienable lands and therefore PEA cannot
alienate these lands; (2) the certificates of title covering the Freedom Islands
are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential
Administrative Order No. 365 creating a Legal Task Force to conduct a study
on the legality of the JVA in view of Senate Committee Report No. 560. The
members of the Legal Task Force were the Secretary of Justice, 8 the Chief
Presidential Legal Counsel,9 and the Government Corporate Counsel.10 The
Legal Task Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published
reports that there were on-going renegotiations between PEA and AMARI
under an order issued by then President Fidel V. Ramos. According to these
reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired
Navy Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for
Prohibition with Application for the Issuance of a Temporary Restraining
Order and Preliminary Injunction docketed as G.R. No. 132994 seeking to
nullify the JVA. The Court dismissed the petition "for unwarranted disregard
of judicial hierarchy, without prejudice to the refiling of the case before the
proper court."12
On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a
taxpayer, filed the instant Petition for Mandamus with Prayer for the Issuance
of a Writ of Preliminary Injunction and Temporary Restraining Order.
Petitioner contends the government stands to lose billions of pesos in the
sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA
publicly disclose the terms of any renegotiation of the JVA, invoking Section
28, Article II, and Section 7, Article III, of the 1987 Constitution on the right of
the people to information on matters of public concern. Petitioner assails the
sale to AMARI of lands of the public domain as a blatant violation of Section
3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands of
the public domain to private corporations. Finally, petitioner asserts that he
seeks to enjoin the loss of billions of pesos in properties of the State that are
of public dominion.
After several motions for extension of time,13 PEA and AMARI filed their
Comments on October 19, 1998 and June 25, 1998, respectively.
Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to
require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b)
for issuance of a temporary restraining order; and (c) to set the case for
hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of
a TRO dated May 26, 1999, which the Court denied in a Resolution dated
June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the
petition and required the parties to file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture
Agreement ("Amended JVA," for brevity). On May 28, 1999, the Office of the
President under the administration of then President Joseph E. Estrada
approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President,
petitioner now prays that on "constitutional and statutory grounds the
renegotiated contract be declared null and void."14
The Issues
The issues raised by petitioner, PEA15 and AMARI16 are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE
PETITION ARE MOOT AND ACADEMIC BECAUSE OF
SUBSEQUENT EVENTS;
405
 II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING
TO OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY
OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-
EXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS
SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION
INCLUDES OFFICIAL INFORMATION ON ON-GOING
NEGOTIATIONS BEFORE A FINAL AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT
VENTURE AGREEMENT FOR THE TRANSFER TO AMARI OF
CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED,
VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR
RAISING THE ISSUE OF WHETHER THE AMENDED JOINT
VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition are
moot and academic because of subsequent events.
The petition prays that PEA publicly disclose the "terms and conditions of the
on-going negotiations for a new agreement." The petition also prays that the
Court enjoin PEA from "privately entering into, perfecting and/or executing
any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and academic because
AMARI furnished petitioner on June 21, 1999 a copy of the signed Amended
JVA containing the terms and conditions agreed upon in the renegotiations.
Thus, PEA has satisfied petitioner's prayer for a public disclosure of the
renegotiations. Likewise, petitioner's prayer to enjoin the signing of the
Amended JVA is now moot because PEA and AMARI have already signed
the Amended JVA on March 30, 1999. Moreover, the Office of the President
has approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional
issue by simply fast-tracking the signing and approval of the Amended JVA
before the Court could act on the issue. Presidential approval does not
resolve the constitutional issue or remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its
approval by the President cannot operate to moot the petition and divest the
Court of its jurisdiction. PEA and AMARI have still to implement the Amended
JVA. The prayer to enjoin the signing of the Amended JVA on constitutional
grounds necessarily includes preventing its implementation if in the
meantime PEA and AMARI have signed one in violation of the Constitution.
Petitioner's principal basis in assailing the renegotiation of the JVA is its
violation of Section 3, Article XII of the Constitution, which prohibits the
government from alienating lands of the public domain to private
corporations. If the Amended JVA indeed violates the Constitution, it is the
duty of the Court to enjoin its implementation, and if already implemented, to
annul the effects of such unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which
seeks to transfer title and ownership to 367.5 hectares of reclaimed
lands and submerged areas of Manila Bay to a single private
corporation. It now becomes more compelling for the Court to resolve the
issue to insure the government itself does not violate a provision of the
Constitution intended to safeguard the national patrimony. Supervening
events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. In the
instant case, if the Amended JVA runs counter to the Constitution, the Court
can still prevent the transfer of title and ownership of alienable lands of the
public domain in the name of AMARI. Even in cases where supervening
events had made the cases moot, the Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to
guide the bench, bar, and the public.17
Also, the instant petition is a case of first impression. All previous decisions
of the Court involving Section 3, Article XII of the 1987 Constitution, or its
counterpart provision in the 1973 Constitution, 18 covered agricultural
lands sold to private corporations which acquired the lands from private
parties. The transferors of the private corporations claimed or could claim the
right to judicial confirmation of their imperfect titles19 under Title II of
Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant case,
AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and
submerged areas for non-agricultural purposes by purchase under PD No.
1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by
406
AMARI under the Amended JVA constitute the consideration for the
purchase. Neither AMARI nor PEA can claim judicial confirmation of their
titles because the lands covered by the Amended JVA are newly reclaimed
or still to be reclaimed. Judicial confirmation of imperfect title requires open,
continuous, exclusive and notorious occupation of agricultural lands of the
public domain for at least thirty years since June 12, 1945 or earlier. Besides,
the deadline for filing applications for judicial confirmation of imperfect title
expired on December 31, 1987.20
Lastly, there is a need to resolve immediately the constitutional issue raised
in this petition because of the possible transfer at any time by PEA to AMARI
of title and ownership to portions of the reclaimed lands. Under the Amended
JVA, PEA is obligated to transfer to AMARI the latter's seventy percent
proportionate share in the reclaimed areas as the reclamation progresses.
The Amended JVA even allows AMARI to mortgage at any time
the entire reclaimed area to raise financing for the reclamation project.21
Second issue: whether the petition merits dismissal for failing to
observe the principle governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking
relief directly from the Court. The principle of hierarchy of courts applies
generally to cases involving factual questions. As it is not a trier of facts, the
Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional issues of transcendental importance to the
public.22 The Court can resolve this case without determining any factual
issue related to the case. Also, the instant case is a petition for mandamus
which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.
Third issue: whether the petition merits dismissal for non-exhaustion of
administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to
disclose publicly certain information without first asking PEA the needed
information. PEA claims petitioner's direct resort to the Court violates the
principle of exhaustion of administrative remedies. It also violates the rule
that mandamus may issue only if there is no other plain, speedy and
adequate remedy in the ordinary course of law.
PEA distinguishes the instant case from Taada v. Tuvera 23 where the Court
granted the petition for mandamus even if the petitioners there did not initially
demand from the Office of the President the publication of the presidential
decrees. PEA points out that in Taada, the Executive Department had
an affirmative statutory duty under Article 2 of the Civil Code24 and Section
1 of Commonwealth Act No. 63825 to publish the presidential decrees. There
was, therefore, no need for the petitioners in Taada to make an initial
demand from the Office of the President. In the instant case, PEA claims it
has no affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the
principle of exhaustion of administrative remedies to the instant case in view
of the failure of petitioner here to demand initially from PEA the needed
information.
The original JVA sought to dispose to AMARI public lands held by PEA, a
government corporation. Under Section 79 of the Government Auditing
Code,26 the disposition of government lands to private parties requires public
bidding. PEA was under a positive legal duty to disclose to the public
the terms and conditions for the sale of its lands. The law obligated PEA
to make this public disclosure even without demand from petitioner or from
anyone. PEA failed to make this public disclosure because the original JVA,
like the Amended JVA, was the result of a negotiated contract, not of a
public bidding. Considering that PEA had an affirmative statutory duty to
make the public disclosure, and was even in breach of this legal duty,
petitioner had the right to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of
exhaustion of administrative remedies does not apply when the issue
involved is a purely legal or constitutional question.27 The principal issue in
the instant case is the capacity of AMARI to acquire lands held by PEA in
view of the constitutional ban prohibiting the alienation of lands of the public
domain to private corporations. We rule that the principle of exhaustion of
administrative remedies does not apply in the instant case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to
institute mandamus proceedings to enforce his constitutional right to
information without a showing that PEA refused to perform an affirmative
duty imposed on PEA by the Constitution. PEA also claims that petitioner has
not shown that he will suffer any concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no actual controversy
requiring the exercise of the power of judicial review.
407
The petitioner has standing to bring this taxpayer's suit because the petition
seeks to compel PEA to comply with its constitutional duties. There are two
constitutional issues involved here. First is the right of citizens to information
on matters of public concern. Second is the application of a constitutional
provision intended to insure the equitable distribution of alienable lands of the
public domain among Filipino citizens. The thrust of the first issue is to
compel PEA to disclose publicly information on the sale of government lands
worth billions of pesos, information which the Constitution and statutory law
mandate PEA to disclose. The thrust of the second issue is to prevent PEA
from alienating hundreds of hectares of alienable lands of the public domain
in violation of the Constitution, compelling PEA to comply with a
constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to the
public. In Chavez v. PCGG,28 the Court upheld the right of a citizen to bring a
taxpayer's suit on matters of transcendental importance to the public, thus -
"Besides, petitioner emphasizes, the matter of recovering the ill-
gotten wealth of the Marcoses is an issue of 'transcendental
importance to the public.' He asserts that ordinary taxpayers have a
right to initiate and prosecute actions questioning the validity of acts
or orders of government agencies or instrumentalities, if the issues
raised are of 'paramount public interest,' and if they 'immediately
affect the social, economic and moral well being of the people.'
Moreover, the mere fact that he is a citizen satisfies the requirement
of personal interest, when the proceeding involves the assertion of a
public right, such as in this case. He invokes several decisions of this
Court which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.
xxx
In Taada v. Tuvera, the Court asserted that when the issue
concerns a public right and the object of mandamus is to obtain the
enforcement of a public duty, the people are regarded as the real
parties in interest; and because it is sufficient that petitioner is a
citizen and as such is interested in the execution of the laws, he
need not show that he has any legal or special interest in the result
of the action. In the aforesaid case, the petitioners sought to enforce
their right to be informed on matters of public concern, a right then
recognized in Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid and
enforceable must be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners' legal standing,
the Court declared that the right they sought to be enforced 'is a
public right recognized by no less than the fundamental law of the
land.'
Legaspi v. Civil Service Commission, while reiterating Taada,
further declared that 'when a mandamus proceeding involves the
assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that petitioner is a citizen and, therefore,
part of the general 'public' which possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure of public
funds may not have been involved under the questioned contract for
the development, management and operation of the Manila
International Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject contract] . . . in
the economic development of the country and the magnitude of the
financial consideration involved.' We concluded that, as a
consequence, the disclosure provision in the Constitution would
constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to
information and access to official records, documents and papers
a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino citizen.
Because of the satisfaction of the two basic requisites laid down by
decisional law to sustain petitioner's legal standing, i.e. (1) the
enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed."
We rule that since the instant petition, brought by a citizen, involves the
enforcement of constitutional rights - to information and to the equitable
diffusion of natural resources - matters of transcendental public importance,
the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes
official information on on-going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the people's right to
information on matters of public concern in this manner:
408
 "Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law." (Emphasis supplied)
The State policy of full transparency in all transactions involving public
interest reinforces the people's right to information on matters of public
concern. This State policy is expressed in Section 28, Article II of the
Constitution, thus:
"Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of
all its transactions involving public interest." (Emphasis supplied)
These twin provisions of the Constitution seek to promote transparency in
policy-making and in the operations of the government, as well as provide
the people sufficient information to exercise effectively other constitutional
rights. These twin provisions are essential to the exercise of freedom of
expression. If the government does not disclose its official acts, transactions
and decisions to citizens, whatever citizens say, even if expressed without
any restraint, will be speculative and amount to nothing. These twin
provisions are also essential to hold public officials "at all times x x x
accountable to the people,"29 for unless citizens have the proper information,
they cannot hold public officials accountable for anything. Armed with the
right information, citizens can participate in public discussions leading to the
formulation of government policies and their effective implementation. An
informed citizenry is essential to the existence and proper functioning of any
democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30
"An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the people's will.
Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear fruit."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going
negotiations the right to information is limited to "definite propositions of the
government." PEA maintains the right does not include access to "intra-
agency or inter-agency recommendations or communications during the
stage when common assertions are still in the process of being formulated or
are in the 'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the right at the pre-
decisional stage or before the closing of the transaction. To support its
contention, AMARI cites the following discussion in the 1986 Constitutional
Commission:
"Mr. Suarez. And when we say 'transactions' which should be
distinguished from contracts, agreements, or treaties or whatever,
does the Gentleman refer to the steps leading to the consummation
of the contract, or does he refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is generic and
therefore, it can cover both steps leading to a contract and
already a consummated contract, Mr. Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations leading
to the consummation of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the
national interest.
Mr. Suarez: Thank you."32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner
can invoke the right. Requiring government officials to reveal their
deliberations at the pre-decisional stage will degrade the quality of decision-
making in government agencies. Government officials will hesitate to express
their real sentiments during deliberations if there is immediate public
dissemination of their discussions, putting them under all kinds of pressure
before they decide.
We must first distinguish between information the law on public bidding
requires PEA to disclose publicly, and information the constitutional right to
information requires PEA to release to the public. Before the consummation
of the contract, PEA must, on its own and without demand from anyone,
disclose to the public matters relating to the disposition of its property. These
include the size, location, technical description and nature of the property
being disposed of, the terms and conditions of the disposition, the parties
409
qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of the
disposition process, long before the consummation of the contract, because
the Government Auditing Code requires public bidding. If PEA fails to make
this disclosure, any citizen can demand from PEA this information at any time
during the bidding process.
Information, however, on on-going evaluation or review of bids or
proposals being undertaken by the bidding or review committee is not
immediately accessible under the right to information. While the evaluation or
review is still on-going, there are no "official acts, transactions, or decisions"
on the bids or proposals. However, once the committee makes its official
recommendation, there arises a "definite proposition" on the part of the
government. From this moment, the public's right to information attaches,
and any citizen can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:
"Considering the intent of the framers of the Constitution, we believe
that it is incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public information
on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information,
though, must pertain to definite propositions of the government,
not necessarily to intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still
in the process of being formulated or are in the "exploratory" stage.
There is need, of course, to observe the same restrictions on
disclosure of information in general, as discussed earlier such as
on matters involving national security, diplomatic or foreign relations,
intelligence and other classified information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986
Constitutional Commission understood that the right to
information "contemplates inclusion of negotiations leading to the
consummation of the transaction."Certainly, a consummated contract is
not a requirement for the exercise of the right to information. Otherwise, the
people can never exercise the right if no contract is consummated, and if one
is consummated, it may be too late for the public to expose its
defects.1wphi1.nt
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even
illegal, becomes a fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of
the Constitution could not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can
allow neither an emasculation of a constitutional right, nor a retreat by the
State of its avowed "policy of full disclosure of all its transactions involving
public interest."
The right covers three categories of information which are "matters of public
concern," namely: (1) official records; (2) documents and papers pertaining
to official acts, transactions and decisions; and (3) government research data
used in formulating policies. The first category refers to any document that is
part of the public records in the custody of government agencies or officials.
The second category refers to documents and papers recording, evidencing,
establishing, confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The third
category refers to research data, whether raw, collated or processed, owned
by the government and used in formulating government policies.
The information that petitioner may access on the renegotiation of the JVA
includes evaluation reports, recommendations, legal and expert opinions,
minutes of meetings, terms of reference and other documents attached to
such reports or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts, summaries and
the like relating to the renegotiation of the JVA.34 The right only affords
access to records, documents and papers, which means the opportunity to
inspect and copy them. One who exercises the right must copy the records,
documents and papers at his expense. The exercise of the right is also
subject to reasonable regulations to protect the integrity of the public records
and to minimize disruption to government operations, like rules specifying
when and how to conduct the inspection and copying.35
The right to information, however, does not extend to matters recognized as
privileged information under the separation of powers.36 The right does not
also apply to information on military and diplomatic secrets, information
affecting national security, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused, which courts
have long recognized as confidential.37 The right may also be subject to other
limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
410
during closed-door Cabinet meetings which, like internal deliberations of the
Supreme Court and other collegiate courts, or executive sessions of either
house of Congress,38 are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange
of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and
Judicial power.39 This is not the situation in the instant case.
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiationsbefore a final contract. The
information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting
national security and public order.40 Congress has also prescribed other
limitations on the right to information in several legislations.41
Sixth issue: whether stipulations in the Amended JVA for the transfer
to AMARI of lands, reclaimed or to be reclaimed, violate the
Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged areas is
rooted in the Regalian doctrine which holds that the State owns all lands and
waters of the public domain. Upon the Spanish conquest of the Philippines,
ownership of all "lands, territories and possessions" in the Philippines passed
to the Spanish Crown.42 The King, as the sovereign ruler and representative
of the people, acquired and owned all lands and territories in the Philippines
except those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine
substituting, however, the State, in lieu of the King, as the owner of all lands
and waters of the public domain. The Regalian doctrine is the foundation of
the time-honored principle of land ownership that "all lands that were not
acquired from the Government, either by purchase or by grant, belong to the
public domain."43 Article 339 of the Civil Code of 1889, which is now Article
420 of the Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the
ownership and disposition of reclaimed lands in the Philippines. On May 18,
1907, the Philippine Commission enacted Act No. 1654 which provided for
the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. Later, on November 29, 1919, the Philippine
Legislature approved Act No. 2874, the Public Land Act, which
authorized the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. On November 7, 1936, the
National Assembly passed Commonwealth Act No. 141, also known as the
Public Land Act, which authorized the lease, but not the sale, of
reclaimed lands of the government to corporations and individuals. CA
No. 141 continues to this day as the general law governing the classification
and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets
and all waters within the maritime zone of the Spanish territory belonged to
the public domain for public use.44 The Spanish Law of Waters of 1866
allowed the reclamation of the sea under Article 5, which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence of works
constructed by the State, or by the provinces, pueblos or private
persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the
terms of the grant of authority."
Under the Spanish Law of Waters, land reclaimed from the sea belonged to
the party undertaking the reclamation, provided the government issued the
necessary permit and did not reserve ownership of the reclaimed land to the
State.
Article 339 of the Civil Code of 1889 defined property of public dominion as
follows:
"Art. 339. Property of public dominion is
1. That devoted to public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, riverbanks, shores,
roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of
general public use, is employed in some public service, or in the
development of the national wealth, such as walls, fortresses, and
411
 other works for the defense of the territory, and mines, until granted
to private individuals."
Property devoted to public use referred to property open for use by the
public. In contrast, property devoted to public service referred to property
used for some specific public service and open only to those authorized to
use the property.
Property of public dominion referred not only to property devoted to public
use, but also to property not so used but employed to develop the national
wealth. This class of property constituted property of public dominion
although employed for some economic or commercial activity to increase the
national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of
property of public dominion into private property, to wit:
"Art. 341. Property of public dominion, when no longer devoted to
public use or to the defense of the territory, shall become a part of
the private property of the State."
This provision, however, was not self-executing. The legislature, or the
executive department pursuant to law, must declare the property no longer
needed for public use or territorial defense before the government could
lease or alienate the property to private parties.45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which
regulated the lease of reclaimed and foreshore lands. The salient provisions
of this law were as follows:
"Section 1. The control and disposition of the foreshore as
defined in existing law, and the title to all Government or public
lands made or reclaimed by the Government by dredging or
filling or otherwise throughout the Philippine Islands, shall be
retained by the Government without prejudice to vested rights and
without prejudice to rights conceded to the City of Manila in the
Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all
Government or public lands made or reclaimed by the Government
by dredging or filling or otherwise to be divided into lots or blocks,
with the necessary streets and alleyways located thereon, and shall
cause plats and plans of such surveys to be prepared and filed with
the Bureau of Lands.
(b) Upon completion of such plats and plans the Governor-General
shall give notice to the public that such parts of the lands so
made or reclaimed as are not needed for public purposes will be
leased for commercial and business purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of to the
highest and best bidder therefore, subject to such regulations and
safeguards as the Governor-General may by executive order
prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all
lands reclaimed by the government. The Act also vested in the
government control and disposition of foreshore lands. Private parties could
lease lands reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandated public bidding in the
lease of government reclaimed lands. Act No. 1654 made government
reclaimed lands sui generis in that unlike other public lands which the
government could sell to private parties, these reclaimed lands were
available only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of
Waters of 1866. Act No. 1654 did not prohibit private parties from reclaiming
parts of the sea under Section 5 of the Spanish Law of Waters. Lands
reclaimed from the sea by private parties with government permission
remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the
Public Land Act.46 The salient provisions of Act No. 2874, on reclaimed
lands, were as follows:
"Sec. 6. The Governor-General, upon the recommendation of the
Secretary of Agriculture and Natural Resources, shall from time
to time classify the lands of the public domain into
412
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of
alienable or disposable public lands, the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural
Resources, shall from time to time declare what lands are open
to disposition or concession under this Act."
Sec. 8. Only those lands shall be declared open to disposition
or concession which have been officially delimited or
classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being neither
timber nor mineral land, shall be classified as suitable for
residential purposes or for commercial, industrial, or other
productive purposes other than agricultural purposes, and shall
be open to disposition or concession, shall be disposed of under the
provisions of this chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be classified
as follows:
(a) Lands reclaimed by the Government by dredging,
filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering
upon the shores or banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of
section fifty-six shall be disposed of to private parties by lease
only and not otherwise, as soon as the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for
the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by
sale or lease under the provisions of this Act." (Emphasis
supplied)
Section 6 of Act No. 2874 authorized the Governor-General to "classify lands
of the public domain into x x x alienable or disposable"47 lands. Section 7 of
the Act empowered the Governor-General to "declare what lands are open to
disposition or concession." Section 8 of the Act limited alienable or
disposable lands only to those lands which have been "officially delimited
and classified."
Section 56 of Act No. 2874 stated that lands "disposable under this
title48 shall be classified" as government reclaimed, foreshore and marshy
lands, as well as other lands. All these lands, however, must be suitable for
residential, commercial, industrial or other productive non-
agricultural purposes. These provisions vested upon the Governor-General
the power to classify inalienable lands of the public domain into disposable
lands of the public domain. These provisions also empowered the Governor-
General to classify further such disposable lands of the public domain into
government reclaimed, foreshore or marshy lands of the public domain, as
well as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of
the public domain classified as government reclaimed, foreshore and marshy
lands "shall be disposed of to private parties by lease only and not
otherwise." The Governor-General, before allowing the lease of these lands
to private parties, must formally declare that the lands were "not necessary
for the public service." Act No. 2874 reiterated the State policy to lease and
not to sell government reclaimed, foreshore and marshy lands of the public
domain, a policy first enunciated in 1907 in Act No. 1654. Government
reclaimed, foreshore and marshy lands remained sui generis, as the only
alienable or disposable lands of the public domain that the government could
not sell to private parties.
The rationale behind this State policy is obvious. Government reclaimed,
foreshore and marshy public lands for non-agricultural purposes retain their
inherent potential as areas for public service. This is the reason the
413
government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public
service.
Act No. 2874 did not authorize the reclassification of government reclaimed,
foreshore and marshy lands into other non-agricultural lands under Section
56 (d). Lands falling under Section 56 (d) were the only lands for non-
agricultural purposes the government could sell to private parties. Thus,
under Act No. 2874, the government could not sell government reclaimed,
foreshore and marshy lands to private parties, unless the legislature
passed a law allowing their sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea
pursuant to Section 5 of the Spanish Law of Waters of 1866. Lands
reclaimed from the sea by private parties with government permission
remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the
Filipino people. The 1935 Constitution, in adopting the Regalian doctrine,
declared in Section 1, Article XIII, that
"Section 1. All agricultural, timber, and mineral lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy and other natural resources of the
Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the
Philippines or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject to
any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this
Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization
of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five
years, except as to water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and limit of the
grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except
public agricultural lands, which were the only natural resources the State
could alienate. Thus, foreshore lands, considered part of the State's natural
resources, became inalienable by constitutional fiat, available only for lease
for 25 years, renewable for another 25 years. The government could alienate
foreshore lands only after these lands were reclaimed and classified as
alienable agricultural lands of the public domain. Government reclaimed and
marshy lands of the public domain, being neither timber nor mineral lands,
fell under the classification of public agricultural lands. 50 However,
government reclaimed and marshy lands, although subject to classification
as disposable public agricultural lands, could only be leased and not sold to
private parties because of Act No. 2874.
The prohibition on private parties from acquiring ownership of government
reclaimed and marshy lands of the public domain was only a statutory
prohibition and the legislature could therefore remove such prohibition. The
1935 Constitution did not prohibit individuals and corporations from acquiring
government reclaimed and marshy lands of the public domain that were
classified as agricultural lands under existing public land laws. Section 2,
Article XIII of the 1935 Constitution provided as follows:
"Section 2. No private corporation or association may acquire,
lease, or hold public agricultural lands in excess of one
thousand and twenty four hectares, nor may any individual
acquire such lands by purchase in excess of one hundred and
forty hectares, or by lease in excess of one thousand and
twenty-four hectares, or by homestead in excess of twenty-four
hectares. Lands adapted to grazing, not exceeding two thousand
hectares, may be leased to an individual, private corporation, or
association." (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not
repeal Section 58 of Act No. 2874 to open for sale to private parties
government reclaimed and marshy lands of the public domain. On the
contrary, the legislature continued the long established State policy of
retaining for the government title and ownership of government reclaimed
and marshy lands of the public domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved Commonwealth Act
No. 141, also known as the Public Land Act, which compiled the then
existing laws on lands of the public domain. CA No. 141, as amended,
414
remains to this day the existing general law governing the classification and
disposition of lands of the public domain other than timber and mineral
lands.51
Section 6 of CA No. 141 empowers the President to classify lands of the
public domain into "alienable or disposable"52 lands of the public domain,
which prior to such classification are inalienable and outside the commerce
of man. Section 7 of CA No. 141 authorizes the President to "declare what
lands are open to disposition or concession." Section 8 of CA No. 141 states
that the government can declare open for disposition or concession only
lands that are "officially delimited and classified." Sections 6, 7 and 8 of CA
No. 141 read as follows:
"Sec. 6. The President, upon the recommendation of the
Secretary of Agriculture and Commerce, shall from time to time
classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one
class to another,53 for the purpose of their administration and
disposition.
Sec. 7. For the purposes of the administration and disposition of
alienable or disposable public lands, the President, upon
recommendation by the Secretary of Agriculture and
Commerce, shall from time to time declare what lands are open
to disposition or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition
or concession which have been officially delimited and
classified and, when practicable, surveyed, and which have not
been reserved for public or quasi-public uses, nor appropriated
by the Government, nor in any manner become private property, nor
those on which a private right authorized and recognized by this Act
or any other valid law may be claimed, or which, having been
reserved or appropriated, have ceased to be so. x x x."
Thus, before the government could alienate or dispose of lands of the public
domain, the President must first officially classify these lands as alienable or
disposable, and then declare them open to disposition or concession. There
must be no law reserving these lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore
and marshy lands of the public domain, are as follows:
"Sec. 58. Any tract of land of the public domain which, being
neither timber nor mineral land, is intended to be used for
residential purposes or for commercial, industrial, or other
productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the
provisions of this chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be classified
as follows:
(a) Lands reclaimed by the Government by dredging,
filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering
upon the shores or banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or
sold, as the case may be, to any person, corporation, or association
authorized to purchase or lease public lands for agricultural
purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of
section fifty-nine shall be disposed of to private parties by lease
only and not otherwise, as soon as the President, upon
recommendation by the Secretary of Agriculture, shall declare that
the same are not necessary for the public service and are open
to disposition under this chapter. The lands included in class (d)
may be disposed of by sale or lease under the provisions of this
Act." (Emphasis supplied)
415
Section 61 of CA No. 141 readopted, after the effectivity of the 1935
Constitution, Section 58 of Act No. 2874 prohibiting the sale of government
reclaimed, foreshore and marshy disposable lands of the public domain. All
these lands are intended for residential, commercial, industrial or other non-
agricultural purposes. As before, Section 61 allowed only the lease of such
lands to private parties. The government could sell to private parties only
lands falling under Section 59 (d) of CA No. 141, or those lands for non-
agricultural purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands, however,
became inalienable under the 1935 Constitution which only allowed the lease
of these lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public
domain intended for residential, commercial, industrial or other productive
purposes other than agricultural "shall be disposed of under the
provisions of this chapter and not otherwise." Under Section 10 of CA
No. 141, the term "disposition" includes lease of the land. Any disposition of
government reclaimed, foreshore and marshy disposable lands for non-
agricultural purposes must comply with Chapter IX, Title III of CA No.
141,54 unless a subsequent law amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real Estate
Corporation v. Court of Appeals,55Justice Reynato S. Puno summarized
succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for public
use. So too are lands reclaimed by the government by dredging,
filling, or other means. Act 1654 mandated that the control and
disposition of the foreshore and lands under water remained in the
national government. Said law allowed only the 'leasing' of reclaimed
land. The Public Land Acts of 1919 and 1936 also declared that the
foreshore and lands reclaimed by the government were to be
"disposed of to private parties by lease only and not otherwise."
Before leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and Natural
Resources, had first to determine that the land reclaimed was not
necessary for the public service. This requisite must have been met
before the land could be disposed of. But even then, the foreshore
and lands under water were not to be alienated and sold to
private parties. The disposition of the reclaimed land was only
by lease. The land remained property of the State." (Emphasis
supplied)
As observed by Justice Puno in his concurring opinion, "Commonwealth Act
No. 141 has remained in effect at present."
The State policy prohibiting the sale to private parties of government
reclaimed, foreshore and marshy alienable lands of the public domain, first
implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935
Constitution took effect. The prohibition on the sale of foreshore lands,
however, became a constitutional edict under the 1935 Constitution.
Foreshore lands became inalienable as natural resources of the State,
unless reclaimed by the government and classified as agricultural lands of
the public domain, in which case they would fall under the classification of
government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and
marshy disposable lands of the public domain continued to be only leased
and not sold to private parties.56 These lands remained sui generis, as the
only alienable or disposable lands of the public domain the government could
not sell to private parties.
Since then and until now, the only way the government can sell to private
parties government reclaimed and marshy disposable lands of the public
domain is for the legislature to pass a law authorizing such sale. CA No. 141
does not authorize the President to reclassify government reclaimed and
marshy lands into other non-agricultural lands under Section 59 (d). Lands
classified under Section 59 (d) are the only alienable or disposable lands for
non-agricultural purposes that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional
authority before lands under Section 59 that the government previously
transferred to government units or entities could be sold to private parties.
Section 60 of CA No. 141 declares that
"Sec. 60. x x x The area so leased or sold shall be such as shall, in
the judgment of the Secretary of Agriculture and Natural Resources,
be reasonably necessary for the purposes for which such sale or
lease is requested, and shall not exceed one hundred and forty-four
hectares: Provided, however, That this limitation shall not apply to
grants, donations, or transfers made to a province, municipality or
branch or subdivision of the Government for the purposes deemed
by said entities conducive to the public interest; but the land so
granted, donated, or transferred to a province, municipality or
branch or subdivision of the Government shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its
416
 title, except when authorized by Congress: x x x." (Emphasis
supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the
legislative authority required in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141
exempted government units and entities from the maximum area of public
lands that could be acquired from the State. These government units and
entities should not just turn around and sell these lands to private parties in
violation of constitutional or statutory limitations. Otherwise, the transfer of
lands for non-agricultural purposes to government units and entities could be
used to circumvent constitutional limitations on ownership of alienable or
disposable lands of the public domain. In the same manner, such transfers
could also be used to evade the statutory prohibition in CA No. 141 on the
sale of government reclaimed and marshy lands of the public domain to
private parties. Section 60 of CA No. 141 constitutes by operation of law a
lien on these lands.57
In case of sale or lease of disposable lands of the public domain falling
under Section 59 of CA No. 141, Sections 63 and 67 require a public bidding.
Sections 63 and 67 of CA No. 141 provide as follows:
"Sec. 63. Whenever it is decided that lands covered by this chapter
are not needed for public purposes, the Director of Lands shall ask
the Secretary of Agriculture and Commerce (now the Secretary of
Natural Resources) for authority to dispose of the same. Upon
receipt of such authority, the Director of Lands shall give notice by
public advertisement in the same manner as in the case of leases or
sales of agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and
adjudication shall be made to the highest bidder. x x x."
(Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all
leases or sales of alienable or disposable lands of the public domain. 58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal
Section 5 of the Spanish Law of Waters of 1866. Private parties could still
reclaim portions of the sea with government permission. However,
the reclaimed land could become private land only if classified as
alienable agricultural land of the public domain open to disposition under
CA No. 141. The 1935 Constitution prohibited the alienation of all natural
resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of
public dominion found in the Civil Code of 1889. Articles 420 and 422 of the
Civil Code of 1950 state that
"Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use,
and are intended for some public service or for the development of
the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for
public use or for public service, shall form part of the patrimonial
property of the State."
Again, the government must formally declare that the property of public
dominion is no longer needed for public use or public service, before the
same could be classified as patrimonial property of the State.59 In the case of
government reclaimed and marshy lands of the public domain, the
declaration of their being disposable, as well as the manner of their
disposition, is governed by the applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of
public dominion those properties of the State which, without being for public
use, are intended for public service or the "development of the national
wealth." Thus, government reclaimed and marshy lands of the State, even if
not employed for public use or public service, if developed to enhance the
national wealth, are classified as property of public dominion.
Dispositions under the 1973 Constitution
417
The 1973 Constitution, which took effect on January 17, 1973, likewise
adopted the Regalian doctrine. Section 8, Article XIV of the 1973 Constitution
stated that
"Sec. 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial
or commercial, residential, and resettlement lands of the public
domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of
water power, in which cases, beneficial use may be the measure and
the limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with
the exception of "agricultural, industrial or commercial, residential, and
resettlement lands of the public domain." In contrast, the 1935 Constitution
barred the alienation of all natural resources except "public agricultural
lands." However, the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement lands of
the public domain.60 If the land of public domain were neither timber nor
mineral land, it would fall under the classification of agricultural land of the
public domain. Both the 1935 and 1973 Constitutions, therefore,
prohibited the alienation of all natural resources except agricultural
lands of the public domain.
The 1973 Constitution, however, limited the alienation of lands of the public
domain to individuals who were citizens of the Philippines. Private
corporations, even if wholly owned by Philippine citizens, were no longer
allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that
"Sec. 11. The Batasang Pambansa, taking into account
conservation, ecological, and development requirements of the
natural resources, shall determine by law the size of land of the
public domain which may be developed, held or acquired by, or
leased to, any qualified individual, corporation, or association, and
the conditions therefor. No private corporation or association may
hold alienable lands of the public domain except by lease not to
exceed one thousand hectares in area nor may any citizen hold such
lands by lease in excess of five hundred hectares or acquire by
purchase, homestead or grant, in excess of twenty-four hectares. No
private corporation or association may hold by lease, concession,
license or permit, timber or forest lands and other timber or forest
resources in excess of one hundred thousand hectares. However,
such area may be increased by the Batasang Pambansa upon
recommendation of the National Economic and Development
Authority." (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable
lands of the public domain only through lease. Only individuals could now
acquire alienable lands of the public domain, and private corporations
became absolutely barred from acquiring any kind of alienable land of
the public domain. The constitutional ban extended to all kinds of alienable
lands of the public domain, while the statutory ban under CA No. 141 applied
only to government reclaimed, foreshore and marshy alienable lands of the
public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued Presidential
Decree No. 1084 creating PEA, a wholly government owned and controlled
corporation with a special charter. Sections 4 and 8 of PD No. 1084, vests
PEA with the following purposes and powers:
"Sec. 4. Purpose. The Authority is hereby created for the following
purposes:
(a) To reclaim land, including foreshore and submerged areas,
by dredging, filling or other means, or to acquire reclaimed
land;
(b) To develop, improve, acquire, administer, deal in, subdivide,
dispose, lease and sell any and all kinds of lands, buildings,
estates and other forms of real property, owned, managed,
controlled and/or operated by the government;
(c) To provide for, operate or administer such service as may be
necessary for the efficient, economical and beneficial utilization of
the above properties.
418
 Sec. 5. Powers and functions of the Authority. The Authority shall, in
carrying out the purposes for which it is created, have the following
powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area
permitted to private corporations by statute.
(j) To reclaim lands and to construct work across, or otherwise, any
stream, watercourse, canal, ditch, flume x x x.
xxx
(o) To perform such acts and exercise such functions as may be
necessary for the attainment of the purposes and objectives herein
specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged
areas of the public domain. Foreshore areas are those covered and
uncovered by the ebb and flow of the tide.61 Submerged areas are those
permanently under water regardless of the ebb and flow of the
tide.62 Foreshore and submerged areas indisputably belong to the public
domain63 and are inalienable unless reclaimed, classified as alienable lands
open to disposition, and further declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from acquiring
alienable lands of the public domain did not apply to PEA since it was then,
and until today, a fully owned government corporation. The constitutional ban
applied then, as it still applies now, only to "private corporations and
associations." PD No. 1084 expressly empowers PEA "to hold lands of the
public domain" even "in excess of the area permitted to private corporations
by statute." Thus, PEA can hold title to private lands, as well as title to
lands of the public domain.
In order for PEA to sell its reclaimed foreshore and submerged alienable
lands of the public domain, there must be legislative authority empowering
PEA to sell these lands. This legislative authority is necessary in view of
Section 60 of CA No.141, which states
"Sec. 60. x x x; but the land so granted, donated or transferred to a
province, municipality, or branch or subdivision of the Government
shall not be alienated, encumbered or otherwise disposed of in a
manner affecting its title, except when authorized by Congress; x
x x." (Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its
reclaimed foreshore and submerged alienable lands of the public domain.
Nevertheless, any legislative authority granted to PEA to sell its reclaimed
alienable lands of the public domain would be subject to the constitutional
ban on private corporations from acquiring alienable lands of the public
domain. Hence, such legislative authority could only benefit private
individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has
adopted the Regalian doctrine. The 1987 Constitution declares that all
natural resources are "owned by the State," and except for alienable
agricultural lands of the public domain, natural resources cannot be
alienated. Sections 2 and 3, Article XII of the 1987 Constitution state that
"Section 2. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State.
x x x.
Section 3. Lands of the public domain are classified into agricultural,
forest or timber, mineral lands, and national parks. Agricultural lands
of the public domain may be further classified by law according to the
uses which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands
of the public domain except by lease, for a period not exceeding
twenty-five years, renewable for not more than twenty-five
years, and not to exceed one thousand hectares in area. Citizens
of the Philippines may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof by purchase,
homestead, or grant.
419
 Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the
Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the
conditions therefor." (Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973 Constitution
banning private corporations from acquiring any kind of alienable land of
the public domain. Like the 1973 Constitution, the 1987 Constitution allows
private corporations to hold alienable lands of the public domain only
through lease. As in the 1935 and 1973 Constitutions, the general law
governing the lease to private corporations of reclaimed, foreshore and
marshy alienable lands of the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from acquiring,
except through lease, alienable lands of the public domain is not well
understood. During the deliberations of the 1986 Constitutional Commission,
the commissioners probed the rationale behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have reference to
page 3, line 5 which says:
`No private corporation or association may hold alienable lands of
the public domain except by lease, not to exceed one thousand
hectares in area.'
If we recall, this provision did not exist under the 1935 Constitution,
but this was introduced in the 1973 Constitution. In effect, it prohibits
private corporations from acquiring alienable public lands. But it has
not been very clear in jurisprudence what the reason for this is.
In some of the cases decided in 1982 and 1983, it was indicated
that the purpose of this is to prevent large landholdings. Is that
the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo,
there were instances where the Iglesia ni Cristo was not allowed to
acquire a mere 313-square meter land where a chapel stood
because the Supreme Court said it would be in violation of this."
(Emphasis supplied)
In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional
ban in this way:
"Indeed, one purpose of the constitutional prohibition against
purchases of public agricultural lands by private corporations is to
equitably diffuse land ownership or to encourage 'owner-
cultivatorship and the economic family-size farm' and to prevent a
recurrence of cases like the instant case. Huge landholdings by
corporations or private persons had spawned social unrest."
However, if the constitutional intent is to prevent huge landholdings, the
Constitution could have simply limited the size of alienable lands of the public
domain that corporations could acquire. The Constitution could have followed
the limitations on individuals, who could acquire not more than 24 hectares of
alienable lands of the public domain under the 1973 Constitution, and not
more than 12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms,
placing the land in the name of a corporation would be more effective in
preventing the break-up of farmlands. If the farmland is registered in the
name of a corporation, upon the death of the owner, his heirs would inherit
shares in the corporation instead of subdivided parcels of the farmland. This
would prevent the continuing break-up of farmlands into smaller and smaller
plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional
limitation on individuals from acquiring more than the allowed area of
alienable lands of the public domain. Without the constitutional ban,
individuals who already acquired the maximum area of alienable lands of the
public domain could easily set up corporations to acquire more alienable
public lands. An individual could own as many corporations as his means
would allow him. An individual could even hide his ownership of a corporation
by putting his nominees as stockholders of the corporation. The corporation
is a convenient vehicle to circumvent the constitutional limitation on
acquisition by individuals of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to
transfer ownership of only a limited area of alienable land of the public
domain to a qualified individual. This constitutional intent is safeguarded by
the provision prohibiting corporations from acquiring alienable lands of the
420
public domain, since the vehicle to circumvent the constitutional intent is
removed. The available alienable public lands are gradually decreasing in the
face of an ever-growing population. The most effective way to insure faithful
adherence to this constitutional intent is to grant or sell alienable lands of the
public domain only to individuals. This, it would seem, is the practical benefit
arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second Whereas
clause, consists of three properties, namely:
1. "[T]hree partially reclaimed and substantially eroded islands along
Emilio Aguinaldo Boulevard in Paranaque and Las Pinas, Metro
Manila, with a combined titled area of 1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters contiguous to the
three islands;" and
3. "[A]t AMARI's option as approved by PEA, an additional 350
hectares more or less to regularize the configuration of the reclaimed
area."65
PEA confirms that the Amended JVA involves "the development of the
Freedom Islands and further reclamation of about 250 hectares x x x," plus
an option "granted to AMARI to subsequently reclaim another 350 hectares x
x x."66
In short, the Amended JVA covers a reclamation area of 750 hectares. Only
157.84 hectares of the 750-hectare reclamation project have been
reclaimed, and the rest of the 592.15 hectares are still submerged areas
forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of
P1,894,129,200.00 for PEA's "actual cost" in partially reclaiming the Freedom
Islands. AMARI will also complete, at its own expense, the reclamation of the
Freedom Islands. AMARI will further shoulder all the reclamation costs of all
the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and
PEA will share, in the proportion of 70 percent and 30 percent, respectively,
the total net usable area which is defined in the Amended JVA as the total
reclaimed area less 30 percent earmarked for common areas. Title to
AMARI's share in the net usable area, totaling 367.5 hectares, will be issued
in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that
"x x x, PEA shall have the duty to execute without delay the
necessary deed of transfer or conveyance of the title pertaining to
AMARI's Land share based on the Land Allocation Plan. PEA, when
requested in writing by AMARI, shall then cause the issuance
and delivery of the proper certificates of title covering AMARI's
Land Share in the name of AMARI, x x x; provided, that if more
than seventy percent (70%) of the titled area at any given time
pertains to AMARI, PEA shall deliver to AMARI only seventy percent
(70%) of the titles pertaining to AMARI, until such time when a
corresponding proportionate area of additional land pertaining to
PEA has been titled." (Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a
maximum of 367.5 hectares of reclaimed land which will be titled in its
name.
To implement the Amended JVA, PEA delegated to the unincorporated PEA-
AMARI joint venture PEA's statutory authority, rights and privileges to reclaim
foreshore and submerged areas in Manila Bay. Section 3.2.a of the
Amended JVA states that
"PEA hereby contributes to the joint venture its rights and privileges
to perform Rawland Reclamation and Horizontal Development as
well as own the Reclamation Area, thereby granting the Joint
Venture the full and exclusive right, authority and privilege to
undertake the Project in accordance with the Master Development
Plan."
The Amended JVA is the product of a renegotiation of the original JVA dated
April 25, 1995 and its supplemental agreement dated August 9, 1995.
The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can acquire
and own under the Amended JVA 367.5 hectares of reclaimed foreshore and
submerged areas in Manila Bay in view of Sections 2 and 3, Article XII of the
1987 Constitution which state that:
421
 "Section 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by
lease, x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or submerged
areas of Manila Bay are alienable or disposable lands of the public domain.
In its Memorandum,67 PEA admits that
"Under the Public Land Act (CA 141, as amended), reclaimed lands
are classified as alienable and disposable lands of the public
domain:
'Sec. 59. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the government by dredging, filling,
or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force68 constituted under Presidential
Administrative Order No. 365 admitted in its Report and Recommendation to
then President Fidel V. Ramos, "[R]eclaimed lands are classified as
alienable and disposable lands of the public domain."69 The Legal Task
Force concluded that
"D. Conclusion
Reclaimed lands are lands of the public domain. However, by
statutory authority, the rights of ownership and disposition over
reclaimed lands have been transferred to PEA, by virtue of which
PEA, as owner, may validly convey the same to any qualified person
without violating the Constitution or any statute.
The constitutional provision prohibiting private corporations from
holding public land, except by lease (Sec. 3, Art. XVII,70 1987
Constitution), does not apply to reclaimed lands whose ownership
has passed on to PEA by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore and
submerged areas of Manila Bay are part of the "lands of the public domain,
waters x x x and other natural resources" and consequently "owned by the
State." As such, foreshore and submerged areas "shall not be alienated,"
unless they are classified as "agricultural lands" of the public domain. The
mere reclamation of these areas by PEA does not convert these inalienable
natural resources of the State into alienable or disposable lands of the public
domain. There must be a law or presidential proclamation officially classifying
these reclaimed lands as alienable or disposable and open to disposition or
concession. Moreover, these reclaimed lands cannot be classified as
alienable or disposable if the law has reserved them for some public or
quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be declared
open to disposition or concession which have been officially delimited and
classified."72 The President has the authority to classify inalienable lands of
the public domain into alienable or disposable lands of the public domain,
pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,73 the Executive
Department attempted to sell the Roppongi property in Tokyo, Japan, which
was acquired by the Philippine Government for use as the Chancery of the
Philippine Embassy. Although the Chancery had transferred to another
location thirteen years earlier, the Court still ruled that, under Article 422 74 of
the Civil Code, a property of public dominion retains such character until
formally declared otherwise. The Court ruled that
"The fact that the Roppongi site has not been used for a long time for
actual Embassy service does not automatically convert it to
patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be
part of the public domain, not available for private appropriation
or ownership 'until there is a formal declaration on the part of
the government to withdraw it from being such' (Ignacio v.
Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)
422
PD No. 1085, issued on February 4, 1977, authorized the issuance of special
land patents for lands reclaimed by PEA from the foreshore or submerged
areas of Manila Bay. On January 19, 1988 then President Corazon C. Aquino
issued Special Patent No. 3517 in the name of PEA for the 157.84 hectares
comprising the partially reclaimed Freedom Islands. Subsequently, on April
9, 1999 the Register of Deeds of the Municipality of Paranaque issued TCT
Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of
PD No. 1529 authorizing the issuance of certificates of title corresponding to
land patents. To this day, these certificates of title are still in the name of
PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a special
patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public
domain. PD No. 1085 and President Aquino's issuance of a land patent also
constitute a declaration that the Freedom Islands are no longer needed for
public service. The Freedom Islands are thus alienable or disposable
lands of the public domain, open to disposition or concession to
qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had
already reclaimed the Freedom Islands although subsequently there were
partial erosions on some areas. The government had also completed the
necessary surveys on these islands. Thus, the Freedom Islands were no
longer part of Manila Bay but part of the land mass. Section 3, Article XII of
the 1987 Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither timber,
mineral, nor national park lands, the reclaimed Freedom Islands necessarily
fall under the classification of agricultural lands of the public domain. Under
the 1987 Constitution, agricultural lands of the public domain are the only
natural resources that the State may alienate to qualified private parties. All
other natural resources, such as the seas or bays, are "waters x x x owned
by the State" forming part of the public domain, and are inalienable pursuant
to Section 2, Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP,
then a private corporation, reclaimed the islands under a contract dated
November 20, 1973 with the Commissioner of Public Highways. AMARI,
citing Article 5 of the Spanish Law of Waters of 1866, argues that "if the
ownership of reclaimed lands may be given to the party constructing the
works, then it cannot be said that reclaimed lands are lands of the public
domain which the State may not alienate."75 Article 5 of the Spanish Law of
Waters reads as follows:
"Article 5. Lands reclaimed from the sea in consequence of works
constructed by the State, or by the provinces, pueblos or private
persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the
terms of the grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could
reclaim from the sea only with "proper permission" from the State. Private
parties could own the reclaimed land only if not "otherwise provided by the
terms of the grant of authority." This clearly meant that no one could reclaim
from the sea without permission from the State because the sea is property
of public dominion. It also meant that the State could grant or withhold
ownership of the reclaimed land because any reclaimed land, like the sea
from which it emerged, belonged to the State. Thus, a private person
reclaiming from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of public
dominion like the sea it replaced.76 Article 5 of the Spanish Law of Waters of
1866 adopted the time-honored principle of land ownership that "all lands
that were not acquired from the government, either by purchase or by grant,
belong to the public domain."77
Article 5 of the Spanish Law of Waters must be read together with laws
subsequently enacted on the disposition of public lands. In particular, CA No.
141 requires that lands of the public domain must first be classified as
alienable or disposable before the government can alienate them. These
lands must not be reserved for public or quasi-public purposes.78 Moreover,
the contract between CDCP and the government was executed after the
effectivity of the 1973 Constitution which barred private corporations from
acquiring any kind of alienable land of the public domain. This contract could
not have converted the Freedom Islands into private lands of a private
corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws
authorizing the reclamation of areas under water and revested solely in the
National Government the power to reclaim lands. Section 1 of PD No. 3-A
declared that
"The provisions of any law to the contrary notwithstanding, the
reclamation of areas under water, whether foreshore or inland, shall
be limited to the National Government or any person authorized
by it under a proper contract. (Emphasis supplied)
x x x."
423
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866
because reclamation of areas under water could now be undertaken only by
the National Government or by a person contracted by the National
Government. Private parties may reclaim from the sea only under a contract
with the National Government, and no longer by grant or permission as
provided in Section 5 of the Spanish Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as
the National Government's implementing arm to undertake "all reclamation
projects of the government," which "shall be undertaken by the PEA or
through a proper contract executed by it with any person or entity."
Under such contract, a private party receives compensation for reclamation
services rendered to PEA. Payment to the contractor may be in cash, or in
kind consisting of portions of the reclaimed land, subject to the constitutional
ban on private corporations from acquiring alienable lands of the public
domain. The reclaimed land can be used as payment in kind only if the
reclaimed land is first classified as alienable or disposable land open to
disposition, and then declared no longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an
additional 592.15 hectares which are still submerged and forming part of
Manila Bay. There is no legislative or Presidential act classifying these
submerged areas as alienable or disposable lands of the public domain
open to disposition. These submerged areas are not covered by any patent
or certificate of title. There can be no dispute that these submerged areas
form part of the public domain, and in their present state are inalienable and
outside the commerce of man. Until reclaimed from the sea, these
submerged areas are, under the Constitution, "waters x x x owned by the
State," forming part of the public domain and consequently inalienable. Only
when actually reclaimed from the sea can these submerged areas be
classified as public agricultural lands, which under the Constitution are the
only natural resources that the State may alienate. Once reclaimed and
transformed into public agricultural lands, the government may then officially
classify these lands as alienable or disposable lands open to disposition.
Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable
or disposable lands of the public domain and within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged lands into
alienable or disposable lands open to disposition is necessary because PEA
is tasked under its charter to undertake public services that require the use of
lands of the public domain. Under Section 5 of PD No. 1084, the functions of
PEA include the following: "[T]o own or operate railroads, tramways and
other kinds of land transportation, x x x; [T]o construct, maintain and operate
such systems of sanitary sewers as may be necessary; [T]o construct,
maintain and operate such storm drains as may be necessary." PEA is
empowered to issue "rules and regulations as may be necessary for the
proper use by private parties of any or all of the highways, roads, utilities,
buildings and/or any of its properties and to impose or collect fees or tolls
for their use." Thus, part of the reclaimed foreshore and submerged lands
held by the PEA would actually be needed for public use or service since
many of the functions imposed on PEA by its charter constitute essential
public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be
primarily responsible for integrating, directing, and coordinating all
reclamation projects for and on behalf of the National Government." The
same section also states that "[A]ll reclamation projects shall be approved by
the President upon recommendation of the PEA, and shall be undertaken by
the PEA or through a proper contract executed by it with any person or entity;
x x x." Thus, under EO No. 525, in relation to PD No. 3-A and PD No.1084,
PEA became the primary implementing agency of the National Government
to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of
lands and ensure their maximum utilization in promoting public welfare
and interests."79 Since large portions of these reclaimed lands would
obviously be needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service from those
still needed for public service.1wphi1.nt
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall
belong to or be owned by the PEA," could not automatically operate to
classify inalienable lands into alienable or disposable lands of the public
domain. Otherwise, reclaimed foreshore and submerged lands of the public
domain would automatically become alienable once reclaimed by PEA,
whether or not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No.
1084 or EO No. 525, vests in the Department of Environment and Natural
Resources ("DENR" for brevity) the following powers and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
424
 (4) Exercise supervision and control over forest lands, alienable
and disposable public lands, mineral resources and, in the
process of exercising such control, impose appropriate taxes, fees,
charges, rentals and any such form of levy and collect such
revenues for the exploration, development, utilization or gathering of
such resources;
xxx
(14) Promulgate rules, regulations and guidelines on the
issuance of licenses, permits, concessions, lease agreements
and such other privileges concerning the development,
exploration and utilization of the country's marine, freshwater,
and brackish water and over all aquatic resources of the
country and shall continue to oversee, supervise and police our
natural resources; cancel or cause to cancel such privileges upon
failure, non-compliance or violations of any regulation, order, and for
all other causes which are in furtherance of the conservation of
natural resources and supportive of the national interest;
(15) Exercise exclusive jurisdiction on the management and
disposition of all lands of the public domain and serve as the
sole agency responsible for classification, sub-classification,
surveying and titling of lands in consultation with appropriate
agencies."80 (Emphasis supplied)
As manager, conservator and overseer of the natural resources of the State,
DENR exercises "supervision and control over alienable and disposable
public lands." DENR also exercises "exclusive jurisdiction on the
management and disposition of all lands of the public domain." Thus, DENR
decides whether areas under water, like foreshore or submerged areas of
Manila Bay, should be reclaimed or not. This means that PEA needs
authorization from DENR before PEA can undertake reclamation projects in
Manila Bay, or in any part of the country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of
the public domain. Hence, DENR decides whether reclaimed lands of PEA
should be classified as alienable under Sections 6 81 and 782 of CA No. 141.
Once DENR decides that the reclaimed lands should be so classified, it then
recommends to the President the issuance of a proclamation classifying the
lands as alienable or disposable lands of the public domain open to
disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr.
countersigned Special Patent No. 3517 in compliance with the Revised
Administrative Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas
under water, while PEA is vested with the power to undertake the physical
reclamation of areas under water, whether directly or through private
contractors. DENR is also empowered to classify lands of the public domain
into alienable or disposable lands subject to the approval of the President.
On the other hand, PEA is tasked to develop, sell or lease the reclaimed
alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or
submerged areas does not make the reclaimed lands alienable or disposable
lands of the public domain, much less patrimonial lands of PEA. Likewise,
the mere transfer by the National Government of lands of the public domain
to PEA does not make the lands alienable or disposable lands of the public
domain, much less patrimonial lands of PEA.
Absent two official acts a classification that these lands are alienable or
disposable and open to disposition and a declaration that these lands are not
needed for public service, lands reclaimed by PEA remain inalienable lands
of the public domain. Only such an official classification and formal
declaration can convert reclaimed lands into alienable or disposable lands of
the public domain, open to disposition under the Constitution, Title I and Title
III83 of CA No. 141 and other applicable laws.84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable lands
of the public domain, the reclaimed lands shall be disposed of in accordance
with CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No. 141,
admits that reclaimed lands transferred to a branch or subdivision of the
government "shall not be alienated, encumbered, or otherwise disposed of in
a manner affecting its title, except when authorized by Congress: x x
x."85 (Emphasis by PEA)
In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised
Administrative Code of 1987, which states that
"Sec. 48. Official Authorized to Convey Real Property. Whenever
real property of the Government is authorized by law to be
conveyed, the deed of conveyance shall be executed in behalf of
the government by the following: x x x."
425
Thus, the Court concluded that a law is needed to convey any real property
belonging to the Government. The Court declared that -
"It is not for the President to convey real property of the government
on his or her own sole will. Any such conveyance must be
authorized and approved by a law enacted by the Congress. It
requires executive and legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the legislative
authority allowing PEA to sell its reclaimed lands. PD No. 1085, issued on
February 4, 1977, provides that
"The land reclaimed in the foreshore and offshore area of Manila
Bay pursuant to the contract for the reclamation and construction of
the Manila-Cavite Coastal Road Project between the Republic of the
Philippines and the Construction and Development Corporation of
the Philippines dated November 20, 1973 and/or any other contract
or reclamation covering the same area is hereby transferred,
conveyed and assigned to the ownership and administration of
the Public Estates Authority established pursuant to PD No. 1084;
Provided, however, That the rights and interests of the Construction
and Development Corporation of the Philippines pursuant to the
aforesaid contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and
assume the obligations of the Republic of the Philippines
(Department of Public Highways) arising from, or incident to, the
aforesaid contract between the Republic of the Philippines and the
Construction and Development Corporation of the Philippines.
In consideration of the foregoing transfer and assignment, the Public
Estates Authority shall issue in favor of the Republic of the
Philippines the corresponding shares of stock in said entity with an
issued value of said shares of stock (which) shall be deemed fully
paid and non-assessable.
The Secretary of Public Highways and the General Manager of the
Public Estates Authority shall execute such contracts or agreements,
including appropriate agreements with the Construction and
Development Corporation of the Philippines, as may be necessary to
implement the above.
Special land patent/patents shall be issued by the Secretary of
Natural Resources in favor of the Public Estates Authority
without prejudice to the subsequent transfer to the contractor
or his assignees of such portion or portions of the land
reclaimed or to be reclaimed as provided for in the above-
mentioned contract. On the basis of such patents, the Land
Registration Commission shall issue the corresponding
certificate of title." (Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14, 1979,
provides that -
"Sec. 3. All lands reclaimed by PEA shall belong to or be owned
by the PEA which shall be responsible for its administration,
development, utilization or disposition in accordance with the
provisions of Presidential Decree No. 1084. Any and all income that
the PEA may derive from the sale, lease or use of reclaimed lands
shall be used in accordance with the provisions of Presidential
Decree No. 1084."
There is no express authority under either PD No. 1085 or EO No. 525 for
PEA to sell its reclaimed lands. PD No. 1085 merely transferred "ownership
and administration" of lands reclaimed from Manila Bay to PEA, while EO
No. 525 declared that lands reclaimed by PEA "shall belong to or be owned
by PEA." EO No. 525 expressly states that PEA should dispose of its
reclaimed lands "in accordance with the provisions of Presidential Decree
No. 1084," the charter of PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve, acquire,
administer, deal in, subdivide, dispose, lease and sell any and all kinds of
lands x x x owned, managed, controlled and/or operated by the
government."87(Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or
alienable lands of the public domain. PEA may sell to private parties
its patrimonial propertiesin accordance with the PEA charter free from
constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of
PEA's patrimonial lands.
PEA may also sell its alienable or disposable lands of the public
domain to private individuals since, with the legislative authority, there is no
longer any statutory prohibition against such sales and the constitutional ban
does not apply to individuals. PEA, however, cannot sell any of its alienable
426
or disposable lands of the public domain to private corporations since
Section 3, Article XII of the 1987 Constitution expressly prohibits such sales.
The legislative authority benefits only individuals. Private corporations remain
barred from acquiring any kind of alienable land of the public domain,
including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed lands
could be transferred by PEA to the "contractor or his assignees" (Emphasis
supplied) would not apply to private corporations but only to individuals
because of the constitutional ban. Otherwise, the provisions of PD No. 1085
would violate both the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or
disposable lands open to disposition, and further declared no longer needed
for public service, PEA would have to conduct a public bidding in selling or
leasing these lands. PEA must observe the provisions of Sections 63 and 67
of CA No. 141 requiring public auction, in the absence of a law exempting
PEA from holding a public auction.88 Special Patent No. 3517 expressly
states that the patent is issued by authority of the Constitution and PD No.
1084, "supplemented by Commonwealth Act No. 141, as amended." This is
an acknowledgment that the provisions of CA No. 141 apply to the
disposition of reclaimed alienable lands of the public domain unless
otherwise provided by law. Executive Order No. 654,89 which authorizes PEA
"to determine the kind and manner of payment for the transfer" of its assets
and properties, does not exempt PEA from the requirement of public auction.
EO No. 654 merely authorizes PEA to decide the mode of payment, whether
in kind and in installment, but does not authorize PEA to dispense with public
auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell valuable
government property through public bidding. Section 79 of PD No. 1445
mandates that
"Section 79. When government property has become
unserviceable for any cause, or is no longer needed, it shall, upon
application of the officer accountable therefor, be inspected by the
head of the agency or his duly authorized representative in the
presence of the auditor concerned and, if found to be valueless or
unsaleable, it may be destroyed in their presence. If found to be
valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on award or
similar body in the presence of the auditor concerned or other
authorized representative of the Commission, after advertising by
printed notice in the Official Gazette, or for not less than three
consecutive days in any newspaper of general circulation, or
where the value of the property does not warrant the expense of
publication, by notices posted for a like period in at least three public
places in the locality where the property is to be sold. In the event
that the public auction fails, the property may be sold at a
private sale at such price as may be fixed by the same
committee or body concerned and approved by the
Commission."
It is only when the public auction fails that a negotiated sale is allowed, in
which case the Commission on Audit must approve the selling price. 90 The
Commission on Audit implements Section 79 of the Government Auditing
Code through Circular No. 89-29691 dated January 27, 1989. This circular
emphasizes that government assets must be disposed of only through public
auction, and a negotiated sale can be resorted to only in case of "failure of
public auction."
At the public auction sale, only Philippine citizens are qualified to bid for
PEA's reclaimed foreshore and submerged alienable lands of the public
domain. Private corporations are barred from bidding at the auction sale of
any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on
December 10, 1991. PEA imposed a condition that the winning bidder should
reclaim another 250 hectares of submerged areas to regularize the shape of
the Freedom Islands, under a 60-40 sharing of the additional reclaimed areas
in favor of the winning bidder.92 No one, however, submitted a bid. On
December 23, 1994, the Government Corporate Counsel advised PEA it
could sell the Freedom Islands through negotiation, without need of another
public bidding, because of the failure of the public bidding on December 10,
1991.93
However, the original JVA dated April 25, 1995 covered not only the
Freedom Islands and the additional 250 hectares still to be reclaimed, it also
granted an option to AMARI to reclaim another 350 hectares. The original
JVA, a negotiated contract, enlarged the reclamation area to 750
hectares.94 The failure of public bidding on December 10, 1991, involving
only 407.84 hectares,95 is not a valid justification for a negotiated sale of 750
hectares, almost double the area publicly auctioned. Besides, the failure of
427
public bidding happened on December 10, 1991, more than three years
before the signing of the original JVA on April 25, 1995. The economic
situation in the country had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987 Constitution
is absolute and clear: "Private corporations or associations may not hold
such alienable lands of the public domain except by lease, x x x." Even
Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as
legislative authority to sell reclaimed lands to private parties, recognizes the
constitutional ban. Section 6 of RA No. 6957 states
"Sec. 6. Repayment Scheme. - For the financing, construction,
operation and maintenance of any infrastructure projects undertaken
through the build-operate-and-transfer arrangement or any of its
variations pursuant to the provisions of this Act, the project
proponent x x x may likewise be repaid in the form of a share in the
revenue of the project or other non-monetary payments, such as, but
not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to
the ownership of the land: x x x." (Emphasis supplied)
A private corporation, even one that undertakes the physical reclamation of a
government BOT project, cannot acquire reclaimed alienable lands of the
public domain in view of the constitutional ban.
Section 302 of the Local Government Code, also mentioned by PEA and
AMARI, authorizes local governments in land reclamation projects to pay the
contractor or developer in kind consisting of a percentage of the reclaimed
land, to wit:
"Section 302. Financing, Construction, Maintenance, Operation, and
Management of Infrastructure Projects by the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial estates, the
repayment plan may consist of the grant of a portion or percentage
of the reclaimed land or the industrial estate constructed."
Although Section 302 of the Local Government Code does not contain a
proviso similar to that of the BOT Law, the constitutional restrictions on land
ownership automatically apply even though not expressly mentioned in the
Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the
contractor or developer, if a corporate entity, can only be paid with
leaseholds on portions of the reclaimed land. If the contractor or developer is
an individual, portions of the reclaimed land, not exceeding 12 hectares 96 of
non-agricultural lands, may be conveyed to him in ownership in view of the
legislative authority allowing such conveyance. This is the only way these
provisions of the BOT Law and the Local Government Code can avoid a
direct collision with Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the
reclaimed lands to public respondent PEA transformed such lands of the
public domain to private lands." This theory is echoed by AMARI which
maintains that the "issuance of the special patent leading to the eventual
issuance of title takes the subject land away from the land of public domain
and converts the property into patrimonial or private property." In short, PEA
and AMARI contend that with the issuance of Special Patent No. 3517 and
the corresponding certificates of titles, the 157.84 hectares comprising the
Freedom Islands have become private lands of PEA. In support of their
theory, PEA and AMARI cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court held
"Once the patent was granted and the corresponding certificate of
title was issued, the land ceased to be part of the public domain and
became private property over which the Director of Lands has
neither control nor jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared -
"After the registration and issuance of the certificate and duplicate
certificate of title based on a public land patent, the land covered
thereby automatically comes under the operation of Republic Act 496
subject to all the safeguards provided therein."3. Heirs of Gregorio
Tengco v. Heirs of Jose Aliwalas,99 where the Court ruled -
428
 "While the Director of Lands has the power to review homestead
patents, he may do so only so long as the land remains part of the
public domain and continues to be under his exclusive control; but
once the patent is registered and a certificate of title is issued, the
land ceases to be part of the public domain and becomes private
property over which the Director of Lands has neither control nor
jurisdiction."
4. Manalo v. Intermediate Appellate Court,100 where the Court held
"When the lots in dispute were certified as disposable on May 19,
1971, and free patents were issued covering the same in favor of the
private respondents, the said lots ceased to be part of the public
domain and, therefore, the Director of Lands lost jurisdiction over the
same."
5.Republic v. Court of Appeals,101 where the Court stated
"Proclamation No. 350, dated October 9, 1956, of President
Magsaysay legally effected a land grant to the Mindanao Medical
Center, Bureau of Medical Services, Department of Health, of the
whole lot, validly sufficient for initial registration under the Land
Registration Act. Such land grant is constitutive of a 'fee simple' title
or absolute title in favor of petitioner Mindanao Medical Center. Thus,
Section 122 of the Act, which governs the registration of grants or
patents involving public lands, provides that 'Whenever public lands
in the Philippine Islands belonging to the Government of the United
States or to the Government of the Philippines are alienated, granted
or conveyed to persons or to public or private corporations, the same
shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands.'"
The first four cases cited involve petitions to cancel the land patents and the
corresponding certificates of titles issued to private parties. These four
cases uniformly hold that the Director of Lands has no jurisdiction over
private lands or that upon issuance of the certificate of title the land
automatically comes under the Torrens System. The fifth case cited involves
the registration under the Torrens System of a 12.8-hectare public land
granted by the National Government to Mindanao Medical Center, a
government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital
buildings and other facilities of Mindanao Medical Center, which performed a
public service. The Court affirmed the registration of the 12.8-hectare public
land in the name of Mindanao Medical Center under Section 122 of Act No.
496. This fifth case is an example of a public land being registered under Act
No. 496 without the land losing its character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are those in
the name of PEA, a wholly government owned corporation performing public
as well as proprietary functions. No patent or certificate of title has been
issued to any private party. No one is asking the Director of Lands to cancel
PEA's patent or certificates of title. In fact, the thrust of the instant petition is
that PEA's certificates of title should remain with PEA, and the land covered
by these certificates, being alienable lands of the public domain, should not
be sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the
registrant private or public ownership of the land. Registration is not a mode
of acquiring ownership but is merely evidence of ownership previously
conferred by any of the recognized modes of acquiring ownership.
Registration does not give the registrant a better right than what the
registrant had prior to the registration.102 The registration of lands of the
public domain under the Torrens system, by itself, cannot convert public
lands into private lands.103
Jurisprudence holding that upon the grant of the patent or issuance of the
certificate of title the alienable land of the public domain automatically
becomes private land cannot apply to government units and entities like
PEA. The transfer of the Freedom Islands to PEA was made subject to the
provisions of CA No. 141 as expressly stated in Special Patent No. 3517
issued by then President Aquino, to wit:
"NOW, THEREFORE, KNOW YE, that by authority of the
Constitution of the Philippines and in conformity with the provisions
of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby
granted and conveyed unto the Public Estates Authority the
aforesaid tracts of land containing a total area of one million nine
hundred fifteen thousand eight hundred ninety four (1,915,894)
square meters; the technical description of which are hereto attached
and made an integral part hereof." (Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters
not covered by PD No. 1084. Section 60 of CA No. 141 prohibits, "except
when authorized by Congress," the sale of alienable lands of the public
domain that are transferred to government units or entities. Section 60 of CA
429
No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien
affecting title" of the registered land even if not annotated on the certificate of
title.104Alienable lands of the public domain held by government entities
under Section 60 of CA No. 141 remain public lands because they cannot be
alienated or encumbered unless Congress passes a law authorizing their
disposition. Congress, however, cannot authorize the sale to private
corporations of reclaimed alienable lands of the public domain because of
the constitutional ban. Only individuals can benefit from such law.
The grant of legislative authority to sell public lands in accordance with
Section 60 of CA No. 141 does not automatically convert alienable lands of
the public domain into private or patrimonial lands. The alienable lands of the
public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands
can become private or patrimonial lands. Otherwise, the constitutional ban
will become illusory if Congress can declare lands of the public domain as
private or patrimonial lands in the hands of a government agency tasked to
dispose of public lands. This will allow private corporations to acquire directly
from government agencies limitless areas of lands which, prior to such law,
are concededly public lands.
Under EO No. 525, PEA became the central implementing agency of the
National Government to reclaim foreshore and submerged areas of the
public domain. Thus, EO No. 525 declares that
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency Primarily
Responsible for all Reclamation Projects
Whereas, there are several reclamation projects which are ongoing
or being proposed to be undertaken in various parts of the country
which need to be evaluated for consistency with national programs;
Whereas, there is a need to give further institutional support to the
Government's declared policy to provide for a coordinated,
economical and efficient reclamation of lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation
of areas shall be limited to the National Government or any person
authorized by it under proper contract;
Whereas, a central authority is needed to act on behalf of the
National Government which shall ensure a coordinated and
integrated approach in the reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the Public
Estates Authority as a government corporation to undertake
reclamation of lands and ensure their maximum utilization in
promoting public welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the President with
continuing authority to reorganize the national government including
the transfer, abolition, or merger of functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution
and pursuant to Presidential Decree No. 1416, do hereby order and
direct the following:
Section 1. The Public Estates Authority (PEA) shall be primarily
responsible for integrating, directing, and coordinating all
reclamation projects for and on behalf of the National
Government. All reclamation projects shall be approved by the
President upon recommendation of the PEA, and shall be
undertaken by the PEA or through a proper contract executed by it
with any person or entity; Provided, that, reclamation projects of any
national government agency or entity authorized under its charter
shall be undertaken in consultation with the PEA upon approval of
the President.
x x x ."
As the central implementing agency tasked to undertake reclamation projects
nationwide, with authority to sell reclaimed lands, PEA took the place of
DENR as the government agency charged with leasing or selling reclaimed
lands of the public domain. The reclaimed lands being leased or sold by PEA
are not private lands, in the same manner that DENR, when it disposes of
other alienable lands, does not dispose of private lands but alienable lands of
the public domain. Only when qualified private parties acquire these lands
will the lands become private lands. In the hands of the government
agency tasked and authorized to dispose of alienable of disposable
lands of the public domain, these lands are still public, not private
lands.
430
Furthermore, PEA's charter expressly states that PEA "shall hold lands of
the public domain" as well as "any and all kinds of lands." PEA can hold
both lands of the public domain and private lands. Thus, the mere fact that
alienable lands of the public domain like the Freedom Islands are transferred
to PEA and issued land patents or certificates of title in PEA's name does not
automatically make such lands private.
To allow vast areas of reclaimed lands of the public domain to be transferred
to PEA as private lands will sanction a gross violation of the constitutional
ban on private corporations from acquiring any kind of alienable land of the
public domain. PEA will simply turn around, as PEA has now done under
the Amended JVA, and transfer several hundreds of hectares of these
reclaimed and still to be reclaimed lands to a single private corporation in
only one transaction. This scheme will effectively nullify the constitutional ban
in Section 3, Article XII of the 1987 Constitution which was intended to
diffuse equitably the ownership of alienable lands of the public domain
among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands
of the public domain since PEA can "acquire x x x any and all kinds of lands."
This will open the floodgates to corporations and even individuals acquiring
hundreds of hectares of alienable lands of the public domain under the guise
that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country -
creating the very evil that the constitutional ban was designed to prevent.
This will completely reverse the clear direction of constitutional development
in this country. The 1935 Constitution allowed private corporations to acquire
not more than 1,024 hectares of public lands.105 The 1973 Constitution
prohibited private corporations from acquiring any kind of public land, and the
1987 Constitution has unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands, once registered under
Act No. 496 or PD No. 1529, automatically become private lands is contrary
to existing laws. Several laws authorize lands of the public domain to be
registered under the Torrens System or Act No. 496, now PD No. 1529,
without losing their character as public lands. Section 122 of Act No. 496,
and Section 103 of PD No. 1529, respectively, provide as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands belonging
to the x x x Government of the Philippine Islands are alienated,
granted, or conveyed to persons or the public or private
corporations, the same shall be brought forthwith under the
operation of this Act and shall become registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever public land is by
the Government alienated, granted or conveyed to any person, the
same shall be brought forthwith under the operation of this Decree."
(Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person" in
Section 103 of PD No. 1529 includes conveyances of public lands to public
corporations.
Alienable lands of the public domain "granted, donated, or transferred to a
province, municipality, or branch or subdivision of the Government," as
provided in Section 60 of CA No. 141, may be registered under the Torrens
System pursuant to Section 103 of PD No. 1529. Such registration, however,
is expressly subject to the condition in Section 60 of CA No. 141 that the land
"shall not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress." This provision
refers to government reclaimed, foreshore and marshy lands of the public
domain that have been titled but still cannot be alienated or encumbered
unless expressly authorized by Congress. The need for legislative authority
prevents the registered land of the public domain from becoming private land
that can be disposed of to qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands of the
public domain may be registered under the Torrens System. Section 48,
Chapter 12, Book I of the Code states
"Sec. 48. Official Authorized to Convey Real Property. Whenever
real property of the Government is authorized by law to be conveyed,
the deed of conveyance shall be executed in behalf of the
government by the following:
(1) x x x
(2) For property belonging to the Republic of the Philippines,
but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head of the
agency or instrumentality." (Emphasis supplied)
431
Thus, private property purchased by the National Government for expansion
of a public wharf may be titled in the name of a government corporation
regulating port operations in the country. Private property purchased by the
National Government for expansion of an airport may also be titled in the
name of the government agency tasked to administer the airport. Private
property donated to a municipality for use as a town plaza or public school
site may likewise be titled in the name of the municipality. 106 All these
properties become properties of the public domain, and if already registered
under Act No. 496 or PD No. 1529, remain registered land. There is no
requirement or provision in any existing law for the de-registration of land
from the Torrens System.
Private lands taken by the Government for public use under its power of
eminent domain become unquestionably part of the public domain.
Nevertheless, Section 85 of PD No. 1529 authorizes the Register of Deeds to
issue in the name of the National Government new certificates of title
covering such expropriated lands. Section 85 of PD No. 1529 states
"Sec. 85. Land taken by eminent domain. Whenever any registered
land, or interest therein, is expropriated or taken by eminent domain,
the National Government, province, city or municipality, or any other
agency or instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the judgment
which shall state definitely by an adequate description, the particular
property or interest expropriated, the number of the certificate of title,
and the nature of the public use. A memorandum of the right or
interest taken shall be made on each certificate of title by the
Register of Deeds, and where the fee simple is taken, a new
certificate shall be issued in favor of the National Government,
province, city, municipality, or any other agency or instrumentality
exercising such right for the land so taken. The legal expenses
incident to the memorandum of registration or issuance of a new
certificate of title shall be for the account of the authority taking the
land or interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not
exclusively private or patrimonial lands. Lands of the public domain may also
be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI
of the Freedom Islands or of the lands to be reclaimed from submerged
areas of Manila Bay. In the words of AMARI, the Amended JVA "is not a sale
but a joint venture with a stipulation for reimbursement of the original cost
incurred by PEA for the earlier reclamation and construction works performed
by the CDCP under its 1973 contract with the Republic." Whether the
Amended JVA is a sale or a joint venture, the fact remains that the Amended
JVA requires PEA to "cause the issuance and delivery of the certificates of
title conveying AMARI's Land Share in the name of AMARI."107
This stipulation still contravenes Section 3, Article XII of the 1987
Constitution which provides that private corporations "shall not hold such
alienable lands of the public domain except by lease." The transfer of title
and ownership to AMARI clearly means that AMARI will "hold" the reclaimed
lands other than by lease. The transfer of title and ownership is a
"disposition" of the reclaimed lands, a transaction considered a sale or
alienation under CA No. 141,108 the Government Auditing Code,109 and
Section 3, Article XII of the 1987 Constitution.
The Regalian doctrine is deeply implanted in our legal system. Foreshore
and submerged areas form part of the public domain and are inalienable.
Lands reclaimed from foreshore and submerged areas also form part of the
public domain and are also inalienable, unless converted pursuant to law into
alienable or disposable lands of the public domain. Historically, lands
reclaimed by the government are sui generis, not available for sale to
private parties unlike other alienable public lands. Reclaimed lands retain
their inherent potential as areas for public use or public service. Alienable
lands of the public domain, increasingly becoming scarce natural resources,
are to be distributed equitably among our ever-growing population. To insure
such equitable distribution, the 1973 and 1987 Constitutions have barred
private corporations from acquiring any kind of alienable land of the public
domain. Those who attempt to dispose of inalienable natural resources of the
State, or seek to circumvent the constitutional ban on alienation of lands of
the public domain to private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the Freedom
Islands, now covered by certificates of title in the name of PEA,
are alienable lands of the public domain. PEA may lease these
lands to private corporations but may not sell or transfer ownership
of these lands to private corporations. PEA may only sell these lands
to Philippine citizens, subject to the ownership limitations in the 1987
Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay remain
inalienable natural resources of the public domain until classified as
432
 alienable or disposable lands open to disposition and declared no
longer needed for public service. The government can make such
classification and declaration only after PEA has reclaimed these
submerged areas. Only then can these lands qualify as agricultural
lands of the public domain, which are the only natural resources the
government can alienate. In their present state, the 592.15 hectares
of submerged areas are inalienable and outside the commerce of
man.
WHEREFORE, the petition is GRANTED. The Public Estates Authority and
Amari Coastal Bay Development Corporation are PERMANENTLY
ENJOINED from implementing the Amended Joint Venture Agreement which
is hereby declared NULL and VOID ab initio.
HAZEL MA. C. ANTOLIN, G.R. No. 165036
Petitioner,

3. Since the Amended JVA seeks to transfer to AMARI, a private - versus -

corporation, ownership of 77.34 hectares110of the Freedom Islands,
such transfer is void for being contrary to Section 3, Article XII of the ABELARDO T. DOMONDON,
1987 Constitution which prohibits private corporations from acquiring JOSE A. GANGAN, and
any kind of alienable land of the public domain. VIOLETA J. JOSEF,
Respondents.
4. Since the Amended JVA also seeks to transfer to AMARI x - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ownership of 290.156 hectares111 of still submerged areas of Manila
Bay, such transfer is void for being contrary to Section 2, Article XII HAZEL MA. C. ANTOLIN G.R. No. 175705
of the 1987 Constitution which prohibits the alienation of natural Petitioner,
resources other than agricultural lands of the public domain. PEA
may reclaim these submerged areas. Thereafter, the government Present:
can classify the reclaimed lands as alienable or disposable, and
further declare them no longer needed for public service. Still, the CORONA, C. J., Chairperson,
transfer of such reclaimed alienable lands of the public domain to - versus - VELASCO, JR.,
AMARI will be void in view of Section 3, Article XII of the 1987 LEONARDO-DE CASTRO,
Constitution which prohibits private corporations from acquiring any DEL CASTILLO, and
kind of alienable land of the public domain. PEREZ, JJ.

ANTONIETA FORTUNA-IBE, Promulgated:

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of
Respondent. July 5, 2010
the 1987 Constitution. Under Article 1409112 of the Civil Code, contracts
whose "object or purpose is contrary to law," or whose "object is outside the x---------------------------------------------------------------
----x
commerce of men," are "inexistent and void from the beginning." The Court
must perform its duty to defend and uphold the Constitution, and therefore
declares the Amended JVA null and void ab initio.
DECISION
Seventh issue: whether the Court is the proper forum to raise the issue
of whether the Amended JVA is grossly disadvantageous to the DEL CASTILLO, J.:
government.

Considering that the Amended JVA is null and void ab initio, there is no
necessity to rule on this last issue. Besides, the Court is not a trier of facts,
and this last issue involves a determination of factual matters.
Examinations have a two-fold purpose. First, they are summative; examinations are
intended to assess and record what and how much the students have
learned. Second, and perhaps more importantly, they are formative; examinations
433
are intended to be part and parcel of the learning process. In a perfect system, they request for copies of (a) the questionnaire in each of the seven subjects (b) her
are tools for learning. In view of the pedagogical aspect of national examinations, the answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of
need for all parties to fully ventilate their respective positions, and the view that the grading system used in each subject (collectively, the Examination Papers).[5]
government transactions can only be improved by public scrutiny, we remand these
Acting Chairman Domondon denied petitioners request on two grounds:
cases to the trial court for further proceedings.
first, that Section 36, Article III of the Rules and Regulations Governing the
Regulation and Practice of Professionals, as amended by Professional Regulation
Factual Antecedents
Commission (PRC) Resolution No. 332, series of 1994, only permitted access to the
petitioners answer sheet (which she had been shown previously), and that
Petitioner took the accountancy licensure examinations (the Certified Public
reconsideration of her examination result was only proper under the grounds stated
Accountant [CPA] Board Exams) conducted by the Board of Accountancy (the
therein:
Board) in October 1997.[1]The examination results were released on October 29,
1997; out of 6,481 examinees, only 1,171 passed. Unfortunately, petitioner did not Sec. 36 An examinee shall be allowed to have access or to go
make it. When the results were released, she received failing grades in four out of over his/her test papers or answer sheets on a date not later than
thirty (30) days from the official release of the results of the
the seven subjects.[2] examination. Within ten (10) days from such date, he/she may file
his/her request for reconsideration of ratings. Reconsideration of
rating shall be effected only on grounds of mechanical error in the
Subject Petitioners Grade grading of his/her testpapers or answer sheets, or malfeasance.[6]
Theory of Accounts 65 %
Business Law 66 %
Management Services 69 %
Second, Acting Chairman Domondon clarified that the Board was
Auditing Theory 82 %
Auditing Problems 70 % precluded from releasing the Examination Papers (other than petitioners answer
Practical Accounting I 68 % sheet) by Section 20, Article IV of PRC Resolution No. 338, series of 1994, which
Practical Accounting II 77 %
provides:

Convinced that she deserved to pass the examinations, she wrote to Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The
hereunder acts shall constitute prejudicial, illegal, grossly immoral,
respondent Abelardo T. Domondon (Domondon), Acting Chairman of the Board of dishonorable, or unprofessional conduct:
Accountancy, and requested that her answer sheets be re-
A. Providing, getting, receiving, holding, using or
corrected.[3] On November 3, 1997, petitioner was shown her answer sheets, but reproducing questions
xxxx
these consisted merely of shaded marks, so she was unable to determine why she
failed the exam.[4] Thus, on November 10, 1997, she again wrote to the Board to
434
 3. that have been given in the examination except if
the test bank for the subject has on deposit at
least two thousand (2,000) questions.[7]
After a further exchange of correspondence,[8] the Board informed petitioner
that an investigation was conducted into her exam and there was no mechanical
error found in the grading of her test papers.[9]
Proceedings before the Regional Trial Court
Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus
with Damages against the Board of Accountancy and its members[10] before the
Regional Trial Court (RTC) of Manila. The case was raffled to Branch 33, and
docketed as Civil Case No. 98-86881. The Petition included a prayer for the
issuance of a preliminary mandatory injunction ordering the Board of Accountancy
and its members (the respondents) to furnish petitioner with copies of the
Examination Papers. Petitioner also prayed that final judgment be issued ordering
respondents to furnish petitioner with all documents and other materials as would
enable her to determine whether respondents fairly administered the examinations
and correctly graded petitioners performance therein, and, if warranted, to issue to
her a certificate of registration as a CPA.[11]
On February 5, 1998, respondents filed their Opposition to the Application
for a Writ of Preliminary Mandatory Injunction, and argued, inter alia, that petitioner
was not entitled to the relief sought, that the respondents did not have the duty to
furnish petitioner with copies of the Examination Papers, and that petitioner had
other plain, speedy, adequate remedy in the ordinary course of law, namely,
recourse to the PRC.[12] Respondents also filed their Answer with Compulsory
Counterclaim in the main case, which asked that the Petition for Mandamus with
Damages be dismissed for lack of merit on the following grounds: (1) petitioner failed
to exhaust administrative remedies; (2) the petition stated no cause of action
because there was no ministerial duty to release the information demanded; and (3)
the constitutional right to information on matters of public concern is subject to
limitations provided by law, including Section 20, Article IV, of PRC Resolution No.
338, series of 1994.[13]
On March 3, 1998, petitioner filed an Amended Petition (which was
admitted by the RTC), where she included the following allegation in the body of her
petition:
The allegations in this amended petition are meant only to plead a
cause of action for access to the documents requested, not for re-
correction which petitioner shall assert in the proper forum
depending on, among others, whether she finds sufficient error in
the documents to warrant such or any other relief. None of the
allegations in this amended petition, including those in the following
paragraphs, is made to assert a cause of action for re-correction.[14]
If only to underscore the fact that she was not asking for a re-checking of her exam,
the following prayer for relief was deleted from the Amended Petition: and, if
warranted, to issue to her a certificate of registration as a CPA.
On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss
Application for Writ of Preliminary Mandatory Injunction, on the ground that petitioner
had taken and passed the May 1998 CPA Licensure Examination and had taken her
oath as a CPA.[15] Petitioner filed her Opposition on July 8, 1998.[16] Subsequently,
on October 29, 1998, respondents filed their Answer with Counterclaim to the
amended petition. They reiterated their original allegations and further alleged that
there was no cause of action because at the time the Amended Petition was
435
admitted, they had ceased to be members of the Board of Accountancy and they
were not in possession of the documents sought by the petitioner.[17]
Ruling of the Regional Trial Court
In an Order dated October 16, 1998, the trial court granted respondents
Motion to Dismiss Petitioners Application for a Writ of Preliminary Mandatory
Injunction (not the main case), ruling that the matter had become moot since
petitioner passed the May CPA Licensure 1998 Examination and had already taken
her oath as a CPA.[18]
Undaunted, petitioner sought and obtained leave to file
a Second Amended Petition for Mandamus with Damages[19] where she finally
impleaded the PRC as respondent and included the following plea in her prayer:
WHEREFORE, petitioner respectfully prays that:
xxxx
2. Judgment be issued
(a) commanding respondents to give petitioner all documents and
other materials as would enable her to determine whether
respondents fairly administered the same examinations and
correctly graded petitioners performance therein and, if
warranted, to make the appropriate revisions on the results of
her examination. (Emphasis ours)
On June 21, 2002, the trial court dismissed the petition on the ground that
the petition had already become moot, since petitioner managed to pass the 1998
CPA Board examinations.[20] Petitioner sought reconsideration[21] which was granted
by the trial court in its Omnibus Order[22] dated November 11, 2002. The Omnibus
Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court
is inclined to reconsider its Order dismissing the petition. The Court
agrees with the petitioner that the passing of the petitioner in the
subsequent CPA examination did not render the petition moot and
academic because the relief and if warranted, to issue to her a
certificate of registration as Certified Public Accountant was
deleted from the original petition. As regard the issue of whether
the petitioner has the constitutional right to have access to the
questioned documents, the Court would want first the parties to
adduce evidence before it can resolve the issue so that it can
make a complete determination of the rights of the parties.
The Court would also want the Professional Regulation
Commission to give its side of the case the moment it is impleaded
as a respondent in the Second Amended Petition for Mandamus
filed by the petitioner which this Court is inclined to grant.
As to the Motion for Conservatory Measures filed by the petitioner,
the Court denies the same. It is clear that the PRC has in custody
the documents being requested by the petitioner. It has also an
adequate facility to preserve and safeguard the documents. To be
sure that the questioned documents are preserved and
safeguarded, the Court will order the PRC to preserve and
safeguard the documents and make them available anytime the
Court or petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is
reconsidered and set aside. The Professional Regulation
Commission is ordered to preserve and safeguard the following
documents:
a) Questionnaire in each of the seven
subjects comprising the Accountancy Examination
of October, 1997;
b) Petitioners Answer Sheets; and
c) Answer keys to the questionnaires.
SO ORDERED.[23]
436
Respondents filed a motion for reconsideration which was denied.[24] took her oath as a CPA; and (v) petitioner failed to exhaust administrative remedies,
because, having failed to secure the desired outcome from the respondents, she did
Proceedings before the Court of Appeals not elevate the matter to the PRC before seeking judicial intervention.[27]
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us
The RTC Decisions led to the filing of three separate petitions
for certiorari before the Court of Appeals (CA): by the petitioner and docketed as G.R. Nos. 165036 and 175705, respectively. The
cases were then consolidated, in view of the similarity of the factual antecedents and
issues, and to avoid the possibility of conflicting decisions by different divisions of this
(a) CA-GR SP No. 76498, a petition filed by respondents
Court.[28]
Domondon, Gangan, and Josef on April 11, 2003;
(b) CA-GR SP No. 76546, a petition filed by respondent Ibe
on April 30, 2003; and Issues
(c) CA-GR SP No. 76545, a petition filed by the Board of
Accountancy and PRC.
Before us, petitioner argues that she has a right to obtain copies of the
examination papers so she can determine for herself why and how she failed and to
It is the first two proceedings that are pending before us. In both cases, the
ensure that the Board properly performed its duties. She argues that the
CA set aside the RTC Decisions and ordered the dismissal of Civil Case No. 98-
Constitution[29] as well as the Code of Conduct and Ethical Standards for Public
8681.
Officials and Employees[30] support her right to demand access to the Examination
Papers. Furthermore, she claims that there was no need to exhaust administrative
Ruling of the Court of Appeals
remedies, since no recourse to the PRC was available, and only a pure question of
law is involved in this case. Finally, she claims that her demand for access to
In its December 11, 2006 Decision[25] in CA-GR SP No. 76546, the CA
documents was not rendered moot by her passing of the 1998 CPA Board Exams.
ruled that the petition has become moot in view of petitioners eventual passing of the
1998 CPA Board Exam. In CA-GR SP No. 76498, the CA found, in a Decision dated
Our Ruling
February 16, 2004,[26] that (i) Section 20, Article IV of PRC Resolution No. 338
constituted a valid limitation on petitioners right to information and access to
Propriety of Writ of Mandamus
government documents; (ii) the Examination Documents were not of public concern,
because petitioner merely sought review of her failing marks; (iii) it was not the
At the very outset let us be clear of our ruling. Any claim for re-correction or revision
ministerial or mandatory function of the respondents to review and reassess the
of her 1997 examination cannot be compelled by mandamus. This much was made
answers to examination questions of a failing examinee; (iv) the case has become
evident by our ruling in Agustin-Ramos v. Sandoval,[31] where we stated:
moot, since petitioner already passed the May 1998 CPA Board Examinations and
437
 After deliberating on the petition in relation to the other pleadings
filed in the proceedings at bar, the Court resolved to DENY said
petition for lack of merit. The petition at bar prays for the setting
aside of the Order of respondent Judge dismissing petitioners
mandamus action to compel the other respondents (Medical
Board of Examiners and the Professional Regulation Commission)
to reconsider, recorrect and/or rectify the board ratings of the
petitioners from their present failing grades to higher or passing
marks. The function of reviewing and re-assessing the
petitioners answers to the examination questions, in the light
of the facts and arguments presented by them x x x is a
discretionary function of the Medical Board, not a ministerial
and mandatory one, hence, not within the scope of the writ of
mandamus. The obvious remedy of the petitioners from the
adverse judgment by the Medical Board of Examiners was an
appeal to the Professional Regulation Commission itself, and
thence to the Court of Appeals; and since they did not apply for
relief to the Commission prior to their institution of the special civil
action of mandamus in the Regional Trial Court, the omission was
fatal to the action under the familiar doctrine requiring exhaustion
of administrative remedies. Apart from the obvious undesirability of
a procedure which would allow Courts to substitute their judgment
for that of Government boards in the determination of successful
examinees in any administered examination an area in which
courts have no expertise and the circumstance that the law
declares the Court of Appeals to be the appropriate review Court,
the Regional Trial Court was quite correct in refusing to take
cognizance of an action seeking reversal of the quasi-judicial
action taken by the Medical Board of Examiners.[32] (Emphasis
ours)
For a writ of mandamus to issue, the applicant must have a well-defined,
clear, and certain legal right to the thing demanded. The corresponding duty of the
respondent to perform the required act must be equally clear.[33] No such clarity
exists here; neither does petitioners right to demand a revision of her examination
results. And despite petitioners assertions that she has not made any demand for re-
correction, the most cursory perusal of her Second Amended Petition and her prayer
that the respondents make the appropriate revisions on the results of her
examination belies this claim.
Like the claimants in Agustin, the remedy of petitioner from the refusal of the
Board to release the Examination Papers should have been through an appeal to
the PRC. Undoubtedly, petitioner had an adequate remedy from the Boards refusal
to provide her with copies of the Examination Papers. Under Section 5(a) of
Presidential Decree No. 223,[34] the PRC has the power to promulgate rules and
regulations to implement policies for the regulation of the accounting profession.[35] In
fact, it is one such regulation (PRC Resolution No. 338) that is at issue in this
case. In addition, under Section 5(c), the PRC has the power to
review, coordinate, integrate and approve the policies,
resolutions, rules and regulations, orders or decisions
promulgated by the various Boards with respect to the
profession or occupation under their jurisdictions including the
results of their licensure examinations but their decisions on
administrative cases shall be final and executory unless appealed
to the Commission within thirty (30) days from the date of
promulgation thereof.
Petitioner posits that no remedy was available because the PRCs power to review
and approve in Section 5(c) only refers to appeals in decisions concerning
administrative investigations[36]and not to instances where documents are being
requested. Not only is this position myopic and self-serving, it is bereft of either
statutory or jurisprudential basis. The PRCs quasi-legislative and enforcement
powers, encompassing its authority to review and approve policies, resolutions, rules
and regulations, orders, or decisions cover more than administrative investigations
conducted pursuant to its quasi-judicial powers.[37] More significantly, since the PRC
itself issued the resolution questioned by the petitioner here, it was in the best
position to resolve questions addressed to its area of expertise. Indeed, petitioner
438
could have saved herself a great deal of time and effort had she given the PRC the
opportunity to rectify any purported errors committed by the Board.
One of the reasons for exhaustion of administrative remedies is our well-
entrenched doctrine on separation of powers, which enjoins upon the Judiciary a
becoming policy of non-interference with matters falling primarily (albeit not
exclusively) within the competence of other departments.[38] Courts, for reasons of
law, comity and convenience, should not entertain suits unless the available
administrative remedies have first been resorted to and the proper authorities have
been given an appropriate opportunity to act and correct their alleged errors, if any,
committed in the administrative forum. [39]
However, the principle of exhaustion of administrative remedies is subject to
exceptions, among which is when only a question of law is involved.[40] This is
because issues of law such as whether petitioner has a constitutional right to
demand access to the Examination Papers - cannot be resolved with finality by the
administrative officer.[41]
Issues of Mootness
We now turn to the question of whether the petition has become moot in
view of petitioners having passed the 1998 CPA examination. An issue becomes
moot and academic when it ceases to present a justiciable controversy, so that a
declaration on the issue would be of no practical use or value.[42]
In this jurisdiction, any citizen may challenge any attempt to obstruct the
exercise of his or her right to information and may seek its enforcement by
mandamus.[43] And since every citizen possesses the inherent right to be informed by
the mere fact of citizenship,[44] we find that petitioners belated passing of the CPA
Board Exams does not automatically mean that her interest in the Examination
Papers has become mere superfluity. Undoubtedly, the constitutional question
presented, in view of the likelihood that the issues in this case will be repeated,
warrants review.[45]
The crux of this case is whether petitioner may compel access to the
Examination Documents through mandamus. As always, our inquiry must begin with
the Constitution. Section 7, Article III provides:
Sec.7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Together with the guarantee of the right to information, Section 28, Article II
promotes full disclosure and transparency in government, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.
Like all the constitutional guarantees, the right to information is not absolute.
The people's right to information is limited to "matters of public concern," and is
further "subject to such limitations as may be provided by law." Similarly, the State's
policy of full disclosure is limited to "transactions involving public interest," and is
"subject to reasonable conditions prescribed by law". The Court has always grappled
with the meanings of the terms "public interest" and "public concern." As observed
in Legaspi v. Civil Service Commission:[46]
439
 In determining whether x x x a particular information is of public
concern there is no rigid test which can be applied. "Public on every board examination administered by the PRC, and in order that all relevant
concern" like "public interest" is a term that eludes exact definition. issues may be ventilated, we deem it best to remand these cases to the RTC for
Both terms embrace a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives, further proceedings.
or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11,
or importance, as it relates to or affects the public. 2006 and February 16, 2004 Decisions of the Court of Appeals in CA-GR SP No.
76546 and CA-GR SP No. 76498, respectively, are hereby SET
We have also recognized the need to preserve a measure of confidentiality ASIDE. The November 11, 2002 and January 30, 2003 Orders of the Regional Trial
on some matters, such as national security, trade secrets and banking transactions, Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The case is
criminal matters, and other confidential matters.[47] remanded to the Regional Trial Court for further proceedings.
SO ORDERED.
We are prepared to concede that national board examinations such as the CPA
Board Exams are matters of public concern. The populace in general, and the MARIANO C. DEL CASTILLO

examinees in particular, would understandably be interested in the fair and

competent administration of these exams in order to ensure that only those qualified
are admitted into the accounting profession. And as with all matters pedagogical,
these examinations could be not merely quantitative means of assessment, but also
means to further improve the teaching and learning of the art and science of
RE: REQUEST FOR COPY OF 2008 A.M. No. 09-8-6-SC
accounting. STATEMENT OF ASSETS, LIABILITIES AND
On the other hand, we do realize that there may be valid reasons to limit access to NETWORTH [SALN] AND PERSONAL DATA
SHEET OR CURRICULUM VITAE OF THE
the Examination Papers in order to properly administer the exam. More than the JUSTICES OF THE SUPREME COURT AND
mere convenience of the examiner, it may well be that there exist inherent difficulties OFFICERS AND EMPLOYEES
OF THE JUDICIARY.
in the preparation, generation, encoding, administration, and checking of these
multiple choice exams that require that the questions and answers remain x-----------------------x

confidential for a limited duration. However, the PRC is not a party to these RE: REQUEST OF PHILIPPINE CENTER FOR
INVESTIGATIVE JOURNALISM [PCIJ] FOR
proceedings. They have not been given an opportunity to explain the reasons behind
THE 2008 STATEMENT OF ASSETS, A.M. No. 09-8-07-CA
their regulations or articulate the justification for keeping the Examination Documents LIABILITIES AND NET WORTH [SALN] AND
PERSONAL DATA SHEETS OF THE COURT Present:
confidential. In view of the far-reaching implications of this case, which may impact OF APPEALS JUSTICES.
440
 CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO, The two requests were ordered consolidated by the Court on August
BRION,
PERALTA, 18, 2009.[3] On the same day, the Court resolved to create a special
BERSAMIN, committee (Committee) to review the policy on requests for SALN and PDS
DEL CASTILLO,
ABAD, and other similar documents, and to recommend appropriate action on such
VILLARAMA, JR., requests.[4]
PEREZ,
MENDOZA,
SERENO,
On November 23, 2009, the Committee, chaired by then Associate
REYES, and
PERLAS-BERNABE, JJ. Justice Minita V. Chico-Nazario submitted its Memorandum [5] dated
November 18, 2009 and its Resolution[6] dated November 16, 2009,
Promulgated: recommending the creation of Committee on Public Disclosure that would, in
June 13, 2012
essence, take over the functions of the Office of the Court
x ------------------------------------------------------------------------------------- x Administrator (OCA) with respect to requests for copies of, or access to,
RESOLUTION
SALN, and other personal documents of members of the Judiciary.

MENDOZA, J.:
Meanwhile, several requests for copies of the SALN and other
personal documents of the Justices of this Court, the CA and the
In a letter,[1] dated July 30, 2009, Rowena C. Paraan, Research
Sandiganbayan (SB) were filed. In particular, these requests include the:
Director of the Philippine Center for Investigative Journalism (PCIJ), sought
copies of the Statement of Assets, Liabilities and Networth (SALN) of the
(1) SUBPOENA DUCES TECUM,[7] dated September
Justices of this Court for the year 2008. She also requested for copies of the 10, 2009, issued by Atty. E. H. Amat, Acting Director, General
Investigation Bureau-B of the Office of the Ombudsman,
Personal Data Sheet (PDS) or the Curriculum Vitae (CV) of the Justices of directing the Office of Administrative Services, Supreme
this Court for the purpose of updating their database of information on Court to submit two (2) copies of the SALN of Associate
Justice Roland B. Jurado of the Sandiganbayan for the years
government officials. 1997-2008, his latest PDS, his Oath of Office, appointment
papers, and service records.

In her Letter,[2] dated August 13, 2009, Karol M. Ilagan, a researcher-
writer also of the PCIJ, likewise sought for copies of the SALN and PDS of
the Justices of the Court of Appeals (CA), for the same above-stated
purpose.
(2) LETTER,[8] dated April 21, 2010, of the Philippine
Public Transparency Reporting Project, asking permission to
be able to access and copy the SALN of officials and
employees of the lower courts.

441
 (3) LETTER,[9] filed on August 24, 2011, by Marvin
Lim, seeking copies of the SALN of Chief Justice Renato C.
Corona, Associate Justices Antonio T. Carpio, Presbitero J.
Velasco, Jr., Teresita Leonardo-De Castro, Arturo D. Brion,
Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del
Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose
Portugal Perez, Jose C. Mendoza, and Maria Lourdes P.A.
Sereno.
(4) LETTER,[10] dated August 26, 2011, of Rawnna
Crisostomo, Reporter, GMA News and Public Affairs also
requesting for copies of the SALN of Chief Justice Renato C.
Corona, Associate Justices Antonio T. Carpio, Presbitero J.
Velasco, Jr., Teresita Leonardo-De Castro, Arturo D. Brion,
Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del
Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose
Portugal Perez, Jose C. Mendoza, and Maria Lourdes P.A.
Sereno, for purposes of producing a story on transparency
and governance, and updating their database.
(5) LETTER,[11] dated October 11, 2011, of Bala S.
Tamayo, requesting for a copy of the 2010 SALN of any
Justice of the Supreme Court as well as a copy of the
Judiciary Development Fund, for purposes of her securing a
huge percentage in final examination in Constitutional Law I
at the San Beda College Alabang School of Law and for her
study on the state of the Philippine Judiciary, particularly the
manner, nature and disposition of the resources under the
JDF and how these have evolved through the years.
(6) LETTERS, all dated December 19, 2011, of
Harvey S. Keh, Lead Convenor of Kaya Natin! Movement for
Good Governance and Ethical Leadership, addressed to
Chief Justice Renato C. Corona,[12] Associate Justices
Presbitero J. Velasco, Jr.,[13] Teresita Leonardo-De
Castro,[14] Arturo D. Brion,[15] Diosdado M. Peralta,[16] Mariano
C. Del Castillo,[17] Jose Portugal Perez,[18] and Maria Lourdes
P.A. Sereno,[19] requesting for copies of their SALN and
seeking permission to post the same on their website for the
general public.
(7) LETTER,[20] dated December 21, 2011, of Glenda
M. Gloria, Executive Director, Newsbreak, seeking copies of
the SALN of the Supreme Court Justices covering various
years, for the purpose of the stories they intend to put on their
website regarding the Supreme Court and the Judiciary.
(8) LETTERS, all dated January 3, 2012, of Phillipe
Manalang of Unlimited Productions, Inc., addressed to
Associate Justices Presbitero J. Velasco, Jr.,[21]Teresita
Leonardo-De Castro,[22] Mariano C. Del Castillo[23] and Jose
Portugal Perez,[24] and Atty. Enriqueta Esguerra-Vidal, Clerk
of Court, Supreme Court[25]requesting for copies of the SALN
of the Supreme Court Justices for the years 2010 and 2011.
(9) LETTER,[26] dated December 19, 2011, of Malou
Mangahas, Executive Director, PCIJ, requesting for copies of
the SALN, PDS or CVs of the Justices of the Supreme Court
from the year they were appointed to the present.
(10) SUBPOENA AD TESTIFICANDUM ET DUCES
TECUM,[27] issued on January 17, 2012, by the Senate, sitting
as an Impeachment Court, in connection with Impeachment
Case No. 002-2011 against Chief Justice Renato C. Corona,
requiring the Clerk of Court, among others, to bring with her
the SALN of Chief Justice Renato C. Corona for the years
2002 to 2011.
(11) LETTER,[28] dated January 16, 2012, of Nilo Ka
Nilo H. Baculo, Sr., requesting copies of the SALN of the
Supreme Court Justices for the years 2008 to 2011, for his
use as a media practitioner.
(12) LETTER,[29] dated January 25, 2012, of Roxanne
Escaro-Alegre of GMA News, requesting for copies of the
SALN of the Supreme Court Justices for the networks story
on the political dynamics and process of decision-making in
the Supreme Court.
(13) LETTER,[30] dated January 27, 2012, of David
Jude Sta. Ana, Head, News Operations, News 5, requesting
for copies of the 2010-2011 SALN of the Supreme Court
Justices for use as reference materials for stories that will be
aired in the newscasts of their television network.
442
 (14) LETTER,[31] dated January 31, 2012, of Michael
G. Aguinaldo, Deputy Executive Secretary for Legal Affairs,
Malacaang, addressed to Atty. Enriqueta Esguerra-Vidal,
Clerk of Court, Supreme Court, seeking her comments and
recommendation on House Bill No. 5694,[32] to aid in their
determination of whether the measure should be certified as
urgent.
(15) Undated LETTER[33]of Benise P. Balaoing,
Intern of Rappler.com, a news website, seeking copies of the
2010 SALN of the Justices of the Court and the CA for the
purpose of completing its database in preparation for its
coverage of the 2013 elections.
(16) LETTER,[34] dated April 27, 2012, of Maria A.
Ressa, Chief Executive Officer and Executive Officer and
Executive Editor of Rappler, Inc., requesting for copies of the
current SALN of all the Justices of the Supreme Court, the
Court of Appeals and the Sandiganbayan also for the purpose
of completing its database in preparation for its coverage of
the 2013 elections.
(17) LETTER,[35] dated May 2, 2012, of Mary Ann A.
Seir, Junior Researcher, News Research Section, GMA News
and Public Affairs, requesting for copies of the SALN of Chief
Justice Renato C. Corona and the Associate Justices of the
Supreme Court for the calendar year 2011 for the networks
use in their public affairs programs.
(18) LETTER,[36] dated May 4, 2012, of Edward
Gabud, Sr., Desk Editor of Solar Network, Inc., requesting for
copies of the 2011 SALN of all the Justices of the Supreme
Court.
(19) LETTER,[37] dated May 30, 2012, of Gerry Lirio,
Senior News Editor, TV5 requesting for copies of the SALN of
the Justices of the Court for the last three (3) years for the
purpose of a special report it would produce as a result of the
impeachment and subsequent conviction of Chief Justice
Renato C. Corona.
(20) LETTER,[38] dated May 31, 2012, of Atty. Joselito
P. Fangon, Assistant Ombudsman, Field Investigation Office,
Office of the Ombudsman, requesting for 1] certified copies of
the SALN of former Chief Justice Renato C. Corona for the
years 2002-2011, as well as 2] a certificate of his yearly
compensation, allowances, and bonuses, also for the years
2002-2011.
(21) LETTER,[39] dated June 8, 2012, of Thea Marie
S. Pias, requesting a copy of the SALN of any present
Supreme Court Justice, for the purpose of completing her
grade in Legal Philosophy at the San Beda College of Law.
Pursuant to Section 6, Article VIII of the 1987 Constitution,[40] the
Court, upon recommendation of the OCA, issued its Resolution [41] dated
October 13, 2009, denying the subpoena duces tecum for the SALNs and
personal documents of Justice Roland B. Jurado of the SB. The resolution
also directed the Ombudsman to forward to the Court any complaint and/or
derogatory report against Justice Roland B. Jurado, in consonance with the
doctrine laid down in Caiobes v. Ombudsman.[42] Upon compliance by the
Ombudsman, the Court, in its Resolution[43] dated February 2, 2010,
docketed this matter as a regular administrative complaint.[44]
Also, considering the development in Impeachment Case No. 002-
2011 against Chief Justice Renato C. Corona, the Court, on January 24,
2012, resolved to consider moot the Subpoena Ad Testificandum Et Duces
Tecum issued by the Senate impeachment court.[45]
In resolving the remaining pending incidents, the Court, on January
17, 2012 required the CA, the SB, the CTA, the Philippine Judges
Association, the Metropolitan and City Judges Association of the Philippines,
443
the Philippine Trial Judges League, and the Philippine Women Judges
Association (PWJA), to file their respective comments.
In essence, it is the consensus of the Justices of the above-
mentioned courts and the various judges associations that while the
Constitution holds dear the right of the people to have access to matters of
concern, the Constitution also holds sacred the independence of the
Judiciary. Thus, although no direct opposition to the disclosure of SALN and
other personal documents is being expressed, it is the uniform position of the
said magistrates and the various judges associations that the disclosure
must be made in accord with the guidelines set by the Court and under such
circumstances that would not undermine the independence of the Judiciary.
After a review of the matters at hand, it is apparent that the matter
raised for consideration of the Court is not a novel one. As early as 1989, the
Court had the opportunity to rule on the matter of SALN disclosure in Re:
Request of Jose M. Alejandrino,[46] where the Court denied the request of
Atty. Alejandrino for the SALNs of the Justices of the Court due to a plainly
discernible improper motive. Aggrieved by an adverse decision of the Court,
he accused the Justices of patent partiality and alluded that they enjoyed an
early Christmas as a result of the decision promulgated by the Court. Atty.
Alejandrino even singled out the Justices who took part in the decision and
conspicuously excluded the others who, for one reason or another, abstained
from voting therein. While the Court expressed its willingness to have the
Clerk of Court furnish copies of the SALN of any of its members, it however,
noted that requests for SALNs must be made under circumstances that must
not endanger, diminish or destroy the independence, and objectivity of the
members of the Judiciary in the performance of their judicial functions, or
expose them to revenge for adverse decisions, kidnapping, extortion,
blackmail or other untoward incidents. Thus, in order to give meaning to the
constitutional right of the people to have access to information on matters of
public concern, the Court laid down the guidelines to be observed for
requests made. Thus:
1. All requests for copies of statements of assets
and liabilities of any Justice or Judge shall be filed with the
Clerk of Court of the Supreme Court or with the Court
Administrator, as the case may be (Section 8 [A][2], R.A.
6713), and shall state the purpose of the request.
2. The independence of the Judiciary is
constitutionally as important as the right to information which
is subject to the limitations provided by law. Under specific
circumstances, the need for fair and just adjudication of
litigations may require a court to be wary of deceptive
requests for information which shall otherwise be freely
available. Where the request is directly or indirectly traced to
a litigant, lawyer, or interested party in a case pending
before the court, or where the court is reasonably certain
that a disputed matter will come before it under
circumstances from which it may, also reasonably, be
assumed that the request is not made in good faith and for a
legitimate purpose, but to fish for information and, with the
implicit threat of its disclosure, to influence a decision or to
warn the court of the unpleasant consequences of an
adverse judgment, the request may be denied.
3. Where a decision has just been rendered by a
court against the person making the request and the request
for information appears to be a fishing expedition intended to
harass or get back at the Judge, the request may be denied.
4. In the few areas where there is extortion by rebel
elements or where the nature of their work exposes Judges
to assaults against their personal safety, the request shall
not only be denied but should be immediately reported to the
military.
444
 5. The reason for the denial shall be given in all
cases.
In the 1992 case of Re: Request for Certified True Copies of the
Sworn Statements of Assets, Liabilities and Networth,[47] the request was
denied because the Court found that the purpose of the request was to fish
for information against certain members of the Judiciary. In the same case,
the Court resolved to authorize the Court Administrator to act on all requests
for copies of SALN, as well as other papers on file with the 201 Personnel
Records of lower court judges and personnel, provided that there was a court
subpoena duly signed by the Presiding Judge in a pending criminal case
against a judge or personnel of the Judiciary. The Court added that for
requests made by the Office of the Ombudsman, the same must be
personally signed by the Ombudsman himself. Essentially, the Court
resolved that, in all instances, requests must conform to the guidelines set in
the Alejandrino case and that the documents or papers requested for must
be relevant and material to the case being tried by the court or under
investigation by the Ombudsman.
In 1993, the Court, in Request for Certified True Copies of the Sworn
Statements of Assets, Liabilities and Net Worth of former Judge Luis D.
Dictado,[48] ruled that the OCA may extend its granted authority to retired
members of the Judiciary.
With respect to investigations conducted by the Office of the
Ombudsman in a criminal case against a judge, the Court, in Maceda v.
Vasquez,[49] upheld its constitutional duty to exercise supervision over all
inferior courts and ruled that an investigation by the Office of the
Ombudsman without prior referral of the criminal case to the Court was an
encroachment of a constitutional duty that ran afoul to the doctrine of
separation of powers. This pronouncement was further amplified in the
abovementioned case of Caiobes.Thus:
x x x Under Section 6, Article VIII of the Constitution,
it is the Supreme Court which is vested with exclusive
administrative supervision over all courts and its personnel.
Prescinding from this premise, the Ombudsman cannot
determine for itself and by itself whether a criminal complaint
against a judge, or court employee, involves an
administrative matter. The Ombudsman is duty bound to
have all cases against judges and court personnel filed
before it, referred to the Supreme Court for determination as
to whether an administrative aspect is involved therein. This
rule should hold true regardless of whether an administrative
case based on the act subject of the complaint before the
Ombudsman is already pending with the Court. For, aside
from the fact that the Ombudsman would not know of this
matter unless he is informed of it, he should give due respect
for and recognition of the administrative authority of the
Court, because in determining whether an administrative
matter is involved, the Court passes upon not only
administrative liabilities but also administrative concerns, as
is clearly conveyed in the case of Maceda v. Vasquez (221
SCRA 464[1993]).
The Ombudsman cannot dictate to, and bind the
Court, to its findings that the case before it does or does not
have administrative implications. To do so is to deprive the
Court of the exercise of its administrative prerogatives and to
arrogate unto itself a power not constitutionally sanctioned.
This is a dangerous policy which impinges, as it does, on
judicial independence.
Maceda is emphatic that by virtue of its constitutional
power of administrative supervision over all courts and court
personnel, from the Presiding Justice of the Court of Appeals
down to the lowest municipal trial court clerk, it is only the
Supreme Court that can oversee the judges and court
personnels compliance with all laws, and take the proper
administrative action against them if they commit any
violation thereof. No other branch of government may intrude
445
 into this power, without running afoul of the doctrine of
separation of powers.
Corollary to the above pronouncements, Section 7, Article III of the
Constitution is relevant in the issue of public disclosure of SALN and other
documents of public officials, viz:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Emphasizing the import and meaning of the foregoing constitutional
provision, the Court, in the landmark case of Valmonte v. Belmonte,
Jr.,[50] elucidated on the import of the right to information in this wise:
The cornerstone of this republican system of government is
delegation of power by the people to the State. In this
system, governmental agencies and institutions operate
within the limits of the authority conferred by the
people. Denied access to information on the inner workings
of government, the citizenry can become prey to the whims
and caprices of those to whom the power had been
delegated. The postulate of public office is a public trust,
institutionalized in the Constitution to protect the people
from abuse of governmental power, would certainly be
mere empty words if access to such information of
public concern is denied x x x.
x x x The right to information goes hand-in-hand with the
constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the
widening role of the citizenry in governmental decision-
making as well as in checking abuse in
government. (Emphases supplied)
In Baldoza v. Dimaano,[51] the importance of the said right was
pragmatically explicated:
The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases.
However, restrictions on access to certain records may be
imposed by law.
Thus, while public concern like public interest eludes exact definition
and has been said to embrace a broad spectrum of subjects which the public
may want to know, either because such matters directly affect their lives, or
simply because such matters naturally arouse the interest of an ordinary
citizen,[52] the Constitution itself, under Section 17, Article XI, has classified
the information disclosed in the SALN as a matter of public concern and
interest. In other words, a duty to disclose sprang from the right to
know. Both of constitutional origin, the former is a command while the latter
is a permission. Hence, the duty on the part of members of the government
to disclose their SALNs to the public in the manner provided by law:
Section 17. A public officer or employee shall, upon
assumption of office and as often thereafter as may be
required by law, submit a declaration under oath of his
assets, liabilities, and net worth. In the case of the President,
446
 the Vice-President, the Members of the Cabinet, the
Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of
the armed forces with general or flag rank, the declaration
shall be disclosed to the public in the manner provided
by law. [Emphasis supplied]
This Constitutional duty is echoed and particularized in a statutory
creation of Congress: Republic Act No. 6713, also known as "Code of
Conduct and Ethical Standards for Public Officials and Employees":[53]
Section 8. Statements and Disclosure. - Public officials and
employees have an obligation to accomplish and submit
declarations under oath of, and the public has the right to
know, their assets, liabilities, net worth and financial and
business interests including those of their spouses and of
unmarried children under eighteen (18) years of age living in
their households.
(A) Statements of Assets and Liabilities and Financial
Disclosure. - All public officials and employees, except those
who serve in an honorary capacity, laborers and casual or
temporary workers, shall file under oath their Statement of
Assets, Liabilities and Net Worth and a Disclosure of
Business Interests and Financial Connections and those of
their spouses and unmarried children under eighteen (18)
years of age living in their households.
The two documents shall contain information on the
following:
(a) real property, its improvements, acquisition costs,
assessed value and current fair market value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or in
banks, stocks, bonds, and the like;
(d) liabilities, and;
(e) all business interests and financial connections.
The documents must be filed:
(a) within thirty (30) days after assumption of office;
(b) on or before April 30, of every year thereafter; and
(c) within thirty (30) days after separation from the service.
with its companion right of access to official records, is not absolute. While
providing guaranty for that right, the Constitution also provides that the
All public officials and employees required under this section
to file the aforestated documents shall also execute, within
thirty (30) days from the date of their assumption of office,
the necessary authority in favor of the Ombudsman to obtain
from all appropriate government agencies, including the
Bureau of Internal Revenue, such documents as may show
their assets, liabilities, net worth, and also their business
interests and financial connections in previous years,
including, if possible, the year when they first assumed any
office in the Government.
Husband and wife who are both public officials or employees
may file the required statements jointly or separately.
The Statements of Assets, Liabilities and Net Worth and the
Disclosure of Business Interests and Financial Connections
shall be filed by:
(1) Constitutional and national elective officials, with the
national office of the Ombudsman;
(2) Senators and Congressmen, with the Secretaries of the
Senate and the House of Representatives, respectively;
Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national
executive officials with the Office of the President.
(3) Regional and local officials and employees, with the
Deputy Ombudsman in their respective regions;
(4) Officers of the armed forces from the rank of colonel or
naval captain, with the Office of the President, and those
below said ranks, with the Deputy Ombudsman in their
respective regions; and
(5) All other public officials and employees, defined in
Republic Act No. 3019, as amended, with the Civil Service
Commission.
(B) Identification and disclosure of relatives. - It shall be the
duty of every public official or employee to identify and
disclose, to the best of his knowledge and information, his
relatives in the Government in the form, manner and
frequency prescribed by the Civil Service Commission.
(Emphasis supplied)
Like all constitutional guarantees, however, the right to information,
447

peoples right to know is limited to matters of public concern and is further
subject to such limitations as may be provided by law.
Jurisprudence[54] has provided the following limitations to that
right: (1) national security matters and intelligence information; (2) trade
secrets and banking transactions; (3) criminal matters; and (4) other
confidential information such as confidential or classified information officially
known to public officers and employees by reason of their office and not
made available to the public as well as diplomatic correspondence, closed
statement. After such period, the statement may be
destroyed unless needed in an ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person to
obtain or use any statement filed under this Act for:
(a) any purpose contrary to morals or public policy; or
(b) any commercial purpose other than by news and
communications media for dissemination to the general
public.
Moreover, the following provisions in the Implementing Rules and
Regulations of R.A. No. 6713 provide:
Rule IV

door Cabinet meetings and executive sessions of either house of Congress, Transparency of Transactions and Access to Information
and the internal deliberations of the Supreme Court.
xxxx

Section 3. Every department, office or agency shall

This could only mean that while no prohibition could stand against provide official information, records or documents to any
access to official records, such as the SALN, the same is undoubtedly requesting public, except if:

subject to regulation. (a) such information, record or

document must be kept secret in the interest
of national defense or security or the
In this regard, Section 8 (c) and (d) of R.A. No. 6713 provides for the conduct of foreign affairs;
limitation and prohibition on the regulated access to SALNs of government
(b) such disclosure would put the life
officials and employees, viz: and safety of an individual in imminent
danger;
(C) Accessibility of documents. - (1) Any and all statements
filed under this Act, shall be made available for inspection at (c) the information, record or
reasonable hours. document sought falls within the concepts of
(2) Such statements shall be made available for copying or established privilege or recognized
reproduction after ten (10) working days from the time they exceptions as may be provided by law or
are filed as required by law. settled policy or jurisprudence;
(3) Any person requesting a copy of a statement shall be
required to pay a reasonable fee to cover the cost of (d) such information, record or
reproduction and mailing of such statement, as well as the document compromises drafts or decisions,
cost of certification. orders, rulings, policy, decisions,
(4) Any statement filed under this Act shall be available to memoranda, etc;
the public for a period of ten (10) years after receipt of the

448
 (e) it would disclose information of a
personal nature where disclosure would
constitute a clearly unwarranted invasion of
personal privacy;
(f) it would disclose investigatory
records complied for law enforcement
purposes, or information which if written
would be contained in such records or
information would (i) interfere with
enforcement proceedings, (ii) deprive a
person of a right to a fair trial or an impartial
adjudication, (iii) disclose the identity of a
confidential source and, in the case of a
record compiled by a criminal law
enforcement authority in the course of a
criminal investigation, or by an agency
conducting a lawful national security
intelligence investigation, confidential
information furnished only by the confidential
source, or (iv) unjustifiably disclose
investigative techniques and procedures; or
(g) it would disclose information the
premature disclosure of which would (i) in
the case of a department, office or agency
which agency regulates currencies,
securities, commodities, of financial
institutions, be likely to lead to significant
financial speculation in currencies,
securities, or commodities or significantly
endanger the stability of any financial
institution, or (ii) in the case of any
department, office or agency be likely or
significantly to frustrate implementation of a
proposed official action, except that
subparagraph (f) (ii) shall not apply in any
instance where the department, office or
agency has already disclosed to the public
the content or nature of its proposed action,
or where the department, office or agency is
required by law to make such disclosure on
its own initiative prior to taking final official
action on such proposal.
xxxx
Rule VI
Duties of Public Officials and Employees
Section 6. All public documents must be made
accessible to, and readily available for inspection by, the
public during working hours, except those provided in
Section 3, Rule IV.
The power to regulate the access by the public to these documents
stems from the inherent power of the Court, as custodian of these personal
documents, to control its very office to the end that damage to, or loss of, the
records may be avoided; that undue interference with the duties of the
custodian of the books and documents and other employees may be
prevented; and that the right of other persons entitled to make inspection
may be insured.[55]
In this connection, Section 11 of the same law provides for the
penalties in case there should be a misuse of the SALN and the information
contained therein, viz:
Section 11. Penalties. - (a) Any public official or employee,
regardless of whether or not he holds office or employment
in a casual, temporary, holdover, permanent or regular
capacity, committing any violation of this Act shall be
punished with a fine not exceeding the equivalent of six (6)
months' salary or suspension not exceeding one (1) year, or
removal depending on the gravity of the offense after due
notice and hearing by the appropriate body or agency. If the
violation is punishable by a heavier penalty under another
law, he shall be prosecuted under the latter statute.
Violations of Sections 7, 8 or 9 of this Act shall be
punishable with imprisonment not exceeding five (5) years,
449
 or a fine not exceeding five thousand pesos (5,000), or
both, and, in the discretion of the court of competent
jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative
proceeding shall be sufficient cause for removal or dismissal
of a public official or employee, even if no criminal
prosecution is instituted against him.
(c) Private individuals who participate in conspiracy as co-
principals, accomplices or accessories, with public officials
or employees, in violation of this Act, shall be subject to the
same penal liabilities as the public officials or employees and
shall be tried jointly with them.
(d) The official or employee concerned may bring an action
against any person who obtains or uses a report for any
purpose prohibited by Section 8 (d) of this Act. The Court in
which such action is brought may assess against such
person a penalty in any amount not to exceed twenty-five
thousand pesos (25,000.00). If another sanction hereunder
or under any other law is heavier, the latter shall apply.
Considering the foregoing legal precepts vis--vis the various requests
made, the Court finds no cogent reason to deny the public access to the
SALN, PDS and CV of the Justices of the Court and other magistrates of the
Judiciary subject, of course, to the limitations and prohibitions provided in
R.A. No. 6713, its implementing rules and regulations, and in the guidelines
set forth in the decretal portion.
The Court notes the valid concerns of the other magistrates
regarding the possible illicit motives of some individuals in their requests for
access to such personal information and their publication. However,
custodians of public documents must not concern themselves with the
motives, reasons and objects of the persons seeking access to the
records. The moral or material injury which their misuse might inflict on
others is the requestors responsibility and lookout. Any publication is made
subject to the consequences of the law. [56] While public officers in the
custody or control of public records have the discretion to regulate the
manner in which records may be inspected, examined or copied by
interested persons, such discretion does not carry with it the authority to
prohibit access, inspection, examination, or copying of the records. [57] After
all,public office is a public trust. Public officers and employees must, at all
times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives.[58]
WHEREFORE, the Court resolves to GRANT the requests contained
in the (1) Letter, dated July 30, 2009, of Rowena C. Paraan; (2) Letter, dated
August 13, 2009, of Karol M. Ilagan; (3) Letter, dated April 21, 2010, of the
Philippine Public Transparency Reporting Project; (4) Letter, filed on August
24, 2011, by Marvin Lim; (5) Letter, dated August 26, 2011, of Rawnna
Crisostomo; (6) Letter, dated October 11, 2011, of Bala S. Tamayo; (7)
Letters, all dated December 19, 2011, of Harvey S. Keh; (8) Letter, dated
December 21, 2011, of Glenda M. Gloria; (9) Letters, all dated January 3,
2012, of Phillipe Manalang; (10) Letter, dated December 19, 2011, of Malou
Mangahas; (11) Letter, dated January 16, 2012, of Nilo Ka Nilo H. Baculo;
(12) Letter, dated January 25, 2012, of Roxanne Escaro-Alegre; (13) Letter,
dated January 27, 2012, of David Jude Sta. Ana; (14) Letter, dated January
31, 2012, of Michael G. Aguinaldo; (15) undated Letter of Benise P.
Balaoing; (16) Letter, dated April 27, 2012, of Maria A. Ressa; (17)
Letter, dated May 2, 2012, of Mary Ann A. Seir; (18) Letter, dated May 4,
2012, of Edward Gabud, Sr., Desk Editor of Solar Network, Inc.; (19)
Letter, dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5; (20)
Letter, dated May 31, 2002, of Atty. Joselito P. Fangon of the Office of the
Ombudsman; and (21) Letter, dated June 7, 2012, of Thea Marie S. Pias,
insofar as copies of the 2011 SALN, PDS, and CV of the Justices of the
450
Supreme Court, the Court of Appeals, the Sandiganbayan, and the Court of
Tax Appeals; Judges of lower courts; and other members of the Judiciary,
4. Every request shall explain the requesting partys
are concerned, subject to the limitations and prohibitions provided in R.A.
specific purpose and their individual interests sought to
No. 6713, its implementing rules and regulations, and the following
be served; shall state the commitment that the request
guidelines:
shall only be for the stated purpose; and shall be

1. All requests shall be filed with the Office of the Clerk of submitted in a duly accomplished request form secured

Court of the Supreme Court, the Court of Appeals, the from the SC website. The use of the information secured

Sandiganbayan, the Court of Tax Appeals; for the lower shall only be for the stated purpose.

courts, with the Office of the Court Administrator; and for

attached agencies, with their respective heads of offices.

2. Requests shall cover only copies of the latest SALN,

5. In the case of requesting individuals other than
PDS and CV of the members, officials and employees of
members of the media, their interests should go beyond
the Judiciary, and may cover only previous records if so
pure or mere curiosity.
specifically requested and considered as justified, as

determined by the officials mentioned in par. 1 above,

under the terms of these guidelines and the 6. In the case of the members of the media, the request

Implementing Rules and Regulations of R.A. No. 6713. shall additionally be supported by proof under oath of

their media affiliation and by a similar certification of the

accreditation of their respective organizations as

3. In the case of requests for copies of SALN of the
legitimate media practitioners.
Justices of the Supreme Court, the Court of Appeals, the

Sandiganbayan and the Court of Tax Appeals, the

authority to disclose shall be made by the Court En 7. The requesting party, whether as individuals or as

Banc. members of the media, must have no derogatory record

451

of having misused any requested information previously
furnished to them.
The requesting parties shall complete their requests in accordance with
these guidelines. The custodians of these documents[59] (the respective
Clerks of Court of the Supreme Court, Court of Appeals, Sandiganbayan,
and Court of Tax Appeals for the Justices; and the Court Administrator for
the Judges of various trial courts) shall preliminarily determine if the requests
are not covered by the limitations and prohibitions provided in R.A. No. 6713
and its implementing rules and regulations, and in accordance with the
aforecited guidelines. Thereafter, the Clerk of Court shall refer the matter
pertaining to Justices to the Court En Banc for final determination.
SO ORDERED.
.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias
"Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-
Subversion
Act,1 which outlaws the Communist Party of the Philippines and other
"subversive associations," and punishes any person who "knowingly, willfully
and by overt acts affiliates himself with, becomes or remains a member" of
the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-
Subversion Act was filed against the respondent Feliciano Co in the Court of
First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted
a preliminary investigation and, finding a prima facie case against Co,
directed the Government prosecutors to file the corresponding information.
The twice-amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or
ranking leader of the Communist Party of the Philippines, an
outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian
regime and placing the government under the control and
domination of an alien power, by being an instructor in the
Mao Tse Tung University, the training school of recruits of
the New People's Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with
insult to public authorities;
(b) That the crime was committed by a band; and afford
impunity.
(c) With the aid of armed men or persons who insure or
afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of
attainder.
452
Meanwhile, on May 25, 1970, another criminal complaint was filed with the
same court, sharing the respondent Nilo Tayag and five others with
subversion. After preliminary investigation was had, an information was filed,
which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State
Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to
the Order dated June 5, above entitled case, hereby accuse
Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still
unknown, for violation of REPUBLIC ACT No. 1700,
otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto
and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully
and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and
COMMANDER MELODY, in addition thereto, knowingly,
willfully and by over acts joined and/or remained as a
member and became an officer and/or ranking leader not
only of the Communist Party of the Philippines but also of
the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named
accused, as such officers and/or ranking leaders of the
aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then
and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and
stirring the people to unite and rise publicly and tumultuously
and take up arms against the government, and/or engage in
rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force,
violence, deceit, subversion and/or other illegal means
among which are the following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the
said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government
of the Republic of the Philippines, by force, violence, deceit,
subversion and/or other illegal means; and toward this end,
the said accused organized, among others a chapter of the
KABATAANG MAKABAYAN in barrio Motrico, La Paz,
Tarlac for the avowed purpose of undertaking or promoting
an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal
means to discredit and overthrow the Government of the
Republic of the Philippines and to established in the
Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias
TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or
seditious activities in San Pablo City by recruiting members
for the New People's Army, and/or by instigating and inciting
the people to organize and unite for the purpose of
overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons
to insure or afford impunity; and (b) craft, fraud, or disguise
was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it
embraces more than one subject not expressed in the title thereof; and (4) it
denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of
September 15, 1970, declared the statute void on the grounds that it is a bill
of attainder and that it is vague and overboard, and dismissed the
informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
453
Article III, section 1 (11) of the Constitution states that "No bill of attainder
or ex port facto law shall be enacted."2 A bill of attainder is a legislative act
which inflicts punishment without trial.3 Its essence is the substitution of a
legislative for a judicial determination of guilt.4 The constitutional ban against
bills of attainder serves to implement the principle of separation of
powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial
function.7 History in perspective, bills of attainder were employed to suppress
unpopular causes and political minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the
imposition of a burden on it, and a legislative intent, suffice to stigmatizea
statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a
quo as a bill of attainder because it "tars and feathers" the Communist Party
of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of
the Philippines.'" By means of the Act, the trial court said, Congress usurped
"the powers of the judge," and assumed "judicial magistracy by pronouncing
the guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the law is
still a bill of attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does
not specify the Communist Party of the Philippines or the members thereof
for the purpose of punishment. What it does is simply to declare the Party to
be an organized conspiracy for the overthrow of the Government for the
purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued
solely for definitional purposes. In fact the Act applies not only to the
Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on
individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal
Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S.
vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional.
Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the
Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any
labor organization.
during or for five years after the termination of his
membership in the Communist Party....
(b) Any person who willfully violates this section shall be
fined not more than $10,000 or imprisoned for not more than
one year, or both.
This statute specified the Communist Party, and imposes disability and
penalties on its members. Membership in the Party, without more, ipso
facto disqualifies a person from becoming an officer or a member of the
governing body of any labor organization. As the Supreme Court of the
United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly
constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting
interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however,
Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits
certain acts or possesses certain characteristics (acts and
characteristics which, in Congress' view, make them likely to
initiate political strikes) shall not hold union office, and leaves
to courts and juries the job of deciding what persons have
committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and
therefore cannot hold union office without incurring criminal
liability members of the Communist Party.
454
 Communist Party v. Subversive Activities Control Board, 367
US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our
conclusion. That case involved an appeal from an order by
the Control Board ordering the Communist Party to register
as a "Communist-action organization," under the Subversive
Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3
of the Act:
[A]ny organization in the United States ... which (i)is
substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world
Communist movement referred to in section 2 of this title,
and(ii) operates primarily to advance the objectives of such
world Communist movement... 64 Stat 989, 50 USC sec.
782 (1958 ed.)
A majority of the Court rejected the argument that the Act
was a bill of attainder, reasoning that sec. 3 does not specify
the persons or groups upon which the deprivations setforth
in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that
the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to
be so narrow as to insure that the Party would always come
within it:
In this proceeding the Board had found, and the Court of
Appeals has sustained its conclusion, that the Communist
Party, by virtud of the activities in which it now engages,
comes within the terms of the Act. If the Party should at
anytime choose to abandon these activities, after it is once
registered pursuant to sec. 7, the Act provides adequate
means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
unnecessary to charge Communists in court, as the law alone, without more,
would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at
the trial that the accused joined the Party knowingly, willfully and by overt
acts, and that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow the existing
Government by force deceit, and other illegal means and place the country
under the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless
imputed despite the requirement of proof of knowing membership in the
Party, suffice it to say that is precisely the nature of conspiracy, which has
been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute
were construed as punishing mere membership devoid of any specific intent
to further the unlawful goals of the Party. 13 But the statute specifically
required that membership must be knowing or active, with specific intent to
further the illegal objectives of the Party. That is what section 4 means when
it requires that membership, to be unlawful, must be shown to have been
acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific
intent to pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from the
ingredient of guilty knowledge. The former requires proof of direct
participation in the organization's unlawful activities, while the latter requires
proof of mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A statute
prohibiting partners or employees of securities underwriting firms from
serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has
been declared not to be a bill of attainder. 16 Similarly, a statute requiring
every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society
which fails to register or remains a member thereof, was declared valid even
if in its operation it was shown to apply only to the members of the Ku Klux
Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act, 18 requiring labor unions to file with the Department of Labor affidavits of
union officers "to the effect that they are not members of the Communist
Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional
method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to
easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
455
attainder. 20 It is upon this ground that statutes which disqualified those who
had taken part in the rebellion against the Government of the United States
during the Civil War from holding office, 21 or from exercising their
profession, 22 or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had engages
in subversive activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union, 24 have
been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the legislature
may apply its own rules, and judicial hearing is not needed fairly to make
such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature
passed a law requiring every secret, oath-bound society with a membership
of at least twenty to register, and punishing any person who joined or
remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK
exclusively. In sustaining the statute against the claim that it discriminated
against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United
States Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the
cases just cited and reached the conclusion that the
classification was justified by a difference between the two
classes of associations shown by experience, and that the
difference consisted (a) in a manifest tendency on the part of
one class to make the secrecy surrounding its purpose and
membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of
such a tendency on the part of the other class. In pointing
out this difference one of the courts said of the Ku Klux Klan,
the principal association in the included class: "It is a matter
of common knowledge that this organization functions
largely at night, its members disguised by hoods and gowns
and doing things calculated to strike terror into the minds of
the people;" and later said of the other class: "These
organizations and their purposes are well known, many of
them having been in existence for many years. Many of
them are oath-bound and secret. But we hear no complaint
against them regarding violation of the peace or interfering
with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or
organization of which the relator is concededly a member
exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not
confined to this society;" and later said of the other class:
"Labor unions have a recognized lawful purpose. The
benevolent orders mentioned in the Benevolent Orders Law
have already received legislative scrutiny and have been
granted special privileges so that the legislature may well
consider them beneficial rather than harmful agencies." The
third court, after recognizing "the potentialities of evil in
secret societies," and observing that "the danger of certain
organizations has been judicially demonstrated," meaning
in that state, said: "Benevolent orders, labor unions and
college fraternities have existed for many years, and, while
not immune from hostile criticism, have on the whole justified
their existence."
We assume that the legislature had before it such
information as was readily available including the published
report of a hearing, before a committee of the House of
Representatives of the 57th Congress relating to the
formation, purposes and activities of the Klu Klux Klan. If so
it was advised putting aside controverted evidence that
the order was a revival of the Ku Klux Klan of an earlier time
with additional features borrowed from the Know Nothing
and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant
whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to
the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white
supremacy;" and in still another declared any person actively
opposing its principles to be "a dangerous ingredient in the
body politic of our country and an enemy to the weal of our
national commonwealth;" that it was conducting a crusade
against Catholics, Jews, and Negroes, and stimulating
hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the
administration of local, state and national affairs; and that at
times it was taking into its own hands the punishment of
what some of its members conceived to be crimes. 27
456
In the Philippines the character of the Communist Party has been the object
of continuing scrutiny by this Court. In 1932 we found the Communist Party
of the Philippines to be an illegal association. 28 In 1969 we again found that
the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of
government similar to that of Soviet Russia and Red China." 29 More
recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and the
emergence of the New People's Army. After meticulously reviewing the
evidence, we said: "We entertain, therefore, no doubts about the existence of
a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the
Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it
may fall within the ambit of the prohibition against bills of attainder. It is also
necessary that it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of
attainder was ... doubly objectionable because of its ex post facto features.
This is the historic explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ...
Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But
if it is not an ex post facto law, the reasons that establish that it is not are
persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court
upheld the validity of the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public
office or employment in the service of the City of Los
Angeles, in any office or department thereof, either elective
or appointive, who has within five (5) years prior to the
effective date of this section advised, advocated, or taught,
or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or
has within said period of five (5) years advised, advocated,
or taught the overthrow by force or violence of the
Government of the United States of America or of the State
of California.
In upholding the statute, the Court stressed the prospective application of the
Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the
charter provision insofar as it purported to apply
restrospectively for a five-year period to its effective date.
We assume that under the Federal Constitution the Charter
Amendment is valid to the extent that it bars from the city's
public service persons who, subsequently to its adoption in
1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the
State and the United States.
... Unlike the provisions of the charter and ordinance under
which petitioners were removed, the statute in the Lovett
case did not declare general and prospectively operative
standards of qualification and eligibility for public
employment. Rather, by its terms it prohibited any further
payment of compensationto named individuals or
employees. Under these circumstances, viewed against the
legislative background, the statutewas held to have imposed
penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby
assumed judicial magistracy, them it mustbe demonstrated that the statute
claimed to be a bill of attainderreaches past conduct and that the penalties it
imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby
the fact that the conduct which it regulates is describedwith
such particularity that, in probability, few organizationswill
come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public
welfare,whether that conduct is found to be engaged in by
manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the
regulated conduct, bethey many or few, can escape
regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33
457
This statement, mutatis mutandis, may be said of theAnti-Subversion Act.
Section 4 thereof expressly statesthat the prohibition therein applies only to
acts committed"After the approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its
successors or of any subversive association"after June 20, 1957, are
punished. Those whowere members of the Party or of any other subversive
associationat the time of the enactment of the law, weregiven the opportunity
of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such
renunciationshall operate to exempt such persons from penalliability. 34 The
penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the
Communist Party of the Philippinesis an organized conspiracy for the
overthrow of theGovernment is inteded not to provide the basis for a
legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of
association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly,
any limitation on their exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before enacting the statute in
question Congressconducted careful investigations and then stated
itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines
althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of
the Philippinesnot only by force and violence but also by
deceit, subversionand other illegal means, for the purpose of
establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the
CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to
cope withthis continuing menace to the freedom and security
of the country.
In truth, the constitutionality of the Act would be opento question if, instead of
making these findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the distinction
between legislative fact and adjudicative fact. Professor Paul Freund
elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore
than 3.2 per cent of alcohol would raise a question of
legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement
problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the
meaning of the statuteand the limits on governmental action
imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on
underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts those
facts which are relevant to the legislative judgment will not
be canvassed save to determine whether there is a
rationalbasis for believing that they exist, while
adjudicativefacts those which tie the legislative enactment
to the litigant are to be demonstrated and found according
to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court
in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio." The recital of
legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal
Subversive Activities Control Actof 1950 (that "Communist-action
organizations" are controlledby the foreign government controlling the
458
worldCommunist movement and that they operate primarily to"advance the
objectives of such world Communist movement"),the U.S. Supreme Court
said:
It is not for the courts to reexamine the validity of
theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York,
291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as
we mustas a not unentertainable appraisal by Congress of
the threatwhich Communist organizations pose not only to
existing governmentin the United States, but to the United
States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings
articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a
proposition too plain to require elaboration.Self-preservation is the "ultimate
value" of society. It surpasses and transcendes every other value, "forif a
society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said
in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat
there is a 'right' to rebellion against dictatorial governmentsis
without force where the existing structure of government
provides for peaceful and orderly change. We rejectany
principle of governmental helplessness in the face of
preparationfor revolution, which principle, carried to its
logical conclusion,must lead to anarchy. No one could
conceive that it isnot within the power of Congress to prohibit
acts intended tooverthrow the government by force and
violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly
described in sectin 4 thereof), Congressreaffirmed its respect for the rule that
"even throughthe governmental purpose be legitimate and substantial,that
purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved." 42 The
requirement of knowing membership,as distinguished
from nominal membership, hasbeen held as a sufficient basis for penalizing
membershipin a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and
encouragement to the organization; and when membership
is acceptedor retained with knowledge that the organization
is engaged inan unlawful purpose, the one accepting or
retaining membershipwith such knowledge makes himself a
party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section
2 merely speaks of "overthrow"of the Government and overthrow may be
achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely
a legislative declaration; the definitionsof and the penalties prescribed for the
different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must
be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow
not only by forceand violence but also be deceit, subversion and other
illegalmeans." The absence of this qualificatio in section 2 appearsto be due
more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and
other illegal means. Only in a metaphoricalsense may one speak of peaceful
overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly
delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant
clearly imported anoverthrow of the Government by violence, and it should
beinterpreted in the plain and obvious sense in which it wasevidently
intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective
franchise. The useof the whip [which the accused exhorted his audience to
useagainst the Constabulary], an instrument designed toleave marks on the
sides of adversaries, is inconsistentwith the mild interpretation which the
appellant wouldhave us impute to the language." 45
459
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow
the Government by force, violence orother illegal means. Whatever interest
in freedom of speechand freedom of association is infringed by the
prohibitionagainst knowing membership in the Communist Party ofthe
Philippines, is so indirect and so insubstantial as to beclearly and heavily
outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many
respects to the membership provision ofthe Anti-Subversion Act. The former
provides:
Whoever organizes or helps or attempts to organize
anysociety, group, or assembly of persons who teach,
advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a
member of, or affiliatedwith, any such society, group or
assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore
than twenty years, or both, and shall be ineligible for
emplymentby the United States or any department or
agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United
States: 47
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas
further established that a combination to promote
suchadvocacy, albeit under the aegis of what purports to be
a politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of
complicity in a group engagingin this same forbidden
advocacy, should receive anygreater degree of protection
from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values of liberty
are as complex and intricate as inthe situation described in the legislative
findings stated inthe U.S. Federal Subversive Activities Control Act of
1950,the legislative judgment as to how that threat may best bemet
consistently with the safeguards of personal freedomsis not to be set aside
merely because the judgment of judgeswould, in the first instance, have
chosen other methods. 48 For in truth, legislation, "whether it restrains
freedom tohire or freedom to speak, is itself an effort at compromisebetween
the claims of the social order and individual freedom,and when the legislative
compromise in either case isbrought to the judicial test the court stands one
step removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which
may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the
last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother
person to overthrow the Government of the Republic ofthe
Philippines, or the government of any of its political
subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or
political subdivisionunder the control and domination of any
lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in
the Communist Party of the Philippinesor similar associations, but as well
"any conspiracyby two persons to overthrow the national or any local
governmentby illegal means, even if their intent is not to establisha
totalitarian regime, burt a democratic regime, evenif their purpose is not to
place the nation under an aliencommunist power, but under an alien
democratic power likethe United States or England or Malaysia or even an
anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of
the Philippines and SimilarAssociations, Penalizing Membership Therein,
and forOther Purposes"), has a short title. Section 1 providesthat "This Act
shall be known as the
460
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin general
which has for its fundamental purpose the substitutionof a foreign totalitarian
regime in place of theexisting Government and not merely subversion by
Communistconspiracies..
ACCORDINGLY, the questioned resolution of September15, 1970 is set
aside, and these two cases are herebyremanded to the court a quo for trial
on the merits. Costs de oficio.

The title of a bill need not be a catalogue or an indexof its contents, and need
not recite the details of the Act. 51 It is a valid title if it indicates in broad but
clear termsthe nature, scope, and consequences of the proposed lawand its
operation. 52 A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative
intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we

cannot overemphasize the needfor prudence and circumspection in its
enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to
proving such circumstancesas may affect liability, must establish the
following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of

the Philippines, (a) that thepurpose of the organization is to overthrow the
presentGovernment of the Philippines and to establish in thiscountry a
totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP
continues to pursue the objectiveswhich led Congress in 1957 to declare it to
be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a
foreign power; (b) that the accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a

member of the Communist Party ofthe Philippines or of any other subversive
association: weleave this matter to future determination.

461
HACIENDA LUISITA, INCORPORATED, G.R. No. 171101 April 24, 2012

Petitioner,

LUISITA INDUSTRIAL PARK CORPORATION and Present:

RIZAL COMMERCIAL BANKING CORPORATION,

Petitioners-in-Intervention,
CORONA, C.J.,

CARPIO,
- versus -
VELASCO, JR.,

LEONARDO-DE CASTRO,
PRESIDENTIAL AGRARIAN REFORM COUNCIL;
SECRETARY NASSER PANGANDAMAN OF THE BRION,
DEPARTMENT OF AGRARIAN REFORM;
ALYANSA NG MGA MANGGAGAWANG BUKID PERALTA,
NG HACIENDA LUISITA, RENE GALANG, NOEL
BERSAMIN,
MALLARI, and JULIO SUNIGA[1] and his
SUPERVISORY GROUP OF THE HACIENDA DEL CASTILLO,
LUISITA, INC. and WINDSOR ANDAYA,
ABAD,
Respondents.
VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

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

Promulgated: RESOLUTION

462
VELASCO, JR., J.:
HLI invokes the following grounds in support of its instant Motion to
Clarify and Reconsider Resolution of November 22, 2011 dated December
16, 2011:

Before the Court are the Motion to Clarify and Reconsider Resolution
of November 22, 2011 dated December 16, 2011 filed by petitioner Hacienda A

Luisita, Inc. (HLI) and the Motion for Reconsideration/Clarification dated

December 9, 2011 filed by private respondents Noel Mallari, Julio Suniga, WITH DUE RESPECT, THE HONORABLE COURT ERRED
Supervisory Group of Hacienda Luisita, Inc. and Windsor Andaya IN RULING THAT IN DETERMINING THE JUST
COMPENSATION, THE DATE OF TAKING IS
(collectively referred to as Mallari, et al.). NOVEMBER 21, 1989, WHEN PARC APPROVED HLIs
SDP [STOCK DISPTRIBUTION PLAN] IN VIEW OF THE
FACT THAT THIS IS THE TIME THAT THE FWBs WERE
CONSIDERED TO OWN AND POSSESS THE
In Our July 5, 2011 Decision[2] in the above-captioned case, this AGRICULTURAL LANDS IN HACIENDA LUISITA
BECAUSE:
Court denied the petition for review filed by HLI and affirmed the assailed
Presidential Agrarian Reform Council (PARC) Resolution No. 2005-32-01
dated December 22, 2005 and PARC Resolution No. 2006-34-01 dated May (1) THE SDP IS PRECISELY A MODALITY WHICH THE
AGRARIAN LAW GIVES THE LANDOWNER AS
3, 2006 with the modification that the original 6,296 qualified farmworker-
ALTERNATIVE TO COMPULSORY COVERAGE IN WHICH
beneficiaries of Hacienda Luisita (FWBs) shall have the option to remain as CASE, THEREFORE, THE FWBs CANNOT BE
stockholders of HLI. CONSIDERED AS OWNERS AND POSSESSORS OF THE
AGRICULTURAL LANDS AT THE TIME THE SDP WAS
APPROVED BY PARC;

Upon separate motions of the parties for reconsideration, the Court,

(2) THE APPROVAL OF THE SDP CANNOT BE AKIN TO A
by Resolution[3] of November 22, 2011, recalled and set aside the option thus NOTICE OF COVERAGE IN COMPULSORY COVERAGE
granted to the original FWBs to remain as stockholders of HLI, while OR ACQUISITION BECAUSE SDP AND COMPULSORY
COVERAGE ARE TWO DIFFERENT MODALITIES WITH
maintaining that all the benefits and homelots received by all the FWBs shall INDEPENDENT AND SEPARATE RULES AND
be respected with no obligation to refund or return them. MECHANISMS;

(3) THE NOTICE OF COVERAGE OF JANUARY 02, 2006

MAY, AT THE VERY LEAST, BE CONSIDERED AS THE

463
TIME WHEN THE FWBs CAN BE CONSIDERED TO OWN
AND POSSESS THE AGRICULTURAL LANDS OF
HACIENDA LUISITA BECAUSE THAT IS THE ONLY TIME
WHEN HACIENDA LUISITA WAS PLACED UNDER
COMPULSORY ACQUISITION IN VIEW OF FAILURE OF
HLI TO PERFORM CERTAIN OBLIGATIONS OF THE SDP,
OR SDOA [STOCK DISTRIBUTION OPTION
AGREEMENT];
(4) INDEED, THE IMMUTABLE RULE AND THE
UNBENDING JURISPRUDENCE IS THAT
TAKING TAKES PLACE WHEN THE OWNER IS
ACTUALLY DEPRIVED OR DISPOSSESSED OF HIS
PROPERTY;
(5) TO INSIST THAT THE TAKING IS WHEN THE SDP
WAS APPROVED BY PARC ON NOVEMBER 21, 1989
AND THAT THE SAME BE CONSIDERED AS THE
RECKONING PERIOD TO DETERMINE THE JUST
COMPENSATION IS DEPRIVATION OF LANDOWNERS
PROPERTY WITHOUT DUE PROCESS OF LAW;
(6) HLI SHOULD BE ENTITLED TO PAYMENT OF
INTEREST ON THE JUST COMPENSATION.
B
WITH DUE RESPECT, THE HONORABLE COURT ERRED
WHEN IT REVERSED ITS DECISION GIVING THE FWBs
THE OPTION TO REMAIN AS HLI STOCKHOLDERS OR
NOT, BECAUSE:
(1) IT IS AN EXERCISE OF A RIGHT OF THE FWB WHICH
THE HONORABLE COURT HAS DECLARED IN ITS
DECISION AND EVEN IN ITS RESOLUTION AND THAT
HAS TO BE RESPECTED AND IMPLEMENTED;
(2) NEITHER THE CONSTITUTION NOR THE CARL
[COMPREHENSIVE AGRARIAN REFORM LAW]
REQUIRES THAT THE FWBs SHOULD HAVE CONTROL
OVER THE AGRICULTURAL LANDS;
(3) THE OPTION HAS NOT BEEN SHOWN TO BE
DETRIMENTAL BUT INSTEAD BENEFICIAL TO THE
FWBs AS FOUND BY THE HONORABLE COURT.
C
WITH DUE RESPECT, THE HONORABLE COURT ERRED
IN RULING THAT THE PROCEEDS FROM THE SALES OF
THE 500-HECTARE CONVERTED LOT AND THE 80.51-
HECTARE SCTEX CANNOT BE RETAINED BY HLI BUT
RETURNED TO THE FWBs AS BY SUCH MANNER; HLI IS
USING THE CORPORATION CODE TO AVOID ITS
LIABILITY TO THE FWBs FOR THE PRICE IT RECEIVED
FROM THE SALES, BECAUSE:
(1) THE PROCEEDS OF THE SALES BELONG TO THE
CORPORATION AND NOT TO EITHER HLI/TADECO OR
THE FWBs, BOTH OF WHICH ARE STOCKHOLDERS
ENTITLED TO THE EARNINGS OF THE CORPORATION
AND TO THE NET ASSETS UPON LIQUIDATION;
(2) TO ALLOW THE RETURN OF THE PROCEEDS OF
THE SALES TO FWBs IS TO IMPOSE ALL LIABILITIES OF
464
 THE CORPORATION ON HLI/TADECO WHICH IS UNFAIR THOSE WHO CHOOSE LAND SHOULD RETURN
AND VIOLATIVE OF THE CORPORATION CODE. WHATEVER THEY GOT FROM THE SDOA [STOCK
DISTRIBUTION OPTION AGREEMENT] AND TURN OVER
THE SAME TO HLI FOR USE IN THE OPERATIONS OF
THE COMPANY, WHICH IN TURN WILL REDOUND TO
THE BENEFIT OF THOSE WHO WILL OPT TO STAY WITH
THE SDO.
Mallari, et al. similarly put forth the following issues in its Motion for
Reconsideration/Clarification dated December 9, 2011:
V

I FOR THOSE WHO CHOOSE LAND, THE TIME OF

TAKING FOR PURPOSES OF JUST COMPENSATION
REPUBLIC ACT NO. 6657 [RA 6657] OR THE SHOULD BE AT THE TIME HLI WAS DISPOSSESSED OF
COMPREHENSIVE AGRARIAN REFORM LAW [CARL] CONTROL OVER THE PROPERTY, AND THAT PAYMENT
DOES NOT PROVIDE THAT THE FWBs WHO OPT FOR BY [THE GOVERNMENT] OF THE LAND SHOULD BE
STOCK DISTRIBUTION OPTION SHOULD RETAIN TURNED OVER TO HLI FOR THE BENEFIT AND USE OF
MAJORITY SHAREHOLDING OF THE COMPANY TO THE COMPANYS OPERATIONS THAT WILL, IN TURN,
WHICH THE AGRICULTURAL LAND WAS GIVEN. REDOUND TO THE BENEFIT OF FWBs WHO WILL OPT
TO STAY WITH THE COMPANY.

II

IF THE NOVEMBER 22, 2011 DECISION OF THIS

HONORABLE COURT ORDERING LAND DISTRIBUTION
WOULD BE FOLLOWED, THIS WOULD CAUSE MORE Basically, the issues raised by HLI and Mallari, et al. boil down to the
HARM THAN GOOD TO THE LIVES OF THOSE PEOPLE following: (1) determination of the date of taking; (2) propriety of the
LIVING IN THE HACIENDA, AND MORE PARTICULARLY
revocation of the option on the part of the original FWBs to remain as
TO THE WELFARE OF THE FWBs.
stockholders of HLI; (3) propriety of distributing to the qualified FWBs the
proceeds from the sale of the converted land and of the 80.51-hectare Subic-
III
Clark-Tarlac Expressway (SCTEX ) land; and (4) just compensation for the
ON THE CONCLUSION BY THIS HONORABLE COURT
homelots given to the FWBs.
THAT THE OPERATIVE FACT DOCTRINE IS APPLICABLE
TO THE CASE AT BAR, THEN FWBs WHO MERELY
RELIED ON THE PARC APPROVAL SHOULD NOT BE
PREJUDICED BY ITS SUBSEQUENT NULLIFICATION.
Payment of just compensation

IV
465
 HLI contends that since the SDP is a modality which the agrarian
reform law gives the landowner as alternative to compulsory coverage, then
the FWBs cannot be considered as owners and possessors of the
agricultural lands of Hacienda Luisita at the time the SDP was approved by
PARC.[4] It further claims that the approval of the SDP is not akin to a Notice
of Coverage in compulsory coverage situations because stock distribution
option and compulsory acquisition are two (2) different modalities with
independent and separate rules and mechanisms. Concomitantly, HLI
maintains that the Notice of Coverage issued on January 2, 2006 may, at the
very least, be considered as the date of taking as this was the only time
that the agricultural lands of Hacienda Luisita were placed under compulsory
acquisition in view of its failure to perform certain obligations under the
SDP.[5]
Mallari, et al. are of a similar view. They contend that Tarlac
Development Corporation (Tadeco), having as it were majority control over
HLI, was never deprived of the use and benefit of the agricultural lands of
Hacienda Luisita. Upon this premise, Mallari, et al. claim the date of
taking could not be at the time of the approval of the SDP.[6]
A view has also been advanced that the date of the taking should
be left to the determination of the Department of Agrarian Reform (DAR) in
conjunction with its authority to preliminarily determine the just compensation
for the land made subject of CARP.
Alyansa ng mga Manggagawang Bukid sa Hacienda Luisita
(AMBALA), in its Comment/Opposition (to the Motion to Clarify and
Reconsider Resolution of November 22, 2011) dated January 30, 2012, on
the other hand, alleges that HLI should not be paid just compensation
altogether.[7] It argues that when the Court of Appeals (CA) dismissed the
case[8] the government of then President Ferdinand E. Marcos initially
instituted and won against Tadeco, the CA allegedly imposed as a condition
for its dismissal of the action that should the stock distribution program fail,
the lands should be distributed to the FWBs, with Tadeco receiving by way of
compensation only the amount of PhP 3,988,000.[9]
AMBALA further contends that if HLI or Tadeco is, at all, entitled to
just compensation, the taking should be reckoned as of November 21,
1989, the date when the SDP was approved, and the amount of
compensation should be PhP 40,000 per hectare as this was the same value
declared in 1989 by Tadeco to ensure that the FWBs will not control the
majority stockholdings in HLI.[10]
At the outset, it should be noted that Section 2, Rule 52 of the Rules
of Court states, No second motion for reconsideration of a judgment or final
resolution by the same party shall be entertained. A second motion for
reconsideration, as a rule, is prohibited for being a mere reiteration of the
issues assigned and the arguments raised by the parties.[11]
In the instant case, the issue on just compensation and the grounds
HLI and Mallari, et al. rely upon in support of their respective stance on the
matter had been previously raised by them in their first motion for
466

reconsideration and fully passed upon by the Court in its November 22, 2011
Resolution. The similarities in the issues then and now presented and the
grounds invoked are at once easily discernible from a perusal of the
November 22, 2011 Resolution, the pertinent portions of which read:
In Our July 5, 2011 Decision, We stated that HLI
shall be paid just compensation for the remaining agricultural
land that will be transferred to DAR for land distribution to
the FWBs. We also ruled that the date of the taking is
November 21, 1989, when PARC approved HLIs SDP per
PARC Resolution No. 89-12-2.
In its Motion for Clarification and Partial
Reconsideration, HLI disagrees with the foregoing ruling and
contends that the taking should be reckoned from finality
of the Decision of this Court, or at the very least, the
reckoning period may be tacked to January 2, 2006, the date
when the Notice of Coverage was issued by the DAR
pursuant to PARC Resolution No. 2006-34-01
recalling/revoking the approval of the SDP.
For their part, Mallari, et al. argue that the valuation
of the land cannot be based on November 21, 1989, the date
of approval of the SDP. Instead, they aver that the date of
taking for valuation purposes is a factual issue best left to
the determination of the trial courts.
At the other end of the spectrum, AMBALA alleges
that HLI should no longer be paid just compensation for the
agricultural land that will be distributed to the FWBs, since
the Manila Regional Trial Court (RTC) already rendered a
decision ordering the Cojuangcos to transfer the control of
Hacienda Luisita to the Ministry of Agrarian Reform, which
will distribute the land to small farmers after compensating
the landowners P3.988 million. In the event, however, that
this Court will rule that HLI is indeed entitled to
compensation, AMBALA contends that it should be pegged
at forty thousand pesos (PhP 40,000) per hectare, since this
was the same value that Tadeco declared in 1989 to make
sure that the farmers will not own the majority of its stocks.
Despite the above propositions, We maintain that
the date of taking is November 21, 1989, the date when
PARC approved HLIs SDP per PARC Resolution No. 89-
12-2, in view of the fact that this is the time that the FWBs
were considered to own and possess the agricultural lands
in Hacienda Luisita. To be precise, these lands became
subject of the agrarian reform coverage through the stock
distribution scheme only upon the approval of the SDP, that
is, November 21, 1989. Thus, such approval is akin to a
notice of coverage ordinarily issued under compulsory
acquisition. Further, any doubt should be resolved in favor of
the FWBs. As this Court held in Perez-Rosario v. CA:
It is an established social and economic fact
that the escalation of poverty is the driving force
behind the political disturbances that have in the
past compromised the peace and security of the
people as well as the continuity of the national order.
To subdue these acute disturbances, the legislature
over the course of the history of the nation passed a
series of laws calculated to accelerate agrarian
reform, ultimately to raise the material standards of
living and eliminate discontent. Agrarian reform is a
perceived solution to social instability. The edicts of
social justice found in the Constitution and the public
policies that underwrite them, the extraordinary
national experience, and the prevailing national
consciousness, all command the great departments
of government to tilt the balance in favor of the poor
and underprivileged whenever reasonable doubt
arises in the interpretation of the law. But annexed to
467
 the great and sacred charge of protecting the weak can only be entertained before the ruling sought to be
is the diametric function to put every effort to arrive reconsidered becomes final by operation of law or by the
at an equitable solution for all parties concerned: the Courts declaration.
jural postulates of social justice cannot shield illegal
acts, nor do they sanction false sympathy towards a
certain class, nor yet should they deny justice to the In the Division, a vote of three Members shall be
landowner whenever truth and justice happen to be required to elevate a second motion for reconsideration to
on her side. In the occupation of the legal questions the Court En Banc.
in all agrarian disputes whose outcomes can
significantly affect societal harmony, the
considerations of social advantage must be
weighed, an inquiry into the prevailing social
interests is necessary in the adjustment of conflicting
demands and expectations of the people, and the Nonetheless, even if we entertain said motion and examine the
social interdependence of these interests, arguments raised by HLI and Mallari, et al. one last time, the result will be the
recognized. (Emphasis and citations omitted.)
same.

Sec. 4, Article XIII of the 1987 Constitution expressly provides that

Considering that the issue on just compensation has already been
the taking of land for use in the agrarian reform program of the government is
passed upon and denied by the Court in its November 22, 2011 Resolution, a
conditioned on the payment of just compensation. As stated:
subsequent motion touching on the same issue undeniably partakes of a
second motion for reconsideration, hence, a prohibited pleading, and as
such, the motion or plea must be denied. Sec. 3 of Rule 15 of the Internal Section 4. The State shall, by law, undertake an
agrarian reform program founded on the right of farmers and
Rules of the Supreme Court is clear: regular farm workers, who are landless, to own directly or
collectively the lands they till or, in the case of other farm
workers, to receive a just share of the fruits thereof. To this
SEC. 3. Second motion for reconsideration. The end, the State shall encourage and undertake the just
Court shall not entertain a second motion for distribution of all agricultural lands, subject to such priorities
reconsideration, and any exception to this rule can only be and reasonable retention limits as the Congress may
granted in the higher interest of justice by the Court en prescribe, taking into account ecological, developmental, or
banc upon a vote of at least two-thirds of its actual equity considerations, and subject to the payment of just
membership. There is reconsideration in the higher interest compensation. (Emphasis supplied.)
of justice when the assailed decision is not only legally
erroneous, but is likewise patently unjust and potentially
capable of causing unwarranted and irremediable injury or
damage to the parties. A second motion for reconsideration
468
 Just compensation has been defined as the full and fair equivalent
of the property taken from its owner by the expropriator. [12] The measure is
not the takers gain, but the owners loss.[13] In determining just
compensation, the price or value of the property at the time it was taken from
the owner and appropriated by the government shall be the basis. If the
government takes possession of the land before the institution of
expropriation proceedings, the value should be fixed as of the time of the
taking of said possession, not of the filing of the complaint.[14]
In Land Bank of the Philippines v. Livioco, the Court held that the
time of taking is the time when the landowner was deprived of the use
and benefit of his property, such as when title is transferred to the
Republic.[15] It should be noted, however, that taking does not only take
place upon the issuance of title either in the name of the Republic or the
beneficiaries of the Comprehensive Agrarian Reform Program (CARP).
Taking also occurs when agricultural lands are voluntarily offered by a
landowner and approved by PARC for CARP coverage through the stock
distribution scheme, as in the instant case. Thus, HLIs submitting its SDP
for approval is an acknowledgment on its part that the agricultural lands of
Hacienda Luisita are covered by CARP. However, it was the PARC approval
which should be considered as the effective date of taking as it was only
during this time that the government officially confirmed the CARP coverage
of these lands.
Indeed, stock distribution option and compulsory land acquisition are
two (2) different modalities under the agrarian reform program. Nonetheless,
both share the same end goal, that is, to have a more equitable distribution
and ownership of land, with due regard to the rights of landowners to just
compensation.[16]
The fact that Sec. 31 of Republic Act No. 6657 (RA 6657) gives
corporate landowners the option to give qualified beneficiaries the right to
avail of a stock distribution or, in the phraseology of the law, the right to
purchase such proportion of the capital stock of the corporation that the
agricultural land, actually devoted to agricultural activities, bears in relation to
the companys total assets, does not detract from the avowed policy of the
agrarian reform law of equitably distributing ownership of land. The difference
lies in the fact that instead of actually distributing the agricultural lands to the
farmer-beneficiaries, these lands are held by the corporation as part of the
capital contribution of the farmer-beneficiaries, not of the landowners, under
the stock distribution scheme. The end goal of equitably distributing
ownership of land is, therefore, undeniable. And since it is only upon the
approval of the SDP that the agricultural lands actually came under CARP
coverage, such approval operates and takes the place of a notice of
coverage ordinarily issued under compulsory acquisition.
Moreover, precisely because due regard is given to the rights of
landowners to just compensation, the law on stock distribution option
acknowledges that landowners can require payment for the shares of stock
corresponding to the value of the agricultural lands in relation to the
outstanding capital stock of the corporation.
469
 Although Tadeco did not require compensation for the shares of
stock corresponding to the value of the agricultural lands in relation to the
outstanding capital stock of HLI, its inability to receive compensation cannot
be attributed to the government. The second paragraph of Sec. 31 of RA
6657 explicitly states that [u]pon certification by DAR, corporations owning
agricultural lands may give their qualified beneficiaries the right to
purchase such proportion of the capital stock of the corporation that the
agricultural land, actually devoted to agricultural activities, bears in relation to
the companys total assets, under such terms and conditions as may be
agreed upon by them. x x x[17] On the basis of this statutory provision,
Tadeco could have exacted payment for such shares of stock corresponding
to the value of the agricultural lands of Hacienda Luisita in relation to the
outstanding capital stock of HLI, but it did not do so.
What is notable, however, is that the divestment by Tadeco of the
agricultural lands of Hacienda Luisita and the giving of the shares of stock for
free is nothing but an enticement or incentive for the FWBs to agree with the
stock distribution option scheme and not further push for land distribution.
And the stubborn fact is that the man days scheme of HLI impelled the
FWBs to work in the hacienda in exchange for such shares of stock.
Notwithstanding the foregoing considerations, the suggestion that
there is taking only when the landowner is deprived of the use and benefit
of his property is not incompatible with Our conclusion that taking took
place on November 21, 1989. As mentioned in Our July 5, 2011 Decision,
even from the start, the stock distribution scheme appeared to be Tadecos
preferred option in complying with the CARP when it organized HLI as its
spin-off corporation in order to facilitate stock acquisition by the FWBs. For
this purpose, Tadeco assigned and conveyed to HLI the agricultural lands of
Hacienda Luisita, set at 4,915.75 hectares, among others. These agricultural
lands constituted as the capital contribution of the FWBs in HLI. In effect,
Tadeco deprived itself of the ownership over these lands when it transferred
the same to HLI.
While it is true that Tadeco has majority control over HLI, the Court
cannot subscribe to the view Mallari, et al. espouse that, on the basis of such
majority stockholding, Tadeco was never deprived of the use and benefit of
the agricultural lands of Hacienda Luisita it divested itself in favor of HLI.
It bears stressing that [o]wnership is defined as a relation in law by
virtue of which a thing pertaining to one person is completely subjected to his
will in everything not prohibited by law or the concurrence with the rights of
another.[18] The attributes of ownership are: jus utendi or the right to
possess and enjoy, jus fruendi or the right to the fruits, jus abutendi or the
right to abuse or consume, jus disponendi or the right to dispose or alienate,
and jus vindicandi or the right to recover or vindicate.[19]
When the agricultural lands of Hacienda Luisita were transferred by
Tadeco to HLI in order to comply with CARP through the stock distribution
option scheme, sealed with the imprimatur of PARC under PARC Resolution
No. 89-12-2 dated November 21, 1989, Tadeco was consequently
dispossessed of the afore-mentioned attributes of ownership. Notably,
Tadeco and HLI are two different entities with separate and distinct legal
470
personalities. Ownership by one cannot be considered as ownership by the
other.
Reiterating what We already mentioned in Our November 22, 2011
Resolution, [e]ven if it is the government which will pay the just
compensation to HLI, this will also affect the FWBs as they will be paying
Corollarily, it is the official act by the government, that is, the
higher amortizations to the government if the taking will be considered to
PARCs approval of the SDP, which should be considered as the reckoning
have taken place only on January 2, 2006. As aptly observed by Justice
point for the taking of the agricultural lands of Hacienda Luisita. Although
Leonardo-De Castro in her Concurring Opinion, this will put the land
the transfer of ownership over the agricultural lands was made prior to the
beyond the capacity of the [FWBs] to pay, which this Court should not
SDPs approval, it is this Courts consistent view that these lands officially
countenance.
became subject of the agrarian reform coverage through the stock
distribution scheme only upon the approval of the SDP. And as We have
mentioned in Our November 22, 2011 Resolution, such approval is akin to a
Considering the above findings, it cannot be gainsaid that effective
notice of coverage ordinarily issued under compulsory acquisition.
taking took place in the case at bar upon the approval of the SDP, that is,
on November 21, 1989.

Further, if We adhere to HLIs view that the Notice of Coverage

issued on January 2, 2006 should, at the very least, be considered as the
HLI postulates that just compensation is a question of fact that
date of taking as this was the only time that the agricultural portion of the
should be left to the determination by the DAR, Land Bank of the Philippines
hacienda was placed under compulsory acquisition in view of HLIs failure
(LBP) or even the special agrarian court (SAC).[20] As a matter of fact, the
to perform certain obligations under the SDP, this Court would, in effect, be
Court, in its November 22, 2011 Resolution, dispositively ordered the DAR
penalizing the qualified FWBs twice for acceding to the adoption of the stock
and the LBP to determine the compensation due to HLI. And as indicated in
distribution scheme: first, by depriving the qualified FWBs of the agricultural
the body of said Resolution:
lands that they should have gotten early on were it not for the adoption of the
stock distribution scheme of which they only became minority stockholders;
The foregoing notwithstanding, it bears stressing
and second, by making them pay higher amortizations for the agricultural
that the DARs land valuation is only preliminary and is not,
lands that should have been given to them decades ago at a much lower by any means, final and conclusive upon the landowner. The
landowner can file an original action with the RTC acting as
cost were it not for the landowners initiative of adopting the stock
a special agrarian court to determine just compensation. The
distribution scheme for free.

471
 court has the right to review with finality the determination in
the exercise of what is admittedly a judicial function.
As regards the issue on when taking occurred with respect to the
agricultural lands in question, We, however, maintain that this Court can rule,
as it has in fact already ruled on its reckoning date, that is, November 21,
1989, the date of issuance of PARC Resolution No. 89-12-2, based on the
above-mentioned disquisitions. The investment on SACs of original and
exclusive jurisdiction over all petitions for the determination of just
compensation to landowners[21] will not preclude the Court from ruling upon a
matter that may already be resolved based on the records before Us. By
analogy, Our ruling in Heirs of Dr. Jose Deleste v. LBP is applicable:
Indeed, it is the Office of the DAR Secretary which is
vested with the primary and exclusive jurisdiction over all
matters involving the implementation of the agrarian reform
program. However, this will not prevent the Court from
assuming jurisdiction over the petition considering that
the issues raised in it may already be resolved on the
basis of the records before Us. Besides, to allow the
matter to remain with the Office of the DAR Secretary
would only cause unnecessary delay and undue
hardship on the parties. Applicable, by analogy, is Our
ruling in the recent Bagong Pagkakaisa ng Manggagawa ng
Triumph International v. Department of Labor and
Employment Secretary, where We held:
But as the CA did, we similarly recognize
that undue hardship, to the point of injustice, would
result if a remand would be ordered under a
situation where we are in the position to resolve the
case based on the records before us. As we said
in Roman Catholic Archbishop of Manila v. Court of
Appeals:
[w]e have laid down the rule that the remand
of the case to the lower court for further reception of
evidence is not necessary where the Court is in a
position to resolve the dispute based on the records
before it. On many occasions, the Court, in the
public interest and for the expeditious administration
of justice, has resolved actions on the merits instead
of remanding them to the trial court for further
proceedings, such as where the ends of justice,
would not be subserved by the remand of the
case.[22] (Emphasis supplied; citations omitted.)
Even though the compensation due to HLI will still be preliminarily
determined by DAR and LBP, subject to review by the RTC acting as a SAC,
the fact that the reckoning point of taking is already fixed at a certain date
should already hasten the proceedings and not further cause undue hardship
on the parties, especially the qualified FWBs.
By a vote of 8-6, the Court affirmed its ruling that the date
of taking in determining just compensation is November 21, 1989 when
PARC approved HLIs stock option plan.
472

As regards the issue of interest on just compensation, We also leave
this matter to the DAR and the LBP, subject to review by the RTC acting as a
SAC.
Option will not ensure
control over agricultural lands
In Our November 22, 2011 Resolution, this Court held:
After having discussed and considered the different
contentions raised by the parties in their respective motions,
We are now left to contend with one crucial issue in the case
at bar, that is, control over the agricultural lands by the
qualified FWBs.
agricultural land contributed to the corporation must
always be more than 50% of the total assets of the
corporation to ensure that the majority of the
members of the board of directors are composed of
the farmers. The PARC composed of the President
of the Philippines and cabinet secretaries must see
to it that control over the board of directors rests with
the farmers by rejecting the inclusion of non-
agricultural assets which will yield the majority in the
board of directors to non-farmers. Any deviation,
however, by PARC or DAR from the correct
application of the formula prescribed by the second
paragraph of Sec. 31 of RA 6675 does not make
said provision constitutionally infirm. Rather, it is the
application of said provision that can be challenged.
Ergo, Sec. 31 of RA 6657 does not trench on the
constitutional policy of ensuring control by the
farmers.

In line with Our finding that control over agricultural

lands must always be in the hands of the farmers, We
Upon a review of the facts and circumstances, We
reconsider our ruling that the qualified FWBs should be
realize that the FWBs will never have control over these
given an option to remain as stockholders of HLI, inasmuch
agricultural lands for as long as they remain as stockholders
as these qualified FWBs will never gain control given the
of HLI. In Our July 5, 2011 Decision, this Court made the
present proportion of shareholdings in HLI.
following observations:

A revisit of HLIs Proposal for Stock Distribution

There is, thus, nothing unconstitutional in
under CARP and the Stock Distribution Option Agreement
the formula prescribed by RA 6657. The policy on
(SDOA) upon which the proposal was based reveals that the
agrarian reform is that control over the
total assets of HLI is PhP 590,554,220, while the value of the
agricultural land must always be in the hands of
4,915.7466 hectares is PhP 196,630,000. Consequently,
the farmers. Then it falls on the shoulders of DAR
the share of the farmer-beneficiaries in the HLI capital stock
and PARC to see to it the farmers should always
is 33.296% (196,630,000 divided by 590,554.220);
own majority of the common shares entitled to elect
118,391,976.85 HLI shares represent 33.296%. Thus, even
the members of the board of directors to ensure that
if all the holders of the 118,391,976.85 HLI shares
the farmers will have a clear majority in the
unanimously vote to remain as HLI stockholders, which is
board. Before the SDP is approved, strict scrutiny of
unlikely, control will never be placed in the hands of the
the proposed SDP must always be undertaken by
farmer-beneficiaries. Control, of course, means the majority
the DAR and PARC, such that the value of the
473
 of 50% plus at least one share of the common shares and
other voting shares. Applying the formula to the HLI
stockholdings, the number of shares that will constitute the
majority is 295,112,101 shares (590,554,220 divided by 2
plus one [1] HLI share). The 118,391,976.85 shares subject
to the SDP approved by PARC substantially fall short of the
295,112,101 shares needed by the FWBs to acquire control
over HLI. Hence, control can NEVER be attained by the
FWBs. There is even no assurance that 100% of the
118,391,976.85 shares issued to the FWBs will all be voted
in favor of staying in HLI, taking into account the previous
referendum among the farmers where said shares were not
voted unanimously in favor of retaining the SDP. In light of
the foregoing consideration, the option to remain in HLI
granted to the individual FWBs will have to be recalled and
revoked.
Moreover, bearing in mind that with the revocation of
the approval of the SDP, HLI will no longer be operating
under SDP and will only be treated as an ordinary private
corporation; the FWBs who remain as stockholders of HLI
will be treated as ordinary stockholders and will no longer be
under the protective mantle of RA 6657. (Emphasis in the
original.)
HLI, however, takes exception to the above-mentioned ruling and
contends that [t]here is nothing in the Constitution nor in the agrarian laws
which require that control over the agricultural lands must always be in the
hands of the farmers.[23] Moreover, both HLI and Mallari, et al. claim that
the option given to the qualified FWBs to remain as stockholders of HLI is
neither iniquitous nor prejudicial to the FWBs.[24]
The Court agrees that the option given to the qualified FWBs
whether to remain as stockholders of HLI or opt for land distribution is neither
iniquitous nor prejudicial to the FWBs. Nonetheless, the Court is not
unmindful of the policy on agrarian reform that control over the agricultural
land must always be in the hands of the farmers. Contrary to the stance of
HLI, both the Constitution and RA 6657 intended the farmers, individually or
collectively, to have control over the agricultural lands of HLI; otherwise, all
these rhetoric about agrarian reform will be rendered for naught. Sec. 4, Art.
XIII of the 1987 Constitution provides:
Section 4. The State shall, by law, undertake an
agrarian reform program founded on the right of farmers
and regular farmworkers who are landless, to own
directly or collectively the lands they till or, in the case of
other farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits as
the Congress may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the
payment of just compensation. In determining retention
limits, the State shall respect the right of small landowners.
The State shall further provide incentives for voluntary land-
sharing. (Emphasis supplied.)
Pursuant to and as a mechanism to carry out the above-mentioned
constitutional directive, RA 6657 was enacted. In consonance with the
constitutional policy on agrarian reform, Sec. 2 of RA 6657 also states:
474
 SECTION 2. Declaration of Principles and Policies. - technology and research, and adequate financial,
It is the policy of the State to pursue a Comprehensive production, marketing and other support services.
Agrarian Reform Program (CARP). The welfare of the
landless farmers and farm workers will receive the highest
consideration to promote social justice and to move the The State shall apply the principles of agrarian
nation towards sound rural development and reform or stewardship, whenever applicable, in accordance
industrialization, and the establishment of owner with law, in the disposition or utilization of other natural
cultivatorship of economic-sized farms as the basis of resources, including lands of the public domain, under lease
Philippine agriculture. or concession, suitable to agriculture, subject to prior rights,
homestead rights of small settlers and the rights of
indigenous communities to their ancestral lands.
To this end, a more equitable distribution and
ownership of land, with due regard to the rights of
landowners to just compensation and to the ecological The State may resettle landless farmers and farm
needs of the nation, shall be undertaken to provide farmers workers in its own agricultural estates, which shall be
and farm workers with the opportunity to enhance their distributed to them in the manner provided by law.
dignity and improve the quality of their lives through greater
productivity of agricultural lands.
By means of appropriate incentives, the State shall
encourage the formation and maintenance of economic-
The agrarian reform program is founded on the sized family farms to be constituted by individual
right of farmers and regular farm workers, who are beneficiaries and small landowners.
landless, to own directly or collectively the lands they
till or, in the case of other farm workers, to receive a
share of the fruits thereof. To this end, the State shall
The State shall protect the rights of subsistence
encourage the just distribution of all agricultural lands,
fishermen, especially of local communities, to the
subject to the priorities and retention limits set forth in this
preferential use of communal marine and fishing resources,
Act, having taken into account ecological, developmental,
both inland and offshore. It shall provide support to such
and equity considerations, and subject to the payment of just
fishermen through appropriate technology and research,
compensation. The State shall respect the right of small
adequate financial, production and marketing assistance and
landowners and shall provide incentives for voluntary land-
other services, The State shall also protect, develop and
sharing.
conserve such resources. The protection shall extend to
offshore fishing grounds of subsistence fishermen against
foreign intrusion. Fishworkers shall receive a just share from
The State shall recognize the right of farmers, farm their labor in the utilization of marine and fishing resources.
workers and landowners, as well as cooperatives and other
independent farmers organization, to participate in the
planning, organization, and management of the program,
The State shall be guided by the principles that land
and shall provide support to agriculture through appropriate
has a social function and land ownership has a social

475
 responsibility. Owners of agricultural land have the obligation
to cultivate directly or through labor administration the lands
they own and thereby make the land productive.
The State shall provide incentives to landowners to
invest the proceeds of the agrarian reform program to
promote industrialization, employment and privatization of
public sector enterprises. Financial instruments used as
payment for lands shall contain features that shall enhance
negotiability and acceptability in the marketplace.
The State may lease undeveloped lands of the
public domain to qualified entities for the development of
capital-intensive farms, traditional and pioneering crops
especially those for exports subject to the prior rights of the
beneficiaries under this Act. (Emphasis supplied.)
Based on the above-quoted provisions, the notion of farmers and
regular farmworkers having the right to own directly or collectively the lands
they till is abundantly clear. We have extensively discussed this ideal in Our
July 5, 2011 Decision:
The wording of the provision is unequivocal the
farmers and regular farmworkers have a right TO OWN
DIRECTLY OR COLLECTIVELY THE LANDS THEY
TILL. The basic law allows two (2) modes of land
distributiondirect and indirect ownership. Direct transfer to
individual farmers is the most commonly used method by
DAR and widely accepted. Indirect transfer through
collective ownership of the agricultural land is the alternative
to direct ownership of agricultural land by individual
farmers. The aforequoted Sec. 4 EXPRESSLY authorizes
collective ownership by farmers. No language can be found
in the 1987 Constitution that disqualifies or prohibits
corporations or cooperatives of farmers from being the legal
entity through which collective ownership can be
exercised. The word collective is defined as indicating
a number of persons or things considered as constituting
one group or aggregate, while collectively is defined as
in a collective sense or manner; in a mass or body. By
using the word collectively, the Constitution allows for
indirect ownership of land and not just outright agricultural
land transfer. This is in recognition of the fact that land
reform may become successful even if it is done through the
medium of juridical entities composed of farmers.
Collective ownership is permitted in two (2)
provisions of RA 6657. Its Sec. 29 allows workers
cooperatives or associations to collectively own the land,
while the second paragraph of Sec. 31 allows corporations
or associations to own agricultural land with the farmers
becoming stockholders or members. Said provisions read:
SEC. 29. Farms owned or operated by
corporations or other business associations.In the
case of farms owned or operated by corporations or
other business associations, the following rules shall
be observed by the PARC.
In general, lands shall be distributed directly
to the individual worker-beneficiaries.
In case it is not economically feasible and
sound to divide the land, then it shall be owned
collectively by the worker beneficiaries who shall
form a workers cooperative or
association which will deal with the corporation or
business association. x x x
476
 MR. NOLLEDO. And when we talk of the phrase to
own directly, we mean the principle of direct
SEC. 31. Corporate Landowners. x x x ownership by the tiller?

xxxx MR. MONSOD. Yes.

Upon certification by the MR. NOLLEDO. And when we talk of

DAR, corporations owning agricultural lands may collectively, we mean communal ownership,
give their qualified beneficiaries the right to purchase stewardship or State ownership?
such proportion of the capital stock of
the corporation that the agricultural land, actually
devoted to agricultural activities, bears in relation to
the companys total assets, under such terms and MS. NIEVA. In this section, we conceive of
conditions as may be agreed upon by them. In no cooperatives; that is farmers cooperatives
case shall the compensation received by the owning the land, not the State.
workers at the time the shares of stocks are MR. NOLLEDO. And when we talk of
distributed be reduced. The same principle shall be collectively, referring to farmers cooperatives,
applied to associations, with respect to their equity do the farmers own specific areas of land where
or participation. x x x they only unite in their efforts?

Clearly, workers cooperatives or associations MS. NIEVA. That is one way.

under Sec. 29 of RA 6657 and corporations or associations
under the succeeding Sec. 31, as differentiated from
individual farmers, are authorized vehicles for the collective
MR. NOLLEDO. Because I understand that there
ownership of agricultural land. Cooperatives can be
are two basic systems involved: the moshave
registered with the Cooperative Development Authority and
type of agriculture and the kibbutz. So are both
acquire legal personality of their own, while corporations are
contemplated in the report?
juridical persons under the Corporation Code. Thus, Sec. 31
is constitutional as it simply implements Sec. 4 of Art. XIII of
the Constitution that land can be owned COLLECTIVELY by
farmers. Even the framers of the l987 Constitution are in MR. TADEO. Ang dalawa kasing pamamaraan ng
unison with respect to the two (2) modes of ownership of pagpapatupad ng tunay na reporma sa lupa ay
agricultural lands tilled by farmersDIRECT and ang pagmamay-ari ng lupa na hahatiin sa
COLLECTIVE, thus: individual na pagmamay-ari directly at ang
tinatawag na sama-samang gagawin ng mga
magbubukid. Tulad sa Negros, ang gusto ng mga
magbubukid ay gawin nila itong cooperative or

477
 collective farm. Ang ibig sabihin ay sama-
sama nilang sasakahin.
xxxx
MR. TINGSON. x x x When we speak here of to
own directly or collectively the lands they till, is this
land for the tillers rather than land for the
landless? Before, we used to hear land for the
landless, but now the slogan is land for the
tillers. Is that right?
MR. TADEO. Ang prinsipyong umiiral dito ay iyong
land for the tillers. Ang ibig sabihin ng directly
ay tulad sa implementasyon sa rice and corn
lands kung saan inaari na ng mga magsasaka
ang lupang binubungkal nila. Ang ibig sabihin
naman ng collectively ay sama-samang
paggawa sa isang lupain o isang bukid, katulad
ng sitwasyon sa Negros.
As Commissioner Tadeo explained, the farmers will
work on the agricultural land sama-sama or
collectively. Thus, the main requisite for collective
ownership of land is collective or group work by farmers of
the agricultural land. Irrespective of whether the landowner
is a cooperative, association or corporation composed of
farmers, as long as concerted group work by the farmers on
the land is present, then it falls within the ambit of collective
ownership scheme. (Emphasis in the original; underscoring
supplied.)
As aforequoted, there is collective ownership as long as there is a
concerted group work by the farmers on the land, regardless of whether the
landowner is a cooperative, association or corporation composed of farmers.
However, this definition of collective ownership should be read in light of the
clear policy of the law on agrarian reform, which is to emancipate the tiller
from the bondage of the soil and empower the common people. Worth noting
too is its noble goal of rectifying the acute imbalance in the distribution of
this precious resource among our people.[25] Accordingly, HLIs insistent
view that control need not be in the hands of the farmers translates to
allowing it to run roughshod against the very reason for the enactment of
agrarian reform laws and leave the farmers in their shackles with sheer lip
service to look forward to.
Notably, it has been this Courts consistent stand that control over
the agricultural land must always be in the hands of the farmers. As We
wrote in Our July 5, 2011 Decision:
There is, thus, nothing unconstitutional in the
formula prescribed by RA 6657. The policy on agrarian
reform is that control over the agricultural land must
always be in the hands of the farmers. Then it falls on the
shoulders of DAR and PARC to see to it the farmers should
always own majority of the common shares entitled to elect
the members of the board of directors to ensure that the
farmers will have a clear majority in the board. Before the
SDP is approved, strict scrutiny of the proposed SDP must
always be undertaken by the DAR and PARC, such that the
value of the agricultural land contributed to the corporation
must always be more than 50% of the total assets of the
corporation to ensure that the majority of the members of the
board of directors are composed of the farmers. The PARC
478
 composed of the President of the Philippines and
cabinet secretaries must see to it that control over the
board of directors rests with the farmers by rejecting the
inclusion of non-agricultural assets which will yield the
majority in the board of directors to non-farmers. Any
deviation, however, by PARC or DAR from the correct
application of the formula prescribed by the second
paragraph of Sec. 31 of RA 6675 does not make said
provision constitutionally infirm. Rather, it is the
application of said provision that can be
challenged. Ergo, Sec. 31 of RA 6657 does not trench on
the constitutional policy of ensuring control by the farmers.
(Emphasis supplied.)
There is an aphorism that what has been done can no longer be
undone. That may be true, but not in this case. The SDP was approved by
PARC even if the qualified FWBs did not and will not have majority
stockholdings in HLI, contrary to the obvious policy by the government on
agrarian reform. Such an adverse situation for the FWBs will not and should
not be permitted to stand. For this reason, We maintain Our ruling that the
qualified FWBs will no longer have the option to remain as stockholders of
HLI.
FWBs Entitled
to Proceeds of Sale
HLI reiterates its claim over the proceeds of the sales of the 500
hectares and 80.51 hectares of the land as corporate owner and argues that
the return of said proceeds to the FWBs is unfair and violative of the
Corporation Code.
This claim is bereft of merit.
It cannot be denied that the adverted 500-hectare converted land
and the SCTEX lot once formed part of what would have been agrarian-
distributable lands, in fine subject to compulsory CARP coverage. And, as
stated in our July 5, 2011 Decision, were it not for the approval of the SDP by
PARC, these large parcels of land would have been distributed and
ownership transferred to the FWBs, subject to payment of just compensation,
given that, as of 1989, the subject 4,915 hectares of Hacienda Luisita were
already covered by CARP. Accordingly, the proceeds realized from the sale
and/or disposition thereof should accrue for the benefit of the FWBs, less
deductions of the 3% of the proceeds of said transfers that were paid to the
FWBs, the taxes and expenses relating to the transfer of titles to the
transferees, and the expenditures incurred by HLI and Centennary Holdings,
Inc. for legitimate corporate purposes, as prescribed in our November 22,
2011 Resolution.
Homelots
In the present recourse, HLI also harps on the fact that since the
homelots given to the FWBs do not form part of the 4,915.75 hectares
479

covered by the SDP, then the value of these homelots should, with the
revocation of the SDP, be paid to Tadeco as the landowner.[26]
We disagree. As We have explained in Our July 5, 2011 Decision,
the distribution of homelots is required under RA 6657 only for corporations
or business associations owning or operating farms which opted for land
distribution. This is provided under Sec. 30 of RA 6657. Particularly:
SEC. 30. Homelots and Farmlots for Members of
Cooperatives. The individual members of the cooperatives
or corporations mentioned in the preceding section shall be
provided with homelots and small farmlots for their family
use, to be taken from the land owned by the cooperative or
corporation. (Italics supplied.)
The preceding section referred to in the above-quoted provision
is Sec. 29 of RA 6657, which states:
SEC. 29. Farms Owned or Operated by
Corporations or Other Business Associations. In the case of
farms owned or operated by corporations or other business
associations, the following rules shall be observed by the
PARC.
In general, lands shall be distributed directly to the
individual worker-beneficiaries.
In case it is not economically feasible and sound to
divide the land, then it shall be owned collectively by the
worker-beneficiaries who shall form a workers cooperative
or association which will deal with the corporation or
business association. Until a new agreement is entered into
by and between the workers cooperative or association
and the corporation or business association, any agreement
existing at the time this Act takes effect between the former
and the previous landowner shall be respected by both the
workers cooperative or association and the corporation or
business association.
Since none of the above-quoted provisions made reference to
corporations which opted for stock distribution under Sec. 31 of RA 6657,
then it is apparent that said corporations are not obliged to provide for
homelots. Nonetheless, HLI undertook to subdivide and allocate for
free and without charge among the qualified family-beneficiaries x x x
residential or homelots of not more than 240 sq. m. each, with each family
beneficiary being assured of receiving and owning a homelot in the barrio or
barangay where it actually resides. In fact, HLI was able to distribute
homelots to some if not all of the FWBs. Thus, in our November 22,
2011 Resolution, We declared that the homelots already received by the
FWBs shall be respected with no obligation to refund or to return them.
The Court, by a unanimous vote, resolved to maintain its ruling that
the FWBs shall retain ownership of the homelots given to them with no
obligation to pay for the value of said lots. However, since the SDP was
already revoked with finality, the Court directs the government through the
DAR to pay HLI the just compensation for said homelots in consonance with
Sec. 4, Article XIII of the 1987 Constitution that the taking of land for use in
the agrarian reform program is subject to the payment of just
compensation. Just compensation should be paid to HLI instead of Tadeco
in view of the Deed of Assignment and Conveyance dated March 22, 1989
480
executed between Tadeco and HLI, where Tadeco transferred and conveyed
to HLI the titles over the lots in question. DAR is ordered to compute the just
compensation of the homelots in accordance with existing laws, rules and
regulations.
To recapitulate, the Court voted on the following issues in this
manner:
1. In determining the date of taking, the Court voted 8-6
to maintain the ruling fixing November 21, 1989 as the date
of taking, the value of the affected lands to be
determined by the LBP and the DAR;
2. On the propriety of the revocation of the option of the
FWBs to remain as HLI stockholders, the Court, by
unanimous vote, agreed to reiterate its ruling in its
November 22, 2011 Resolution that the option granted to the
FWBs stays revoked;
taxes and expenses specified in the falloof the November
22, 2011 Resolution;
4. On the payment of just compensation for the homelots
to HLI, the Court, by unanimous vote, resolved to amend its
July 5, 2011 Decision and November 22, 2011 Resolution by
ordering the government, through the DAR, to pay to HLI the
just compensation for the homelots thus distributed to the
FWBS.
WHEREFORE, the Motion to Clarify and Reconsider Resolution of
November 22, 2011 dated December 16, 2011 filed by petitioner Hacienda
Luisita, Inc. and the Motion for Reconsideration/Clarification dated December
9, 2011 filed by private respondents Noel Mallari, Julio Suniga, Supervisory
Group of Hacienda Luisita, Inc. and Windsor Andaya are
hereby DENIED with this qualification: the July 5, 2011 Decision, as modified
by the November 22, 2011 Resolution, is FURTHER MODIFIED in that the
government, through DAR, is ordered to pay Hacienda Luisita, Inc. the just
compensation for the 240-square meter homelots distributed to the FWBs.

3. On the propriety of returning to the FWBs the proceeds The July 5, 2011 Decision, as modified by the November 22, 2011
of the sale of the 500-hectare converted land and of the Resolution and further modified by this Resolution is
80.51-hectare SCTEX land, the Court unanimously voted to declared FINAL and EXECUTORY. The entry of judgment of said decision
maintain its ruling to order the payment of the proceeds of shall be made upon the time of the promulgation of this Resolution.
the sale of the said land to the FWBs less the 3% share,

481
 No further pleadings shall be entertained in this case.
The antecedent facts and proceedings are as follows:

SO ORDERED. Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of

MACTAN-CEBU INTERNATIONAL AIRPORT G.R. No. 176625 1,017 square meters, more or less, located in Lahug, Cebu City. Its original
AUTHORITY and AIR TRANSPORTATION OFFICE, owner was Anastacio Deiparine when the same was subject to expropriation
Petitioners, Present:
proceedings, initiated by the Republic of the Philippines (Republic),
PUNO, C.J.,
represented by the then Civil Aeronautics Administration (CAA), for the
CARPIO,
CORONA, expansion and improvement of the Lahug Airport. The case was filed with the
- versus - CARPIO MORALES,VELASCO, JR.,
then Court of First Instance of Cebu, Third Branch, and docketed as Civil
NACHURA, LEONARDO-DE
CASTRO, Case No. R-1881.
BRION,
PERALTA,*
BERNARDO L. LOZADA, SR., and the BERSAMIN, As early as 1947, the lots were already occupied by the U.S. Army. They
HEIRS OF ROSARIO MERCADO, namely, VICENTE DEL CASTILLO,
LOZADA, MARIO M. LOZADA, MARCIA L. GODINEZ, ABAD, were turned over to the Surplus Property Commission, the Bureau of
VIRGINIA L. FLORES, BERNARDO LOZADA, JR., VILLARAMA, JR., Aeronautics, the National Airport Corporation and then to the CAA.
DOLORES GACASAN, SOCORRO CAFARO and PEREZ, and
ROSARIO LOZADA, represented by MARCIA LOZADA MENDOZA, JJ.
GODINEZ,
During the pendency of the expropriation proceedings, respondent Bernardo
Respondents. Promulgated:
L. Lozada, Sr. acquired Lot No. 88 from Deiparine. Consequently, Transfer
February 25, 2010
Certificate of Title (TCT) No. 9045 was issued in Lozadas name.
x------------------------------------------------------------------------------------x

On December 29, 1961, the trial court rendered judgment in favor of the
DECISION Republic and ordered the latter to pay Lozada the fair market value of Lot
NACHURA, J.: No. 88, adjudged at P3.00 per square meter, with consequential damages by
way of legal interest computed from November 16, 1947the time when the lot
This is a petition for review on certiorari under Rule 45 of the Rules of Court,
was first occupied by the airport. Lozada received the amount of P3,018.00
seeking to reverse, annul, and set aside the Decision [1] dated February 28,
by way of payment.
2006 and the Resolution[2] dated February 7, 2007 of the Court of Appeals
(CA) (Cebu City), Twentieth Division, in CA-G.R. CV No. 65796.

482
The affected landowners appealed. Pending appeal, the Air Transportation
Office (ATO), formerly CAA, proposed a compromise settlement whereby the
owners of the lots affected by the expropriation proceedings would either not
appeal or withdraw their respective appeals in consideration of a commitment
that the expropriated lots would be resold at the price they were expropriated
in the event that the ATO would abandon the Lahug Airport, pursuant to an
established policy involving similar cases. Because of this promise, Lozada
did not pursue his appeal. Thereafter, Lot No. 88 was transferred and
registered in the name of the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug Airport,
however, was not pursued.
Lozada, with the other landowners, contacted then CAA Director Vicente
Rivera, Jr., requesting to repurchase the lots, as per previous
agreement. The CAA replied that there might still be a need for
the Lahug Airport to be used as an emergency DC-3 airport. It reiterated,
however, the assurance that should this Office dispose and resell the
properties which may be found to be no longer necessary as an airport, then
the policy of this Office is to give priority to the former owners subject to the
approval of the President.
On November 29, 1989, then President Corazon C. Aquino issued a
Memorandum to the Department of Transportation, directing the transfer of
general aviation operations of the Lahug Airport to
the Mactan International Airport before the end of 1990 and, upon such
transfer, the closure of the Lahug Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act
(R.A.) No. 6958, entitled An Act Creating the Mactan-Cebu International
Airport Authority, Transferring Existing Assets of the Mactan International
Airport and the Lahug Airport to the Authority, Vesting the Authority with
Power to Administer and Operate the Mactan International Airport and the
Lahug Airport, and For Other Purposes.
From the date of the institution of the expropriation proceedings up to the
present, the public purpose of the said expropriation (expansion of the
airport) was never actually initiated, realized, or implemented. Instead, the
old airport was converted into a commercial complex. Lot No. 88 became the
site of a jail known as Bagong Buhay Rehabilitation Complex, while a portion
thereof was occupied by squatters.[3] The old airport was converted into what
is now known as the Ayala I.T. Park, a commercial area.
Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of
possession and reconveyance of ownership of Lot No. 88. The case was
docketed as Civil Case No. CEB-18823 and was raffled to the Regional Trial
Court (RTC), Branch 57, Cebu City. The complaint substantially alleged as
follows:
(a) Spouses Bernardo and Rosario Lozada were the
registered owners of Lot No. 88 covered by TCT No.
9045;
(b) In the early 1960s, the Republic sought to acquire by
expropriation Lot No. 88, among others, in connection
with its program for the improvement and expansion of
the Lahug Airport;
(c) A decision was rendered by the Court of First Instance in
favor of the Government and against the land owners,
483
 among whom was Bernardo Lozada, Sr. appealed
therefrom;
(d) During the pendency of the appeal, the parties entered
into a compromise settlement to the effect that the
subject property would be resold to the original owner
at the same price when it was expropriated in the
event that the Government abandons
the Lahug Airport;
(e) Title to Lot No. 88 was subsequently transferred to the
Republic of the Philippines (TCT No. 25057);
(f) The projected expansion and improvement
the Lahug Airport did not materialize;
(g) Plaintiffs sought to repurchase their property from then
CAA Director Vicente Rivera. The latter replied by
giving as assurance that priority would be given to the
previous owners, subject to the approval of the
President, should CAA decide to dispose of the
properties;
(h) On November 29, 1989, then President Corazon C.
Aquino, through a Memorandum to the Department of
Transportation and Communications (DOTC), directed
the transfer of general aviation operations at
the Lahug Airport to the Mactan-Cebu International
Airport Authority;
(i) Since the public purpose for the expropriation no longer
exists, the property must be returned to the plaintiffs.[4]
In their Answer, petitioners asked for the immediate dismissal of the
complaint. They specifically denied that the Government had made
assurances to reconvey Lot No. 88 to respondents in the event that the
property would no longer be needed for airport operations. Petitioners
instead asserted that the judgment of condemnation was unconditional, and
respondents were, therefore, not entitled to recover the expropriated property
notwithstanding non-use or abandonment thereof.
After pretrial, but before trial on the merits, the parties stipulated on the
following set of facts:
(1) The lot involved is Lot No. 88-SWO-25042 of the Banilad
Estate, situated in the City of Cebu, containing an area
of One Thousand Seventeen (1,017) square meters,
more or less;
of
(2) The property was expropriated among several other
properties in Lahug in favor of the Republic of
the Philippines by virtue of a Decision dated December
29, 1961 of the CFI of Cebu in Civil Case No. R-1881;
(3) The public purpose for which the property was
expropriated was for the purpose of the Lahug Airport;
(4) After the expansion, the property was transferred in the
name of MCIAA; [and]
(5) On November 29, 1989, then President Corazon C.
Aquino directed the Department of Transportation and
Communication to transfer general aviation operations
of the Lahug Airport to the Mactan-Cebu International
Airport Authority and to close the Lahug Airport after
such transfer[.][5]
During trial, respondents presented Bernardo Lozada, Sr. as their lone
witness, while petitioners presented their own witness, Mactan-Cebu
International Airport Authority legal assistant Michael Bacarisas.
On October 22, 1999, the RTC rendered its Decision, disposing as follows:
484
 WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment in favor of the plaintiffs, Bernardo L.
Lozada, Sr., and the heirs of Rosario Mercado, namely,
Vicente M. Lozada, Marcia L. Godinez, Virginia L. Flores,
Bernardo M. Lozada, Jr., Dolores L. Gacasan, Socorro L.
Cafaro and Rosario M. Lozada, represented by their
attorney-in-fact Marcia Lozada Godinez, and against
defendants Cebu-Mactan International Airport Authority
(MCIAA) and Air Transportation Office (ATO):
1. ordering MCIAA and ATO to restore to plaintiffs
the possession and ownership of their land, Lot No. 88 Psd-
821 (SWO-23803), upon payment of the expropriation price
to plaintiffs; and
2. ordering the Register of Deeds to effect the transfer
of the Certificate of Title from defendant[s] to plaintiffs on Lot
No. [88], cancelling TCT No. 20357 in the name of defendant
MCIAA and to issue a new title on the same lot in the name
of Bernardo L. Lozada, Sr. and the heirs of Rosario
Mercado, namely: Vicente M. Lozada, Mario M. Lozada,
Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada,
Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M.
Lozada.
No pronouncement as to costs.
SO ORDERED.[6]
Aggrieved, petitioners interposed an appeal to the CA. After the filing of the
necessary appellate briefs, the CA rendered its assailed Decision dated
February 28, 2006, denying petitioners appeal and affirming in toto the
Decision of the RTC, Branch 57, Cebu City. Petitioners motion
reconsideration was, likewise, denied in the questioned CA Resolution dated
February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed to prove
that there was a repurchase agreement or compromise settlement between
them and the Government; (2) the judgment in Civil Case No. R-1881 was
absolute and unconditional, giving title in fee simple to the Republic; and (3)
the respondents claim of verbal assurances from government officials
violates the Statute of Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the supposition
that the Decision in the pertinent expropriation proceedings did not provide
for the condition that should the intended use of Lot No. 88 for the expansion
of the Lahug Airport be aborted or abandoned, the property would revert to
respondents, being its former owners.Petitioners cite, in support of this
position, Fery v. Municipality of Cabanatuan,[7] which declared that the
Government acquires only such rights in expropriated parcels of land as may
be allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the
condition that when that purpose is ended or abandoned the
property shall return to its former owner, then, of course,
when the purpose is terminated or abandoned the former
owner reacquires the property so expropriated. If x x x land
is expropriated for a public street and the expropriation is
granted upon condition that the city can only use it for a
public street, then, of course, when the city abandons its use
as a public street, it returns to the former owner, unless there
is some statutory provision to the contrary. x x x. If, upon the
for contrary, however, the decree of expropriation gives to the
entity a fee simple title, then, of course, the land becomes
the absolute property of the expropriator, whether it be the
State, a province, or municipality, and in that case the non-
user does not have the effect of defeating the title acquired
by the expropriation proceedings. x x x.
When land has been acquired for public use in fee
simple, unconditionally, either by the exercise of eminent
485
 domain or by purchase, the former owner retains no right in
the land, and the public use may be abandoned, or the land
may be devoted to a different use, without any impairment of
the estate or title acquired, or any reversion to the former
owner. x x x.[8]
Contrary to the stance of petitioners, this Court had ruled otherwise
in Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International
Airport Authority,[9] thus
Moreover, respondent MCIAA has brought to our attention a
significant and telling portion in the Decision in Civil Case
No. R-1881 validating our discernment that the expropriation
by the predecessors of respondent was ordered under the
running impression that Lahug Airport would continue in
operation
As for the public purpose of the
expropriation proceeding, it cannot now be
doubted. Although Mactan Airport is being
constructed, it does not take away the actual
usefulness and importance of
the Lahug Airport: it is handling the air traffic
both civilian and military. From it aircrafts fly
to Mindanao and Visayas and pass thru it on
their flights to the North and Manila. Then,
no evidence was adduced to show how
soon is the Mactan Airport to be placed in
operation and whether the Lahug Airport will
be closed immediately thereafter. It is up to
the other departments of the Government to
determine said matters. The Court cannot
substitute its judgment for those of the said
departments or agencies.In the absence of
such showing, the Court will presume that
the Lahug Airport will continue to be in
operation (emphasis supplied).
While in the trial in Civil Case No. R-1881 [we] could have
simply acknowledged the presence of public purpose for the
exercise of eminent domain regardless of the survival
of Lahug Airport, the trial court in its Decision chose not to
do so but instead prefixed its finding of public purpose upon
its understanding that Lahug Airport will continue to be in
operation. Verily, these meaningful statements in the body of
the Decision warrant the conclusion that the expropriated
properties would remain to be so until it was confirmed
that Lahug Airport was no longer in operation. This inference
further implies two (2) things: (a) after
the Lahug Airport ceased its undertaking as such and the
expropriated lots were not being used for any airport
expansion project, the rights vis--vis the expropriated Lots
Nos. 916 and 920 as between the State and their former
owners, petitioners herein, must be equitably adjusted; and
(b) the foregoing unmistakable declarations in the body of
the Decision should merge with and become an intrinsic part
of the fallo thereof which under the premises is clearly
inadequate since the dispositive portion is not in accord with
the findings as contained in the body thereof.[10]
Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety,
wherein it is apparent that the acquisition by the Republic of the expropriated
lots was subject to the condition that the Lahug Airport would continue its
operation. The condition not having materialized because the airport had
been abandoned, the former owner should then be allowed to reacquire the
expropriated property.[11]
On this note, we take this opportunity to revisit our ruling in Fery, which
involved an expropriation suit commenced upon parcels of land to be used
as a site for a public market.Instead of putting up a public market,
respondent Cabanatuan constructed residential houses for lease on the
area. Claiming that the municipality lost its right to the property taken since it
did not pursue its public purpose, petitioner Juan Fery, the former owner of
the lots expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to
486
the lands in question, judgment was rendered in favor of the municipality,
following American jurisprudence, particularly City of Fort Wayne v. Lake
Shore & M.S. RY. Co.,[12] McConihay v. Theodore Wright,[13] and Reichling v.
Covington Lumber Co.,[14] all uniformly holding that the transfer to a third
party of the expropriated real property, which necessarily resulted in the
abandonment of the particular public purpose for which the property was
taken, is not a ground for the recovery of the same by its previous owner, the
title of the expropriating agency being one of fee simple.
Obviously, Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for public use
without just compensation.[15] It is well settled that the taking of private
property by the Governments power of eminent domain is subject to two
mandatory requirements: (1) that it is for a particular public purpose; and (2)
that just compensation be paid to the property owner. These requirements
partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.[16]
More particularly, with respect to the element of public use, the expropriator
should commit to use the property pursuant to the purpose stated in the
petition for expropriation filed, failing which, it should file another petition for
the new purpose. If not, it is then incumbent upon the expropriator to return
the said property to its private owner, if the latter desires to reacquire the
same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it
would lack one indispensable element for the proper exercise of the power of
eminent domain, namely, the particular public purpose for which the property
will be devoted. Accordingly, the private property owner would be denied due
process of law, and the judgment would violate the property owners right to
justice, fairness, and equity.
In light of these premises, we now expressly hold that the taking of private
property, consequent to the Governments exercise of its power of eminent
domain, is always subject to the condition that the property be devoted to the
specific public purpose for which it was taken. Corollarily, if this particular
purpose or intent is not initiated or not at all pursued, and is peremptorily
abandoned, then the former owners, if they so desire, may seek the
reversion of the property, subject to the return of the amount of just
compensation received. In such a case, the exercise of the power of eminent
domain has become improper for lack of the required factual justification.[17]
Even without the foregoing declaration, in the instant case, on the question of
whether respondents were able to establish the existence of an oral
compromise agreement that entitled them to repurchase Lot No. 88 should
the operations of the Lahug Airport be abandoned, we rule in the affirmative.
It bears stressing that both the RTC, Branch 57, Cebu and the CA have
passed upon this factual issue and have declared, in no uncertain terms, that
a compromise agreement was, in fact, entered into between the Government
and respondents, with the former undertaking to resell Lot No. 88 to the latter
if the improvement and expansion of the Lahug Airport would not be
pursued. In affirming the factual finding of the RTC to this effect, the CA
declared
Lozadas testimony is cogent. An octogenarian widower-
retiree and a resident of Moon Park, California since 1974,
he testified that government representatives verbally
487
 promised him and his late wife while the expropriation
proceedings were on-going that the government shall return examination destroyed neither his credibility as a witness nor the truthfulness
the property if the purpose for the expropriation no longer of his words.
exists. This promise was made at the premises of the
airport. As far as he could remember, there were no
expropriation proceedings against his property in 1952 Verily, factual findings of the trial court, especially when affirmed by
because the first notice of expropriation he received was in
1962.Based on the promise, he did not hire a lawyer. Lozada the CA, are binding and conclusive on this Court and may not be reviewed. A
was firm that he was promised that the lot would be reverted petition for certiorariunder Rule 45 of the Rules of Court contemplates only
to him once the public use of the lot ceases. He made it
clear that the verbal promise was made in Lahug with other questions of law and not of fact.[21] Not one of the exceptions to this rule is
lot owners before the 1961 decision was handed down,
present in this case to warrant a reversal of such findings.
though he could not name the government representatives
who made the promise. It was just a verbal promise;
nevertheless, it is binding. The fact that he could not supply
the necessary details for the establishment of his assertions As regards the position of petitioners that respondents testimonial evidence
during cross-examination, but that When it will not be used violates the Statute of Frauds, suffice it to state that the Statute of Frauds
as intended, it will be returned back, we just believed in the
government, does not dismantle the credibility and operates only with respect to executory contracts, and does not apply to
truthfulness of his allegation. This Court notes that he was contracts which have been completely or partially performed, the rationale
89 years old when he testified in November 1997 for an
incident which happened decades ago. Still, he is a thereof being as follows:
competent witness capable of perceiving and making his
perception known. The minor lapses are immaterial. The
In executory contracts there is a wide field for fraud because
decision of the competency of a witness rests primarily with
unless they be in writing there is no palpable evidence of the
the trial judge and must not be disturbed on appeal unless it
intention of the contracting parties. The statute has precisely
is clear that it was erroneous. The objection to his
been enacted to prevent fraud. However, if a contract has
competency must be made before he has given any
been totally or partially performed, the exclusion of parol
testimony or as soon as the incompetency becomes
evidence would promote fraud or bad faith, for it would
apparent. Though Lozada is not part of the compromise
enable the defendant to keep the benefits already delivered
agreement,[18] he nevertheless adduced sufficient evidence
by him from the transaction in litigation, and, at the same
to support his claim.[19]
time, evade the obligations, responsibilities or liabilities
assumed or contracted by him thereby.[22]

As correctly found by the CA, unlike in Mactan Cebu International Airport

Authority v. Court of Appeals,[20] cited by petitioners, where respondent
therein offered testimonies which were hearsay in nature, the testimony of
Lozada was based on personal knowledge as the assurance from the
government was personally made to him. His testimony on cross-
In this case, the Statute of Frauds, invoked by petitioners to bar the claim of
respondents for the reacquisition of Lot No. 88, cannot apply, the oral
compromise settlement having been partially performed. By reason of such
assurance made in their favor, respondents relied on the same by not
pursuing their appeal before the CA. Moreover, contrary to the claim of

488

petitioners, the fact of Lozadas eventual conformity to the appraisal of Lot
No. 88 and his seeking the correction of a clerical error in the judgment as to
the true area of Lot No. 88 do not conclusively establish that respondents
absolutely parted with their property. To our mind, these acts were simply
meant to cooperate with the government, particularly because of the oral
promise made to them.
The right of respondents to repurchase Lot No. 88 may be enforced based
on a constructive trust constituted on the property held by the government in
favor of the former. On this note, our ruling in Heirs of Timoteo Moreno is
instructive, viz.:
Mactan-Cebu International Airport Authority is correct in
stating that one would not find an express statement in the
Decision in Civil Case No. R-1881 to the effect that the
[condemned] lot would return to [the landowner] or that [the
landowner] had a right to repurchase the same if the
purpose for which it was expropriated is ended or
abandoned or if the property was to be used other than as
the Lahug Airport. This omission notwithstanding, and while
the inclusion of this pronouncement in the judgment of
condemnation would have been ideal, such precision is not
absolutely necessary nor is it fatal to the cause of petitioners
herein. No doubt, the return or repurchase of the condemned
properties of petitioners could be readily justified as the
manifest legal effect or consequence of the trial courts
underlying presumption that Lahug Airport will continue to be
in operation when it granted the complaint for eminent
domain and the airport discontinued its activities.
The predicament of petitioners involves a constructive trust,
one that is akin to the implied trust referred to in Art. 1454 of
the Civil Code, If an absolute conveyance of property is
made in order to secure the performance of an obligation of
the grantor toward the grantee, a trust by virtue of law is
established. If the fulfillment of the obligation is offered by
the grantor when it becomes due, he may demand the
reconveyance of the property to him. In the case at bar,
petitioners conveyed Lots No. 916 and 920 to the
government with the latter obliging itself to use the realties
for the expansion of Lahug Airport; failing to keep its bargain,
the government can be compelled by petitioners to reconvey
the parcels of land to them, otherwise, petitioners would be
denied the use of their properties upon a state of affairs that
was not conceived nor contemplated when the expropriation
was authorized.
Although the symmetry between the instant case and the
situation contemplated by Art. 1454 is not perfect, the
provision is undoubtedly applicable. For, as explained by an
expert on the law of trusts: The only problem of great
importance in the field of constructive trust is to decide
whether in the numerous and varying fact situations
presented to the courts there is a wrongful holding of
property and hence a threatened unjust enrichment of the
defendant. Constructive trusts are fictions of equity which
are bound by no unyielding formula when they are used by
courts as devices to remedy any situation in which the holder
of legal title may not in good conscience retain the beneficial
interest.
In constructive trusts, the arrangement is temporary and
passive in which the trustees sole duty is to transfer the title
and possession over the property to the plaintiff-
beneficiary. Of course, the wronged party seeking the aid of
a court of equity in establishing a constructive trust must
himself do equity. Accordingly, the court will exercise its
discretion in deciding what acts are required of the plaintiff-
beneficiary as conditions precedent to obtaining such decree
and has the obligation to reimburse the trustee the
consideration received from the latter just as the plaintiff-
beneficiary would if he proceeded on the theory of
rescission. In the good judgment of the court, the trustee
may also be paid the necessary expenses he may have
incurred in sustaining the property, his fixed costs for
improvements thereon, and the monetary value of his
services in managing the property to the extent that plaintiff-
beneficiary will secure a benefit from his acts.
The rights and obligations between the constructive trustee
and the beneficiary, in this case, respondent MCIAA and
489
 petitioners over Lots Nos. 916 and 920, are echoed in Art.
1190 of the Civil Code, When the conditions have for their
purpose the extinguishment of an obligation to give, the
parties, upon the fulfillment of said conditions, shall return to
each other what they have received x x x In case of the loss,
deterioration or improvement of the thing, the provisions
which, with respect to the debtor, are laid down in the
preceding article shall be applied to the party who is bound
to return x x x.[23]
On the matter of the repurchase price, while petitioners are obliged to
reconvey Lot No. 88 to respondents, the latter must return to the former what
they received as just compensation for the expropriation of the property, plus
legal interest to be computed from default, which in this case runs from the
time petitioners comply with their obligation to respondents.
Respondents must likewise pay petitioners the necessary expenses they
may have incurred in maintaining Lot No. 88, as well as the monetary value
of their services in managing it to the extent that respondents were benefited
thereby.
Following Article 1187[24] of the Civil Code, petitioners may keep whatever
income or fruits they may have obtained from Lot No. 88, and respondents
need not account for the interests that the amounts they received as just
compensation may have earned in the meantime.
In accordance with Article 1190[25] of the Civil Code vis--vis Article 1189,
which provides that (i)f a thing is improved by its nature, or by time, the
improvement shall inure to the benefit of the creditor x x x, respondents, as
creditors, do not have to pay, as part of the process of restitution, the
appreciation in value of Lot No. 88, which is a natural consequence of nature
and time.[26]
WHEREFORE, the petition is DENIED. The February 28, 2006 Decision of
the Court of Appeals, affirming the October 22, 1999 Decision of the
Regional Trial Court, Branch 87, Cebu City, and its February 7, 2007
Resolution are AFFIRMED with MODIFICATION as follows:
1. Respondents are ORDERED to return to petitioners the just compensation
they received for the expropriation of Lot No. 88, plus legal interest, in the
case of default, to be computed from the time petitioners comply with their
obligation to reconvey Lot No. 88 to them;
2. Respondents are ORDERED to pay petitioners the necessary expenses
the latter incurred in maintaining Lot No. 88, plus the monetary value of their
services to the extent that respondents were benefited thereby;
3. Petitioners are ENTITLED to keep whatever fruits and income
they may have obtained from Lot No. 88; and
4. Respondents are also ENTITLED to keep whatever interests the amounts
they received as just compensation may have earned in the meantime, as
well as the appreciation in value of Lot No. 88, which is a natural
consequence of nature and time;
In light of the foregoing modifications, the case is REMANDED to the
Regional Trial Court, Branch 57, Cebu City, only for the purpose of receiving
490
 CARPIO, J.:
evidence on the amounts that respondents will have to pay petitioners in
accordance with this Courts decision. No costs.
SO ORDERED.
The Case

REPUBLIC OF THE PHILIPPINES G.R. No. 160379

THROUGH THE DEPARTMENT This is a petition for review[1] of the Court of Appeals

OF PUBLIC WORKS AND Decision[2] dated 15 November 2002 and Resolution dated 17 September
2003 in CA-G.R. CV No. 50358. The Court of Appeals affirmed with
HIGHWAYS,
modifications the Amended Decision of the Regional Trial Court of Cagayan
Petitioner, Present:
de Oro City, Branch 19 (RTC).

The Antecedent Facts

PUNO, C.J., Chairperson,

CARPIO,

CORONA, Private respondent Rosario Rodriguez Reyes is the absolute owner of a

parcel of land identified as Lot 849-B and covered by TCT No. T-7194. The
- versus - LEONARDO-DE CASTRO, 1,043-square meter lot is situated on Claro M. Recto and Osmea Streets,
and Cagayan de Oro City.
BERSAMIN, JJ.

COURT OF APPEALS and Promulgated: On 6 November 1990, private respondent received a letter from petitioner
ROSARIO RODRIGUEZ REYES, Republic of the Philippines, through the Department of Public Works and
Highways (DPWH), requesting permission to enter into a portion of private
Respondents. August 14, 2009 respondents lot consisting of 663 square meters, and to begin construction of
the Osmea Street extension road. On 20 December 1990, petitioner took
x-----------------------------------------------------------------------------------------x possession of private respondents property without initiating expropriation
proceedings. Consequently, on 4 and 7 January 1991, private respondent
sent letters to the DPWH stating her objection to the taking of her
property. On 16 May 1991, private respondent sent a letter to the City
Appraisal Committee (CAC) rejecting the latters appraisal of the subject
DECISION
property, to wit:[3]

Declared Tax Market Value Recommended Description

Owner Declaration 1981 Appraised
491
 No. Schedule Value
Rosario 90066 P400/sq.m. P4,000/sq.m. 1 to 20 meters
Reyes from Claro M.
Recto Super
Highway On 13 April 1994, the scheduled hearing was reset to 19 May 1994, to give
P3,200/sq.m. 21 to 40 meters private respondent (plaintiff) time to consider the offer of petitioner
from Claro M.
(defendant) to amicably settle the case and to accept the just compensation
Recto Super
Highway of P3,200 per square meter, or a total of P2,212,600, for the 663-square
P2,400/sq.m. 41 to 60 meters meter portion of private respondents lot.[7]
from Claro M.
Recto Super
Highway
On 16 May 1994, private respondent filed with the RTC an Urgent Motion to
Deposit The Amount of P2,121,600 in Court, alleging that petitioners counsel
previously manifested in open court that the amount of P2,121,600 was
In the same letter, private respondent requested the City Assessor for a ready for release should the amount be acceptable to private respondent,
reappraisal of her property, but said request was denied.[4] and praying that said amount of P2,121,600 be deposited by petitioner with
the trial court.[8] The RTC granted the motion in an Order dated 16 June
1994.[9] However, it was only on 21 October 1994 that petitioner deposited
On 17 March 1992 , private respondent filed with the Regional Trial Court with the RTC Clerk of Court a Landbank check amounting to P2,121,600 as
(RTC) of Cagayan de Oro City a complaint claiming just compensation and just compensation.[10]
damages against petitioner.

On 16 June 1994, the RTC ordered the commissioners to submit their report
On 30 June 1993, the RTC appointed three commissioners [5] to determine as soon as possible, but until the scheduled hearing on 15 July 1994, the
the subject propertys fair market value, as well as the consequential benefits commissioners still failed to submit their report. Upon motion of private
and damages of its expropriation. On 15 September 1993, one of the three respondent, the RTC issued an order appointing a new set of
commissioners, Provincial Assessor Corazon Beltran, submitted to the RTC commissioners.[11]
a separate report, the dispositive portion of which reads:

On 11 October 1994, the new commissioners submitted their report, the

pertinent portions of which provide, thus:
WHEREFORE, the undersigned deems it only to be just, fair
and reasonable to adopt the market value of FOUR
THOUSAND PESOS (P4,000.00) per square meter as the
highest price obtaining and prevailing in 1990, the time of the
taking of the property subject of the above entitled case, and COMMISSIONERS REPORT
fairly reasonable also to impose an additional value
equivalent to 5% of the market value as fixed for severance
fee.[6] xxx
492
 undersigned Commissioners respectfully recommend to the
Honorable Court the following valuation, to wit:
The property litigated upon is strategically located along Recto Avenue
(National Highway) which is a commercial district. Fronting it across the
national highway is the Cagayan Coca Cola Plant and the Shell Gasoline
Station. It adjoins an establishment known as the Palana Grocery Store and (CURRENT VALUE)
after it is the Northern Mindanao Development Bank. Three Hundred (300)
meters to the west of plaintiffs property is the gigantic structure of the
Gaisano City department store along Recto Avenue and Corrales Avenue 1. Front portion along Recto Avenue
Extension. Towards the eastern direction of the property are banking with a measurement of 21.52 meters
institution buildings and the Ororama Superstore along the national highway from south to north with an area of
(Recto Avenue) and the Limketkai Commercial Complex. 347.66 square meters at P18,000.00
to P20,000.00 per square meter;

For purpose of affording a fair assessment of the market value of plaintiffs

property, the herein Commissioners have divided the whole parcel of land 2. Middle portion with a measurement
into three parts, viz: of 21.52 meters containing an area
of 347.66 square meters
at P16,000.00 to P18,000.00 per
1. Front portion along Recto Avenue square meter;
measuring 21.52 meters from south
to north ------------- 347.66 SQM
3. Rear/back portion measuring
21.52 meters with an area of 347.66
2. Middle portion with a measurement square meters at P14,000.00
of 21.52 meters --------------------------- to P16,000.00 per square meter;
------------------- 347.66 SQM

VALUATION AS OF 1990
3. Rear/back portion with a
measurement of 21.52 meters -------
------------------------------ 347.66 SQM 1. Front Portion - P10,000.00
to P12,000.00 per square meter;

TOTAL AREA: ------- 1,043 SQM

2. Middle Portion- P8,000.00
to P10,000.00 per square meter;
Taking into consideration, among others, the location
of the property and a research of the prevailing prices of lots
proximate to and/or near the vicinity of plaintiff's property, the
493
 3. Rear Portion - P6,000.00
to P8,000.00 per square meter;
The undersigned Commissioners would however like to bring to the attention
of the Honorable Court that in the subdivision plan prepared by the City
Engineers Office, the whole of plaintiffs property was subdivided into three
(3) lots designated as follows:
Lot 849-B-1 (Road Lot)-83 square meters;
Lot 849-B-2 (Road Lot traversed by the RCDP Osmea Extension Street)-663
SQM;
Lot 849-B-3 remaining portion with an area of 297 square meters;
In effect, what has been taken over and used by the defendant is not only
663 square meters but 746 square meters, more or less, which includes Lot
No. 849-B-1.
On the other hand, the remaining portion left to the plaintiff, Lot No. 849-B-3
will not actually be 297 square meters. If we deduct the setback area from
Osmea Extension Street, the usable/buildable area left to the plaintiff would
only be a little over 50 square meters. This portion would not command a
good price if sold. Neither is it ideal for purposes of any building construction
because aside from its being a very small strip of land, the shape is
triangular.[12]
The Trial Courts Ruling
On 2 June 1995, the RTC rendered a Decision, the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants, declaring the former as
having the right to retain 590 square meters of the property
covered by TCT No. T-7194, and ordering the latter to return
210 square meters of the 663 square meters taken; that
defendants are solidarily liable to pay the sum
of P5,526,000.00, the fair market value of 1990 (sic), as just
compensation for the 536 square meters taken for the
Osmea street extension; to pay P185,000.00 representing
damages for 37 months computed at the rate of P5,000.00
per month from the filing of this case; and Attorneys fees
of P10,000.00 plus costs of suit.
Plaintiff herein is ordered to forthwith defray the expenses to be incurred in
undertaking the road construction of the 210 square meters which the
defendants will later on provide along the right portion of her property.
SO ORDERED.[13]
On 15 June 1995, the RTC rendered an Amended Decision with the following
dispositive portion, thus:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants, declaring the former as
having the right to retain 590 square meters of the property
covered by TCT No. T-7194, and ordering the latter to return
293 square meters of the 746 square meters taken; that
defendants are solidarily liable to pay the sum
of P4,696,000.00, the fair market value of 1990 (sic), as just
compensation for the 453 square meters taken for the
Osmea Street extension; to pay P185,000.00 representing
494
 damages for 37 months computed at the rate of P5,000.00
per month from the filing of this case; and Attorneys fees
of P10,000.00 plus costs of suit.
Plaintiff herein is ordered to forthwith defray the expenses to be incurred in
undertaking the road construction of the 293 square meters which the
defendants will later on provide along the right portion of her property.
SO ORDERED.[14]
The Court of Appeals Ruling
On appeal by petitioner, the Court of Appeals rendered judgment,[15] affirming
with modifications the decision of the RTC. The Court of Appeals found that
the commissioners recommendations on just compensation were not
supported by valid documents. Also, it was unclear in the RTC decision
whether the trial court merely adopted the commissioners recommendations
or the court made its own independent valuation of the subject
property. Thus, the Court of Appeals held that a reconvening of the
commissioners or an appointment of new commissioners to determine just
compensation was necessary. The appellate court further held that the trial
courts order for petitioners return of the 293-square meter lot had no legal
basis and was no longer feasible since the lot was already part of the
completed Sergio Osmea extension road. Moreover, consequential damages
should be awarded in lieu of actual damages for private respondents alleged
loss of income from the remaining 297-square meter lot. We quote the
dispositive portion of the Court of Appeals decision below.
WHEREFORE , the appealed judgment is
hereby MODIFIED.
1. The case is REMANDED to the trial court which is
ordered to reconvene the commissioners or appoint new
commissioners to determine, in accordance with this
Decision, the amount of just compensation due to plaintiff-
appellee Rosario Rodriguez Reyes for the 746 square
meters of land taken from her and consequential damages to
the 297-square meter portion left.
2. Defendant-appellant DWPH[16] is ordered to pay
plaintiff-appellee the following amounts:
a. the balance, if any, of just compensation to be
finally determined after deducting the amount
of P2,161,600.00[17] DPWH previously advanced and
deposited with the trial court;
b. 6% legal interest per annum on the
amount it provisionally deposited from the time of
taking up to the time it is deposited with the trial
court on October 21, 1994; and on the balance, if
any, from the time of taking on December 20, 1990
until fully paid;
c. attorneys fees of P20,000.00.
3. Defendant-appellant City Government of Cagayan de Oro is relieved from
any liability;
495

4. The award of P185,000.00 as actual damages is deleted;
5. No pronouncement as to costs.
SO ORDERED.[18]
Petitioner filed a Motion for Reconsideration, but this was denied by the
Court of Appeals in its Resolution of 17 September 2003.[19]
Hence, this appeal.
The Issues
Petitioner raises the following issues:
1. Whether the Court of Appeals erred in ordering the remand
of the case to the trial court, to order the reconvening of the
commissioners or appointment of new commissioners to
determine the consequential damages for the remaining 297-
square meter lot; and
2. Whether the Court of Appeals erred in ordering petitioner to pay attorneys
fees.
The Courts Ruling
We find the appeal unmeritorious.
On whether the Court of Appeals erred in ordering the
remand of the case to the trial court to order the reconvening
of the commissioners or appointment of new commissioners
to determine the consequential damages for the remaining
297-square meter lot
Eminent domain is the authority and right of the State, as sovereign, to take
private property for public use upon observance of due process of law and
payment ofjust compensation.[20] The Constitution provides that, [p]rivate
property shall not be taken for public use without just compensation.[21]
Just compensation is the full and fair equivalent of the property sought to be
expropriated.[22] Among the factors to be considered in arriving at the fair
market value of the property are the cost of acquisition, the current value of
like properties, its actual or potential uses, and in the particular case of lands,
their size, shape, location, and the tax declarations thereon.[23] The measure
496
is not the takers gain but the owners loss.[24] To be just, the compensation of just compensation (i.e., provisions of Rule 67) are no longer applicable,
must be fair not only to the owner but also to the taker. [25] and a trial before commissioners is dispensable, thus:

In this case, NPC appropriated Pobres Property

J ust compensation is based on the price or value of the property at the time without resort to expropriation proceedings. NPC dismissed
its own complaint for the second expropriation. At no point
it was taken from the owner and appropriated by the
did NPC institute expropriation proceedings for the lots
government.[26] However, if the government takes possession before the outside the 5,554 square-meter portion subject of the
institution of expropriation proceedings, the value should be fixed as of the second expropriation. The only issues that the trial court had
to settle were the amount of just compensation and
time of the taking of said possession, not of the filing of the complaint.The damages that NPC had to pay Pobre.
value at the time of the filing of the complaint should be the basis for the
This case ceased to be an action for expropriation when
determination of the value when the taking of the property involved coincides NPC dismissed its complaint for expropriation. Since this
with or is subsequent to the commencement of the proceedings. [27] case has been reduced to a simple case of recovery of
damages, the provisions of the Rules of Court on the
ascertainment of the just compensation to be paid were no
longer applicable. A trial before commissioners, for instance,
The procedure for determining just compensation is set forth in Rule 67 of was dispensable.[31]

the 1997 Rules of Civil Procedure. Section 5 of Rule 67 partly states that
[u]pon the rendition of the order of expropriation, the court shall appoint not
In this case, petitioner took possession of the subject property without
more than three (3) competent and disinterested persons as commissioners
initiating expropriation proceedings. Consequently, private respondent filed
to ascertain and report to the court the just compensation for the property the instant case for just compensation and damages. To determine just
sought to be taken. However, we held in Republic v. Court of Appeals[28] that compensation, the trial court appointed three commissioners pursuant to
Section 5 of Rule 67 of the 1997 Rules of Civil Procedure.None of the parties
Rule 67 presupposes a prior filing of complaint for eminent domain with the objected to such appointment.
appropriate court by the expropriator. If no such complaint is filed, the
expropriator is considered to have violated procedural requirements, and
hence, waived the usual procedure prescribed in Rule 67, including the The trial courts appointment of commissioners in this particular case is not

appointment of commissioners to ascertain just compensation.[29] In National improper. The appointment was done mainly to aid the trial court in

Power Corporation v. Court of Appeals,[30] we clarified that when there is no determining just compensation, and it was not opposed by the

action for expropriation and the case involves only a complaint for damages parties. Besides, the trial court is not bound by the commissioners

or just compensation, the provisions of the Rules of Court on ascertainment recommended valuation of the subject property. The court has the discretion

497
on whether to adopt the commissioners valuation or to substitute its own
estimate of the value as gathered from the records.[32]
However, we agree with the appellate court that the trial courts decision is
not clear as to its basis for ascertaining just compensation. The trial court
mentioned in its decision the valuations in the reports of the City Appraisal
Committee and of the commissioners appointed pursuant to Rule 67. But
whether the trial court considered these valuations in arriving at the just
compensation, or the court made its own independent valuation based on the
records, was obscure in the decision. The trial court simply gave the total
amount of just compensation due to the property owner without laying down
its basis. Thus, there is no way to determine whether the adjudged just
compensation is based on competent evidence. For this reason alone, a
remand of the case to the trial court for proper determination of just
compensation is in order. In National Power Corporation v. Bongbong,[33]we
held that although the determination of just compensation lies within the trial
courts discretion, it should not be done arbitrarily or capriciously. The
decision of the trial court must be based on all established rules, correct legal
principles, and competent evidence.[34] The court is proscribed from basing
its judgment on speculations and surmises.[35]
Petitioner questions the appellate courts decision to remand the case to
determine the consequential damages for the remaining 297-square meter
lot of private respondent. Petitioner contends that no consequential damages
may be awarded as the remaining lot was not actually taken by the DPWH,
and to award consequential damages for the lot which was retained by the
owner is tantamount to unjust enrichment on the part of the latter.
Petitioners contention is unmeritorious.
No actual taking of the remaining portion of the real property is necessary to
grant consequential damages. If as a result of the expropriation made by
petitioner, the remaining lot (i.e., the 297-square meter lot) of private
respondent suffers from an impairment or decrease in value, consequential
damages may be awarded to private respondent. On the other hand, if the
expropriation results to benefits to the remaining lot of private respondent,
these consequential benefits[36] may be deducted from the awarded
consequential damages, if any, or from the market value of the expropriated
property. We held in B.H. Berkenkotter & Co. v. Court of Appeals[37] that:
To determine just compensation, the trial court should first
ascertain the market value of the property, to which should
be added the consequential damages after deducting
therefrom the consequential benefits which may arise from
the expropriation. If the consequential benefits exceed the
consequential damages, these items should be disregarded
altogether as the basic value of the property should be paid
in every case.
Section 6 of Rule 67 of the Rules of Civil Procedure
provides:
x x x The commissioners shall assess the
consequential damages to the property not taken and deduct
from such consequential damages the consequential benefits
to be derived by the owner from the public use or purpose of
the property taken, the operation of its franchise by the
corporation or the carrying on of the business of the
corporation or person taking the property. But in no case
shall the consequential benefits assessed exceed the
consequential damages assessed, or the owner be deprived
of the actual value of his property so taken.
498
An award of consequential damages for property not taken is not tantamount The Court of Appeals did not err in granting attorneys fees to private
to unjust enrichment of the property owner. There is unjust enrichment respondent. Article 2208(2) of the New Civil Code provides that attorneys
when a person unjustly retains a benefit to the loss of another, or when a fees may be awarded:
person retains money or property of another against the fundamental
principles of justice, equity and good conscience.[38]Article 22 of the Civil
xxx
Code provides that [e]very person who through an act of performance by
another, or any other means, acquires or comes into possession of (2) When the defendants act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to
something at the expense of the latter without just or legal ground, shall protect his interest.
return the same to him. The principle of unjust enrichment under Article 22
xxx
requires two conditions: (1) that a person is benefited without a valid basis or
justification, and (2) that such benefit is derived at anothers expense or
damage.[39] There is no unjust enrichment when the person who will benefit
Attorneys fees may be awarded by a court if one who claims it is compelled
has a valid claim to such benefit.[40]
to litigate with third persons or to incur expenses to protect ones interest by
reason of an unjustified act or omission on the part of the party from whom it

As stated, consequential damages are awarded if as a result of the is sought.[41] In this case, petitioner took possession of private respondents

expropriation, the remaining property of the owner suffers from an real property without initiating expropriation proceedings, and over the latters

impairment or decrease in value. Thus, there is a valid basis for the grant of objection. As a result, private respondent was compelled to litigate and incur

consequential damages to the property owner, and no unjust enrichment can expenses to protect her interests over her property. Thus, the appellate

result therefrom. courts award of attorneys fees is proper, viz:

We find, however, the award of attorneys fees in plaintiff-

appellees favor justified. x x x It is admitted that defendant-
appellant DPWH neglected to file the appropriate
expropriation proceedings before taking over plaintiff-
On whether the Court of Appeals erred appellees land. That their road contractor no longer has any
portion to work on except on plaintiff-appellees property is
in ordering petitioner to pay attorneys fees. no justification for the precipitate taking of her lot. It is
499
 incumbent upon defendant-appellant DPWH to foresee Respondents.
whether private lands will be affected by their project and to x- - - - - - - - - - - - - - - - - - - - - - - - -x
file appropriate expropriation proceedings if necessary. They
did not do so. Thus, plaintiff-appellee was constrained to NATIONAL HOUSING G.R. Nos. 116491-503
institute the instant suit to protect her rights.[42] AUTHORITY,
Petitioner, Present:
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
WHEREFORE, we DENY the petition. We AFFIRM the Court of Appeals CHICO-NAZARIO,
Decision dated 15 November 2002 and Resolution dated 17 September MAXIMO LOBERANES, NACHURA, and
ELADIO QUIMQUE, CESARIO REYES, JJ.
2003 in CA-G.R. CV No. 50358. VEGA, JUANITO SANTOS,
ALEJANDRO ORACION and Promulgated:
GONZALO MERCADO,
Respondents. October 15, 2007
SO ORDERED.
x------------------------------------------------------------------------------------x
ANTONIO T. CARPIO
DECISION
Associate Justice
NACHURA, J.:

FERMIN MANAPAT, G.R. No. 110478[1] For the resolution of the Court are three consolidated petitions for
Petitioner,
- versus - review on certiorari under Rule 45 of the Rules of Court. G.R. No. 110478
assails the May 27, 1993Decision[2] of the Court of Appeals (CA) in CA-G.R.
COURT OF APPEALS and
NATIONAL HOUSING CV Nos. 10200-10212. G.R. No. 116176 questions the June 28,
AUTHORITY,
Respondents. 1994 Decision[3] of the appellate court in CA-G.R. CV No. 27159. G.R. Nos.
116491-503 assails the March 2, 1994 and the July 25, 1994 Resolutions[4] of
x- - - - - - - - - - - - - - - - - - - - - - - - -x
DOMINGO LIM, G.R. No. 116176 the CA also in CA-G.R. CV Nos. 10200-10212.
Petitioner,

- versus - The three-decade saga of the parties herein has for its subject
parcels of land forming part of what was originally known as the Grace Park
COURT OF APPEALS and
NATIONAL HOUSING Subdivision in Caloocan City and formerly owned by the Roman Catholic
AUTHORITY,

500
Archbishop of Manila (RCAM) and/or the Philippine Realty Corporation
(PRC). A significant turn of events however happened in 1977 when the late
President Ferdinand E. Marcos issued Presidential Decree (PD) No.
1072,[8] appropriating P1.2M out of the Presidents Special Operations Funds

The Facts to cover the additional amount needed for the expropriation of Grace Park.
The National Housing Authority (NHA), PHHCs successor, then filed several
expropriation proceedings over the already subdivided lots for the purpose of
Sometime in the 1960s, RCAM allowed a number of individuals to
developing Grace Park under the Zonal Improvement Program (ZIP) and
occupy the Grace Park property on condition that they would vacate the
subdividing it into small lots for distribution and resale at a low cost to the
premises should the former push through with the plan to construct a school
residents of the area.[9] The following cases were filed by the NHA with the
in the area. The plan, however, did not materialize, thus, the occupants
Regional Trial Court (RTC) of Caloocan City: C-6225, C-6226, C-6227, C-
offered to purchase the portions they occupied. Later, as they could not
6228, C-6229, C-6230, C-6231, C-6232, C-6233, C-6234, C-6235, C-6236,
afford RCAMs proposed price, the occupants, organizing themselves as
C-6237, C-6238, C-6255 and C-6435.[10]
exclusive members of the Eulogio Rodriguez, Jr. Tenants Association, Inc.,
petitioned the Government for the acquisition of the said property, its
After due proceedings, the trial court rendered separate decisions
subdivision into home lots, and the resale of the subdivided lots to them at a
dismissing the expropriation cases, with the exceptions of Cases Nos. C-
low price.[5]
6233 and C-6236 in which it ordered the condemnation of the involved
lots.[11] On motion for reconsideration by the NHA in Cases Nos. C-6227, C-
Acting on the associations petition, the Government, in 1963,
6228, C-6230, C-6234, C-6235, C-6238 and C-6255, the trial court later
through the Land Tenure Administration (LTA), later succeeded by the
amended its decision, set aside its dismissal of the said cases, ordered the
Peoples Homesite and Housing Corporation (PHHC), negotiated for the
condemnation of the involved lots and fixed the amount of just compensation
acquisition of the property from RCAM/PRC. But because of the high asking
at P180.00 per square meter. In Cases Nos. C-6225, C-6229, C-6231, C-
price of RCAM and the budgetary constraints of the Government, the latters
6232, C-6237 and C-6435, the RTC however denied NHAs motion for
effort to purchase and/or to expropriate the property was discontinued.
reconsideration.[12]
RCAM then decided to effect, on its own, the subdivision of the property and
the sale of the individual subdivided lots to the public. [6] Petitioners Manapat
NHA eventually appealed to the CA the decisions in Cases Nos. C-
and Lim and respondents Loberanes, Quimque, Vega, Santos, Oracion and
6225, C-6229, C-6231, C-6232, C-6237 and C-6435 on the issue of the
Mercado in these consolidated cases were among those who purchased
necessity of the taking, and the amended ruling in Cases Nos. C-6227, C-
individual subdivided lots of Grace Park directly from RCAM and/or PRC.[7]
501
 No pronouncement as to costs.
6228, C-6230, C-6234, C-6235, C-6238 and C-6255 on the issue of just
compensation.[13] The CA consolidated the appeals and docketed them SO ORDERED.[15]
as CA-G.R. CV No. 10200-10212. NHA likewise filed with the CA an appeal
from the decision in C-6226, which was docketed as CA-G.R. CV No. 27159. Rosemarie and Dolores Guanzon, two of the owners of the lots in C-6225,
filed before this Court a petition for review on certiorari of the aforesaid
On May 27, 1993, the appellate court rendered its Decision[14] in CA- decision of the appellate court [Their petition was docketed as G.R. Nos.
G.R. CV No. 10200-10212 disposing of the appealed cases as follows: 110462-74]. On September 5, 1994, we dismissed their petition for failure to
sufficiently show that the CA had committed any reversible error in the
WHEREFORE, premises considered, judgment is
hereby rendered: challenged decision.[16] An Entry of Judgment was issued on February 2,
1995.[17]
1) Reversing and setting aside the decisions of
dismissal in Cases Nos. C-6225, C-6229, C-6231, C-6232,
C-6237 and C-6435; and in lieu thereof an order of
condemnation is entered declaring that plaintiff-appellant Likewise, Julia Diez and Remedios Macato, the owners of the lots in C-6227,
NHA has a lawful right to take the lots involved for the public assailed before us the afore-quoted CA decision through a petition under
use described in the complaints;
Rule 45. On July 28, 1993, however, in G.R. No. 110770, we denied their
2) Affirming the decisions in Case Nos. C-6227, C- Motion for Extension of Time to file a petition for review on certiorari for their
6228, C-6234, C-6235, C-6238 and C-6255 insofar as said
decision granted the expropriation; declaring that plaintiff- failure to submit an affidavit of service of the motion as required by
appellant NHA has a lawful right to take the lots involved for
the public use stated in the complaint; but annulling and
setting aside the just compensation fixed by the trial court Circular No. 19-91.[18] After denying their motion for reconsideration,[19] we
at P180.00 per square meter in the said cases;
issued an Entry of Judgment on August 27, 1993.[20]
3) Ordering the remand of all the appealed cases,
except for Case No. C-6230, to the trial court for
determination of the just compensation to which defendants Petitioner Manapat, the defendant-landowner in C-6229, also
are entitled in accordance with Rule 67 of the Revised Rules
of Court; elevated the case before us via a petition for review on certiorari docketed
as G.R. No. 110478.[21] We initially dismissed this petition for having been
4) Finding the compromise agreement in Case No.
C-6230, entitled, NHA v. Aurora Dy dela Costa, et al. in filed out of time,[22] but we reinstated it on motion for reconsideration.[23]
accordance with law, and not contrary to morals or public
policy, and rendering judgment in accordance therewith;
In the meantime, the other defendants-landowners in the
5) Ordering Remedios Macato to be joined as
expropriation casesRCAM/PRC in C-6225, Maximo Loberanes and Eladio
defendant with Julia C. Diaz in Case No. C-6227.
Quimque in C-6231, Alejandro Oracion, Gonzalo Mercado, Cesario Vega
502
and Juanito Santos in C-6435, and Remedios Macato in C-6227moved for
the reconsideration of the said May 27, 1993 Decision of the CA. [24] In
the March 2, 1994 Resolution,[25] the appellate court resolved the motions in
this wise:
WHEREFORE, premises considered, the motion for
reconsideration of movants Roman Catholic Archbishop
of Manila and Philippine Realty Corporation (in Special Civil
Action No. 6225) and movant-intervenor Remedios Macato
(in Special Civil Action No. 6227) are DENIED.
The motions for reconsideration of movants Gonzalo
Mercado, Cesario Vega and Juanito Santos (in Special Civil
Action No. 6435) and movants Maximo Loberanes and
Eladio Quimque (in Special Civil Action No. 6231) are
GRANTED. The motion for reconsideration of movant
Alejandro Oracion (in Special Civil Action No. 6435) is
partially granted to the extent of Three Hundred (300)
square meters of Lot 22, Block 157. The decision of this
Court promulgated May 27, 1993 is accordingly MODIFIED.
Lot No. 26, Block No. 157 owned by Cesario Vega and
Juanito Santos, and Lot No. 4, Block No. 157 owned by
Maximo Loberanes and Eladio Quimque are declared
exempt from expropriation and the corresponding complaints
for expropriation (sic) DISMISSED insofar as said lots are
concerned. Lot No. 22, Block No. 157 owned by movant
Alejandro Oracion is declared exempt from expropriation to
the extent of Three Hundred (300) square meters. Only the
remaining Ninety (90) square meters shall be the subject of
expropriation, the portion to be determined by the lower
court in the manner most beneficial to the owner and
consistent with the objective of PD 1072.
SO ORDERED.[26]
Aggrieved by the said March 2, 1994 CA Resolution specifically with
regard to the exemption from expropriation of the lots of Loberanes,
Quimque, Mercado, Vega and Santos, and the partial exemption of the lot of
Oracion, NHA moved for the reconsideration of the same. In the
subsequent July 25, 1994 Resolution,[27] the appellate court denied NHAs
motion, together with the belated motion of Vivencio S. de Guzman, the
defendant-landowner in C-6255. The dispositive portion of the July 25,
1994 Resolution reads:
WHEREFORE, the motions for reconsideration of
defendant-appellant Vivencio S. de Guzman of the decision
promulgated May 27, 1993 and of plaintiff-appellant National
Housing Authority of the resolution promulgated March 2,
1994 are DENIED.
SO ORDERED.[28]
With the denial of its motion for reconsideration, NHA filed with this
Court a Consolidated Petition for Review[29] under Rule 45, as aforesaid,
assailing the March 2, 1994 and the July 25, 1994 Resolutions of the
appellate court. NHAs petition was docketed as G.R. Nos. 116491-
503 against respondents Loberanes and Quimque (in C-6231),
Vega, Santos, Oracion and Mercado (in C-6435).
In a separate development, the CA, on June 28, 1994, rendered its
Decision[30] in CA-G.R. CV No. 27159, reversing the RTCs ruling in C-6226.
The fallo of the decision reads:
WHEREFORE, FOREGOING PREMISES
CONSIDERED, the appealed decision dated October 29,
1986 is hereby REVERSED for want of merit. Let the record
of this case be remanded to the court of origin for further
proceedings.
IT IS SO ORDERED.[31]
503
 SUPERVENING EVENT RENDERS IMPROPER THE
DISPOSITION BY THE COURT OF APPEALS FOR AN
ORDER OF CONDEMNATION DECLARING THAT NHA
HAS A LAWFUL RIGHT TO TAKE THE LOT OF FERMIN
Discontented with the appellate courts ruling, petitioner Domingo Lim, one of MANAPAT FOR SUPPOSED PUBLIC USE AND FOR
the owners of the lots subject of C-6226, elevated the case to us via a REMAND OF HIS CASE TO THE TRIAL COURT FOR
DETERMINATION OF JUST COMPENSATION.[34]
petition for review on certiorari docketed as G.R. No. 116176.[32]
III

The Issues THE COURT OF APPEALS SHOULD HAVE CONSIDERED

THAT FERMIN MANAPAT IS NOT ONLY A BONA FIDE
OCCUPANT IN THE GRACE PARK SUBDIVISION FOR
Thus, for resolution by this Court are the following consolidated cases: PURPOSES OF P.D. 1072 BUT LIKEWISE HAS A
TRANSFER CERTIFICATE OF TITLE NO. 42370 OF THE
(1) G.R. No. 110478 of Manapat; (2) G.R. Nos. 116491-503 of the NHA; and REGISTRY OF DEEDS FOR THE CITY
(3) G.R. No. 116176 of Lim. OF CALOOCAN OVER THE SAME LOT SOUGHT TO BE
EXPROPRIATED WHICH SHOULD NOT BE SUBJECT TO
COLLATERAL ATTACK AS DISPOSED BY THE COURT
In G.R. No. 110487, petitioner Manapat argues in the main that, as he is also OF APPEALS.[35]

a member of the tenant association, the beneficiary of the expropriation, it IV

would be incongruous to take the land away from him only to give it back to
THE COURT OF APPEALS SHOULD HAVE CONSIDERED
him as an intended beneficiary. Accordingly, the CA, in its May 27, 1993 THAT THE EVENTUAL BENEFICIARIES OF ITS
BENEVOLENT EXPROPRIATION ARE SQUATTERS.[36]
Decision in CA-G.R. CV No. 10200-10212, should not have allowed the
expropriation of his lot. To further support his stance, Manapat raises the
following grounds: NHA, in its petition in G.R. Nos. 116491-503, primarily contends that the CA
erred when it issued its March 2, 1994 Resolution and modified the May 27,
I 1993 Decision in CA-G.R. CV No. 10200-10212 to the extent that it applied
THE COURT OF APPEALS ERRED IN HOLDING THAT retroactively Article VI, Section 10 of Republic Act (R.A.) No. 7279, thus
THE ISSUANCE MADE IN THE EXERCISE OF
exempting from expropriation the 300-sq m lots of respondents Loberanes,
LEGISLATIVE POWER, SPECIFYING THE LOTS TO BE
EXPROPRIATED AND THE PURPOSE FOR WHICH THEY Quimque, Vega, Santos, Oracion and Mercado. NHA summarized its
ARE INTENDED, REMOVES FROM THE JUDICIARY THE
DETERMINATION OF THE NECESSITY OF THE TAKING, arguments as follows:
THERE BEING NO SHOWING OF ABUSE OF
DISCRETION.[33] I

II The Honorable Court of Appeals erred in applying

retroactively Article VI, Section 10 of Republic Act No. 7279
504
 to the subject expropriation cases instituted back in 1977 by
petitioner-appellant NHA.[37]
A. Republic Act 7279 passed in 1992 should
operate prospectively and, therefore, should not
be given retroactive effect.[38]
Republic Act 7279 is a substantive and penal
law with a penalty clause which cannot apply
retroactively especially to pending actions.[39]
B. Republic Act No. 7279 and PD 1072 are not in
pari materia.[40]
The retroactive application of Article VI, Section
10 of RA 7279 will affect vested rights of
petitioner-appellant NHA arising from its
exercise of the power of eminent domain.[41]
II
The Honorable Court of Appeals erred in ignoring the
impractical consequences resulting from a selective
expropriation of lots.[42]
In G.R. No. 116176, petitioner Lim, a non-member of the tenant
association who bought from RCAM/PRC four lots of the subdivided Grace
Park Subdivision,[43] argues as follows:
1
Respondent NHA may not, as it would herein, legally re-
group several smaller lots into which a much bigger lot had
previously been subdivided, and consider and treat them as
one again for the purpose of subdividing it once more into
still smaller lots for distribution to its supposed or intended
beneficiaries.[44]
2
There really was no genuine necessity for the expropriation
of the lots in question to satisfy the purpose thereof as
alleged in the complaint therefor.[45]
3
Respondent Court did not sustain the clear finding of the trial
court that no evidence sufficient to prove its claim that the
expropriation of said lots and subdividing them again into
much smaller lots for resale to their present occupants would
provide the latter with more healthful, decent and peaceful
surroundings and thus improve the quality of their lives was
ever presented by respondent NHA.[46]
Stripped of non-essentials, the petitions raise only one fundamental issue,
and that is, whether the NHA may validly expropriate the parcels of land
subject of these cases.
The Courts Ruling
The power of eminent domain is an inherent and indispensable power of the
State. Also called the power of expropriation, it is described as the highest
and most exact idea of property remaining in the government that may be
acquired for some public purpose through a method in the nature of a
compulsory sale to the State.[47] By virtue of its sovereign character, the
exercise of the power prevails over the non-impairment clause,[48] and is
clearly superior to the final and executory judgment rendered by a court in an
ejectment case.[49]
Being inherent, the power need not be specifically conferred on the
government by the Constitution. Section 9, Article III of the Constitution,
which mandates that private property shall not be taken for a public use
505
without just compensation, merely imposes a limit on the governments
exercise of the power and provides a measure of protection to the individuals
right to property.[50]
Just like its two companion fundamental powers of the State, [51] the power of
eminent domain is exercised by the Legislature. However, it may be
delegated by Congress to the President, administrative bodies, local
government units, and even to private enterprises performing public
services.[52]
Albeit the power partakes of a sovereign character, it is by no means
absolute. Its exercise is subject to limitations, one of which is, precisely,
Section 9, Article III of the Constitution.
Over the years and in a plethora of cases, this Court has recognized the
following requisites for the valid exercise of the power of eminent domain: (1)
the property taken must be private property; (2) there must be genuine
necessity to take the private property; (3) the taking must be for public use;
(4) there must be payment of just compensation; and (5) the taking must
comply with due process of law.[53] Accordingly, the question that this Court
must resolve is whether these requisites have been adequately addressed.
It is incontrovertible that the parcels of land subject of these consolidated
petitions are private property. Thus, the first requisite is satisfied.
With respect to the second, it is well to recall that in Lagcao v. Judge
Labra,[54] we declared that the foundation of the right to exercise eminent
domain is genuine necessity, and that necessity must be of a public
character. As a rule, the determination of whether there is genuine necessity
for the exercise is a justiciable question.[55] However, when the power is
exercised by the Legislature, the question of necessity is essentially a
political question.[56] Thus, in City of Manila v. Chinese Community,[57] we
held:
The legislature, in providing for the exercise of the power of
eminent domain, may directly determine the necessity for
appropriating private property for a particular improvement
for public use, and it may select the exact location of the
improvement. In such a case, it is well-settled that the utility
of the proposed improvement, the extent of the public
necessity for its construction, the expediency of constructing
it, the suitableness of the location selected and the
consequent necessity of taking the land selected for its site,
are all questions exclusively for the legislature to determine,
and the courts have no power to interfere, or to substitute
their own views for those of the representatives of the
people.
In the instant cases, the authority to expropriate came from Presidential
Decree No. 1072, issued by then President Ferdinand E. Marcos in 1977. At
that time, and as explicitly recognized under the 1973 Constitution, President
Marcos had legislative powers. Perforce, the expropriation of the subject
properties identified with specificity in the P.D. --- was directed by
legislation. The issue of necessity then assumed the nature of a political
question.
As to the third requisite of public use, we examine the purpose for which the
expropriation was undertaken by NHA. As set forth in its petition, NHA
justifies the taking of the subject property for the purpose of improving and
upgrading the area by constructing roads and installing facilities thereon
506
 rearrangement and re-alignment of existing
under the Governments zonal improvement program and subdividing them houses and other dwelling structures and
into much smaller lots for distribution and sale at a low cost to qualified the construction and provision of basic
community facilities and services, where
beneficiaries, mostly underprivileged long-time occupants of Grace Park. there are none, such as roads, footpaths,
Around 510 families with approximately 5 members each will be benefited by drainage, sewerage, water and power
system, schools, barangay centers,
the project.[58] The only remaining obstacle in the completion of this project is community centers, clinics, open spaces,
the lots subject of these consolidated petitions as the other lots in Grace Park parks, playgrounds and other recreational
facilities;
have already been expropriated.[59]
d) The provision of economic
opportunities, including the development of
The Zonal Improvement Program (ZIP), being implemented for government commercial and industrial estates and such
other facilities to enhance the total
by NHA, draws breath from policy mandates found in the 1987 community growth; and
Constitution.[60] It is an integral part of the governments socialized housing
e) Such other activities undertaken
program which, in Sumulong v. Guerrero,[61] we deemed compliant with the in pursuance of the objective to provide and
public use requirement, it being a program clearly devoted to a public maintain housing for the greatest number of
people under Presidential Decree No. 757.
purpose. Justice Irene R. Cortes, speaking eloquently for the Court, said: (Pres. Decree No. 1259, sec. 1)

xxxx
Socialized housing is defined as, the construction of
dwelling units for the middle and lower class members of our
Specifically, urban renewal or redevelopment and
society, including the construction of the supporting
the construction of low-cost housing is recognized as a
infrastructure and other facilities (Pres. Decree No. 1224,
public purpose, not only because of the expanded concept of
par. 1). This definition was later expanded to include among
public use but also because of specific provisions in the
others:
Constitution. The 1973 Constitution made it incumbent upon
the State to establish, maintain and ensure adequate social
a) The construction and/or
services including housing [Art. II, sec. 7]. The 1987
improvement of dwelling units for the middle
Constitution goes even further by providing that:
and lower income groups of the society,
including the construction of the supporting
The State shall promote a just and
infrastructure and other facilities;
dynamic social order that will ensure the
prosperity and independence of the nation
b) Slum clearance, relocation and
and free the people from poverty through
resettlement of squatters and slum dwellers
policies that provide adequate social
as well as the provision of related facilities
services, promote full employment, a rising
and services;
standard of living and an improved quality of
life for all. [Art. II, sec. 9]
c) Slum improvement which consists
basically of allocating homelots to the
dwellers in the area or property involved,
507
 The state shall, by law, and for the construed in relation with the preceding three paragraphs.
common good, undertake, in cooperation Provisions on economic opportunities inextricably linked with
with the private sector, a continuing program low-cost housing, or slum clearance, relocation and
of urban land reform and housing which will resettlement, or slum improvement emphasize the public
make available at affordable cost decent purpose of the project.[62]
housing and basic services to
underprivileged and homeless citizens in
urban centers and resettlement areas. It
shall also promote adequate employment It need only be added, at this juncture, that the public use requisite
opportunities to such citizens. In the for the valid exercise of the power of eminent domain is a flexible and
implementation of such program the State
shall respect the rights of small property evolving concept influenced by changing conditions. At present, it may not be
owners. (Art. XIII, sec. 9, Emphasis amiss to state that whatever is beneficially employed for the general welfare
supplied)
satisfies the requirement of public use.[63]
Housing is a basic human need. Shortage in housing is a
matter of state concern since it directly and significantly
affects public health, safety, the environment and in sum, the Still, petitioner Manapat insists that, being himself a beneficiary of
general welfare. The public character of housing measures
the expropriation (because he has been a long-time resident of Grace Park),
does not change because units in housing projects cannot
be occupied by all but only by those who satisfy prescribed it would be incongruous for government to take his land away from him only
qualifications. A beginning has to be made, for it is not
possible to provide housing for all who need it, all at once. to give it back to him. This contention sadly fails to comprehend the public
purpose for the taking under the socialized housing program. The parcels of
Population growth, the migration to urban areas and
the mushrooming of crowded makeshift dwellings is a land subject of the expropriation are, precisely, being taken so that they can
worldwide development particularly in developing countries. be subdivided into much smaller lots --- at an average of 66.5 square meters
So basic and urgent are housing problems that the United
Nations General Assembly proclaimed 1987 as the per lot[64] --- for distribution to deserving dwellers in the area. Upon the
International Year of Shelter for the Homeless to focus the
completion of the project, Manapat, and those similarly situated as he,
attention of the international community on those problems.
The General Assembly is [s]eriously concerned that, despite cannot assert any right to be awarded the very same lots they currently
the efforts of Governments at the national and local levels
and of international organizations, the living conditions of the occupy, nor be entitled to the same area of the land they now have.
majority of the people in slums and squatter areas and rural
settlements, especially in developing countries, continue to
deteriorate in both relative and absolute terms. [G.A. Res. Then, we have petitioner Lim and respondents Vega, Santos,
37/221, Yearbook of the United Nations 1982, Vol. 36, p. Oracion, and Mercado, who argue that the lots they own should not be
1043-4]
expropriated are already titled in their names and are very small in area,
In the light of the foregoing, this Court is satisfied
being already the subdivided portions of the original Grace Park Subdivision.
that "socialized housing" falls within the confines of "public
use". It is, particularly important to draw attention to
paragraph (d) of Pres. Dec. No. 1224 which should be
We are not persuaded.
508

J. M. Tuason & Co., Inc. v. Land Tenure Administration[65] is
instructive. In that case, this Court adopted the dissenting opinion of Justice
J. B. L. Reyes in Republic v. Baylosis,[66] that the propriety of exercising the
power of eminent domain cannot be determined on a purely quantitative or
area basis, given that the Constitution speaks of lands, not of landed
estates. Speaking through Justice (later Chief Justice) Enrique M. Fernando,
the Court said:
This is not to say of course that property rights are
disregarded. This is merely to emphasize that the philosophy
of our Constitution embodying as it does what Justice Laurel
referred to as its nationalistic and socialist traits discoverable
upon even a sudden dip into a variety of [its] provisions
although not extending as far as the destruction or
annihilation of the rights to property, negates the postulate
which at one time reigned supreme in American
constitutional law as to their well-nigh inviolable character.
This is not so under our Constitution, which rejects the
doctrine of laissez faire with its abhorrence for the least
interference with the autonomy supposed to be enjoyed by
the property owner. Laissez faire, as Justice Malcolm
pointed out as far back as 1919, did not take too firm a
foothold in our jurisprudence. Our Constitution is much more
explicit. There is no room for it for laissez faire. So Justice
Laurel affirmed not only in the above opinion but in another
concurring opinion quoted with approval in at least two of our
subsequent decisions. We had occasion to reiterate such a
view in the ACCFA case, decided barely two months ago.
This particular grant of authority to Congress
authorizing the expropriation of land is a clear manifestation
of such a policy that finds expression in our fundamental law.
So is the social justice principle enshrined in the Constitution
of which it is an expression, as so clearly pointed out in the
respective dissenting opinions of Justice J.B.L. Reyes and
Chief Justice Paras in the Baylosis case. Why it should be
thus is so plausibly set forth in the ACCFA decision, the
opinion being penned by Justice Makalintal. We quote: The
growing complexities of modern society, however, have
rendered this traditional classification of the functions of
government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and
which the government was called upon to enter optionally,
and only because it was better equipped to administer for
the public welfare than is any private individual or group of
individuals, continue to lose their well-defined boundaries
and to be absorbed within activities that the government
must undertake in its sovereign capacity if it is to meet the
increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a
greater socialization of economic forces. Here of course this
development was envisioned, indeed adopted as a national
policy, by the Constitution itself in its declaration of principle
concerning the promotion of social justice.
In a more recent decision,[67] we had occasion to declare that the fact
that the property is less than -hectare and that only a few would actually
benefit from the expropriation does not diminish its public use character,
inasmuch as public use now includes the broader notion of indirect public
benefit or advantage, including in particular, urban land reform and housing.
The Courts departure from the land size or area test finds further
affirmation in its rulings in Mataas na Lupa Tenants Association, Inc. v.
Dimayuga[68] and the aforecited Sumulong v. Guerrero.[69]
Given this discussion, it is clear that public use, as a requisite for the
exercise of eminent domain in the instant cases, has been adequately
fulfilled.
To satisfy the fourth requisite, we affirm the appellate courts
disposition that the subject cases be remanded to the trial court for the
determination of the amount of just compensation. Under case law, the said
509
determination is a judicial prerogative.[70] As to the observance of the fifth
requisite, the due process clause, in the expropriation proceedings, all the
parties have been given their day in court. That they are now before this
Court is attestation enough that they were not denied due process of law.
From the foregoing disquisitions, it is unmistakable that all the
requirements for the valid exercise of the power of eminent domain have
been complied with. Thus, our answer to the singular and fundamental issue
in these consolidated cases is: YES, the NHA may validly expropriate the
subject parcels of land.
One final matter: the propriety of the application by the CA of R.A.
No. 7279, otherwise known as the Urban Development and Housing Act of
1992.
The Court is not unaware of the condition now imposed by R.A. No.
7279[71] that, for purposes of urban development and housing under the Act,
where expropriation is resorted to, parcels of land owned by small property
owners shall be exempted.[72] Small property owners are owners of
residential lands with an area not exceeding 300 sq m in highly urbanized
cities and 800 sq m in other urban areas and who do not own any other real
property.[73] Invoking this limitation under the said law, the appellate court in
the questioned rulings exempted from expropriation the lots owned by
Loberanes, Quimque, Mercado, Vega and Santos, and partially exempted
the lot of Oracion.
The CAs ruling on this point is incorrect. R.A. No. 7279 was enacted
in 1992, almost two decades after the expropriation cases against the
property owners herein were instituted with the RTC in 1977. Nova
constitutio futuris formam imponere debet, non praeteritis. A new statute
should affect the future, not the past. The law looks forward, not
backward.[74] Article 4 of the Civil Code even explicitly declares, (l)aws shall
have no retroactive effect, unless the contrary is provided.[75] In these
consolidated cases, the Court finds that the language of R.A. No. 7279 does
not suggest that the Legislature has intended its provisions to have any
retroactive application. On the contrary, Section 49 of the said law indicates
that it shall take effect upon its publication in at least two (2) national
newspapers of general circulation.[76] The laws prospective application being
clearly stated, the Court cannot agree with the disposition of the appellate
court that the subject lots not exceeding 300 sq m are exempt from
expropriation.
WHEREFORE, PREMISES CONSIDERED, the May 27, 1993 Decision of
the Court of Appeals in CA-G.R. CV No. 10200-10212 and the June 28, 1994
Decision in CA-G.R. CV No. 27159 are AFFIRMED; and the March 2, 1994
and the July 25, 1994 Resolutions in CA-G.R. CV Nos. 10200-10212
are REVERSED and SET ASIDE.
G.R. No. 192100 March 12, 2014
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS (DPWH)1, Petitioner,
vs.
ASIA PACIFIC INTEGRATED STEEL CORPORATION, Respondent.
DECISION
510
VILLARAMA, JR., J.:
Before this Court is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, assailing the July 21, 2009
Decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 90539. The CA
partially affirmed the September 21, 2007 Decision 3 of the Regional Trial
Court (RTC), Branch 54, of Macabebe, Pampanga, and reduced the annual
legal interest awarded from 12% to 6% per annum. Also assailed is the
appellate court's April 28, 2010 Resolution 4 denying petitioner's motion for
reconsideration.
As culled from the records, the following are the pertinent facts:
Asia Pacific Integrated Steel Corporation (respondent) is the registered
owner of a 17,175-square meter property situated in Barangay Sta. Monica,
Municipality of San Simon, Province of Pampanga and covered by Transfer
Certificate of Title (TCT) No. 271813-R.5
On March 1, 2002, the Republic of the Philippines (petitioner) through the
Toll Regulatory Board (TRB) instituted expropriation proceedings against the
respondent over a portion of their property. The affected area, consisting of
2,024 square meters, shall be traversed by the expansion of the San Simon
Interchange, an integral component of the construction, rehabilitation and
expansion of the North Luzon Expressway (NLEX Project). Subsequently,
petitioner filed an urgent ex-parte motion for issuance of writ of possession,
stating that it deposited with the Land Bank of the Philippines (LBP) the
amount of 607,200.00 (100% of the value of the property based on current
zonal valuation of the Bureau of Internal Revenue [BIR]) in accordance with
Section 4(a) of Republic Act No. 89746 (R.A. 8794), and hence the court has
the ministerial duty to place petitioner in possession pursuant to Section 2,
Rule 67 of the Rules of Civil Procedure.7
On March 19, 2002, the trial court issued an order granting petitioners
motion and directing the Register of Deeds of Pampanga to cause the
annotation of the writ of possession on TCT No. 271813-R.8
In its Answer with Opposition to the Motion for Issuance of Writ of
Possession,9 respondent questioned the TRBs authority to expropriate the
subject property and objected to petitioners offered compensation which
respondent deems unjust because the basis thereof - the BIR zonal valuation
- was an unofficial valuation, being merely based on an internal
memorandum issued by BIR Revenue District No. 21, not by the Asset
Valuation Department of the BIR National Office. Respondent asserted that
just compensation should be at 3,036,000.00 or at 1,500.00 per square
meter plus consequential damages, considering the fair market value and the
industrial classification of the subject property.
During the pre-trial conference, the parties agreed on TRBs authority to
expropriate the subject property but disagreed as to the amount of just
compensation. Petitioner offered to pay 607,200.00 for the portion taken but
respondent made a counter-offer of 1,821,600.00. The parties eventually
agreed to submit the issue of just compensation to three Commissioners
composed of the Municipal Assessor of San Simon as Chairman, and the
RTC Branch Clerk of Court and the Register of Deeds for the Province of
Pampanga as Members.10
On June 1, 2004, the trial court granted respondents motion to withdraw the
607,200.00 deposited by petitioner with the LBP as partial payment for just
compensation.11
On June 9, 2004, the Commissioners submitted their Report with the
following findings and recommendation:
The affected lot is within the area wherein the land use are residential,
commercial, and industrial (mixed land use), as per Vicinity Map hereto
attached as Annex "B". The area is along MacArthur Highway, Quezon
Road, Municipal and Barangay Roads[.]
In the absence of bonafide sales transaction in the area, the Assessors
Office being aware of the actual conditions of subject property decided to use
opinion values in the determination of the current and fair market value for
the purpose of payment of just compensation.
OPINION VALUES
A. Real Estate Brokers/Independent Appraisers/Owners, etc.
1. Residential - ranging from 2,000.00 to 2,500.00 per
square meter
2. Commercial - ranging from 2,500.00 to 3,000.00 per
square meter
3. Industrial - ranging from 1,000.00 above per square
meter
511
 B. Banks and Financial Institutions
1. Residential - ranging from 1,000.00 to 2,000.00 per
square meter
2. Commercial - ranging from 2,000.00 to 3,000.00 per
square meter
3. Residential - ranging from 1,000.00 to 1,500.00 per
square meter
Appraisal conducted by the Assessor of San Simon, Pampanga for various
properties within the area, recommended an amount ranging from 1,000.00
to 1,500.00, Philippine currency, per square meter, depending on their
proximity to the national roads, municipal roads, and barangay roads, and
the improvement/development put in place. The amount of 1,000.00 to
1,500.00 was arrived at by the undersigned commissioners due to the
conversion of the subject property from agricultural to industrial use as
evidenced by the Order of Conversion dated July 8, 1991, issued by Renato
B. Padilla, Undersecretary, Department of Agrarian Reform, a xerox copy of
which is hereto attached [as] Annex "C".12
On September 23, 2004, an ocular inspection was conducted in the presence
of the parties representatives and their respective counsels, during which the
trial court noted the following:
1. There is an existing toll plaza on the right lane of the expressway
facing the direction of Manila with blue colored roofing.
2. Comprised in the aforesaid toll plaza are three toll booths. The
third booth located on the extreme right facing Manila occupies a
portion of the expropriated portion of defendants property.
3. The expropriated portion which is shown in a sketch which was
marked as Exhibit H is indicated by its color: green. It has an area of
2,021 square meters. The remaining unexpropriated portion of
defendants land has an area of 15,151 square meters.
4. The unexpropriated portion of the land of defendant is presently
very much below the level of the expressway because the
expressway was upgraded. It is immediately adjacent to the existing
expressway, located as it is, on its right side facing Manila. It is
swampy with little water.13
In its Decision, the trial court ruled as follows:
x x x Although there was no documentary evidence attached to substantiate
the opinions of the banks and the realtors indicated in the Commissioners
Report, the Court finds the commissioners recommendation of the valuation
of industrial lands at 1,000.00 to 1,500.00 to be fair, absent any showing
that the valuation is exorbitant or otherwise unjustified. There was no fraud or
prejudice that tainted the report.
The Court finds the valuation of the Republic of the Philippines which was
pegged at Php300.00 per square meter to be very low. The zonal valuation
of the Bureau of Internal Revenue (Exhibits A and B with submarkings) is
merely a gauge or is necessary in the assessment of correct transfer taxes
by the said office. Furthermore the Department Order No. 23-98 took effect
only last February 2, 1998 which was four (4) years prior to the filing of the
complaint. The same is true with Ordinance No. 17, Series of 1994 issued by
the Sangguniang Panlalawigan of Pampanga (Exhibit E) which was issued
eight (8) years also prior to the filing of the complaint.
Concerning the Deed of Absolute Sale (Exhibit C) notarized on July 19,
2002, the same was undated and pertains only to a right of way. An
easement of right of way transmits no rights except the easement itself.
Hence, the just compensation pertaining to easement of right of way should
be lower than that in the Deed of Absolute Sale. x x x
xxxx
Using the recommendation of the three (3) commissioners as guide, the
Court finds the amount of ONE THOUSAND THREE HUNDRED PESOS
(Php1,300.00) per square meter as just compensation for the property
subject of expropriation.
WHEREFORE, premises considered, judgment is rendered:
1) Ordering the plaintiff to pay the defendant in the amount of TWO
MILLION TWENTY FOUR THOUSAND PESOS (Php2,024,000.00)
representing the net amount of just compensation after deducting the
partial payment of 607,200.00 based on the valuation of
Php1,300.00 per square meter on the expropriated portion of the
512
 parcel of land [Lot 329-A of the subdivision, plan (LRC) Psd-246403,
being a portion of lot 329, San Simon, LRC. Cad Rec. No. 1316] with
an area of 2,024 square meters situated in Sta. Monica, San Simon,
Pampanga covered by Transfer Certificate of Title No. 271813-R
plus legal interest of 12% per annum from the time of taking (March
21, 2002) until fully paid less taxes due on the land.
2) Ordering the plaintiff to pay the costs and/or expenses in relation
to the transfer of ownership of the property in its favor from
defendant Asia Pacific Integrated Steel Corporation.
3) Condemning the property subject of expropriation free from all
liens and encumbrances for the construction, rehabilitation and
expansion of the North Luzon Expressway.
SO ORDERED.14
Petitioner appealed to the CA, arguing that the just compensation should not
be more than 300.00 per square meter and that the correct rate of interest
is 6% per annum.
The CA upheld the trial courts ruling, reiterating the principle that the
determination of just compensation is an inherently judicial function. It
stressed that any valuation for just compensation laid down in statutes
merely serve as guides or factors and may not substitute the courts own
judgment as to what amount should be awarded and how to arrive at such
amount.15
Further, the CA noted that petitioner itself admitted that the BIR zonal
valuation is only for the purpose of determining the correct amount of transfer
taxes. It held that while BIR zonal valuation may be a factor in determining
just compensation, the same is not a competent basis thereof. Citing R.A.
8974, the CA pointed out the distinction between provisional value as a
precondition for the issuance of a writ of possession and the payment of just
compensation for the expropriated property. While the provisional value is
based on the zonal value as may be determined by the BIR, just
compensation is based on the prevailing fair market value of the property.
Necessarily, the zonal valuation of properties is not equivalent to their fair
market value.16
After examining the records, the CA found no reversible error in the trial
courts determination of just compensation and held that the valuation of
1,500.00 per square meter is more in consonance with the concept of just
compensation based upon due consideration of all evidence. Thus:
It is equally settled that the valuation of a property in tax declarations cannot
be a substitute to just compensation. Elsewise stated, the market value
reflected in the tax declaration of the condemned property is no longer
conclusive. Accordingly, we cannot appreciate the herein tax declaration in
favor of the Republic.
Further, it is uncontested that the deed of sale dated July 19, 2002 between
San Simon Realty, Inc. and the Republic pertained only to a right of way,
hence, the value thereof should be considerably lower. Ordinance No. 17, as
correctly found by the RTC, was issued on June 22, 1994 or eight (8) years
prior to the institution of the herein complaint. Certainly, the valuation of
properties therein can by no means be reflective of the current, prevailing
and fair value of the subject property. The Republic failed to present
evidence to controvert he RTCs finding on the matter. Neither has it shown
that the property sold thereunder shares the same features as the herein
subject property as to warrant a similar valuation. We cannot, thus, yield to
the Republics submission that its evidence are the proper basis in
determining just compensation for Asia Pacifics property.17
However, the CA modified the rate of interest imposed on the amount due as
just compensation from 12% to 6% in conformity with prevailing
jurisprudence.
On April 28, 2010, the CA denied petitioners motion for reconsideration,
stating that the argument on valuation by petitioner was merely a rehash of
what the CA had already passed upon.
Hence, this petition assailing the CAs affirmance of the trial courts award of
just compensation, the legal basis of which is allegedly insufficient.
Petitioner argues that the evidence for determining the amount of just
compensation in expropriation cases should be on those factors provided in
Section 5 of R.A. 8974. Considering such factors and the evidence submitted
by the parties before the trial court, petitioner maintains that just
compensation for the subject property should be no more than the zonal
valuation (300.00 per square meter), and in no case should it amount to the
market value of 1,300.00 per square meter adjudged by the trial and
appellate courts. Petitioner claims that such huge sum for only 2,024-square
meter portion of respondents 17,175-square meter property, is unbelievably
513
433.4% more than the 1998 BIR zonal value for an underdeveloped industrial
land at the time of its taking.
On the other hand, respondent contends that no reversible error was
committed by the CA in affirming the trial courts decision after considering all
the arguments raised by petitioner and the evidence on record. It asserts that
the main issue of just compensation and the findings thereon by the trial
court as affirmed by the CA is a question of fact which should not be
disturbed by this Court. Moreover, respondent asserts that the determination
by the trial court is entitled to the highest respect considering that the judge
has personal knowledge of the condition of the subject property, having
conducted an ocular inspection on September 23, 2004.
We grant the petition.
As a rule, a petition for review under Rule 45 of the Rules of Court covers
only questions of law. Questions of fact are not reviewable and cannot be
passed upon by this Court in the exercise of its power to review. The
distinction between questions of law and questions of fact is established. A
question of law exists when the doubt or difference centers on what the law
is on a certain state of facts. A question of fact, on the other hand, exists if
the doubt centers on the truth or falsity of the alleged facts.18 This being so,
the findings of fact of the CA are final and conclusive and this Court will not
review them on appeal.19
For a question to be one of law, the same must not involve an examination of
the probative value of the evidence presented by the litigants or any of them.
The resolution of the issue must rest solely on what the law provides on the
given set of circumstances.20 In this case, the only legal issue raised by
petitioner is whether the trial court based its determination of just
compensation on the factors provided under existing laws and jurisprudence.
Section 5 of R.A. 8974 enumerates the standards for assessing the value of
expropriated land taken for national government infrastructure projects, thus:
SECTION 5. Standards for the Assessment of the Value of the Land Subject
of Expropriation Proceedings or Negotiated Sale. In order to facilitate the
determination of just compensation, the court may consider, among other
well-established factors, the following relevant standards:
(a) The classification and use for which the property is suited;
(b) The developmental costs for improving the land;
(c) The value declared by the owners;
(d) The current selling price of similar lands in the vicinity;
(e) The reasonable disturbance compensation for the removal and/or
demolition of certain improvements on the land and for the value of
the improvements thereon;
(f) The size, shape or location, tax declaration and zonal valuation of
the land;
(g) The price of the land as manifested in the ocular findings, oral as
well as documentary evidence presented; and
(h) Such facts and events as to enable the affected property owners
to have sufficient funds to acquire similarly-situated lands of
approximate areas as those required from them by the government,
and thereby rehabilitate themselves as early as possible.
In this case, the trial court considered only (a) and (d): (1) the classification of
the subject property which is located in an area with mixed land use
(commercial, residential and industrial) and the propertys conversion from
agricultural to industrial land, and (2) the current selling price of similar lands
in the vicinity the only factors which the commissioners included in their
Report. It also found the commissioners recommended valuation of
1,000.00 to 1,500.00 per square to be fair and just despite the absence of
documentary substantiation as said prices were based merely on the
opinions of bankers and realtors.
In National Power Corporation v. Manubay Agro-Industrial Development
Corporation,21 the recommended price of the city assessor was rejected by
this Court. The opinions of the banks and the realtors as reflected in the
computation of the market value of the property and in the Commissioners
Report, were not substantiated by any documentary evidence.
Similarly, in National Power Corporation v. Diato-Bernal,22 this Court rejected
the valuation recommended by court-appointed commissioners whose
conclusions were devoid of any actual and reliable basis. The market values
of the subject propertys neighboring lots were found to be mere estimates
and unsupported by any corroborative documents, such as sworn
514
declarations of realtors in the area concerned, tax declarations or zonal
valuation from the BIR for the contiguous residential dwellings and
commercial establishments. Thus, we ruled that a commissioners report of
land prices which is not based on any documentary evidence is manifestly
hearsay and should be disregarded by the court.
We find that the trial court did not judiciously determine the fair market value
of the subject property as it failed to consider other relevant factors such as
the zonal valuation, tax declarations and current selling price supported by
documentary evidence. Indeed, just compensation must not be arrived at
arbitrarily, but determined after an evaluation of different factors.23
Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the takers gain,
but the owners loss. The word "just" is used to intensify the meaning of the
word "compensation" and to convey thereby the idea that the equivalent to
be rendered for the property to be taken shall be real, substantial, full, and
ample. Such "just"-ness of the compensation can only be attained by using
reliable and actual data as bases in fixing the value of the condemned
property.24 Trial courts are required to be more circumspect in its evaluation
of just compensation due the property owner, considering that eminent
domain cases involve the expenditure of public funds.25
We agree with the trial court that it was not bound by the assessment report
of the commissioners and that it had the discretion to reject the same and
substitute its own judgment on its value as gathered from the record, or it
may accept the report/recommendation of the commissioners in toto and
base its judgment thereon. However, the decision of the court must be based
on all established rules, upon correct legal principles and competent
evidence.26The court is proscribed from basing its judgment on speculations
and surmises.
Nonetheless, we cannot subscribe to petitioners argument that just
compensation for the subject property should not exceed the zonal valuation
(300.00 per square meter).
In Republic v. Court of Appeals,27 we held that --
The constitutional limitation of "just compensation" is considered to be the
sum equivalent to the market value of the property, broadly described to be
the price fixed by the seller in open market in the usual and ordinary course
of legal action and competition or the fair value of the property as between
one who receives, and one who desires to sell, it fixed at the time of the
actual taking by the government. x x x
Zonal valuation is just one of the indices of the fair market value of real
estate. By itself, this index cannot be the sole basis of "just compensation" in
expropriation cases.28 As this Court ruled in Leca Realty Corporation v. Rep.
of the Phils.29:
The Republic is incorrect, however, in alleging that the values were
exorbitant, merely because they exceeded the maximum zonal value of real
properties in the same location where the subject properties were located.
The zonal value may be one, but not necessarily the sole, index of the value
of a realty. National Power Corporation v. Manubay Agro-Industrial held thus:
"x x x [Market value] is not limited to the assessed value of the property or to
the schedule of market values determined by the provincial or city appraisal
committee. However, these values may serve as factors to be considered in
the judicial valuation of the property."
The above ruling finds support in EPZA v. Dulay in this wise:
"Various factors can come into play in the valuation of specific properties
singled out for expropriation.1wphi1 The values given by provincial
assessors are usually uniform for very wide areas covering several barrios or
even an entire town with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such
generalities as its possible cultivation for rice, com, coconuts or other crops.
Very often land described as 'cogonal' has been cultivated for generations.
Buildings are described in terms of only two or three classes of building
materials and estimates of areas are more often inaccurate than correct. Tax
values can serve as guides but cannot be absolute substitutes for just
compensation." (Emphasis supplied.)
Among the factors to be considered in arriving at the fair market value of the
property are the cost of acquisition, the current value of like properties, its
actual or potential uses, and in the particular case of lands, their size, shape,
location, and the tax declarations thereon. The measure is not the taker's
gain but the owner's loss.30 To be just, the compensation must be fair not
only to the owner but also to the taker.31
It is settled that the final conclusions on the proper amount of just
compensation can only be made after due ascertainment of the requirements
set forth under R.A. 8974 and not merely based on the declarations of the
515
parties.32 Since these requirements were not satisfactorily complied with, and
in the absence of reliable and actual data as bases in fixing the value of the
condemned property, remand of this case to the trial court is in order.
WHEREFORE, the petition for review on certiorari is GRANTED. The
Decision dated July 21, 2009 and Resolution dated April 28, 2010 of the
Court of Appeals in CA-G.R. CV No. 90539 are hereby SET ASIDE.
This case is remanded to the trial court for the proper determination of just
compensation, in conformity with this Decision.
SO ORDERED.
REPRESENTED BY EXECUTIVE SECRETARY EDUARDO ERMITA,
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS,
MANILA INTERNATIONAL AIRPORT AUTHORITY, AND PHILIPPINE
INTERNATIONAL AIR TERMINALS COMPANY, INC.Respondents.
[G.R. No. 209731]
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC. PETITIONER,
VS. REPUBLIC OF THE PHILIPPINES, AS REPRESENTED BY
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, MANILA
INTERNATIONAL AIRPORT AUTHORITY, TAKENAKA CORPORATION,
AND ASAHIKOSAN CORPORATION, Respondents.

MARTIN S. VILLARAMA, JR. DECISION

Associate Justice
BRION, J.:
WE CONCUR:
Before the Court are the consolidated petitions for review
G.R. No. 181892, September 08, 2015 on certiorari assailing the Decision dated August 22, 2013, and the
Resolution dated October 29, 2013, of the Court of Appeals (CA) in CA-G.R.
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY EXECUTIVE CV No. 98029; and the petition for certiorari assailing the May 3, 2007; May
SECRETARY EDUARDO R. ERMITA, THE DEPARTMENT OF 18, 2008; and January 7, 2008 Decision of the Regional Trial Court (RTC) of
TRANSPORTATION AND COMMUNICATIONS, AND MANILA Pasay City, Branch 117, in Civil Case No. 04-0876.1cralawrednad
INTERNATIONAL AIRPORT AUTHORITY, Petitioners, v. HON. JESUS M.
MUPAS, IN HIS CAPACITY AS ACTING PRESIDING JUDGE OF THE In CA-G.R. CV No. 98029, the CA ordered petitioners Republic of the
REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, Philippines, Department of Transportation and Communications, and Manila
BRANCH 117, PASAY CITY, AND PHILIPPINE INTERNATIONAL AIR International Airport Authority (Government for brevity) to pay the Philippine
TERMINALS CO., INC., Respondents. International Airport Terminals Co., Inc. (PIATCO) the amount of
$371,426,688.24 with interest at 6% per annum as just compensation for the
[G.R. No. 209917] expropriation of the Ninoy Aquino International Airport Passenger Terminal III
(NAIA-IPT III).2cralawrednad
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF In Civil Case No. 04-0876, the RTC appointed DG Jones and Partners as an
TRANSPORTATION AND COMMUNICATIONS, AND MANILA independent appraiser of the NAIA-IPT III, and ordered the Government to
INTERNATIONAL AIRPORT AUTHORITY, Petitioners, v. PHILIPPINE submit a Certificate of Availability of Funds to cover DG Jones and Partners
INTERNATIONAL AIR TERMINALS COMPANY, INC., TAKENAKA appraisal fee of $1,900,000.00.
CORPORATION AND ASAHIKOSAN CORPORATION,Respondents.
For ease of presentation, the Courts discussion shall be under the following
[G.R. No. 209696] structure:ChanRoblesvirtualLawlibrary

TAKENAKA CORPORATION AND ASAHIKOSAN I. The Factual Antecedents

CORPORATION, Petitioners, v. REPUBLIC OF THE PHILIPPINES,

516
 A. The NAIA-IPT IIII Contract and PIATCO B. The RTCs Interlocutory Order on the Validity of the Escrow
Account
1. The NAIA-IPT III Contract
2. PIATCO 1. The Government and the Creation of an Escrow Account
3. PIATCO and the Services of Takenaka and for the Payment of Just Compensation
Asahikosan 2. The Omnibus Order dated October 11, 2011

B. The Agan v. PIATCO Case, G.R. No. 155001 III. The CA Rulings

1. The Case and the Decision dated May 5, 2003 A. CA-G.R. CV No. 98029
2. The Motion for Reconsideration and the Resolution dated
January 21, 2004 B. CA-G.R. SP. No. 123221

C. The Expropriation Case, Civil Case No. 04-0876

D. The Republic v. Gingoyon Case, G.R. No. 166429 IV. The Action to Enforce the London Awards, Civil Case No. 06-171
1. The Case and the Decision dated December 19, 2005
V. The Parties Positions
2. The Motion for Reconsideration and the Resolution dated
A. The Governments Position
February 1, 2006
B. PIATCOs Position
E. Proceedings in Civil Case No. 04-0876 after the Finality of
the Gingoyon Case
C. Takenaka and Asahikosans Position
1. The Appointment of DG Jones and Partners as an
Independent Appraiser
2. The BOCs Expenses
VI. The Issues
F. The Parties and the BOCs Appraisal of the NAIA-IPT III
VII. The Courts Rulings
1. The Governments Appraisal
2. PIATCOs Appraisal A. G.R. Nos. 209917, 209696, and 209731
3. Takenaka and Asahikosans Appraisal
4. The BOCs Appraisal 1. The parties were afforded procedural due process
despite their non-receipt of the BOC Final Report
prior to the promulgation of the May 23, 2011
Decision in Civil Case No. 04-0876.
II. The RTC Rulings in Civil Case No. 04-0876
2. Framework: Eminent domain is an inherent power of
A. The Main Decision the State

517
 5. Deductions to the Replacement Cost of the NAIA-
2.a. The power of eminent domain is a fundamental IPT III
state power that is inseparable from sovereignty
5.a. Depreciation should be deducted from the
2.b. Just compensation is the full and fair equivalent replacement cost
of the property taken from the owner by the
condemnor 5.b. Rectification for contract compliance should not
be deducted from the replacement cost
2.b.1. Fair market value is the general standard of
value in determining just compensation 6. Adjustments to the Replacement Cost

2.b.2 Replacement cost is a different standard of 6.a. The replacement cost should be adjusted to
value from fair market value December 2004 values

2.b.3. Replacement cost is only one of the standards 7. Interests, Fruits, and Income
that the Court should consider in appraising the
NAIA-IPT III 7.a. Computation of Interests
7.b. PIATCO is not entitled to the fruits and income
2.b.4. The use of depreciated replacement cost of the NAIA- IPT III
method is consistent with the principle that the
property owner should be compensated for his 8. The BOCs Expenses
actual loss
8.a. Takenaka and Asahikosan should not share in
3. Construction cost of the NAIA-IPT III the BOCs expenses

3.a. The base valuation of the NAIA-IPT III 9. PIATCO as the Proper Recipient of Just
3.b. Structural defects on the NAIA-IPT III Compensation

3.b.1. The Court cannot consider the additional 9.a. Takenaka and Asahikosans intervention in the
evidence submitted by Takenaka and Asahikosan case as unpaid subcontractors is proper
before the Court of Appeals 9.b. The property owner is entitled to just
compensation
3.b.2. Equiponderance of evidence on the alleged 9.c. A final disposition in the eminent domain case
structural defects of the NAIA-IPT III favors PIATCO, with respect to the order of payment to a particular
Takenaka, and Asahikosan person shall be final and executory
9.d. The determination of whether the NAIA-IPT III
3.c. The unnecessary areas shall be burdened by liens and mortgages even after
the full payment of just compensation is premature
4. Attendant cost of the NAIA-IPT III
10. The exercise of eminent domain from the
4.a. PIATCOs attendant cost perspective of taking.
4.b. The BOC and the RTCs attendant cost
4.c. The Governments attendant cost 10.a. The Government may take the property for

518
 public purpose or public use upon the issuance and After finding that Paircargo Consortium submitted a bid superior to the
effectivity of the writ of possession AEDCs unsolicited proposal and after the AEDCs failure to match the
competitive bid, the DOTC awarded, through a notice of award, the NAIA-IPT
III project to the Paircargo Consortium (that later organized itself as
PIATCO).7cralawrednad
B. G.R. No. 181892
On July 12, 1997, the Government executed a Concession Agreement with
PIATCO for the construction, development, and operation of the NAIA-IPT III
1. The issue on the appointment of an independent
under a build-operate-transfer scheme. On November 26, 1998, the
appraiser is already moot and academic
Amended and Restated Concession Agreement (ARCA) superseded the
1997 Concession Agreement. The Government and PIATCO likewise
entered into a series of supplemental agreements, namely: the First
I. The Factual Antecedents Supplement signed on August 27, 1999; the Second Supplement signed on
September 4, 2000; and the Third Supplement signed on June 22,
A. The NAIA-IPT III Contract and PIATCO 2001.8cralawrednad
1. The NAIA-IPT III Contract Under the 1997 Concession Agreement, the ARCA and the Supplemental
Agreement (for brevity, PIATCO contracts), the Government authorized
On October 5, 1994, Asias Emerging Dragon Corp. (AEDC) submitted an PIATCO to build, operate, and maintain the NAIA-IPT III during the
unsolicited proposal to the Government through the Department of concession period of twenty-five (25) years.9cralawrednad
Transportation and Communications (DOTC) and the Manila International
Airport Authority (MIAA) for the construction and development of the NAIA- 3. PIATCO and the Services of Takenaka and Asahikosan
IPT III under a build-operate-and-transfer (BOT) arrangement. The DOTC
and the MIAA invited the public to submit competitive and comparative On March 31, 2000, PIATCO engaged the services of Takenaka, a local
proposals to AEDCs unsolicited proposal in accordance with the BOT branch of a foreign corporation duly organized under the laws of Japan and
Law3 and its implementing rules.4cralawrednad doing business in the Philippines, for the construction of the NAIA-
IPT III under an Onshore Construction Contract.10cralawrednad
2. PIATCO
On the same date, PIATCO, through an Offshore Procurement
On September 20, 1996, Paircargo Consortium composed of Peoples Air Contract,11 likewise contracted the services of Asahikosan, a foreign
Cargo and Warehousing Co., Inc. (Paircargo), Philippine Air and Grounds corporation duly organized under the laws of Japan, for the design,
Services, Inc. (PAGS), and Security Bank Corporation (Security Bank) manufacture, purchase, test and delivery of the Plant12 in the NAIA-IPT III.
submitted its competitive proposal to the Prequalification Bids and Awards
Committee (PBAC).5cralawrednad In May 2002, PIATCO defaulted on its obligation to pay Takenaka and
Asahikosan pursuant to their respective contracts. To settle the problem,
Both AEDC and Paircargo Consortium offered to build the NAIA-IPT III for at Takenaka and Asahikosan agreed to defer PIATCOs payments until June
least $350 million at no cost to the Government and to pay the Government: 2003, conditioned on their receipt of adequate security from PIATCO as
5% share in gross revenues for the first five years of operation, 7.5% share in stipulated in the Fourth Supplemental Agreement (relating to the Onshore
gross revenues for the next ten years of operation, and 10% share in gross Construction Contract)13 and the Fourth Supplement Agreement (relating to
revenues for the last ten years of operation. However, Paircargo Consortium the Offshore Procurement Contract), respectively.14cralawrednad
offered to pay the Government a total of P17.75 billion as guaranteed
payment for 27 years while AEDC offered to pay the Government a total of On November 29, 2002, President Gloria Macapagal Arroyo declared in her
P135 million for the same period.6cralawrednad speech that the Government would not honor the PIATCO contracts. On
the same day, Takenaka and Asahikosan notified PIATCO that they
519
were suspending the construction of the NAIA-IPT III for PIATCOs failure
to provide adequate security.15cralawrednad
B. The Agan v. PIATCO Case, G.R. No. 155001
The Case and the Decision dated May 5, 2003
On September 17, 2002, petitioners Demosthenes Agan, et al., asked the
Court to nullify the PIATCO contracts, and to prohibit the DOTC and the
MIAA from implementing these contracts for being contrary to law. The case,
entitled Agan v. PIATCO, was docketed as G.R. No. 155001.16cralawrednad
On May 5, 2003, the Court nullified the PIATCO contracts after finding that
Paircargo Consortium (that later incorporated into PIATCO) was not a duly
pre-qualified bidder for failure to meet the minimum equity requirements for
the NAIA-IPT III project, as required under the BOT Law and the Bid
Documents. The Court also ruled that Security Bank (member of the
Paircargo Consortium) invested its entire net worth in a single undertaking or
enterprise in gross violation of Section 21-B of the General Banking
Act (which limits a commercial banks equity investment, whether allied or
non-allied, to fifteen percent (15%) of its net worth). 17 The Court further found
that the PIATCO contracts contained provisions that substantially
departed from the draft Concession Agreement. These substantial
modification of the PIATCO contracts violated the public policy for being
repugnant to the principle that all bidders must be on equal footing during the
public bidding.18cralawrednad
The Motion for Reconsideration and the Resolution dated January 21,
2004We denied PIATCO, et al.s motion for reconsideration in our January
21, 2004 resolution.19 Significantly, we stated in the resolution that
the Government should first pay PIATCO as a prerequisite before taking
over the NAIA-IPT III, to wit:ChanRoblesvirtualLawlibrary
This Court, however, is not unmindful of the reality that the structures
comprising the NAIA-IPT III facility are almost complete and that funds have
been spent by PIATCO in their construction. For the Government to take
over the said facility, it has to compensate respondent PIATCO as
builder of the said structures. The compensation must be just and in
accordance with law and equity for the Government cannot unjustly
enrich itself at the expense of PIATCO and its investors.20 (Underlines
and emphases ours)
C. The Expropriation Case, Civil Case No. 04-087621cralawrednad
On December 21, 2004, the Government filed a complaint for
expropriation of the NAIA-IPT III before the RTC of Pasay, Branch 117. The
Government informed the RTC that it had deposited with the Land Bank of
the Philippines (Land Bank) the amount of P3,002,125,000.00, representing
the NAIA-IPT IIIs assessed value.22cralawrednad
On the same day, the RTC issued a writ of possession in favor of the
Government. Citing City of Manila v. Serrano,23 the RTC held that that it had
the ministerial duty to issue a writ of possession upon: (1) the filing of the
complaint for expropriation sufficient in form and substance, and (2) the
Governments deposit of the amount equivalent to the propertys assessed
value, pursuant to Rule 67 of the Rules of Court.24cralawrednad
On January 4, 2005, the RTC modified its December 21, 2004 order and
directed: (1) the Land Bank to immediately release to PIATCO the amount of
US$62,343,175.7725cralawred that would be deducted from the just
compensation; (2) the Government to submit to the RTC a Certificate of
Availability of Funds for the payment of just compensation; and (3) the
Government to maintain and preserve the NAIA-IPT III pending the
expropriation proceedings and the full payment of just compensation. The
RTC likewise prohibited the Government from performing acts of ownership
over the NAIA-IPT III such as awarding concessions or leasing any part of
the NAIA-IPT III to other parties.26cralawrednad
The Government sought reconsideration of the January 4, 2005 Order,
arguing that Rule 67 of the Rules of Court, and not RA 8974, applied to the
case since the NAIA-IPT III was not a national government infrastructure
project.27cralawrednad
RA 8974 is otherwise known as An Act To Facilitate The Acquisition Of
Right-Of-Way, Site Or Location For National Government Infrastructure
Projects And For Other Purposes.
The Government argued that under Section 2, Rule 67 of the Rules of Court,
it shall have the right to a writ of possession upon deposit with the authorized
government depositary of an amount equivalent to the assessed value of the
property for purposes of taxation, which amount shall be held by the
depositary subject to the orders of the court. In contrast, Section 4 of RA
8974, as a rule, requires the Government to immediately pay the property
owner the amount equivalent to 100% of the value of the property based on
the BIRs relevant zonal valuation and the value of the improvements/and or
structures, upon the filing of the complaint and after due notice to the
defendant.
On January 7, 2005, the RTC appointed three Commissioners28 to
520
determine just compensation without consulting the Government and
PIATCO.29Due to these successive adverse rulings, the Government sought
to inhibit Judge Henrick F. Gingoyon, the RTCs presiding judge, from
hearing the case.30(The judge was ambushed and killed on December 31,
2005.)31cralawrednad
On January 10, 2005, the RTC denied the Governments urgent motion for
reconsideration and motion for inhibition.32cralawrednad
On December 14, 2005, Asahikosan filed a motion for leave to intervene in
Civil Case No. 04-0876 (the expropriation case).33 On the other hand,
Takenaka filed a Manifestation dated December 15, 2005,34 with the
attached Manifestation and Motion dated December 14, 2005. 35 Takenaka
alleged that the Government impleaded it as an additional defendant in an
amended complaint for expropriation of the NAIA-IPT III, but was not served
summons. Takenaka thus manifested its voluntary appearance before the
RTC.36cralawrednad
Takenaka and Asahikosan informed the RTC that they had previously filed
two collection cases against PIATCO, docketed as Claim Nos. HT-04-248
and HT-05-269, before the High Court of Justice, Queens Bench Division,
Technology and Construction Court in London, England, (London Court) on
August 9, 2004.
In both instances, the London Court ruled in their favor. The dispositive part
of the judgment award in Claim No. HT-04-248
provides:ChanRoblesvirtualLawlibrary
IT IS ORDERED THAT:
1. Judgment be entered for the First Claimant37 in the sum of
6,602,971.00 United States dollars, together with interest in the sum
of 116,825,365.34 Philippine pesos up to and including 18 February
2005.
2. Judgment be entered for the Second Claimant38 in the sum of
8,224,236.00 United States dollars, together with interest in the sum
of 2,947,564.87 United States dollars up to and including 18
February 2005, being a total of 11,171,800.87 United States dollars.
3. Save for the costs of and caused by the amendment of the
particulars of claim, which will be the subject of a separate Order, the
Defendant do pay the First Claimants and the Second Claimants
costs in the action, to be subject to detailed assessment if not
agreed.
DATED this 18th day of February 2005.39
On the other hand, the dispositive part of the judgment award in Claim No.
HT-05-269 states:ChanRoblesvirtualLawlibrary
IT IS ORDERED THAT:
1. Judgment be entered for the First Claimant in the sum of
21,688,012.18 United States dollars, together with interest in the
sum of 6,052,805.83 United States dollars.
2. Judgment be entered for the Second Claimant in the sum of
30,319,284.36 United States dollars, together with interest in the
sum of 5,442,628.26 United States dollars.
3. The defendant to pay the Claimants costs in the action, to be subject
to detailed assessment if not agreed.
DATED this 2 (sic) day of December 2005.40
Takenaka and Asahikosan asked the RTC to: (a) hold in abeyance the
release of just compensation to PIATCO until the London awards are
recognized and enforced in the Philippines; and (b) order that the just
compensation be deposited with the RTC for the benefit of PIATCOs
creditors.41cralawrednad
During the hearing of the motions, the Government clarified that it neither
filed an amended complaint for expropriation nor impleaded Takenaka as a
necessary party in the case.42cralawrednad
The RTC initially denied Takenaka and Asahikosans respective motions 43 in
the August 8, 2006 Order, but subsequently reconsidered its ruling. 44In a
March 12, 2007 Order, the RTC treated Takenakas Manifestation with
the attached Manifestation and Motion as a motion to intervene and
allowed Takenaka and Asahikosan to intervene in the case as PIATCOs
creditors.45cralawrednad
Pending the RTCs resolution of Takenaka and Asahikosans motions for
leave to intervene in the expropriation case, the Government went directly to
the Court seeking Judge Gingoyons inhibition from the case; the nullification
of the order of release of the sum of $62.3 million to PIATCO; and the
nullification as well of the appointment of the commissioners.
D. The Republic v. Gingoyon Case, G.R. No. 166429
1. The Case and the Decision dated December 19, 2005
521

On January 12, 2005, the Government, et al., filed a petition for certiorari with
the Court assailing the validity of the January 4, 7, and 10, 2005 orders of
the RTC in the expropriation case.46 The case, entitled Republic v.
Gingoyon, was docketed as G.R. No. 166429.
The Government argued that the RTC should not have ordered the release
of $62.3 Million since the NAIA-IPT IIIs assessed value was only P3 billion.
Moreover, the RTCs prohibition against the Government to perform acts of
ownership on the NAIA-IPT III was contrary to the essence of a writ of
possession. It47 asserted that Rule 67 of the Rules of Court governed the
expropriation of the NAIA-IPT III since it was not a national government
infrastructure project.
The Government likewise contended that the commissioners appointment
was void. It claimed that it had been deprived of due process since it was not
given the opportunity to contest the appointment of the commissioners. The
Government likewise sought Judge Gingoyons inhibition from the case due
to his alleged manifest partiality to PIATCO.48cralawrednad
The Court partly granted the petition and rendered the following
rulings:ChanRoblesvirtualLawlibrary
First, under the 2004 Resolution in Agan: (a) PIATCO must receive payment
of just compensation determined in accordance with law and equity; and (b)
the Government is barred from taking over the NAIA-IPT III until just
compensation is paid.
Second, RA 8974 applies in the expropriation case insofar as the law: (a)
requires the Government to immediately pay PIATCO at least the proffered
value of the NAIA-IPT III; and (b) provides valuation standards in determining
the amount of just compensation.
RA 8974 is the governing law in cases where the national government
expropriates property for the purpose of commencing national government
infrastructure projects such as the construction of the NAIA-IPT III. However,
Rule 67 of the Rules of Court applies in determining the assessed value and
the mode of deposit of just compensation if the national government initiates
the expropriation complaint for purposes other than national infrastructure
projects.
Under both Rule 67 of the Rules of Court and RA 8974, the Government
initiates the expropriation by filing an expropriation complaint. However, the
rules on the mode of deposit differ because Rule 67 of the Rules of Court
merely requires the Government to deposit the assessed value of the
property sought to be expropriated with an authorized government depositary
before the issuance of a writ of possession.
In contrast, RA 8974 commands the Government to make a direct
payment to the property owner prior to the issuance of a writ of
possession. Under RA 8974, the payment shall be based on: (a) the
BIRs zonal valuation in case of land; and (b) the value of the
improvements or structures under the replacement cost method. If the
completion of a government infrastructure project is of utmost urgency
and importance and if there is no existing valuation of the property, the
implementing agency shall immediately pay the proffered value of the
property.49cralawrednad
We thus observed that Section 2, Rule 67 of the Rules of Court is contrary to
our January 21, 2004 Resolution which required the Government to make
prior payment of just compensation to PIATCO before it could take over the
NAIA-IPT III.
The Court at the same time qualified the applicability of RA 8974 to the
expropriation of the NAIA-IPT III. We held that the Congress may legislate on
the valuation standards of just compensation and the manner of its payment
since these are substantive matters. We made clear, however, that the
Congress cannot legislate on the procedural aspects of expropriation
since this power lies with the Court. In fact, Section 14 of RA 8974 IRR
provides that Rule 67 of the Rules of Court shall apply to all matters
regarding defenses and objections to the complaint, issues on uncertain
ownership and conflicting claims, effects of appeal on the rights of the
parties, and such other incidents affecting the complaint.
Third, we held in abeyance the implementation of the writ of possession until
the Government directly pays to PIATCO the proffered value of P3 billion.
The zonal valuation method under Section 4 of RA 8974 shall not apply since
the Government owns the land on which the NAIA-IPT III stands.
Consequently, PIATCO should only be paid the value of the improvements
and/or structures using the replacement cost method.50 Pending the
determination of just compensation, the Government shall pay the sum of P3
billion as the provisional amount of just compensation because there was no
expedited means by which the Government could immediately take
possession of the NAIA-IPT III.
We also stated that the replacement cost method is only one of the
factors to be considered in determining just compensation. Equity
should likewise be considered in determining just compensation.
522

Fourth, we authorized the Government to perform acts essential to the
operation of the NAIA-IPT III as an international airport terminal once
the writ of possession becomes effective. This authority covers the repair,
reconditioning, and improvement of the complex; maintenance of the existing
facilities and equipment; installation of new facilities and equipment;
provision of services and facilities pertaining to the facilitation of air traffic and
transport; and other services that are integral to a modern-day international
airport. This is consistent with Section 4 of RA 8974 which provides that the
court shall immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project upon
fulfillment of certain conditions.
This ruling qualified the Courts statement in its January 21, 2004 Resolution
that [f]or the Government to take over the said facility, it has to compensate
respondent PIATCO as builder of the said structures. Nonetheless, we
clarified that the title to the NAIA-IPT III shall pass to the Government
only upon full payment of the just compensation since the proffered value
is merely a provisional determination of just compensation.
Fifth, we ordered the RTC to complete its determination of just
compensation within sixty (60) days from finality of our decision since it was
no longer possible for the RTC to determine just compensation within sixty
(60) days from the filing of the complaint under Section 4 of RA 8974.
Sixth, the RTC did not gravely abuse its discretion in appointing the
commissioners. Neither Rule 67 of the Rules of Court nor RA 8974 requires
the RTC to consult the parties in the expropriation case prior to the
appointment of commissioners. We also stated that Rule 67 of the Rules
of Court shall apply insofar as it is consistent with RA 8974, the IRR,
and the Courts rulings in Agan.
Considering that the expropriation proceedings were effectively suspended
seven days after the appointment of the commissioners, the parties may file
their objections with the RTC within five days from finality of the decision in
accordance with Section 5, Rule 67 of the Rules of Court.
Seventh, there was no ground to order Judge Gingoyons inhibition since the
Government failed to show his alleged partiality. 51cralawrednad
The dispositive portion of the Decision states:ChanRoblesvirtualLawlibrary
WHEREFORE, the Petition is GRANTED in PART with respect to the orders
dated 4 January 2005 and 10 January 2005 of the lower court. Said orders
are AFFIRMED with the following MODIFICATIONS:cralawlawlibrary
1) The implementation of the Writ of Possession dated 21 December 2005 is
HELD IN ABEYANCE, pending payment by petitioners to PIATCO of the
amount of Three Billion Two Million One Hundred Twenty Five Thousand
Pesos (P3,002,125,000.00), representing the proffered value of the NAIA-IPT
III facilities;
2) Petitioners, upon the effectivity of the Writ of Possession, are authorized
[to] start the implementation of the Ninoy Aquino International Airport
Pasenger Terminal III project by performing the acts that are essential to the
operation of the said International Airport Passenger Terminal project;
3) RTC Branch 117 is hereby directed, within sixty (60) days from finality of
this Decision, to determine the just compensation to be paid to PIATCO by
the Government.
The Order dated 7 January 2005 is AFFIRMED in all respects subject to the
qualification that the parties are given ten (10) days from finality of this
Decision to file, if they so choose, objections to the appointment of the
commissioners decreed therein.
The Temporary Restraining Order dated 14 January 2005 is hereby LIFTED.
No pronouncement as to costs.52
2. The Motion for Reconsideration and the Resolution dated February 1,
2006
On January 2, 2006, the Government, et al., filed a motion for partial
reconsideration of the Courts December 19, 2005 Decision. 53 Asahikosan,
Takenaka, and Rep. Salacnib F. Baterina also filed a motion for leave to
intervene and asked the Courts reconsideration of its December 19, 2005
Decision.54cralawrednad
The Government raised the question of who between PIATCO, on the one
hand, and Takenaka and Asahikosan, on the other was the NAIA-IPT IIIs
builder. The Government informed the Court that Takenaka and Asahikosan,
as the unpaid contractors in the NAIA-IPT III project, claimed significant liens
on the NAIA-IPT III. The Government opined that it would end up
expropriating the NAIA-IPT III with liens and claims in excess of its actual
value if the proffered value would be directly released to PIATCO.
As PIATCOs unpaid creditors, Takenaka and Asahikosan intervened in the
523
case. They relied on Mago v. Court of Appeals55 as basis for their
intervention. In that case, the Court took the extraordinary step of allowing
the motion for intervention even after the challenged order of the trial court
had already become final. On the other hand, Rep. Baterina invoked his
prerogative as legislator and taxpayer to curtail the payment of just
compensation without any appropriation in PIATCOs favor.
The Court denied the motions and held that the alleged liens over the NAIA-
IPT III have not been judicially established. Takenaka and Asahikosan were
not parties to Gingoyon and did not present their claims before the Court.
The Court did not make any declaration regarding Takenaka and
Asahikosans rights to any form of compensation for the construction of the
NAIA-IPT III.
Moreover, the Court did not recognize the London awards in favor of
Takenaka and Asahikosan. Under Section 48, Rule 39 of the Rules of Court,
a foreign judgment would not bind Philippine courts unless the judgment is
recognized and enforced in this jurisdiction. Philippine courts may annul a
foreign judgment for lack of jurisdiction, lack of notice to the party, collusion,
fraud, clear mistake of law or fact, or when the foreign judgment is contrary to
public policy. Even assuming that PIATCO is indeed liable to other parties,
the creditors have other judicial avenues to ventilate and prove their claims
against PIATCO.
The Court also categorically stated that PIATCO, as builder of the NAIA-
IPT III, must first receive just compensation in accordance with law and
equity before the Government may take over the NAIA-IPT III.
The Court likewise denied the motions for intervention for serious procedural
errors. Under Section 2, Rule 19 of the Rules of Court, the motion to
intervene should be filed before the courts rendition of judgment, and not
after the resolution of the case. Moreover, Takenaka and Asahikosan failed
to establish their legal interest in the case since their claims against PIATCO
have not been conclusively established in this jurisdiction.56cralawrednad
E. Proceedings in Civil Case No. 04-0876 after the Finality of
the Gingoyon Case
1. The Appointment of DG Jones and Partners as an Independent
Appraiser
On April 11, 2006, the RTC ordered the BOC to resume its duties. In
compliance, the BOC submitted its Inception Report and Inception
Framework to the RTC. On April 24, 2007, the parties and the BOC
conferred to set the ground rules and procedure in determining the just
compensation due to the NAIA-IPT III.
On April 26, 2006, the Government asked the RTC to stop the payment of P3
billion proffered value in view of an alleged supervening event the collapse
of the ceiling of the arrival lobby section of the north side of the NAIA-IPT III
on March 27, 2006. The Government claimed that the collapse created a
100-square foot hole in the ceiling and caused heavy asbestos pipes to fall
on the floor of the NAIA-IPT III. The Government likewise informed the Court
that the MIAA requested the Association of Structural Engineers of the
Philippines (ASEP) to investigate the cause of the collapse.57 In its Final
Report dated June 2006, the ASEP identified the following factors that
contributed to the collapse:ChanRoblesvirtualLawlibrary
a. Incomplete design coordination as shown by the absence of detailed
shop drawings during the construction, an absence described as
unusual for a BOT project of this size
b. Wrong choice of ceiling and wall components and fixing materials,
e.g., use of rivets instead of clips, screws or wire; use of furring
channels instead of stronger C channels; use of wall angles thinner
than required; and
c. Poor workmanship, e.g., uneven distribution and improper
attachment of rivets, lack of ceiling supports in the presence of
mechanical fixtures.58
The ASEP concluded that the likely cause of the collapse was the syncretic
effect of all these factors working over time since the construction of the
ceiling.59cralawrednad
Upon the BOCs request,60 on May 5, 2006, the RTC ordered the
engagement of the services of an internationally accepted independent
appraiser who shall conduct the valuation of the NAIA-IPT III.61cralawrednad
On May 23, 2006, the Government manifested that it engaged the services
of: (a) TCGI Engineer to determine the structural integrity of NAIA-IPT III; (b)
Ove Arup & Partners Massachusetts, Inc. (Ove Arup) to conduct a design
and technical review of the NAIA-IPT III and to conduct a peer review of
TCGI Engineers methodology and test results; and (c) Gleeds International
to determine the value of the NAIA-IPT III.62cralawrednad
On June 20, 2006, the RTC ordered Land Bank to immediately release the
524
amount of P3 billion to PIATCO. The RTC ruled that the collapse of a portion fund of P1,600,000.00 to support the discharge of its functions. 72 The RTC
of the NAIA-IPT III was not a supervening event that would hinder the approved the request and directed the Government and PIATCO to equally
payment of the proffered value to PIATCO. In compliance with this order, share the BOCs expenses.73The Government and PIATCO complied with
the Government tendered to PIATCO a P3 billion check on September this order and tendered the sum of P1,600,000.00 to the
11, 2006. On the same day, the RTC reinstated the writ of possession in BOC.74cralawrednad
favor of the Government.63cralawrednad
On November 24, 2009, the BOC requested additional funds in the amount
Thereafter, the Government and PIATCO submitted their list of nominees for of P5,250,000.00.75 On December 7, 2010, the RTC directed the
the appointment of an independent appraiser.64 On May 3, 2007, the RTC Government and PIATCO to equally defray the BOCs expenses.76 The
appointed DG Jones and Partners as independent Government contested this order and insisted that Takenaka and Asahikosan
appraiser.65cralawrednad should likewise shoulder the BOCs expenses as intervenors in the
case.77cralawrednad
On May 18, 2007, the RTC directed the Government to submit a Certificate
of Availability of Funds to cover DG Jones and Partners $1.9 Million In an order dated March 11, 2011, the RTC ordered Takenaka and
appraisal fee.66cralawrednad Asahikosan to share in the BOCs expenses. The RTC thus ordered each
party to pay P1,750,000.00. PIATCO complied with this order and paid the
The Government sought the reconsideration of the May 3 and 18, 2007 amount of P1,750,000.00 to the BOC.78cralawrednad
orders. The Government complained that the appointment of an appraiser
apart from those hired by the Government would result in the unnecessary Takenaka and Asahikosan sought the partial reconsideration of this order.
depletion of its funds since it would be compelled to pay two They argued that they should not be made to pay the BOCs expenses since
appraisers.67cralawrednad their prayer to defer the release of a portion of the just compensation
pending the conclusion of the enforcement proceedings was addressed to
In response, PIATCO argued that the RTC has the inherent power to appoint the RTC [,] and not to the BOC.79cralawrednad
an independent appraiser pursuant to Section 5 (g), Rule 135 of the Rules of
Court. The RTC has wide discretion on how it shall carry its mandate under F. The Parties and the BOCs Appraisal of the NAIA-IPT III
RA 8974 and Rule 67 of the Rules of Court.68cralawrednad
After the Court issued the January 9, 2008 temporary restraining
In an order dated January 7, 2008, the RTC sustained the appointment order, the parties and the BOC conducted a preliminary conference on April
of DG Jones and Partners. The RTC ruled that its power to appoint the 22, 2010, to adopt an alternative course of action to avoid further delay in the
members of the BOC under Section 5, Rule 67 of the Rules of Court includes determination of just compensation.80cralawrednad
the power to appoint an independent appraiser. 69cralawrednad
The Government manifested that it was ready to present its own valuation of
The Government directly challenged before the Court the May 3, May 18, the NAIA-IPT III and other supporting evidence. PIATCO, Takenaka, and
and January 7, 2008 orders in a petition for certiorari with prayer for the Asahikosan did not object to this manifestation.81cralawrednad
issuance of a temporary restraining order and/or a writ of preliminary
injunction. The case was docketed as G.R. No. 181892.70cralawrednad On August 5, 2010, the RTC ordered the parties to submit their appraisal
reports of NAIA-IPT III with supporting documents and
On January 9, 2008, the Court issued a temporary restraining order affidavits.82 The Government appraised the NAIA-IPT III
against the implementation of the May 3 and 18, 2007 Orders as well as at $149,448,037.00 while PIATCO concluded that its replacement cost
the January 7, 2008 Order.71cralawrednad was $905,867,549.47. On the other hand, Takenaka and
Asahikosan claimed that the NAIA-IPT IIIs construction cost amounted
2. The BOCs Expenses to $360,969,790.82.

On June 15, 2006, the BOC filed a request for the release of a mobilization 1. The Governments Appraisal
525
 1. Failed structural elements of the Terminal, as identified in
Based on the Gleeds Report dated November 15, 2010, the Government the Arup Seismic Evaluation Report and Gravity Loading and
computed the valuation of the NAIA-IPT III as follows: 83cralawrednad Element Capacity Assessment;
2. The inferior quality of material used and works, including
December December floor tiling, plasterboard wall finishes and ceilings, internal
2002 2004 and external metal paneling;
CCV CCV 3. Constructed areas that are unnecessary to the functioning of
Base valuation $USD @3Q01 $300,206,693 $300,206,693 an international aiport terminal and therefore of no benefit to
Deterioration $USD @2Q09 $0 $1,738,318 the Republic. These areas identified in the Arup Site
Depreciation $USD 3Q01 $0 $35,076,295 Observation Report include areas where the requirements
Total Base CCVs $USD $300,206,693 $263,392,081 stated in the Bid Documents have been grossly
Rectification for Contract Compliance overprovided. They also include the multilevel retail mall
$USD@2Q09 that, with its own internal circulation, is functionally separate
Not compliant with bid documents -$30,670,894 -$30,670,894 from the Terminal and accessible only through the multi-
Inferior quality -$7,702,640 -$7,702,640 storey car park (20,465 m2), and excess retail concession
Additional areas to be built (63,490 m 2) -$75,570,510 -$75,570,510 space (1,727 m2);
Total Contract Compliance -$113,944,044 -$113,944,044 4. The cost of seismic and gravity load structural retrofits for
Deductions $USD the failed elements in the terminal buildings and multi-storey
Total CCVs $USD $186,262,649 $149,448,037 car park structures, as those retrofits are described in Arups
Drawings listed in Appendix B Drawing List 2 and other
rectification works required to bring the terminal to
$300,206,693.00 as base current cost valuation (CCV). Based on compliance with applicable building and airport codes (as
the Gleeds report, the construction cost of the NAIA-IPT III as of indicated in the Appendices of Arups Site Observation
December 2002 was $300,206,693.00, consisting of the cost of Report);
constructing the terminal building, aprons, car park, elevated 5. The cost of completing the items listed in the JAC project
roadways, and other related items. status summary report of 28 February 2003;85 and
6. The cost of seismic and gravity load structural retrofits for
Gleeds appraised the NAIA-IPT III by multiplying the structures the failed elements in the elevated roadway structures as
dimensions (i.e., quantities) by a price (i.e., rate) for constructing the those retrofits were described in Arups Drawings listed in
works at a designated time and specific location, adding the cost of Appendix B Drawing List 3, Arup Review on TCGI Report
works in, on, and around the structure, and then accounting for of Civil Design Review and Evaluation Elevated Roadway,
inferior and nonperforming works, and rectification of those works. 84] dated March 2009, and other rectification works required to
bring the elevated roadways to compliance with applicable
Gleeds arrived at the CCV by considering the rates and prices for the building and airport codes (as indicated in the Appendices of
third quarter of 2001, which represented the midpoint of the Arups Site Observation Report).86
construction period from June 2000 (the commencement of
construction) to December 2002 (the suspension of construction). It
claimed that calculating the cost of construction based on its
midpoint was a recognized standard practice in the construction $263,392,081 as total base CCV as of December 2004. The
industry. The base CCV excluded the following Government asserted that the NAIA-IPT III suffered from
items:ChanRoblesvirtualLawlibrary depreciation and deterioration in the sum of US$36,814,612.00 from
December 2002 until December 2004. The base value CCV at the
time of expropriation should be US$263,392,081.00 after deducting
depreciation and deterioration.
526
 $113,944,044 as total contract compliance deductions. The REPLACEMENT COST 470,450,825
Government further deducted items which were non-compliant with
bid documents, including, among Add:
others:ChanRoblesvirtualLawlibrary Interest from 21 Dec 2004 to 11 Sept 2006 104,014,531
Interest from 12 Sept 2006 to 31 Dec 2010 331,402,193
a. FIDS monitors not flat screen
b. Moving walkways underprovision Total Interests 435,416,724
c. Sun shading to external glazing Total Replacement Value 905,867,550
d. Lack of 400hz PC air to loading bridges
Less: Payment on 11 Sept 2006 59,438,604
e. Completion of testing, commissioning, and operation of the facility
f. Provision of as-built documentation Amount Still Due 846,428,946

The Government likewise deducted the replacement cost of inferior

quality items and additional areas that the Government had to build Computation of Interest in US Dollars
to finish the NAIA-IPT III project.87
Period Interest No. of Days Amount in
Rates USD
2. PIATCOs Appraisal
Replacement (a) 470,450,825
PIATCO claimed that the total replacement value of the NAIA-IPT III as of Cost
December 31, 2010 amounted to $905,867,550.00. Interests
From takeover of December 21 12% 11 1,724,986
Actual Costs Inflation Base Valuation NAIA T3 on 21 to December
@ 2002 Rate @ 2004 Dec 2004 31, 2004
I. Materials, Equipment and 360,969,791 1.0971 396,019,958
January 1 to 12% 365 57,448,057
Labor Engineering &
December
Procurement
31, 2005
II. Attendant Costs
Engineering and Architecture 19,372,539 1.0971 21,253,613 January 1 to 12% 254 44,881,488
September
Quality Assurance 6,923,720 1.0971 7,596,013
11, 2006
Construction Supervision 4,302,227 1.0971 4,719,973
Construction Insurance 4,329,272 1.0971 4,749,644 Total Interest from 21 December 2004 (1) 104,014,531
to 11 September 2006
Site Development 8,358,169 1.0971 9,169,747
Other Costs 308,985 1.0971 338,987 TOTAL AMOUNT DUE AS OF 11 (a) + (1) 574,465,356
Attendant Costs exclusive of 43,594,911 1.0971 47,827,977 SEPTEMBER 2006
Financing Costs Less: Amount Paid on 11 September 2006 (Php 59,438,604
Financing Costs 26,602,890 26,602,890 3,002,125,000/50.508)
Total Attendant Costs 70,197,802 74,430,868 NET AMOUNT STILL DUE AS OF 11 (b) 515,026,752
TOTAL 431,167,593 470,450,825 SEPTEMBER 2006
Additional September 12% 112 19,227,665
Interests 12 to
In US Dollars
527
 December correspond to these overhead and other attendant costs which are
31, 2006 necessary to construct an airport project.89cralawrednad
January 1 to 12% 365 65,000,954 It is necessary to hire quality assurance surveyors to check and
December monitor the work of Takenaka. PIATCO hired Pacific Consultants,
31, 2007 Inc. as construction supervisor in the NAIA-IPT III project. PIATCO
January 1 to 12% 366 73,109,155 claimed that the planning and design consultancy fees are even
December below the international norms which are in the range of 8.5% to
31, 2008 11.5% of the Construction Contract cost.90 Financing costs are also
attendant costs because loans and guarantees were obtained to
January 1 to 12% 366 82,028,472
finance the NAIA-IPT III project.91]
December
31, 2009
Conversion to 2004 values. Since the NAIA-IPT III shall be
January 1 to 12% 366 92,035,946 appraised at the time of taking, the total construction cost shall be
December converted to December 21, 2004 values by considering the inflation
31, 2010 rate of 1.0971.92 Inflation was computed using the Consumer Price
Additional Interests up to 31 December (2) 331,402,193 Index (CPI) from 2002 to 2005. The reckoning period was from
2010 November 29, 2002, when Takenaka and Asahikosan suspended
their works in the NAIA-IPT III project, until December 21, 2004,
AMOUNT STILL DUE AS (b) + (2) 846,428,946
when the Government filed a complaint for expropriation.93]
REPLACEMENT VALUE
Replacement Cost 470,450,825 Interests on replacement cost. The twelve (12%) interest rate shall
Total Interests 435,416,724 be added to the replacement cost pursuant to the principles of law
(1+2) and equity.94 In Benguet Consolidated v. Republic of the
Philippines,95 the Court ruled that the property owner is entitled to the
TOTAL AMOUNT 905,867,550 payment of interest where the payment of compensation does not
OF accompany the taking of property for public use but is postponed to a
REPLACEMENT
later date. The interest shall compensate for the Governments delay
VALUE
in the payment of just compensation.96

$360,969,791 as base value. PIATCO adopted Takenaka and 3. Takenaka and Asahikosans Appraisal
Asahikosans actual construction cost of $360,969,791 which is
supported by As-Built Drawings and Bills of Quantities. PIATCO On the other hand, Takenaka and Asahikosan, computed the NAIA-IPT IIIs
stated that the Japanese Airport Consultants (JAC), the quality replacement cost as follows:ChanRoblesvirtualLawlibrary
assurance inspector for the NAIA-IPT III project, validated the works
of Takenaka and Asahikosan. PIATCO alleged that the Government In US dollars
and PIATCO entered into a Quality Assurance Agreement with Total payments of PIATCO 275,119,807.88
JAC.88]
Add: Awards by the London Court 84,035,974.44
Attendant costs. Under RA 6957 IRR, the replacement cost
includes the overhead and all other attendant costs associated with Award by the Makati Court 1,814,008.50
the acquisition and installation in place of the affected
improvements/structures. The items under the attendant costs
528
 Total Construction Cost 360,969,790.82
Attendant Cost (10% of the Construction Cost)
Replacement Cost of NAIA-IPT III
$360,969,790.82 as total construction cost. Takenaka and
Asahikosan claimed that the initial contract price for the construction
of the NAIA-IPT III was $323,753,238.11. Thereafter, changes were
made in the course of the construction that increased its construction
contract price. Pursuant to the Onshore Construction and Offshore
Procurement Contracts, PIATCO paid Takenaka and Asahikosan the
amounts of $231,312,441.28 and P1,796,102,030.84 (a total of
$275,119,807.88).
After PIATCO defaulted on its payments, Takenaka and Asahikosan
instituted Claim Nos. HT-04-248 and HT-05-269 in England. The
London court ruled in their favor and awarded them the amounts of
$81,277,502.50, P116,825,365.34 and 65,000.00 or a total of $
84,035,974.44.
Thereafter, they filed an action to enforce Claim Nos. HT-04-248 and
HT-05-269 before the RTC of Makati which awarded them the sum
of $1,814,008.50.97
Add: 376,149,742.56
$341,954,311.42. In computing the construction cost, all actual,
relevant and attendant costs for the construction of the NAIA-IPT III,
including its market price, shall be considered. The BOC divided the
construction cost into: (a) the amount paid by PIATCO to Takenaka
and Asahikosan for the construction of NAIA-IPT III; and (b) the
awards by the London Court in Claim Nos. HT-04-248 and HT-05-
269 relating solely to construction cost, excluding interest, attorneys
fees, and costs of the suit. The BOC relied on Takenaka and
Asahikosans construction cost since these corporations shouldered
the actual cost of constructing the NAIA-IPT III.
$34,195,431.14. According to the BOC, PIATCO failed to
substantiate its attendant costs. In pegging the attendant cost at 10%
of the construction cost, the BOC relied on the Scott Wilson Report,
which states that the accepted industry range for architecture, civil
and structural, electrical and mechanical, quantity surveyor and
project management cost is 8.5% to 11.5% of the construction cost.

4. The BOCs Appraisal Depreciation shall not be deducted from the construction cost.
The BOC explained that the inventory of materials comprising the
On March 31, 2011, the BOC submitted its Final Report recommending the NAIA-IPT III does not reflect its replacement cost. Rather, it is the
payment of just compensation of $376,149,742.56 with interest at the rate actual cost of replacing an existing structure with an identical
of 12% per annum computed from the time of the taking of the property structure that is considered in the replacement cost method. For this
until the amount is fully paid, plus commissioners fees equivalent to reason, depreciation shall not be deducted from the construction
1% of the amount fixed as part of the costs of the proceedings. cost; otherwise, the NAIA-IPT III would have been fully depreciated
since the Government estimated that the NAIA-IPT IIIs useful life
In arriving at the replacement cost of the NAIA-IPT III, the BOC proposed the was only ten years.
following computation:ChanRoblesvirtualLawlibrary
The replacement cost shall earn interest at 12% per annum from
Formula In US Dollars December 21, 2004, until full payment. The BOC stated that legal
Amount paid by PIATCO to Takenaka and 275,119,807.88 interests shall accrue from the time of taking of the property until
Asahikosan actual payment of just compensation. The delay in the payment of
Add: 14,827,207.0098cralawrednad just compensation is equivalent to a forbearance of money.
Award in Claim No. HT-04-248 Relating to the
Construction Cost of NAIA-IPT III 52,007,296.5499 The commissioners fees shall be equivalent to 1% of just
Award in Claim No. HT-05-269 Relating to the 341,954,311.42 compensation. According to the BOC, the commissioners fees
Construction Cost of NAIA-IPT III shall be equivalent to 1% of just compensation, similar to the
Construction Cost of NAIA-IPT III 34,195,431.14 arbitrators fees. Commissioners and arbitrators perform similar

529
 responsibilities since both act as independent and uninterested third computation of construction cost and stated that the BOC erroneously relied
parties in resolving difficult factual issues.100 on the amounts allegedly paid by PIATCO to Takenaka and Asahikosan. The
RTC pointed out that PIATCO failed to present proof that it had indeed paid
Takenaka and Asahikosan the sum of $275,119,807.88. The RTC further
II. The RTC Rulings in Civil Case No. 04-0876 posited that the BOC did not take into account the actual cost of the NAIA-
IPT III at the time of taking which was in a state of collapse and deterioration.
A. The Main Decision
The RTC stated that just compensation is limited to the value of the
In a decision dated May 23, 2011, the RTC directed the Government, improvement at the time of the filing of the expropriation complaint. The
Takenaka, and Asahikosan to pay the commissioners fees in the amount of payment of just compensation does not include the right to be compensated
P1,750,000.00 each; and ordered the Government to pay PIATCO just of the franchise to operate the airport, and the increased value of
compensation in the amount of $116,348,641.10. In determining the improvements due to inflation rate.
amount of just compensation, the RTC adopted the following
computation:ChanRoblesvirtualLawlibrary $26,339,208.10. Similar to the BOC, the RTC pegged the attendant
cost at 10% of the CCV at the time of the filing of the expropriation
Formula In US Dollars complaint. The RTC agreed with the BOC that the computation of the
Just compensation as determined by the Republic 149,448,037.00 attendant cost based on the 10% of the CCV was an accepted
Add: Attendant cost (10% of $263,992,081.00, CCV as of 26,339,208.10 industry practice.
December 21, 2004) 175,787,245.10
Just Compensation (59,438,604.00) $59,438,604.00. After deducting the proffered value of
Less: Proffered value paid to PIATCO 116,348,641.10 $59,438,604.00, the RTC fixed the net compensation at
Net Just Compensation $116,348,641.10, without interest. The RTC stated that no interest
shall accrue on the net just compensation since the Concession
Agreement was nullified by the Court in Agan.
$149,448,037.00. The RTC adopted the Governments computed
just compensation of $149,448,037.00, and ruled that the The dispositive portion of the decision states:ChanRoblesvirtualLawlibrary
Government should not pay for the portions of the NAIA-IPT III that
were defective. The RTC thus excluded the following from the IN THE LIGHT OF THE FOREGOING, Plaintiffs are hereby ordered to pay
computation of the CCV:ChanRoblesvirtualLawlibrary respondent PIATCO the amount of US$175,787,245.10 less the proffered
value (P3,002,125,000.00) actually paid to and received by defendant, as the
(a) failed structural elements in the NAIA-IPT III; just compensation for the improvements of NAIA-IPT III.
(b) inferior quality of material works;
(c) constructed areas that are unnecessary to the use of an Moreover, both plaintiff Republic and intervenors Takenaka and Asahikosan
international airport terminal; Corporations are directed to pay their proportionate shares of the
(d) cost of seismic and gravity load structural retrofits for the failed Commissioners Fees in the amount of P1,750,000.00 each with dispatch.
elements;
(e) cost of completing the items listed in the JAC project status Finally, insofar as both intervenors Takenaka and Asahikosan Corporations
summary report of February 28, 2003; and are concerned, resolution of their claim before this Court is held in abeyance
(f) cost of seismic and gravity load structural retrofits for the failed owing to the pendency of the outcome of the appeal on certiorari before the
elements in the elevated roadway structures. CA, and in any of their claims, as contractors are solely as against defendant
PIATCO.
The RTC rejected PIATCO, Takenaka, Asahikosan, and the BOCs
SO ORDERED. 101
computation for lack of factual and legal basis. The court criticized the BOCs
530

PIATCO, Takenaka, and Asahikosan immediately appealed the RTCs
decision before the CA while the Government opted to seek partial
reconsideration of the attendant costs awarded to PIATCO. 102cralawrednad
PIATCO, Takenaka, and Asahikosan sought to nullify the RTC decision for
alleged violation of their right to due process. They complained that they
were only furnished copies of the BOC Final Report only after the
promulgation of the May 23, 2011 decision.103 They averred that the RTC
violated Sections 7 and 8, Rule 67 of the Rules of Court which provide that
the clerk of court shall serve copies of the commissioners report on all
interested parties, with notice that they be allowed ten days within which to
file objections to the findings of the report, if they so desire. 104cralawrednad
The Government subsequently partially appealed the case to the CA after
the RTC denied its motion for partial reconsideration. 105cralawrednad
B. The RTCs Interlocutory Order on the Validity of the Escrow
Accounts
The Government and the Creation of an Escrow Account for the
Payment of Just CompensationOn July 8, 2011, the Government filed a
Manifestation and Motion106 with the RTC stating that it was ready and willing
to pay PIATCO, through an escrow account, the amount of
$175,787,245.10 less the proffered value of P3 billion.
The Government expressed its desire to exercise full ownership rights over
the NAIA-IPT III. However, it could not directly pay PIATCO who had various
creditors Takenaka, Asahikosan, and Fraport, among them. The
Government asserted that just compensation should only be paid to
claimants who are legally entitled to receive just compensation.
The Government thus asked the RTCs leave to deposit the just
compensation due in an escrow account that shall be subject to the following
conditions:ChanRoblesvirtualLawlibrary
8.1.The claimant(s) shall have been held to be entitled to receive the sum
claimed from the Just Compensation (NAIA Terminal 3) Fund in
accordance with Philippine law and regulation, by a final, binding and
executory order or award of the expropriation court;
8.2.The claimant(s) shall have been held to have accepted or otherwise
become subject to the jurisdiction of the expropriation court and other
relevant courts of the Republic of the Philippines, by reason of or in
connection with the expropriation of NAIA Terminal 3 by the ROP, directly
or indirectly;
8.3.The claimant(s) shall have executed a valid and effective quitclaim in
favor of the Republic of the Philippines acknowledging that claimant(s)
against the ROP or any agency or instrumentality or corporation of the
ROP, by reason of, or in connection with, the expropriation of NAIA
Terminal 3 by the ROP, directly or indirectly, in any capacity whatsoever;
8.4.The claimant(s) has complied with in good faith any condition or
undertaking required from it/him/her by the expropriation court by reason
of or in connection with the expropriation of NAIA Terminal 3 by the ROP,
directly or indirectly, in any capacity whatsoever.107
The Government thus prayed:ChanRoblesvirtualLawlibrary
1. Pending determination of the entitled claimants, to allow the
Government to deposit just compensation less the proffered value in
an escrow account with a reputable bank whose senior unsecured
obligations are rated at least BBB by Standard and Poors Investors
Service, Inc. or Baa2 by Moodys Service Investors Service, Inc. to
be designated by the RTC;
2. After depositing the amount in an escrow account, to confirm the
Governments right to fully exercise any and all acts of ownership
over the NAIA-IPT III; and
3. To order the release of just compensation, or of any portion thereof
from the escrow account to the entitled claimants provided that the
entitled claimants have fully complied with all the conditions and
requirements set forth under paragraphs 8.1 to 8.4 of the
Manifestation and Motion.108
PIATCO opposed the Manifestation and Motion and argued that the
Government could not vary the terms of the May 23, 2011 Decision as well
as the Courts rulings in Agan and Gingoyon commanding the Government to
make a direct payment of just compensation to PIATCO. It insisted that the
offer to pay through an escrow account is not equivalent to direct payment.
PIATCO further denied the Governments allegations that there were several
claimants on the just compensation.109cralawrednad
On the other hand, Takenaka and Asahikosan agreed with the Government
that just compensation should only be paid to entitled claimants. They
posited that the Courts directive in Agan (with respect to the direct payment
to PIATCO) was premised on the erroneous assumption that PIATCO was
the builder of the NAIA-IPT III. Takenaka and Asahikosan insisted that they
531
were the actual builders of the NAIA-IPT III. Nonetheless, they contended it could not take judicial notice of the allegation that PIATCO was indebted to
that the RTC had no jurisdiction over the Manifestation and Motion because various creditors, apart from Takenaka and Asahikosan, since these alleged
the parties already filed their respective Notices of Appeal before the creditors were not impleaded in the expropriation complaint.
CA.110cralawrednad
The RTC likewise observed that compliance with the Governments
The Omnibus Order dated October 11, 2011In an Omnibus Order dated conditions under 8.1 and 8.3 for the release of just compensation from the
October 11, 2011, the RTC granted the Manifestation and Motion. escrow account pending appeal was legally impossible. For this reason, the
payment through an escrow account was not the payment that would transfer
The RTC ruled that it has residual jurisdiction to adjudicate the Governments the title of the NAIA-IPT III to the Government.
Manifestation and Motion considering that the motion was filed prior to the
parties filing of the Notice of Appeal. The RTC opined that the Manifestation The RTC lastly ruled that the payment of just compensation through an
and Motion was akin to a motion for execution pending appeal. The escrow account shall be payment of just compensation within a reasonable
Manifestation and Motion showed the Governments intent to voluntarily time. Consequently, the Government may exercise full rights of ownership
comply with the May 23, 2011 decision which was pending appeal before the over the NAIA-IPT III upon the creation of an escrow
CA. Under Section 9, Rule 41 of the Rules of Court, the RTC has the residual account.111cralawrednad
power to issue orders for the protection and preservation of the parties
rights, and to order the execution of a decision pending appeal. Furthermore, The dispositive portion of this order provides:ChanRoblesvirtualLawlibrary
Section 6, Rule 136 of the Rules of Court provides that courts have incidental
power to issue orders that are necessary to effectuate their judgments. IN THE LIGHT OF THE FOREGOING, plaintiffs Manifestation and Motion is
GRANTED in part:ChanRoblesvirtualLawlibrary
The RTC held that the creation of an escrow account conforms with the
Courts rulings in Gingoyon that just compensation shall be paid in 1. Plaintiffs prayer for the court to determine who is/are legally entitled
accordance with law and equity. Since the Government had no legal to receive just compensation is DENIED for lack of merit.
obligation to create an escrow account, it could impose conditions for the
release of just compensation in the escrow account, including: (a) PIATCOs 2. Plaintiffs prayer that they be allowed to deposit the payment of just
submission of a warranty that the NAIA-IPT III shall not be burdened by liens compensation (less the proffered value) to an escrow account is
and encumbrances and an undertaking that PIATCO shall be solely liable for hereby GRANTED, provided that only the following conditions may
any claims from third persons involving the NAIA-IPT III; and (b) PIATCOs be imposed for the release of the money
execution of a Deed of Conveyance of the NAIA-IPT III in favor of the deposited:ChanRoblesvirtualLawlibrary
Government. Equity dictated that the Governments payment of just
compensation should free the NAIA-IPT III from liens and encumbrances. a. PIATCO must submit a Warranty that the structures and
The Deed of Conveyance should be without prejudice to the appellate courts facilities of NAIA IPT III are free from all liens and
determination of just compensation. encumbrances;
Conversely, PIATCO had likewise no legal obligation to accept or reject the b. PIATCO must submit an Undertaking that it is assuming sole
Governments offer of payment. responsibility for any claims from third persons arising from
or relating to the design or construction of any structure or
The RTC clarified that PIATCO is the sole entity entitled to receive the facility of NAIA IPT III structures, if any; and
payment from the Government. The RTC pointed out that the Court has
remanded the Gingoyon case for the sole purpose of determining the
c. PIATCO must submit a duly executed Deed transferring the
amount of just compensation to be paid to PIATCO.
title of the NAIA IPT III structures and facilities to the
Republic of the Philippines, without however, prejudice to the
Moreover, the Government did not raise the alleged dispute in the ownership amount which will finally be awarded to PIATCO by the
of the NAIA-IPT III during the expropriation proceedings. The RTC stated that
appellate court;
532
 Add: Equity
The Land Bank of the Philippines and the Development Bank of the Just
Philippines are hereby jointly appointed [a]s the Escrow Agents for Compensation
the above purpose. Substituting:
Replacement =$300,206,693.00 + 0 (because attendant cost already
Upon payment of the plaintiffs of the said just compensation in an Cost imputed in construction cost)
escrow account, this court recognizes the Republic of the =$300,206,693.00 + 6% interest from December 21, 2004
Philippines right to exercise full rights of ownership over the NAIA to September 11, 2006 less $59,438,604.00 + 6% interest
IPT III structures and facilities in accordance [with] 2 (c). from September 12, 2006 until finality of judgment

3. Plaintiffs Formal Offer of Evidence and defendant PIATCOs

Comment and Opposition thereto are NOTED. In US dollars
Replacement Cost 300,206,693.00
4. Defendant PIATCOs motion for reconsideration with plaintiffs Less: Proffered value paid to PIATCO (59,438,604.00)
comment/opposition of the order of this court denying the motion for Just Compensation as of September 11, 2006 240,768,035.00
inhibition is hereby denied. Add: Interest Due as of July 31, 2013 130,658,653.24
Just Compensation as of July 31, 2013 371,426,742.24
SO ORDERED.112

The RTC subsequently denied PIATCOs as well as Takenaka and The CA justified its computation as follows:
Asahikosans respective motions for partial reconsideration of the above-
quoted order,113opening the way for PIATCOs petition for certiorari with $300,206,693.00 as Replacement Cost. Under Section 10 of RA
prayer for the issuance of a temporary restraining order and/or a writ of 8974 IRR, replacement cost shall consist of the construction and
preliminary injunction, filed with the CA.114 This petition was docketed as CA- attendant costs.
G.R. SP. No. 123221.
$300,206,693.00 as construction cost. The CA relied on the
III. The CA Rulings Gleeds Report which it characterized as more particularized,
calculable and precise.116 The Governments construction cost did
A. CA-G.R. CV No. 98029 not vastly differ from the BOC and PIATCOs computed construction
costs of $341,954,311.42 and $360,969,791.00, respectively. But the
In a decision dated August 7, 2013, 115 the CA upheld the validity of the BOC and PIATCOs computed construction costs were unreliable
RTCs May 23, 2011 decision. The CA ruled that the parties did not need to since they lacked detailed proof that the quoted amounts were
be furnished the BOC Final Report since RA 8974 is silent on the directly related to the construction of NAIA-IPT III.
appointment of the BOC, as held in Gingoyon.
$0 as attendant cost. The CA stated that there was no need to
However, the CA modified the RTC rulings and arrived at its own formula of award additional attendant costs since these costs had already been
the NAIA-IPT IIIs replacement cost, to wit:ChanRoblesvirtualLawlibrary included in the Governments computations under the heading
General Requirements and Conditions. The inclusion of attendant
Construction cost in the construction cost was justified since the attendant cost
Cost becomes part of the total construction cost once the construction of a
Add: Attendant project is completed. Based on the Bills of Quantities, the
Cost Government provided the following detailed list of attendant costs in
= Replacement the construction of the NAIA-IPT III:
Cost
533
 Attendant Cost In US Dollars cost method since the replacement cost merely measures the cost of
Design 6,439,680 replacing the structure at current market price at the time of taking.
Staff and labour 10,491,139.54 Furthermore, the market price of a building increases over time; thus,
Insurance 925,210.78 if the construction cost of NAIA-IPT III in 2002 was $300,206,693.00,
PI Insurance 2,200,000.00 its replacement cost in 2004 should be equal to or higher than
$300,206,693.00.
Consequential Loss 800,000.00
Setting out 364,647.00 Interest. The CA further held that interest shall be added to just
Health and safety 403,224.00 compensation as of September 11, 2006. Citing Gingoyon, the CA
Enviro Management 176,490.00 explained that law and equity dictated that the Government shall be
Design 2,631,100.00 liable for legal interests as a result of the delay in the payment of just
compensation to PIATCO. Since there was no stipulation on
Staff and labour 2,590,774.19 interests, the CA fixed the interest rate at 6%. Upon finality of the
Insurance 71,109.77 judgment, the interest shall be 6% until fully paid. As of July 31,
Total 25,293,376.28117 2013, the CA computed the interest as follows:

The CA likewise observed that PIATCOs summarized computation of In US Dollars

attendant costs was self-serving and unsubstantiated by relevant evidence.
On the other hand, the BOC and the RTCs computation of attendant costs at Interest from December 21, 2004 to December 21, 2005 18,012,401.58
10% of the construction cost lacked factual and legal support. Pegging $300,206,693*6%
attendant costs at 10% of the construction cost was only relevant during the Interest from December 22, 2005 to September 11, 2006 13,225,544.17
pre-construction stage since the costs of the construction at that time could $300,206,693*6%*268 days/365 days
only be estimated. This estimate carried no relevance at the post- Interest from September 12, 2006 to September 12, 2012 86,676,492.60
construction stage since the total construction costs, including the attendant $240,768,035*6%*6 years
costs, could already be determined.
Interest from September 13, 2012 to July 31, 2013 12,744,214.89
$240,768,035*6%*322 days/365 days
Depreciation, costs for noncompliance with contract
specifications, and unnecessary areas of NAIA-IPT III shall not Total Interest as of July 31, 2013 130,658,653.24
be deducted from the replacement cost. The CA reversed the
RTCs finding that the NAIA-IPT III suffered from massive structural The CA further ordered Takenaka and Asahikosan to share in the expenses
defect. The CA opined that the collapse of the portion of the NAIA- of the BOC. Since Takenaka and Asahikosans inputs on the construction
IPT III merely relates to finishing rather than to structural defects. costs of the NAIA-IPT III were heard by the RTC, they should share in the
In construction lingo, finishing pertains to aesthetics, convenience, expenses of the BOC.
and functionality of a built structure while structural refers to the
very integrity and stability of the built structure. The CA likewise denied Takenaka and Asahikosans prayer to set aside in an
escrow account a portion of the just compensation corresponding to the
The CA disagreed with the RTCs conclusion that depreciation, costs amounts owed them by PIATCO. RA 8974 expressly provides that the
for non-compliance with contract specifications, and unnecessary Government shall directly pay the property owner upon the filing of the
areas of the NAIA-IPT III, shall be excluded from the computation of complaint as a prerequisite to the issuance of a writ of possession.
construction cost. Depreciation should not be deducted since it
merely measures the book value of the property or the extent of use The dispositive portion of the CA decision
of the property. Depreciation is inconsistent with the replacement provides:ChanRoblesvirtualLawlibrary

534
WHEREFORE, the decision appealed from is MODIFIED. Just
compensation is fixed at US$300,206,639.00 less US $59,438,604.00 paid in In a decision dated October 18, 2014, the CA reversed the Omnibus Order
September 2006 or the net sum of US$240,768,035.00 with legal interest at dated October 11, 2011, for having been issued with grave abuse of
6% computed as above. The Republic is thus ordered to pay PIATCO just discretion. The dispositive portion of the decision
compensation as herein determined and which sum has reached the total of states:ChanRoblesvirtualLawlibrary
US $371,426,688.24 as of 31 July 2014.
WHEREFORE, in view of the foregoing, the instant Petition is
Upon finality of judgment, interest on the sum due by then shall be at 12% hereby GRANTED. Parenthetically, the Omnibus Order dated 11 October
until fully paid. 2011 and Order dated 5 December 2011 of the Pasay City RTC, Branch 117,
in Civil Case No. 04-0876-CFM for Expropriation, are hereby NULLIFIED
IT IS SO ORDERED.118 and SET ASIDE for having been issued with grave abuse of discretion
On August 22, 2013, the CA amended its decision in view of the BSPs amounting to lack or excess of jurisdiction.
recent issuance, BSP Circular No. 799, series of 2013, which took effect on
July 1, 2013. BSP Circular No. 799 lowered the legal interest rate on loan or SO ORDERED.122
forbearance of money, goods or credit to 6% per annum. 119 The CA
amended decision provides:ChanRoblesvirtualLawlibrary IV. The Action to Enforce the London Awards, Civil Case No. 06-171

WHEREFORE, the decision appealed from is MODIFIED. Just On February 27, 2006, Takenaka and Asahikosan filed an action to enforce
compensation is fixed at US $300,206,639.00 less US $ 59,438,604.00 paid the London awards in Claim Nos. HT-04-248 and HT-05-269 before the RTC
in September 2006 or the net sum of US$240,768,035.00 with legal interest of Makati, Branch 143. The case was docketed as Civil Case No. 06-
at 6% computed as above. The Republic is thus ordered to pay PIATCO just 171.123cralawrednad
compensation as herein determined and which sum has reached the total of
$371,426,688.24 as of 31 July 2013. In a decision dated September 6, 2010, the RTC recognized the validity of
the London awards in Claim Nos. HT-04-248 and HT-05-269 and declared
Upon finality of judgment, interest on the sum due by then shall be at 6% per these awards as enforceable in the Philippine jurisdiction. The RTC thus
annum until fully paid pursuant to BSP Circular No. 799, series of 2013 ordered PIATCO to pay Takenaka and Asahikosan the sum of $85.7
which took effect on 01 July 2013, and which effectively modified the million.124cralawrednad
interest rate rulings in Eastern Shipping Lines, Inc. v. Court of Appeals.
Eastern Shipping was the basis of the Courts earlier imposition of a PIATCO appealed the case to the CA125cralawred which affirmed the RTC
12% interest from finality of judgment. rulings in a decision dated March 13, 2012.126 The CA likewise denied
PIATCOs motion for reconsideration in a resolution dated May 31,
IT IS SO ORDERED.120 [Emphasis supplied] 2012.127cralawrednad

The CA likewise denied the Governments, PIATCOs, Takenakas, and PIATCO responded by filing a petition for review on certiorari with this Court
Asahikosans motions for partial reconsideration in a resolution dated assailing the CAs ruling. The case was docketed as G.R. No. 202166 and is
October 29, 2013.121cralawrednad still pending before the Court separately from the present petitions.

The CAs denial of their motions cleared the way for the elevation of CA-G.R. To summarize, the cases pending before the Court are the consolidated
CV No. 98029 to this Court through a petition for review on certiorari. The cases: G.R. Nos. 209917, 209696, 209731, and 181892, and G.R. No.
Government, PIATCO, and Takenaka and Asahikosans consolidated 202166 as a separate case.
petitions are docketed as G.R. Nos. 209917, 209731, and 209696,
respectively. G.R. No. 209917 is the Governments petition for review on certiorari128 to
partially reverse the CAs August 22, 2013 Amended Decision129 and its
B. CA-G.R. SP No. 123221 October 29, 2013 Resolution130 in CA-G.R. CV No. 98029.
535
 specifications in the amount of US$113,944,044.00. The Government also
G.R. No. 209696 is a petition for review on certiorari filed by Takenaka and refutes the CAs imposition of a legal interest on just compensation.
Asahikosan to partially reverse the CAs August 22, 2013 Amended Decision
and its October 29, 2013 Resolution in CA-G.R. CV No. The Government asserts that the CA did not consider equity in computing the
98029.131cralawrednad replacement cost of the NAIA-IPT III. Contrary to the Courts pronouncement
in Gingoyon, the CA computed just compensation based solely on RA 8974
G.R. No. 209731 is PIATCOs petition for review on certiorari to reverse the and its IRR. The CCV of $300,206,639.00 only reflects the valuation of the
CAs August 22, 2013 Amended Decision, and October 29, 2013 Resolution NAIA-IPT III as of November 2002 when PIATCO stopped the construction of
in CA-G.R. CV No. 98029.132cralawrednad the terminal, and did not take into account other factors that lowered its
valuation as of December 2004.
G.R. Nos. 209917, 209696 & 209731 originally arose from the Governments
complaint for expropriation of the NAIA-IPT III filed with the RTC of Pasay, The Government posits that there are two standards in measuring the
Branch 117 in Civil Case No. 04-0876. The main issue before the Court in replacement cost. The implementing rules of RA 8974 failed to provide a
these petitions is the valuation of the just compensation due for the complete formula to arrive at the replacement cost of an expropriated
Governments expropriation of the NAIA-IPT III. property.

G.R. No. 181892 is the Governments petition for certiorari with prayer for the The first and common standard is the depreciated replacement cost
issuance of a temporary restraining order, 133 assailing the May 3, 2007, May method which measures the cost of replacing an asset at current prices but
18, 2008; and January 7, 2008 orders of the RTC of Pasay City, Branch 117 in its actual condition, i.e., adjusted for age, wear and tear. The
in Civil Case No. 04-0876.134cralawrednad Chartered Institute of Public Finance and Accounting defines depreciated
replacement cost as a method of valuation which provides the current cost
This petition likewise arose from the Governments complaint for of replacing an asset with its modern equivalent asset less deductions for all
expropriation of the NAIA-IPT III. The main issue in this petition is the physical deterioration and all relevant forms of obsolescence and
propriety of the appointment of DG Jones and Partners as an independent optimization and as the replacement value of property minus physical
appraiser of the NAIA-IPT III. depreciation and obsolescence; insurance adjusters estimate the actual cash
value of property based on its depreciated replacement
G.R. No. 202166 is PIATCOs petition for review on certiorari135 to assail the cost.138cralawrednad
CAs March 13, 2012 decision136 and May 31, 2012 Resolution137 in CA-G.R.
CV No. 96502. The petition arose from Takenaka and Asahikosans action to In other words, depreciated replacement cost adjusts the cost of replacing
enforce the London awards before the RTC of Makati, Branch 143 in Civil the actual asset in accordance with the assets age in order to take into
Case No. 06-171. As previously mentioned, this case was not consolidated account the lower economic utility of an asset that is not brand new. As an
with the four (4) cases above and shall thus be separately ruled upon by the asset ages, higher economic cost is required to maintain that asset to the
Court. level of utility of a brand new one.

V. The Parties Positions The second and less common standard is the new replacement cost
method which measures the cost of replacing an asset at current prices with
A. The Governments Position (G.R. Nos. 209917, 209731, and 209696) no adjustment for age, wear, and tear. It refers to the cost to replace
damaged property with like property of the same functional utility without
G.R. No. 209917 regard to depreciation (physical wear and tear) and
obsolescence.139cralawrednad
In G.R. No. 209917, the Government asks the Court to partially reverse the
CA rulings and to deduct from the replacement cost of The Government asks the Court to adopt the depreciated replacement cost
US$300,206,693.00 the following items: (a) depreciation in the amount of method where depreciation is deducted from the replacement cost. The
US$36,814,612.00; and (b) PIATCOs non-compliance with contract Government asserts that it is an internationally accepted practice to consider
536
depreciation and other forms of obsolescence and optimization in measuring
the replacement cost of an asset.
The Government argues that the new replacement cost method usually
applies in cases where the property must be rebuilt. For example, an
insurance policy for a house would usually use the new replacement cost
method because a house, which was destroyed by fire or other natural
disaster, must be rebuilt. On the other hand, an insurance policy for an
automobile would use the depreciated replacement cost because it
presupposes that a new automobile must be purchased to replace the old
automobile that suffered from wear and tear.
The Government disputes the CAs opinion that the replacement cost cannot
be lower than the actual construction because market prices tend to move
upward over time. The Government contends that the replacement cost may
be lower than the construction cost if the price of the materials such as steel,
cement, and copper used during the construction stage decreases after the
construction of the improvement. Moreover, labor productivity and
technological advancements affect the replacement cost since these counter-
balance inflation. The depreciated replacement cost method is utilized in
setting user rates for public utilities precisely because this standard of value
will tend to result in lower prices over time, not higher prices. 140cralawrednad
The Government likewise disagrees with the CA that the depreciation
adjustment would irrationally result in [a] book value which continues to be
lower and lower over time. Since an asset must be maintained, the cost of
performing maintenance and repairs increases the assets replacement cost.
Consequently, repairs and maintenance cost counter-balance depreciation.
The recognition that an asset depreciates impliedly acknowledges that the
owner will spend more costs in maintaining the assets utility than on a brand
new asset.
The Government agrees with the CA that depreciation is a cost allocation
method and not a valuation method. However, the Government stresses that
depreciation is also an economic cost; depreciation thus recognizes that an
asset suffers from wear and tear and would require higher cost to maintain
an assets economic utility. Depreciation, as both economic and accounting
concepts, represents cost adjustments to reflect the fair value of the asset
due to age, wear, and tear.
The Government adds that the premise of the replacement cost method is to
measure the cost of replacing an asset at current prices with an asset that
has the same economic utility.141 Thus, the CA erred when it held that the
depreciation adjustment was inconsistent with the replacement cost method
for the reason that this method factors in the current market price to measure
the cost of replacing an asset.
For instance, if the Government would expropriate a ten-year-old automobile,
the new replacement cost method would compensate the owner the amount
of an asset that has more economic utility than the ten-year-old automobile.
On the other hand, if the Government would use the depreciated
replacement cost method, it would only pay the value of an asset that has
economic utility of a ten-year-old automobile.
The Government likewise insists that the CA erred in not deducting from the
replacement cost the construction costs for deviations from the original
contract, the inappropriate and defective structures, and structures that were
built in violation of international standards. It asserts that the NAIA-IPT III
suffers from structural defects, as evidenced by the
following:ChanRoblesvirtualLawlibrary
(a)In the August 2007 Site Observation Report, Ove Arup found that the
NAIA-IPT III suffered from structural defects.
(b)In its Scott Wilson Report, PIATCO admitted that the NAIA-IPT III suffered
from structural defects. The relevant portions of the Report provide:
Section 3.3.23. The cracking noted in the 2004 report at the upper storey
beam/column interface appears to have worsened particularly in the outer
faces of a number of columns at high level adjacent to the internal ramps.
Section 3.3.37. As far as the building structure is concerned the
outstanding issues are the Taking Over Inspection Defects List,
outstanding Quality Observation Report issues and the Non-Compliance
Schedule x x x.142
(c) The ASEP made the following observation in its June 23, 2006 Report:
Results of material tests carried out identified that the materials
used were adequate and meet or exceed the ER specification.
However, the thickness of the wall angle used (0.4 mm) does not
meet the minimum plate thickness for metals to be fastened by
power-actuated anchors, which requires a minimum of 0.6 mm
(Hilti Catalogue). ASEP recommended further tests.
ASEP considered that the quality of workmanship of the
installation is not considered to be within minimum acceptable
practice.
Structural design of the ceiling system provided by Takenaka and
independently assessed by ASEP concluded that the factor of
safety of individual components is high. However, ASEP stated
that the overall factor of safety of the total ceiling system is
expected to be lower due to poor workmanship of the
connections. The positioning of the air-conditioning ducts, fire
537
 protection system pipes, and other systems above the ceiling has
affected the standard spacing of the ceiling hangers and may
have contributed to the uneven distribution of loads to the various
ceiling components, although without some of the riveted joints
failing, the ceiling hangers are still adequate.
ASEP concluded that a combination of poor workmanship and
wrong choice of system in some areas particularly if repeated
access is required for inspection and maintenance.143
(d)In its June 23, 2006 Report, the ASEP opined that the NAIA-IPT III may be
partially opened provided that retrofitting works are done prior to its full
operation. Thus, the MIAA initiated the structural remediation program of
the NAIA-IPT III.144
(e)TCGI documented the heaving of homogenous tiles and cracks
underneath the slabs in the head house airline lounges (Level 3, Sector
4),145attributable to the 5.4 magnitude earthquake that hit Lingayen,
Pangasinan, on November 27, 2008. The earthquake was felt in Pasay
with a 3.0 magnitude. PIATCO failed to refute TCGIs findings.146
The Government insists that the operation of the NAIA-IPT III is not an
implied admission of the nonexistence of structural defects. The Government
clarifies that the structurally defective sectors of the NAIA-IPT III remain
unoccupied. Out of the 10 Sectors of the NAIA-IPT III, the MIAA fully
occupies Sectors 1, 3, 5, and 6, and partially occupies Sectors 2 and 4. The
MIAA did not occupy Sections 7, 8, 9, and the car park due to structural
issues.
That the Court declared the PIATCO contracts as null and void should not
impede the deductibility of construction costs for deviations from the original
contract, the inappropriate and defective structures, and structures that were
built in violation of international standards. The Government emphasizes that
when the Court nullified the PIATCO contracts, the NAIA-IPT III was almost
complete. Consequently, the Government had every reason to expect that
PIATCO would build the NAIA-IPT III according to the agreed specifications.
PIATCO, however, acted in bad faith in not complying with the nullified
PIATCO contracts. PIATCO should not benefit from its violation of the
concession agreements and the gross deviations from the original design of
the NAIA-IPT III.
The Government maintains that the imposition of legal interest on just
compensation is erroneous.
First, the present expropriation case is sui generis. The Government was
forced to expropriate the NAIA-IPT III due to PIATCOs violation of the
Constitution and the law. To award legal interest to PIATCO is to condone its
illegal acts. In Hulst v. PR Builders, Inc.,147 the Court held that the illegality
should not be rewarded. In Valderama v. Macalde,148 the Court deleted the
payment of interest on the ground that a person should not be allowed to
profit from an illegal act. As between two parties, he who, by his acts, caused
the loss shall bear the same. He, who comes to court for equity must do so
with clean hands.
Second, PIATCO itself caused the delay of the expropriation proceedings
before the RTC. PIATCO did not produce the vouchers, purchase orders,
and as-built documents which were in its possession despite the
Governments filing of a Motion for Production and Inspection of Documents
dated May 25, 2006, before the RTC.149cralawrednad
Third, in Eastern Shipping Lines v. CA,150 the Court pronounced that
unliquidated claims are not subject to legal interest, such as the present
case.
Fourth, the law and jurisprudence on the imposition of interest does not
address the peculiar situation where the NAIA-IPT III is being expropriated as
a direct result of the nullification of the PIATCO contracts. The application of
the law and jurisprudence on the imposition of interest would not result in a
fair and equitable judgment for the Government. The Court must apply equity
in the absence of a specific law applicable in a particular case or when the
remedy afforded by the law would be inadequate to address the injury
suffered by a party.
The Government additionally complains that, since November 2002, long
before the institution of the expropriation [complaint] in December 2004,
Takenaka and Asahikosan prevented it from entering the NAIA-IPT
III.151cralawrednad
G.R. No. 209696
The Government alleges that it is willing to pay just compensation to the
lawful claimant. However, just compensation should not be set aside in favor
of Takenaka and Asahikosan since their claim against PIATCO has not yet
been resolved with finality.
The Government disputes the applicability of Calvo v. Zandueta152 in the
present case. In that case, the Court allowed Juana Ordoez to be
subrogated to Aquilino Calvo as defendant because Ordoez obtained a final
judgment in her favor which entitled her to levy the land sought to be
expropriated. Furthermore, Ordoez was not a party to the expropriation
538
case.
The Government asserts that Takenaka and Asahikosan should share in the
BOCs expenses. Under Section 12, Rule 67 of the Rules of Court, the rival
claimants should shoulder their costs in litigating their claim while the
property owner should shoulder the costs of the appeal if he appeals the
case and the appellate court affirms the lower courts judgment.
To divide the BOCs expenses between the Government and PIATCO would
result in unjust enrichment. Under Section 1, Rule 142 of the Rules of Court,
the court shall have the power to divide the costs of an action as may be
equitable.
Furthermore, Takenaka and Asahikosan actively participated in and
benefited from the proceedings before the BOC, which included the London
awards in the computation of just compensation. Takenaka and Asahikosan
likewise relied on the Final Report in their Appellants Brief dated October 3,
2012, and in their Reply Brief dated January 20, 2013.
The Government contends that Takenaka and Asahikosans computations of
actual construction cost of the NAIA-IPT III are conflicting.
In their Manifestation dated December 9, 2010, Takenaka and Asahikosan
stated that the actual construction cost amounted to $360,969,790.82.
However, in his report, Mr. Gary Taylor appraised the actual construction
cost at US$323 million, plus other costs that were incurred by various
parties during its conception and construction plus any property
appreciation.153 Mr. Gary Taylor further stated that the true value of the
NAIA-IPT III facility is nearer to US$408 million, given the fact that the
Republics expert, Gleeds, failed to recognize or include any values for [the]
design and other consultants (10%) or property inflation based on GRP
schedules (15%).154 However, Mr. Taylor did not explain how he arrived at
the amount of $408 million.
The Government adds that Takenaka and Asahikosans actual construction
cost of $360,969,790.82 is erroneous as the London and Makati awards
include interests, attorneys fees and costs of litigation. Furthermore,
Takenaka and Asahikosans as-built drawings are not truly as-built. The
drawings do not reflect the quality and exact detail of the built portions of the
NAIA-IPT III.155cralawrednad
G.R. No. 209731
The Government disputes PIATCOs claim that it was denied due process
when it was not furnished a copy of the Final Report. The Government points
out that all the parties in the case were not given a copy of the Final Report.
Furthermore, PIATCO belatedly raised this issue; it was brought for the first
time on appeal before this Court.
The Government also emphasizes that PIATCO immediately filed a notice of
appeal a day after its receipt of the RTC decision. This is contrary to
PIATCOs claim that it wanted to secure a copy of the Final Report and
subject it to clarificatory hearing.
Even assuming that the RTC erred in not furnishing the parties copies of the
Final Report, the lapse is merely an innocuous technicality that should not
nullify the RTC rulings.
The Government claims that PIATCO failed to substantiate the attendant
costs. The documents attached to the Compliance dated December 14,
2010, are mostly summary of payments that PIATCO allegedly paid to the
consultants. However, PIATCO failed to prove that the alleged consultants
rendered actual service related to the construction of the NAIA-IPT III. Reyes
Tacandong & Co. merely verified the mathematical accuracy of the
schedules, including the computation of the inflation rate. Furthermore, the
receipts that PIATCO submitted are not enough to cover its claimed just
compensation.156cralawrednad
G.R. No. 181892
The Government disputes the RTCs appointment of an independent
appraiser of the NAIA-IPT III. It claims that Section 11 of RA 8974 IRR solely
authorizes the implementing agency to engage the services of an appraiser
in the valuation of the expropriated property, while under Section 10 of RA
8974 IRR, it is the implementing agency that shall determine the valuation
of the improvements and/or structures on the land to be acquired using the
replacement cost method. Pursuant to these provisions, the Government
engaged the services of Gleeds, Ove Arup and Gensler for purposes of
appraising the NAIA-IPT III.
The Government also argues that the appointment of an independent
appraiser would only duplicate the efforts of the existing appraisers. A court-
appointed appraiser and the existing appraisers would perform the same task
of determining the just compensation for the NAIA-IPT III. Thus, the RTC
should have relied instead on the opinion of the internationally-renowned
appraisers that the Government hired.
The Government likewise avers that the appointment of an independent
539
appraiser would only render the expropriation proceedings more costly. The
Government would be forced to pay for the services of two appraisers, which
is not the intention of RA 8974. The court-appointed appraiser, too, would
render the BOCs functions useless. Under Rule 67 of the Rules of Court, it is
the BOC that is required to receive evidence in the determination of just
compensation. Rule 67 of the Rules of Court does not require the
appointment of an appraiser in eminent domain cases.
Lastly, the Government complains that the RTC order requiring it to submit a
Certificate of Availability of Funds is vague because the RTC did not specify
the costs of the expropriation proceeding.157cralawrednad
B. PIATCOs Position
G.R. No. 209731
PIATCO argues that the RTC rulings are null and void for the failure of the
RTC clerk of court to furnish them copies of the BOC Final Report. Sections
7 and 8, Rule 67 of the Rules of Court require that the parties be given ten
days within which to file their objections to the findings of the commissioners.
On its base value of $360,969,790.82, PIATCO insists that its valuation is
supported by a preponderance of evidence, particularly by the As-Built
Drawings and the Bills of Quantities submitted by Takenaka and Asahikosan.
The CA should not have relied on the Governments self-serving evidence in
computing the base value of the NAIA-IPT III.
PIATCO also cites the CAs failure to include the attendant costs in the
valuation of the NAIA-IPT III as an omission; the CA merely recognized the
construction cost valuation of the terminal pursuant to the Gleeds Report.
PIATCO alleges that it incurred attendant costs of $70,197,802.00 apart from
the construction cost of $360,969,790.82. It also emphasizes that its
consultancy fees are even below the international norms, as shown in the
Scott Wilson Report. It also claims that site preparation costs, legal costs in
planning and constructing the development, and financing costs form part of
attendant costs since these costs are indispensable in completing a complex
infrastructure project.
PIATCO further alleges that its attendant costs are supported by the
attachments in its Compliance dated December 14, 2010, including the
summary of payments for incurred attendant costs, official receipts,
statements of account, sales invoices, endorsements, insurance policies and
other related documents, acknowledgement receipts, agreements, invoices,
and bonds. It claims that Reyes Tacandong & Co examined these
documents and confirmed that the attendant costs amount to $70,197,802.00
in its Report of Factual Findings dated December 14, 2010.
PIATCO asserts that its submission of the summary computation is justified
under Section 3 (c), Rule 130 of the Rules of Court which allows the party to
submit non-original copies if the original consist of numerous accounts or
other documents that the court cannot examine without great loss of time; the
fact sought to be established from these, after all, is only the general result of
the whole.
PIATCO likewise argues that the total construction cost of $431,167,593.00
which is the sum of $360,969,791.00 and $70,197,802.00 should be
converted to 2004 values since the reckoning period of just compensation is
the date of taking or the date when the complaint was filed, whichever is
earlier. It posits that the amount of $431,167,593.00 should thus be multiplied
by 1.0971 the prevailing inflation rate from November 29, 2002, to
December 21, 2004 for a total amount of $470,450,825.00.
The sum of $470,450,825.00 should further earn an interest rate of 12% per
annum beginning December 21, 2004, until full payment. PIATCO maintains
that the Governments deposit in an escrow account of a portion of just
compensation is not equivalent to payment; hence, interest on the full
amount of just compensation shall continue to apply.
PIATCO contends that the CAs reduction of interest rate to 6% is erroneous
because the Court, in numerous cases, has consistently imposed 12%
interest per annum on just compensation. PIATCO emphasizes that the
imposition of interest on just compensation is not based on contract, but on
the owners right to be immediately paid just compensation.
Finally, PIATCO prays that it be paid all income generated from the
operations of the NAIA-IPT III, from the date of taking up to the
present.158cralawrednad
G.R. No. 209917
PIATCO asserts that the NAIA-IPT III does not suffer from massive structural
defects; that the Governments reliance on the Ove Arup Report is self-
serving. The Government would not have expropriated the NAIA-IPT III if it
truly believed that the terminal suffered from massive structural defects.
Furthermore, the MIAAs Project Management Office oversaw the
construction of the NAIA-IPT III to ensure that the terminal complied with the
agreed specifications under the relevant contracts between PIATCO and the
Government.
540
PIATCO contends that the depreciation, deterioration, and costs for non-
compliance with contract specifications should not be deducted from the
base value of the NAIA-IPT III. The base value of $300,206,693.00 should be
the least amount that the Government should pay. The measure of just
compensation is the fair and full equivalent for the loss sustained by the
property owner, not the gain that would accrue to the condemnor.
PIATCO also asks this Court to strike from the record the affidavit of
Kaczmarek and other attachments in the Governments motion for partial
reconsideration dated August 22, 2013. The Government should not be
allowed to present new evidence on the valuation of the NAIA-IPT III before
the CA. PIATCO points out that Kaczmarek was not cross-examined and his
identity, knowledge, and credibility were not established before the trial court.
The Government is estopped from introducing new evidence before the
appellate court since it objected to Takenaka and Asahikosans introduction
of new and additional evidence before the CA.
As its last point, PIATCO posits that Section 10 of RA 8974 IRR does not
allow the deduction of depreciation, deterioration, and costs for non-
compliance with contract specifications from the replacement cost.
Depreciation is merely an accounting concept that facilitates the standard of
decreasing asset values in the books of accounts. It is not a method of
valuation, but of cost allocation; an asset may still be valuable and yet
appear fully depreciated in the financial statements. If at all, depreciation was
only relevant after the Government took possession and operated the NAIA-
IPT III.159cralawrednad
G.R. No. 209696
PIATCO agrees with the CA that just compensation must be directly paid to it
as the owner of the NAIA-IPT III. It stresses that RA 8974 and its
implementing rules clearly provide that the owner of the expropriated
property shall receive the entire amount of just compensation.
PIATCO insists that it would be erroneous to create an escrow account in
favor of Takenaka and Asahikosan since the enforceability of Claim Nos. HT-
04-248 and HT-05-269 in Philippine jurisdiction has yet to be decided by the
Court in G.R. No. 202166. It points out that the main issue in G.R. Nos.
209731, 209917, and 209696 is the amount of just compensation, not the
determination of Takenaka and Asahikosans money claims against PIATCO.
Takenaka and Asahikosans insistence to enforce their money claims against
PIATCO in G.R. Nos. 209731, 209917 & 209696 constitutes forum shopping
and is still premature.
PIATCO contends that Takenaka and Asahikosan have no standing to
demand the creation of an escrow account in their favor. Section 9, Rule 67
of the Rules of Court does not apply in this case because there are no
conflicting claims regarding the ownership of the NAIA-IPT III. Furthermore,
the Court categorically stated in Gingoyon that PIATCO owns the NAIA-IPT
III.
PIATCO further argues that the rules on preliminary attachment do not apply
to this case. Mere apprehension that PIATCO would abscond from its
financial liabilities is not a ground for the attachment of the creditors assets.
Moreover, an artificial entity cannot abscond. PIATCO likewise denies that it
refuses to pay Takenaka and Asahikosans money claims. PIATCO posits
that the eminent domain case is not the proper venue for the adjudication of
Takenaka and Asahikosans money claims.160cralawrednad
G.R. No. 181892
PIATCO agrees with the RTCs appointment of DG Jones and Partners as an
independent appraiser. The determination of just compensation is essentially
a judicial function. The trial courts power to appoint commissioners is broad
enough to include the power to appoint an appraiser who shall assist the
commissioners in ascertaining the amount of just compensation. The latter
power is inherent in the courts task to receive evidence and to arrive at a fair
valuation of the expropriated property. Section 5 (g), Rule 135 of the Rules of
Court allows the court to amend and control its processes and orders so as
to make them consistent with law and justice. Furthermore, nothing in RA
8974 IRR that prohibits the trial court from appointing an independent
appraiser.
Section 6, Rule 67 of the Rules of Court provides that all parties may
introduce evidence on the valuation of the property sought to be
expropriated. The trial court is not bound by the report of the commissioners
and of the independent appraisers, much less of the findings of the
Government-hired appraisers.
PIATCO asserts that the Government is estopped from assailing the
appointment of an independent appraiser. The Government voluntarily
participated in the nomination of an independent appraiser, and in fact,
submitted its own nominees before the trial court.
Contrary to the Governments claim, the RTC did not arbitrarily appoint DG
Jones and Partners as an independent appraiser. The RTC in fact required
the nominees to submit their written proposals and invited them to personally
541
appear before the commissioners and the trial court prior to the issuance of compensation claims. The Court did not declare in Gingoyon that Rule 67 of
the May 3, May 18, and January 7, 2008 orders. the Rules of Court shall not apply to the payment of final just compensation.
The Court merely applied RA 8974 in Gingoyon insofar as the law prescribes
PIATCO argues that the Government should solely bear the expenses of DG direct payment as a prerequisite for the issuance of a writ of possession in
Jones and Partners. Section 12, Rule 67 of the Rules of Court provides that eminent domain cases.
all costs, except those of rival claimants litigating their claims, shall be paid
by the plaintiff, unless an appeal is taken by the owner of the property and Under Section 9, Rule 67 of the Rules of Court, if there are conflicting claims
the judgment is affirmed, in which event the costs of the appeal shall be paid on the property, the court may order the just compensation to be paid to the
by the owner.161cralawrednad court for the benefit of the person adjudged in the same proceeding to be
entitled thereto. Takenaka and Asahikosan argue that they are the lawful
C. Takenaka and Asahikosans Positions recipients of just compensation as the real builders of the NAIA-IPT III and as
the prevailing parties in Claim Nos. HT-04-248 and HT-05-269.
G.R. No. 209696 and G.R. No. 209731
Even assuming that PIATCO is the owner of the NAIA-IPT III, the owner of
Takenaka and Asahikosan argue that law and equity dictate that just the expropriated property is not solely entitled to the full amount of just
compensation of at least $85,700,000.00 should be set aside to answer for compensation.
their money claims against PIATCO. RA 8974 does not prohibit the creation
of an escrow account pending the determination of the parties conflicting In Republic v. Mangotara,162 citing de Knecht v. CA,163 the Court held that
claims on the property and on the just compensation. just compensation is not due to the property owner alone; the term owner
likewise includes those who have lawful interest in the property such as a
Takenaka and Asahikosan allege that PIATCO is a shell corporation with no mortgagee, a lessee, and a vendee in possession under an executory
significant assets, that has repeatedly defaulted on its monetary obligations. contract. In Philippine Veterans Bank v. Bases Conversion Development
They emphasize that PIATCO did not pay Takenaka and Asahikosan despite Authority,164 the Court held that just compensation may be deposited with the
its receipt of the P3 billion proffered value from the Government. Takenaka court when there are questions regarding the ownership of the expropriated
and Asahikosan seek the creation of an escrow account to preserve their property. In Calvo v. Zandueta,165 the Court deferred the release of just
property rights against PIATCO. They posit that PIATCO may abscond after compensation pending the determination of the ownership of the
its receipt of the remaining just compensation from the Government. expropriated property, despite the finality of the order allowing the release of
just compensation.
PIATCO would profit by at least $155,000,000.00 if it solely receives the
entire amount of $431,167,593,000.00 (PIATCOs claimed just compensation Takenaka and Asahikosan refuse to share in the expenses of the BOC.
as of December 2002). PIATCO has judicially admitted that it has paid Under Section 12, Rule 67 of the Rules of Court, the costs of the
Takenaka and Asahikosan only $275,000,000.00. expropriation suit shall be shouldered by the Government. The Government
would be unjustly enriched if other parties are required to shoulder the costs
Takenaka and Asahikosan assert that the interest of justice will be served if of the suit. It would also be unfair to require Takenaka and Asahikosan to
the Court allows the creation of an escrow account in their favor. They point share in the expenses of the BOC since they were not furnished copies of
out that the lower courts already ruled on the enforceability of Claim Nos. HT- the BOC Final Report, in violation of their right to due
04-248 and HT-05-269. Furthermore, the Court, in Gingoyon, merely ordered process. 166cralawrednad
the direct payment of just compensation to PIATCO in order to ensure that
the builder of the NAIA-IPT III is compensated by the Government as a G.R. No. 209917
matter of justice and equity. Takenaka and Asahikosan underscore that they
are the real builders of the NAIA-IPT III as PIATCOs subcontractors. Takenaka and Asahikosan argue that deductions for depreciation and
deterioration are inconsistent with the concept of replacement cost as a
Takenaka and Asahikosan maintain that Section 9, Rule 67 of the Rules of measure of appraising the actual value of the NAIA-IPT III. In exercising the
Court apply with respect to the adjudication of the parties conflicting just power of eminent domain, the Government takes the property on as is,
542
where is basis. Takenaka and Asahikosan point out that the Government
has the option not to expropriate the terminal. Consequently, the
Government cannot base the value of the building on whether or not the
building caters to the Governments needs.
Furthermore, RA 8974 IRR provides that only the costs necessary to replace
the expropriated property should be considered in appraising the terminal.
Statutes authorizing the deprivation of private property, as in expropriation
cases, must be strictly complied with because these are in derogation of
private rights. The Courts intent in Agan when it declared that equity should
likewise be considered in appraising the NAIA-IPT III is to prevent the
Government from undervaluing the property and enriching itself at the
expense of private parties.
Takenaka and Asahikosan also insist that a multi-level retail mall is not an
unnecessary area. They point out that modern airports are subsidized by
income from retail malls and cannot operate profitably without this additional
income.
Takenaka and Asahikosan agree with the CAs finding that the NAIA-IPT III is
structurally sound. There is no clear evidence that the collapse of the ceiling
of the NAIA-IPT III was caused by the terminals structural defects. The CA
correctly concluded that the ceilings collapse is merely a finishing and
aesthetic issue.
They emphasize that Mr. Gary Taylor, their hired appraiser, assailed the
qualifications, the methodology, and the findings of Ove Arup in its August
2007 Site Observation Report. Furthermore, Ove Arup made several
conflicting findings on the structural soundness of the NAIA-IPT III. Ove Arup
concluded that the number of structural members failing the Demand
Capacity Rate (DCR) /m.1.10 criteria was more than those used for the
retrofit design. The DCR measures the capacity of a portion of the NAIA-
NAIA-IPT III to carry the load it was designed to bear, with an optimal rate
being less than 1.0. It likewise opined that the distance of the gap between
the NAIA-IPT IIIs bridge and building structure had a potential for seismic
pounding.
Takenaka and Asahikosan posit that all the structural members of the NAIA-
IPT III have a DCR of less than 1.0 based on the 1992 National Structural
Code of the Philippines (NSCP), the code applicable when the NAIA-IPT III
was designed and constructed. Takenaka and Asahikosan opine that Ove
Arup did not use the 1992 NSCP in the August 2007 Site Observation
Report.
Ove Arups finding that the NAIA-IPT III has a potential for seismic pounding
is baseless. The terminal is designed and built to address the possibility of
seismic pounding, taking into consideration that the NAIA-IPT III is built on
Type I soil. Takenaka and Asahikosan claim that Ove Arups finding was not
based on the AASHTO Standard Specification for Highway Bridges (16 th Ed.,
1996), the code applicable at the time the NAIA-IPT III was designed and
built.
Takenaka and Asahikosan likewise argue that Scott Wilson did not admit that
the NAIA-IPT III suffered from structural defects. They clarify that the
statements in the Scott Wilson report were merely intended to accommodate
[the] changes that the client wished to effect.167 They also point out that the
Government stated in its petition (in G.R. No. 209917) that additional work is
required to complete the terminal structure to make it compliant with the
standards of Takenaka and Asahikosan.168cralawrednad
To lay the structural issue to rest, Takenaka and Asahikosan consulted
Meinhardst (Singapore) Pte Ltd., their Structural Design Consultant, to rebut
TCGIs findings. They also hired disinterested American experts in the
construction industry Mr. S.K. Ghosh of S.K. Ghosh Associates, Inc.; Mr.
Robert F. Mast, PE, SE of Berger/Abram Engineers, Inc.; and Mr. Mete A.
Sozen to validate Meinhardsts conclusions. These experts unanimously
concluded that the NAIA-IPT IIIs design is structurally sound because it
complied with the 1992 NSCP, thus, effectively negating the Governments
claim that the NAIA-IPT III suffers from structural defects.
Takenaka and Asahikosan impugn the ASEP Report. They reiterate that they
constructed the NAIA-IPT III in accordance with the Onshore Construction
and Offshore Procurement Contracts and the prevailing building code at the
time of the design and construction of the NAIA-IPT III. The statement in the
ASEP Report that the NAIA-IPT III may be partially opened provided that
retrofitting works are done prior to its full operation does not mean that the
terminal is defective. The remediation works were solely to ensure that the
NAIA-IPT III structures are compliant with the current standards, which
were not yet in effect when the construction of the NAIA-IPT III took place.
Messrs. Meinhardt opined that the scope of the proposed retrofitting
works shows that the structural design of the NAIA-IPT III is not
defective because the proposed retrofitting works are not related to the
alleged structural defects of the NAIA-IPT III vis--vis the 1992 NSCP. He
also stated that the proposed retrofitting works are meant to reinforce the
NAIA-IPT III which is already compliant with the 1992 NSCP.
Takenaka and Asahikosan likewise engaged the services of AECOM
543
Australia Pty. Ltd. to conduct a technical review of the Review on TCGI
Report of Civil Design Review and Evaluation (Elevated Roadway prepared
by Ove Arup & Partners HK Ltd. Philippines Branch). AECOM criticized the
Ove Arups review as follows:ChanRoblesvirtualLawlibrary
a. Ove Arup valuated the NAIA-IPTs Elevated Roadway using the
AASHTO Manual of Bridge Evaluation and the FHA Bridge
Inspectors Reference Manual, which are irrelevant to any discussion
of its design;
b. Ove Arup evaluated the NAIA-IPT IIIs Elevated Roadway using the
Seismic Retrofitting Manual for Highway Structures, which is
irrelevant because there is no need for a seismic retrofit of the NAIA-
IPT IIIs Elevated Roadway;
c. Ove Arups suggestion that an in-situ measurement of the geometry
data of key structural components be undertaken is unnecessary and
irrelevant to a peer review of the design of the NAIA-IPT IIIs
Elevated Roadway;
d. Ove Arup made an incorrect assessment of the type of foundation
material with respect to soil bearing capacity;
e. Ove Arup used inappropriate codes for the assessment of the
bearings of the NAIA-IPT IIIs Elevated Roadway;
f. Ove Arups analysis suggests that 36 pier columns of the NAIA-IPT
IIIs Elevated Roadway are allegedly under strength, but fails to
quantify the ratio of the column effect to the corresponding capacity;
g. AECOM objects to Ove Arups criticism that the value of the soil-
bearing capacity used for the length of the bridge of the NAIA-IPT
IIIs Elevated Roadway needs to be justified, since the design of the
NAIA-IPT IIIs Elevated Roadway must be judged on the
geotechnical information available to AECOM at the time the bridge
was made. No foundation could have been built without the
foundation bearing capacity results having been submitted to the
relevant overseeing authority and approved thereby;
h. Ove Arup used an incorrect site coefficient for the sites soil type,
which resulted in seriously erroneous input data, thus, any
conclusions or recommendations derived from these data are
rendered invalid;
i. Ove Arups claim that there are failures in the elastomeric
bearings/bearing pads is based on an Australian design code which
did not exist at the time the NAIA-IPT IIIs Elevated Roadway was
designed;
j. Takenaka and Asahikosan were never provided a copy of the TCGI
Report that was used as basis for the ARUP Report;
k. There are serious discrepancies between the Ove Arup Report and
the referenced, yet unseen TCGI Report;
l. The NAIA-IPT IIIs Elevated Roadway complies with the project
design codes in force at the time it was designed; and
m. AECOM refutes Ove Arup and TCGIs suggestion that the NAIA-IPT
IIIs Elevated Roadway requires retrofitting or any remedial work.
Takenaka and Asahikosan aver that the Government would be able to lessen
its expenses, operate the NAIA-IPT III, and earn revenues sooner as there is,
in fact, no need to perform retrofitting works on the terminal.
Takenaka and Asahikosan point out that the design of the NAIA-IPT III
is bilaterally symmetrical which means the structural system of one area is
virtually identical to others. Since the Government opened certain areas of
the NAIA-IPT III to the public, it follows that the unused areas are also
structurally sound considering that majority of the terminal building share the
same structural design.
They also deny that they employed armed guards to prevent the MIAA and
DOTC officials from entering the premises of the NAIA-IPT III. They point out
that the Government did not raise this issue before the lower courts. They
also state that they have provided the parties all documentary evidence
necessary in appraising the NAIA-IPT III, such as the Bills of
Quantities.169cralawrednad
VI. The Issues
In G.R. Nos. 209917, 209696, and 209731, we resolve the following
issues:ChanRoblesvirtualLawlibrary
(1) Whether the RTCs May 23, 2011 decision in Civil Case No. 04-0876 is
null and void for violation of PIATCO, Takenaka and Asahikosans right
to procedural due process;
(2) Whether the CA legally erred in computing just compensation in the
expropriation of the NAIA-IPT III;
(a) Whether fair market value and replacement cost are similar
eminent domain standards of property valuation;
(b) Whether the depreciated replacement cost approach or the new
replacement cost approach shall be used in the appraisal of the
NAIA-IPT III;
(c) With respect to the computation of construction costs, the issues
are:
1. Whether the Governments computation of construction cost is
supported by a preponderance of evidence
2. Whether the NAIA-IPT III suffered/suffers from massive
544
 structural defects; its rulings in Civil Case No. 04-0876.
3. Whether the alleged unnecessary areas should be excluded
from the computation of construction cost;
VII. Our Ruling
(d) With respect to the computation of attendant costs, the issues
are: A. G.R. Nos. 209917, 209696 & 209731
1. Whether PIATCOs claimed attendant cost is supported by a
preponderance of evidence; The parties were afforded procedural
a) Whether the Court may accord probative value to due process despite their non-receipt
photocopied voluminous documents allegedly proving of the BOC Final Report prior to
PIATCOs attendant costs; the promulgation of the RTCs
b) Whether the Court may accord probative value to the May 23, 2011 Decision.
summary report prepared by Reyes Tacandong & Co., which Before ruling on the substantive issues posed, we first resolve the issue of
validated PIATCOs computation of attendant costs; whether the CA erred in ruling that the RTCs May 23, 2011 decision is valid.
2. Whether attendant cost may be pegged at 10% of the
construction cost; PIATCO, Takenaka and Asahikosan challenge the validity of the RTCs
3. Whether the Government included the attendant cost in its decision for alleged violation of their right to due process. They point out that
valuation of the NAIA-IPT III; the RTC promulgated its decision in Civil Case No. 04-0876 on May 23,
2011, immediately after the release of the BOCs Final Report on March 31,
(e) Whether depreciation may be deducted from the replacement 2011. They complain that since the RTCs clerk of court did not furnish the
cost of the NAIA-IPT III; parties copies of the Final Report, the trial court violated Sections 7 and 8,
(f) Whether rectification for contract compliance (for failure to comply Rule 67 of the Rules of Court as they failed to object to the Final Reports
with bid documents; for inferior quality; and for the additional contents.
areas to be built) may be deducted from the replacement cost of
the NAIA-IPT III; Rule 67 of the Rules of Court provides that the clerk of court shall serve
(g) Whether the replacement cost of the NAIA-IPT III shall be copies of the commissioners final report on all interested parties upon the
adjusted to December 2004 values based on inflation; filing of the report. Each party shall have ten days within which to file their
(h) Whether the CA erred in imposing an interest rate of 6% per objections to the reports findings.170cralawrednad
annum on the replacement cost of the NAIA-IPT III;
(i) Whether PIATCO shall be entitled to the fruits and income of the Upon the expiration of the ten-day period or after all the parties have filed
NAIA-IPT III; their objections and after hearing, the trial court may: (a) accept the report
(3) Whether Takenaka and Asahikosan shall share in the expenses of the and render judgment in accordance therewith; (b) for cause shown, recommit
BOC; the report to the commissioners for further report of facts; (c) set aside the
(4) Whether the owner of the property sought to be expropriated shall report and appoint new commissioners; (d) partially accept the report; and (e)
solely receive the just compensation due; and make such order or render such judgment as shall secure to the plaintiff the
(5) Whether the Government may take property for public purpose or property essential to the exercise of his right of expropriation; and to the
public use upon the issuance and the effectivity of the writ of defendant, the just compensation for the property so taken.171cralawrednad
possession;
In G.R. No. 181892, the following issues are relevant: We rule that the parties failure to receive the Final Report did not
(1) Whether the appointment of an independent appraiser issue has been render the May 23, 2011 Decision null and void.
rendered moot and academic by the RTCs promulgation of its rulings
in Civil Case No. 04-0876; and The essence of procedural due process is the right to be heard.172 The
(2) Whether the issue of who shall pay the independent appraisers fees procedural due process requirements in an eminent domain case are
has been rendered moot and academic by the RTCs promulgation of satisfied if the parties are given the opportunity to present their evidence
545
before the commissioners whose findings (together with the pleadings,
evidence of the parties, and the entire record of the case) are reviewed and The exercise of eminent domain necessarily derogates against private rights
considered by the expropriation court. It is the parties total failure to present which must yield to demand of the public good and the common
evidence on just compensation that renders the trial courts ruling void. The welfare.178However, it does not confer on the State the authority to wantonly
opportunity to present evidence during the trial remains to be the vital disregard and violate the individuals fundamental rights.
requirement in the observance of due process.173cralawrednad
2.b. Just compensation is the full and
The record will show that the parties exhaustively discussed their positions in fair equivalent of the property taken from the
this case before the BOC, the trial court, the appellate court, and this Court. owner by the condemnor.
They had ample opportunity to refute and respond to each others positions
with the aid of their own appraisers and experts. Each party, in fact, The 1987 Constitution embodies two constitutional safeguards against the
submitted countervailing evidence on the valuation of the NAIA-IPT III. They arbitrary exercise of eminent domain: first, private property shall not be
also filed numerous and voluminous pleadings and motions before the lower taken for public use without just compensation;179 and second, no person
courts and before this Court. shall be deprived of life, liberty, or property without due process of
law.180cralawrednad
The mere failure of the RTCs clerk of court to send the parties copies of the
BOC Final Report is not substantial enough under the attendant Just compensation is defined as the full and fair equivalent of the property
circumstances to affect and nullify the whole proceedings. Litigation is not a taken from its owner by the expropriator. The word just is used to qualify
game of technicalities. Strong public interests require that this Court the meaning of the word compensation and to convey the idea that the
judiciously and decisively settle the amount of just compensation in the amount to be tendered for the property to be taken shall be real, substantial,
expropriation of the NAIA-IPT III. We cannot further delay this more-than-a- full and ample.181 On the other hand, the word compensation means a full
decade case and let interests accrue on just compensation by remanding the indemnity or remuneration for the loss or damage sustained by the owner of
case once more to the trial court. property taken or injured for public use.182cralawrednad

Framework: Eminent domain is Simply stated, just compensation means that the former owner must be
an inherent power of the State returned to the monetary equivalent of the position that the owner had when
the taking occurred.183 To achieve this monetary equivalent, we use the
2.a. The power of eminent domain is standard value of fair market value of the property at the time of the filing of
a fundamental state power that is the complaint for expropriation or at the time of the taking of property,
inseparable from sovereignty.Eminent domain is a fundamental state whichever is earlier.
power that is inseparable from sovereignty. It is the power of a sovereign
state to appropriate private property within its territorial sovereignty to 2.b.1. Fair market value is the
promote public welfare. The exercise of this power is based on the States general standard of value in determining
primary duty to serve the common need and advance the general just compensation.
welfare.174 It is an inherent power and is not conferred by the
Constitution.175 It is inalienable and no legislative act or agreement can serve Jurisprudence broadly defines fair market value as the sum of money that a
to abrogate the power of eminent domain when public necessity and person desirous but not compelled to buy, and an owner willing but not
convenience require its exercise.176cralawrednad compelled to sell, would agree on as a price to be given and received for a
property.184cralawrednad
The decision to exercise the power of eminent domain rests with the
legislature which has the exclusive power to prescribe how and by whom the Fair market value is not limited to the assessed value of the property or to the
power of eminent domain is to be exercised. Thus, the Executive Department schedule of market values determined by the provincial or city appraisal
cannot condemn properties for its own use without direct authority from the committee. However, these values may serve as factors to be considered in
Congress.177cralawrednad the judicial valuation of the property.185cralawrednad
546
 its depreciable lifetime; (5) the value which the owners equity could have
Among the factors to be considered in arriving at the fair market value of the returned, had the owner invested in monetary instruments; (6) the cost of
property are the cost of acquisition, the current value of like properties, its repair or the capitalized cost of inconvenience, whichever is less; and (7) the
actual or potential uses, and in the particular case of lands, their size, shape, loss of investment expenses actually incurred.195 The primary consideration,
location, and the tax declarations. The measure is not the taker's gain but however, remains the same to determine the compensation that
the owner's loss.186 To be just, the compensation must be fair not only to is just, both to the owner whose property is taken and to the public that will
the owner but also to the taker.187cralawrednad shoulder the cost of expropriation.

While jurisprudence requires the fair market value to be the measure of 2.b.2. Replacement cost is a
recovery in expropriation cases, it is not an absolute and exclusive standard different standard of value from fair
or method of valuation.188There are exceptional cases where the property market value.
has no fair market value or where the fair market value of the property
is difficult to determine. In Gingoyon, we held that the construction of the NAIA-IPT III involves the
implementation of a national infrastructure project. Thus, for purposes of
Examples of properties with no or with scant data of their fair market values determining the just compensation of the NAIA-IPT III, RA 8974 and its
are specialized properties or buildings designed for unique implementing rules shall be the governing law.
purposes.189 These specialized properties bear these characteristics
because they are rarely x x x sold in the market, except by way of sale of the Under Section 10 of the RA 8974 IRR, the improvements and/or structures
business or entity of which it is part, due to the uniqueness arising from its on the land to be acquired for the purpose of implementing national
specialized nature and design, its configuration, size, location, or infrastructure projects shall be appraised using the replacement cost method.
otherwise.190cralawrednad
Replacement cost is a different standard of valuation from the fair
Examples of specialized properties are churches, colleges, cemeteries, and market value. As we previously stated, fair market value is the price at which
clubhouses.191 These also include airport terminals that are specifically built a property may be sold by a seller who is not compelled to sell and bought by
as a place where aircrafts land and take off and where there are buildings a buyer who is not compelled to buy. In contrast, replacement cost is the
for passengers to wait in and for aircraft to be sheltered. 192 They are all amount necessary to replace the improvements/structures, based on the
specialized properties because they are not usually sold in the ordinary current market prices for materials, equipment, labor, contractors profit and
course of trade or business. overhead, and all other attendant costs associated with the acquisition and
installation in place of the affected improvements/structures. 196 We use the
In the Tengson Report dated December 1, 2010, Gary Taylor characterized replacement cost method to determine just compensation if the expropriated
the NAIA-IPT III as a specialized asset.193 Tim Lunt also stated in the Reply property has no market-based evidence of its value.
to Tengson International Ltd. Report and Response from Takenaka &
Asahikosan dated December 7, 2010 that the market value of an airport will 2.b.3. Replacement cost is only one
not be the same as the market value of other commercial, industrial, and of the standards that the Court shall
residential buildings within the Metro Manila region.194cralawrednad consider in appraising the NAIA-
IPT III.
In cases where the fair market value of the property is difficult to
ascertain, the court may use other just and equitable market methods In using the replacement cost method to ascertain the value of improvements
of valuation in order to estimate the fair market value of a property. that shall be expropriated for purposes of implementing national
infrastructure projects, Section 10 of RA 8974 IRR requires the implementing
In the United States, the methods employed include: (1) the cost of replacing agency to consider the kinds and quantities of materials/equipment
the condemned property, less depreciation; (2) capitalization of the income used, the location, configuration and other physical features of the
the property might reasonably have produced; (3) the fair rental value of the properties, and the prevailing construction prices, among other things.
property during a temporary taking; (4) the gross rental value of an item over
547
Section 5 of RA 8974 in this regard provides that the court may consider the
following relevant standards in eminent domain
cases:ChanRoblesvirtualLawlibrary
(a)The classification and use for which the property is suited;
(b)The developmental costs for improving the land;
(c) The value declared by the owners;
(d)The current selling price of similar lands in the vicinity;
(e)The reasonable disturbance compensation for the removal and/or
demolition of certain improvement on the land and for the value of
improvements thereon;
(f) The size, shape or location, tax declaration and zonal valuation of the
land;
(g)The price of the land as manifested in the ocular findings, oral as well as
documentary evidence presented; and
(h)Such facts and events as to enable the affected property owners to have
sufficient funds to acquire similarly situated lands of approximate areas as
those required from them by the government, and thereby rehabilitate
themselves as early as possible.
The Court explained in Agan and Gingoyon that the replacement cost
method is only one of the factors to be considered in determining the just
compensation of the NAIA-IPT III. The Court added that the payment of
just compensation should be in accordance with equity as well.
In Agan, we stated:ChanRoblesvirtualLawlibrary
payment should be limited to the value of the improvements and/or
structures as determined under Section 7, with Section 7 referring to the
implementing rules and regulations for the equitable valuation of the
improvements and/or structures on the land. Under the present
implementing rules in place, the valuation of the improvements/structures are
to be based using the replacement cost method. However, the
replacement cost is only one of the factors to be considered in
determining the just compensation.
In addition to RA 8974, the 2004 Resolution in Agan also mandated that
the payment of just compensation should be in accordance with equity
as well. Thus, in ascertaining the ultimate amount of just
compensation, the duty of the trial court is to ensure that such amount
conforms not only to the law, such as RA 8974, but to principles of
equity as well. (Emphasis supplied)198
The Courts pronouncements in Agan and Gingoyon are consistent with the
principle that eminent domain is a concept of equity and fairness that
attempts to make the landowner whole. It is not the amount of the owner's
investment, but the value of the interest in land taken by eminent domain,
that is guaranteed to the owner.199cralawrednad
In sum, in estimating the fair market value of the NAIA-IPT III, the Court shall
use (1) the replacement cost method and (2) the standards laid down in
Section 5 of RA 8974 and Section 10 of RA 8974 IRR. Furthermore, we
shall likewise consider (3) equity in the appraisal of NAIA-IPT III based on
the Agan and Gingoyon cases.

This Court, however, is not unmindful of the reality that the structures 2.b.4. The use of depreciated
comprising the NAIA IPT III facility are almost complete and that funds have replacement cost method is consistent
been spent by PIATCO in their construction. For the government to take over with the principle that the property owner
the said facility, it has to compensate respondent PIATCO as builder of the shall be compensated for his actual loss.
said structures. The compensation must be just and in accordance with
law and equity for the government cannot unjustly enrich itself at the The present case confronts us with the question of the specific replacement
expense of PIATCO and its investors. (Emphasis supplied)197 cost method that we should use in appraising the NAIA-IPT III. The
Government advocates the depreciated replacement cost method formula
We also declared in Gingoyon that:ChanRoblesvirtualLawlibrary while PIATCO argues for the new replacement cost method formula.

Under RA 8974, the Government is required to immediately pay the owner The replacement cost method is a cost approach in appraising real estate for
of the property the amount equivalent to the sum of (1) one hundred percent purposes of expropriation. This approach is premised on the principle of
(100%) of the value of the property based on the current relevant zonal substitution which means that all things being equal, a rational, informed
valuation of the [BIR]; and (2) the value of the improvements and/or purchaser would pay no more for a property than the cost of building an
structures as determined under Section 7. As stated above, the BIR zonal acceptable substitute with like utility.200cralawrednad
valuation cannot apply in this case, thus the amount subject to immediate
548
The cost approach considers the principles of substitution, supply and is given to the original book cost of the improvements, that is, the original
demand, contribution and externalities.201 The value of the land and the cash expenditure paid by the company for making the physical structures
value of improvements are determined separately according to their highest and appurtenances. Its purpose is to act as some guide; it is not value,
and best use.202 Buyers assess the value of a piece of property not only however, and the courts recognize the fact that it is not a value of the
based on the existing condition of the property, but also in terms of the cost physical structures. Second, evidence of reproduction cost new is then
to alter or improve the property to make it functional specifically for the considered, for it is an element of value of specialty property. In figuring this
purposes of the buyer's use. This may include building new structures, cost, all overhead expenses are included. These expenses include
renovating existing structures, or changing the components of an existing engineering, construction, management fees, insurance, legal expenses,
structure to maximize its utility.203cralawrednad office overhead, and interest during construction period. Third, from the
reproduction cost new an allowance for depreciation of the improvements
There are various methods of appraising a property using the cost approach: must be made. This depreciation is a matter of opinion, formed after a
among them are the reproduction cost, the replacement cost new, and the physical examination of the improvements as a whole and is generally not
depreciated replacement cost. based on a straight-line depreciation according to age. Some authorities,
however, have not accepted such an item of depreciation and prefer the
Reproduction cost is the estimated current cost to construct an exact straight-line method, at so much per year. Obsolescence and functional
replica of the subject building, using the same materials, construction depreciation are sometimes deducted in addition to physical depreciation
standards, design, layout, and quality of workmanship; and incorporating all depending on the type of utility involved. 208
the deficiencies, superadequacies, and obsolescence of the subject
building.204 It is the cost of duplicating the subject property at current Replacement cost new is the estimated cost to construct a building with
prices205 or the current cost of reproducing a new replica of the property utility equivalent to the appraised building using modern materials and
being appraised using the same, or closely similar, materials. 206cralawrednad current standards, design, and layout209 or the current cost of a similar new
property having the nearest equivalent utility as the property being
In the United States, the recognized and used method in eminent domain valued.210 It is the cost of acquiring a modern, functional equivalent of the
cases in appraising specialized properties is the reproduction cost less subject property and views the building as if reconstructed with modern
depreciation approach. methods, design and materials that would most closely replace the use of the
appraised building but provide the same utility. 211 Replacement cost does
According to AmJur, this valuation method requires the inclusion of all not consider the most common forms of functional
expenditures that reasonably and necessarily are to be expected in the obsolescence.212cralawrednad
recreation of the structure, including not only the construction itself but also
collateral costs, such as the costs of financing the reproduction. Historical Depreciated replacement cost approach is the method of valuation which
associations and architectural values may enhance the market worth of a provides the current cost of replacing an asset with its modern equivalent
property by rendering it a specialty property; if so, the property may fairly be asset less deductions for all physical deterioration and all relevant forms of
worth the market price for similar properties, plus a premium for its unique obsolescence and optimisation.213 Depreciated replacement cost is a
aspects. The premium value in such a case may also be determined by the method of appraising assets that are usually not exposed to the open
cost of reproduction, minus depreciation. The value assigned has also been market.214 A general formula of this method is as
described as the total of the land value, plus the specialized value of the follows:ChanRoblesvirtualLawlibrary
improvements, minus depreciation. 207cralawrednad
Cost of constructing the building (s) (including fees)
Alfred Jahr explains the procedure in appraising a specialized property using Plus: Cost of the land (including fees)
this method:ChanRoblesvirtualLawlibrary = Total Costs
Less: Allowance for age and depreciation
In the valuation of the improvement or plant, however, market value is no = Depreciated Replacement Cost215
criterion because they have no market value. It is specialty property. The
improvements are therefore valued on several properties. First, consideration Under this method, the appraiser assesses the current gross replacement of
549
the assets, usually comprised of the land and the building. If the asset is an
improvement, the appraiser assesses the cost of its replacement with a
modern equivalent and deducts depreciation to reflect the differences
between the hypothetical modern equivalent and the actual asset. The
appraiser has to establish the size and specification that the hypothetical
buyer ideally requires at the date of valuation in order to provide the same
level of productive output or an equivalent service. 216cralawrednad
In appraising the improvement using the cost approach, the appraiser
considers the construction cost, and attendant cost.
Construction costs are the costs that are normally and directly incurred in
the purchase and installation of an asset, or group of assets, into functional
use. On the other hand, attendant costs are the costs that are normally
required to purchase and install a property but that are not usually included in
the vendor invoice.217cralawrednad
Under Section 10 of the RA 8974 IRR, construction cost is the current market
price of materials, equipment, labor, the contractors profit and overhead,
while the attendant cost is the cost associated with the acquisition and
installation in place of the affected improvement.
Once the gross replacement cost or the sum of construction and attendant
costs is derived, depreciation shall be deducted.218 Depreciation is classified
into three categories: physical depreciation, functional obsolescence, and
external obsolescence.
Physical obsolescence refers to the wear and tear over the years, which
might be combined with a lack of maintenance.219 Physical depreciation is
curable if capital investment can bring the building to a state in which the
degree of obsolescence is mitigated (e.g., standards of finishes and
services).220It is incurable if no amount of capital investment can rectify the
[depreciation] (for example, building structural flexibility). 221 Curable physical
depreciation is measured by the cost to cure or retrofitting which could
extend the life of the building.222 Incurable depreciation or deterioration is
estimated by a variety of age-life or economic-age calculation
methods.223cralawrednad
Functional obsolescence reflects the advances in technology which allow
for a more efficient delivery of services and goods from a building of different
designs and specifications.224 Functional obsolescence arises where the
design or specification of the asset no longer fulfills the function for which it
was originally designed.225cralawredcralawrednad
It is usually related to operational inefficiencies that typically involve either
inadequacies or superadequacies. An inadequacy occurs when the asset is
not enough (e.g., the asset is too small) for it to operate efficiently. A
superadequacy occurs when there is too much of an asset (e.g., the asset is
too large) for it to operate efficiently.226 To be feasible, the cost of replacing
the obsolete item or design fault must be equal to or less than the anticipated
increase in value due to its cure. Curable functional obsolescence may
require abatement by adding or remodelling or by removing a
superadequacy.227cralawrednad
Economic obsolescence results from the impact of changing external
macro- and micro-economic conditions on the property and should not
include internal factors which affect the profitability of the occupying
business, the writing down of such factors to reflect the profitability of the
business being a matter for the occupier. Within economic obsolescence, the
prospect of extending the life of the building by capital investment should be
considered, as well as the fact that lack of maintenance can accelerate the
rate of depreciation.228cralawrednad
In these consolidated cases, we rule that the depreciated replacement
cost method, rather than the new replacement cost method, is the more
appropriate method to use in appraising NAIA-IPT III.
Injustice would result if we award PIATCO just compensation based on the
new replacement cost of the NAIA-IPT III, and disregard the fact that the
Government expropriated a terminal that is not brand new; the NAIA-IPT III
simply does not have the full economic and functional utility of a brand new
airport.
Adjustments for depreciation should be made to reflect the differences
between the modern equivalent asset and the actual asset or the NAIA-IPT
III. The reason is that depreciation involves the loss of value caused by the
propertys reduced utility as a result of damage, advancement of technology,
current trends and tastes, or environmental changes.229cralawrednad
This conclusion is consistent with Section 10 of RA 8974 IRR which allows
us and under the NAIA-IPT-IIIs circumstances effectively direct us to
consider the kinds and quantities of materials/equipments used, configuration
and other physical features of the properties, among other things, in
determining the replacement cost of a building. To quote Section
10:ChanRoblesvirtualLawlibrary
Section 10. Valuation of Improvements and/or Structures Pursuant to
Section 7 of the Act, the Implementing Agency shall determine the valuation
550
of the improvements and/or structures on the land to be acquired using the parties before the trial court and the entire record of the consolidated cases.
replacement cost method. The replacement cost of the
improvements/structures is defined as the amount necessary to replacement The determination of just compensation in eminent domain cases is
improvements/structures, based on the current market prices for materials, essentially and exclusively a judicial function. Fixing the formula with
equipment, labor, contractors profit and overhead, and all other attendant definitiveness and particularity in just compensation is not the function of the
costs associated with the acquisition and installation in place of the affected executive nor of the legislative branches, much less of the parties in this
improvements/structures. In the valuation of the affected case. Any valuation for just compensation laid down in the statutes may not
improvements/structures, the Implementing Agency shall replace the courts own judgment as to what amount should be awarded and
consider, among other things, the kinds and quantities of how this amount should be arrived at. Legislative enactments, as well as
materials/equipment used, the location, configuration and other executive issuances, providing the method of computing just compensation
physical features of the properties, and prevailing construction are treated as mere guidelines in ascertaining the amount of just
prices. (Emphasis supplied) compensation.

Depreciation should be deducted because modern materials and design are When acting within the parameters set by the law itself, courts are not
assumed in the replacement cost method. In using the depreciated strictly bound to apply the formula to its minutest detail, particularly
replacement cost method, [t]he intent is to provide a functionally similar when faced with situations that do not warrant the formulas strict
improvement in order to apply a meaningful level of application. The courts may, in the exercise of their discretion, relax the
depreciation.230cralawrednad formulas application to fit the factual situations before them. 233cralawrednad

If we adopt the new replacement cost method, PIATCO would be
compensated for more than what it had actually lost. We must remember
that the concept of just compensation does not imply fairness to the property
owner alone. In an eminent domain situation, compensation must likewise be
just to the public which ultimately bears the cost of expropriation. The
property owner is entitled to compensation only for what he actually
loses; what he loses is only the actual value of the property at the time
of the taking.231cralawrednad
We clarify, however, that this Court is not confined to the use of the
depreciated replacement cost method in determining the just compensation
in these cases. Valuation is not exclusively a technical matter used in arriving
at a numerical measure of compensation. Rather, valuation in eminent
domain is a judicial question based on equitable principles. Thus, this Court
shall likewise endeavor to weigh the justness and fairness of compensation
between the condemnor and the condemnee, considering the factual
circumstances of this case.234cralawrednad

Just compensation must not extend beyond the property owners loss or Construction cost of the NAIA-IPT III
injury. This is the only way for the compensation paid to be truly just, not only
to the individual whose property is taken, but also to the public who will 3.a. The base valuation of the
shoulder the cost of expropriation. Even as undervaluation would deprive the NAIA-IPT III
owner of his property without due process, so too would its overvaluation
unduly favor him to the prejudice of the public.232cralawrednad The Government claims that the construction cost or the base valuation of
the NAIA-IPT III amounts to $300,206,693.00, itemized as
In using the depreciated replacement cost method of valuation, we do not follows:235cralawrednad
rely on Kaczmareks affidavit and other documents not presented before the
trial court, and which were belatedly attached to the Governments motion for Total $USD in Manila @3Q01
partial reconsideration dated August 22, 2013.
General Requirements and Conditions $ 36,279,033
This Court exercises its judicial function to fix just compensation in Site Development $ 3,293,967
eminent domain cases on the basis of the law, the rules, and the evidence
Terminal North Concourse $ 6,847,663
including the appraisal reports and the embedded formula on how the
parties arrived at the amounts of just compensation presented by the Terminal South Concourse $ 11,169,979

551
 Terminal Head House $ 60,763,798 2.2.1 Stated simply, valuation of any given structure is derived by multiplying
the structures dimensions, i.e., quantities by a price (i.e., rate) for
Terminal Building Services $ 54,982,628 constructing the works at a designated time and specific location, adding the
Multi Storey Car Park $ 8,791,857 cost of works in, on, and around the structure, and then accounting for
inferior and non-performing works, and rectification of those works.
Special Systems $ 69,321,503
Airside Infrastructure Works $ 31,065,288 2.2.2 I have arrived at the CCVs by carrying out the following sequence of
Landside Infrastructure Works $ 11,496,552 tasks:
1) Understanding the project as bid and as eventually constructed.
Terminal Support Facilities $ 6,194,425
Office Fit-out $0 2) Preparing measured quantities for the major elements of the completed
Builders Work in Connection with Services Included works.

Total $ USD $ 300,206,693 3) Establishing appropriate rates and prices for carrying out the works at that
time in Manila, Philippines.
On the other hand, PIATCO, Takenaka, and Asahikosan argue that the
construction cost amounts to 4) Adjusting the quantities and/or rates and prices to take into account the
$360,969,791.00, viz:ChanRoblesvirtualLawlibrary extent of non-performing and/or inferior quality works, the extent of
rectification and remediation of the Terminal to bring it to Code and making it
In US dollars structurally safe, and 22,193 m2 of Unnecessary Areas that was built in the
Total payments of PIATCO 275,119,807.88 Terminal.
Add: Awards by the London Court 84,035,974.44
Award by the Makati Court 1,814,008.50 5) Making provision for the cost of remediation on items which deteriorated
Total Construction Cost 360,969,790.82 between December 2002 and December 2004.

6) Making provision for the value of depreciation of Terminal 3 between

As we had earlier explained, construction cost is the amount necessary to
December 2002 and December 2004.
replace the improvements/structures, based on the current market prices for
materials, equipment, labor, contractors profit and overhead. Construction or
7) Deducting the cost of rectification to otherwise bring the Terminal to the
direct costs is also defined as the costs that are normally and directly
standards in the Bid Documents, including the cost of building some 63,490
incurred in the purchase and installation of an asset or group of assets into
m2 of Necessary Operational Areas that was not built in the
functional use. Construction costs generally take into account the labor used
Terminal.237cralawrednad
to construct buildings; materials, products, and equipment; contractor's profit
and overhead, including job supervision, workers' compensation, fire and
2.3 Understanding the Project
liability insurance, and unemployment insurance; performance bonds,
surveys, and permits; use of equipment; watchmen; contractor's shack and
2.3.1 I visited the Terminal 3 site between May 9, 2006 and May 12, 2006;
temporary fencing; materials storage facilities; and power-line installation and
May 30, 2006 and June 2, 2006; and June 20 and June 25, 2006, when I
utility costs.236cralawrednad
held meetings with the Office of the Solicitor General, White & Case, MIAA,
Arup, TCGI, and Gensler. I based myself at the Terminal 3 complex during
We find the Governments computation of construction cost to be more
my visits in May and June 2006 and made a number of visits to various areas
realistic and appropriate. As the CA aptly observed, the Gleeds Report is
both internal and external to Terminal 3 to gain a full understanding of the
more particularized, calculable and precise. Tim Lunt sufficiently explained
scope of the works performed.
how he arrived at the value of $300,206,693.00:ChanRoblesvirtualLawlibrary
2.3.2 Members of my staff visited the Terminal 3 site between May 30, 2006
2.2 Methodology
552
and June 25, 2006, and based themselves in the Terminal 3 complex to
prepare quantities from construction drawings made available by Takenaka,
which, as noted, are not properly designated As-built drawings. To
safeguard against error or outdated dimensional information in the drawings,
my staff checked certain major dimensions against the structures as
constructed and found the dimensions to be substantially accurate. We did
not check the drawings for detailed accuracy of the contents in the drawings
(i.e., what is within the dimensions).
2.3.3 Members of my staff also visited the Terminal 3 site between February
26, 2008 and March 11, 2007. During that time, they gathered pricing
information from local construction contractors to assist with the pricing of the
CCVs.
2.3.4 I have examined all of the documents listed in Appendix B and had
discussions with each of the Republics airport architectural and engineering
experts on the content of their reports to gain a full understanding of the main
issues affecting Terminal 3 and the CCVs.238
2.4. Preparing the Quantities
Bills of Quantities
2.4.1 Construction projects are generally priced by construction contractors
for the purpose of competitive tendering using a Bill (or Bills) of quantities.
Bills of Quantities are defined as:ChanRoblesvirtualLawlibrary
A list of numbered items, each of which describes the work to be done in a
civil engineering or building contract. Each item shows the quantity or work
involved. When the procedure of tendering is adopted (as is usual), the Bill is
sent out to contractors. Those contractors who wish to do the work return the
bill, with an extended price opposite each item. This priced bill constitutes the
contractors offer (or tender to bid) to do the work.239cralawrednad
2.4.5 As noted, it was apparent from commencement of preparation of the
CCVs that it was doubtful that the set of drawings listed in Appendix B that
Takenaka provided were As-built or approved. Accordingly, because of
uncertainty over the accuracy of the As-built drawings, and to avoid
preparing Bills of Quantities based on potentially inaccurate information, I
opted not to produce full Bills of Quantities to form the basis of the CCVs.
Instead, I relied on a Principle Quantities type approach.240
Principle Quantities
2.4.6 The Principle Quantities type approach is common in the cost
planning and cost estimating of construction projects. CESMM3 describes
Principle Quantities as a list of principle components of the works with their
approximated estimated quantities x x x given solely to assist surveyors and
estimators in making rapid assessment of the general scale and character of
the proposed works prior to the examination of the remainder of the bills of
quantities and other contract documents on which construction estimates or
tenders will be based. This methodology involves the preparation of
quantities for the major elements of the construction works where the costs
cannot be estimated accurately from historical data, or for those areas which
are known to vary in cost due to the quality or nature of the works. The
quantities produced by adopting this approach are what I term Principle
Quantities.241cralawrednad
2.4.7 Given the serious concerns over the accuracy of the so called As-built
drawings, and in order to make some assessment of the dimensional
accuracy of the Takenaka drawings, we carried out a number of checks of
the plan dimensions against our measurement of the physical dimensions of
the structures. Overall dimensions (length and width) were checked for a
single floor plate in each of the Terminal North Concourse, the Terminal
South Concourse and the Terminal Head House buildings. Our checks
revealed no major discrepancies in respect of the physical plan dimensions
of the drawings against the actual dimensions of the overall building floor
plans. We therefore decided to use the drawings provided by Takenaka to
produce the Principle Quantities dimensions required for us to prepare the
CCVs.
2.4.8 The Principle Quantities dimensions produced by Gleeds from the
drawings made available by Takenaka (listed in Appendix B Drawing List 1)
are included in Appendix G.
2.4.9 It is standard good practice for quantities produced as part of the
measurement process to be checked by another member of the team who is
not connected to the particular project. The quantities we produced were
technically checked by another member of Gleeds for consistency among
inter-related items, e.g., consistency between floors and ceilings, and to
identify any major items not measured. Another member of Gleeds also
checked the accuracy of the gross floor area, or GFA, calculations for each
of the buildings and no significant errors were identified.242
2.5. Arriving at the Rates and Prices
2.5.1 In order to derive the rates by which the quantities are produced to
arrive at the CCV figures for this project, it is necessary to establish:
The period of construction;
The geographical location of the works;
Access to the site;
553
 Any physical restrictions that might impede construction of the works; rates and prices included in the CCVs are also included in Appendix D in
The duration for carrying out construction; the column headed Rate Source.244cralawrednad
Database of costs;
The specification of the works; 3.1.4 Second, it was necessary to adjust the prices to the midpoint of
The quality of the works as constructed; and construction. As such the UK @ 3Q01 levels to align them with required
The extent of works requiring remediation and rectification base costs for inclusion in both CCVs. This conversion is made by using the
BCIS All-in Tender Price Indices published by the Royal Institution of
Chartered surveyors. These costs are shown in the CCV as UK @ 3Q01.
2.5.2 All of the above factors have an effect on the CCVs and it is necessary
to consider the implications of each to arrive at the CCV figures. General 3.1.5 Third, the UK @ 3Q01 costs were converted from UK pounds to US
guidance including a number of the above items are referred to in the dollars using an exchange rate of UK1 = ISD$1.4540. This exchange rate is
document titled Guide to Carrying Out Reinstatement Cost Assessments obtained by averaging the exchange rates recorded for October 1, November
published by the Royal Institution of Chartered Surveyors in September 1 and December 3, 2001 (i.e., 3Q01) using historical data from the
1999.243cralawrednad
xrates.com website. These particular dates represent the midpoint of
construction which I refer to earlier in this report. The result of this conversion
3. CCV CALCULATIONS
is shown in the column marked UK @ 3Q01 in Appendix D.
3.1 Calculation of Rates and Prices
3.1.6 Fourth, a Location Adjustment of the $USD @ 3Q01 cost is
necessary to account for the local cost of constructing in Manila. Local cost
3.1.1 The CCVs have been calculated in UK costs converted to $USD in
data gathered in Manila by members of my team in February and March
Manila. x x x
2007 was compared directly with UK prices to establish a ratio between the
UK and the Philippines. The cost data gathered in Manila was compared on
3.1.2 The basic approach to producing the CCV figures entails the following a like for like basis with 1st Quarter 2007 UK prices. The results of this
steps:cralawlawlibrary comparison of rates result in the Location Adjustment. The Location
1) Establish UK pricing levels at 2nd Quarter 2006 (UK @ 2Q06) (the date Adjustments resulting from this calculation which are applied to the CCV are
when the pricing exercise was initially carried out);
UK1=$USD0.7576 for the mechanical, electrical and plant elements. The
average conversion rate across the CCVs is UK1=$USD0.5370 or
2) Convert the UK @ 2Q06 prices into UK at 3rd Quarter 2001 prices (UK 53.70%.245cralawrednad
@ 3Q01) (the mid point of construction) using published and recognized
indices; 3.1.7 I double-checked my calculations of the Philippine prices by
considering what the conditions in the Philippines construction market were
3) Convert the UK @3Q01 prices into US dollars at 3rd Quarter ($USD
at the time the project would have been bid, and how these conditions
@3Q01) (the currency of the Termianl 3 Concession Contract) using changed through to the end of 2002 when works stopped on site.
published currency exchange rates;
During the period of 1995 to 2002 the Construction Materials Wholesale
4) Convert the $USD @3Q01 prices to reflect local levels of pricing by Price Index (CMWPI) published by the Economic Indices and Indicators
applying a Location Adjustment using various methods and sources of
Division, Industry and Trade Statistics Department, Philippine National
information to check the accuracy of the conversion.
Statistics Office, Manila, Philippines showed an average increase of 2.8%
Each of these steps is described below. per annum.
3.1.3 First, the quantities produced for Terminal 3 were priced using a During the periods 2000 to 2001 and 2001 to 2002 the increases where 2.1%
mixture of current data in Gleeds Database of costs and published cost data, and 3.4% respectively. The increases are seen to be at similar levels both in
including Spons, and are priced at 2Q06 prices. These costs are shown in
the period during which the works were priced, contracts executed and
the CCVs as UK @ 2Q06. The rates used are included in Appendix D. during construction and in my opinion this would have resulted in no material
Support in respect of the reference to the source derivation of each of the
554
difference to the pricing level of the onshore works submitted at tender stage On-Shore US$133.64 Million
when compared with the actual cost incurred. Off-Shore US$189.83 Million
VAT US$11.43 Million
3.1.8 I also have gathered information from other Chartered Surveyors ER Changes US $3.93 Million
published data which also indicate that the Location Adjustment for the TOTAL US$338.83 Million
Philippines is in the region of 45%. This percentage is in line with the more
detailed results obtained as part of my own calculations.246 2.2.14 The construction cost stated above x x x is at 2002 prices (no
adjustments for inflation/escalation) and are exclusive for all other attendant
We thus rule in favor of the Governments position and reject PIATCOs costs, such as the engineering and architectural service fees, quality
claimed construction cost. For one, PIATCO made inconsistent statements assurance service fees, construction supervision service fees, construction
with respect to the construction cost of the NAIA-IPT III. The Scott Wilson insurance, site development costs, financing costs and other associated
report states that the construction cost of the NAIA-IPT III amounted to costs.
US$338.83 million, exclusive of attorneys fees, cost of the suit, interest
rates, etc. This amount is inconsistent with PIATCOs claimed construction 2.2.15 We would conclude that the certified cost of construction of US$338
cost of $360,969,790.82 in its pleadings. The relevant portion of the Scott million and the other attendant costs are fair and reasonable. We note that
Wilson report states:ChanRoblesvirtualLawlibrary the Gleeds estimate is close to the figure in 2.2.13 above.

2.1.4 When Scott Wilson was providing Lenders Technical Advice to the 2.2.16 It is noted that in the Gleeds Report entitled Construction Cost
Asian Development Bank in September 2002, the total value of the Valuation for NAIA IPT3 dated 15th November 2010 the project Base Case
construction contracts, estimated by PCI at that time, was as CCV is valued at a gross amount of US$334.61 million (US$300.21 million +
follows:cralawlawlibrary US$34.6 million deductions).247
On-Shore Contract: US$132.35 million
Off-Shore Contract: US$190.08 million Furthermore, PIATCO did not present detailed supporting information on
Total US$322.43 million, excluding VAT how the certified construction cost of US$338.83 million was arrived
2.1.5 The contract priceS under the EPC Contracts are as at.248cralawrednad
follows:ChanRoblesvirtualLawlibrary
PIATCOs statement that the total sum of $360,969,791.00 is evidenced
On-Shore Contract. US$133,715,911 by the As-Built Drawings is misleading. Takenaka and Asahikosans
Off-Shore Contract. US$190,037,328 computation of construction cost includes items which do not pertain to the
Total US$323,753,239 excluding VAT construction of the NAIA-IPT III. PIATCO, Takenaka, and Asahikosan
erroneously included in the construction cost the costs of the action,
2.1.6 The amounts certified for the costs of construction up to 23 June 2004 interest rates on the judgment award of $14,827,207.00 and
in payment certificate no 35 which is the last payment certificate that has $52,008,296.54, attorneys fees, and litigation expenses.
been certified by PIATCO, are as follows:ChanRoblesvirtualLawlibrary
These items were not directly incurred in the construction of the NAIA-IPT III.
On-Shore US$133.64 Million In Claim No. HT-04-248, only $6,602,971.00 and $8,224,236.00 or the sum
Off-Shore US$189.83 Million of $14,827,207.00 can possibly relate to the construction cost of the NAIA-
VAT US$11.43 Million IPT III. On the other hand, in Claim No. HT-05-269, only the amounts of $21,
ER Changes US $3.93 Million 688,012.18 and $30,319,284.36 or the total sum of $52,008,296.54 can be
TOTAL US$338.83 Million possibly imputed to the construction cost of the terminal.

2.2.13 Based on the certified IPC no. 35 for both Takenaka and Asahikosan, In any case, we cannot consider the London awards as evidence of the
the cost of the completed and certified works (as of IPC No. 35) are as construction cost of the NAIA-IPT III. To do so in this case is to recognize
follows:ChanRoblesvirtualLawlibrary Claim No. HT-04-248 and Claim No. HT-05-269 when their recognition and
555
enforcement have yet to be decided by this Court in G.R. No. 202166. It is a
basic rule that Philippine courts cannot take judicial notice of a foreign
judgment or order.249cralawrednad
We can only recognize and/or enforce a foreign judgment or order after a
conclusive and a final finding by Philippine courts that: (1) the foreign court
or tribunal has jurisdiction over the case, (2) the parties were properly
notified, and (3) there was no collusion, fraud, or clear mistake of law or
fact.250cralawrednad
PIATCO, Takenaka, and Asahikosan alleged that PIATCO paid Takenaka
and Asahikosan the sum of $275,119,807.88 pursuant to the Onshore
Construction and Offshore Procurement Contracts. According to the RTC
(whose ruling the CA did not reverse), these parties failed to prove the fact of
payment of $275,119,807.88.
We add that the alleged payment of $275,119,807.88 does not support their
allegations that this amount pertains to the construction cost of the NAIA-IPT
III. Takenaka and Asahikosans admission that the sum of $275,119,807.88
were paid by PIATCO does not bind the Government who is not a party to
the Onshore Construction and Offshore Procurement Contracts. If at all, the
Court can only recognize the sum of $66,834,503.54 from PIATCO,
Takenaka, and Asahikosans computation of construction cost, which
is much lower than the Governments computed construction cost of
$300,206,693.00.
Lastly, we note that Takenaka and Asahikosans claimed construction cost is
different from the amount reflected in the Tengson Report. In this Report,
Gary Taylor stated the true value of the NAIA-IPT III facility is nearer to
US$408 million, given the fact that Gleeds failed to recognize or include any
values for design & other consultants (10%) or property inflation based on
GRP schedules (15%).251cralawrednad
3.b. Structural defects on
the NAIA-IPT III
The Government contends that that the NAIA-IPT III suffers from structural
defects, as follows:ChanRoblesvirtualLawlibrary
1. Failed structural elements of the NAIA-IPT III, as identified in the
Arup Seismic Evaluation Report and Gravity Loading and Element
Capacity Assessment;
2. The inferior quality of material used and works, including, for
example, floor tiling, plasterboard wall finishes and ceilings, and the
internal and external metal paneling;
3. The cost of seismic and gravity load structural retrofits for the failed
elements in the terminal buildings and multi-storey car park
structures, as described in Arups Drawings listed in Appendix B
Drawing List 2 and other rectification works required to bring the
Terminal to compliance with applicable building and airport codes as
indicated in the Appendices of Arups Site Observation Report; and
4. The cost of seismic and gravity load structural retrofits for the failed
elements in the elevated roadway structures, as described in Arups
Drawings listed in Appendix B Drawing List 3, Arup Review on
TCGI Report of Civil Design Review and Evaluation Elevated
Roadway, dated March 2009; and other rectification works required
to bring the elevated roadways to compliance with applicable
building and airport codes, as indicated in the Appendices of Arups
Site Observation Report.252
Scott Wilson argued that no structural elements of the NAIA-IPT III actually
failed.253 He emphasized that there were varying opinions regarding the
integrity of the NAIA-IPT III:ChanRoblesvirtualLawlibrary
3.3.7 The adequacy of the structural frame, individual load bearing elements
and foundations under normal gravity loads should be able to be readily
evaluated. However, there are clearly differences of opinion between all 3
parties who have carried out design and assessments in this regard in terms
of the extent of apparent failed elements under the design appraisal which
ranges from:
Meinhardt zero failures
Arup reports under gravity loading 4% of superstructure elements
and less than 1% of all substructure elements
Arup reports under seismic loading less than 1% of all primary RC
and composite columns, around 3% of all primary RC beams, around
6% of all shear walls, around 8% of piles (mostly at shear walls) and
around 1% of mat footing locations. Differential settlements are
considered insignificant to cause any additional distress in the
buildings. Pounding between floors of adjacent sectors is not an
issue.
TCGI extent not readily identifiable from documents reviewed
although within Section 2.0 of the TCGI July 2008 report it states that
556
 the evaluation did not yield results pointing to foundation instability
as a cause for concern.
3.3.8 On the basis of discussion in 3.3.6 above it would be reasonable to
follow the assessment of the original designer (Meinhardt) who also provided
a Letter of Guarantee confirming the adequacy of their design, (ref
para3.3.30).
He also disputed the Governments allegations that some portions of the
NAIA-IPT III would not be able to sustain strong earthquakes and that some
areas of the NAIA-IPT III were built using materials with inferior
quality:ChanRoblesvirtualLawlibrary
c. Seismic Activity (Terminal and Multi-Storey Carpark)
3.3.12 It is understood from press reports that, since substantial completion
of the airport in 2002, Manila has been subjected to a number of
earthquakes. It has been reported that on 25 March 2010 a strong
earthquake measuring 6.2 on the Richter scale hit Metro Manila according to
the government seismology institute. It was further reported that in July 2010
intense seismic activity persists in the Philippines and Manila continues to
be struck by moderate to strong earthquakes of 6.5 to 7.6 magnitude. We
can find no record relating to any damage being reported in terms of the
structure, finishes or services associated with NAIA Terminal 3 as a result of
these occurrences.
xxxx
3.3.14 Inferior quality of materials used, for example internal finishes.
3.3.15 Gleeds do (sic) not define exactly what areas they mean by this.
There is a number of finished items where deductions in excess of
US$800,000 have been made but the rational for the quantification of the
deduction is not explained. If the works were inferior to that specified then
this would be reflected in the payments made to Takenaka under the EPC
contract.
Scott Wilson likewise supported Takenaka and Asahikosan position that the
Governments experts examined the structural integrity of the NAIA-IPT III
using the recent building codes, which were not yet in place at the time the
NAIA-IPT III was designed and built.
3.3.18 Seismic and gravity load retrofit and other rectification works
required to bring the building to compliance with applicable building
and airport codes.
3.3.22 TCGI also provided an option titled A Government Prerogative which
states:cralawlawlibrary
Research in earthquake engineering has rapidly progressed to the extent
that seismic design provisions for the design of new buildings and
procedures for the evaluation of existing ones have drastically evolved. The
current edition of the National Structural Code of the Philippines (NSCP) is
dated 2001, whereas Meinhardt used the 1992 edition which was applicable
at the time the Terminal was designed.
There are new published guidelines for the structural safety assessment of
existing buildings from such organizations as the Federal Emergency
Management Agency (FEMA) which have evolved into published documents
for the structural rehabilitation of existing buildings. TCGI have therefore
suggested that MIAA and the Philippine Government may wish to use the
more recent published documents to enhance/upgrade the facility.
3.3.23 It would appear from the Arup documents reviewed that they have
taken this approach in their assessment of design i.e., consideration of
updated documents (NSCP 2001 and UBC 1997) whilst Meinhardt used the
relevant codes at the time of design which was NSCP 1992. Consequently
any results from assessments carried out to later published codes has no
direct bearing on the design of the facility which was carried out prior to the
issue of these later standards. As such any assessment and proposed
strengthening/retrofit works in this regard is considered to be an
enhancement of the design and has no relevance on the value of the NAIA
Terminal 3 facility as constructed under the original contract.
On the other hand, the relevant portions of the Tengson Report dated
December 2010254 states:ChanRoblesvirtualLawlibrary
In addition, we should note herein that Takenakas structural designer,
Messrs. Meinhardt, concluded that its check on the structural ductility
requirements (as questioned by TCGI & Ove Arup) on elements which do not
resist lateral forces, is in full compliance of the Philippine Code NSCP 1992
and its originating design code ACI-318 (1989), and this is supported by
several members of the American Concrete Institute (ACI). Both Takenaka
and other parties (including Meinhardt and members of the ACI), have
concluded that TCGI & Ove Arup reports use several conflicting and
misunderstood mathematical models. These include but are not limited to the
following:ChanRoblesvirtualLawlibrary
(i) TCGI used larger loadings than those specified in the Design & Load
Schedule Plan.
(ii) Their modeling for sector 3 uses incorrect storey elevations and the slab
557
 thickness did not match those on the as built plans. the Final Report.
(iii) Beam section sizes do not match those shown on the as built plans.
(iv)TCGI used Dynamic Analysis in their modeling, whereas there is no Under Section 3, Rule 6 of the Internal Rules of the CA, the CA may receive
requirement for such an analysis in the Philippine Structural Code evidence in the following cases:ChanRoblesvirtualLawlibrary
NSCP 1992.
(v) TCGI & Ove Arup used the updated NSCP 2001 (and UBC1997) Philipine (a) In actions falling within its original jurisdiction, such as (1) certiorari,
Codes, yet Takenakas design was based upon the NSCP 1992 code prohibition and mandamus, (2) annulment of judgment or final order, (3) quo
because the 2001 updated was not available when the NAIA 3 designs warranto, (4) habeas corpus, (5) amparo, (6) habeas data, (7) anti-money
were completed in 2000. laundering, and (8) application for judicial authorization under the Human
(vi)TCGI & Ove Arup reports were based upon a system which incorporates Security Act of 2007;
frame beams and columns as primary structural element, whereas the
Takenaka design used a building frame system (Sheer Wall System). Two (b) In appeals in civil cases where the Court grants a new trial on the
differing design methods will lead to different results.255 ground of newly discovered evidence, pursuant to Sec. 12, Rule 53 of
the Rules of Court;
PIATCO also argued that it is not the sole entity responsible for the
completion of and/or compliance with the outstanding items in the JAC (c) In appeals in criminal cases where the Court grants a new trial on the
project status summary report dated February 28, 2003. The summary report ground of newly discovered evidence, pursuant to Sec. 12, Rule 124 of the
shows that some outstanding items should be performed by the rules of Court; and
Government.256cralawrednad
(d) In appeals involving claims for damages arising from provisional
While Scott Wilson stated that only retrofit works actually undertaken should remedies. (Emphasis supplied)
be taken into consideration in the valuation of the NAIA-IPT III,257 Takenaka
and Asahikosan insisted that subsequent rectification works in the NAIA-IPT This provision qualifies the CAs power to receive evidence in the exercise of
III were only intended to ensure that the terminal would be compliant with the its original and appellate jurisdiction under Section 9 of BP 129, as
current building laws and standards.258 They reiterated that the design of the amended:ChanRoblesvirtualLawlibrary
NAIA-IPT III was compliant with the NSCP 1992, the effective building code
when the terminal was designed and built. 259cralawrednad Sec. 9. Jurisdiction. The Court of Appeals shall
exercise:ChanRoblesvirtualLawlibrary
3.b.1. The Court cannot consider
the additional evidence submitted by Takenaka xxxx
and Asahikosan before the Court of Appeals
The Court of Appeals shall have the power to try cases and conduct
At the outset, we rule that we cannot consider Takenaka and Asahikosans hearings, receive evidence, and perform any and all acts necessary to
attachments in their (1) Motion for Submission of Additional Documents resolve factual issues raised in cases falling within its original and appellate
dated July 30, 2013;260 (2) Supplemental Motion for Submission of Additional jurisdiction, including the power to grant and conduct new trials or further
Documents dated October 3, 2012;261 and (3) Second Supplemental Motion proceedings. Trials or hearings in the Court of Appeals must be continuous
for Submission of Additional Documents dated April 11, 2013 in CA G.R. No. and must be completed within three (3) months, unless extended by the
CV-98029.262 These attachments sought to refute the Governments position Chief Justice.
that the NAIA-IPT III suffered from massive structural defects.
Since Takenaka and Asahikosan filed an ordinary appeal pursuant to Rule
Takenaka and Asahikosan posit that they could have submitted reports 41 in relation to Rule 44 of the Rules of Court, the CA could only have
before the trial court to show that the design of the NAIA-IPT III was admitted newly discovered evidence. Contrary to Takenaka and
structurally sound if the RTC had only furnished the parties copies of the Asahikosans claim, the attachments to the motions are not newly discovered
BOC Final Report and afforded them the opportunity to file a Comment on evidence. Newly discovered evidence is evidence that could not, with
558
reasonable diligence, have been discovered and produced at the trial, and
which, if presented, would probably alter the result.263cralawrednad
We find it hard to believe that Takenaka and Asahikosan could only have
possibly secured the attachments after the trial court had rendered its
decision. With the exercise of reasonable diligence, Takenaka and
Asahikosan could have produced these documents before the BOC since
they were fully aware that the Government presented evidence on the
alleged structural defects of the NAIA-IPT III.
In fact, in their Manifestation/Submission dated November 3, 2009, Takenaka
and Asahikosan attached the Report and Response from Takenaka &
Asahikosan, Contactors for the NAIA 3 Facility and Intervenors in the
Expropriation case between the GRP and PIATCO October 2009 to refute
the allegations of structural defects. Moreover, Takenaka and Asahikosan
manifested that they were reserving their right to submit additional reports,
comments, and memoranda with respect to this issue. The relevant portions
of the Manifestation/Submission dated November 3,
2009 provides:ChanRoblesvirtualLawlibrary
1. The record[s] of this case will show that to date, plaintiffs have
submitted various reports prepared by TCGI Engineers, Ove Arup &
Partners Massachusetts, Inc. and Gleeds (Bristol) Partnership to this
Honorable Court. The TCGI and Ove Arup Reports point out alleged
defects on the IPT 3, while Gleeds made an attempt to establish the
value of the IPT 3, taking into account the findings of the TCGI and
Ove Arup. Intervenors have not given their comments on these
reports since they have not been required to do so by this Court.
2. With the RTCs permission, intervenors respectfully submit the
attached Report and Response from Takenaka & Asahikosan,
Contactors for the NAIA 3 Facility and Intervenors in the
Expropriation case between the GRP and PIATCO October
2009 prepared by Mr. Gary Taylor, in response to the above
mentioned reports. Intervenors respectfully manifest that they
are reserving their right to submit additional reports, comments
and memoranda in support of this submission and to aid this
Honorable Court in determining the true value of the IPT
3.264 (Emphasis supplied)
3.b.2. Equiponderance of evidence on
the alleged structural defects of the NAIA-IPT
III favors PIATCO, Takenaka and Asahikosan.
Nonetheless, even without considering and/or giving probative value to the
additional evidence presented by Takenaka and Asahikosan before the CA,
this Court finds that the Government failed to establish by
preponderance of evidence that the NAIA-IPT III suffered from
structural defects.
Under Section 3, Rule 131 of the Rules of Court, it is presumed that a person
is innocent of wrong;265 that a person takes ordinary care of his
concerns;266that private transactions have been fair and regular; 267 and that
the ordinary course of business has been followed.268cralawrednad
Based on these presumptions, we presume that Takenaka and Asahikosan
built the NAIA-IPT III in accordance with the specifications required under the
Onshore Construction Contract and Offshore Procurement Contract. We also
presume that the NAIA-IPT III is structurally sound and compliant with the
applicable building codes and other laws at the time it was designed and
built.
However, these presumptions are merely disputable presumptions and
may be overcome by contradicting evidence. The burden of proof lies with
the Government to prove by preponderance of evidence that the NAIA-IPT III
suffered from structural defects. Preponderance of evidence is the weight,
credit, and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term greater weight of evidence or
greater weight of credible evidence.269cralawrednad
In determining where the preponderance of evidence or superior weight of
evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witness manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify, the probability of
their testimony, their interest or want of interest, and also their personal
credibility in so far as the same may legitimately appear during trial. The
court may also consider the number of witnesses, although preponderance
does not necessarily lie with the greater number.270cralawrednad
The Governments burden of proof to show that the NAIA-IPT III is indeed
defective does not shift to its adverse parties. The burden of proof remains
throughout the trial with the party upon whom it is imposed.
It is the burden of evidence that shifts from party to party during trial.271 This
means that the burden of going forward with the evidence is met by the
countervailing evidence of PIATCO, Takenaka and Asahikosan which, in
559
turn, balances the evidence introduced by the Government. Thereafter, the
burden of evidence shifts back to the Government. We thus add to the construction cost the sum of $20,713,901, itemized
below:276cralawrednad
In the present case, the experts and consultants of the Government,
PIATCO, Takenaka and Asahikosa arrived at conflicting findings regarding Item In Dollars
the structural integrity of the NAIA-IPT III. The Governments experts detailed
with particularity the alleged defects of the NAIA-IPT III, which allegations the Surface demolition 1,971,500
experts of PIATCO, Takenaka and Asahikosan refuted with particularity. Structural retrofit 6,860,660
Elevated road 2,443,276
Under the equiponderance of evidence rule, when the scale of justice shall
stand on equipoise and nothing in the evidence inclines a conclusion to one Miscellaneous
side or the other, the court will find for the defendant. 272cralawrednad Alarms 154,460

If the facts and circumstances are capable of two or more explanations, one Defective Ceiling 479,626
of which is consistent with the allegations of the plaintiff and the other CUTE not working 2,774,563
consistent with the defense of the defendant, the evidence does not fulfill the
Inferior FIDS 22,020
requirement of preponderance of evidence. When the evidence of the parties
is in equipoise, or when there is a doubt as to where the preponderance of BHS Inferior Screening Software 957,881
evidence lies, the party with the burden of proof fails. 273cralawrednad Fire Protection Inferior coverage 924,851

The reason for this rule is that the plaintiff must rely on the strength of his Civil and HV
evidence and not on the weakness of the defendant's claim. Thus, even if the Apron Civil 829,619
evidence of the plaintiff may be stronger than that of the defendant, there is Taxiway Civil 439,280
no preponderance of evidence on his side when this evidence is insufficient
in itself to establish his cause of action.274cralawrednad Storm Water 2,604,081
HV 252,084
In the present case, PIATCO, Takenaka and Asahikosan, met the
Governments allegations regarding the structural integrity of the NAIA- Total 20,713,901
IPT III.
Admittedly, the Government did not open to the public certain areas of the
A reading of the reports of the parties respective experts shows that each NAIA-IPT III because of uncertainties on their structural integrity. 277 The Scott
party presented an equally persuasive case regarding the structural Wilson Report also recognized that some retrofit works should also be
soundness or defect of the NAIA-IPT III. The Governments case on the undertaken in some of the areas of the NAIA-IPT III. It stated that only retrofit
alleged structural defect of the NAIA-IPT III has been met by equally works actually undertaken in the building should be taken into consideration
persuasive refutations by the experts of PIATCO, Takenaka and Asahikosan. in appraising the NAIA-IPT III.278cralawrednad

As a matter of law and evidence, the Governments case regarding this
matter must fail. Since PIATCO, Takenaka and Asahikosan presented
equally relevant and sufficient countervailing evidence on the structural
soundness of the NAIA-IPT III, the scales of justice tilt in their favor. Neither
party successfully established a case by preponderance of evidence in its
favor; neither side was able to establish its cause of action and prevail with
the evidence it had. As a consequence, we can only leave them as they
are.275cralawrednad
On August 14, 2012, the DOTC invited construction firms to participate in the
P212.3 million NAIA-IPT III structural retrofit project. The structural retrofit of
the NAIA-IPT III that was offered for bidding had eleven components: shear
wall thickening; slab thickening; application of FRPs to columns, beams and
slabs; thickening of flat slab drop; enlarging of column size; enlarging pile
cap and footings; steel jacketing; providing shear blocks to pier headstock
(elevated access roadway); enlarging of pier footings (elevated access
roadway); application of FRP to piers (elevated access roadway); and

560
increasing seismic gap between the elevated access roadway and adjacent
structures (sector 1, 2, car park).279 The Official Gazette further
stated:ChanRoblesvirtualLawlibrary
Shear wall thickening is meant to fortify the reinforced concrete wall to
increase its capacity against horizontal structure movement. At the same
time, thickened slabs will increase their bending capacity and resistance
against heavy superimposed loadings.
Applying fiber-reinforced polymer (FRP) to columns, beams, and slabs will
increase their strength and resistance against excess loads and combined
forces of elements. A thicker flat slab drop is meant to strengthen the slab-
column connection.
We find the exclusion of the unnecessary areas from the base value
unjustified. Since the Government would expropriate the entire NAIA-IPT III,
the Government should pay for the replacement cost of the retail mall and
the excess retail concession space. The Government cannot avoid payment
simply because it deems the retail mall and the retail concession space as
unnecessary in its operation of the NAIA-IPT III. To reiterate, the measure of
just compensation is not the takers gain, but the owners
loss.282cralawrednad
Consequently, we include in the computation of construction costs the
excess concession space in the amount of $1,081,272.00, and the four-
level retail complex in the sum of $12,809,485.00.283cralawrednad

Bigger -sized columns will also increase their capacity against combined 4. Attendant costs of the NAIA-IPT III
stresses, while enlarged pile cap and footings will increase foundation
capacity under compression. They also prevent movement of the foundation Scott Wilson criticized the Gleeds Report for excluding the attendant costs in
during earthquakes. the construction cost valuation. He stated:ChanRoblesvirtualLawlibrary

Steel jacketing is meant to resist the additional loads. Shear blocks to pier 3.1.13 Gleeds do (sic) not show any costs for planning and design
headstock will provide a bridge interlock is meant to distribute excess load consultancy fees preconstruction. In our experience the following percentage
along the carriage way. ranges of the construction cost would typically be the international norms for
these fees.
Enlarged pier footings will prevent foundation overturning during earthquake
events. Attendant Costs Percentage Range

Application of FRP to piers will also increase the column capacity and Architecture 3.0 to 4.0 %
ductility against combined stresses due to earthquake forces.

Increased seismic gap between the elevated access roadway and adjacent Civil and Structural 1.0 to 4.0 %
structures will reduce the risk of pounding between the bridge and building
structure.280 Electrical and Mechanical 2.5 to 3.5 %

However, no documents regarding the retrofit project exist as part of the Quantity Surveyor 1.0 %
record of the case. The retrofit bid took place in 2012, or after the
promulgation of the trial courts ruling. Hence, we have to disregard
Project Management 1.0 %
Government claims pertaining to the retrofit project.

3.c. The unnecessary areas Total 8.5 to 11.5 %

Gleeds excluded unnecessary areas from the computation of the base

value. These unnecessary areas are the multi-level retail mall that is 3.1.14 On the basis of a construction cost valuation of the order of US$322
accessible only through the multi-storey car park (20,465 m 2), and million we would expect planning and design consultancy fees
the excess retail concession space (1,727 m 2).281cralawrednad preconstruction to be a minimum of US$27 million, based on typical

561
international norms. responsibilities have to be agreed between a number of different parties.

3.1.15 Some preliminary design was carried out by Takenaka prior to the Overall Summary
EPC tender design so slight lower planning and design consultancy fees
could be expected. It is understood that PIATCO have paid US$19.3 million 3.1.21 PIATCO has incurred consultancy fees and site preparation
to the designers PCI, SOM, PACICON and JGC (architect of record) and this costs of US$41.7 million (US$31.4 plus US$10.3 million) not included by
therefore appears a fair and reasonable fee. Gleeds in the Base Case CCV.284

3.1.16. In addition there is also the cost of site supervision. In this case there In response, Tim Lunt asserted that its CCV of US$300,206,693.00 already
was the independent QA role undertaken by Japan Airport Consultants and includes the attendant costs of US$36,279,033 under the heading General
construction supervision by PCI. It is noted that the Bid Document suggested Requirements and Conditions. The sum of US$36,279,033 represents the
that up to 3% of the construction cost should be allowed for the independent General Requirements Section of the Takenaka Bill of Quantities. The
QA role. In our experience we would expect QA and construction supervision General Requirements and Conditions is composed of engineering and
to cost between 3% and 5% of the construction cost. architectural services fees, quality assurance services fees, construction
supervision services fees, construction insurance, and site. Tim Lunt,
3.1.17 On the basis of a construction cost valuation of the order of US$322 however, admitted that the General Requirements and Conditions exclude
million we would expect the cost of construction supervision to be a minimum financing costs, and other associated costs. He likewise stated that
of US$9.5 million. It is understood that PIATCO have paid US$7.9 million to PIATCOs attendant costs have no evidentiary support.
the QA Inspectors (JAC) and US$4.2 million to PCI, SOM, PACICON and
JGC and this therefore appears not reasonable. On December 14, 2010, PIATCO attached to its Compliance documentary
evidence of its claimed attendant costs of US$70,197,802.00. These
3.1.18 In summary, PIATCO have paid the following consultancy include photocopies of summary of payments for architecture &
fees:ChanRoblesvirtualLawlibrary engineering, quality assurance, construction supervision, construction
insurance, site development, other costs and financing costs, official receipts,
Planning and design consultancy fees preconstruction US$19.3 million statements of account, sales invoices, endorsements, insurance policies and
other related documents, acknowledgement receipts, agreements, invoices,
QA Inspectors US$7.9 million and bonds.
Construction supervision US$4.2 million
PIATCO claims that the following entities rendered services in the
Total US$31.4 million
construction of the NAIA-IPT III:ChanRoblesvirtualLawlibrary

3.1.19 In our opinion these fees are in reasonable range.

Services Rendered Entities that Rendered the Services
Site Preparation Costs Engineering and Pacific Consultants International Asia, Inc.
Architecture Pacicon Philippines, Inc.
3.1.20 We understand that PIATCO has incurred costs of US$10.3 million for Architect J. G. Cheng
relocation of PAF existing facilities, removal of subterranean structures and RMJM Philippines, Inc.
site preparation which the Gleeds Base Case CCV has not included. Quality Assurance Japan Airport Consultants
I.A. Campbell & Associates
Legal Costs
Construction Supervision Pacific Consultants International Asia, Inc.
3.1.21 We assume that in addition to the above fees PIATCO has incurred Construction Insurance Gotuaco del Rosario
legal costs in planning and constructing the development and this is quite
Site Development Bases Conversion Development Corporation
normal on BOT concession contracts where contract agreements and
Skidmore, Owings & Merrill
562
 Pacific Consultants International Asia, Inc. Total US$70,197,802
Natural Resource Development Corporation
Serclan Enterprises The BOC, the RTC, and the CA uniformly found that PIATCO failed to
Geodesy Services, Inc. substantiate its attendant costs. The CA observed that PIATCOs
Geotechnics Philippines, Inc. summarized computation of attendant costs was self-serving and
Revalu Constructions & Supply unsupported by relevant evidence.
N.O. Mercado Construction, Inc.
Lopez Drilling Enterprises Unlike the BOC and the RTC which pegged the attendant cost at 10% of the
Monark Constructions construction cost as an accepted industry practice, the CA made a finding
Illustrious Security and Investigation Agency, Inc. that the General Requirements and Conditions in the Gleeds Appraisal
Core Watchmen, Security and Detective Agency Report constitutes the attendant costs. The CA stated that there is no need
Corp. to further recognize and award separate attendant costs because these were
Other Services Laguna Lake Development Authority already included in the construction cost valuation of US$300,206,693.00.
National Telecommunications Commission The CA explained that the attendant cost becomes part of the total
construction cost once the construction is completed.285cralawrednad
Prudential Guarantee and Assurance, Inc.
Manila Electric Company, Inc. 4.a. PIATCOs attendant costs
Maynilad
Philippine Long Distance Telecommunications, Under the best evidence rule, when the subject of inquiry relates to the
Inc. contents of a document, no evidence shall be admissible other than the
Myrtle Intergen Exchange Corp. original document itself. In proving the terms of a written document, the
original of the document must be produced in court.
Financing Services Dresdner / Kfw / Helaba Banks
Fraport AG/FAG
The best evidence rule ensures that the exact contents of a document are
Deutsche Bank
brought before the court. In deeds, wills, and contracts, a slight variation in
words may mean a great difference in the rights and obligations of the
parties. A substantial hazard of inaccuracy exists in the human process of
Reyes Tacandong & Co. checked the mathematical accuracy of the making a copy by handwriting or typewriting. Moreover, with respect to oral
attendant costs. PIATCO asserts that it engaged the services of various testimony purporting to give the terms of a document from memory, a special
consultants in the construction of the NAIA-IPT III and incurred the following risk of error is present, greater than in the case of attempts at describing
attendant costs:ChanRoblesvirtualLawlibrary other situations generally.286cralawrednad

Attendant Costs Amount The best evidence rule likewise acts as an insurance against fraud. If a party
is in the possession of the best evidence and withholds it, and seeks to
Engineering and Architecture US$19,372,539
substitute inferior evidence in its place, the presumption naturally arises that
Quality Assurance US$6,923,720 the better evidence is withheld for fraudulent purposes that its production
Construction Supervision US$4,302,227 would expose and defeat. The rule likewise protects against misleading
inferences resulting from the intentional or unintentional introduction of
Construction Insurance US$4,329,272 selected portions of a larger set of writings.287cralawrednad
Site Development US$8,358,169
As exceptions to the best evidence rule, Section 3, Rule 130 of the Rules
Other Costs US$ 308,985
of Court provides that non-original documents may be produced in court in
Financing Costs US$26,602,890 the following cases:ChanRoblesvirtualLawlibrary

563
(a)When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
(b)When the original is in the custody or under control of the party against
whom the evidence is offered, and the latter fails to produce it after
reasonable notice;
(c) When the original consists of numerous accounts or other documents
which cannot be examined in court without great loss of time and the fact
sought to be established from them is only the general result of the whole;
and
(d)When the original is a public record in the custody of a public officer or is
recorded in a public office. (Emphasis supplied)
Secondary evidence of the contents of writings is admitted on the theory that
the original cannot be produced by the party who offers the evidence within a
reasonable time by the exercise of reasonable diligence. 288cralawrednad
PIATCO argues that its non-submission of original documents before the trial
court is justified under Section 3 (c), Rule 130 of the Rules of Court. It points
out that a party need not submit the original when it consists of numerous
accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the
general result of the whole. PIATCO insists that the lower courts erred in not
giving probative value to the report prepared by Reyes Tacandong & Co., an
auditing firm, validating PIATCOs computation of attendant
costs. Significantly, Reyes Tacandong & Co. failed to state that it
examined the original documents in validating PIATCOs computation
of attendant costs.
We agree with PIATCO that it need not submit numerous and voluminous
invoices, official receipts, and other relevant documents before the trial court
to prove the attendant costs that it incurred in the construction of the NAIA-
IPT III. The trial court may admit a summary of voluminous original
documents, in lieu of original documents, if the party has shown that the
underlying writings are numerous and that an in-court examination of these
documents would be inconvenient. In other words, Section 3 (c), Rule 130
of the Rules of Court does away with the item-by-item court
identification and authentication of voluminous exhibits which would
only be burdensome and tedious for the parties and the court.
However, as a condition precedent to the admission of a summary of
numerous documents, the proponent must lay a proper foundation for
the admission of the original documents on which the summary is
based. The proponent must prove that the source documents being
summarized are also admissible if presented in court.289cralawrednad
In concrete terms, the source documents must be shown to be original,
and not secondary. Furthermore, the source documents must likewise be
accessible to the opposing party so that the correctness of the summary of
the voluminous records may be tested on cross-examination and/or may be
refuted in pleadings. In ordinary trial-type proceedings, a proper foundation
for the introduction of a summary may be established through the testimony
of the person who is responsible for the summary's preparation, or the
person who supervised the preparation of the summary. 290cralawrednad
The primary reason for these procedural foundations is that the summary of
numerous documents is, in strict terms, hearsay evidence. The trial court
should not haphazardly allow a party to present a summary of numerous
documents and immediately admit and give probative value to such summary
without sufficiently laying these foundations. If the source documents of the
summary are non-original, the trial court would commit a grave error in
admitting and/or giving probative value to the summary of non-original
documents; the evidence admitted would be double
hearsay.291cralawrednad
Furthermore, when a party invokes Section 3 (c), Rule 130 of the Rules of
Court, he does not similarly invoke Section 3 (a), (b), and/or (d), Rule 130 of
the Rules of Court. He does not likewise claim that the original documents
have been lost or destroyed. The party merely asserts that the numerous
documents cannot be examined in court without great loss of time and that
the fact sought to be established from these documents is only the general
result of the whole.
Whenever a party seeks an exemption under the best evidence rule pursuant
to Section 3 (c), Rule 130 of the Rules of Court, he asks permission from the
trial court to produce a summary of numerous documents, whose
originals are available to the adverse party for inspection. He does not
ask permission from the trial court to present in evidence the numerous
non-original documents. Otherwise, the very purpose of Section 3 (c), Rule
130 of the Rules of Court would be defeated. In that case, every exhibit of
non-original documents would be identified, authenticated, and cross-
examined, leading to a tedious and protracted litigation.
Thus, if a party desires to present photocopies of the original
documents, he must first establish that the presentation of photocopies
is justified under Section 3 (a), (b), and/or (d), Rule 130 of the Rules of
Court. He must establish the presence of all the elements under these
provisions.
564
In the case of lost or destroyed documents, the offeror of non-original Because the procedures do not constitute either an audit or a review of
documents must first prove the following elements before secondary financial statements made in accordance with Philippine Standards on
evidence is admitted before the court: (a) the existence or due execution of Auditing, we do not express any assurance on the attendant
the original; (b) the loss and destruction of the original, or the reason for its costs. (Emphasis supplied)
non-production in court; and (c) the absence of bad faith on the part of the
offeror to which the unavailability of the original can be attributed. To 4.b. The BOC and the RTCs attendant cost
conclude otherwise is to allow the party to circumvent the best evidence rule
and the requirements under Section 3 (a), (b), and (d), Rule 130 of the Rules The CA correctly disregarded the BOC and the RTCs computation of
of Court by merely invoking Section 3 (c), Rule 130 of the Rules of Court. attendant costs, which both pegged the attendant cost at 10% of the
construction cost. The BOC and the RTC relied on the mean percentage
In the present case, PIATCO attached to its Compliance dated December range of attendant cost which appears in the Scott Wilson Report as
14, 2010, the photocopies of numerous documents, and the validation of follows:292cralawrednad
PIATCOs computation of attendant costs prepared by Reyes Tacandong &
Co., among others. PIATCO justifies the non-presentment of original Attendant Costs Percentage Range
documents pursuant to Section 3 (c), Rule 130 of the Rules of Court.
Architecture 3.0 to 4.0 %
We affirm the lower courts uniform findings that PIATCO failed to Civil and Structural 1.0 to 4.0 %
establish its attendant costs. PIATCO failed to establish that the
Electrical and Mechanical 2.5 to 3.5 %
photocopied documents fall under Section 3 (a), (b), and/or (d), Rule 130 of
the Rules of Court. These photocopied documents are hearsay evidence. Quantity Surveyor 1.0 %
They are mere scraps of paper and have no weight as basis for the attendant Project Management 1.0 %
costs of the NAIA-IPT III.
Total 8.5 to 11.5 %
We likewise cannot give weight to the summary prepared by Reyes
Tacandong & Co. for being double hearsay. Reyes Tacandong & Co.,
whose letter was addressed to PIATCO and not to the trial court, did not The BOC and the RTC computed the mean percentage range by adding
state in its report that it examined the original documents allegedly proving 8.5% and 11.5% and dividing the result by 2,
attendant costs. Moreover, in a letter dated December 14, 2010, Reyes thus:ChanRoblesvirtualLawlibrary
Tacandong & Co stated it does not express any assurance on the attendant
costs: (8.5 + 11.5)/2 = 10%

We have performed the procedures agreed with Philippine International Air The mean percentage range is highly speculative and devoid of any factual
Terminals, Co., (the Company) with respect to the Companys attendant basis. As a court of law, we should only measure just compensation using
costs incurred in building NAIA Terminal 3 from 1997 to 2004. Our relevant and actual evidence as basis in fixing the value of the condemned
engagement was undertaken in accordance with the Philippine Standard on property. Just compensation must be duly proven by preponderance of
Related Services applicable to agreed-upon procedures engagements. evidence or greater weight of credible evidence.293 Bare allegations,
unsubstantiated by evidence, are not equivalent to proof.294cralawrednad
xxxx
In a case for damages, we allow the party to receive temperate damages in
The sufficiency of the procedures is solely the responsibility of the specified the absence of competent proof on the amount of actual damages.
users of the report. Consequently, we make no representation regarding the Temperate or moderate damages, which are more than nominal but less
sufficiency of the procedures either for the purpose for which this report has than compensatory damages, may be recovered when the court finds that
been requested or for any other purpose. some pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty.295cralawrednad

565

We cannot adopt the same liberal attitude in an eminent domain case
and merely estimate the attendant cost in the total absence of evidence
of construction costs. The amount of just compensation must be
substantiated by a preponderance of evidence.
An eminent domain case is different from a complaint for damages. A
complaint for damages is based on tort and emanates from the transgression
of a right. A complaint for damages seeks to vindicate a legal wrong through
damages, which may be actual, moral, nominal, temperate, liquidated, or
exemplary. When a right is exercised in a manner not conformable with
Article 19 of the Civil Code and other provisions on human relations in the
Civil Code, and the exercise results in the damage of another, a legal wrong
is committed and the wrongdoer is held responsible. 296cralawrednad
In contrast, an eminent domain case arises from the States exercise of its
power to expropriate private property for public use. The Constitution
mandates that the property owner shall only receive just compensation
which, of course, should be based on preponderance of evidence. Moreover,
the determination of eminent domain being a judicial function, there is no
constitutional or statutory provision giving the courts unfettered discretion to
determine just compensation based on estimates and conjectures.
4.c. The Governments attendant cost
We affirm the CAs factual finding that the Governments computation
of construction cost valuation already includes the attendant costs. In
the Gleeds Report dated December 22, 2010, Tim Lunt sufficiently
explained:ChanRoblesvirtualLawlibrary
9. I consider that Engineering and Architecture, Quality Assurance,
Construction Supervision, Construction Insurance and Site Development are
clearly costs which are included for in the CCV. The CCV includes costs
associated with the General Requirements (see Appendix D Summary).
The costs of Site Development are also included (see CCV Appendix D
Part 2, page 5 of 38).
xxxx
25. Scott Wilson states at paragraph 2.2.14 that the constructions costs are
exclusive of all other attendant costs, such as the engineering and
architectural services fees, quality assurance services fees, construction
supervision services fees, construction insurance, site development costs,
financing costs and other associated costs. This statement is incorrect. It
is clear on the inspection of the General Requirements sections of the
Takenaka Bills of Quantities that some if not all of these items are
included in the assessment of the construction costs made by PIATCO
with the exception of 1) financing costs and 2) other associated costs,
for which there is no definition. Scott Wilson makes no reference to the
Takenaka Bills of Quantities nor do they use them as documents which they
have reviewed in paragraph 1.4.1 of their report. I do not understand how
Scott Wilson can ignore the items which are included in the Bills of Quantities
under the heading General Requirements and make the suggestion that they
are additional costs which should be considered.
xxxx
36. In respect of the Engineering Consultancy Fees set out by Scott
Wilson, it is clear to me on inspection of the General Requirements
section of the On shore and Off shore Bills of Quantities that an
element of design fees included as Costs has also been included in the
CCVs and should not therefore be included as an addition. Scott Wilson
has not provided any specific information on the actual cost or extent of
service provided in respect of engineering consultancy.
xxxx
39. The cost associated with the Independent QA role referred to by
Scott Wilson is included in the General Requirements section of the
CCV. (Emphasis supplied)
The Governments CCV already includes attendant costs which are
incorporated in the General Requirements and Conditions. On the basis of
the Bills of Quantities, Gleeds took into account indirect costs in constructing
the NAIA-IPT III, summarized below:ChanRoblesvirtualLawlibrary
Attendant Costs under General Requirements and Conditions
Design $6,439,680.00297
Staff and labour $10,491,139.54298
Insurance $925,210.78299
Professional Indemnity Insurance $2,200,000.00300
Consequential Loss Insurance $800,000.00301
Setting out $364,647.00302
Health and Safety $403,224.00303
566
 Environmental management $176,490.00304 process of asset valuation. No attempt is made to measure the change in an
assets market value during ownership because it is assumed that plant
Design $2,631,100.00305 assets are not held for resale.314 Book depreciation refers to the amount of
Staff and labour $2,590,774.19306 capital recapture written off an owners books; it is not market
derived.315 Thus, the book value original cost less accumulated
Insurance $71,109.77307
depreciation of an asset may be different from the market value.
Total $27,093,375.28 Consequently, an asset can have zero book value but still have a
significant market value.316cralawrednad

5. Deductions from the replacement Simply put, book depreciation is measured against the book value or
cost of the NAIA-IPT III original cost of the property and is the amount of capital recapture written off
an owners books.317Accrued depreciation is measured against the current
5.a. Depreciation should be market value of the property. 318cralawrednad
deducted from the replacement
cost. Under the depreciated replacement cost method, accrued depreciation is the
difference between the replacement cost of the improvements on the
In eminent domain cases, it is acceptable that a deduction should be made effective date of the appraisal and the market value of the improvements on
to the extent to which the improvement or fixture has depreciated. The cost the same date.319cralawrednad
of the buildings and fixtures, minus depreciation, is a reasonable test of the
amount by which they enhance the market value of the land even where the In the Gleeds Report, Tim Lunt stated:ChanRoblesvirtualLawlibrary
market value of the land itself is not readily quantifiable. 308cralawrednad
Deterioration
In order for this Court to arrive at a valid indication of the market value of the
NAIA-IPT III, we must consider accrued depreciation, which is the loss in 3.2.7 The Arup Site Observation Report identifies a number of items which
value of the terminal. have deteriorated since suspension of the construction of Terminal 3 in
December 2002.
Contrary to the CAs position, depreciation is used in different contexts in
valuation and financial accounting. As earlier discussed, in appraisal, 3.2.8 A provisional value has been assessed against the items identified in
depreciation refers to the reduction or writing down of the cost of a modern the Arup report at $1,738,318.
equivalent asset to reflect the obsolescence and relative disabilities affecting
the actual asset309 or loss in value from any cause.310 It is further defined The deterioration items have been costed with a base date of 2Q09.
as the reduction or writing down of the cost of a modern equivalent asset to Calculation of this amount is contained in Appendix E. Further examination
reflect the obsolescence and relative disabilities affecting the actual and costing of each of the identified items are required and, therefore, the
asset.311cralawrednad costs of these items will require adjustment based on the actual date when
the rectification works are carried out.
In contrast, depreciation in accounting refers to a charge made against an
entitys income to reflect the consumption of an asset over a particular Depreciation
accounting period.312 It is the process of allocating to expense the cost of a
plant asset over its useful (service) life in a rational and systematic 3.2.0 An Assessment has been made of the depreciated value of the assets
manner.313 Accumulated depreciation is reported as a deduction from plant from December 2002 when construction was suspended to December 2004
assets and affects the income statement through depreciation expenses. when Terminal 3 was expropriated by the Republic.
Thus, the cost allocation is designed to match expenses with revenues.
3.2.10 A depreciation value has been assessed at $USD35,076,294 in 3Q01
In financial accounting, depreciation is a process of cost allocation, not a Manila prices. Calculation of this amount showing the various asset lives
567
assumed is included in Appendix J.
3.2.11 Based on the deductions for deterioration and depreciation between
December 2002 and December 2004, the Base Value CCV at the time of
expropriation is $USD263,392,081.320cralawrednad
In the Scott Wilson report, he stated:ChanRoblesvirtualLawlibrary
3.7.1 We consider the question of depreciation in this instance to be a
financial and legal issue which has to be dealt with in accordance with
Philippine law.
3.7.2 We therefore do not feel qualified to comment on the legal issue except
that we do not understand how deterioration in section 3.6 and depreciation
can both be applied as surely this means that Gleeds (sic) have double
counted the effect of any deterioration. (Emphasis supplied)321
In response, Tim Lunt argued:ChanRoblesvirtualLawlibrary
14. With respect to PIATCOs hypothetical inclusion of inflation, I do not
consider that inflation should be applied to the base value as the
replacement cost method establishes the cost of construction when
completed in December 2002.
15. The base values included in the CCVs are the same for the December
2002 and December 2004. The December 2004 base value is not adjusted to
account for inflation because the items which make up the construction of
NAIA3, i.e., the labour, plant, materials, systems and equipment installed
should not be paid for at a higher rate (that takes into account inflation) than
the rate which would have been paid when they were purchased at the
earlier date. Put simply, it makes no sense to apply December 2004 prices to
items bought and used in the construction of NAIA3 sometime between June
2000 and December 2002.
16. PIATCO do (sic) not consider depreciation. Having explained above why
inflation should not be included, it is the application of a similar logic which
demonstrates why depreciation should be included. In the case of NAIA3 the
materials, systems and equipment installed are at least two years older as at
December 2004 than at the time they were incorporated into the construction
of NAIA3. Their value should therefore be less. The method used for
assessing this reduced value is that of depreciation. 322cralawrednad
66. Scott Wilson provide a Summary of Conclusions on deductions at
section 3.11 and my responses to each of the items contained in their
comment column are as follows:ChanRoblesvirtualLawlibrary
xxxx
Deterioration Major deduction for baggage system not justified
The deterioration in the baggage systems is clearly set out in the
Arup (and Gensler) Site Observation Report dated August 2007, at
section 9.2. The cost deduction is set out in Appendix to the previous
CCV report which Scott Wilson do (sic) not appear to have reviewed.
Depreciation Scott Wilson states This issue appears to be a legal
issue and should be commented on by legal expert and offers no
technical or cost related comments relevant to the CCV.
On the other hand, Gary Taylor commented:ChanRoblesvirtualLawlibrary
Gleeds have (sic) assessed a depreciation value of US$35,076,294 (11.68%)
to conclude its 4Q04 value. This concept of depreciation is contrary to the
GRPs own statistics which shows a Consumer Price Index for Manila (CPI)
increase from 107.8 (Aug 01) to 125.1 (Nov. 04), a 16% increase over the
period. The CPI is a conglomerate of all consumer prices in the Manila region
and includes property values and is published by the GRP on a monthly
basis. In assessing such a depreciation value, Gleeds have (sic) taken an
arbitrary life cycle of the building and assumed a write off of asset over that
period, then assessed the two (2) year depreciation over the period 3Q01 to
4Q04. Whilst we acknowledge that an airport terminal building is something
of a specialized asset and appreciation of value is not always in line with the
areas general value assessments, it is still a major structure and
appreciation before depreciation (which should be limited to equipment and
fittings within the building) should not be discounted. The concept of long
term value of an asset on a similar concept is proven out by NAIA Terminal
1, which since its construction more than 30 years ago has maintained a
value to this date.323
We uphold the Governments computed extent of deterioration and
depreciation. In the Reply to Tengson International Ltd. Report and
Response from Takenaka and Asahikosan dated December 7, 2010, Tim
Lunt explained that [t]he asset lives are taken specifically from experience in
preparing Asset Revaluations for Airport properties which are used as an
input for annual published accounts, which are in turn audited by appointed
568
Accountants.324cralawrednad cause of action is not based on a breach of contract, but on the peremptory
power of the State to take private property for public use.
Takenaka and Asahikosan should have provided for contrary assumptions
with respect to the useful lives of the subject assets if they did not agree with Consequently, deductions from the base value of the cost of non-compliance
the Governments assumptions. Instead, Gary Taylor merely referred to the with bid documents as well as inferior quality items have no legal basis.
valuation of the NAIA Terminal I without any factual basis to support his Gleeds reliance on the NAIA-IPT III bid documents is misplaced.
claim. Moreover, Scott Wilson did not question the assumed useful life of the
NAIA-IPT III, but agreed that the question of whether depreciation should be As Scott Wilson correctly pointed out, the decisive factor of the deductibility
deducted is a legal issue. of items under noncompliance with bid documents is whether they are
functional. The Scott Wilson report shows that, except for the nonprovision of
Since PIATCO, Takenaka, and Asahikosan failed to present contrary moving walkway, the alleged noncompliant items are functional.327 Also, the
assumptions or estimates with respect to the NAIA-IPT IIIs useful life, we nonprovision of a moving walkway should not be deducted from the base
adopt Tim Lunts computations with respect to deterioration and depreciation. value. The only consequence of the failure to provide a moving walkway is
the need to construct one, which would only increase the construction
5.b. Rectification for contract cost.328 The increase in the construction cost, however, should not be
compliance should not be deducted from included as part of just compensation as this Court is only tasked to
the replacement cost. determine the construction cost of the NAIA-IPT III as of December 21, 2004.

However, we hold that the cost for rectification for contract For these same reasons, we cannot allow the deduction in the amount
compliance should not be deducted from the base value, as the of $75,570,510.00 additional areas to be built. These are areas where
contract, being void, cannot be ratified.325cralawredcralawrednad the minimum requirements stated in the Bid Documents have not been met
and are necessary for the operation of the NAIA-IPT III. These areas
In the present case, the Court already nullified the PIATCO contracts for include:
being contrary to public policy in Agan. A substantial amendment to a
contract awarded through public bidding, when such subsequent amendment Departure hall 22,462 m2
was made without a new public bidding, is null and void. The PIATCO Meeter/greeter hall 14,696 m 2
contracts contain material and substantial amendments that substantially Ramp operations 13,640 m2
departed from the bidded contract. If at all, the declaration of nullity of a
Offices 4,370 m2
contract only operates to restore things to their state and condition before the
Hold rooms 3,729 m2
contracts execution.326cralawrednad
Public toilets 2,351 m2
Moreover, Takenaka and Asahikosan, as subcontractors in the NAIA-IPT III Hardstand hold rooms 1,442 m 2
project, were not bound by the nullified PIATCO contracts. Takenaka and Delayed flight restaurant 620 m 2329
Asahikosan were only bound to perform their contractual obligations under
the Onshore Construction Contract and Offshore Procurement Contract, 6. Adjustments to the Replacement Cost
respectively. They were not bound by the nullified PIATCO contracts.
6.a. The replacement cost should
If there had indeed been variations from the Onshore Construction Contract be adjusted to December 2004 values.
and Offshore Procurement Contract, the cause of action for breach of
contract and damages lies with PIATCO. For purposes of determining just Gleeds used the Principle Quantities approach in determining the gross
compensation, the Government cannot rely on the specifications in the Bid replacement cost of the NAIA-IPT III.330 Gleeds calculated the cost of
Documents precisely because the concession agreement between PIATCO construction based on the midpoint between June 2000 and December 2002
and the Government had already been nullified. The Government cannot to arrive at the December 2002 CCV. According to Gleeds, the cost of
complain of contract noncompliance in an eminent domain case, whose construction based on its midpoint or the third quarter of 2001 is a

569
recognized standard practice in the construction industry. 331cralawrednad
Gleeds did not adjust the base valuation of $300,206,693.00 as of
December 2002 to reflect the current gross replacement cost as of
December 2004. It merely assumed that the gross replacement cost as of
December 2002 is the same as the gross replacement cost as of December
2004. It stated that it did not consider inflation in determining the base
valuation of the NAIA-IPT III as of December
2004:ChanRoblesvirtualLawlibrary
14. With respect to PIATCOs hypothetical inclusion of inflation, I do not
consider that inflation should be applied to the base value as the
replacement cost method establishes the cost of construction when
completed in December 2002.
15. The base values included in the CCVs are the same for December
2002 and December 2004. The December 2004 is not adjusted to
account for inflation because the items which make up the construction
of NAIA3, i.e., the labour, plant, materials, systems and equipment
installed should not be paid for at a higher rate (that takes into account
inflation) than the rate which would have been paid when they were
purchased at the earlier date. Put simply, it makes no sense to apply
December 2004 prices to items bought and used in the construction of
NAIA3 sometime between June 2000 and December 2002. 332 (Emphasis
supplied)
Section 10 of RA 8974 IRR provides that the replacement cost shall be
based on the current market prices of construction and attendant costs.
Under the depreciated replacement cost method, the replacement cost shall
be based on the current gross replacement cost of the asset.
In its pleadings, the Government itself explained that the cost of replacing an
asset under both depreciated replacement cost and new replacement cost
methods should be measured at its current prices.
be determined from the date of the taking of the property or the filing of
the complaint, whichever came first. Thus, where the filing of an action
precedes the taking of the property, just compensation shall be
computed as of the time of the filing of the complaint.334cralawrednad
The relevant valuation date when we shall reckon the current gross
replacement cost is December 21, 2004, or the date of filing of the complaint
for expropriation.
The Governments base valuation of $300,206,693.00 is only a measurement
of the current gross replacement cost as of December 2002. We agree with
PIATCO that the gross replacement cost of the NAIA-IPT III as of December
2002 should be adjusted to its cost as of December 2004 for the plain reason
that the Governments computed gross replacement cost is not current, as
required by the Rules of Court and jurisprudence.
Equity dictates that we should adjust the replacement cost at December
2004 values using the Consumer Price Index (CPI).335 This Court should
not be confined and restricted by the use of the depreciated replacement
cost method, especially in this case where the calculated base valuation as
of December 2004 appears to be not truly reflective of the current gross
replacement cost of the NAIA-IPT III at the time of the filing of the complaint
for expropriation.
In adjusting the gross replacement cost to December 2004 values, this Court
takes cognizance of the fact that the cost of goods and services in the
Philippines increased from 2002 until 2004. This is shown by the CPI which
is used in calculating the inflation rate and the purchasing power of the
peso.336PIATCO correctly arrived at the inflation rate of 1.0971 using the
prevailing CPI from November 29, 2002, or the date of the suspension of
works in the NAIA-IPT III until December 21, 2004, or the date when the
Government filed the expropriation complaint. 337cralawrednad
7. Interests, Fruits and Income

In our jurisdiction, the word current should be equated with the date of the 7.a. Computation of Interests
taking of the property or the filing of the complaint, whichever came
first. In the present case, the word current should necessarily refer to To avoid confusion in computing interests, we first distinguish three
December 21, 2004, the filing of the complaint for expropriation. interrelated concepts in just compensation: (1) the valuation period of just
compensation under Rule 67 of the Rules of Court; (2) the reckoning period
In National Power Corporation v. Co,333 the Court suppletorily applied of interest in eminent domain cases pursuant to Section 9, Article 3 of the
Section 4, Rule 67 of the Rules of Court in determining the value of the 1987 Constitution; and (3) the initial and final payments of just compensation
property sought to be expropriated for purposes of implementing national under RA 8974.
infrastructure projects. Under the Rules of Court, just compensation shall
570
Under Section 4, Rule 67 of the Rules of Court, the property sought to be
expropriated shall be appraised as of the date of taking of the property or
the filing of the complaint for expropriation, whichever is
earlier, thus:ChanRoblesvirtualLawlibrary
Section 4. Order of expropriation. If the objections to and the defenses
against the right of the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule, the court may
issue an order of expropriation declaring that the plaintiff has a lawful right to
take the property sought to be expropriated, for the public use or purpose
described in the complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of
the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed
by any party aggrieved thereby. Such appeal, however, shall not prevent the
court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court
deems just and equitable. (4a) (Emphasis supplied)
On the other hand, Section 9, Article 3 of the 1987 Constitution provides that
[n]o private property shall be taken for public use without just
compensation. The 1987 Constitution thus commands the condemnor to
pay the property owner the full and fair equivalent of the property from the
date of taking. This provision likewise presupposes that the condemnor
incurs delay if it does not pay the property owner the full amount of just
compensation on the date of taking.338cralawrednad
The reason is that just compensation would not be just if the State does not
pay the property owner interest on the just compensation from the date of the
taking of the property. Without prompt payment, the property owner
suffers the immediate deprivation of both his land and its fruits or
income. The owners loss, of course, is not only his property but also its
income-generating potential.339cralawrednad
Ideally, just compensation should be immediately made available to the
property owner so that he may derive income from this compensation, in the
same manner that he would have derived income from his expropriated
property.
However, if full compensation is not paid for the property taken, then the
State must pay for the shortfall in the earning potential immediately lost due
to the taking, and the absence of replacement property from which income
can be derived. Interest on the unpaid compensation becomes due as
compliance with the constitutional mandate on eminent domain and as a
basic measure of fairness.340cralawrednad
Thus, interest in eminent domain cases runs as a matter of law and follows
as a matter of course from the right of the landowner to be placed in as good
a position as money can accomplish, as of the date of
taking.341cralawrednad
Lastly, RA 8974 requires the Government to pay just compensation
twice: (1) immediately upon the filing of the complaint, when the amount
to be paid is 100% of the value of the property based on the current relevant
zonal valuation of the BIR, and the value of the improvements and/or
structures sought to be expropriated (initial payment); and (2) when the
decision of the court in the determination of just compensation
becomes final and executory, in which case the implementing agency shall
pay the owner the difference between the amount already paid and the just
compensation as determined by the court (final payment).
In case the completion of a government infrastructure project is of utmost
urgency and importance, and there is no existing valuation of the area
concerned, the initial payment shall be the proffered value of the
property. Section 4 of RA 8974 also states that the initial payment of just
compensation is a prerequisite for the trial courts issuance of a writ of
possession, to wit:ChanRoblesvirtualLawlibrary
Section 4. Guidelines for Expropriation Proceedings. Whenever it is
necessary to acquire real property for the right-of-way or location for any
national government infrastructure project through expropriation, the
appropriate implementing agency shall initiate the expropriation proceedings
before the proper court under the following
guidelines:ChanRoblesvirtualLawlibrary
(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the owner of
the property the amount equivalent to the sum of (1) one hundred percent
(100%) of the value of the property based on the current relevant zonal
valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the
improvements and/or structures as determined under Section 7 hereof;
(b) In provinces, cities, municipalities and other areas where there is no zonal
valuation, the BIR is hereby mandated within the period of sixty (60) days
from the date of the expropriation case, to come up with a zonal valuation for
571
said area; and
(c) In case the completion of a government infrastructure project is of utmost
urgency and importance, and there is no existing valuation of the area
concerned, the implementing agency shall immediately pay the owner of the
property its proffered value taking into consideration the standards
prescribed in Section 5 hereof.
Upon compliance with the guidelines abovementioned, the court shall
immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project.
Before the court can issue a Writ of Possession, the implementing agency
shall present to the court a certificate of availability of funds from the proper
official concerned.
In the event that the owner of the property contests the implementing
agencys proffered value, the court shall determine the just compensation to
be paid the owner within sixty (60) days from the date of filing of the
expropriation case. When the decision of the court becomes final and
executory, the implementing agency shall pay the owner the difference
between the amount already paid and the just compensation as
determined by the court. (Emphasis supplied)
The Governments initial payment of just compensation does not excuse it
from avoiding payment of interest on the difference between the adjudged
amount of just compensation and the initial payment.
The initial payment scheme as a prerequisite for the issuance of the writ of
possession under RA 8974 only provides the Government flexibility
to immediately take the property for public purpose or public
use pending the courts final determination of just compensation. Section 4
(a) of RA 8974 only addresses the Governments need to immediately enter
the privately owned property in order to avoid delay in the implementation of
national infrastructure projects.
Otherwise, Section 4 of RA 8974 would be repugnant to Section 9, Article 3
of the 1987 Constitution which mandates that private property shall not be
taken for public use without just compensation. To reiterate, the
Constitution commands the Government to pay the property owner no less
than the full and fair equivalent of the property from the date of taking.
In the present case, the Government avers that PIATCO is not entitled to
recover interest. According to the Government, PIATCO should not be
allowed to profit from the void contracts. This contention, however, stems
from a mistaken understanding of interest in expropriation cases.
Contrary to the Governments opinion, the interest award is not anchored
either on the law of contracts or damages; it is based on the owners
constitutional right to just compensation. The difference in the amount
between the final payment and the initial payment in the interim or before
the judgment on just compensation becomes final and executory is not
unliquidated damages which do not earn interest until the amount of
damages is established with reasonable certainty. The difference between
final and initial payments forms part of the just compensation that the
property owner is entitled from the date of taking of the property.
Thus, when the taking of the property precedes the filing of the complaint for
expropriation, the Court orders the condemnor to pay the full amount of just
compensation from the date of taking whose interest shall likewise
commence on the same date. The Court does not rule that the interest on
just compensation shall commence the date when the amount of just
compensation becomes certain, e.g., from the promulgation of the Courts
decision or the finality of the eminent domain case.
With respect to the amount of interest on just compensation, we decisively
ruled in Republic v. Court of Appeals342 that the just compensation due to the
property owner is effectively a forbearance of money, and not indemnity for
damages.343 Citing Eastern Shipping Lines, Inc. v. Court of Appeals,344 we
awarded a legal interest of 12% per annum on just compensation. The Court
upheld the imposition of the 12% interest rate in just compensation cases, as
ruled in Republic, in Reyes v. National Housing Authority,345Land Bank of the
Philippines v. Wycoco,346Republic v. Court of Appeals,347Land Bank of the
Philippines v. Imperial,348Philippine Ports Authority v. Rosales-
Bondoc,349 and Curata v. Philippine Ports Authority.350The Court reiterated
the Republic ruling in Apo Fruits Corporation and Hijo Plantation, Inc. v. Land
Bank of the Philippines,351Land Bank of the Philippines v.
Rivera,352Department of Agrarian Reform v. Goduco,353 and Land Bank of the
Philippines v. Santiago, Jr.354cralawrednad
On June 21, 2013, the BSP issued Circular No. 799,355 pursuant to MB
Resolution No. 796 dated May 16, 2013, reducing the legal interest on loans
and forbearance of money from 12% to 6% per annum. BSP Circular No.
799 took effect on July 1, 2013.
In the present case, the Government filed a complaint for expropriation of the
NAIA-IPT III on December 21, 2004. On the same day, the RTC issued a writ
of possession in favor of the Government upon the deposit of
572
P3,002,125,000.00 with the Land Bank. In Gingoyon, the Court held in due to either PIATCO or Takenaka and Asahikosan during the
abeyance the implementation of the writ of possession pending the direct pendency of the expropriation case or until the finality of the Courts
payment of the proffered value of P3,002,125,000.00 to PIATCO. rulings in G.R. Nos. 209917, 209696 & 209731.

On September 11, 2006, the RTC reinstated the writ of possession after the 7.b. PIATCO is not entitled to
Government tendered PIATCO a check in this amount. the fruits and income of the
NAIA-IPT III.
On April 11, 2012, the MIAA and the Land Bank entered into an escrow
agreement in the amount of $82,157,716.73. On the same date, the MIAA PIATCO insists that aside from the interest on just compensation, it is also
and the DBP likewise executed an escrow agreement in the amount of entitled to all income generated from the operations of the NAIA-IPT III, from
$34,190,924.59. the date of taking up to the present.

Based on these factual circumstances, interest shall accrue as follows:
1. The principal amount of just compensation shall be appraised on the
date of the filing of the complaint for expropriation or on December
21, 2004. The just compensation shall not earn interest from
December 21, 2004, until September 10, 2006, since the
Government did not take possession of the NAIA-IPT III during this
period.
PIATCOs claim is unmeritorious. The State, by way of interest, makes up for
the shortfall in the owners earning potential and the absence of replacement
property from which income can be derived. This is because the interest
awarded by the expropriation court is, in reality, the equivalent of the fruits or
income of the seized property.357 In fact, PIATCO itself admitted in its petition
in G.R. No. 209731 that the interest on just compensation already answers
for the loss of income that the owner suffered as a result of the States
deprivation of the ordinary use of his property. 358cralawrednad

2. The difference between the principal amount of just compensation Thus, we cannot allow PIATCO to profit from the operation of the NAIA-IPT
and the proffered value of P3,002,125,000.00 shall earn legal III whose funds are sourced from the public coffers. Otherwise, PIATCO
interest of 12% per annum from the date of taking or September 11, would be doubly compensated and unjustly enriched to the detriment of the
2006 until June 30, 2013. taxpayers.

3. The difference between the principal amount of just compensation 8. The BOCs Expenses
and the proffered value of P3,002,125,000.00 shall earn legal
interest of 6% per annum from July 1, 2013, until the finality of the 8.a. Takenaka and Asahikosan should
Courts ruling. not share in the BOCs expenses.

4. The total amount of just compensation shall earn legal interest of 6% Takenaka and Asahikosan refuse to share in the expenses of the BOC. They
per annum from the finality of the Courts ruling until full payment. argue that pursuant to Section 12, Rule 6 of the Rules of Court, the
Government should solely shoulder the costs incurred in the expropriation
case.
The execution of the escrow agreements shall not affect the accrual of
The Government, on the other hand, asserts that Section 1, Rule 142 of the
interest in this case. In its Manifestation and Motion dated July 8, 2011, the
Rules of Court explicitly authorizes the expropriation court to order the
Government stated that the escrow accounts shall be subject to the condition parties to equally share the costs of an action. Hence, the court can require
that [t]he claimant(s) shall have been held to be entitled to receive the sum third-party intervenors, i.e., Takenaka and Asahikosan, to share in the
claimed from the Just Compensation (NAIA Terminal 3) Fund in accordance
expenses of the BOC. It points out that PIATCO already shared in the
with Philippine law and regulation, by a final, binding and executory order
expenses of the BOC and tendered the sum of P2,550,000.00 to the RTC.
or award of the expropriation court.356cralawrednad
We find no merit in the Governments assertion.
Clearly, the Government does not intend to pay the just compensation
573
 REPLACEMENT COST AS OF DECEMBER 2002 $ 297,996,738.00
The relevant rule is found in Section 12, Rule 67 of the Rules of Court which
provides:ChanRoblesvirtualLawlibrary MULTIPLY:
Inflation Rate of 1.0971
SEC. 12. Costs, by whom paid. The fees of the commissioners shall be REPLACEMENT COST AS OF DECEMBER 21, 2004 $ 326,932,221.26
taxed as a part of the costs of the proceedings. All costs, except those of
rival claimants litigating their claims, shall be paid by the plaintiff, ADD:
unless an appeal is taken by the owner of the property and the Interests from September 11, 2006 to December 2014 $ 242,810,918.54
judgment is affirmed, in which event the costs of the appeal shall be
LESS:
paid by the owner. [Emphasis supplied]
Proffered Value $ 59,438,604.00
This provision specifically deals with the costs of eminent domain cases. JUST COMPENSATION AS OF DECEMBER 31, 2014 $ 510,304,535.80
Hence, we find that Section 1, Rule 142 of the Rules of Court, more
specifically, the statement allowing the court to divide the costs of an action
to either party to the case, is inapplicable to the present case.
Period Formula Numb Intere Principal Straight
Based on the clear terms of Section 12, Rule 67, it is the plaintiff in this er st Amount Interest
case, the Government not the property owner or third-party intervenors, of Rate
i.e.,Takenaka and Asahikosan, who shall shoulder the costs of the Days
expropriation before the court of origin. Since the expenses of the BOC form Septemb principal*rate*(113/ 113 12% $267,493,617 $9,937,571.1
part of the costs of the suit as these are expenses necessary in er 11, 365) days .26 0
prosecuting or defending an action or a distinct proceeding within an action 2006 to
the Government solely bears the expenses of the BOC. The property
owner shall only bear the costs of the appeal if he loses in his appeal. Decemb
er 31,
PIATCO, in its pleading, has not questioned its share in the expenses of the 2006
BOC before the Court. PIATCOs voluntary sharing in the expenses of the
BOC and its non-objection to its payment amount to a waiver of its right not January principal*rate 365 12% $267,493,617 $32,099,234.
to share in the expenses of the BOC. 1, 2007 days .26 07
to
In sum, just compensation shall be computed as shown
below:ChanRoblesvirtualLawlibrary Decemb
er 31,
2007
Base Current Cost Valuation (Inclusive of Attendant Cost) $ 300,206,693.00
January principal*rate 365 12% $267,493,617 $32,099,234.
ADD: 1, 2008 days .26 07
Excess Concession Space $ 1,081,272.00 to
Four-Level Retail Complex $ 12,809,485.00
Decemb
Exclusions due to Structural Issues $ 20,713,901.00 er 31,
LESS: 2008
Depreciation $ 1,738,318.00 January principal*rate 365 12% $267,493,617 $32,099,234.
1, 2009 days .26 07
Deterioration $ 35,076,295.00
574
to .54

Decemb
er 31,
2009 Total Interest
from
January principal*rate 365 12% $267,493,617 $32,099,234. Principal September 11, Just Compensation as of
1, 2010 days .26 07 Formula
Amount 2006 December 31, 2014
to to December 31,
Decemb 2014
er 31,
2010 Principal
Amount
January principal*rate 365 12% $267,493,617 $32,099,234. $267,493,617.26 $ 242,810,918.54 $510,304,535.80
+
1, 2011 days .26 07 Interest
to
Decemb
er 31,
9. PIATCO as the Lawful Recipient of Just Compensation.
2011
January principal*rate 365 12% $267,493,617 $32,099,234. After determining the amount of just compensation, we next resolve the
1, 2012 days .26 07 question of who shall receive the full amount of just compensation.
to
Decemb Takenaka and Asahikosan contend that as actual builders of the NAIA-IPT
er 31, III, they are lawfully entitled to receive just compensation. They pray that just
2012 compensation of at least $85,700,000.00 be set aside through an escrow
January principal * rate * 181 12% $267,493,617 $15,917,702. account or other means, in their favor, to answer for their pending money
1, 2013 (181/365) days .26 38 claims against PIATCO in G.R. No. 202166.
to
June PIATCO, on the other hand, bases its claim for just compensation on its
30, 2013 ownership of the NAIA-IPT III and on the ruling in Agan and Gingoyon that
PIATCO should be fully compensated as the builder and owner of the NAIA-
July 1, principal*rate* 189 6% $267,493,617 $8,310,623.6 IPT III.
2013 to (189/365) days .26 2
For its part, the Government refuses to make further payments to PIATCO.
Decemb Instead, it created an escrow account in favor of the entitled claimants of
er 31, just compensation. The Government fears that the NAIA-IPT III would still be
2013 burdened with liens and mortgages as a result of PIATCOs indebtedness
January principal*rate 365 6% $267,493,617 $16,049,617. to other entities even after it pays PIATCO the full amount of just
1, 2014 days .26 04 compensation.
to
Decemb 9.a. Takenaka and Asahikosans
er 31, intervention in the case as unpaid
2014 subcontractors is proper.
Total $242,810,918
The defendants in an expropriation case are not limited to the owners of the
575
property condemned. They include all other persons owning, occupying, or
claiming to own the property. Under Sections 8 and 14 of RA 8974 IRR, in
relation with Section 9, Rule 67 of the Rules of Court, all persons who claim
to have lawful interest in the property to be condemned should be included
as defendants in the complaint for expropriation:ChanRoblesvirtualLawlibrary
Section 8 of RA 8974 IRR. Expropriation. If the owner of a private property
needed by the government implementing agency does not agree to convey
his property to the government by any of the foregoing modes of acquiring
and/or transferring ownership of the property, then the government shall
exercise its right of eminent domain by filing a complaint with the proper
Court for the expropriation for the private property.
The verified complaint shall state with certainty the right and purpose of
expropriation, describe the real or personal property sought to be
expropriated, and join as defendants all persons owning or claiming to own,
or occupying, any part thereof or interest therein, showing as far as
practicable, the interest of each defendant separately. If the title to any
property sought to be condemned appears to be in the name of the
Republic of the Philippines, although occupied by private individuals,
or if the title is otherwise obscure or doubtful so that the plaintiff
cannot with accuracy or certainty specify the real owners, averment to
that effect may be made in the complaint.
Section 14 of RA 8974 IRR. Trial Proceedings. Within sixty (60)-day
period prescribed by the Act, all matters regarding defences and
objections to the complaint, issues on uncertain ownership and
conflicting claims, effects of appeal on the rights of the parties, and
such other incidents affecting the complaint shall be resolved under
the provisions on expropriation of Rule 67 of the Rules of Court.
Section 9, Rule 67 of the Rules of Court. Uncertain ownership; conflicting
claims. If the ownership of the property taken is uncertain, or there are
conflicting claims to any part thereof, the court may order any sum or
sums awarded as compensation for the property to be paid to the court
for the benefit of the person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the payment of the sum
or sums awarded to either the defendant or the court before the plaintiff
can enter upon the property, or retain it for the public use or purpose if
entry has already been made. (9a) (Emphasis supplied)
All persons who have lawful interest in the property sought to be expropriated
should be impleaded in the complaint for purposes of determining who
shall be entitled to just compensation. If a known owner is not joined as
defendant, he may intervene in the proceeding. If the owner is joined but not
served with process and the proceeding is already closed before he came to
know of the condemnation, he may maintain an independent suit for
damages.
Consequently, Takenaka and Asahikosan are correct in invoking Section 9,
Rule 67 of the Rules of Court for purposes of determining who shall be
entitled to just compensation in this case. This rule is likewise their proper
basis of intervention in the RTCs March 12, 2007 order in Civil Case No. 04-
0876.
Our ruling on this point does not contradict Section 4 (a) of RA 8974 which
provides for a scheme of direct and immediate initial payment to the
property owner in cases involving national government infrastructure
projects.
Section 4 (a) of RA 8974 applies only to cases where the issue of ownership
of the expropriated property is not disputed. In cases where the ownership is
contested; where conflicting claims or interests over the expropriated
property exist; or where there are other incidents affecting the complaint for
expropriation, the governing rule is Section 9, Rule 67 of the Rules of Court.
By creating a separate provision applicable only to the latter cases, Section
14 of RA 8974 IRR359 necessarily acknowledged that the scheme of
immediate and direct initial payment is not an absolute and all-encompassing
rule applicable in all circumstances.
We are aware of our pronouncement in the December 19,
2005 Gingoyon decision directing the Government to directly and
immediately pay PIATCO the proffered value of P3 billion. We rendered the
December 19, 2005 Decision based on the fact that Takenaka and
Asahikosan were not yet parties to G.R. No. 166429 and Civil Case No.
04-0876 at that time. The Court denied Takenaka and Asahikosans motions
for leave to intervene in our February 1, 2006 Resolution in Gingoyon for
palpable violation of Section 2, Rule 19 of the Rules of Court which only
allows intervention before the rendition of judgment by the court. Moreover,
Takenaka and Asahikosan had not yet instituted Civil Case No. 06-171 (the
enforcement case) when we promulgated our rulings in Gingoyon.
The RTCs issuance of the March 12, 2007 order, which is binding on the
parties and which allows Takenaka and Asahikosan to intervene in the case,
changed the factual circumstances of this case. As an incident in our
determination of the just compensation, we necessarily should resolve the
issue of NAIA-IPT IIIs ownership and the question of who the recipient of the
just compensation should be.
576

9.b. The property owner is entitled
to just compensation.
Citing Agan, Takenaka and Asahikosan argue that the Court intended that
the real builders of the NAIA-IPT III should be paid just compensation.
Takenaka and Asahikosan assert that they are the entities who actually built
the NAIA-IPT III pursuant to the Onshore Construction and Offshore
Procurement Contracts. In Agan, the Court declared that PIATCO is the
builder of the NAIA-IPT III. The Court stated:ChanRoblesvirtualLawlibrary
This Court, however, is not unmindful of the reality that the structures
comprising the NAIA IPT III facility are almost complete and that funds have
been spent by PIATCO in their construction. For the government to take over
the said facility, it has to compensate respondent PIATCO as builder of the
said structures. The compensation must be just and in accordance with law
and equity for the government cannot unjustly enrich itself at the expense of
PIATCO and its investors.360
This finding is likewise affirmed in our February 1, 2006 Resolution
in Gingoyon where we declared:ChanRoblesvirtualLawlibrary
The Court is not wont to reverse its previous rulings based on factual
premises that are not yet conclusive or judicially established. Certainly,
whatever claims or purported liens Takenaka and Asahikosan against
PIATCO or over the NAIA 3 have not been judicially established. Neither
Takenaka nor Asahikosan are parties to the present action, and thus have
not presented any claim which could be acted upon by this Court. The earlier
adjudications in Agan v. PIATCO made no mention of either Takenaka or
Asahikosan, and certainly made no declaration as to their rights to any form
of compensation. If there is indeed any right to remuneration due to these
two entities arising from NAIA 3, they have not yet been established by the
courts of the land.
It must be emphasized that the conclusive ruling in the Resolution
dated 21 January 2004 in Agan v. PIATCO (Agan 2004) is that PIATCO,
as builder of the facilities, must first be justly compensated in
accordance with law and equity for the Government to take over the
facilities. It is on that premise that the Court adjudicated this case in its
19 December 2005 Decision.
While the Government refers to a judgment rendered by a London court
in favor of Takenaka and Asahikosan against PIATCO in the amount of
US$82 Million, it should be noted that this foreign judgment is not yet
binding on Philippine courts. It is entrenched in Section 48, Rule 39 of
the Rules of Civil Procedure that a foreign judgment on the mere
strength of its promulgation is not yet conclusive, as it can be annulled
on the grounds of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. It is likewise recognized
in Philippine jurisprudence and international law that a foreign
judgment may be barred from recognition if it runs counter to public
policy.
Assuming that PIATCO indeed has corresponding obligations to other
parties relating to NAIA 3, the Court does not see how such obligations,
yet unproven, could serve to overturn the Decision mandating that the
Government first pay PIATCO the amount of 3.02 Million Pesos before it
may acquire physical possession over the facilities. This directive
enjoining payment is in accordance with Republic Act No. 8974, and
under the mechanism established by the law the amount to be initially
paid is that which is provisionally determined as just compensation.
The provisional character of this payment means that it is not yet final,
yet sufficient under the law to entitle the Government to the writ of
possession over the expropriated property.
There are other judicial avenues outside of this Motion for
Reconsideration wherein all other claims relating to the airport facilities
may be ventilated, proved and determined. Since such claims involve
factual issues, they must first be established by the appropriate trier of
facts before they can be accorded any respect by or binding force on
this Court.361 [Emphasis supplied]
Contrary to Takenaka and Asahikosans position, in the Philippine
jurisdiction, the person who is solely entitled to just compensation is
the owner of the property at the time of the taking.362As shown below, the
test of who shall receive just compensation is not who built the terminal, but
rather who its true owner is.
From the express provision of Section 4 of RA 8974, just compensation shall
only be paid to the property owner. We implead persons with lawful interests
in the property in order to determine the person who shall receive just
compensation. Note that the last paragraph, Section 4 of RA 8974 states:
When the decision of the court becomes final and executory, the
implementing agency shall pay the owner the difference between the amount
already paid and the just compensation as determined by the court. This
provision thus envisions a situation where the court determines with finality,
for purposes of payment of just compensation, the conflicting claims of the
defendants and intervenors.
577

The cases cited by Takenaka and Asahikosan are inapplicable to justify their
right to receive just compensation. The Court did not award just
compensation to a non-owner in De Knecht v. Court of Appeals.363 The Court
held in that case that a person who had no legal interest in the property at
the time of the filing of a complaint for expropriation had no right to intervene
in the case. The Court ruled that only persons who have lawful interests in
the property may be impleaded as defendants or may intervene in the
expropriation case under Section 1, Rule 67 of the Rules of Court. This case
thus, at most, support their right to intervene.
In Calvo v. Zandueta,364 the Court stayed the execution of the trial courts
judgment ordering the provincial treasurer of Pangasinan to pay Aquilino
Calvo just compensation due to the pendency of the interpleader that Juana
Ordoez brought based on her own claim of ownership of the expropriated
land. Ordoez asserted that she acquired all rights and interests on the
subject land when she purchased it during the execution sale while the
expropriation proceedings were still pending.
Philippine Veterans Bank v. Bases Conversion Development
Authority365 further affirms the rule that just compensation shall only be paid
to the owner of the expropriated property at the time of taking. In that case,
the Court held that the trial court may order the payment of just
compensation to itself pending the adjudication of the issue of ownership in
other proceedings pursuant to Section 9, Rule 67 of the Rules of Court.
The Court likewise did not award just compensation to a non-owner
in Republic v. Mangotara.366 The Court held that the filing of a supplemental
complaint for expropriation impleading private parties does not necessarily
amount to an admission that the parcels of land sought to be expropriated
are privately owned. The Republic merely acknowledged that there are
private persons also claiming ownership of the parcels of land. The Republic
can still consistently assert, in both actions for expropriation and reversion,
that the subject parcels of land are part of the public domain.
The record of the present case show that PIATCO has been the original
contracting party commissioned by the Government to construct the NAIA-
IPT III based on a build-operate-transfer arrangement and who, in this
capacity, contracted out the actual construction to Takenaka and
Asahikosan. Thus, when the NAIA-IPT III was built, it was in PIATCOs name
and account, although it subsequently owed sums to subcontractors,
incurred in the course of the construction. From this perspective, PIATCO
has been the owner recognized as such by the Government although the
basis of its contractual relationship with the Government was later on
nullified. Takenaka and Asahikosan, on the other hand, had always been
subcontractors with whom the Government did not have any formal link.
These facts indubitably show that PIATCO has been the owner of the NAIA-
IPT III entitled to receive the just compensation due. Takenaka and
Asahikosan for their part, have not shown that they possess legal title or
colorable title to the NAIA-IPT III that would defeat PIATCOs ownership.
To recap and expound on the matter:ChanRoblesvirtualLawlibrary
First, Takenaka and Asahikosan were mere subcontractors in the nullified
NAIA-IPT III project. That Takenaka and Asahikosan actually built the NAIA-
IPT III does not make them the owner of the terminal building.
We carefully point out that our finding in this case that Takenaka and
Asahikosan are the actual builders of the NAIA-IPT III does not contravene
our rulings in Agan and Gingoyon that PIATCO is the builder of the NAIA-IPT
III. The word builder is broad enough to include the contractor,
PIATCO, and the subcontractors, Takenaka and Asahikosan, in the
nullified NAIA-IPT III project. Republic Act No. 4566367 defines a builder
as follows:ChanRoblesvirtualLawlibrary
Section 9 (b) of RA 4566. Contractor is deemed synonymous with the term
builder and, hence, any person who undertakes or offers to undertake or
purports to have the capacity to undertake or submits a bid to, or does
himself or by or through others, construct, alter, repair, add to, subtract from,
improve, move, wreck or demolish any building, highway, road, railroad,
excavation or other structure, project, development or improvement, or to do
any part thereof, including the erection of scaffolding or other structures or
works in connection therewith. The term contractor includes subcontractor
and specialty contractor.
In Gingoyon, the Court loosely used the word builder and owner
interchangeably. We clarify, however, that a builder is different from the
owner of the property. As we stated above, a builder includes the contractor
and the subcontractor. On the other hand, the owner who is constitutionally
entitled to just compensation is the person who has legal title to the property.
Logically, a builder is not necessarily the owner of the property and vice-
versa.
Second, we cannot recognize Takenaka and Asahikosans claimed liens
over the NAIA-IPT III in this just compensation case. Since G.R. No. 202166
is still pending before the Court, we cannot conclusively rule that Takenaka
and Asahikosan are unpaid creditors of PIATCO without pre-empting the
Courts ruling in the enforcement case.
578
 open to challenge through proper actions. The consequences of Sec. 9,
Even assuming that Takenaka and Asahikosan as unpaid contractors in Rule 67 cannot be avoided, as they are due to the intimate relationship
the botched NAIA-IPT III construction contract indeed have liens over the of the issue of ownership with the claim for the expropriation
NAIA-IPT III, PIATCO is still the property owner who, as such, should directly payment. (Emphasis supplied)
receive just compensation from the Government.
9.c. A final disposition in the eminent
We clarify that the expropriation courts determination of the lawful property domain case with respect to the order of
owner is merely provisional. By filing an action for expropriation, the payment to a particular person shall be
condemnor merely serves notice that it is taking title to and possession of the final and executory.
property, and that the defendant is asserting title to or interest in the property,
not to prove a right to possession, but to prove a right to compensation To avoid future litigation, we emphasize that a final disposition in the
for the taking. The Courts disposition with respect to the ownership of eminent domain case with respect to the order to pay a particular
the property is not conclusive, and it remains open to challenge through person shall be final and executory upon the lapse of relevant periods
proper actions. The courts resolution of the title to the land at the time of under Rule 39 of the Rules of Court. The recourse of the person claiming
taking has no legal consequences beyond the eminent domain proceedings. ownership over the expropriated property in any subsequent case is against
The courts decision cannot be pleaded as a defense of res judicata or the adjudged property owner in the expropriation case.
collateral estoppel in any action to determine title to the property.
The principle of res judicata applies in this particular matter because the
As we explained in Republic of the Philippines v. Samson- issues on the amount of just compensation and the person to be paid
Tatad:368cralawrednad just compensation are the central issues in the second phase of
expropriation. Based on this principle, a final judgment or decree on the
However, the authority to resolve ownership should be taken in the merits by a court of competent jurisdiction is conclusive of the rights of the
proper context. The discussion in Republic was anchored on the parties or their privies in all later suits on points and matters determined in
question of who among the respondents claiming ownership of the the former suit.369cralawrednad
property must be indemnified by the Government:
There would be no end to litigation in an eminent domain case if we rule
Now, to determine the person who is to be indemnified for the expropriation otherwise; we would only foment mockery of the judicial proceedings as the
of Lot 6, Block 6, Psd-2017, the court taking cognizance of the expropriation order of payment in the eminent domain case would never be truly final and
must necessarily determine if the sale to the Punzalan spouses by Antonio executory. Furthermore, to the detriment of the public, interest would
Feliciano is valid or not. For if valid, said spouses must be the ones to be continue to accrue on just compensation if we rule that the order of payment
paid by the condemnor; but if invalid, the money will be paid to someone to a particular recipient can be reversed in the subsequent judicial
else. x x x proceedings and is, indeed, reversed in the subsequent case. This would be
unfair to the State (and the public) that merely exercised its immutable right
Thus, such findings of ownership in an expropriation proceeding to exercise the power of eminent domain.
should not be construed as final and binding on the parties. By filing an
action for expropriation, the condemnor (petitioner), merely serves Contrary to Takenaka and Asahikosans claim, in Calvo v. Zandueta,370 the
notice that it is taking title to and possession of the property, and that Court did not stay the execution of a final and executory ruling in the
the defendant is asserting title to or interest in the property, not to eminent domain case during the pendency of the interpleader case.
prove a right to possession, but to prove a right to compensation for
the taking. A close reading of Calvo shows that the order of payment of just
compensation in that case was not yet final and executory.
If at all, this situation is akin to ejectment cases in which a court is
temporarily authorized to determine ownership, if only to determine In November 1924, the municipality of San Quintin, Pangasinan filed an
who is entitled to possession. This is not conclusive, and it remains action for expropriation of a parcel of land owned by Aquilino Calvo and with
579
a Certificate of Title No. 25100. for the reversal of the June 29, 1926 order prior to the CFIs withdrawal of
appeal on July 20, 1926. Significantly, the CFI approved the withdrawal of
On November 25, 1925, the Court of First Instance (CFI) approved the appeal on the same date that the CFI revoked the June 29, 1926 order and
commissioners valuation of the subject land in the sum of P6,943.25. The ordered the provincial treasurer of Pangasinan to withhold the just
municipality of San Quintin appealed the case but subsequently withdrew the compensation. There is thus no basis to Takenaka and Asahikosans
appeal on June 23, 1926. The CFI approved the withdrawal of appeal claim that the execution of a final and executory judgment on just
on July 20, 1926. compensation may be suspended if there is still a subsisting case
regarding the disputed ownership of the expropriated property.
In the meantime, Juana Ordoez levied on the subject land after she
obtained a favorable judgment against Calvo. The levy was recorded on the 9.d. The determination of whether the
certificate of title on December 23, 1925. Thereafter, the sheriff sold the NAIA-IPT III shall be burdened by liens and
subject land to Ordoez in an execution sale. On January 23, 1926, the sale mortgages even after the full payment of just
was duly entered by memorandum on the certificate of title. On the same compensation is still premature.
date, Ordoez filed a motion for substitution as a defendant in the
expropriation case on the ground that she acquired all the rights and The determination of whether the NAIA-IPT III shall be burdened by liens and
interests of Calvo on the subject land. mortgages even after the full payment of just compensation is still premature.
The enforceability of Claim Nos. HT-04-248 and HT-05-269 in this jurisdiction
On June 29, 1926, the CFI declared the November 25, 1925 decision final has yet to be decided by the Court in G.R. No. 202166. Furthermore, the
and ordered the provincial treasurer of Pangasinan to pay Calvo a part of just application of Article 2242 of the Civil Code371 presupposes that PIATCO
compensation. The following day, Ordoez filed a motion praying for the declared insolvency or has been declared insolvent. This, of course, should
revocation of the June 29, 1926 order and for the provincial treasurer of be litigated in insolvency proceedings, not in the present eminent domain
Pangasinan to retain the award of just compensation. case.

On July 20, 1926, the CFI revoked the June 29, 1926 order and ordered The Court cannot pass upon the validity and enforceability of civil claims
the provincial treasurer of Pangasinan to retain the money until further orders against PIATCO by creditor/s in an expropriation case or the existence of
of the court. After the CFI denied Calvo et al.s motion for reconsideration, liens on the NAIA-IPT III. Section 114 of Republic Act No.
they filed a petition for certiorari before the Court. 10142372 provides:ChanRoblesvirtualLawlibrary

The Court denied the petition. The Court ruled that assuming that the
judgment of November 25, 1925, constituted a final determination of the
petitioners right to receive the award, Ordoez was not a party to the
expropriation case and, therefore, could not be bound by the judgment.
Ordoez claim that she stands subrogated to Calvos right to just
compensation has the appearance of validity. The judicial determination of
her claim may be adjudicated in an action for interpleader which was then
pending when the motion for substitution was filed. Consequently, the trial
court correctly stayed the execution of the judgment in the expropriation
case. Whenever necessary to promote the ends of justice, courts have the
power to temporarily stay executions of judgments rendered by them.
Clearly, the November 25, 1925 decision in Calvo was not yet final and
executory when the Court suspended the execution of that ruling. The July
29, 1926 order revoked the June 29, 1926 order which in turn declared the
finality of the November 25, 1925 decision of the CFI. Ordoez filed a motion
Section 114. Rights of Secured Creditors. The Liquidation Order shall not
affect the right of a secured creditor to enforce his lien in accordance with the
applicable contract or law. A secured creditor
may:ChanRoblesvirtualLawlibrary
(a) waive his right under the security or lien, prove his claim in the liquidation
proceedings and share in the distribution of the assets of the debtor; or
(b) maintain his rights under the security or lien:ChanRoblesvirtualLawlibrary
If the secured creditor maintains his rights under the security or
lien:cralawlawlibrary
(1) the value of the property may be fixed in a manner agreed upon by the
creditor and the liquidator. When the value of the property is less than the
claim it secures, the liquidator may convey the property to the secured
creditor and the latter will be admitted in the liquidation proceedings as a
580
creditor for the balance. If its value exceeds the claim secured, the liquidator authority to exercise the power of eminent domain and the propriety of its
may convey the property to the creditor and waive the debtor's right of exercise in the context of the facts involved in the suit. The court declares
redemption upon receiving the excess from the creditor; that the Government has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the
(2) the liquidator may sell the property and satisfy the secured creditor's complaint.375cralawrednad
entire claim from the proceeds of the sale; or
The second phase relates to the just amount that the Government shall
(3) the secure creditor may enforce the lien or foreclose on the property compensate the property owner. 376cralawrednad
pursuant to applicable laws.
10. The exercise of eminent domain from the perspective of taking. Whenever the court affirms the condemnation of private property in the first
phase of the proceedings, it merely confirms the Governments lawful
10.a. The Government may take the property right to take the private property for public purpose or public use. The
for public purpose or public use upon the court does not necessarily rule that the title to the private property likewise
issuance and effectivity of the writ of possession. vests on the Government.

To clarify and to avoid confusion in the implementation of our
judgment, the full payment of just compensation is not a prerequisite
for the Governments effective taking of the property. As discussed
above, RA 8974 allows the Government to enter the property and implement
national infrastructure projects upon the issuance of the writ of possession.
When the taking of the property precedes the payment of just compensation,
the Government shall indemnify the property owner by way of interest.
Taking under the power of eminent domain means entering upon private
property for more than a momentary period, and under the warrant or color of
legal authority, devoting it to public use, or otherwise informally appropriating
or injuriously affecting it in such a way as substantially to oust the owner and
deprive him of all beneficial enjoyment thereof. 373cralawrednad
Taking of property takes place when: (1) the owner is actually deprived or
dispossessed of his property; (2) there is a practical destruction or a material
impairment of the value of his property; (3) the owner is deprived of the
ordinary use of the property, or (4) when he is deprived of the jurisdiction,
supervision and control of his property. 374cralawrednad
The taking of property is different from the transfer of the property title
from the private owner to the Government. Under Rule 67 of the Rules of
Court, there are two phases of expropriation: (a) the condemnation of the
property after it is determined that its acquisition will be for a public purpose
or public use; and (b) the determination of just compensation to be paid for
the taking of private property to be made by the court with the assistance of
not more than three commissioners.
The first phase is concerned with the determination of the Governments
The transfer of property title from the property owner to the
Government is not a condition precedent to the taking of property. The
State may take private property prior to the eventual transfer of title of the
expropriated property to the State.
In fact, there are instances when the State takes the property prior to the
filing of the complaint for expropriation or without involving the transfer of
title.377 In People v. Fajardo,378 the Court ruled that the municipal mayors
refusal to give the property owner the permission to build a house on his own
land on the ground that the structure would destroy the beauty of the public
plaza amounts to the taking of the property requiring just compensation.
In National Power Corporation (NPC) v. Spouses Malit, 379 the NPCs
transmission lines had to pass the Spouses Malits property. The Court ruled
that the NPCs easement of right-of-way on the land was equivalent to the
taking of property. The limitation imposed by the NPC against the use of the
land for an indefinite period deprived the Spouses Malit of the lots ordinary
use. Consequently, the NPC shall give the Spouses Malit just compensation.
The reckoning period, however, of the valuation of just compensation is the
date of taking or the filing of the complaint for expropriation, whichever is
earlier. In either case, it is only after the finality of the second stage and after
the payment of just compensation that the title shall pass to the Government.
As we have ruled in Gingoyon, the title to the property does not pass to
the condemnor until just compensation is paid.
Under Section 4 of RA 8974, the Government is only entitled to a writ of
possession upon initial payment of just compensation to the defendant, and
upon presentment to the court of a certificate of availability of funds.
581

A writ of possession does not transfer title to the Government; it is a writ of
execution employed to enforce a judgment to recover the possession of land.
It commands the sheriff to enter the land and give its possession to the
person entitled under the judgment.380 Section 4 of RA 8974 further states
that the writ of possession is an order to take possession of the property
and to start the implementation of the project, to
wit:ChanRoblesvirtualLawlibrary
Section 4. Guidelines for Expropriation Proceedings. Whenever it is
necessary to acquire real property for the right-of-way or location for any
national government infrastructure project through expropriation, the
appropriate implementing agency shall initiate the expropriation proceedings
before the proper court under the following
guidelines:ChanRoblesvirtualLawlibrary
(a)Upon the filing of the complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) one hundred percent (100%) of the
value of the property based on the current relevant zonal valuation of the
Bureau of Internal Revenue (BIR); and (2) the value of the improvements
and/or structures as determined under Section 7 hereof;
(b)In provinces, cities, municipalities and other areas where there is no zonal
valuation, the BIR is hereby mandated within the period of sixty (60) days
from the date of the expropriation case, to come up with a zonal valuation
for said area; and
(c) In case the completion of a government infrastructure project is of utmost
urgency and importance, and there is no existing valuation of the area
concerned, the implementing agency shall immediately pay the owner of
the property its proffered value taking into consideration the standards
prescribed in Section 5 hereof.
Upon compliance with the guidelines abovementioned, the court shall
immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project.
Before the court can issue a Writ of Possession, the implementing agency
shall present to the court a certificate of availability of funds from the proper
official concerned.
In the event that the owner of the property contests the implementing
agencys proffered value, the court shall determine the just compensation to
be paid the owner within sixty (60) days from the date of filing of the
expropriation case. When the decision of the court becomes final and
executory, the implementing agency shall pay the owner the difference
between the amount already paid and the just compensation as determined
by the court. (Emphasis supplied)
The Government is provisionally authorized to take the property for public
purpose or public use whenever the court issues a writ of possession in favor
of the Government. It may take possession of the property or effectively
deprive the property owner of the ordinary use of the property. If the court,
however, later on determines that the State has no right of expropriation,
then the State shall immediately restore the defendant of the possession of
the property and pay the property owner damages that he sustained. Section
11, Rule 67 of the Rules of Court:ChanRoblesvirtualLawlibrary
Section 11. Entry not delayed by appeal; effect of reversal. The right of the
plaintiff to enter upon the property of the defendant and appropriate the same
for public use or purpose shall not be delayed by an appeal from the
judgment. But if the appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the Regional Trial Court
to forthwith enforce the restoration to the defendant of the possession of the
property, and to determine the damages which the defendant sustained and
may recover by reason of the possession taken by the plaintiff. (11a)
The States taking of the property is not based on trust or contract, but is
founded on its inherent power to appropriate private property for public use. It
is also for this reason to compensate the property owner for the deprivation
of his right to enjoy the ordinary use of his property until the naked title to the
property passed to the State that the State pays interest from the time of
the taking of the property until full payment of just compensation.
This conclusion is consistent with the dispositive portion of our ruling
in Gingoyon where we authorized the Government to perform acts that are
essential to the operation of the NAIA-IPT III as an international airport
terminal upon the effectivity of the writ of possession. The authority granted
to the Government encompasses the repair, reconditioning and
improvement of the complex, maintenance of the existing facilities and
equipment, installation of new facilities and equipment, provision of services
and facilities pertaining to the facilitation of air traffic and transport, and other
services that are integral to a modern-day international airport.
The present case involves the second stage of expropriation or the
determination of replacement cost of the NAIA-IPT III. The first stage has
become final after the promulgation of the December 19, 2005 decision and
the February 1, 2006 resolution in Gingoyon where we affirmed the
Governments power to expropriate the NAIA-IPT III and where we ordered
582
the issuance of a writ of possession upon the Governments direct payment different valuations of the NAIA-IPT III.
of the proffered value of P3 billion to PIATCO. Thus, the reinstatement of
the writ of possession on September 11, 2006, empowered the On March 31, 2011, the BOC submitted its Final Report recommending the
Government to take the property for public use, and to effectively payment of just compensation in the amount of $376,149,742.56. On May
deprive PIATCO of the ordinary use of the NAIA-IPT III. 23, 2011, the RTC rendered a decision ordering the Government to pay
PIATCO just compensation in the amount of $116,348,641.10. The CA
B. G.R. No. 181892 modified the RTC ruling and held that the just compensation as of July 31,
2013, amounts to $371,426,742.24.
The issue on the appointment of
an independent appraiser is already moot These developments render the appointment of DG Jones and Partners
and academic. as an independent appraiser of the NAIA-IPT III ineffective. An appraiser
is a person selected or appointed by competent authority to ascertain and
In G.R. No. 181892, the RTC, in its order dated May 5, 2006, ordered the state the true value of goods or real estate.381 The purpose of appointing DG
appointment of an independent appraiser to conduct the valuation of the Jones and Partners as an independent appraiser was to assist the BOC in
NAIA-IPT III upon the BOCs request. Thereafter, the Government and appraising the NAIA-IPT III. In fact, the BOC requested the RTC to engage
PIATCO submitted their lists of nominees to this position. On May 3, 2007, the services of an independent appraiser because the BOC had no technical
the RTC engaged the services of DG Jones and Partners as an independent expertise to conduct the valuation of the NAIA-IPT III. In turn, the BOC was
appraiser. On May 18, 2007, the RTC directed the Government to submit a to recommend to the RTC the replacement cost of the NAIA-IPT III. Under
Certificate of Availability of Funds to cover DG Jones and Partners $1.9 Section 8, Rule 67 of the Rules of Court, the RTC may accept or reject,
Million appraisal fee. whether in whole or in part, the BOCs report which is merely advisory and
recommendatory in character.
The Government disputed the May 3 and 18, 2007 orders and argued that
the RTC had no power to appoint an independent appraiser. The We find, under the given circumstances, that the propriety of the
Government insisted that the RTC should exclusively choose among its appointment of DG Jones and Partners and the corollary issue of who
nominees pursuant to Section 7 of RA 8974 as well as Sections 10 and 11 of should shoulder the independent appraisers fees moot and academic.
RA 8974 IRR.
An actual case or controversy exists when there is a conflict of legal rights or
The RTC sustained the appointment of DG Jones and Partners in an order an assertion of opposite legal claims between the parties that is susceptible
dated January 7, 2008. The RTC ruled that its power to appoint the members or ripe for judicial resolution.382 A justiciable controversy must not be moot
of the BOC under Section 5, Rule 67 of the Rules of Court was broad enough and academic or have no practical use or value. In other words, there must
as to include the appointment of an independent appraiser. be a definite and concrete dispute touching on the legal relations of the
parties who have adverse legal interests. Otherwise, the Court would simply
On February 6, 2008, the Government filed a petition for certiorari with prayer render an advisory opinion on what the law would be on a hypothetical state
for the issuance of a temporary restraining order and/or a writ of preliminary of facts. The disposition of the case would not have any practical use or
injunction before the Court assailing the May 3, 2007; May 18, 2007; and value as there is no actual substantial relief to which the applicant would be
January 7, 2008 orders (G.R. No. 181892). entitled to and which would be negated by the dismissal or denial of the
petition.383cralawrednad
On January 9, 2008, the Court issued a temporary restraining order
against the implementation of the May 3, May 18, and January 7, 2008 After the BOC submitted its Final Report on the replacement cost of the
orders. NAIA-IPT III based on the appraisal reports and other evidence submitted by
the parties, the appointment of DG Jones and Partners ceased to serve any
On August 5, 2010, the RTC ordered the parties to submit their appraisal purpose. Any subsequent findings of DG Jones and Partners regarding the
reports of the NAIA-IPT III. The Government, PIATCO, Takenaka and appraisal of the NAIA-IPT III would cease to have any practical
Asahikosan separately hired their own appraisers who came up with their materiality since the RTC proceedings on the amount of just

583
compensation had already been terminated.
As with the BOC, the independent appraisers valuation of the NAIA-IPT III
was advisory and recommendatory in character. DG Jones and Partners
valuation was only preliminary and was not by any means meant to be final
and conclusive on the parties. In the exercise of its judicial functions, it is the
expropriation court who has the final say on the amount of just
compensation. Since the RTC has already made a factual finding on the
valuation of the NAIA-IPT III, there is no point in appointing DG Jones and
Partners as an independent appraiser. To reiterate, valuation involves a
factual question that is within the province of the expropriation court, and not
the BOC or the independent appraiser. DG Jones and Partners rule has
simply been overtaken by events.
As a final note, while we stated in Gingoyon that the RTC may validly appoint
commissioners in the appraisal of the NAIA-IPT III, the trial court should have
appointed commission members who possessed technical expertise in the
appraisal of a complex terminal building. Under Section 5, Rule 67 of the
Rules of Court, the BOCs main functions are to ascertain and report to the
court the just compensation for the property sought to be taken. The
appointment of technical experts as commissioners would have avoided the
DG Jones aspect of the controversy as there would have been no need for
the trial court to hire an independent appraiser. This would have avoided the
duplication of tasks and delay in the proceedings.
To summarize, we rule that:ChanRoblesvirtualLawlibrary
(1)The May 23, 2011 decision of the RTC in Civil Case No. 04-0876 is valid.
The parties were afforded procedural due process since their respective
positions, counter-positions, and evidence were considered by the trial
court in rendering the decision.
(2)Replacement cost is a different standard of valuation from fair market
value. Fair market value is the price at which a property may be sold by a
seller who is not compelled to sell and bought by a buyer who is not
compelled to buy. In contrast, replacement cost is the amount necessary
to replace the improvements/structures, based on the current market
prices for materials, equipment, labor, contractors profit and overhead,
and all other attendant costs associated with the acquisition and
installation in place of the affected improvements/structures.
(3)In computing just compensation, the Court shall use the replacement cost
method and the standards laid down in Section 5 of RA 8974 as well as
Section 10 of RA 8974. The Court shall likewise consider equity in the
determination of the just compensation due for NAIA-IPT III.
(4)The use of depreciated replacement cost method is consistent with the
principle that the property owner shall be compensated for his actual loss.
It is consistent as well with Section 10 of RA 8974 IRR which provides that
the courts shall consider the kinds and quantities of materials/equipment
used and the configuration and other physical features of the property,
among other things, in the valuation of the NAIA-IPT III. The Government
should not compensate PIATCO based on the value of a modern
equivalent asset that has the full functional utility of a brand new asset.
(5)The amount of just compensation as of the filing of the complaint for
expropriation on December 21, 2004, is $326,932,221.26. From this sum
shall be deducted the proffered value of $59,438,604.00. The resulting
difference of $267,493,617.26 shall earn a straight interest of 12% per
annum from September 11, 2006 until June 30, 2013, and a straight
interest of 6% per annum from July 1, 2013, until full payment.
(6)PIATCO, as the owner of the NAIA-IPT III, shall solely receive the just
compensation. Based on the last paragraph, Section 4 of RA 8974 and the
prevailing jurisprudence, it is the owner of the expropriated property who is
constitutionally entitled to just compensation. Other claimants should be
impleaded or may intervene in the eminent domain case if the ownership
of the property is uncertain or there are conflicting claims on the property
pursuant to Section 9, Rule 67 of the Rules of Court.
(7)The Government may deprive PIATCO of the ordinary use of the NAIA-
IPT III upon the issuance and effectivity of the writ of possession on
September 11, 2006. However, the Government shall only have
ownership of the NAIA-IPT III after it fully pays PIATCO the just
compensation due.
(8)The expenses of the BOC, which are part of the costs, shall be shouldered
by the Government as the condemnor of the property pursuant to Section
12, Rule 67 of the Rules of Court. Consequently, Takenaka and
Asahikosan shall not share in the expenses of the BOC. PIATCO is
deemed to have waived its right not to share in the expenses of the BOC
since it voluntarily shared in the expenses of the BOC.
(9)The issues of the propriety of the appointment of DG Jones and Partners
as an independent appraiser in the valuation of the NAIA-IPT III and who
should shoulder DG Jones and Partners appraisal fee are already moot
and academic. The purpose of appointing DG Jones and Partners as an
independent appraiser was to assist the BOC in the appraisal of NAIA-IPT
III. As with the BOC, the independent appraisers recommendation to the
RTC was merely recommendatory and advisory in character. Since the
RTC has already ruled on the just compensation in Civil Case No. 04-
0876, the appointment of an independent appraiser no longer serves any
practical purpose.
WHEREFORE, premises considered, we PARTIALLY REVERSE the August
584
22, 2013 amended Decision and the October 19, 2013 Resolution of the
Court of Appeals.

1)The principal amount of just compensation is fixed at $326,932,221.26 as

of December 21, 2004. Thereafter, the amount of $267,493,617.26, which
is the difference between $326,932,221.26 and the proffered value of
$59,438,604.00, shall earn a straight interest of 12% per annum from
September 11, 2006 until June 30, 2013, and a straight interest of 6% per
annum from July 1, 2013 until full payment;
2)The Government is hereby ordered to make direct payment of the just
compensation due to PIATCO; and
3)The Government is hereby ordered to defray the expenses of the BOC in
the sum of P3,500,000.00.

We DECLARE the issue of the appointment of DG Jones and Partners as an

independent appraiser of the Ninoy Aquino International Airport Passenger
Terminal III MOOT AND ACADEMIC. The temporary restraining order issued
on January 9, 2008, against the implementation of the May 3, 2007; May 18,
2007; and January 7, 2008 orders of the Regional Trial Court of Pasay City,
Branch 117 is hereby made PERMANENT.

585