G.R. No.

119190 January 16, 1997

CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over troubled
waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of
the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the
Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on
the ground of psychological incapacity. Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision
November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated
February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court of
Appeals 1 its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .
Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they
went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their
married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There
was no sexual intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to
join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk
during siesta time or by just sleeping on a rocking chair located at the living room. They slept
together in the same room and on the same bed since May 22, 1988 until March 15, 1989.
But during this period, there was no attempt of sexual intercourse between them. [S]he
claims, that she did not: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband which
was also kept confidential. No treatment was given to her. For her husband, he was asked
by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show
his penis. She said, that she had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that, according to her, the defendant
married her, a Filipino citizen, to acquire or maintain his residency status here in the country
and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled by
reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the relationship is still very young and
if there is any differences between the two of them, it can still be reconciled and that,
according to him, if either one of them has some incapabilities, there is no certainty that this
will not be cured. He further claims, that if there is any defect, it can be cured by the
intervention of medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with his
wife, she always avoided him and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his wife to have sex with him only
once but he did not continue because she was shaking and she did not like it. So he
stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.

The defendant insisted that their marriage will remain valid because they are still very young
and there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr.
Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof,
Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no
evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")
 The doctor said, that he asked the defendant to masturbate to find out whether or not he has
an erection and he found out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr.
Alteza said, that the defendant had only a soft erection which is why his penis is not in its full
length. But, still is capable of further erection, in that with his soft erection, the defendant is
capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the parties
and that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into
by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the
Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera.
Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon
City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

in affirming the conclusions of the lower court that there was no sexual intercourse between
the parties without making any findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with petitioner is
a psychological incapacity inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and the private respondent to have
sex with each other constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower court
without fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the
burden of proving the allegations in her complaint; that since there was no independent evidence to
prove the alleged non-coitus between the parties, there remains no other basis for the court's
conclusion except the admission of petitioner; that public policy should aid acts intended to validate
marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial
court on the admissions and confessions of the parties in their pleadings and in the course of the
trial is misplaced since it could have been a product of collusion; and that in actions for annulment of
marriage, the material facts alleged in the complaint shall always be proved. 3

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation the material facts alleged in the complaint shall always be
proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to
prevent is annulment of marriage without trial. The assailed decision was not based on such a
judgment on the pleadings. When private respondent testified under oath before the trial court and
was cross-examined by oath before the trial court and was cross-examined by the adverse party,
she thereby presented evidence in form of a testimony. After such evidence was presented, it be
came incumbent upon petitioner to present his side. He admitted that since their marriage on May
22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil
Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of
facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such
annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be annulled.
This only shows that there is no collusion between the parties. When petitioner admitted that he and
his wife (private respondent) have never had sexual contact with each other, he must have been
only telling the truth. We are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice
Minerva Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a stipulation
of facts. The issue of whether or not the appellant is psychologically incapacitated to
discharge a basic marital obligation was resolved upon a review of both the documentary
and testimonial evidence on record. Appellant admitted that he did not have sexual relations
with his wife after almost ten months of cohabitation, and it appears that he is not suffering
from any physical disability. Such abnormal reluctance or unwillingness to consummate his
marriage is strongly indicative of a serious personality disorder which to the mind of this
Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance
to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of
Appeals, G.R. No. 112019, January 4, 1995). 4

Petitioner further contends that respondent court erred in holding that the alleged refusal of both the
petitioner and the private respondent to have sex with each other constitutes psychological
incapacity of both. He points out as error the failure of the trial court to make "a categorical finding
about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal
which may not be necessarily due to physchological disorders" because there might have been other
reasons, — i.e., physical disorders, such as aches, pains or other discomforts, — why private
respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a
short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on who
between petitioner and private respondent refuses to have sexual contact with the other. The fact
remains, however, that there has never been coitus between them. At any rate, since the action to
declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated,
the question of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties is
suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with
private respondent; that the reason for private respondent's refusal may not be psychological but
physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or
asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual
intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to
find out or discover what the problem with his wife could be. What he presented in evidence is his
doctor's Medical Report that there is no evidence of his impotency and he is capable of
erection. 5 Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder
on the part of private respondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essential
marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a
spouse to have sexual intercourse with his or her spouse is considered a sign of
psychological incapacity. 6

Evidently, one of the essential marital obligations under the Family Code is "To procreate children
based on the universal principle that procreation of children through sexual cooperation is the basic
end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or
wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill the above marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not
want carnal intercourse with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988
to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for
her feelings, he deserves to be doubted for not having asserted his right seven though she
balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330).
Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant
did not go to court and seek the declaration of nullity weakens his claim. This case was
instituted by the wife whose normal expectations of her marriage were frustrated by her
husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to
believe that she would expose her private life to public scrutiny and fabricate testimony
against her husband if it were not necessary to put her life in order and put to rest her marital
status.
 We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not phychological
incapacity, and which can be achieved "through proper motivation." After almost ten months
of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual
act with his wife whom he professes to love very dearly, and who has not posed any
insurmountable resistance to his alleged approaches, is indicative of a hopeless situation,
and of a serious personality disorder that constitutes psychological incapacity to discharge
the basic marital covenants within the contemplation of the Family Code. 7

While the law provides that the husband and the wife are obliged to live together, observe mutual
love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous,
mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs.
Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an
island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so
because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural
order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift
and a participation in the mystery of creation. It is a function which enlivens the hope of procreation
and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is — a
shared feeling which between husband and wife must be experienced not only by having
spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way
process. An expressive interest in each other's feelings at a time it is needed by the other can go a
long way in deepening the marital relationship. Marriage is definitely not for children but for two
consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a
continuing commitment to compromise, conscious of its value as a sublime social institution.

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped
in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated
November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack
of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 533 September 12, 1974

IN RE: FLORENCIO MALLARE, respondent,

RESOLUTION
FERNANDEZ, J.:p

On complaint of then Acting Immigration Commissioner, Martiniano P. Vivo, this Court ordered the
investigation of the matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar
on March 5, 1962, for the purpose of determining whether his name should be stricken from the roll
of persons authorized to practice law in the Philippines.

After an investigation conducted by this Court's Legal Officer Investigator, a decision was rendered
by this Court on April 29, 1968, holding that by preponderance of evidence, it appeared that
respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother
admittedly being a Chinese, respondent is likewise a Chinese national. Consequently respondent
Florencio Mallare was declared excluded from the practice of law; his admission to the bar was
revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to him.

Respondent moved for reconsideration of the decision, which was denied by the Court in its
resolution of January 10, 1969. On February 4, 1969, respondent petitioned the Court for the
reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the
introduction of which could alter the decision previously promulgated. The evidence proposed to be
presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church
at Macalelon, Quezon, purporting to show that Estaben Mallare (respondent's father) is the natural
son of Ana Mallare, a Filipino; and (2) testimonies of certain persons who had a known Esteban
Mallare and his mother during their lifetime.

By resolution of July 31, 1969, this Court ruled:

Considering that the respondent, as a duly admitted member of the bar, should be
given ample opportunity to establish the true facts about his citizenship and that no
effort should be spared to ascertain the truth before strippling him of the privilege
granted to him by this Court since 1962, and denying him the practice of his chosen
profession which he has honorably discharged as far as the records show:

The Court Resolved to set aside the decision of April 29, 1968 and to grant the re-
opening and new trial prayed for, which shall take place before the Court's
Investigating Officer on the days specified by him upon notice to respondent Mallare,
the Commissioner of Immigration and the Solicitor General, wherein said parties may
adduce all proper additional evidence that they may desire to present. The proofs
taken at the original investigation shall not be retaken, but considered as part of the
evidence in the new trial. Thereafter, the Court Investigator shall submit his report on
this Tribunal. (Emphasis supplied)

Accordingly, the parties submitted their respective additional evidences before the Court's
investigator.

Respondent's petition to set aside the decision of this Court of April 29, 1968, as well as the
resolution of January 10, 1969, is premised upon three basic arguments, to wit: (a) Respondent's
father, Esteban Mallare, being the natural son of Ana Mallare, a Filipino, was a Filipino citizen; (b)
Esteben Mallare, the son of a Filipino mother, by his own overt acts, had chosen Philippine
citizenship; and (c) respondent, a legitimate son of Esteban Mallare, is a Filipino citizen.
The determinative issue in this controversy, therefore, revolves around the citizenship of
respondent's father, Esteban Mallare, for if Esteban were a Filipino as respondent claims, the latter
axiomatically would also be a Filipino and the objection against his inclusion in the Roll of Attorneys
in the Philippines would lose legal basis.

After a painstaking study of the original and additional evidences herein presented, the Court finds
sufficient grounds to warrant a definite setting aside of Our decision of April 29, 1968, and a
definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with
qualification and right to continue the practice of law in the Philippines.

To support his contention that respondent Florencio Mallare is not a Filipino, the Commissioner of
Immigration presented:

Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of Justice dated March 31, 1955
and July 10, 1959, respectively, to the effect that respondent and his brothers and sisters had failed
to establish their claim to Philippine citizenship;

Exhibit "C", the death certificate of Esteban Mallare dated June 7, 1945, wherein he was reported to
be of Chinese nationality;

Exhibits "D", "E", "F" and "G", the birth certificates of respondent, his brothers and sisters, dated
October 23, 1929, November 8, 1932, October 26, 1939, and February 10, 1943, respectively,
stating that their father was a Chinese citizen, born in Amoy, China, and wherein respondent was
reported to be a Chinese, born in Macalelon, Quezon;

Exhibits "H" to "M" — the records of Civil Case No. 329-G and Special Proceeding No. 3925, both of
the Court of First Instance of Quezon; and

Exhibit "N", respondent's alien certificate of registration, dated August 25, 1950.

Upon the other hand, respondent submitted —

Exhibit "1", the decision of the Court of First Instance of Quezon in Civil Case No. 329-G, dated
November 18, 1959, upholding the validity of a contract of sale, the vendees therein (including
respondent) being citizens of the Philippines;

Exhibit "2", an order by the Acting Commissioner of Immigration, canceling respondent's alien
certificate of registration on the strength of the court's decision in Civil Case No. 329-G; Exhibit "3",
identification certificate No. 11712 issued by the Bureau of Immigration, declaring respondent "as a
citizen of the Philippines by birth being the legitimate son of Esteban Mallare, a Filipino citizen as
'per order of this office dated 8 June 1960 CEBNO 4223-R'";

Exhibit "4", final order of the Court of First Instance of Quezon, dated November 28, 1960, in Special
Proceedings No. 3925, ordering the Municipal Treasurer of Macalelon, Quezon, to correct the entry
in the Registry of Birth book of the municipality by changing respondent's nationality from "Chinese"
to "Filipino";

Exhibit "5", respondent's affidavit dated October 7, 1961 showing him to be a registered voter of
Macalelon, Quezon;
Exhibit "6", respondent's passport issued on March 5, 1962, showing that he is a citizen of the
Philippines;

Exhibit "7", opinion of the Solicitor General, dated July 25, 1962, recognizing respondent Florencio
Mallare as a Filipino citizen;

Exhibit "L", landing certificate of Te Na (respondent's mother), dated July 7, 1926, wherein she was
certified as "wife of P.I. citizen";

Exhibit "K-9", certification by the municipal treasurer of Macalelon, Quezon that Esteban Mallare was
registered in the Registry List of Voters on April 14, 1928; and

The entry in the baptismal registry of the Immaculate Concepcion Church at Macalelon, Quezon,
purporting to show that Esteban Mallare was the natural child of Ana Mallare, a Filipina.

Respondent also presented the following residents of Macalelon, Quezon:

(a) Damiana Cabangon, 80 years old who — declared that she was with her mother, the "hilot" who
attended to Ana Mallare during her delivery, when Esteban Mallare was born; 1 that she was present
when Esteban was baptized; 2 that Ana Mallare had lived continuously in Macalelon and was reputed to
be unmarried; 3 that she had never met (seen) Esteban's father, a certain Mr. Dy. 4

(b) Rafael Catarroja 77 years old and former mayor of Macalelon who declared that he knew
Esteban Mallare even as a child; 5 that Esteban was then living with his mother, Ana Mallare, a Tagala,
who was cohabiting with a Chinese; 6 that Esteban started voting in 1934, and became one of his (the
witness') campaign leaders when he ran for the mayor ship in 1934. 7

(c) Salomon Gimenez, 75 years old and former mayor of Macalelon, who declared having known
Esteban Mallare; that in the elections of l925, when Esteban campaigned for a rival candidate
against him, he (the witness) wanted to seek for Esteban's disqualification; that he sought the
counsel of Judge Gaudencio Eleazar (a relative of the witness), who advised him that a
disqualification move would not prosper because Esteban's mother was not married to Esteban's
Chinese father; 8 that as of 1940, when witness was municipal mayor, there were only about 3,000
residents in Macalelon. 9

(d) Joaquin Enobal, 69 years old, who declared that he was a classmate and playmate of Esteban
Mallare, whose house was only about five houses away from theirs; 10 that he had not seen the
husband of Ana Mallare; 11 that Ana was a Tagalog who had lived in Macalelon. 12

In Our decision of April 29, 1968, respondent's claim that he is a Filipino was denied for lack of
evidence proving the Philippine citizenship of his father, Esteban Mallare. It was ruled that Ana
Mallare (Esteban's mother) can not be considered a Filipino, there being no proof that she was "an
inhabitant of the Philippines continuing to reside therein who was a Spanish subject on the eleventh
day of April, eighteen hundred and ninety-nine"; that the landing certificate issued by the Bureau of
Immigration which referred to respondent's mother, Te Na, as "wife of Dy Esteban, P.I. citizen", was
based upon an ex parte determination of the evidence presented by therein applicant and
consequently carries little evidentiary weight as to the citizenship of her said husband; and that the
affidavit of Esteban Mallare, executed on February 20, 1939, to the effect that he had chosen to
follow the citizenship of his Filipino mother was not only self-serving, but also it can not be
considered a re-affirmation of the alleged election of citizenship since no previous election of such
citizenship has been proved to exist.
With the additional evidence submitted by respondent pursuant to the authority granted by this
Court, the aforementioned void in the proof of respondent's citizenship has been duly filled.

The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and
residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is
a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born
out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of
Esteban Mallare. Reputation has been held admissible as evidence of age, birth, race, or race-
ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree,
general reputation of marriage may proceed from persons who are not members of the family — the
reason for the distinction is the public interest that is taken in the question of the existence of marital
relations.13

The principle could not have been more true than in a Philippine rural community where
relationships not in conformity with established contentions become the subject of criticisms and
public cynosure. Thus, the public reputation in Macalelon that Esteban was Ana's natural child,
testified to by the witness, would constitute proof of the illegitimacy of the former. Besides, if Estaban
were really born out of legal union, it is highly improbable that he would be keeping the surname
"Mallare" after his mother, instead of adopting that of his father. And it would be straining the
imagination to perceive that this situation was purposedly sought by Esteban's parents to suit some
ulterior motives. In 1903, we can not concede that alien inhabitants of his country were that
sophisticated or legally-oriented.

The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog
(and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of
evidentiary value. The declarations were not only based on the reputation in the community
regarding her race or race-ancestry, which is admissible in evidence, but they must have certain
factual basis. For it must be realized that in this Philippine society, every region possesses certain
characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same
region even from the way the latter speaks. Considering that the witnesses testified having known,
and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should receive a
high degree of credibility.

Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other
act would be necessary to confer on him all the rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands,
42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act taken on the erroneous
belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully
entitled. 14

And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's exercise
of the right of suffrage when he came of age, constitutes a positive act of election of Philippine
citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928
(Exh. "K-9"), and that as early as 1925 (when he was about 22 years old), Esteban was already
participating in the elections and campaigning for certain candidate. These acts are sufficient to
show his preference for Philippine citizenship. 15 Indeed, it would be unfair to expect the presentation of
a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7,
1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted
to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution.
It is true that in the death certificate of Esteban Mallare (Exh. "C"), he was referred to as a Chinese
national, and in the birth certificates of respondent and his brothers and sister (Exhs. "D", "E", "F"
and "G"), they were declared to be of Chinese nationality. Respondent likewise appeared to have
applied for alien registration on August 25, 1950 (Exh. "N"). While said documents are public and the
entries therein are, consequently, presumed to be correct, such presumption is merely disputable
and will have to yield to more positive evidence establishing their inaccuracy.

Artemio Mallare, Esteban's eldest son and who supposedly supplied the data appearing in Exhibit
"C", denied having any hand in the funeral arrangements and the preparation of the said death
certification of his father. He declared that he was merely 16 years old when his father met his death
in an accident in 1945, and he came to know of it only when he was brought to the funeral parlor on
the following day. 16 The entries in the birth certificates (Exhs. "D", "E", and "G"), on the other hand,
appeared to have been prepared upon information given by the nurse or midwife who attended to
respondent's mother during her deliveries and who would have no knowledge of the actual fact of the
place of birth and the citizenship of Esteban, the father; and in the case of respondent Florencio Mallare,
the informant was neither his father or mother; it was Maria Arana a "hilot". In the case of the birth
certificate of Esperanza Mallare (Exh. "F"), the informant appeared to be Esteban Mallare himself. It is
noted, however, that no proof has been presented to show that it was Esteban Mallare who personally
gave the information that the child's and parents' nationality is Chinese. And any error on his part can not
affect respondent Florencio Mallare. With respect to the registration of respondent as a citizen of China in
1950 (Exh. "N"), it was explained that this was secured by respondent's mother, on the belief that upon
the death of her husband, Esteban Mallare, she and her children reverted to Chinese citizenship. At any
rate, even assuming that said documents were prepared with actual knowledge and consent by
respondent or by his parents, on the erroneous belief that Esteban was a non-Filipino, such acts would
not cause the loss or forfeiture of Philippine citizenship 17 which Esteban acquired from his Filipino
mother.

Complainant places much emphasis on the convicting testimonies of the expert witnesses on the
entry in the baptismal registry of the Immaculate Concepcion church. The discrepancy in the
testimonies of said witnesses, however, loses significance in the face of the finding, based on other
evidence that Esteban Mallare is the natural child of Ana Mallare, born to her in 1903 at Macalelon,
Quezon.

Upon the foregoing considerations, and on the basis of the original and additional evidence herein
adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and the
complaint in this case is DISMISSED, without pronouncement as to costs.

Makalintal, C.J., Zaldivar, Castro, Fernando, Teehankee, Barredo, Antonio, Esguerra, Muñoz Palma
and Aquino, JJ., concur.

Makasiar, J., took no part

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike —
but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement
of carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage
to circumvent the prohibition against inter-provincial movement of carabaos by
transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No.
626 and the prohibition against interprovincial movement of carabaos, it is necessary
to strengthen the said Executive Order and provide for the disposition of the
carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection Commission may
ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen
hundred and eighty.

(SGD.) FERDINAND
E. MARCOS

Preside
nt

Republic of the
Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13,
1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation
of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial
court, ** and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is
that the penalty is invalid because it is imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by the former President under
Amendment No. 6 of the 1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable
here. The question raised there was the necessity of the previous publication of the measure in the
Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis
of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may
provide," final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any
means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity,
and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to
recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they
should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of
the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of
his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to
protracted discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and
the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient.
This was felt necessary because due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was
meant to make it adapt easily to every situation, enlarging or constricting its protection as the
changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process
lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave
the import of the protection open-ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter
of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums it all up — as nothing more
and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that
Crown would thenceforth not proceed against the life liberty or property of any of its subjects except
by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their
progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn
vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a
ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern
visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the bow the arrow, in leading to
the correct ruling after examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of
the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and
empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic
materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous
judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both
restraints and is restrained by due process. The police power is simply defined as the power
inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By
reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A,
amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except
under certain conditions. The original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for
the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need
for such a measure. In the face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been remiss, indeed, if it
had not taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by
farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows:

To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of
a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of
the statute under consideration was required by "the interests of the public generally,
as distinguished from those of a particular class" and that the prohibition of the
slaughter of carabaos for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably necessary" limitation on private
ownership, to protect the community from the loss of the services of such animals by
their slaughter by improvident owners, tempted either by greed of momentary gain,
or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for
the purpose sought to be achieved and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where
they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original
executive order, we cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it
could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of
the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow
that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still
have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty
is outright confiscation of the carabao or carabeef being transported, to be meted out by the
executive authorities, usually the police only. In the Toribio Case, the statute was sustained because
the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed,
and the property being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the
carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the
petitioner and immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be heard, thus
denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for these minimum guarantees of due
process. It is also conceded that summary action may be validly taken in administrative proceedings
as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of
the problem sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for the petitioner's
peremptory treatment. The properties involved were not even inimical per se as to require their
instant destruction. There certainly was no reason why the offense prohibited by the executive order
should not have been proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been
pronounced not by the police only but by a court of justice, which alone would have had the authority to
impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated
property as prescribed in the questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other similar institutions as the Chairman
of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption.
One searches in vain for the usual standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their distribution. There is none. Their
options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can supply the answer, they and they
alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there
is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that
keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative
powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power
because the method employed to conserve the carabaos is not reasonably necessary to the purpose
of the law and, worse, is unduly oppressive. Due process is violated because the owner of the
property confiscated is denied the right to be heard in his defense and is immediately condemned
and punished. The conferment on the administrative authorities of the power to adjudge the guilt of
the supposed offender is a clear encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to
the officers mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A
unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated
the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate
of the President, to declare the executive order unconstitutional and, on his own responsibility alone,
refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them,
this case would never have reached us and the taking of his property under the challenged measure
would have become a faitaccompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate and another violation
of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest,
and soon forgotten in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of the people to
invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of
protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if
they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.
Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
 justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)
The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
 the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer the
accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment appealed from.

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there
is kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is — Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in
the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.

The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo
and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to
bring before the court the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were
notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting
in the same capacity. On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court
to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila
to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may
have been convicted of vagrancy, to the homeland. New York and other States have statutes
providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands — and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other
citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we 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." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to — "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application
for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction
of the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the
writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right
that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being brought to their
notice. . . .
 The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent,
and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine
and imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to the custody of
the marshall until he should produce the negroes, or be otherwise discharged in due course of law.
The court afterwards ordered that Davis be released upon the production of two of the negroes, for
one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then
in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort
to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this undesirable position, must be granted. When
all is said and done, as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more
than one hundred and fifty women were assembled and placed aboard a steamer and transported to
Davao, considering that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted
without authority of any legal provision which constitutes an exception to the laws guaranteeing the
liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city
and his subordinates, if we take into account the difficulties encountered in bringing the said women
who were free at Davao and presenting them before this court within the time fixed, inasmuch as it
does not appear that the said women were living together in a given place. It was not because they
were really detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who continued
living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally
and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so
many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which
being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection
the interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of
their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the population from the
social evils and diseases which the houses of prostitution situated in Gardenia Street have been
producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and
the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free
practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more humane and
less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures
have always had in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account
of sickness or infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped
affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless,
a second order referred to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women who were not in Manila,
unless they could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined in rounding up the women,
and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to
Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders.
Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the respondents in their first answer at the trial of December
2, 1918, giving as one of the reasons for their inability to present any of the said women that the
latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other
hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as
chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and second orders; that neither of
the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila,
who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms
the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the
power to enforce decorum in the courts and obedience to their orders and just measures is
so essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so far as the legislative department is concerned,
 is obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has been declared, stands
upon the same immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own expense while still
others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of
the petition interposed by the said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are circumstances which should be
taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the Code of Civil
Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this
proceeding should be transmitted to the Attorney-General in order that, after a study of the same
and deduction from the testimony which he may deem necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall
present the corresponding informations for the prosecution and punishment of the crimes which
have been committed on the occasion when the illegal detention of the women was carried into
effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while the women were in Davao. This
will be one of the means whereby the just hope expressed in the majority decision will be realized,
that is, that in the Philippine Islands there should exist a government of laws and not a government
of men and that this decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and
HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues
are involved, the Court's decision in this case would indubitably have a profound effect on the
political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six

Commissioners who shall be natural-born citizens of the Philippines and, at the time
of their appointment, at least thirty-five years of age, holders of a college degree, and
must not have been candidates for any elective position in the immediately preceding
-elections. However, a majority thereof, including the Chairman, shall be members of
the Philippine Bar who have been engaged in the practice of law for at least ten
years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which
similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight

Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a

legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation, but
embraces the preparation of pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all advice to clients and all
actions taken for them in matters connected with the law. An attorney engages in the
practice of law by maintaining an office where he is held out to be-an attorney, using
a letterhead describing himself as an attorney, counseling clients in legal matters,
negotiating with opposing counsel about pending litigation, and fixing and collecting
fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co.
v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law
when he:
 ... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights
under the law, or while so engaged performs any act or acts either in court or outside
of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick
v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In general, all advice to
clients, and all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's
claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute
law practice, as do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal effect of facts
and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large variety of subjects, and
the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have
no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to clients which
rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] ,
p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).
(Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counselling and public service.
 One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law within
the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render
any kind of service, which device or service requires the use in any degree of legal knowledge or
skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a

manifestation which I forgot to do during our review of the provisions
on the Commission on Audit. May I be allowed to make a very brief
statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for
by Section I is that "They must be Members of the Philippine Bar" — I
am quoting from the provision — "who have been engaged in the
practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make
the clarification that this provision on qualifications regarding members of the Bar
does not necessarily refer or involve actual practice of law outside the COA We have
to interpret this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work within COA,
then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and

Agencies and we deem it important to take it up on the floor so that this interpretation
may be made available whenever this provision on the qualifications as regards
members of the Philippine Bar engaging in the practice of law for at least ten years is
taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

 MR. OPLE. Is he, in effect, saying that service in the COA by a
lawyer is equivalent to the requirement of a law practice that is set
forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although
it is auditing, will necessarily involve legal work; it will involve legal
work. And, therefore, lawyers who are employed in COA now would
have the necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And,
therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and
two Commissioners of the Commission on Audit (COA) should either be certified public accountants
with not less than ten years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the
word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that
the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood,
means "an individual or organization engaged in the business of delivering legal services." (Ibid.).
Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the firm are the partners. Some firms may
be organized as professional corporations and the members called shareholders. In either case, the
members of the firm are the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law
is defined as the performance of any acts . . . in or out of court, commonly understood to be the
practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870
[1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because
lawyers perform almost every function known in the commercial and governmental realm, such a
definition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role
for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much
of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.).
Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the
importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and non-litigation work also know that
in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been described as the planner,
the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in
medicine, surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal
tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients,
and other interested parties. Even the increasing numbers of lawyers in specialized practice wig
usually perform at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to
an importantly different one such as representing a client before an administrative agency.
(Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare
types — a litigator who specializes in this work to the exclusion of much else. Instead, the work will
require the lawyer to have mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of
adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client and by the way in which
the lawyer is organized into a social unit to perform that work. The most common of these roles are
those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in

corporate law practice. Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional contexts, are finding that
understanding the major emerging trends in corporation law is indispensable to
intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate

understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation. The recognition of
the need for such improved corporate legal policy formulation, particularly "model-
making" and "contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and
weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need
for fast decision and response in situations of acute danger have prompted the use
of sophisticated concepts of information flow theory, operational analysis, automatic
data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making
process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained

primarily in the law can be improved through an early introduction to multi-variable
decisional context and the various approaches for handling such problems. Lawyers,
particularly with either a master's or doctorate degree in business administration or
management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which
are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the
services of an astute attorney because of the complex legal implications that arise
from each and every necessary step in securing and maintaining the business issue
raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the

"abogado de campanilla." He is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys employed
by a single corporation will vary with the size and type of the corporation. Many
smaller and some large corporations farm out all their legal problems to private law
firms. Many others have in-house counsel only for certain matters. Other corporation
have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. His areas of concern or jurisdiction may include, inter alia:
corporate legal research, tax laws research, acting out as corporate secretary (in
board meetings), appearances in both courts and other adjudicatory agencies
(including the Securities and Exchange Commission), and in other capacities which
require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. ( Emphasis
supplied.)
In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one's work actually fits into the work of the
orgarnization. This can be frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes offered this fortune to be
more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a

multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field. After
all, international law is practiced in a relatively small number of companies and law
firms. Because working in a foreign country is perceived by many as glamorous, tills
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs
go to experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p.
4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To
borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer
is one who fails to spot problems, a good lawyer is one who perceives the difficulties,
and the excellent lawyer is one who surmounts them." (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to
speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion
as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary skins
applicable to a corporate counsel's management responsibilities; and (3) a devotion
to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial jurisprudence," it
forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For
that matter, the corporate lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides counsel for are required to
make, and the need to think about a corporation's; strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other — often with
those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation
is rapidly changing. The modem corporate lawyer has gained a new role as a
stakeholder — in some cases participating in the organization and operations of
governance through participation on boards and other decision-making roles. Often
these new patterns develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward
the promotion and management of technology. New collaborative arrangements for
promoting specific technologies or competitiveness more generally require
approaches from industry that differ from older, more adversarial relationships and
traditional forms of seeking to influence governmental policies. And there are lessons
to be learned from other countries. In Europe, Esprit, Eureka and Race are examples
of collaborative efforts between governmental and business Japan's MITI is world
famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements within
the organization. In general, such external activities are better predictors of team
performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis
the managerial mettle of corporations are challenged. Current research is seeking
ways both to anticipate effective managerial procedures and to understand
relationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective
tool for new managerial thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops, inventory levels, and rates
of flow, enable users to simulate all sorts of systematic problems — physical,
economic, managerial, social, and psychological. New programming techniques now
make the system dynamics principles more accessible to managers — including
corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and minimize
the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used

directly by parties and mediators in all lands of negotiations. All integrated set of such
tools provide coherent and effective negotiation support, including hands-on on
instruction in these techniques. A simulation case of an international joint venture
may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern
three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a

major part of the general counsel's responsibilities. They differ from those of remedial
 law. Preventive lawyering is concerned with minimizing the risks of legal trouble and
maximizing legal rights for such legal entities at that time when transactional or
similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those
activities of the firm to which legal consequences attach. It needs to be directly
supportive of this nation's evolving economic and organizational fabric as firms
change to stay competitive in a global, interdependent environment. The practice and
theory of "law" is not adequate today to facilitate the relationships needed in trying to
make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key aspects of the firm's
strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public decision-makers,
coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough
to make one a good general corporate counsel nor to give him a full sense of how
the legal system shapes corporate activities. And even if the corporate lawyer's aim
is not the understand all of the law's effects on corporate activities, he must, at the
very least, also gain a working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution' or makeup of the modem
corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What transpires
next is a dilemma of professional security: Will the lawyer admit ignorance and risk
opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does
not possess the required qualification of having been engaged in the practice of law for at least ten
years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as

Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's

nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition
praying that said confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of
1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the
Philippines since its inception in 1972-73. He has also been paying his professional license fees as
lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in
the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as
an operations officer for about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating loans and coordinating legal, economic,
and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco
Group, served as chief executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies as a legal and
economic consultant or chief executive officer. As former Secretary-General (1986) and National
Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He
appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal
knowledge as a member of the Davide Commission, a quast judicial body, which conducted
numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to
reconcile government functions with individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the
law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5)
events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program.
For aside from performing the tasks of legislative drafting and legal advising, they
score national development policies as key factors in maintaining their countries'
sovereignty. (Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the
Session on Law for the Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)
 Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work
with an international business specialist or an economist in the formulation of a
model loan agreement. Debt restructuring contract agreements contain such a
mixture of technical language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987,
p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of

terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in the ultimate analysis
is sine qua non for foreign loan agreements-an adherence to the rule of law in
domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but
where they are, men learn that bustle and bush are not the equal of quiet genius and
serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third
and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern
concept of law practice, and taking into consideration the liberal construction intended by the framers
of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager,
a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both
the rich and the poor — verily more than satisfy the constitutional requirement — that he has been
engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the

officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified
who should have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other
legal requirements are satisfied, the Commission has no alternative but to attest to
the appointment in accordance with the Civil Service Law. The Commission has no
authority to revoke an appointment on the ground that another person is more
qualified for a particular position. It also has no authority to direct the appointment of
a substitute of its choice. To do so would be an encroachment on the discretion
vested upon the appointing authority. An appointment is essentially within the
 discretionary power of whomsoever it is vested, subject to the only condition that the
appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in
the Philippines, upon submission by the Commission on Appointments of its certificate of
confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking,
posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as
Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of
the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of
the practice of law is the traditional or stereotyped notion of law practice, as
distinguished from the modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's definition would require generally a habitual
law practice, perhaps practised two or three times a week and would outlaw say, law
practice once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I
made use of a definition of law practice which really means nothing because the definition says that
law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of law practice by
"traditional areas of law practice is essentially tautologous" or defining a phrase by means of the
phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is
different from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt.
For one thing, how can an action or petition be brought against the President? And even assuming
that he is indeed disqualified, how can the action be entertained since he is the incumbent
President?

We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required by
law. The judgment rendered by the Commission in the exercise of such an acknowledged power is
beyond judicial interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such
grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the exercise of the Court's corrective power, since no
abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction
and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the
Supreme Court reverse the Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah
(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning
white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon
hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied:
"Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying
on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does
not appear to me that there has been an adequate showing that the challenged determination by the
Commission on Appointments-that the appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second paragraph of Section 1,
Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted
not only to require the respondents to comment on the Petition, but I was the sole vote for the
issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office.
My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he
had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately,
the core issue to be resolved in this petition is the proper construal of the constitutional provision
requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these
are that he must have been "engaged in the practice of law for at least ten (10) years." It is the
bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for
that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of
law.

As aptly held by this Court in the case of People vs. Villanueva: 2

Practice is more than an isolated appearance for it consists in frequent or customary

actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for
such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it

prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding

one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing
State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S. v.
Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).

Practice is more than an isolated appearance for it consists in frequent or customary

action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be
in the active and continued practice of the legal profession and that his professional
services are available to the public for compensation, as a service of his livelihood or
in consideration of his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176
N.B. 901) and, one who renders an opinion as to the proper interpretation of a
 statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-
359)

3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the

existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity
which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the
practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years
at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not
do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify
his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4

Essentially, the word private practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a source of
his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at
least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that body.
Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he
has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been
too sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as
his activities involve the application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they deal with or give advice
on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any activity that is not affected
by some law or government regulation the businessman must know about and observe. In fact,
again going by the definition, a lawyer does not even have to be part of a business concern to be
considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or
consults a doctor as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be
deemed engaged in the practice of law because he must obey the Public Service Act and the rules
and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any
acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely
nothing. The decision goes on to say that "because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to be
workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged
in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough
that his activities are incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from teaching ballroom
dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded that
he has been engaged in business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige as a businessman
and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued
that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in
the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and
priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman of
the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for
public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not
the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing
his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of discretion; one of official
leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the
deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the qualifications of
persons appointed to high office. Even if the Commission errs, we have no power to set aside error.
We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in
management, educational background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned by the petitioner. What is
before us is compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he
has not engaged in an activity where membership in the bar is a requirement I fail to see how he can
claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in fact-
finding committee, working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in the distant past, they
happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an
activity for ten years requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for M.A. and Ph. D.
degrees in Economics at the University of Pennsylvania during that period. How could he practice
law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations,

Latin American Department; Division Chief, South Asia and Middle East,
International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco

Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and

affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt

— Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

 d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the law enough attention or a certain degree of commitment and participation as would support
in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country who
has reached the age of discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And
yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation
but also services rendered out of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or knowledge, such as
preparing a will, contract or other instrument, the legal effect of which, under the facts
and conditions involved, must be carefully determined. People ex rel. Chicago Bar
Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what

constitutes the practice of law. "Practicing law" has been defined as "Practicing as an
attorney or counselor at law according to the laws and customs of our courts, is the
giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that definition, we referred to it
as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)

For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily,
to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was

asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When
asked if it would be more than half a dozen times his answer was I suppose. Asked if
he did not recall making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee to the parties therefor
in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real estate is
concerned."

xxx xxx xxx

Respondent takes the position that because he is a real-estate broker he has a

lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the like.
There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxx xxx xxx

 ... An attorney, in the most general sense, is a person designated or employed by
another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings. Strictly,
these professional persons are attorneys at law, and non-professional agents are
properly styled "attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without being an
attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says
Webster, is an officer of a court of law, legally qualified to prosecute and defend
actions in such court on the retainer of clients. "The principal duties of an attorney
are (1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the state of
his business; (4) to keep his secrets confided to him as such. ... His rights are to be
justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive
verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming,
... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...."
(State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts.
Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required

component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's
self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v.
Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8
Phil. 146), or when one takes the oath of office as a lawyer before a notary public,
and files a manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary

action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)."
(Rollo, p. 115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do
not fall under the denomination of practice of law. Admission to the practice of law was not required
for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989
Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a
member may be likened to isolated transactions of foreign corporations in the Philippines which do
not categorize the foreign corporations as doing business in the Philippines. As in the practice of
law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for such
high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law for at least ten (10)
years for the position of COMELEC Chairman has ordered that he may not be confirmed for that
office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does
not appear to me that there has been an adequate showing that the challenged determination by the
Commission on Appointments-that the appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second paragraph of Section 1,
Article VIII of the Constitution. I therefore vote to DENY the petition.

Melencio-Herrera, J., concur.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted
not only to require the respondents to comment on the Petition, but I was the sole vote for the
issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office.
My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he
had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately,
the core issue to be resolved in this petition is the proper construal of the constitutional provision
requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these
are that he must have been "engaged in the practice of law for at least ten (10) years." It is the
bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for
that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of
law.

As aptly held by this Court in the case of People vs. Villanueva: 2

Practice is more than an isolated appearance for it consists in frequent or customary

actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for
such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it

prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding

one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing
State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S. v.
Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
 Practice is more than an isolated appearance for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be
in the active and continued practice of the legal profession and that his professional
services are available to the public for compensation, as a service of his livelihood or
in consideration of his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176
N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-
359)

3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the

existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity
which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the
practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years
at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not
do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify
his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
 Essentially, the word private practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a source of
his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at
least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that body.
Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he
has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been
too sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as
his activities involve the application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they deal with or give advice
on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any activity that is not affected
by some law or government regulation the businessman must know about and observe. In fact,
again going by the definition, a lawyer does not even have to be part of a business concern to be
considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or
consults a doctor as these acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be
deemed engaged in the practice of law because he must obey the Public Service Act and the rules
and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any
acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely
nothing. The decision goes on to say that "because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to be
workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged
in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough
that his activities are incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from teaching ballroom
dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded that
he has been engaged in business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied
the various positions listed in his resume by virtue of his experience and prestige as a businessman
and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued
that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in
the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and
priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman of
the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for
public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not
the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing
his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of discretion; one of official
leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the
deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the qualifications of
persons appointed to high office. Even if the Commission errs, we have no power to set aside error.
We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in
management, educational background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned by the petitioner. What is
before us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he
has not engaged in an activity where membership in the bar is a requirement I fail to see how he can
claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in fact-
finding committee, working in media, or operating a farm with no active involvement in the law,
whether in Government or private practice, except that in one joyful moment in the distant past, they
happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an
activity for ten years requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for M.A. and Ph. D.
degrees in Economics at the University of Pennsylvania during that period. How could he practice
law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations,

Latin American Department; Division Chief, South Asia and Middle East,
International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco

Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and

affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

 7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt

— Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the law enough attention or a certain degree of commitment and participation as would support
in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country who
has reached the age of discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And
yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation
but also services rendered out of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or knowledge, such as
preparing a will, contract or other instrument, the legal effect of which, under the facts
and conditions involved, must be carefully determined. People ex rel. Chicago Bar
Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what

constitutes the practice of law. "Practicing law" has been defined as "Practicing as an
attorney or counselor at law according to the laws and customs of our courts, is the
giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that definition, we referred to it
as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)

For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily,
to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was

asked whether or not he ever prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When
asked if it would be more than half a dozen times his answer was I suppose. Asked if
he did not recall making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee to the parties therefor
in instances where he was not the broker in the deal, he answered: "Well, I don't
 believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real estate is
concerned."

xxx xxx xxx

Respondent takes the position that because he is a real-estate broker he has a

lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the like.
There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by

another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings. Strictly,
these professional persons are attorneys at law, and non-professional agents are
properly styled "attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without being an
attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says
Webster, is an officer of a court of law, legally qualified to prosecute and defend
actions in such court on the retainer of clients. "The principal duties of an attorney
are (1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the state of
his business; (4) to keep his secrets confided to him as such. ... His rights are to be
justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive
verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming,
... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...."
(State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts.
Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required

component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's
self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v.
Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8
 Phil. 146), or when one takes the oath of office as a lawyer before a notary public,
and files a manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary

action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)."
(Rollo, p. 115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do
not fall under the denomination of practice of law. Admission to the practice of law was not required
for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989
Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a
member may be likened to isolated transactions of foreign corporations in the Philippines which do
not categorize the foreign corporations as doing business in the Philippines. As in the practice of
law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for such
high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law for at least ten (10)
years for the position of COMELEC Chairman has ordered that he may not be confirmed for that
office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

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: 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,
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 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:

". . . 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."
The reason alleged by the respondent in his defense for refusing the permit is, "that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that passions,
specially on the part of the losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no 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 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." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is 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 . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. 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 a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable
objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.

Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions

PARAS, J., concurring:

The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4,
amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has
discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil.,
255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said:

"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
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."

The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the
House of Representatives; he was the chief campaigner of the said party in the last elections. As the
petition comes from a responsible party, in contrast to Evangelista's Communist Party which was
considered subversive, I believe that the fear which caused the Mayor to deny it was not well
founded and his action was accordingly far from being a sound exercise of his discretion.

BRIONES, M., conforme:

En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias,
director general de campaña de las minorias coaligadas en las ultimas elecciones y "Floor Leader"
de dichas minorias en la Camara de Representantes, solicito del Alcalde de Manila en comunicacion
de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin publico en la Plaza Miranda el
Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00 a.m., a fin de pedir al gobierno
el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para usar la
plataforma ya levantada en dicha Plaza.

El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para
la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de que no se
pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera responsable del
mantenimiento de la paz y orden durante la celebracion del mitin."

Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el permiso
concedido, expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep.
Primicias.

"Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que despues de haber
leido los periodicos metropolitanos da esta mañana en que aparece que vuestro mitin va a
ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes
electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la
presente se revoca dicho permiso.
 "Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran daño en dicho 'rally'
considerando que las pasiones todavia no se han calmado y la tension sigue alta como
resultado de la ultima contienda politica.

"Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las

universidades locales participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar
disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la
oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes
matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una
vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines
del mitin tal como han sido anunciados en los periodicos mencionados.

"Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para
este proceder toda vez que los resultados todavia no han sido oficialmente anunciados.

"Por tanto — termina el Alcalde su orden revocatoria — la accion de esta oficina se toma en
interes del orden publico y para prevenir la perturbacion de la paz en Manila."

De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida
inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador General para
que investigue la fase criminal del caso y formule la accion que justifiquen las circunstancias.

Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los
abogados de ambas partes ante esta Corte en sus informes orales.1

El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la

Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la libertad
de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y dirigir petiticiones
al gobierno para remedio de sus agravios." Con respecto al posible aspecto criminal del caso se
invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena de prision
correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin
fundamento legal, prohibiere o interrumpiere una reunion pacifica, o disolviere la misma."

La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como
guardian legal de las plazas, calles y demas lugares publicos. Se alega que como Alcalde de la
Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la Plaza Miranda, que
es una plaza publica, para la celebracion de un mitin o reunion, de conformidad con las exigencias
del interes general tal como el las interpreta. Especificamente se citan dos disposiciones, a saber: el
articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de
la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo
aludido del Codigo Administrativo Revisado se lee como sigue:

xxx xxx xxx

"(m) To grant and refuse municipal license or permits of all classes and to revoke the same
for violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinance are being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted is carried on, or for
any other good reason of general interest." La ordenanza municipal indicada reza lo
siguiente:

La ordenanza municipal indicada reza lo siguiente:

 "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 the
ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises
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 occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: 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."

Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el
Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la peticion del
recurrente ni en ningun documenmento o manifestacion verbal atribuida al mismo, sino solamente
en las columnas informativas de la prensa metropolitana. El recurrente admite, sin embargo, que el
objeto del mitin era comunicar al pueblo la infinidad de telegramas y comunicaciones que como jefe
de campaña de las oposiciones habia recibido de varias partes del archipielago denunciando
tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc.,
ocurridos en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales
anomalias y abusos; y pedir su pronta, eficaz y honrada intervencion para evitar lo que todavia se
podia evitar, y con relacion a los hechos consumados urgir la pronta persecucion y castigo
inmediato de los culpables y malhechores. De esto resulta evidente que el objeto del mitin era
completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el recurrente y
los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para
derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En
realidad, teniendo en cuenta las serias responsabilidades del recurrente como jefe de campaña
electoral de las minorias aliadas y como "Floor Leader" en el Congreso de dichas minorias, parecia
que esta consideracion debia pesar decisivamente en favor de la presuncion de que el mitin seria
una asamblea pacifica, de ciudadanos conscientes, responsables y amantes de la ley y del orden.2

Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas
Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino solo la procesion o
parada por las calles. Esto demuestra, se sostiene, que cuando se trata de un mitin en una plaza o
lugar publico, la concesion del permiso es ineludible y el Alcalde no tiene ninguna facultad
discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo. Creo no debe
haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de
conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin
en una plaza publica en un dia y una hora determinados cuando ya previamente se ha concedido de
buena fe el uso del mismo lugar a otro a la misma hora. La prevencion de esta clase de conflictos
es precisamente uno de los ingredientes que entran en la motivacion de la facultad reguladora del
Estado o del municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo,
es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el movimiento
general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y
conveniencia publica son por lo regular la base, el leit-motif de toda ley u ordenanza encaminada a
reglamentar el uso de parques, plazas y calles. Desde luego que la regla no excluye la
consideracion a veces de la paz y del buen orden, pero mas adelante veremos que este ultimo, para
que sea atendible, requiere que exista una situacion de peligro verdadero, positivo, real, claro,
inminente y substancial. La simple conjetura, la mera aprension, el temor mas o menos exagerado
de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es
motivo bastante para denegar el permiso, pues el derecho constitucional de reunirse pacificamente,
ya para que los ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento
sobre ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos
agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los parques,
plazas y calles.

La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla. ¿Tenia
razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos
de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre todo, bajo el precepto
categorico, terminante, expresado en el inciso 8, seccion 1, del Articulo III de la Constitucion? ¿No
constituye la denegacion del permiso una seria conculcacion de ciertos privilegios fundamentales
garantizados por la Constitucion al ciudadano y al pueblo?

Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "all-
pervading power of the state to regulate," temiendo que el mitin solicitado iba a poner en peligro la
paz y el orden publico en Manila. No se fundo la denegacion en razones de "comfort" o
conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un conflicto con otro mitin ya
previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o aprension —
la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto
reñida y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y
provocar serios desordenes. La cuestion en orden es la siguiente: ¿se puede anular o siquiera
poner en suspenso el derecho fundamentalisimo de reunion o asamblea pacifica, garantizado por la
Constitucion, por razon de esta clase de conjetura, temor o aprension? Es obvio que la contestacion
tiene que ser decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria
practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias
constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales privilegios y
garantias hubiera de depender de las suspicacias, temores, aprensiones, o hasta humor del
gobernante, uno podria facilmente imaginar los resultados desastrosos de semejante proposicion;
un partido mayoritario dirigido por caudillos y liders sin escrupulos y sin conciencia podria facilmente
anular todas las libertades, atropellar todos los derechos incluso los mas sagrados, ahogar todo
movimiento legitimo de protesta o peticion, estrangular, en una palabra, a las minorias, las cuales —
como sabe todo estudiante de ciencia politica — en el juego y equilibrio de fuerzas que integran el
sistema democratico son tan indispensables como las mayorias. ¿Que es lo que todavia podria
detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada
desagradable de sus adversarios si se le dejara abiertas las puertas para que, invocando probables
peligros o amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o
poner en suspenso los privilegios y garantias constitucionales? ¿No seria esto retornar a los dias de
aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico de uno de los
Estados del Sur de America que asombro al resto de su pais con este nefasto pronunciamiento: "I
am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el llamado
poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho,
privilegio o garantia constitucional. Sin embargo, tal seria el resultado si en nombre de un concepto
tan vago y tan elastico como es el "interes general" se permitiera in terdecir la libertad de la palabra,
de la cual los derechos de reunion y de peticion son nada mas que complemento logico y necesario.
Una mujer famosa de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y
colocar su hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion:
"¡Libertad, cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso
legitimando la accion del recurrido y consiguientemente autorizando la supresion de los mitines so
pretexto de que la paz y el orden publico corren peligro con ellos, un desengañado de la democracia
en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica
exclamacion de la siguiente manera: "¡Interes general, paz, orden publico, cuantos atentados se
cometen en vuestro nombre contra la libertad!"
El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas,
particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y
calles para el intercambio de impresiones y puntos de vista sobre cuestiones nacionales si bien es
absoluto es tambien relativo en el sentido de que se puede regular, pero jamas se puede denegar o
coartar so pretexto o a guisa de regulacion (Hague vs. Committee for Industrial Organization, 307 U.
S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a ser clasico en la
jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable
asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa
abreviatura CIO, planteo una queja ante los tribunales de New Jersey contra las autoridades de
Jersey City, (a) atacando, por fundamentos constitucionales, la validez de una ordenanza municipal
que regulaba y restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y
medios en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades.

Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y
asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la
"National Labor Relations Act." Las autoridades de la ciudad, comenzando por el Alcalde Hague el
famoso cabecilla de la muy notoria maquina politica de New Jersey, rehusaron consistentemente
conceder licencia para dichos mitines bajo la especiosa alegacion de que los miembros de la
organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave
perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la
licencia se fundaba en una ordenanza municipal que trataba de reglamentar el derecho
constitucional de reunion y asamblea pacifica.

Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los

metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole
celebrar los mitines solicitados. Elevado el asunto en casacion e la Corte Suprema Federal, esta
confirmo la sentencia con solo una ligera modificacion. Entre otros pronunciamientos se dijo que: (a)
donde quiera este alojado el titulo sobre las calles, parques y plazas, desde tiempo inmemorial los
mismos siempre se han considerado como un fideicomiso para uso del publico, y desde tiempos
remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio
de impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los
asuntos publicos; (b) que el uso de las calles y plazas publicas para tales fines ha sido siempre,
desde la antiguedad, una parte importante y esencial de los privilegios, inmunidades, derechos y
libertades de los ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las
calles, plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones
nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe
ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el
buen orden; pero no puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el
tribunal inferior estuvo acertado al declarar invalida la ordenanza en su faz, pues no hace del
"comfort" o conveniencia en el uso de calles y plazas la norma y patron de la accion official; por el
contrario, faculta al Director de Seguridad a rehusar el permiso en virtud de su simple opinion de
que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y desordenadas; (e)
que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como
instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos
nacionales, pues la prohibicion de hablar producira indudablemente tal efecto: (f) y, por ultimo, que
no puede echarse mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de
mantener el orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo
literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede
hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el
orden en relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina:

"5. Regulation of parks and streets. — "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 the 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 . . . 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." (Hague vs. Committee for
Industrial Organization, 307 U. S. 496, 515-516.)

Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra
Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde recurrido. Pero
la similitud es solo en el hecho de que el entonces Alcalde D. Tomas Earnshaw tambien revoco el
permiso previamente concedido al partido comunista que representaba Crisanto Evangelista para
celebrar mitines en Manila, pero las circunstancias en ambos casos son enteramente diferentes. El
Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se habian
encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido
comunista se preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano
en Filipinas — gobierno que ellos calificaban de imperialista y capitalistico — sino que de hecho en
mitines celebrados con anterioridad los comunistas habian pronunciado discursos clara y
positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para liberar,
segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La accion, por tanto,
del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en
la existencia de un peligro inminente, claro, real, sustantivo — ingrediente unico y excepcionalisimo
que permite una salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales
de que se trata.

¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho
la mas pequeña insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la
celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por metodos y
procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio francamente la
legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que esas minorias
coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para
todos los cargos — nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en
21 provincias de las 50 que componen el mapa electoral, y en 5 ciudades con carta especial de las
8 que existen, incluyendose entre dichas 5 la de Manila, capital del archipielago.

Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el
caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como
el instrumento normal y democratico para cambiar los gobiernos y las administraciones, lo
demuestra, ademas del hecho ya apuntado de que lucho en las ultimas elecciones prevaliendose de
las armas proveidas por la legalidad y sacando partido de los medios de que disponia frente a la
natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues
de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se
habia escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante
engaños, abusos y anomalias de diferentes clases, no busco la violencia ni recurrio a la accion
directa para hallar remedio a sus agravios o vengarlos, sino que trato de cobijarse bajo la
Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus
quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente,
con todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia
representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos — el recurrente
en este caso, cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de
las minorias en el Congreso y jefe de campaña de las mismas en las pasadas elecciones. ¿Que
mejor prueba de legalidad y de propositos pacificos y ordenados?

Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el
camino angosto de la represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado,
la amplia avenida de la libertad, una politica que consista en abrir espitas y valvulas por donde
pueda extravasarse no ya la protesta sino inclusive la indignacion del pueblo, previniendo de esta
manera que los vapores mal reprimidos hagan estallar la caldera, o que la desesperacion lo arrastre
a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil. Creo que
entre ambas politicas la eleccion no es dudosa.

Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia
concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en diferentes
sitios de Manila; que en dichos mitines se habian pronunciado discursos altamente inflamatorios y
calumniosos llamandose ladrones y chanchulleros a varios funcionarios del gobierno nacional y de
la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del Senado y el mismo
recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la
acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del
bienestar e interes generales; que, dado este antecedente, habia motivo razonable para creer que
semejantes discursos se pronunciarian de nuevo, minandose de tal manera la fe y la confianza del
pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias perturbaciones,
teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo de parte de los grupos
perdidosos y derrotados.

Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un
regimen de previa censura, el cual no solo es extraño sino que es enteramente repulsivo e
incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion, es de
represion y castigo sobre la base de los hechos consumados. En otras palabras, es un sistema que
permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta al que abusase de
ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia, la
difamacion oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto
de Hague vs. Committee for Industrial Organization, la supresion incontrolada del privilegio
constitucional no puede utilizarse como sustituto de la operacion de dichas leyes.

Se temia — dice el recurrido en su contestacion — que la probable virulencia de los discursos y la

fuerte tension de los animos pudiesen alterar seriamente la paz y el orden publico. Pero — cabe
preguntar — ¿de cuando aca la libertad, la democracia no ha sido un peligro, y un peligro perpetuo?
En realidad, de todas las formas de gobierno la democracia no solo es la mas dificil y compleja, sino
que es la mas peligrosa. Rizal tiene en uno de sus libros inmortales una hermosa imagen que es
perfectamente aplicable a la democracia. Puede decirse que esta es como la mar: serena, inmovil,
sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero cuando
sopla el huracan — lease, Vientos de la Libertad — sus aguas se alborotan, sus olas se encrespan,
y entonces resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se
desencadenan liberrimamente.
¿Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y
enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con
todos sus inconvenientes, con todos sus peligros. Los que temen la libertad no merecen vivirla. La
democracia no es para pusilanimes. Menos cuando de la pusilanimidad se hace pretexto para
imponer un regimen de fuerza fundado en el miedo. Porque entonces el absolutismo se disfraza
bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe como terminaron.

El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y
previno el temor a ellos con las luminosas observaciones que se transcriben a continuacion,
expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440 (1907), a saber:

"Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para
protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos
siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el
resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los
directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal
agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una
multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y
tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion
de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas
propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas
severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los
representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden
debe averiguarse quienes son los culpables y castigarseles por este motivo, pero debe
procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la
sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso."

En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los
discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la oposicion
antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa. Como se dice
mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra decision en el
presente asunto tampoco ocurrio nada. ¿Que demuestra esto? Que los temores eran exagerados,
por no llamarlos fantasticos; que el pueblo de Manila, con su cordura, tolerancia y amplitud de
criterio, probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes.

La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las

garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes — el de
reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el corazon y alma
de nuestro pueblo para ser tratados negligentemente, con un simple encogimiento de hombros.
Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas contra la opresion
y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores
del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio,
generando luego el famoso Grito de Balintawak. Fueron esas libertades las que despues informaron
los documentos politicos de Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de
medio siglo de colaboracion filipino — americana, fueron esas mismas libertades la esencia de
nuestras instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui
establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los atinados y
elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra
Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a
continuacion:
"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la
palabra, tal y como la han defendido siempre todos los paises democraticos, era
desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa
de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Años' (paginas 62 y
siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo:

"El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la
prensa libre en Filipinas, y por crear diputados filipinos.

"Los patriotas filipinos que estaban en España, por medio de las columnas de La Solidaridad
y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la
'libertad de prensa, de cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La
Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos,
garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y
de peticion.

"Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una
reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe
ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el
derecho a la libertad.

"Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de

los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la
libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto,
no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del
Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de
1900, que sientan el siguiente inviolable principio:

"Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los
derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para
remedio de sus agravios."

"El Bill de Filipinas, o sea la Ley del Congreso de 1.° de Julio de 1902, y la Ley Jones, o sea
la Ley del Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de
las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son
extrañas para los estudiantes de derecho constitucional, porque estan calcadas de la
Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio
antes de otorgar su aprobacion a la Constitucion.

"Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe
olvidarse por un solo instante, de que las mencionadas garantias constituyen parte
integrante de la Ley Organica — La Constitucion — de las Islas Filipinas.

"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera
palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de
aplicacion a los grandes casos constitucionales de Inglaterra y America. (Kepner vs. U. S.
[1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y ¿cuales son estos
principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre
aquellos estan los siguientes:

"Los intereses de la sociedad y la conservacion de un buen gobierno requieren una

discusion plena de los asuntos publicos. Completa libertad de comentar los actos de los
 funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra.
La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que se
dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra
calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario
publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos
oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos.
Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es
menos que el Estado, debe esperarse que sobrelleve la critica en beneficio de la
comunidad. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios,
que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial — que cualesquiera o sobre
todas las dependencias del Gobierno — la opinion publica debe ser el constante manantial
de la libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason
vs. Walter, L. R. 4 Q. B., 73, Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R.
Carden, 5 Q. B. D., 1.)

Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa
que la antigua colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario,
tiene que ser muchisimo mas activa y militante. Obrar de otra manera seria como borrar de una
plumada nuestras mas preciosas conquistas en las jornadas mas brillantes de nuestra historia.
Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del Pilar, Bonifacio, Mabini,
Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe
catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos
sacrificios ha costado a nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de
opera bufa, al amparo de caciquillos y despotillas que pondrian en ridiculo el pais ante el mundo . . .
Es evidente que no hemos llegado a estas alturas, en la trabajosa ascension hacia la cumbre de
nuestros destinos, para permitir que ocurra esa tragedia.

No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la
coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del
pueblo el propio y correspondiente remedio. Pudieran ser reales o pudieran ser imaginarios, en todo
o en parte. Pero de una cosa estamos absolutamente seguros y es que la democracia no puede
sobrevivir a menos que este fundada sobre la base de un sufragio efectivo, sincero, libre, limpio y
ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte de la democracia. Suprimid
eso, y la democracia resulta una farsa.

Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido, sino que
debe ser alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no
hay mejor higiene que la critica libre, la censura desembarazada. Solamente se pueden corregir los
abusos permitiendo que se denuncien publicamente sin trabas sin miedo.5 Esta es la mejor manera
de asegurar el imperio de la ley por encima de la violencia.

HILADO, J., dissenting:

Because the constitutional right of assembly and petition for redress of grievances has been here
invoked on behalf of petitioner, it has been considered doubly necessary to expound at length the
grounds of my dissent. We are all ardent advocates of this right, whenever and wherever properly
exercisable. But, in considering the legal problem here presented serenely and dispassionately, as I
had to, I arrived at a different conclusion from that of the majority.
(a) Right not absolute but subject to regulation. — It should be recognized that this right is not
absolute and is subject to reasonable regulations. (Philippine Constitutional Law by Malcolm and
Laurel, 3d ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30 N.E. 79.)

Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one.
Assemblies are subject to reasonable regulations."

In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on
page 407 of the above cited work on Philippine Constitutional Law by Malcolm and Laurel, the
Supreme Judicial Court of Massachusetts considered and decided a case involving a regulation by
the Board of Park Commissioners forbidding all persons "to make orations, harangues, or loud
outcries" in a certain park, under penalty of $20, except upon prior consent of the board. The
defendant requested permission to deliver an oration in the park, which was refused by the board,
and thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes
in length. In a criminal trial of said defendant for violating the rules promulgated by the Board of Park
Commissioners, said rules were held valid and reasonable, and not inconsistent with article 19 of the
Bill of Rights (of the Massachusetts Constitution), providing that "the people have a right, in an
orderly and peaceable manner, to assemble to consult upon the common good, give instructions to
their representatives, and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that case
the defendant admitted that the people would not have the right to assemble for the purposes
specified in the public streets, and might not have such right in the public gardens or on the
common, because such an assembly would or might be inconsistent with the public use for which
these places are held. And the Supreme Court of Massachusetts said:

". . . . The same reasons apply to any particular park. The parks of Boston are designed for
the use of the public generally; and whether the use of any park or a part of any park can be
temporarily set aside for the use of any portion of the public, is for the park commissioners to
decide, in the exercise of a wise discretion."

In the above-quoted case it appears from the statement of facts preceding the opinion that within the
limits of Franklin Park, there involved, were large areas not devoted to any special purpose and not
having any shrubbery that would be injured by the gathering thereon of a large concourse of people;
that defendant's speech contained nothing inflammatory or seditious, and was delivered in an
ordinary oratorical tone; that at the close of the oration the audience quietly dispersed; and that no
injury of any kind was done to the park. Still, it was held that the regulation under which the Board of
Park Commissioners denied the permission to deliver said oration requested by the defendant was
valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to
the people the "right, in an orderly and peaceable manner, to assemble to consult upon the common
good, give instructions to their representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances
they suffer."

In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse
municipal . . . permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad.
Code, section 2434 [b]-[m]; italics ours); and "to comply with and enforce and give the necessary
orders for the faithful enforcement and execution of the laws and ordinances in effect within the
jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general powers and duties of the
Municipal Board, whose ordinances the said Mayor was at once bound and empowered to comply
with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places."
[Ibid., section 2444 (u); italics ours.]
Another legal doctrine which should not be lost sight of is that, without abridging the right of
assembly and petition, the government may regulate the use of places — public places — wholly
within its control, and that the state or municipality may require a permit for public gatherings in
public parks and that, while people have the right to assemble peaceably on the highways and to
parade on streets, nevertheless the state may regulate the use of the streets by requiring a permit
(16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has conferred
certain powers pertinent to the subject under consideration upon the City Mayor, and upon the
Municipal Board. Among these is the duty and power of said Mayor "to grant and refuse municipal . .
. permits of all classes . . . for any good reason of general interest" (italics ours), and the power and
duty of the Municipal Board "to regulate the use . . . of street, . . . parks, . . . and other public places .
. ." (italics ours), already above discussed.

Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more
frequent public use, is a public place devoted to traffic between several streets which empty into it
within the district of Quiapo. It is a fact of common knowledge and within the judicial notice of this
Court that said plaza is one of the public places constantly used by an usually great number of
people during all hours of the day and up to late hours of the night, both for vehicular and for
pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those
hours converges and from which it again proceeds in all directions; and the holding during those
hours of a meeting, assembly or rally of the size and nature of that contemplated by petitioner and
those belonging to the Coalesced Minority Parties when the permit in question was requested from
the City Mayor, must have been expected to greatly inconvenience and interfere with the right of the
public in general to devote said plaza to the public uses for which it has been destined since time
immemorial.

The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition
is not absolute but subject to regulation as regards the time, place, and manner of its exercise. As to
time, it seems evident, for example, that the State, directly or through the local government of the
city or municipality, by way of regulation of the right of free speech, may validly prohibit the delivery
of speeches on public streets near private residences between midnight and dawn. As to place, we
have the example of the instant case involving Plaza Miranda or any other public place. And as to
manner, it is a familiar rule that the freedom of speech does not authorize the speaker to commit
slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid
regulations of the right. Among other cases which may be cited on the same point, we have that of
Hague vs. Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the
majority opinion and from which the following passage is copied from the quotation therefrom in the
said opinion:

". . . 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." (Italics ours.)

I construe this declaration of principles by the United States Supreme Court to imply that where the
regulatory action is predicated upon the "general comfort and convenience," and is "in consonance
with peace and good order," as in the instant case, such action is regulation and not "guise of
regulation," and therefore does not abridge or deny the right.

(b) No constitutional right to use public places under government control, for exercise of right
of assembly and petition, etc. —
Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the
constitutional right of assembly and petition, or free speech, claimed by petitioner, but rather of the
use of a public place under the exclusive control of the city government for the exercise of that right.
This, I submit, is a distinction which must be clearly maintained throughout this discussion. No
political party or section of our people has any constitutional right to freely and without government
control make use of such a public place as Plaza Miranda, particularly if such use is a deviation from
those for which said public places have been by their nature and purpose immemorially dedicated. In
other words, the City Mayor did not attempt to have anything to do with the holding of the
"indignation rally" or the delivery of speeches thereat on the date desired at any place over which
said mayor had no control — his action was exclusively confined to the regulation of the use of Plaza
Miranda for such a purpose and at such a time. Chief Justice Hughes, speaking for a unanimous
court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

If a municipality has authority to control the uses of its public streets for parades or
processions, as it undoubtedly has, it can not be denied authority to give consideration,
without unfair discrimination, to time, place, and manner in relation to the other proper uses
of the streets. We find it impossible to say that the limited authority conferred by the licensing
provisions of the statute in question as thus construed by the state court contravened any
constituional right. (emphasis ours).

That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal
court in the State of New Hampshire for violation of a state statute prohibiting a "parade or
procession" upon a public street without a special license. The appellants invoked the constitutional
right of free speech and press, as well as that of the assembly. The judgment of the municipal court
was affirmed by the Supreme Court of New Hampshire and that of the latter was affirmed by the
United States Supreme Court. Among other things, the United States Supreme Court said that the
appellants were not prosecuted for distributing leaflets, or for conveying information by placards or
otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, of for
maintaining or expressing religious beliefs. Their right to do any of these things apart from engaging
in a "parade or procession," upon a public street was not involved in the case. The question of the
validity of a statute addressed to any other sort of conduct than that complained of was declared not
to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant case the
constitutional rights of free speech, assmebly, and petition are not before the court but merely the
privilege of petitioner and the Coalesced Minorities to exercise any or all of said rights by using
Plaza Miranda, a public place under the complete control of the city government. In the same case
of Cox vs. New Hampshire, supra, Chief Justice Hughes, in his opinion, used the following eloquent
language:.

"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
unrestrained 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 can not be disregarded by the attempted exercise of some civil right which in
other circumstances would be entitled to protectio. One would not be justified in ignoring the
familiar red lightbecause 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 opinion...." (85
Law. ed., 1052-1053.).
In other words, when the use of public streets or places is involved, public convenience, public
safety and public order take precedence over even particular civil rights. For if the citizen asserting
the civil right were to override the right of the general public to the use of such streets or places, just
because it is guaranteed by the constitution, it would be hard to conceive how upon the same
principle that citizen be prevented from using the private property of his neighbor for the exercise of
the asserted right. The constitution, in guaranteeing the right of peaceful assembly and petition, the
right of free speech, etc., does not guarantee their exercise upon public places, any more than upon
private premises, without government regulation in both cases, of the owners' consent in the
second..

In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in
affirming the decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver
Wendell Holmes, then of the latter tribunal, quoted from said decision as follows:.

"...As representatives of the public it (legislature) may and does excercise control over the
use which the public may make of such places (public parks and streets), and it may and
does delegate more or less of such control to the city or town immediately concerned. For
the legislature absolutely or conditionally to forbid public speaking in a highway or public park
is no more an infringement of the rights of the member of the public than for the owner of a
private house to forbid it in his house. When no proprietary right interferes the legislature
may end the right of the public to enter upon the public place by putting an end to the
dedication to public uses. So it may take the lesser step of limiting the public use to certain
purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs.
Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....".

(c) Authorities cited.--.

I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are,
I think, inapplicable to the oune under consideration, and those which may have some application, I
believe reinforce this dissent. None of them was for mandamus to compel the granting of a permit for
holding a meeting, assembly or the like, upon a public place within the control of the general or local
government..

The fact that a law or municipal ordinance under which a person had been prosecuted for delivering
a speech without the required permit, for example, was declared unconstitutional or otherwise void
for delegating an unfettered or arbitrary discretion upon the lisencing authority, thus completely
failing to confer the discretion, does not mean that such person has the right by mandamus to force
said authority to grant him the permit. If, in such case, the law or ordinance, conferring the discretion,
is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit would involve self-
contradictory proposition, for the very idea of a permit is something which may be granted or witheld.
He who has the power to grant permission for the doing of an act necessarily has the correlative
power to deny the permission. A "permit" which under no conditions or circumstances and at no time
can be refused needs a different name..

Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of
New Hampshire which was construed by the Supreme Court of the same State as not conferring
upon the licensing board unfettered discretion to refuse the license, and was held valid both by said
Supreme Court and the Supreme Court of the United States..

In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the
Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to grant or to refuse
the permit is controlled and limited by the all important requirement of the same section that
whatever his determination, it should be "for any good reason of general interest.".

In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the
power of City councils under the state law to regulate the use of the public streets could not be
delegated by them, and therefore could not be delegated to the superintendent of police. But in our
case, the power of the City Mayor under the Revised Administrative Code has not been delegated
by the Municipal Board of Manila but has been directly conferred by the State through its legislature.
.

In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance
committing to the unrestrained will of public officer the power to determine the rights of parties under
the ordinance without anything (to guide or control his action.) In our case, as already stated, the city
mayor received his power from the State through the Legislature which enacted the Revised
Administrative Code, and moreover, his action therein provided to be guided and controlled by the
already mentioned requirement that whether he grants or refuses a municipal premit of any class it
shall be for some "good reason of general interest," and not as his unfettered will may dictate..

The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void
by the Supreme Court of Michigan, the ordinance prohibiting certain uses of the public streets of the
City of Grand Rapids "without having first obtained the consent of the Mayor or Common Council of
said City." The ordinance did not prescribe any guide, control or limitation for, of, and to, the exercise
of the power thus conferred upon the mayor or common council. The following passage from the
quotation from the decision of the Supreme Court of Michigan made in the majority opinion would
seem to reinforce the stand taken in this dissent..

"...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 a constitution than under the
common law..

"It is quite possible that some things have a greater tendency to produce danger and
disorder in the 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 altogether can be granted at all...." (emphasis ours.)

The instant case is concerned with an "indignation rally" to be held at one of the busiest and most
frequented public places in this big cosmopolitan city, with a present population estimated to be 150
per cent larger than its prewar population, and the public officer who was being called upon to act on
the petition for permit was the chief executive of the city who was by reason of his office the officer
most directly responsible for the keeping and maintenance of peace and public order for the
common good. And as stated elsewhere in this dissent, his power in the premises was not without
control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of
the right claimed but was merely a postponement of the use of a public place for the excercise of
that right when popular passions should have calmed down and public excitement cooled off
sufficiently to better insure the avoidance of public peace and order being undermined..

Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court there held that
when men in authority are permitted in their discretion to excercise "power so arbitrary , liberty is
subverted, and the spirit of our free institution violated." (Emphasis ours.) This is not our case, as the
power of the Manila Mayor now under consideration is not at all arbitrary. It was further held in that
case that where the granting of the permit is left to the unregulated discretion of a small body of city
alderman, th ordinance can not be other than partial and discriminating in its practical operation. The
case at bar is radically different for, as already shown, the discretion of the City Mayor here is not
unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory
condition precedent to the exercise of the power one way or the other. And just as certainly the
reasons alleged by the respondent Mayor for his action stated in his letters dated November 15 and
17, 1947, addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and well
taken, consideration being had of his grave responsibilities as the immediate keeper of peace and
public order in the city. Elsewhere in this dissent we quote from said documents textually..

On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs.
New Hampshire, supra, which says:.

"As regualtion of the use of the streets for parades or processions is a traditional exercise 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.".

The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of
assembly, such control is legally valid. This is precisely our case, since the respondent Mayor
neither denied not unwarrantedly abridged the right asserted by petitioner and his companions. If the
postponement of the granting of the permit should be taken as a denial of the right, then we would
practically be denying the discretion of the proper official for it would be tantamount to compelling
him to grant the permit outright, which could necessarily mean that he can never refuse the permit,
for one who cannot even postpone the granting of such permit much less can altogether refuse it. .

Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being
clearly distinguishable from the instant case as later demonstrated, contains the passage quoted on
page 7 of this dissent, which decidedly supports it. The distinction between that case and this is that
there "the ordinance deals only with the exercise of the right of assembly for the purpose of
communicating views entertained by speakers, and is not a general measure to promote the public
convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the instant case section
2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act
for it likewise provides permission, and in both cases is expressly aimed at promoting the "general
interest." .

Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of
this dissent as appears from No. 2 of the syllabus therein:.

"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 abridgement 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 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 licenses, but are required to
exercise their discretion free from the improper or inappropriate consideration and from
unfair discrimination." (Emphasis ours.).
In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of
general interest," the Revised Administrative Code plainly has in view only the common good and
excludes all "improper or inappropriate considerations" and "unfair discrimination" in the exercise of
the granted discretion.

Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox vs. State of
New Hampshire supra, the choice is obvious with regard to their authoritative force, when it is
considered that in the former out of the nine Justices of the United States Supreme Court two did not
take part and of the seven who dis only two, Justices Roberts and Black, subscribed the opinion
from which the majority here quote, while in the latter (Cox vs. State of New Hampshire) the decision
was unanimous..

(d) Mandamus unavailable.--- .

Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses
the rule obtaining in the United States that the immunity from judicial control appertaining to the
Office of the Governor of the State, or to the Presidency of the United States, does not attach to the
mayoralty of a city. But on page 878, section 2728, ha has the following to say on the unavailability
of mandamus to compel the granting of licenses and permits by municipal officers:.

"SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license
or permit is discretionary with the officer or municipal board, it is clear that it cannot be
compelled by mandamus. The cases rarely, if ever, depart from this well established rule,
and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the
remedy. As already stated, the fundamental condition is that the petition must show a clear
legal right to the writ and a plain neglect of duty on the part of the public officer to perform the
act sought to be enforced. For example, one who seeks to compel a city to issue to him a
permit for the erection of a buiding must show compliance with all valid requirements of the
building ordinances and regulations..

"The granting of licenses or permits by municipal or other public authorities, as mentioned, is

usually regarded as a discretionary duty, and hence, ordinarily mandamus will not lie to
compel them to grant a license or issue a permit to one claiming to be entitled thereto,
especially where it is not alleged and shown that the exercise of such discretion was
arbitrary. All the court can do is to see that the licensing authorities have proceeded
according to law. Their decision will not be reviewed on its merits. Where, however, refusal
to grant a license or to issue a permit, as said above, is arbitrary or
capricious mandamus will lie to compel the appropriate official action...." .

To my mind, the following reasons, alleged by the respondent mayor, negative all element of
arbitrariness in his official action:.

"...please be advised that upon reading the metropolitan newspapers this morning wherein it
appears that your meeting will be an indignation rally at which all the supposed election
frauds allegedly perpetrated in many parts of the Philippines for the purpose of overriding the
popular will, will be bared before the people, this office hereby revokes the said permit..

"It is believed that public peace and order in Manila will be undermined at the proposed rally
considering the passions have not as yet subsided and tension remains high as an aftermath
of the last political contest..
"According to the same newspapers, delegates from the provinces and students from local
universities will particpate in the said rally which, in my opinion, would only precipitate trouble
since no guarantee can be given that only the opposition elements will be there. The moment
the crowd becomes mixed with people of different political colors which is most likely to
happen, public order is exposed to danger once the people are incited, as they will be
incited, considering the purposes for which the meeting will be held as reported in the
newspapers above mentioned..

"...." (Mayor's letter dated November 15, 1947.).

"I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a
permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947,
for the purpose of denouncing the alleged fraudulent manner in which the last elections have
been conducted and the alleged nationwide flagrant violation of the Election Law, and of
seeking redress therefor. It is regretted that for the same reasons stated in my letter of
November 15, 1947, your request can not be granted for the present. This Office has
adopted the policy of not permitting meetings of this nature which are likely to incite the
people and disrupt the peace until the results of the elections shall have been officially
announced. After this announcement, requests similar to yours will be granted..

"...." (Mayor's letter dated November 17, 1947.).

"That according to Congressman Primicias, the meeting will be an indignation rally for the
purpose of denouncing the alleged fraudulent manner the said elections were conducted and
the nationwide falgrant violations of the Election Law;.

"2. That it is a fact that the returns of the last elections are still being recounted in the City of
Manila in the Commission on Elections, and pending the final announcement of the results
thereof, passions, especially on the part of the losing groups, remain bitter and high;.

"3. That allusions have been made in the metropolitan newspapers that in the case of defeat,
there will be minority resignations in Congress, rebellion and even revolution in the country;.

"4. That I am sure that the crowd that will attend said meeting will be a multitude of people of
different and varied political sentiments;.

"5. ....... .

"6. That judging from the tenor of the request for permit and taking into consideration the
circumstances under which said meeting will be held, it is safe to state that once the people
are gathered thereat are incited, there will surely be trouble between the opposing elements,
commotion will follow, and then peace and order in Manila will be disrupted; and.

"7. That the denial of said request for permit has been made for no other reasons except to
perform my duty as Mayor of Manila to maintain and preserve peace and order in this City..

8. That I have assured Congressman Primicias that immediately after the election returns
shall have been officially announced, the Nacionalista Party or any party will be granted
permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1, Answer.).
For these and other reasons which could be advanced in corroboration, I am of the considered
opinion that the respondent Mayor had under the law the requisite discretion to grant or refuse the
permit requested, and therefore to revoke that which had previously been granted, and that the
reasons for such revocation alleged in his letters dated November 15 and 17, 1947, to petitioner and
in his affidavit Annex 1 were amply sufficient to justify his last action. And be it distinctly observed
that this last action was not an absolute denial of the permit, but a mere postponement of the time
for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of
the Revised Admninistrative Code..

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC

GENOSA, appellant.

DECISION
PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the battered woman syndrome (BWS), which
allegedly constitutes self-defense. Under the proven facts, however, she is not
entitled to complete exoneration because there was no unlawful aggression --
no immediate and unexpected attack on her by her batterer-husband at the
time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This psychological paralysis she
suffered diminished her will power, thereby entitling her to the mitigating factor
under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she suffered
that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in
the aforesaid emotional and mental state, which overcame her reason and
impelled her to vindicate her life and her unborn childs.
 Considering the presence of these two mitigating circumstances arising
from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:

WHEREFORE, after all the foregoing being duly considered, the Court finds the
accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec.
5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and
none of mitigating circumstance, hereby sentences the accused with the penalty of
DEATH.

The Court likewise penalizes the accused to pay the heirs of the deceased the sum of
fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum
of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2]

The Information[3] charged appellant with parricide as follows:

That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality
of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack, assault,
hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard
deadly weapon, which the accused had provided herself for the purpose, [causing] the
following wounds, to wit:

Cadaveric spasm.

Body on the 2nd stage of decomposition.

Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes

protruding from its sockets and tongue slightly protrudes out of the mouth.
 Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels
on the posterior surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.

Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

Abdomen distended w/ gas. Trunk bloated.

which caused his death.[4]

With the assistance of her counsel,[5] appellant pleaded not guilty during
her arraignment on March 3, 1997.[6] In due course, she was tried for and
convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions

version of the facts in this wise:

Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc
City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For
a time, Bens younger brother, Alex, and his wife lived with them too. Sometime in
1995, however, appellant and Ben rented from Steban Matiga a house at Barangay
Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben
and Earl Pierre.

On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving
their salary. They each had two (2) bottles of beer before heading home. Arturo would
pass Bens house before reaching his. When they arrived at the house of Ben, he found
out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his
house, while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did not see appellant arrive but on his way
home passing the side of the Genosas rented house, he heard her say I wont hesitate to
kill you to which Ben replied Why kill me when I am innocent? That was the last time
Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented house
appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters from her house, to look after her pig because
she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to
sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no
money to buy it.

That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the waiting
area where he was. Joseph lived about fifty (50) meters behind the Genosas rented
house. Joseph, appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to him.

On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to
find out the cause of the stench but the house was locked from the inside. Since he did
not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed
steel saw. He was able to get inside through the kitchen door but only after destroying
a window to reach a hook that locked it. Alone, Steban went inside the unlocked
bedroom where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in his briefs
with injuries at the back of his head. Seeing this, Steban went out of the house and
sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada
Genosa, the mother of Ben, identified the dead body as that of [her] son.

Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where
they found the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from where Ben
was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end without a stop
valve with a red stain at one end. The bedroom was not in disarray.

About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be
taken outside at the back of the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of Bens death was
cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a
depressed fracture of the occipital [bone].

Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet might
have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went
to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him
there. They found Ben drunk upon their return at the Genosas house. Ecel went home
despite appellants request for her to sleep in their house.

Then, Ben purportedly nagged appellant for following him, even challenging her to a
fight. She allegedly ignored him and instead attended to their children who were doing
their homework. Apparently disappointed with her reaction, Ben switched off the light
and, with the use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to attack her so she
ran to the bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed clothes upon
his return home, Ben allegedly flew into a rage, dragged appellant outside of the
bedroom towards a drawer holding her by the neck, and told her You might as well be
killed so nobody would nag me. Appellant testified that she was aware that there was
a gun inside the drawer but since Ben did not have the key to it, he got a three-inch
long blade cutter from his wallet. She however, smashed the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape
with the pipe as he was about to pick up the blade and his wallet. She thereafter ran
inside the bedroom.

Appellant, however, insisted that she ended the life of her husband by shooting him.
She supposedly distorted the drawer where the gun was and shot Ben. He did not die
on the spot, though, but in the bedroom.[7] (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to
her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree
of Bachelor of Science in Business Administration, and was working, at the time of
her husbands death, as a Secretary to the Port Managers in Ormoc City. The couple
had three (3) children: John Marben, Earl Pierre and Marie Bianca.

2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree cousins. Both
sets of parents were against their relationship, but Ben was persistent and tried to stop
other suitors from courting her. Their closeness developed as he was her constant
partner at fiestas.

3. After their marriage, they lived first in the home of Bens parents, together with
Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
lived happily. But apparently, soon thereafter, the couple would quarrel often and
their fights would become violent.

4. Bens brother, Alex, testified for the prosecution that he could not remember when
Ben and Marivic married. He said that when Ben and Marivic quarreled, generally
when Ben would come home drunk, Marivic would inflict injuries on him. He said
that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had
shouted for help as his left hand was covered with blood. Marivic left the house but
after a week, she returned apparently having asked for Bens forgiveness. In another
incident in May 22, 1994, early morning, Alex and his father apparently rushed to
Bens aid again and saw blood from Bens forehead and Marivic holding an empty
bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens
forgiveness.

Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and
Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as
the marriage went along, Marivic became already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivics two sons, there were three (3)
misunderstandings. The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic
struck Ben on the forehead using a sharp instrument until the eye was also affected. It
was wounded and also the ear and her husband went to Ben to help; and the third
incident was in 1995 when the couple had already transferred to the house in Bilwang
and she saw that Bens hand was plastered as the bone cracked.

Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.

5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we
collected our salary, we went to the cock-fighting place of ISCO. They stayed there
for three (3) hours, after which they went to Uniloks and drank beer allegedly only
two (2) bottles each. After drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben, after which he
went across the road to wait for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was waiting for the
ushers and runners so that I can place my bet. On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were quarreling loudly. Outside their
house was one Fredo who is used by Ben to feed his fighting cocks. Basobas
testimony on the root of the quarrel, conveniently overheard by him was Marivic
saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am
innocent. Basobas thought they were joking.

He did not hear them quarreling while he was across the road from the Genosa
residence. Basobas admitted that he and Ben were always at the cockpits every
Saturday and Sunday. He claims that he once told Ben before when he was stricken
with a bottle by Marivic Genosa that he should leave her and that Ben would always
take her back after she would leave him so many times.

Basobas could not remember when Marivic had hit Ben, but it was a long time that
they had been quarreling. He said Ben even had a wound on the right forehead. He
had known the couple for only one (1) year.

6. Marivic testified that after the first year of marriage, Ben became cruel to her and
was a habitual drinker. She said he provoked her, he would slap her, sometimes he
would pin her down on the bed, and sometimes beat her.

These incidents happened several times and she would often run home to her parents,
but Ben would follow her and seek her out, promising to change and would ask for
her forgiveness. She said after she would be beaten, she would seek medical help from
Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries
inflicted upon her by Ben into their reports. Marivic said Ben would beat her or
quarrel with her every time he was drunk, at least three times a week.

7. In her defense, witnesses who were not so closely related to Marivic, testified as to
the abuse and violence she received at the hands of Ben.

7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified
that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic
was shouting for help and through the open jalousies, he saw the spouses grappling
with each other. Ben had Marivic in a choke hold. He did not do anything, but had
come voluntarily to testify. (Please note this was the same night as that testified to by
Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos,
testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa
house and saw the spouses grappling with each other then Ben Genosa was holding
with his both hands the neck of the accused, Marivic Genosa. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at 8:00 the
next morning. (Again, please note that this was the same night as that testified to by
Arturo Basobas).

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were
living in Isabel, Leyte. His house was located about fifty (50) meters from theirs.
Marivic is his niece and he knew them to be living together for 13 or 14 years. He said
the couple was always quarreling. Marivic confided in him that Ben would pawn
items and then would use the money to gamble. One time, he went to their house and
they were quarreling. Ben was so angry, but would be pacified if somebody would
come. He testified that while Ben was alive he used to gamble and when he became
drunk, he would go to our house and he will say, Teody because that was what he
used to call me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia
further testified that Ben would box his wife and I would see bruises and one time she
ran to me, I noticed a wound (the witness pointed to his right breast) as according to
her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.

7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that
in the afternoon of November 15, 1995, Marivic went to her house and asked her help
to look for Ben. They searched in the market place, several taverns and some other
places, but could not find him. She accompanied Marivic home. Marivic wanted her
to sleep with her in the Genosa house because she might be battered by her husband.
When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was drunk
because of his staggering walking and I can also detect his face. Marivic entered the
house and she heard them quarrel noisily. (Again, please note that this is the same
night as that testified to by Arturo Basobas) Miss Arano testified that this was not the
first time Marivic had asked her to sleep in the house as Marivic would be afraid
every time her husband would come home drunk. At one time when she did sleep
over, she was awakened at 10:00 in the evening when Ben arrived because the couple
were very noisy in the sala and I had heard something was broken like a vase. She
said Marivic ran into her room and they locked the door. When Ben couldnt get in he
got a chair and a knife and showed us the knife through the window grill and he
scared us. She said that Marivic shouted for help, but no one came. On cross-
examination, she said that when she left Marivics house on November 15, 1995, the
couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until
November 9, 1995, there were six (6) episodes of physical injuries inflicted upon
Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.

xxxxxxxxx

Dr. Caings clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD
Chart of Marivic at the Philphos Clinic which reflected all the consultations made by
Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit
3.

On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological make-up of the patient,
whether she is capable of committing a crime or not.

7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past
8:00 in the evening. She sought his help to settle or confront the Genosa couple who
were experiencing family troubles. He told Marivic to return in the morning, but he
did not hear from her again and assumed that they might have settled with each other
or they might have forgiven with each other.

xxxxxxxxx

Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In
fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering
from eclampsia and hypertension, and the baby was born prematurely on December 1,
1995.

Marivic testified that during her marriage she had tried to leave her husband at least
five (5) times, but that Ben would always follow her and they would reconcile.
Marivic said that the reason why Ben was violent and abusive towards her that night
was because he was crazy about his recent girlfriend, Lulu x x x Rubillos.

On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died
in the bedroom; that their quarrels could be heard by anyone passing their house; that
Basobas lied in his testimony; that she left for Manila the next day, November 16,
1995; that she did not bother anyone in Manila, rented herself a room, and got herself
a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone
that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and
that she was arrested in San Pablo, Laguna.

Answering questions from the Court, Marivic said that she threw the gun away; that
she did not know what happened to the pipe she used to smash him once; that she was
wounded by Ben on her wrist with the bolo; and that two (2) hours after she was
whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw
that she had packed his things.

9. The body of Ben Genosa was found on November 18, 1995 after an investigation
was made of the foul odor emitting from the Genosa residence. This fact was testified
to by all the prosecution witnesses and some defense witnesses during the trial.

10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel,
Leyte at the time of the incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of cadavers and the autopsy
of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical
board exams and passed in 1986. She was called by the police to go to the Genosa
residence and when she got there, she saw some police officer and neighbor around.
She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his
back to the door. He was wearing only a brief.

xxxxxxxxx

Dra. Cerillo said that there is only one injury and that is the injury involving the
skeletal area of the head which she described as a fracture. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as
to what caused his death.

Dra. Cerillo was not cross-examined by defense counsel.

11. The Information, dated November 14, 1996, filed against Marivic Genosa charged
her with the crime of PARRICIDE committed with intent to kill, with treachery and
evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit
and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x
which caused his death.

12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and
23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998,
and 5 and 6 August 1998.

13. On 23 September 1998, or only fifty (50) days from the day of the last trial date,
the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime
of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.

14. The case was elevated to this Honorable Court upon automatic review and, under
date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a
Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2)
drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own,
were not conformed to by her.

The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.

15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she
submitted her Brief without counsels to the Court.

This letter was stamp-received by the Honorable Court on 4 February 2000.

16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state of
mind at the time she killed her husband; and finally, to allow a partial re-opening of
the case a quo to take the testimony of said psychologists and psychiatrists.

Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun,
then the only qualified forensic pathologist in the country, who opined that the
description of the death wound (as culled from the post-mortem findings, Exhibit A)
is more akin to a gunshot wound than a beating with a lead pipe.
 17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial
court for the reception of expert psychological and/or psychiatric opinion on the
battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to
forthwith report to this Court the proceedings taken, together with the copies of the
TSN and relevant documentary evidence, if any, submitted.

18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were
done at the Penal Institution in 1999, but that the clinical interviews and psychological
assessment were done at her clinic.

Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Josephs College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo,
and a PhD from the U.P. She was the past president of the Psychological Association
of the Philippines and is a member of the American Psychological Association. She is
the secretary of the International Council of Psychologists from about 68 countries; a
member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of
families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book
entitled Energy Global Psychology (together with Drs. Allan Tan and Allan
Bernardo). The Genosa case is the first time she has testified as an expert on battered
women as this is the first case of that nature.

Dra. Dayan testified that for the research she conducted, on the socio-demographic
and psychological profile of families involved in domestic violence, and nullity cases,
she looked at about 500 cases over a period of ten (10) years and discovered that there
are lots of variables that cause all of this marital conflicts, from domestic violence to
infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.

xxxxxxxxx

Dra. Dayan testified that in her studies, the battered woman usually has a very low
opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x
they usually think very lowly of themselves and so when the violence would happen,
they usually think that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even sexually
abusive to them. Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from broken homes.

Dra. Dayan said that the batterer, just like the battered woman, also has a very low
opinion of himself. But then emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very angry. They also had (sic)
a very low tolerance for frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent. The batterer also usually
comes from a dysfunctional family which over-pampers them and makes them feel
entitled to do anything. Also, they see often how their parents abused each other so
there is a lot of modeling of aggression in the family.

Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her husband will change, the belief in
her obligations to keep the family intact at all costs for the sake of the children.

xxxxxxxxx

Dra. Dayan said that abused wives react differently to the violence: some leave the
house, or lock themselves in another room, or sometimes try to fight back triggering
physical violence on both of them. She said that in a normal marital relationship,
abuses also happen, but these are not consistent, not chronic, are not happening day in
[and] day out. In an abnormal marital relationship, the abuse occurs day in and day
out, is long lasting and even would cause hospitalization on the victim and even death
on the victim.

xxxxxxxxx

Dra. Dayan said that as a result of the battery of psychological tests she administered,
it was her opinion that Marivic fits the profile of a battered woman because inspite of
her feeling of self-confidence which we can see at times there are really feeling (sic)
of loss, such feelings of humiliation which she sees herself as damaged and as a
broken person. And at the same time she still has the imprint of all the abuses that she
had experienced in the past.

xxxxxxxxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider
filing for nullity or legal separation inspite of the abuses. It was at the time of the
tragedy that Marivic then thought of herself as a victim.

xxxxxxxxx

19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-Branch 35, Ormoc City.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association.
He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in
private practice, he was connected with the Veterans Memorial Medical Centre where
he gained his training on psychiatry and neurology. After that, he was called to active
duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center
for twenty six (26) years. Prior to his retirement from government service, he obtained
the rank of Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military Surgeons;
the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine
Association of Military Surgeons.

He authored The Comparative Analysis of Nervous Breakdown in the Philippine

Military Academy from the Period 1954 1978 which was presented twice in
international congresses. He also authored The Mental Health of the Armed Forces of
the Philippines 2000, which was likewise published internationally and locally. He
had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was
the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.

Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind
and neurology deals with the ailment of the brain and spinal cord enlarged.
Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one
has to finish medicine to become a specialist in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case in
1964. In the Armed Forces of the Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In those days, the primordial intention
of therapy was reconciliation. As a result of his experience with domestic violence
cases, he became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes
confined. The affliction of Post-Traumatic Stress Disorder depends on the
vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological stamina
and physiologic constitutional stamina of the victim is stronger, it will take more
repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.

In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety

neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma.

xxxxxxxxx

Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or
trauma as if it were real, although she is not actually being beaten at that time. She
thinks of nothing but the suffering.

xxxxxxxxx

A woman who suffers battery has a tendency to become neurotic, her emotional tone
is unstable, and she is irritable and restless. She tends to become hard-headed and
persistent. She has higher sensitivity and her self-world is damaged.

Dr. Pajarillo said that an abnormal family background relates to an individuals illness,
such as the deprivation of the continuous care and love of the parents. As to the
batterer, he normally internalizes what is around him within the environment. And it
becomes his own personality. He is very competitive; he is aiming high all the time;
he is so macho; he shows his strong faade but in it there are doubts in himself and
prone to act without thinking.

xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the precipator (sic)
or the one who administered the battering, that re-experiencing of the trauma occurred
(sic) because the individual cannot control it. It will just come up in her mind or in his
mind.

xxxxxxxxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in
the household. He said a victim resorts to weapons when she has reached the lowest
rock bottom of her life and there is no other recourse left on her but to act decisively.

xxxxxxxxx

Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he
conducted for two (2) hours and seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his diagnosis. He came out
with a Psychiatric Report, dated 22 January 2001.

xxxxxxxxx

On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she
killed her husband Marivicc mental condition was that she was re-experiencing the
trauma. He said that we are trying to explain scientifically that the re-experiencing of
the trauma is not controlled by Marivic. It will just come in flashes and probably at
that point in time that things happened when the re-experiencing of the trauma flashed
in her mind. At the time he interviewed Marivic she was more subdued, she was not
super alert anymore x x x she is mentally stress (sic) because of the predicament she is
involved.

xxxxxxxxx

20. No rebuttal evidence or testimony was presented by either the private or the
public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quo were elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave

credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this
Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying

that this Court allow (1) the exhumation of Ben Genosa and the reexamination
of the cause of his death; (2) the examination of appellant by qualified
psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts reports in the
records of the case for purposes of the automatic review or, in the alternative,
a partial reopening of the case for the lower court to admit the experts
testimonies.
On September 29, 2000, this Court issued a Resolution granting in part
appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to report thereafter to this Court
the proceedings taken as well as to submit copies of the TSN and additional
evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination
of Marivic by two clinical psychologists, Drs. Natividad Dayan [10] and Alfredo
Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along
with their documentary evidence, were then presented to and admitted by the
lower court before finally being submitted to this Court to form part of the
records of the case. [12]

The Issues

Appellant assigns the following alleged errors of the trial court for this
Courts consideration:

1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.
 2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were
legally married and that she was therefore liable for parricide.

3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

4. The trial court gravely erred in ignoring and disregarding evidence adduced from
impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa
was a battered husband.

5. The trial court gravely erred in not requiring testimony from the children of
Marivic Genosa.

6. The trial court gravely erred in concluding that Marivics flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of
her unborn child.

7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.

8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her
to the ultimate penalty of death.[13]

In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not
collateral to the resolution of the principal issues. As consistently held by this
Court, the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to a high degree of respect and will not be disturbed
on appeal in the absence of any showing that the trial judge gravely abused
his discretion or overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the outcome of the
case.[14]
In appellants first six assigned items, we find no grave abuse of discretion,
reversible error or misappreciation of material facts that would reverse or
modify the trial courts disposition of the case. In any event, we will now briefly
dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty
decision without reflecting on the evidence adduced as to self-defense. We
note that in his 17-page Decision, Judge Fortunito L. Madrona summarized
the testimonies of both the prosecution and the defense witnesses and -- on
the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing
the testimony and the self-defense theory of the accused. While she, or even
this Court, may not agree with the trial judges conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to reflect on
the evidence presented.
Neither do we find the appealed Decision to have been made in an
obviously hasty manner. The Information had been filed with the lower court
on November 14, 1996. Thereafter, trial began and at least 13 hearings were
held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and
resolved the case with dispatch should not be taken against him, much less
used to condemn him for being unduly hasty. If at all, the dispatch with which
he handled the case should be lauded. In any case, we find his actions in
substantial compliance with his constitutional obligation.[15]
Second, the lower court did not err in finding as a fact that Ben Genosa
and appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,[16] this Court held:

The key element in parricide is the relationship of the offender with the victim. In the
case of parricide of a spouse, the best proof of the relationship between the accused
and the deceased is the marriage certificate. In the absence of a marriage certificate,
however, oral evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to.

Two of the prosecution witnesses -- namely, the mother and the brother of
appellants deceased spouse -- attested in court that Ben had been married to
Marivic.[17] The defense raised no objection to these testimonies. Moreover,
during her direct examination, appellant herself made a judicial admission of
her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is
conclusive upon the party making it, except only when there is a showing that
(1) the admission was made through a palpable mistake, or (2) no admission
was in fact made.[19] Other than merely attacking the non-presentation of the
marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made
through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of
Bens death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of killing her husband
and the acts of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victims death.
Determining which of these admitted acts caused the death is not dispositive
of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that
Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to
us for automatic review, appellant had not raised the novel defense of battered
woman syndrome, for which such evidence may have been relevant. Her theory
of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding facts that led
to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellants children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.[20] As the former further points out, neither
the trial court nor the prosecution prevented appellant from presenting her
children as witnesses. Thus, she cannot now fault the lower court for not
requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight
of Marivic to Manila and her subsequent apologies to her brother-in-law are
indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial courts appreciation of these circumstances has
little bearing on the final resolution of the case.
 First Legal Issue:
Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes
self-defense and/or defense of her unborn child. When the accused admits
killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.[21] Well-settled is the rule that
in criminal cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered

woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.[23] By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
understanding of the justifiably fearful state of mind of a person who has been
cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a man in order
to coerce her to do something he wants her to do without concern for her
rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman.[25]
Battered women exhibit common personality traits, such as low self-
esteem, traditional beliefs about the home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterers actions; and false hopes that the relationship
will improve.[26]
More graphically, the battered woman syndrome is characterized by the
so-called cycle of violence,[27] which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least,
nonviolent) phase.[28]
 During the tension-building phase, minor battering occurs -- it could be
verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor.
All she wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he has the right to
abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate
him are not usually successful, and the verbal and/or physical abuse worsens.
Each partner senses the imminent loss of control and the growing tension and
despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence spirals out of control and leads to an acute
battering incident.[29]
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as
unpredictable as the time of its explosion, and so are his reasons for ending it.
The battered woman usually realizes that she cannot reason with him, and
that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner will change
for the better; and that this good, gentle and caring man is the real person
whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she feels
responsible for his well-being. The truth, though, is that the chances of his
reforming, or seeking or receiving professional help, are very slim, especially if
she remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase of
remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
womans psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.[31]

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense

presented several witnesses. She herself described her heart-rending
experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he was cruel to
me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to
you and cruel. In what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned
me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
 Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced and after that I
go to him and he said sorry.
Q During those times that you were the recipient of such cruelty and abusive behavior
by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxxxxxxxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.

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[Court] /to the witness

Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the
occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos

Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:
Q So, do you have a summary of those six (6) incidents which are found in the chart of
your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and
contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr.
Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient.
What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast. So,
[pain] meaning there is tenderness. When your breast is traumatized, there is
tenderness pain.
Q So, these are objective physical injuries. Doctor?

xxxxxxxxx

Q Were you able to talk with the patient?

A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of these injuries. And
she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.

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ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the
month of November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient
pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.

xxxxxxxxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.
What is this all about?
 A Because she has this problem of tension headache secondary to hypertension and I
think I have a record here, also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had
hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does
not response when the medication was given to her, because tension headache is
more or less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family
history in line of giving the root cause of what is causing this disease. So, from the
moment you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension
which is unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of
blood pressure?
A It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the

Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had been asked
by Marivic to sleep at the Genosa house, because the latter feared that Ben
would come home drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten oclock at night, because the couple were
very noisy and I heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by the window
grill atop a chair, scaring them with a knife.
 On the afternoon of November 15, 1995, Marivic again asked her help --
this time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling.[37] Marivic relates in
detail the following backdrop of the fateful night when life was snuffed out of
him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the
evening?
A Whole morning and in the afternoon, I was in the office working then after office
hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I
immediately asked my son, where was his father, then my second child said, he
was not home yet. I was worried because that was payday, I was anticipating that
he was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that
time because I had fears that he was again drunk and I was worried that he would
 again beat me so I requested my cousin to sleep with me, but she resisted
because she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because
of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he
do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just
worried he might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid
trouble for fear that he will beat me again. Perhaps he was disappointed because I
just ignore him of his provocation and he switch off the light and I said to him, why
did you switch off the light when the children were there. At that time I was also
attending to my children who were doing their assignments. He was angry with me
 for not answering his challenge, so he went to the kitchen and [got] a bolo and cut
the antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and
he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that
bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he
drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting
at me that you might as well be killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill
me and I smashed his arm and then the wallet and the blade fell. The one he used
to open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling
I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).

xxxxxxxxx

ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
 Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an

expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latters ordeal to the
court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you in laymans
term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was
suffering emotional anguish. There were a lot of instances of abuses, to emotional
abuse, to verbal abuse and to physical abuse. The husband had a very meager
income, she was the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will
trigger a lot of physical abuse. She also had the experience a lot of taunting from
the husband for the reason that the husband even accused her of infidelity, the
husband was saying that the child she was carrying was not his own. So she was
very angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening day in
and day out. [39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited,

but wittingly or unwittingly put forward, additional supporting evidence as
shown below:
Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital
life.
Q Before you met her in 1999 for three hours, we presume that you already knew of
the facts of the case or at least you have substantial knowledge of the facts of the
case?
A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxxxxxxxx

Q Did you gather an information from Marivic that on the side of her husband they were
fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were
fond of battering their wives?
A What I remember that there were brothers of her husband who are also battering
their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in
Ormoc where her husband followed her and battered [her] several times in that
room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I
think that is the first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was
really a self-defense. I also believe that there had been provocation and I also
believe that she became a disordered person. She had to suffer anxiety reaction
because of all the battering that happened and so she became an abnormal
person who had lost shes not during the time and that is why it happened because
of all the physical battering, emotional battering, all the psychological abuses that
she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q And you also said that you administered [the] objective personality test, what x x x [is
this] all about?
 A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose
of that test is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone
who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can
trust. That the data that Im gathering from her are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report,[42] which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same
time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward
his family, particularly to his wife. The Report continued: At first, it was verbal
and emotional abuses but as time passed, he became physically abusive.
Marivic claimed that the viciousness of her husband was progressive every
time he got drunk. It was a painful ordeal Marivic had to anticipate whenever
she suspected that her husband went for a drinking [spree]. They had been
married for twelve years[;] and practically more than eight years, she was
battered and maltreated relentlessly and mercilessly by her husband
whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, [s]he also sought the advice and help of
close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the
Courts mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused

woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person who
is evaluating the events immediately surrounding the incident. A Canadian
court has aptly pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and
necessary. How can the mental state of the appellant be appreciated without
it? The average member of the public may ask: Why would a woman put up
with this kind of treatment? Why should she continue to live with such a man?
How could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go. Where
is her self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted with the so-
called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should
not be drawn from that of an ordinary, reasonable person. What goes on in
the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and
refute common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research
on domestic violence, has had a significant impact in the United States and
the United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon the
battered woman immobilizes the latters ability to act decisively in her own
interests, making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the abuse often
escalates at the point of separation and battered women are in greater danger
of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered
woman usually has a very low opinion of herself. She has x x x self-defeating
and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered woman
does not readily leave an abusive partner -- poverty, self-blame and guilt
arising from the latters belief that she provoked the violence, that she has an
obligation to keep the family intact at all cost for the sake of their children, and
that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He
had previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within the
Armed Forces of the Philippines, wherein such cases abounded. As a result of
his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical abuse on
the woman would sometimes even lead to her loss of consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in
posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons
may believe that they are essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have the effect of stimulating
the development of coping responses to the trauma at the expense of the
victims ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can do will
have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University
of Pennsylvania, found that even if a person has control over a situation, but
believes that she does not, she will be more likely to respond to that situation
with coping responses rather than trying to escape. He said that it was the
cognitive aspect -- the individuals thoughts -- that proved all-important. He
referred to this phenomenon as learned helplessness. [T]he truth or facts of a
situation turn out to be less important than the individuals set of beliefs or
perceptions concerning the situation. Battered women dont attempt to leave
the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that
nothing they or anyone else does will alter their terrible circumstances.[54]
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he is
capable of killing her, and that there is no escape.[55] Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.[56] Unless a shelter is available, she stays with her husband, not
only because she typically lacks a means of self-support, but also because
she fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for specific
evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with the
battered woman syndrome. We, however, failed to find sufficient evidence that
would support such a conclusion. More specifically, we failed to find ample
evidence that would confirm the presence of the essential characteristics of
BWS.
The defense fell short of proving all three phases of the cycle of violence
supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a quo how
the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other words, she
failed to prove that in at least another battering episode in the past, she had
gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to
acute battering? How did Marivic normally respond to Bens relatively minor
abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third
phase of the cycle. She simply mentioned that she would usually run away to
her mothers or fathers house;[58] that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her and
her spouse? Did she believe that she was the only hope for Ben to reform?
And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for
the defense. Indeed, they were able to explain fully, albeit merely theoretically
and scientifically, how the personality of the battered woman usually evolved
or deteriorated as a result of repeated and severe beatings inflicted upon her
by her partner or spouse. They corroborated each others testimonies, which
were culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual experiences and
thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.
 We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of the
battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in

itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that
crucial to the BWS defense is the state of mind of the battered woman at the
time of the offense[60] -- she must have actually feared imminent harm from her
batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts
to self-defense must face a real threat on ones life; and the peril sought to be
avoided must be imminent and actual, not merely imaginary.[61] Thus, the
Revised Penal Code provides the following requisites and effect of self-
defense:[62]

Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.

Unlawful aggression is the most essential element of self-defense.[63] It

presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person.[64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and
escape to their childrens bedroom. During that time, he apparently ceased his
attack and went to bed. The reality or even the imminence of the danger he
posed had ended altogether. He was no longer in a position that presented an
actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens
bedroom -- and based on past violent incidents, there was a great probability
that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of actual
physical assault at the time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the battered person to
await an obvious, deadly attack before she can defend her life would amount
to sentencing her to murder by installment.[65] Still, impending danger (based
on the conduct of the victim in previous battering episodes) prior to the
defendants use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.[66] Considering
such circumstances and the existence of BWS, self-defense may be
appreciated.
We reiterate the principle that aggression, if not continuous, does not
warrant self-defense.[67] In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim.[68] Thus,
Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by the
parties.[69]
From several psychological tests she had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:

This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which
broke down her psychological resistance and natural self-control. It is very clear that
she developed heightened sensitivity to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part. [70]
 Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the
effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of the
battering is posttraumatic stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity of
the battering. Third, the prolonged administration of battering or the prolonged
commission of the battering and the psychological and constitutional stamina of
the victim and another one is the public and social support available to the victim.
If nobody is interceding, the more she will go to that disorder....

xxxxxxxxx

Q You referred a while ago to severity. What are the qualifications in terms of severity
of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress
disorder is injury to the head, banging of the head like that. It is usually the very
very severe stimulus that precipitate this post[t]raumatic stress disorder. Others
are suffocating the victim like holding a pillow on the face, strangulating the
individual, suffocating the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like for example she is
pregnant, she is very susceptible because the woman will not only protect herself,
she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will
manifest now a severe emotional instability, higher irritability remorse,
restlessness, and fear and probably in most [acute] cases the first thing will be
happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any
prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6)
months. After this six (6) months you become chronic. It is stated in the book
specifically that after six (6) months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then become normal. This is how
you get neurosis from neurotic personality of these cases of post[t]raumatic stress
disorder. [72]

Answering the questions propounded by the trial judge, the expert witness
clarified further:
Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x
x x his or her mental capacity?
 A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in cumulative provocation which broke down her
psychological resistance and natural self-control, psychological paralysis, and
difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations
were analogous to an illness that diminished the exercise by appellant of her
will power without, however, depriving her of consciousness of her acts. There
was, thus, a resulting diminution of her freedom of action, intelligence or
intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal
Code, this circumstance should be taken in her favor and considered as a
mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating circumstance
of having acted upon an impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.[77] To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time,
during which the accused might recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened to
kill her while dragging her by the neck towards a cabinet in which he had kept
a gun. It should also be recalled that she was eight months pregnant at the
time. The attempt on her life was likewise on that of her fetus.[79] His abusive
and violent acts, an aggression which was directed at the lives of both Marivic
and her unborn child, naturally produced passion and obfuscation overcoming
her reason. Even though she was able to retreat to a separate room, her
emotional and mental state continued. According to her, she felt her blood
pressure rise; she was filled with feelings of self-pity and of fear that she and
her baby were about to die. In a fit of indignation, she pried open the cabinet
drawer where Ben kept a gun, then she took the weapon and used it to shoot
him.
The confluence of these events brings us to the conclusion that there was
no considerable period of time within which Marivic could have recovered her
normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic
anxiety -- a psychological effect on a victim of overwhelming brutality [or]
trauma -- the victim relives the beating or trauma as if it were real, although
she is not actually being beaten at the time. She cannot control re-
experiencing the whole thing, the most vicious and the trauma that she
suffered. She thinks of nothing but the suffering. Such reliving which is beyond
the control of a person under similar circumstances, must have been what
Marivic experienced during the brief time interval and prevented her from
recovering her normal equanimity. Accordingly, she should further be credited
with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological
paralysis as well as passion and obfuscation -- did not arise from the same set
of facts.
On the one hand, the first circumstance arose from the cyclical nature and
the severity of the battery inflicted by the batterer-spouse upon appellant. That
is, the repeated beatings over a period of time resulted in her psychological
paralysis, which was analogous to an illness diminishing the exercise of her
will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed by
her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons
by employing means, methods or forms in the execution thereof without risk to
oneself arising from the defense that the offended party might make.[81] In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of
evidence.[82] Because of the gravity of the resulting offense, treachery must be
proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an open, depressed, circular fracture located at the
back of his head. As to exactly how and when he had been fatally attacked,
however, the prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he dragged you? How did he
drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting
at me that you might as well be killed so there will be nobody to nag me
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill
me and I smashed his arm and then the wallet and the blade fell. The one he used
to open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling
I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).

xxxxxxxxx
Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.

xxxxxxxxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him
and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when I
was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure
was raised. I was frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the
same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through with him, I took pity on
myself and I felt I was about to die also because of my blood pressure and the
baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
 The above testimony is insufficient to establish the presence of treachery.
There is no showing of the victims position relative to appellants at the time of
the shooting. Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault adopted
by the aggressor must have been consciously and deliberately chosen for the
specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked.[86] There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the thought
of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof
that she consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court resolves the
doubt in her favor.[87]

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal
Code is reclusion perpetua to death. Since two mitigating circumstances and
no aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 of the same Code. The penalty
[88] [89]

of reclusion temporal in its medium period is imposable, considering that two

mitigating circumstances are to be taken into account in reducing the penalty
by one degree, and no other modifying circumstances were shown to have
attended the commission of the offense. Under the Indeterminate Sentence
[90]

Law, the minimum of the penalty shall be within the range of that which is next
lower in degree -- prision mayor -- and the maximum shall be within the range
of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six (6)
years and one (1) day in prison as minimum; to reclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for and
be released from detention on parole.[91]
 Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome

was neither easy nor simple to analyze and recognize vis--vis the given set of
facts in the present case. The Court agonized on how to apply the theory as a
modern-day reality. It took great effort beyond the normal manner in which
decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the
case, it endeavored to take a good look at studies conducted here and abroad
in order to understand the intricacies of the syndrome and the distinct
personality of the chronically abused person. Certainly, the Court has learned
much. And definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only
work within the limits of law, jurisprudence and given facts. We cannot make
or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense
arising from the battered woman syndrome. We now sum up our main
points. First, each of the phases of the cycle of violence must be proven to
have characterized at least two battering episodes between the appellant and
her intimate partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered persons mind an
actual fear of an imminent harm from her batterer and an honest belief that
she needed to use force in order to save her life. Third, at the time of the
killing, the batterer must have posed probable -- not necessarily immediate
and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense,
her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is
eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.
[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.

Maximo Calalang in his own behalf.

Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents Williams,
Fragante and Bayan

City Fiscal Mabanag for the other respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION OF

LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS
AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The provisions of section 1 of
Commonwealth Act No. 648 do not confer legislative power upon the Director of Public Works and the
Secretary of Public Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,
"to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic thereon makes
such action necessary or advisable in the public convenience and interest." The delegated power, if at all,
therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged by the National
Assembly. It must depend on the discretion of some other government official to whom is confided the duty
of determining whether the proper occasion exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. — Commonwealth Act No.
548 was passed by the National Assembly in the exercise of the paramount police power of the state. Said
Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe
transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of public convenience
and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and, personal discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.

3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization of social and economic forces by the State so
 that justice in its rational and objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the maintenance of
a proper economic and social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the time-honored principle of salus populi
est suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number."

DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court
this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of the National
Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of
Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez,
as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved
to recommend to the Director of Public Works and to the Secretary of Public Works and Communications
that animal-drawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon
de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and
along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to
11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to traffic; that the
Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works
the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the
Secretary of Public Works and Communications, to promulgate rules and regulations to regulate and control
the use of and traffic on national roads; that on August 2, 1940, the Director of Public Works, in his first
indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval
of the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the
modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10,
1940, the Secretary of Public Works and Communications, in his second indorsement addressed to the
Director of Public Works, approved the recommendation of the latter that Rosario Street and Rizal Avenue
be closed to traffic of animal-drawn vehicles, between the points and during the hours as above indicated,
for a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of
Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and
regulations thus adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not
allowed to pass and pick up passengers in the places above-mentioned to the detriment not only of their
owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works,
with the approval of the Secretary of Public Works and Communications, is authorized to promulgate rules
and regulations for the regulation and control of the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The
rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since
followed in a multitude of cases, namely: ’The true distinction therefore is between the delegation of power
to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made.’ (Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio
St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature may make decisions of
executive departments or subordinate officials thereof, to whom it has committed the execution of certain
acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to
give prominence to the ’necessity’ of the case."cralaw virtua1aw l ibra ry

Section 1 of Commonwealth Act No. 548 reads as follows: jgc:chan roble s.com.p h

"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as
national roads by acts of the National Assembly or by executive orders of the President of the Philippines,
the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall
promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads
and streets. Such rules and regulations, with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or other structures within a reasonable distance from
along the national roads. Such roads may be temporarily closed to any or all classes of traffic by the Director
of Public Works and his duly authorized representatives whenever the condition of the road or the traffic
thereon makes such action necessary or advisable in the public convenience and interest, or for a specified
period, with the approval of the Secretary of Public Works and Communications." cralaw virt ua1aw li bra ry

The above provisions of law do not confer legislative power upon the Director of Public Works and the
Secretary of Public Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,
"to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic makes such
action necessary or advisable in the public convenience and interest." The delegated power, if at all,
therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged by the National
Assembly. It must depend on the discretion of some other government official to whom is confided the duty
of determining whether the proper occasion exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert
that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature
of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not
yet developed, or to things future and impossible to fully know." The proper distinction the court said was
this: "The Legislature cannot delegate its power to make the law; but it can make a law to delegate a power
to determine some fact or state of things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. There are many things upon which wise
and useful legislation must depend which cannot be known to the law-making power, and, must, therefore,
be a subject of inquiry and determination outside of the halls of legislation." (Field v. Clark, 143 U. S. 649,
694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12, 1939,
and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, promulgated June 26,
1940, this Court had occasion to observe that the principle of separation of powers has been made to adapt
itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation," not only in the United States and England but in practically all modern
governments. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of
separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of
greater powers by the legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations
calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to
the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business or
trade and abridge the right to personal liberty and freedom of locomotion. Commonwealth Act No. 548 was
passed by the National Assembly in the exercise of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote
safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of public convenience
and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins v.
Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power is a continuing one,
and a business lawful today may in the future, because of the changed situation, the growth of population or
other causes, become a menace to the public health and welfare, and be required to yield to the public
good." And in People v. Pomar (46 Phil., 440), it was observed that "advancing civilization is bringing within
the police power of the state today things which were not thought of as being within such power yesterday.
The development of civilization, the rapidly increasing population, the growth of public opinion, with an
increasing desire on the part of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power many questions for regulation which
formerly were not so considered." cralaw vi rtua 1aw lib rary

The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional
precept regarding the promotion of social justice to insure the well-being and economic security of all the
people. The promotion of social justice, however, is to be achieved not through a mistaken sympathy
towards any given group. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy,"
but the humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number." cralaw virt ua1aw lib rary

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.

Avanceña, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.

G.R. No. 49549 August 30, 1990

EVELYN CHUA-QUA, petitioner,

vs.
HON. JACOBO C. CLAVE, in his capacity as Presidential Executive Assistant, and TAY TUNG
HIGH SCHOOL, INC., respondents.

William C. Gunitang and Jaime Opinion for petitioner.

Laogan Law Offices for private respondent.

REGALADO, J.:

This would have been just another illegal dismissal case were it not for the controversial and unique
situation that the marriage of herein petitioner, then a classroom teacher, to her student who was
fourteen (14) years her junior, was considered by the school authorities as sufficient basis for
terminating her services.

Private respondent Tay Tung High School, Inc. is an educational institution in Bacolod City.
Petitioner had been employed therein as a teacher since 1963 and, in 1976 when this dispute arose,
was the class adviser in the sixth grade where one Bobby Qua was enrolled. Since it was the policy
of the school to extend remedial instructions to its students, Bobby Qua was imparted such
instructions in school by petitioner. 1 In the course thereof, the couple fell in love and on December 24,
1975, they got married in a civil ceremony solemnized in Iloilo City by Hon. Cornelio G. Lazaro, City
Judge of Iloilo. 2 Petitioner was then thirty (30) years of age but Bobby Qua being sixteen (16) years old,
consent and advice to the marriage was given by his mother, Mrs. Concepcion Ong. 3 Their marriage was
ratified in accordance with the rites of their religion in a church wedding solemnized by Fr. Nick Melicor at
Bacolod City on January 10, 1976. 4

On February 4, 1976, private respondent filed with the sub-regional office of the Department of
Labor at Bacolod City an application for clearance to terminate the employment of petitioner on the
following ground: "For abusive and unethical conduct unbecoming of a dignified school teacher and
that her continued employment is inimical to the best interest, and would downgrade the high moral
values, of the school." 5

Petitioner was placed under suspension without pay on March 12, 1976. 6 Executive Labor Arbiter
Jose Y. Aguirre, Jr. of the National Labor Relations Commission, Bacolod City, to whom the case was
certified for resolution, required the parties to submit their position papers and supporting evidence.
Affidavits 7 were submitted by private respondent to bolster its contention that petitioner, "defying all
standards of decency, recklessly took advantage of her position as school teacher, lured a Grade VI boy
under her advisory section and 15 years her junior into an amorous relation." 8 More specifically, private
respondent raised issues on the fact that petitioner stayed alone with Bobby Qua in the classroom after
school hours when everybody had gone home, with one door allegedly locked and the other slightly open.

On September 17, 1976, Executive Labor Arbiter Jose Y. Aguirre, Jr., without conducting any formal
hearing, rendered an "Award" in NLRC Case No. 956 in favor of private respondent granting the
clearance to terminate the employment of petitioner. It was held therein that —

The affidavits . . . although self-serving but were never disputed by the respondent
pointed out that before the marriage of respondent to Bobby Qua, fourteen (14) years
her junior and during her employment with petitioner, an amorous relationship
existed between them. In the absence of evidence to the contrary, the undisputed
written testimonies of several witnesses convincingly picture the circumstances
under which such amorous relationship was manifested within the premises of the
school, inside the classroom, and within the sight of some employees. While no
direct evidences have been introduced to show that immoral acts were committed
during these times, it is however enough for a sane and credible mind to imagine and
conclude what transpired and took place during these times. . . . 9
Petitioner, however, denied having received any copy of the affidavits referred to. 10

On October 7, 1976, petitioner appealed to the National Labor Relations Commission claiming denial
of due process for not having been furnished copies of the aforesaid affidavits relied on by the labor
arbiter. She further contended that there was nothing immoral, nor was it abusive and unethical
conduct unbecoming of a dignified school teacher, for a teacher to enter into lawful wedlock with her
student. 11

On December 27, 1976, the National Labor Relations Commission unanimously reversed the Labor
Arbiter's decision and ordered petitioner's reinstatement with backwages, with the following specific
findings:

Affiant Maselliones deposed and said that he saw appellant and Qua sitting on the
student desk inside a classroom after classes. The depositions of affiants Despi and
Chin are of the same tenor. No statements whatever were sworn by them that they
were eyewitnesses to immoral or scandalous acts.

xxx xxx xxx

Even if we have to strain our sense of moral values to accommodate the conclusion
of the Arbiter, we could not deduce anything immoral or scandalous about a girl and
a boy talking inside a room after classes with lights on and with the door open.

xxx xxx xxx

Petitioner-appellee naively insisted that the clearance application was precipitated by

immoral acts which did not lend dignity to the position of appellant. Aside from such
gratuitous assertions of immoral acts or conduct by herein appellant, no evidence to
support such claims was introduced by petitioner-appellee. We reviewed the the
sequence of events from the beginning of the relationship between appellant Evelyn
Chua and Bobby Qua up to the date of the filing of the present application for
clearance in search of evidence that could have proved detrimental to the image and
dignity of the school but none has come to our attention. . . . 12

The case was elevated by private respondent to the Minister of Labor who, on March 30, 1977,
reversed the decision of the National Labor Relations Commission. The petitioner was, however,
awarded six (6) months salary as financial assistance. 13

On May 20, 1977, petitioner appealed the said decision to the Office of the President of the
Philippines. 14 After the corresponding exchanges, on September 1, 1978 said office, through Presidential
Executive Assistant Jacobo C. Clave, rendered its decision reversing the appealed decision. Private
respondent was ordered to reinstate petitioner to her former position without loss of seniority rights and
other privileges and with full back wages from the time she was not allowed to work until the date of her
actual reinstatement. 15

Having run the gamut of three prior adjudications of the case with alternating reversals, one would
think that this decision of public respondent wrote finis to petitioner's calvary. However, in a
resolution dated December 6, 1978, public respondent, acting on a motion for reconsideration 16 of
herein private respondent and despite opposition thereto, 17 reconsidered and modified the aforesaid
decision, this time giving due course to the application of Tay Tung High School, Inc. to terminate the
services of petitioner as classroom teacher but giving her separation pay equivalent to her six (6) months
salary. 18
In thus reconsidering his earlier decision, public respondent reasoned out in his
manifestation/comment filed on August 14, 1979 in this Court in the present case:

That this Office did not limit itself to the legal issues involved in the case, but went
further to view the matter from the standpoint of policy which involves the delicate
task of rearing and educating of children whose interest must be held paramount in
the school community, and on this basis, this Office deemed it wise to uphold the
judgment and action of the school authorities in terminating the services of a teacher
whose actuations and behavior, in the belief of the school authorities, had spawned
ugly rumors that had cast serious doubts on her integrity, a situation which was
considered by them as not healthy for a school campus, believing that a school
teacher should at all times act with utmost circumspection and conduct herself
beyond reproach and above suspicion; 19

In this petition for certiorari, petitioner relies on the following grounds for the reversal of the aforesaid
resolution of public respondent, viz.:

1. The dismissal or termination of petitioner's employment, despite Tay Tung's claim

to the contrary, was actually based on her marriage with her pupil and is, therefore,
illegal.

2. Petitioner's right to due process under the Constitution was violated when the
hearsay affidavits of Laddy Maselliones, Eleuterio Despi, Pina D. Chiu, and Ong Lee
Bing, were admitted and considered in evidence without presenting the affiants as
witnesses and affording the petitioner the right to confront and cross-examine them.

3. No sufficient proofs were adduced to show that petitioner committed serious

misconduct or breached the trust reposed on her by her employer or committed any
of the other grounds enumerated in Article 283 (Now Article 282) of the Labor Code
which will justify the termination of her employment. 20

We first dispose of petitioner's claim that her right to due process was violated. We do not agree.
There is no denial of due process where a party was afforded an opportunity to present his side.
Also, the procedure by which issues are resolved based on position papers, affidavits and other
documentary evidence is recognized as not violative of such right. Moreover, petitioner could have
insisted on a hearing to confront and cross-examine the affiants but she did not do so, obviously
because she was convinced that the case involves a question of law. Besides, said affidavits were
also cited and discussed by her in the proceedings before the Ministry of Labor.

Now, on the merits. Citing its upright intention to preserve the respect of the community toward the
teachers and to strengthen the educational system, private respondent submits that petitioner's
actuations as a teacher constitute serious misconduct, if not an immoral act, a breach of trust and
confidence reposed upon her and, thus, a valid and just ground to terminate her services. It argues
that as a school teacher who exercises substitute parental authority over her pupils inside the school
campus, petitioner had moral ascendancy over Bobby Qua and, therefore, she must not abuse such
authority and respect extended to her. Furthermore, it charged petitioner with having allegedly
violated the Code of Ethics for teachers the pertinent provision of which states that a "school official
or teacher should never take advantage of his/her position to court a pupil or student." 21

On the other hand, petitioner maintains that there was no ground to terminate her services as there
is nothing wrong with a teacher falling in love with her pupil and, subsequently, contracting a lawful
marriage with him. She argued that she was dismissed because of her marriage with Bobby Qua
This contention was sustained in the aforesaid decision of the National Labor Relations Commission
thus:

. . . One thing, however, has not escaped our observation: That the application for
clearance was filed only after more than one month elapsed from the date of
appellant's marriage to Bobby Qua Certainly, such belated application for clearance
weakens instead of strengthening the cause of petitioner-appellee. The alleged
immoral acts transpired before the marriage and if it is these alleged undignified
conduct that triggered the intended separation, then why was the present application
for clearance not filed at that time when the alleged demoralizing effect was still fresh
and abrasive? 22

After a painstaking perusal of the records, we are of the considered view that the determination of
the legality of the dismissal hinges on the issue of whether or not there is substantial evidence to
prove that the antecedent facts which culminated in the marriage between petitioner and her student
constitute immorality and/or grave misconduct. To constitute immorality, the circumstances of each
particular case must be holistically considered and evaluated in the light of prevailing norms of
conduct and the applicable law. Contrary to what petitioner had insisted on from the very start, what
is before us is a factual question, the resolution of which is better left to the trier of facts.

Considering that there was no formal hearing conducted, we are constrained to review the factual
conclusions arrived at by public respondent, and to nullify his decision through the extraordinary writ
of certiorari if the same is tainted by absence or excess of jurisdiction or grave abuse of discretion.
The findings of fact must be supported by substantial evidence; otherwise, this Court is not bound
thereby. 23

We rule that public respondent acted with grave abuse of discretion. As vividly and forcefully
observed by him in his original decision:

Indeed, the records relied upon by the Acting Secretary of Labor (actually the records
referred to are the affidavits attached as Annexes "A" to "D" of the position paper
dated August 10, 1976 filed by appellee at the arbitration proceedings) in arriving at
his decision are unbelievable and unworthy of credit, leaving many question
unanswered by a rational mind. For one thing, the affidavits refer to certain times of
the day during off school hours when appellant and her student were found together
in one of the classrooms of the school. But the records of the case present a ready
answer: appellant was giving remedial instruction to her student and the school was
the most convenient place to serve the purpose. What is glaring in the affidavits is
the complete absence of specific immoral acts allegedly committed by appellant and
her student. For another, and very important at that, the alleged acts complained of
invariably happened from September to December, 1975, but the disciplinenary
action imposed by appellee was sought only in February, 1976, and what is more,
the affidavits were executed only in August, 1976 and from all indications, were
prepared by appellee or its counsel. The affidavits heavily relied upon by appellee
are clearly the product of after-thought. . . . The action pursued by appellee in
dismissing appellant over one month after her marriage, allegedly based on immoral
acts committed even much earlier, is open to basis of the action sought seriously
doubted; on the question. The basis of the action sought is seriously doubted; on the
contrary, we are more inclined to believe that appellee had certain selfish, ulterior
and undisclosed motives known only to itself. 24
As earlier stated, from the outset even the labor arbiter conceded that there was no direct evidence
to show that immoral acts were committed. Nonetheless, indulging in a patently unfair conjecture, he
concluded that "it is however enough for a sane and credible mind to imagine and conclude what
transpired during those times." 25 In reversing his decision, the National Labor Relations Commission
observed that the assertions of immoral acts or conducts are gratuitous and that there is no direct
evidence to support such claim, 26 a finding which herein public respondent himself shared.

We are, therefore, at a loss as to how public respondent could adopt the volte-face in the questioned
resolution, which we hereby reject, despite his prior trenchant observations hereinbefore quoted. What is revealing however, is that the
reversal of his original decision is inexplicably based on unsubstantiated surmises and non sequiturs which he incorporated in his assailed
resolution in this wise:

. . . While admittedly, no one directly saw Evelyn Chua and Bobby Qua doing
immoral acts inside the classroom it seems obvious and this Office is convinced that
such a happening indeed transpired within the solitude of the classrom after regular
class hours. The marriage between Evelyn Chua and Bobby Qua is the best proof
which confirms the suspicion that the two indulged in amorous relations in that place
during those times of the day. . . . 27

With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the
alleged violation of the Code of Ethics governing school teachers would have no basis. Private
respondent utterly failed to show that petitioner took advantage of her position to court her student. If
the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends
substance to the truism that the heart has reasons of its own which reason does not know. But,
definitely, yielding to this gentle and universal emotion is not to be so casually equated with
immorality. The deviation of the circumstances of their marriage from the usual societal pattern
cannot be considered as a defiance of contemporary social mores.

It would seem quite obvious that the avowed policy of the school in rearing and educating children is
being unnecessarily bannered to justify the dismissal of petitioner. This policy, however, is not at
odds with and should not be capitalized on to defeat the security of tenure granted by the
Constitution to labor. In termination cases, the burden of proving just and valid cause for dismissing
an employee rests on the employer and his failure to do so would result in a finding that the
dismissal is unjustified.

The charge against petitioner not having been substantiated, we declare her dismissal as
unwarranted and illegal. It being apparent, however, that the relationship between petitioner and
private respondent has been inevitably and severely strained, we believe that it would neither be to
the interest of the parties nor would any prudent purpose be served by ordering her reinstatement.

WHEREFORE, the petition for certiorari is GRANTED and the resolution of public respondent, dated
December 6, 1978 is ANNULLED and SET ASIDE. Private respondent Tay Tung High School, Inc.
is hereby ORDERED to pay petitioner backwages equivalent to three (3) years, without any
deduction or qualification, and separation pay in the amount of one (1) month for every year of
service.

SO ORDERED.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati,
Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal
plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this petition by the
new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are
all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment
of the natural resource treasure that is the country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that
judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands
has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have existed, endured and flourished since time
immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest
cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of
the water table as a result of the intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i)
the floodings of lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as a
matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89
million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation and
to generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural

resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.
 A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna
and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to

the public policy enunciated in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of

dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's

is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural
law — and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him
and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's
abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss. 7 In the said order, not only was the defendant's claim — that the complaint states no cause of
action against him and that it raises a political question — sustained, the respondent Judge further ruled
that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the
respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit
their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf
of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20
and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy),
Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard
the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts. They
likewise submit that even if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but
to lobby before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done
by the State without due process of law. Once issued, a TLA remains effective for a certain period of
time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to have violated the terms
of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that
the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the
latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm
and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for
the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits
of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the
petitioners and rule against the respondent Judge's challenged order for having been issued with
grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order
reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of
 by this Court without doing violence to the sacred principle of "Separation of Powers"
of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A reading of
the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section
of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?
 MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development
and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on
10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure
the sustainable use, development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other natural resources, including
the protection and enhancement of the quality of the environment, and equitable
access of the different segments of the population to the development and the use of
the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true
value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other
hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as
the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a)
to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is
as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs,
which they claim was done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed
or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails
to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of
the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the
basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not squarely
put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to enable the courts of justice
to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly provides:
...

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:
 The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and

is not a contract between the authority, federal, state, or municipal, granting it and
the person to whom it is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of existing
timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very
nature and purpose, such as law could have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American
Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as
of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it
as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby
set aside. The petitioners may therefore amend their complaint to implead as defendants the holders
or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.