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

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

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

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

Provinces of Cavite and Batangas who are levying forced
contributions upon the people, who frequently require them, under
G.R. No. L-4964 October 11, 1951 compulsion, to join their bands, and who kill or maim the most
barbarous manner those who fail to respond to their unlawful
AMADO V. HERNANDEZ, petitioner, demands, and are therefore terrifying the law-abiding and inoffensive
vs. people of those provinces; and
HON, AGUSTIN P.MONTESA, ETC., respondent.
WHEREAS, these bands have in several instances attacked police
x---------------------------------------------------------x and constabulary detachments, and are in open insurrection against
the constituted authorities, and it is believed that the said bands have
G.R. No. L-5102 October 11, 1951 numerous agents and confederates living within the municipalities of
said provinces; and
EUGENIO ANGELES, ETC., petitioner,
vs. WHEREAS, because of the foregoing conditions there exists a state
HON. GAVINO S.ABAYA, ETC., respondent. of insecurity and terrorism among the people which makes it
impossible in the ordinary way to conduct preliminary investigations
Laurel, Sabido, Almario and Laurel, Antonio Barredo and Enrique Fernando before the justices of the peace and other judicial officers:
for petitioner Amado V. Hernandez.
Office of the Solicitor General Pompeyo Diaz, Solicitor Felix Makasiar and In the interest of public safety, it is hereby ordered that the writ
Solicitor Matriniano P. Vivo for respondent Judges Montesa and Gatmaitan. of habeas corpus is from this date suspended in the Provinces of
City fiscal Eugenio Angeles, in his own behalf. Cavite and Batangas.
Vicente A. Rafael and Macario L. Nicolas for the respondents in case L-5102
except the respondent judge. On October 22, 1950, for the second time in the Philippine history, the
Judge Gavino S. Abaya in his own behalf. suspension of the privilege of the writ of habeas corpus was decreed by
Abeto and Soriano and Fermin Z. Caram, Jr. for the petitioners in case L- virtue of the following Proclamation No. 210 issued by the President:
4855.
Claro M. Recto, Jose P. Laurel, and fred Ruiz castro as amici curaie. WHEREAS, lawless elements of the country have committed overt
acts of sedition, insurrection and rebellion for the purpose of
PARAS, C.J.: overthrowing the duly constituted authorities and, in pursuance
thereof, have created a state of lawlessness and disorder affecting
By express mandate of the Constitution (Article III, Section 1, Paragraph 14), public safety and the security of the state;
the privilege of the writ of habeas corpus shall not be suspended except in
 WHEREAS, these acts of sedition, insurrection and rebellion
consisiting of armed raids, sorties and ambushes and the wanton
acts of murder, rape, spoilage, looting, arson, planned destruction of
public and private buildings, and attacks against civilian lives and
properties, as reported by the Commanding General of the Armed
Forces, have seriously endangered and still continue to endanger
the public safety;
WHEREAS, these acts of sedition, insurrection and rebellion have
been perpetrated by various groups of persons well organized for
concerted action and well armed with machine guns, rifles, pistols
and other automatic weapons, by reason whereof there is actual
danger of rebellion which may extend throughout the country;
WHEREAS, 100 leading members of these lawless elements have
been apprehended and are presently under detention, and strong
and convincing evidence has been found in their possession to show
that they are engaged in rebellious, seditiuos and otherwise
subersive acts as above set forth; and
WHEREAS, public safety requires that immediate and effective
action be taken to insure the peace and security of the population
and to maintain the authority of the government;
NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the
Philippines, by virtue of the powers vested upon me by Article VII,
section 10, Paragraph (2) of the Constitution, do hereby suspend the
privilege of the writ of habeas corpus for the persons presently
detained, as well as all others who may be hereafter similarly
detained for the crimes of sedition, insurrection or rebellion, and all
other crimes and offenses committed by them in furtherance or on
the occassion thereof, or incident thereto, or in connection therewith.
The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relive persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. (Villavicencio vs, Lukban, 39 Phil.,
778,788.) It secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have ascertained if he
is held under lawful authority. (Quintos vs. Director of Prisons, 55 Phil., 304,
306.)
The necessity for suspending the writ of habeas corpus in 1905 arose
obviously from the fact that it was "impossible in the ordinary way to conduct
preliminary investigations before the justice of the peace and other judicial
officers," so that undoubtedly it was never aimed at the indefinite detention of
suspects, but at an investigation (other than judicial) to determine whether
there is evidence sufficient for the filing in court of the necessary information.
The immediate cause for the issuance of Proclamation No. 210 on October
22, 1950, was the apprehension and detention of 100 alleged leading
members of lawless elements in whose possession strong and convincing
evidence was allegedly found showing that they are engaged in rebellious,
seditious and otherwise subversive acts. The privilege of the writ of habeas
corpus had to be suspended not only because it was desirable for the
prosecuting officials to have sufficient time to investigate and file the
necessary charges in court, but also because a public officer or employee
who shall detain any person for some legal ground and shall fail to deliver
such person to the proper judicial authorities within the period of six hours,
shall suffer the penalties provided in article 125 of the Revised Penal Code.
In other words, the only effect of Proclamation No. 210 is that any person
detained thereunder has no right to have the cause of his detention
examined and determined by a court of justice through a writ of habeas
corpus.
The important question is whether or not, after a person covered by the
Proclamation has been formally indicted in court by the filing against him of
an information charging rebellion with multiple murder, arson and robberies,
he may be entitled to bail.
Under paragraph 16, Section 1, Areticle II of the Constitution,all persons shall
before conviction be bailable by sufficientsureties, except those charged with
capital offenses when evidence of guilt is strong. The crime of rebellion or
insurrection is certainly not a capital offense, because it is penalized only
by prision mayor and a fine not to exceed 20,000pesos. The privilege of the
writ of habeas corpus and the right to bail guaranteed under the Bill of Rights
are separate and co-equal. If the intention of the framers of the Constitution
was that the suspension of the privilege of the writ of habeas corpus carries
or implies the suspension of the right to bail, they would have very easily
provided that all persons shall before conviction be bailable by sufficient
sureties, except those charged with capital offenses when evidence of guilt is
strong and except when the privilege of the writ of habeas corpus is
suspended. As stated in the case of Ex parte Miligan, 4 Wall. 2, 18 Law Ed.
297, the Constitution limited the suspension to only one great right, leaving
the rest to remain forever inviolable.
It is essential to the safety of every government that, in a great crisis,
like the one we have just passed through, there should be a power
somewhere of suspending the writ of habeas corpus. In every war,
there are men of previously good character, wicked enough to
counsel their fellow citizens to resist the measures deemed
necessary by a good government to sustain its just authority and
 overthrow its enemies; and their influence may lead to dangerous
combinations. In the emergency of the times, an immediate public
investigation according to law may not be possible; and yet, the peril
to the country may be too imminent to suffer such persons to go at
large. Unquestionably, there is then an exigency which demands that
the government, if it should see fit, in the exercise of a proper
discretion, to make arrests, should not be required to produce the
person arrested in answer to a writ of habeas corpus. The
constitution goes no further. It does not say after a writ of habeas
corpus is denied a citizen, that he shall be tried otherwise than by the
course of common law. If it had intended this result, it was easy by
the use of direct words to have accomplished it. The illustrious men
who framed that instrument were guarding the foundations of civil
liberty against the abuses of unlimited power; they were full of
wisdom, and the lessons of history informed them that a trial by an
established court, asisted by an impartial jury, was the only sure way
of protecting the citizen against oppression and wrong. Knowing this,
they limited the suspension of one great right, and left the rest to
remain forever inviolable.
The purpose of the proclamation has already been accomplished inrespect of
those who are now facing charges in court, to be dealtwith necessarily in
accordance with the constitution and the law.The court, in passing upon
petitions to bail and granting thesame in proper cases, does not inquire into
the cause of their detention which is plainly under and by virtue of
commitmentsissued by the court upon the filing of the information forrebellion
with multiple murder, arson and robberies. The court,therefore, cannot be
said to be interfering in an act of theExecutive, for it cannot be seriously
contended that, after thefiling of the information, the accused continues to be
underdetention as a result of an executive commitment and stillcovered by
the suspension of the privilege of the writ of habeas corpus. otherwise, the
suspension will operate as a judgment of conviction, in violation of the
constitutional mandate that no person shall be held to answer for criminal
offense without due process of law (Article III, section 1, Paragraph 15). "The
laws which protect the liberties of the whole people must not be violated or
set aside in order to inflict, even upon the guilty, unauthorized though merited
justice." Ex parte Milligan, supra.
The right to bail, along with the right of an accused to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses
in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends
to aid the accused to prove his innocence and obtain acquittal. If it be
contended that the suspension of the privilege of the writ of habeas
corpus includes the suspension of the distinct right to bail or to be
provisionally at liberty, it would a fortiori imply the suspension of all his other
rights (even the rights to be tried by a court) that may win for him ultimate
acquittal and, hence, absolute freedom. The latter result is not insisted upon
for being patently untenable. it is not correct to say that, if a person covered
by Proclamation No. 210 is not entitled to be released before he is indicted in
court, there is more reason to hold that he should not be released after an
information is filed against him, because it is then logical to assume that the
Government holds sufficient evidence. If he cannot secure his release before
the filing of the information, it is because, in view of the suspension of the
privilege of the writ of habeas corpus, the court cannot look into the legality of
his detention under an executive act, and not because he is assumed to be
guilty. As already stated, after the filing of the information, in granting to bail
in proper cases, the court does not determine the legality of his prior
detention which has already been superseded by a detention underjudicial
process, but merely proceeds with and carries into effect its jurisdiction over
the criminal case and grants a right guaranteed by the Constitution. Besides,
it is significant that in all criminal prosecutions the accused shall be
presumed to be innocent (Article III, Section 1, Paragraph 17).
We are not insensitive to the proposition that the very nature of the crime of
rebellion suggests the likehood that a person accused thereof will jump his
bail. The remedy, however, is unfortunately not in the hands of the court. The
lawmakers or the framers of the Constitution should have made the offense
capital or even unbailable.
In the cases now before us, the accused have been charged with rebellion so
complexed with other offenses as to make them capital. Their right to bail is
accordingly not absolute and may be denied when evidence of guilt is strong.
The filing of the information implies that the prosecution holds sufficient
evidence for conviction, and it is fair to suppose that the court will duly
exercise its judgment when called upon to pass on the question of whether or
not the evidence of guilt is strong. At any rate, on admission to bail, the
accused is delivered to the custody of his sureties as a continuance of the
original detention. (U.S. vs. Sunico and Ng Chiong, 40 Phil. 826).
And it should be borne in mind that if the worse comes to the worst — to the
extent that the security of the State is in factimperiled and the regular
constitutional processes can no longerbe observed with general safety to the
people, — the President isauthorized by the Constitution (Article VIII, Section
10,Paragraph 2) to "place the Philippines or any part thereof undermartial
law." Even then, the primordial objective should be a"regime of justice" as
contemplated in the Preamble of the Constitution. The stubborn fact,
however, is that the meresuspension of the privilege of the writ of habeas
corpus is anadmission that the courts can function and are
functioningnormal; otherwise, there is no need for the suspension as therewill
be no court to grant the writ.
Reyes and Jugo, JJ., concur.
PABLO, J.:
En tiempos normales la Constitucion de Filipinas rige en su totalidad.
Algunos de los derechos individuales, como el derecho del accusado a la
libertad provisional bajo fianza, se hace efectivo por los juzgados por orden
perentoria. Cuando a un accusado se le detiene y no se resuelve su peticion
de libertad bajo fianza, puede acudir a un tribunal de superior categoria por
medio de un recurso de mandamus para obligarle a actuar en un sentido u
otro, que es su deber imperativo. Un condenado por un juzgado sin
jurisdiccion acude en certiorari a un tribunal superior para pedir la anulacion
de la condena. Un individuo ilegalmente detenido por alguna autoridad u otra
persona, puede acudir a los tribunales por medio de un recurso de habeas
corpus y pedir que se le ponga en libertad. Los mismos abogados en
ejercicio indistintamente utilizan un recurso u otro. Existe confusion en
cuanto a que clase de recurso debe ejercitarse en cada caso. No es extraño.
El reglamento dice que "el mandamiento de Habeas corpus se hara
extensivo a todos los casos de confinamiento o detencion ilegales, en los
cuales se prive a una persona de su libertad, o impida a una persona ejercer
sus legitimos derechos en la custodia legal de otra." (Art. 1, Regla 102).
Revisando los expedientes de este Tribunal, se vera que en algunos casos
se empleo el recurso de habeas corpuspara solicitar la libertad provisional
de un acusado mediante prestacion de fianza, como en Herras Teehanke
contra el Director de Prisiones, Juez Rovira y otros1 (43 Off. Gaz., 513);
otros utilizaron los remedios de certiorari y mandamus, como en el asunto de
Marcos y Lizardo contra el Juez de Primera Instancia de Ilocos Norte (VII
Lawyers' Journal, 66); en Payao contra Juez Lesaca, el recurso
de mandamus; en Herras Teehankee contra Rovira y otros2 (42 Off. Gaz.,
717), los recurso de certiorari y mandamus; y en el asunto de Montalbo
contra Juez Santamaria (54 Jur. Fil., 1026), el recurso de mandamus. Este
Tribunal, desatendiendo tecnicismos, decidio los asuntos en el fondo; tuvo
en cuenta no el titulo sino la esencia de la solicitud, Galao y otro contra Juez
Diaz y otro3(41 Off. Gaz., 873).
Estos recursos de certiorari y mandamus no son mas que remedios
derivativos del recurso de habeas corpus; los tres se dirigen a un mismo fin:
el obtener la libertad del que esta indebida o ilegalmente detenido.
Es Estados Unidos el recurso de habeas coprpus se utiliza para la obtencion
de libertad provisional bajo fianza:
It is proper to use the writ of habeas corpus for the purpose of
securing admittance to bail. Ex parte Perkov, 45 F. Supp. (D.C. Cal.
1942), 864.
The writ of habeas corpus may be had for purpose of letting prisoner
to bail in civil and criminal actions as authorized in Constitution." Ex
parte Womack, 71 Pac.2d (Okl. Cr. App. 1937), 494.
"Remedy of person in custody on criminal charge to secure release
on bail is by habeas corpus." Bennett v. State, 118 So. (Fla. 1928),
18.
"Prisoner denied bail or asked excessive bail has absolute right to
invoke habeas corpus remedy, and court's duty to grant writ and to
admit to admit to bail is mandatory." Ex parte Stegman, 163 A. (N.J.
Ch. 1933), 422.
"Person under indictment for capital offense are entitled as of right to
hearing by way of habeas corpus upon issue of bail." Ex parte
Readhimer, 60 S.W. (2d) (Tex Cr. App. 1933), 788.
"The use of the writ of habeas corpus to speedily determine whether
a person charged with an offense is entitled to bail before trial and
conviction is authorized by law, so as to render effective the rights to
bail and to liberty as provided by the Constitution." Ex parte
McDaniel, 97 So. (Fla. 1923), 317.
"The use of the writ of habeas corpus to speedily determine whether
a person charged with an offense is entitled to bail before trial and
conviction is uthorized by law." Ex parte Hatcher, 98 So. (Fla. 1923),
72. "A writ of habeas corpus is an appropriate and proper remedy in
aid of bail." Mozorosky v. Hurlburt, 198 Pac. (Or. 1921), 556.
"Where a lieutenant in a military posse, seeking a deserter,
waswounded by a shot in the dark, and fired at the place where
hesaw the flash, and killed the shooter, who was found near anillicit
still, and, although the lieutenant was confinedthereafter by the
federal authorities for over a year, the stateauthorities had taken no
steps to bring the charge made againstthe lieutenant and another
member of the posse by indictment to ahearing conclusion, habeas
corpus would issue to release bothdefendants on bail." State of
Florida v. Tooher, 283 F. (U.S.D.C.Fla. 1922) 845."A person charged
with being an accessory before the fact to murder by counseling,
hiring, or otherwise procuring murder to be committed is charged
with a capital offense under statutes if this state, and when held in
actual custody under a mittimus issued by a magistrate to await the
action of the grand jury has a right upon habeas corpus proceedings
before a justice of the Supreme Court to show by all the evidence
proper in the case, including that for the prosecution, that the proof is
not evident and the presumption is not great of the guilt of the
accused of a capital offense, and that consequently the accused is
entitled to bail under the Constitution." (Syllabus No. 1, Ex parte
Nathan, 50 So., 38.).
"On the lower court refusing bail on appeal being taken, habeas
corpus proceedings therefor in the Supreme Court is the proper
practice." (Syllabus No. 2, Packenham v. Reed, 79 Pac., 786.).
"Any one who is in custody on a criminal charge for want of bail is
entitled to a writ of habeas corpusadmission to bail, and the
petitioner need only allege that he is confined for want of bail." (In re
Haigler, 137 Pac., 423.).
"Under Const. U. S. art. 1, section 9, and Const. Wash. art. 1,
section 13, providing that the privilege of the writ of habeas
corpus shall not be suspended unless, in case of rebellion or
invasion, the public safety may require it; section 20, providing that
all persons charged with crime shall be bailable by sufficient sureties
except for capital offenses; and section 22, providing that in criminal
prosecutions the accused shall havethe right to appeal; and Rem.
and Bal. Code, section 1077, providing relative to habeas corpus that
the writ may be had for the purpose of admitting to bail in civil and
criminal actions-habeas corpus will lie to procure the release on bail
of a person held under a body execution pending an appeal from an
order denying a motion to vacate the order for the issuance of such
execution, notwithstanding Rem. and Bal. Code, section 1075,
providing relative to habeas corpus that no court or judge shall
inquire into the legality of any judgment or process whereby the party
is in custody or discharge him when the term of committment has not
expired, when he is held upon any process issued on any final
judgment of a court of competent jurisdiction." (State v. Foster, 146
Pac., 169.).
"Application for a writ of habeas corpus by Kizzie Nathan alleging
that she is unlawfully restrained of her liberty in the actual custody of
the sheriff of Leon county on a charge of accessory before the fact to
murder, by being denied the right to bail; Held: Petitioner was
permitted to give bail with sufficient sureties as required by law." Ex
parte Nathan (Before a Justice of the Supreme Court of Florida), 50
So., 38.
"Appeal from an order in habeas corpus refusing the petitioner
admission to bail who is held on a charge on murder in the first
degree; Held: Looking at all of the evidence offered and viewing in
the light of the presumption of innocence, and remembering that to
grant bail is the rule and the refusal of it is the exception, petitioner is
admitted to bail with sufficient sureties in such sum as may be
reasonable and just in view of all the circumstances of the case." In
re Haighler (Supreme Court of Arizona), 137 Pac., 423.
"Petition for a writ of habeas corpus alleging that an appeal was
taken by the relator from an order of the inferior court denying his
motion to vacate an order of arrest. It appears that one Amy D.
Bronson secured a judgment against the relator for damages for
injury to person, and the judgment being unsatisfied, an execution
was issued against his person and was arrested and taken into
custody by the sheriff until the judgment is satisfied. The petition
prays for an order fixing bail pending determination of the appeal;
Held: The writ of habeas corpus is an appropriate and proper remedy
in aid of bail. Writ of habeas corpus granted and relator released on
bail upon a bond of $3,000." State vs. Foster (Supreme Court of
Washington), 146 Pac., 169.
"Petition for writ of habeas corpus to bail. Petitioner had been
committed to the reform school of the state of Washington until he
should attain the age of 18 years, or until he should otherwise be
regularly discharged therefrom. Thereafter he gave notice of appeal.
Bail was denied pending the hearing on appeal; Held: An infant has
a right of appeal when committed to the reform school, and
incidentally a right to be admitted to bail pending such
appeal. Habeas corpus is an appropriate remedy to bail."
Packenham vs. Reed, 37 Wash., 258, 79 Pac., 786. "The
writ habeas corpus lies where the imprisonment is illegal and no
other remedy is available to secure a release therefrom. As in the
case of other extraordinary prerogative writs, the writ of habeas
corpus will not ordinarily be granted where there is another adequate
remedy, by appeal or writ of error or otherwise. But, although another
remedy exists, it is not necessarily exclusive so as to oust a court of
jurisdiction to grant relief on habeas corpus, and, in the exercise of
its discretion, the writ may be granted notwithstanding the existence
of another remedy. Generally where another remedy is provided,
failure to take advantage of it until the expiration of the time within
which relief may be had will not authorize relief in habeas corpus, but
in such cases the writ may issue in the discretion of the court.
Defenses which might have been made in an action cannot be
reserved as grounds of attack in habeas corpus upon the judgment
after rendition." (29 C.J., 17-18).
"The fact of the existence of another remedy does not necessarily
preclude a resort of the writ of habeas corpus to obtain relief from
 illegal detention. Thus, while there are decisions to the effect that,
even when a judgment is wholly void, a defendant will not, except in
rare and extraordinary cases, br relieved from imprisonment
thereunder if appropriate relief can be granted by writ of error or
appeal, it is the well established general rule that one restrained of
his liberty by virtue of a judgment, order or sentence, void by reason
of the court's want of jurisdiction to make the same, may be released
by a writ of habeas corpus. whether such release could have been
secured by a writ of error or not. The existence of a statutory remedy
whereby a person restrained of his liberty may be released is usually
held to be cumulative and not exclusive. Thus it has been ruled that
the writ of habeas corpus may be issued to determine the legality of
the confinement of a person in a state insane asylum, without first
compelling a resort to a statutory proceeding for that purpose-at least
where there is some doubt as to the effect of the statute. And it has
been held that a parent may have the writ issued for the prupose of
securing the release of his child from a benevolent institution
although a remedy is given the parent by the act under which the
child was committed; the remedy so provided being merely
cumulative. The discretion of federal courts to issue writs of habeas
corpus or to require the petitioner to resort to appeal of writ of error if
appropriate relief can be thereby obtained as treated eslewhere in
this article." (12 R.C.L., 1186-1187.).
Y el Tribunal Supremo de los Estados Unidos en Ex parte Bollman y Ex
parte Swartwout, (2 Law. Ed., 554) dijo:
"The appropriate process of bringing up a prisoner, not committed by
the court itself, to be bailed, is by the writ now applied for. Of
consequence, a court possessing the power to bail prisoners not
committed by itself, may award a writ of habeas corpus for the
exercise of that power."
Si hemos de atenernos a la definicion del habeas corpus y a los precedentes
americanos citados, el recurso que tiene un acusado para pedir la libertad
bajo fianza es el de habeas corpus. Pero no debe confundirse el remedio de
habeas corpus con el que originariamente obtuvieron los que luchaban por
los derechos individuales contra las demasias del monarca. El habeas
corpus de la legislacion vigente es mas amplio en su esfera de accion; no se
dirige solamente contra las detenciones del Ejecutivo; es un instrumento
procesal contra los juzgados que indebidamente ordenan la detencion de
una persona, contra la Comision de Inmigracion que detiene
provisionalmente a los que estan condenados a deportacion, contra el amo
que priva de su libertad al criado, contra la dueña de la casa de hetairas que
priva a una pupila de su libertad, contra el superintendente de un hospital
que detiene ilegalmente a un paciente, contra el Senado de Filipinas y de los
Estados Unidos por la detencion de un condenado por desacato, contra la
Camara de Representantes de los Estados Unidos, contra cualquiera, ya
sea un funcionario publico o no, que en una u otra forma detiene ilegalmente
a alguna persona.
En casos de invasion, rebelion o insurreccion, o peligro inminente de ellas,
cuando la seguridad publica lo requiera, el privilegio del mandamiento de
habeas corpus se suspende, o se declara la ley marcial en cualquier parte o
en toda la nacion.
En Estados Unidos no se determina quien puede suspenderlo. Su
Constitucion dice asi:
"The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases Of Rebellion or Invasion the public safety may
require it.(Par. 2, Sec. 9, Art. I, Constitution of the United States).
En Filipinas la Asamblea Constituyente tuvo a bien confiarlo al Presidente. El
Articulo III, parrafo 14 de la Constitucion dice textualmente:
"El Presidente sera el generalisimo de todas las fuerzas armadas, y,
siempre que fuere necesario, podra llamarlas para impedir o sofocar
toda manifestacion de violencia ilegal, invasion, insurreccion o
rebelion. En caso de invasion, insurreccion o rebelion, o peligro
inminente de ellas, cuando la seguridad publica lo requiera, podra
suspender el privilegio del mandamiento de habeas corpus o
declarar la ley marcial en todo el pais o en cualquier parte de el.
En 22 de octubre de 1950, el Presidente suspendio el privilegio del habeas
corpus para aquellos detenidos por rebelion o insurreccion. La razon por que
se toma esta medida descansa en la seguridad publica.
No es un secreto para nadie las frecuentes matanzas a sangre fria de niños,
viejos y mujeres, las emboscadas de pasajeros inocentes, de la viuda del
Presidente Quezon y comitiva, el robo a sangre y fuego, el secuestro de
particulares y de funcionarios publicos; el de inspectores de eleccion esta a
la orden del dia; son victimas del secuestro personas pertenecientes a
diferentes partidos. No solamente existe el deseo de derrocar al gobierno
establecido sino tambien el de sembrar el terror y la anarquia en todas
partes para irustrar la expresion libre del sufragio, que es el alma de la
democracia. Para impedir la ola destructora de rebelion o insurreccion, el
Poder Ejecutivo, como medida de propia preservacion, detiene a todos
cuantos tienen intervencion en ella. Si se suelta a los detenidos, pueden
volver a las andadas, pueden reunirse con sus compañeros y reduplicar su
obra de destruccion; de ahi la necesidad de suspender el recurso de habeas
corpus. El gobierno, escudado por la suspension del habeas corpus, podria
con facilidad suprimir la rebelion e insurreccion deteniendo indefinidamente a
todos los sospechosos; pero eso daria lugar a muchas injusticias, la
detencion de inocentes. Consciente de su obligacion de velar por los
derechos individuales, no se vale de este privilegio: detuvo pero entrego los
detenidos a los tribunales de justicia para que fuesen juzgados. Eso es
motivo de satisfaccion. No quiere obrar solo; no quiere ser despota; solicita
la colaboracion de los tribunales. Desea que los juzgados — y no el —
decidan quienes son los culpables y quienes son los injustamente acusados.
Pero debe entenderse que mientras no esten absueltos, no deben ser
puestos en libertad bajo fianza; su libertad pone en peligro la seguridad del
Estado. En muchos respectos la libertad de los acusados pone en peligro la
seguridad nacional, ya facilitando ayuda economica o provisiones de boca,
proporcionando medicinas o trasmitiendo informes a los que estan en espera
del momento oportuno para dar el golpe de gracia y, lo que es peor aun,
empleando el "sabotage."
Si su detencion por el Poder Ejecutivo esta justificada por la seguridad
publica¿ por que no esta justificada tambien su detencion cuando esta se
ordena por los tribunales de justicia? Es tan peligroso el detenido por
rebelion e insurreccion puesto en libertad por el Poder Ejecutivo como el
acusado de los mismos delitos puesto en libertad por el Poder Judicial. Si el
objeto de la suspension del recurso de habeas corpus es suprimir la rebelion
e insurreccion,¿ no es un contrasentido conceder libertad a los que estan
acusados de rebelion o insurreccion? Soltarlos es ayudarles: es poner en
peligro la salud del pueblo.
Mientras rige la suspension del recurso de habeas corpus, por tanto, los
acusados de rebelion o insurreccion no tienen derecho a la libertad
provisional bajo fianza. Razon fundamental: para ponerles a buen recaudo.
Se arguye que la suspension del privilegio de habeas corpus se aplica
solamente a las detenciones realizadas por el Poder Ejecutivo y no a los
acusados ante los tribunales de justicia.
La proclama no distingue para que clase de detencion esta suspendido el
recurso: es aplicable, por tanto, no solamente a los detenidos por el Poder
Ejecutivo sino tambien a los detenidos por orden judicial. Seria el mayor de
los absurdos privar de este privilegio a los detenidos por el Poder Ejecutivo y
no a los detenidos por los tribunales. No parece sino que los tribunales
tienen que regirse por la parte de la constitucion suspendida. Si es
constitucional privar del recurso de habeas corpus a los detenidos por el
Poder Ejecutivo, con mayor razon se debe privar de ello a los acusados ante
los tribunales porque el ministerio fiscal posee pruebas que demuestran su
culpabilidad.
Se arguye que el Poder Ejecutivo puede detener por todo el tiempo que
quiera sin necesidad de dar cuenta de la detencion, pero en cuanto los
detenidos se han colocado bajo la jurisdiccion de los tribunales, ya tienen
derecho a la libertad bajo fianza. Esta teoria fomenta el establecimiento de
un gobierno dictatorial y autocratico y no quisiera que en Filipinas se
estableciese un gobierno de tal naturaleza.
Si los tribunales ponen en libertad, bajo fianza, a los que atentan contra la
seguridad del Estado, a pesar de la suspension del habeas corpus,
entonces, para afrontar la situacion, el Poder Ejecutivo no acusaria a los
detenidos ante los tribunales: los detendria indefinidamente por su propia
cuenta. Aun mas, detendria a cualquier ciudadano; entonces hasta los
inocentes estarian en peligro. Los tribunales no tendrian oportunidad de
absolver a los inocentes. Esto seria el reinado de la fuerza y no de la ley. Y
eso es precisamente lo que quiere evitar el Poder Ejecutivo al poner a
disposicion de los tribunales a los detenidos por rebelion. Los que pretenden
velar por los derechos individuales, alucinados por el oropel de la decantada
libertad, son los que, tal vez sin quererlo, estan fomentando el
establecimiento de un regimen al estilo Nazi, la ereccion del Poder Ejecutivo
en un despota.
Tal como se desarrollan los acontecimientos, el Poder Ejecutivo entrega los
detenidos a los tribunales de justicia para que puedan ser juzgados cuanto
antes; si son culpables que se les condene, pero si son inocentes, que les
absuelva. No es esto un ordenado proceso legal y constitucional? Por que
obligar de una manera indirecta al Poder Ejecutivo a detener
indefinidamente a los acusados de rebelion sin colocarlos bajo la jurisdiccion
de los tribunales? Es mejor que continue acusandolos ante los tribunales
para que puedan ser juzgados prontamente. Es indispensable que los dos
poderes, Ejecutivo y Judicial, actuen al unisono cuando la seguridad publica
lo requiere.
Si la suspension del privilegio de habeas corpus es infundada y arbitraria,
que lo declare asi este Tribunal; que declare nula la suspension. Pero si los
acontecimientos aconsejan la medida por necesaria e indispensable, que los
detenidos permanezcan detenidos hasta que hayan sido absueltos en
sentencia judicial.
Voto por la denegacion de las solicitudes en las causas Nos. L- 4855 y L-
4964 y por que se declare nula y de ningun valor la orden del Hon. Juez
Abaya del 12 de septiembre de 1951, concediendo libertad bajo fianza a los
acusados.
BENGZON, J.:.
I fully agree to the view of the Chief Justice.
This case (like the other cases of Jose M. Nava et al., vs. Hon. Magno
Gatmaittan G.R. No.L-4855 and Eugeenio Angeles v.s Hon. Gavino S.
Abaya G.R. No. L-5102) in volve the question whether the persidential
proclamation suspention the privilege of the writ of habeas corpus for person
detained for rebellion insurrection has equally suspended their right to bail
after the information has been filed against them.
For purposes of discussion of this central isssue I will assume that the
information against Hernandez describes the crimes of rebellion only
unattended by other crimes that make the offense a capital one. At the end of
this opinion I shall explain my vote as to the disposition of petitioner's cause
the charge against him being rebellion with multiple murder arson and
robberies. .
Now inasmuch as the information does not describe a capital offense,
(rebellion is punished with prision mayor) the prisonae is entitled as a matter
of right to bail. This privilege is vouchsafed to him by the Constitution and the
Rule of Court.
But it is alleged that the Executive proclamation suspending theprivilege of
the writ habeas corpus had the effect of suspendingthe right to bail of all
person charged before the court withcrime of rebellion. I do not think so.
What the proclamationsuspended was the privilege of the writ - not the right
to bail.
The writ of habeas corpus is of immemorial antiquity. Originally there were
several form of writ: (1) habeas corpusad respondendumm (2) ad
stisfaciendum (3) ad prosequendum, testificandum deliberandum (4) ad
faciendum et recipiendum and (5) the great writ of habeas corpus ad
subjiciendum. (Blackstone's Commentaried (Jones) p.1676). The writ
mentioned in the U.S.; Constitution is the writ ad subjiciendum. The
American colonists brought it with them. (Ex parte Yerger 8 Wall [75 U.S.] 85
at p. 95.) And undoubtedly that is the same writ contemplated in our
fundamental laws the Philippines Bill the Jones Law and the Philippines
Constitution. It is an order issued by the court directed to the person
detaining anothe and commanding him to produce the body of the prisoner
with the day and cause of his caption and detention, .. to do submit to and
receive whatsoever the judge or court shall consider in that bahalf.
(Blackstone [Jones] p. 193) explained the character of the writ as " a highly
prerogative writ known to the common law the great object of which is the
liberation of those who may be imprisoned without sufficient cause. It is in the
nature of a writ of error to examine the legality of the Commitment.".
Habeas corpus. Este auto es una orden de producir es decir de presentar el
cuerpo del detenido (habeas corpus, have the body ) ante el Tribuanal para
que este determine sobre la validez del arresto. Encyclopedia Juridica
Espanola Tomo XVII, p.406. .
From the above description and many others of the general natureof the writ,
I deduce that when by Executive proclamtion theprivilege of the writ
of habeas corpus is suspended theJudicicary is thereby prevented from
interfering with theExecutive doing by inquiring into the legality of the
detentionof prisoner held by the Executive department for rebellion
orinsurrection.
Here Hernandez does not ask for a writ of habeas corpus to inquire into the
lagality of his detention. No need for such inquiry because he is now
detained by a judicial warrant of arrest. The Court knows the reason for the
detention. Hernandez assumes for the moment the legality of the restraint;
but files a motion in the case initiated against him (Criminal Case No. 15841)
that he be allowed to go on bail. He did not petiton for habeas corpus.
In this Court he is not asking for habeas corpus he pleads
for mandamus and\or certiorari. The cases decided by this Court show that
his request should be granted.
Mandamus; Sy Guan vs. Amparo 45 off Gaz.,
2447. Certiorari Ocampo vs. Bernabe 43 Off
1632. Certiorariand Mandamus; Teehankee vs. Rovira 422 Off Gaz.,
717.
For one thing the Contitution does not provide that all accused persons shall
be guilt is strong or when the President has suspended the writ of habeas
corpus. .
The proclamation of the Chief of Executive did not have the effect of
depriving the Court of their privilege to issue the writ of habeas corpus at the
request or on behalf of prisoners held for rebellion insurrection. The
proclamation did not suspend all the constitution right of such prisoners. Only
the right to habeas corpus. Needless to say martial rule has not been
established, luckily for all. .
The English themselves themselvees from whom Americans Inherited the
practice of the suspension believe that the so-called suspension of
the Habeas corpus Act is not in reality more than suspension of one
particular remedy for the protection of personal freedom. (Ennyc.
Britanica, Habeas corpus) Other remedies remain intact. The petition to go
on bail is one them. Pertinent excepts from American decision confirm this
trend of thought.
1. "The illustrious men who framed that instrument (Constitution)
limited the suspension to one great right and left the rest to remain
forever inviolable. "Ex parte Miligan 18 U.S. (Law Ed.) 281, 297.
2. "This clause (suspension of the writ) refers only to the writ
of habeas corpus ad subjiciendum when a person stand commited or
detained as a prisoner for a crime and does not include the other
writ. This involved a construction of a similar clause in the contitution
of the Confederate states. "On so grave a subject every word used
must be supposed to have some import; and every word used in this
clause does not import that the power of suspension has reference
only to the writ applicable in the case of persons imprisoned for
crime. "The privilege." When one is committed to wait his trial for a
crime, it is a privilege to be alowed a writ whereby the legality of his
arrest may be inquired of, and he may be discharged or admitted to
bail. But when one who has not committed and is not supposed to
have committed a criminal offense is wrongfully restrained of his
liberty, that he should be allowed to institute a civil siut to be relieved
from the confinement is a right which every state is bound to secure
at all times to its citizens; and these words must import that the
power of suspension refers only to the former class of cases,
otherwise no meaning can be attached to them." Matter of Cain,
1864, 2 Winst. L., N.C., 145. (Note, United States Code Annotated,
Constitution Vol. I p. 747.).
3. "The suspension of the writ of habeas corpus does not legalizea
wrongful arrest and imprisonment; it only deprives the partythus
arrested of the means of producing his liberty, but does notexempt
the person making illegal arrest from liability todamages, in civil
prosecution." Griffin vs. Wilcox, 1863, 21 Ind.732, (Note, United
States Code Annotated, Constitution Vol. Ip. 748.).
4. "The suspension merely disturbed "one of the safeguards of civil
liberty." (Sinclair vs. Hiatt 86 Fed. Supp. 828).
It is contended that because habeas corpus is one of the remedies 1 to
obtain personal freedom thru bail after the information has been presented,
the suspension of the writ, suspended the right to bail. The answer is that the
proclamation suspended only that particular remedy (habeas corpus) to
obtain personal freedom. Not the other remedies to secure bail. It is
pretended that the suspension of the writ also suspended the right of the
prisoners to defend themselves, to present witnesses, to face the accusers
etc. because these rights would be ways to obtain their freedom?.
An illustration will serve to emphasize the point. Hernandez like all accused
persons, is entitled to speedy trial. If the prosecution or the court should
unreasonably delay his trial, he may resort either to mandamus, or habeas
corpus(Conde vs. Rivera, 45 Phil., 650; Mercado vs. Santos, 66 Phil., 215).
Now, simply because the writ of habeas corpus(one of his remedies) has
been suspended, would it be reasonable to hold that Hernandez has also lost
the right to speedy trial, and that he may not enforce such right
by mandamus? Quod erat demonstradum. Suspension of one of two
remedies does nto suspend the other.
Another example: Suppose after trial, Hernandez is sentenced to life
imprisonment, although the Penal Code punishes rebellion with prision
mayor (I assume he is charged with rebellion only). Obviously that would be
plain error, which Hernandez may rectify either by habeas
corpus (Cruz vs. Director of Prisons, 17 Phil., 269) or by an ordinary appeal
to this Court. Will anybody contend that simply because the writ has been
suspended, Hernandez may not apply to this court for correction of the
decision, thru an ordinary appeal?.
It is urged that bail should not be allowed those charged with rebellion,
because the moment they are released they will rejoin the dissidents and
resume their destructive activities against the established government
organizations. But as long as the Legislature has not deemed it proper to
make rebellion a capital offense, we do not see how courts may refuse bail
consistently with the constitutional precept that "All persons shall before
conviction be bailable by sufficient sureties, "except those charged with
capital offenses when evidence of guilt is strong.".
And in my opinion, one of the surest means to ease the uprising is a sincere
demonstration of this Government's adherence to the principles of the
Constitution together with an impartial application thereof to all citizens,
whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinlupa 2,
without benefit of those fundamental privileges which the experience of the
ages has deemed essential for the protection of all persons accused of crime
before the tribunals of justice. Give them assurance that the judiciary, ever
mindful of its sacred mission will not, thru faulty cogitation or mispalced
devotion, uphold any doubtful claims of Governmental power in diminution of
individual rights, but will always cling to the principle uttered long ago by
Chief Justice Marshall that when in doubt as to the construction of the
Constitution, "the Courts will favor personal liberty" (Ex parte Burford 3
Cranch [7 U.S.] Law. Ed. Book 2 at p. 495). Under normal conditions-when
no suspension has been decreed-a person under detention may ask for a
writ of habeas corpus to acquire into the legality of the restraint. If the courts
finds that he is illegally detained, it will order his release. If the courts finds
that he is legally held for a crime which is bailable, the court may permit him
to go on bail.
When normalcy is disturbed and the Executive decrees a suspension of the
writ he thereby erects, so to speak, a fence around those detained for
rebellion or insurrection, a fence which the judiciary may not penetrate by the
writ of habeas corpus. The Executive thereby practically tells the judiciary:
"Please do not meddle with these prisoners. I am holding them for
investigation or for purposes of quelling the rebellion." So long as the
proclamation subsists, just so long will the Courts keep away in obedience to
Constitutional inhibition. But when the Executive, thru the fiscals, files an
information and requests the Court to punish a particular rebel, the reason for
non-interference ceases, because he thereby takes the prisoner out of the
fenced premises and brings him into the Temple of Justice for trial
andpunishment. Thereby he sets in motion a train consequences resulting
from the rituals of the Temple: the principles regulating criminal procedure,
e.g., proceedings to obtain bail or to enforce other rights of the prisoner at
the bar. Indeed it would be preposterous and paradoxical for the Executive in
sopresenting the detainee expressly to stipulate, "Here is the prisoner, judge
him; but you may not release him for confinement.".
I admit that by virtue of the Presidential proclamation, personsdetained for
rebellion against whom no information has been filedmay not ask for bail.
The admission must be made because, underthe rules, they may obtain bail
only by inquiring into the causeof detention i.e., by the writ of habeas corpus,
which is anabeyance. Sublata causa tollitur affectus.
But once the information is formulated, the circumstances change. The
accused may ask bail by mere motion in the case-not necessarily by habeas
corpus proceedings. The suspension order does nto preclude that motion-it
only bars the remedy of habeas corpus. The suspension paralyzed one of
the means to obtain freedom-it could not extinguish the ultimate objective.
And if his motion is denied where he is charged merely with rebellion-he will
be entitled to mandamus to compel the judge to grant bail. 3 If he is booked
for a capital offense and the court, refusing to exercise its discretion to
determine whether the evidence is strong or not, flatly denies bail invoking
the suspension, mandamus will lie to compel the judge to exercise his
discretion to determine whether or not the evidence is strong and act
accordingly. 4 However if such court, exercises its discretion, but without any
proof denies bail declaring that the evidence is strong or makes no finding on
that point certiorari will surely be available to redress judicial abuse of
discretion. 5.
The strom center of these litigations has been represented as a clash
between individual liberty and governmental security. A third aspect should
not be overlooked: Curtailment of the power adjudication.
Fundamentally the three great branches of the Government are independent,
and none may encroach upon territory of the other except in those few
instances specially allowed by the Constitutional structure. It should follow as
a matter of judicial dialectics that when the line of separation projectsinto the
other's domain, and alternative choices are equallyavailable, the part of
wisdom is to follow the course that,deflecting the angle of deviation, reduces
the encroachment to aminimum consistent with the intention of the framers of
theConstitution. Now, the suspension of the writ undeniably effectsa
temporary invasion of normal judicial territory; yet it isauthorized by the
Constitution for reasons of paramountnecessity. The metaphorical "fence"
previously mentioned isconstructed on judicial realm. Therefore the Courts,
in loyaltyto original apportionment, and the basic theories of
republicaninstitutions, should not enlarge its area by approving theextension
ably but erroneously sponsored by the prosecution.Logical should be the
view that when the Executive submitted theinformation, he invited the Court
to look into the case of theaccused here, and thereby waived the suspension
of the writ,opening the fictional fence, in so far as this particulardetainee is
concerned. Unless it could be pretneded 6 that after this detainee is
acquitted by the Court of the charges of •rebellion, the Executive may still
legally detain him, keep him •within the enclosure, on the pretext that the
remedy of habeas •corpus is not available to secure his release from
custody.
I have heretofore mentioned two alternatives equally available. In thus
describing the situation I have favored the opposing school of thought. For in
truth the competing theories are not equal of validity. The one maintains that
the right to bail has been impliedly suspended with the suspension of the
writ; whereas the other asserts that the right to bail expressly guaranteed by
the Constitution, not only as individual privilege but also as judicial
prerogative. Express guarantee versus implied derogation. Considering that
repeals by implication are never favored, the choice offers no doubt: the
desired advantage to the prosecution should not outbalance the right of the
prisoner nor the powers of the Court.
Nevertheless the conflicting propositions may be, and are, coordinated and
reconciled in the manner herein advocated: bail before the information is filed
has been suspended; after the information is filed, the right to bail emerges in
full force and effect.
Before concluding I wish to touch upon argument that although the only
exception expressly mentioned to the right to bail is "when the offense is
capital and the evidence of guilt is strong" another implied exception should
be "when the writ of habeas corpus is suspended." By its effect section 1 (14)
of Article III (about suspension) appears to be an exception to section 1(16)
(right to bail) of same Article III. But a little reflection will show that the
paragraph about suspension is complete in itself, containing the general rule
and exception: the general rule being "no suspension of the writ" and the
exception, "cases of invasion" etc. Consequently it may not be deemed as an
exception to another paragraph, specially because it relates to procedure
whereas the paragraph about bail is substantive right. And this paragraph
about bail is complete in itself, with the general rule and one exception. By
the way, "an express exception excludes others." In re Estate of Enriquez 29
Phil., 167. (See also Chartered Bank vs.Imperial 48 Phil., 931.).
My vote in this case:.
Amado V. Hernandez is actually charged with rebellion with multiple murder,
arsons and robberies. That is a capital offense. But he is entitled to bail just
the same unless the evidence of his guilt is strong. The lower court received
no evidence, in the belief that the proclamation suspended bail. The error is
plain and the right of petitioner to bail should be upheld. The respondent
judge should therefore be directed to receive evidence for the People and
then, determining whether it is strong or not, should deny or grant bail
accordingly. Needless to say, the burden of proof lies on the prosecution.
(Moran Comments 3d. Vol. II, p. 676).
Bengzon, J. (in L-4855):.
In view of my opinion in Amado V. Hernandez vs. Hon. Agustin P. Montesa
G.R. No. L-4964 I vote that the respondent judge be required to hear the
evidence for the prosecution and act accordingly. What I said about
Hernandez right to bail applies equally to the rights of herein petitioners.
PADILLA, J.:.
I am the opinion that paragraph 14, section 1, Article III, of the Constitution,
which prohibits the suspension of the privilege of the writ of habeas corpus,
and paragraph 16 of the same section and article, which grants to all persons
before conviction the right to be released on bail by sufficient sureties, except
to those charged with capital offenses when the evidence of guilt is strong,
and enjoins that excessive bail be not required, may be invoked and applied
in normal times or during period of normalcy in the life of the nation, for such
is the import of paragraph 14 if the exception is to be taken into account. The
exception has reference to the suspension of the privilege during such period
as the necessity for it shall exist, which may be decreed by the President in
cases of invasion, insurrecion or rebellion, or imminent danger thereof, when
the public safety requires it (Article VII, section 10, paragraph 2, of the
Constitution). It envisages and is intended to confront an abnormal situation
pregnant with perils and dangers to the existence of the State. The exception
in paragraph 16, unlike the one in paragraph 14, refers to the denial of bail
during a period of normalcy.
Unless martial law has been declared and proclaimed by the President, any
citizen or inhabitant of the Republic may apply to the courts of a writ
of habeas corpus. However, if upon the face of the petition it appears that the
person in whose behalf the writ is applied for is held, detained, or deprived of
his liberty by virtue of the proclamation suspending the privilege of the writ, or
if in return to the writ by the agent of the law holding or detaining a citizen or
inhabitant or depriving him of his liberty, he states that such citizen or
inhabitant is being held, detained, or deprived of his liberty because he is
suspected of having something to do with invasion, insurrection or rebellion
and such allegation is found true, the court which the writ is returned need
not go further than to dismiss or deny the petition because of the suspension
by the President of the privilege of the writ of habeas corpus. If that is what
the Court could do in the case of a detained suspect, there would be no
cogent reason for the Court to act otherwise in the case of a detained person
already indicted or charged with the crime of rebellion or insurrection,
because then the detention of such person would be more justified.
When the President decrees the suspension of the privilege of the writ, he
does it under and pursuant to a constitutional authority (Article VII, section
10, paragraph 2, of the Constitution). He must have reasons for the exercise
of the power and authority with which he is clothed by the Constitution. The
Coordinate Judicial Department cannot inquire into the constitutionality and
sufficiency of such reasons which led him to exercise the power. The
possibility of abuse of the power does not argue against it existence, does
not destroy or remove it and does not vest in the coordinate Judicial
Department the power or authority to inquire into the constitutionality,
propriety and sufficiency of the causes which prompted the President to
exercise the power conferred upon him by the Constitution. He, too, more
than anybody else, will be judged by posterity. And any citizen chosen by the
people to hold such an exalted position is amenable also to the hearkenings
of his conscience and fearful of an adverse verdict of history. And he knows
too well that he cannot hold the office for more than eight year.
Those who contend that when the Executive Department turns over a
detained person suspected of subversive activities to the Judicial
Department, the control of such person by the Executive ceases and the
jurisdiction of the competent court attaches and begins and the legal process
must be followed, such as the granting of bail before conviction, except to
those charged with capital offenses when evidence of guilt is strong, and
those who claimed that if the competent court may acquit such person of the
charge of rebellion or insurrection, it also must be deemed to possess the
authority to grant bail which is less than the power to acquit, lose sight of the
fact that the decree suspending the privilege of the writ of habeas corpus is
authorized by the Constitution in times of abnormality and the right to be
released on bail may be secured and is granted only in times of normalcy.
The prosecution of a person detained under the terms of the proclamation
suspending the privilege of the writ or the turning over of such person to the
competent court does not mean that such court may ignore, disregard or
brush aside the terms of the proclamation or decree, because the latter has
the effect of the law promulgated under and pursuant to a constitutional
authority. The competent court must take into consideration and apply the
terms of the proclamation to such detained person against whom an
information has been filed. The eventuality of an acquittal does not withdraw
such person from the effects, force and vigor of the proclamation or decree.
The acquittal of such person upon the merits of the case means that he is
innocent of the charge and hence entitled to his immediate release. His
acquittal on groundsother than upon the merits of the case entitles him to an
immediate discharge by the trial court, but he may again be apprehended
and detained under and pursuant to the terms of the proclamation. The filing
of an information for rebellion of insurrection against such person is an act of
good faith on the part of the agents of the Executive Department which this
Court should encourage and not stifle, so that his guilt or innocence may be
determined judicially. If this Court were to construe that, after the filing of the
informations against such person, the proclamation or decree suspending the
privilege of the writ of habeas corpus ceases to have force and effect as to
him, such a construction would have the effect of goading the agents of the
Executive Department not to file an information and to detain him indefinitely
or as long as they believe his detention is necessary. The filing of an
information only means that the competent court should proceed to try the
person charged with rebellion, or insurrection and, if found guilty, to impose
upon him the penalty provided by law or, if found innocent, to direct his
immediate discharge. It cannot and does not mean that the competent court
may order his release on bail by sufficient sureties, because that would be a
violation of the proclamation or decree which has the effect of law.
For these reasons, I believe that after the filing of aninformation for rebellion
or insurrection, the defendant chargedwith that crime is not entitled to be
released on bail during theeffectivity of the proclamation or decree
suspending theprivilege of the writ og habeas corpus.
TUASON, J.:.
Under constitutional guaranty bail is a matter of right which no court or judge
could properly refuse in all cases beyond the exceptions specified in the
Constitution. The meaning of this fundamental provision is that a party
accused of any and every bailable offenses shall have the inestimable
privilege of giving security for his attendance at court and shall not be
imprisoned. (6 C.J. 893.).
The Constitution will be searched in vain for any provision that abridges this
right. Any argument in support of the contention that the suspension of the
writ of habeas corpus carries with the suspension of the right to bail, and has
to be, based on interference. I do not believe that the curtailment of the right
to bail is a normal, legal, or logical outcome of the suspensionof the writ. The
error, I am inclined to believe, arises from a confusion of terms and
misapprehension of the principles underlying the suspension of the writ.
The purpose of the suspension of the writ is to enable theexecutive, as a
precautionary measure, to detain withoutinterference persons suspected of
harboring design harmful topublic safety. (Ex Parte Simmerman, 132 F. 2nd,
442, 446.) TheConstitution goes no further. (Ex Parte Milligan, 4 Wallace 2,
18Law. Ed. 281, 297.) If this is the purpose, the suspension cancontemplate
only cases which, without the suspension, are open tointerference; such
cases are arrests and detentions by theexecutive department. Since the
suspension of the writ isdesigned to prevent the issuance of this
extraordinary remedy,and since the writ issues from the courts but never to
thecourts, it necessarily follows that arrests and detentions byorder of the
courts are outside the purview of the constitutionalscheme.
As stated, the theory of the prosecution stems from a misconception of the
ends pursued by the suspension of the writ. If it is to have any color or
validity, this theory must assume that the Constitution directs positive action
to be taken, orders arrests and detentions to be made. Unfortunately or
fortunately, the Constitution does not do so. The intent of the Constitution in
authorizing the suspension of the writ of habeas corpusno other than to give
tha authorities a free hand in dealing with persons bent on overthrowing the
Government. The effects of the suspension are negative, not positive;
permissive, not mandatory nor even directory. By the suspension, arrests
and detentions beyond the period allowed under normal circumstances are
tolerated or legalized. The Constitution is not in the least concerned with the
disposition of persons accused of rebellion or inserrection, whether or how
long they should be kept in confinement, or whether they should be set at
large. In the nature of the governmental set-up under the Constitution, their
immediate fate is left to the discretion, within reasonable and legal limits, of
the proper departme.
With these distinctions in mind, the query is, on what department of
Government is entrusted the prerogative of deciding what is to be done with
the prisoners charged with or suspected of rebellion or insurrection? The
answer, as I shall endeavor presently to explain, is either the executive or the
Court, depending on who has jurisdiction over them.
All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the courts to keep
their hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.
By the same token, if and when formal complaint is presented, the court
steps in and executive steps out. The detention ceases to be an executive
and becomes a judicial concern. Thereupon the corresponding court
assumes its role and the judicial process takes its course to the exclusion of
the executive or the legislative departments. Henceforward, the accused is
entitled to demand all the constitutional safeguards and privileges essential
to due process. "The Constitution does not say that he shall be tried
otherwise than by the course of common law." (Ex parte Milligan, ante, 297.)
The Bill of rights, including the right to bail and the right to a fair trial, are
unaffected by the suspension of the writ of habeas corpus. The Constitution
"suspended one great right and left the rest to remain forevinviolable." (Ex
parte Milligan, ante, 297.
Section 1, paragraphs 14 and 16, Title III, and section 10, paragraph 2,
Article VII, of the Constitution are clear and specific requiring no construction.
The two provisions pertain to different spheres of action devolving on
different branches of the Government. To repeat, arrests and detentions for
investigation by the executive are executive affairs beyondthe reach of the
courts. Arrests and detentions after the presentment of proper indictment, are
arrests effected by court warrant and are part of the judicial process with
which the other branches can not meddle. There are no discordant
provisions to reconcile, no conflict to adjust, no obscurity to clarify.
But if we are to resort to construction, the provision which secures the right to
bail ought to prevail. This inestimable right, sanctified by tradition and ratified
by express mandate of the Constitution, can not be abrogated by
implications, much less forced implications drawn from faulty premises. If
there be inconsistency between the clauses of the Constitution hereinbefore
mentioned, which is not true, that which would impair the right to bail should
give a way. The rule, applicable to the interpretations of the constitutions as
well as statutes, leans heavily on the side of a narrow construction of an
exception to the operation of the laws. (56 Am. Jur. Section 431.) And so is a
rule od strict construction generally applied to the interpretation of statutes in
derogation of rights, either of the public or of individuals, or in derogation of
their natural rights, or rights which had been enjoyed from time immemorial.
This rule has been applied to rights to life, liberty, and the pursuit of
happiness. The scope of each statutin derogation of rights, either of the
public or of individuals, or in derogation of their natural rights, or rights which
had been enjoyed from time immemorial. This rule has been applied to rights
to life, liberty, and the pursuit of happiness. The scope of each statutes is not
to be extended beyond the usual meaning of their terms. No act should be
construed as infringing an ordinary right except by unmistakbly clear,
unambiguous, and peremptory language bearing other construction. (Idem
397.).
The precept that the express mention or enumeration of conditions excludes,
by force of logic, conditions not mentioned or enumerated, should not be lost
sight of. And it should not be forgotten, as indicated in Ex Parte Milligan, that
if the purpose of the Constitution was to suspend the right to bail of persons
accused of rebellion or insurrection, it was easy to have accomplished it by
the use of direct words. Nor also that Article VII, section 10, paragraph 2, of
the Constitution says the President may, not shall, suspend the privileges of
the writ. In fact Article III, Section 14, is couched in negative terms. (The
privilege of the writ of habeas corpus shall not be suspended except in cases
of invasion, insurrection, or rebellion, when the public safety requires it, in
any of which events the same may be suspended wherever during such
period the necessity for sususpension shall exist.), which plainly conveys the
idea that the Constitution is for respecting individual liberty except in case of
necessity.
To the plea that the security of the State would be jeopardized by the release
of the defendants on bail, the answer is that the existence of danger is never
a justification for courts to tamper with the fundamental rights expressly
granted by the Constitution. These rights are immutable, inflexible, yielding to
no pressure of convenience, expediency, or the so-called "judicial
statemanship." The legislature itself can not infringe them, and no court
conscious of its responsibilities and limitations would do so. If the Bill of
Rights are incompatible with stable government and a menace to the Nation,
let the Constitution be amended, or abolished. It is trite to say that, while the
Constitution stands, the courts of justice as the repository of civil liberty are
bound to protect and maintain undiluted individual right.
At this juncture a case not dissimilar to the cases under consideration in their
animating principle came up before a United States (Second) Circuit Court. It
was an application for bail of ten communists who had been convicted by a
lower court of advocacy of violent overthrow of the United States
Government. Among other grounds of opposition to the application,
theGovernment stressed the perile of granting of applicants bail, judged by
their past acts. Mr. Justice Robert H. Jackson, of the United States Supreme
Court, acting as Circuit Justice for the Second Circuit, overruled the
objections in an eloquent decision from which I quote the following
passages:.
"The Government's alternative contention is that defendants, by
misbehavior after conviction, have forfeited their claim to bail. Grave
public danger is said to result from what they may be expected to do,
in addition to what they have done since their conviction. If I assume
that defendants are disposed to commit every opportune disloyal act
helpful to Communist countries, it is still difficult to reconcile with
traditional American law the jailing of persons by the courts because
of anticipated but as yet uncommitted crimes. Imprisonment to
protect society from predicted but uncommitted offenses is so
unprecedented in this country and so fraught with danger of
excesses and injustice that I am loath to resort to it, even as a
discretionary judicial technique to supplement conviction of such
offenses as those of which defendants stand convicted.
xxx xxx xxx.
"But the right of every American to equal treatment before the law is
wrapped up in the same constitutional bundle with those of these
communists. If an anger or disgust with these defendants we throw
out the bundle, we also cast aside protection for the liberties of more
worthy critics who maybe in opposition to the government of some
future day.
xxx xxx xxx.
"If, however, I were to be wrong on all of those abstract or theoretical
matters of principle, there is a very practical aspect of this application
which must not be overlooked or underestimated-that is the
disastrous effect on the reputation of American justice if I should now
send these men to jail and the full Court later decide that their
conviction is invalid. All experience with litigation teaches the
existence of a substantial question about a conviction implies a more
than negligible risk of reversal. Indeed this experience lies back of
our rule permitting and practice of allowing bail where such questions
exist, to avoid the hazard of unjustifiable imprisoning persons with
consequent reproach to our system of justice. If that is prudent
judicial practice in the ordinary case, how much moreimportant to
avoid every chance of handing to the Communist world such an
ideological weapon as it would have if this country should imprison
this handful of Communist leaders on a conviction that our highest
Court would confess to be illegal. Risks, of course, are involved in
either granting or refusing bail. I am not naive enough to
underestimate the troublemaking propensities of the defendants. But,
with the Department of Justice alert to the dangers, the worst they
can accomplish in the short time it will take to end the litigation is
preferable to the possibility of national embarrasment from a
celebrated case of unjustified imprisonment of Communist leaders.
Under no circumstances must we permit their symbolization of an
evil force in the world to be hallowed and glorified by any semblance
of martyrdom. The way to avoid that risk is not to jail these men until
it is finally decided that they should stay jailed.".
Let us bear in mind that in the case just cited, the prisoners had already been
found guilty and sentenced, and their right to bail lay within the court's
discretion. In the cases at bar the accused have not yet been tried and so,
unless we accept the theses that the right to bail has been suspended, bail is
obligatory.
There is no denying that risk is present in every case of granting liberty on
bail. The wise men who framed the Constitution did not overlook the
possibility of escape; it was and is a matter of common knowledge and
occurrence. But the possible escape of accused was considered a lesser evil
than the imprisonment of persons who may be innocent, and are
presumedinnocent by law.
As a measure of expediency, denial of bail in the instant cases would not do
away with the feared danger that the defendants might resume their
nefarious activities. Temporary liberty on bail is not as perilous to public
peace and order as complete freedom. The defendant's acquittal, which is by
no means a remote probability, would leave the door wide open to the
dreaded consequences. The point is, if the Government could afford the risk
involved in acquittal, it could the risk that goes with conditional liberty during
the short period that it takes to dispose of these cases.
The remark by the Judge Advocate General that by the reason of the
suspension of the writ of habeas corpus the Army could lawfully re-arrest and
re-jail the defendants if they were absolved, happily is not the law. We are
not to suppose that the courts are being made to work in vain, that their
decisions could be ignored if they do not meet with the approval of one of the
parties.
Rebellion is punishable by prision mayor and persona accused of this crime
are of right entitled to bail. The inclusion of murders, arsons and kidnappings
in the information must be regarded as aggravating circumstances, as in
treason, and would not authorize the imposition of a penalty higher than the
maximum provided for rebellion. Separate charges for murder, arson, and
kidnapping ought to be instituted if the defendants are to be punished for
these offenses. Murder, arson, or kidnapping is not an essential element of
the definition of rebellion. There is no such creature known to law as the
complex crime of rebellion or insurrection with murder, etc. For this reason I
am of the opinion that Judge Abaya did not err in disregarding the offer-
granting there was such an offer-of the City Fiscal to show that the evidence
against the accused is strong.
BAUTISTA ANGELO, J.:.
The cases before us involve a fundamental issue which vitally concerns the
security of the State and the welafare of our people. They involve a conflict
between the State and the individual. When the right of the individual
conflicts with the security of the State, the latter should be held paramount.
This is the self evident political shibboleth. The State is the political body that
stands for society and for the people to secure which individual rights must
give way and yield. For as Justice Holmes well said, "when it comes to a
decision by the head of the State upon a matter involving its life, the ordinary
rights of individuals must yield to what he deems the necessities of the
moment" (Moyer vs. Peabody, 55 Law. Ed. 410). Only havingin mind this
fundamental point of view can we determine in its true light the important
case before us which has no precedent in the annals of our jurisprudence.
The President has issued the proclamation under consideration with one
primordial purpose: to promote, protect, and maintain the security of the
nation. To his attention was brought definite evidence showing that groups or
bands of people have taken up arms against the Government, or have
engaged in subversive activities in several provinces, causing disturbances
and hampering the peace and tranquility and the normal pursuits of the
people. Already many had been wounded and killed, and many more are
falling in the body trail. And the victims are civilians and military men alike.
Stern measures had to be adopted to stave off a greater perile. The
President saw no other course of action. A picture of the situation is well
refected in several passages of the Proclamatio.
In the light of the precepts of our Constitution, the issuance of the
Proclamation has no other legal consequence than the limitation of the right
of the individual to his liberty. This is the immediate effect of the suspension
of the privilege of the writ of habeas corpus. No other right or privilege
vouchsafed to him by the Constitution has thereby been affected or impaired
which he is free to invoke in line with the processes prescribed by our
statutes. For, paraphrasing Justice Davis, "The illustrious men who framed
that instrument (whose provisions are similar to ours on this point) limited the
suspension to one great right, and left the rest to remain forever inviolable"
(Ex parte Milligan, 18 U.S. [Law. Ed.] 281, 297). And in our opinion this
limitation or restraint must continue so long as the Proclamation suspending
the privilege of the writ remains pending if it is to achieve its wholesome
purpose, or so long as the detainee is not pronounced innocent by our courts
of justice. If the person indicted is pronounced innocent, the Government has
no cause to hold him in confinement. His case does not come within the
purview of the Proclamatio.
Three fundamental reasons may be advanced in support of the view we have
expressed in the preceding paragraph. These reasons are: (1) the express
terms of the Proclamation; (2) the purpose of the Proclamation; and (3) the
nature of the writ of habeas corpus. Tested under the force and strength of
these reasons, the only logical conclusion that can be drawn in keeping with
sound rules of statutory construction is that the herein petitioner shoube
denied the right to ba.
1. The concluding paragraph of the Proclamation recites that the privilege of
the writ of habeas corpus shall be suspended "for the persons presently
detained, as well as all others who may be hereafter similarly detained for the
crimes of sedition, insurrection, or rebellion, and all other crimes and
offenses committed by them in furthereance or on the occasion thereof,
incident thereto, or in connection therewith". Note the word "detained"
employed in the Proclamation. It is employed without any qualification or
distinction. To detain is "to hold or to keep as in custody" (Webster's New
International Dictionary, 2nd ed.). A person detained for purposes of
investigation is no different from one detained after his arrest resulting from
his indictment. One is held in custody or deprived of his liberty if he is
detained before or after he is actually indicted. The scope of the
Proclamation covers both. It is elementary in statutory construction that
where the law does not distinguish, we ought not to distinguish. This is too
obvious to require elaboration. It is, therefore, safe to conclude that in the
light of the very terms of the Proclamation the suspension of the privilege of
the writ of habeas corpus applies alike to all persons detained for the
offenses enumerated therein whether formal charges had been filed against
them or not.
"The meaning of this provision in the constitution of the United States
would seem to be that, when the public safety is endangered by
rebellion, or invasion, the privilege of this writ (habeas corpus) may
be suspended as to persons suspected of or charged with aiding,
sustaining or promoting such rebellion or invasion, and thereby
 endangering the public safety." (39 CJS754-755; People vs. Gaul, 44
Barb. 98, N.Y., underscoring and word in parenthesis supplied.).
2. As we have already adverted to, the paramount purpose behind the
issuance of the Proclamation is to protect and safeguard public safety or
national security or "to insure the peace and security of the population and to
maintain the authority of the Government". This is the compelling objective of
the Proclamation. The reasons and motives that have compelled the
President to issue it are well narrated therein all pointing in bold relief to the
necessity of placing the persons affected under restraint to prevent them
from strengthening the forces of rebellion and increasing the danger to
national security. If there is justification for their confinement while they are
under investigation for the purpose of determining their participation or
complicity in the acts for which they are held under suspicion, there is indeed
more cogent and plausible reason, if not more, to keep them behind bars
after they are indicted and turned over to the courts for the corresponding
prosecution. Before they are indicted and formally charged, the right to hold
them is merely predicated on suspicion or at best on circumstancial evidence
of doubtful probative value. But after formal charges are filed against them,
the suspicion becomes strengthened and the evidence reinforced and
secure. The military authorities could hold them in confinement indefinitely if
they so prefer, but they chose to turn them over to the courts not merely to
give them an opportunity to prove their innocence but as a proof of their
abiding faith in the processes of democracy. To release them on bail after
their indictment would be to defeat the very purpose of the Proclamation
because its logical result would be to give freedom to those who, if before
were mere suspects, now a real menace because the evidence against them
is stronger and more compelling. We are not prepared to adopt an
interpretation that would give such absurd and inconsistent result.3.
Considering the very nature of the writ of habeas corpus in the light of law
and precedents, the same conclusion can be reached. The law and
precedents on the matter reveal to us that that writ is the only remedy open
to a person held in confinement regardless of its nature. Section 1 of Rule
102, speaking of the scope of that writ, provides that it "shall extend to all
cases of illegal confinement or detention by which any person is deprived of
his liberty". It refers to all cases of confinement, whether before indictment or
thereafter. It does not make any distinction. Precedents available here and
elsewhere point to the same conclusion. They are all agreed that if a person
is deprived of his liberty, his only remedy is to invoke that the writ whether in
the form of mandamus or certiorari. So we said in a case recently decided in
this jurisdiction (People vs. Alano, No. L-1801, May 14, 1946; 45 Off. Gaz.,
No. 11, pp. 4935-4936). It has also been held that this privilege is not only
the right to be discharged from imprisonment, but also the right to give bail if
the offense is bailable, and if not bailable, the right to a speedy trial and
without arbitrary delay. (In re Dugan, 1865-6 D.C. 131, 139, see also in re
Fagan, D.C. Mass. 1863, 2 Sprague, 91, 8 Fed. Cases No. 4604). It is,
therefore, an all-embracingremedy the purpose of which is to test the legality
of restraint irrespective of its nature. If this is the only remedy available to
one deprived of his liberty it logically follows that the Proclamation denies him
the right to bail.
The power of the President to hold in custody indefinitely a person suspected
of any of the acts covered by the Proclamation is not disputed. In fact
opposing counsel are agreed that the President may so hold him so long as
he believes it imperative to safeguard public safety. What they contend is
that while that is an untrammelled prerogative of the Chief Executive granted
to him by the Constitution, his function ends the moment he submits the case
to the courts of justice. From that moment, they contend the executive
function ends and the judicial function begins. Since then the accused is
placed under the absolute power and authority of the courts to be dealt with
in accordance with law and the constitutio.
We have no quarrel with this pretense if carried to its logical conclusion. We
concede that once the case is brought to court the indictee is placed under
the full command of the court who can exercise over him his plenary
jurisdiction. We also concede that the detainee, once indicted, can invoke in
his favor all the rights guaranteed to him by law and the Constitution if he
deems it necessary to protect his interest. And in this sense, he can invoke
his right to a speedy trial, to be defended by counsel, to be confronted by the
cross-examine witnesses, to have compulsory process in his favor, to secure
the attendance of witnesses in his behalf, and to such other rights granted to
the accused in ordinary cases. He may even ask for time to prepare for trial.
This right is not denied to him for the simple reason of his confinement for he
can always confer with his counsel or witnesses if he so desires, and the jail
authorities, to be sure, will not dare deny him this privilege. In other words,
he is not denied due process of law simply because of his confinement. The
only limitation on his right refers to his freedom which, as already stated, has
been withheld from him by the Proclamation. The contention that to deny the
accused the right to bail oncethe court has acquired jurisdiction over him
would be a relinquishment of a judicial prerogative cannot stand in the light of
what we have heretofore stated because that power has been obliterated as
a necessary consequence of the suspension of the privilege of the writ
of habeas corpus. What is not possessed cannot be relinquished. Under the
same token the denial of bail is not a denial of a right because the same has
been withheld by the Proclamation. And good reasons may be invoked in
support of this limitation of right.
It should be noted that the privilege of the writ of habeas corpus and the right
of an accused person to bail are both embodied in the Bill of Rights of our
Constitution. Section 1(14) of article III, refers to the first, and Section 1(16)
of the same Article refers to the second. It should also be noted that the
suspension of the privilege of the writ of habeas corpus hasreference only to
cases of invasion, insurrection, and rebellion, whereas the right of an
accused person to bail refers to all offenses with the exception only of those
involving capital punishment when evidence of guilt is strong. Paragraph 14
is, therefore, a provision which is special or specific in nature, whereas
paragraph 16 is a general one. And it is a well known rule of statutory
construction that "when general and special provisions of a constitution are in
conflict, the special provisions should be given effect to the extent of their
scope, leaving the general provisions to control in cases where the special
provisions do not apply" (16 C.J.S. p. 65); or "where there is a conflicting
specific and general provision, or a particular intent which is incompatible
with a general intent, the specific provision or particular intent will be treated
as an exception, and should receive a strict, but reasonable, construction.
The courts will neither curtail a general rule nor add to an exception by
implication" (16 C.J.S. p. 66). Anunder this rule, the suspension of the
privilege of the writ of the habeas corpus should be treated as an exception
to the general clause providing for bail to all persons charged with offenses
not involving a capital punishment. Another rule is that, "in case of a conflict
in the provisions of a constitution, if one or the other must yield, the one
which, under the law, is the lesser right will yield" (16 C.J.S. p. 65). And
speaking of the two conflicting provisions, there is no doubt that the
suspension of the privilege is a greater right because it involves the security
of the State. The right to bail must, therefore, yield because it merely involves
the right of an individual. .
There are other rules that may be invoked in support of our theory. Thus, it
was held that "in ascertaining both the intent and general purpose, as well as
the meaning, of a constitution or a part thereof, it should be construed as a
whole. As far as possible, each provision should be construed so as to
harmonize with all the others, (yet) with a view to giving effect to eachand
every provision in so far as it shall be consistent with the construction of the
instrument as a whole" (16 C.J.S. p. 62). And "The presumption and legal
intendment is that each and every clause in a written constitution has been
inserted for some useful purpose, and courts should avoid a construction
which would render any portion of the constitution meaningless" (16 C.J.S.,
p. 64).
In the light of the foregoing rules no other conslusion can be reached, for to
hold that because of the incidence of the filing of a formal charge the court
can grant an indictee his liberty under bail as counsel now contend would be
to render ineffective and nugatory the suspension of the privilege exercised
by virtue of a mandate of the same constitution. That is an unreasonable
interpretation. It is our duty to reconcile and harmonize themso that both
provisions can be given effect and validity. We should give them a fair,
consistent and harmonious interpretation.
"It would be an absurdity to say that the action of theexecutive, under
such circumstance, may be negatived and set atnaught by the
judiciary, or that the action of the executive maybe interfered with or
impugned by the judiciary. If the courtsare to be made a sanctuary, a
city of refuge .. they will sooncease to be that palladium of the rights
of the citizen ..".
It is not the province of the courts to hinder, delay, or
placeobstructions in the path of duty prescribed by law for
theexecutive, but rather to render him all the aid and assistance
intheir power in his efforts to bring about the consummation
mostdevoutly prayed for by every good and law-abiding citizen in
thestate." (In re Boyle, 45 L.R.A. 832, 836-837;
underscoringsupplied.).
Our country is in distress. Our individual and collective security in great peril.
Our Chief Executive has taken stock of the gravity of the situation and to
avert the spread of the subversive movement, has issued the Proclamation
under consideration. It is our duty to find a way within the tenents of the law
to the end that this great and compelling objective may be brought to a happy
and successful fruition.
For all the foregoing reasons, I vote for denial of the right to bail.
BAUTISTA ANGELO, J., concurring in the result (in L-5102):.
In G.R. No. L-5102 entitled Eugenio Angeles, the City Fiscal of
Manila vs. Hon. Gavino S. Abaya, as Judge of the Court of First Instance of
Manila, I vote for the granting of the petition that the respondent Judge be
ordered to hear the evidence of the prosecution to enbale it to prove the
strength of the evidence of guilt of the defendants as authorized by section 1
(16), Article III of our Constitution.I predicate my vote merely on a matter of
procedure which the respondent Judge has disregarded notwithstanding the
express request to that effect by the prosecution. The reasons advanced for
denying such request are in my opinion untenable because the order of
September 12, 1951, granting bail was not yet final when the request to
present evidence was made and because estoppel does not operate against
law and the Constitution. When, therefore, the respondent Judge denied the
request of the prosecution to be given that opportunity considering the
circumstances that had concurred in the incident regarding bail, he
committed an abuse of discretio.
The prosecution is entitled to be given an opportunity to present evidence as
to the guilt of the defendants because the information charges a capital
offense. There was, therefore, room for the respondent Judge to act on the
petition to grant bail to defendants without passing on the controversial
question touching on the effect of the suspension of the privilege of the writ
of habeas corpus on the right to bail.
On this question, I have already expressed my view in a separate decision.
The vote of the Court on this issue is divided and so far no decision has been
reached. My vote in this case is merely limited to a matter of procedure which
in my opinion should be decided in favor of the prosecution.
FIERA, J., dissenting (in L-4855 and L-4964):.
I dissent from the minute resolution which dismisses the petitions in these
case under section 2 of Rule 56, on the ground that after the rehearing
thereof the necessary majority of six votes can not be had for the
pronouncement of a judgment or decision.
In view of the result of the last deliberation and voting in these cases, five (5)
Justices to four (4), and the fact that there is one vacancy now in the
Supreme Court and the Justice Montemayor, one of the Justices, is absent
on vacation abroad, I submitted to the Supreme Court in banc the
proposition, which was not accepted, that a recommendation be made by the
Honorable Chief Justice of this Court to the President of the Philippines for
the designation of two Justices of the Court of Appeals or district judges to sit
temporarily as Justices of the Supreme Court until a judgment in this case is
reached by the concurrence of six Justices, under section 9 of Judiciary Act
of 1948, Republic Act No.296. Said section 9 provides that "if on account of
illness, absence, incapacity upon any of the frounds mentioned in section 1,
Rule 126, of the Rules of Court of any of the Justices of the Supreme Court,
or wherever, by reason of temporary disability of any Justice thereof or
vacancies occurring therein, the requisite number of six Justices necessary
to render or concurr in a judgment in any given case can not be had, the
President of the Philippines, upon the recommendation of the Chief Justice,
may designate such number of Justices of the Court of Appeals or district
judges as may be necessary to sit temporarily as Justices of the Supreme
Court, until the judgment in said case is reached." Had the Chief Justice of
this Court made that recommendation and the President designated two
Justices of the Court of Appeals or District judges to sit temporarily as
Justices of the Supreme Court, a judgment in the present case must have
necessarily been reached.
Section 2 of Rule 56, in connection with section 1 Rule 58 of the Rules of
Court, provides that "When he Supreme Court in banc is equally divided in
opinion or the necessary majority can not be had, the case shall be reheard
and if on rehearing no decision is reached, the action shall be dismissed if
originally commenced in the court; in appealed cases the judgment or order
appealed from shall stand affirmed in civil cases;" and in criminal cases "the
judgment of conviction of the lower court shall be reversed, and the
defendant acquitted according to section 12 of Rule 120. Said provisions of
the Rules of Court were relatively of more frequent application to cases to be
decided by the Supreme Court at thetime and after said Rules were
promulgated in 1940, because thenumber of Justices of the Supreme Court
was reduced to seven bythe Commonwealth Act No. 3 approved on
December 31, 1935, whichcreated the Court of Appeals although the second
paragraph ofsection 2 of said Commonwealth Act No. 3 contained
substantially the same provisions as those of the second paragraph above-
quoted of section 9 of the Judiciary Act of 1948. In People vs. Galang, No.
46787 decided on September 12, 1941, (73 Phil. 184, 201), Justices Paras
and Hontiveros of the Court of Appeals were designated by the President to
act as Justices of the Supreme Court in lieu of Justices Santos and Ozaeta
under section 2 of Commonwealth Act No. 3, and there were also several
such designations after the occupation in cases decided by this Court.
But after the new Judiciary Act of 1948 was approved increasing the number
of Justices from seven to eleven, the above quoted provisions of section 2 of
Rule 56 and section 12 of Rule 120 became almost obsolete, because there
will always be eleven (11) Justices of the Supreme Court present and
qualified to act, by the designation of sufficient number of Justices of the
Court of Appeals or District Judges by the President of the Philippines upon
recommendation of the Chief Justice of the Supreme Court if necessary in
any given case until a judgment is reached according to section 9 of the
above quoted of the Judiciary Act of 1948. With eleven qualified Justices of
the Supreme Court present, the concurrence of six Justices necessary for
the pronouncement of a judgment may always be had, except in very
exceptional cases in which, notwithstanding such designation of temporary
Justices ofthe President, the concurrence of six Justices can not be had, and
said provisions of the Rules of Court may be applied.
I am of the opinion that the provisions of section 2, Rule 56 of the Rules of
Court can not be applied to the present case, which is a very important one
and requires a decision on the merits by the majority of this Court, because
no recommendation has been made by the Chief Justice to the President of
the Philippines to designate two Justices of the Court of Appeals or district
judges to sit temporarily as Justices of the Supreme Court, for as above
stated there is one vacancy in this Court and justice Mayor is absent on
vacation abroad.
As there is no decision in the present case it is not necessary for the
members of this Court to write their individual opinion or concur in the opinion
of others, and for that reason I am not writing down my opinion on the merits.
Petition dismissed in L-4855 and L-4964.
In L-5102 respondent Judge is ordered to hear the evidence to determine
whether it is strong and act accordingly.
EXCERPT FROM THE MINUTES OF NOV. 6, 1951.
"For lack of necessary vote, the motion for reconsideration and
clarification filed by attorneys for petitioners in G.R. No. L-4964,
Amado V. Hernandez vs. Agustin P. Montesa, etc., is denied. The
Justices see no reason to modify their stands.
"The Chief Justice, however, believs that, in accordance with the
decision in G.R. No. L-5102, Eugenio Angeles, etc., et al., the
prosecution should be required to present proof as to the guilt of the
petitioner, Amado V. Hernandez, to determine whether the evidence
of guilt is strong or not, because the offense with which he is charged
is capital, after which the respondent Judge may pass on his right to
bail. There is no reason why the decision in the Abaya case,
sustained by a majority necessary to make it a binding precedent,
should not be applied in principle, since its effect is logically to
recognize the right to bail of accused charged with rebellion. The
petition in the Abaya case should have been dismissed on the
technical ground of lack of required vote, in order that the resolution
therein and its consequent implication may not have the force of
jurisprudence.
"Mr. Justice Feria concurs in the minute resolution denying the
petition for reconsideration on the following grounds: The ruling in
the resolution of this Court in Angeles vs. Hon. Abaya, G.R. No. L-
5102, is not applicable in the present case. As this Supreme Court
has failed to lay down a definite ruling, in the present case, as to
whether or not persons charged with rebellion or insurrection may be
released on bail, in view of the suspension of the privilege of the writ
of habeas corpus by the President of the Philippines, Judges of First
Instance are now free and would not err in sustaining one theory or
another. Judge Abaya in that case was of the opinion that he had
discretion to release on bail persons accused of said crimes with
murder, arson, or kidnapping, punishable with capital punishment, if
evidence of defendnat's guilt is not strong; and the majority of this
Court ruled that said Judge acted in excess of jurisdiction or with
grave abuse of discretion in releasing the defendants on bail without
giving the prosecution opportunity, asked by the City Fiscal of
Manila, to present evidence to show that the evidence of guilt against
the defendants is strong and, therefore, they are not entitled to bail
according to Judge Abaya's theory. But in the present case, as
Judge Montesa is of the opinion that all persons accused of rebellion
and insurrection can not be released on bail irrespective of whether
or not said crimes are capital and there is no strong evidence ofguilt
against them, said judge has not acted in excess of his jurisdiction or
with grave abuse of discretion in not allowing the defendants to
present evidence to prove that evidence of guilt against them is not
strong. To compel judge Montesa to grant the petitioner's petition
would be tantamount to assuming that his opinion is not in conformity
with law or to compelling him without reason to adopt to their theory,
which is neithercorrect nor wrong since this Court has failed to lay
down adefinite ruling on the matter.".
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188550 August 19, 2013
DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,
vs.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
DECISION
SERENO, CJ.:
This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch
(petitioner) under Rule 45 of the 1997 Rules of Civil Procedure assailing the
Court of Tax Appeals En Banc (CTA En Banc) Decision2 dated 29 May 2009
and Resolution3 dated 1 July 2009 in C.T.A. EB No. 456.
THE FACTS
In accordance with Section 28(A)(5)4 of the National Internal Revenue Code
(NIRC) of 1997, petitioner withheld and remitted to respondent on 21 October
2003 the amount of PHP 67,688,553.51, which represented the fifteen
percent (15%) branch profit remittance tax (BPRT) on its regular banking unit
(RBU) net income remitted to Deutsche Bank Germany (DB Germany) for
2002 and prior taxable years.5
Believing that it made an overpayment of the BPRT, petitioner filed with the
BIR Large Taxpayers Assessment and Investigation Division on 4 October
2005 an administrative claim for refund or issuance of its tax credit certificate
in the total amount of PHP 22,562,851.17. On the same date, petitioner
requested from the International Tax Affairs Division (ITAD) a confirmation of
its entitlement to the preferential tax rate of 10% under the RP-Germany Tax
Treaty.6
Alleging the inaction of the BIR on its administrative claim, petitioner filed a
Petition for Review7 with the CTA on 18 October 2005. Petitioner reiterated
its claim for the refund or issuance of its tax credit certificate for the amount
of PHP 22,562,851.17 representing the alleged excess BPRT paid on branch
profits remittance to DB Germany.
THE CTA SECOND DIVISION RULING8
After trial on the merits, the CTA Second Division found that petitioner indeed
paid the total amount of PHP 67,688,553.51 representing the 15% BPRT on
its RBU profits amounting to PHP 451,257,023.29 for 2002 and prior taxable
years. Records also disclose that for the year 2003, petitioner remitted to DB
Germany the amount of EURO 5,174,847.38 (or PHP 330,175,961.88 at the
exchange rate of PHP 63.804:1 EURO), which is net of the 15% BPRT.
However, the claim of petitioner for a refund was denied on the ground that
the application for a tax treaty relief was not filed with ITAD prior to the
payment by the former of its BPRT and actual remittance of its branch profits
to DB Germany, or prior to its availment of the preferential rate of ten percent
(10%) under the RP-Germany Tax Treaty provision. The court a quo held
that petitioner violated the fifteen (15) day period mandated under Section III
paragraph (2) of Revenue Memorandum Order (RMO) No. 1-2000.
Further, the CTA Second Division relied on Mirant (Philippines) Operations
Corporation (formerly Southern Energy Asia-Pacific Operations [Phils.], Inc.)
v. Commissioner of Internal Revenue9 (Mirant) where the CTA En Banc ruled
that before the benefits of the tax treaty may be extended to a foreign
corporation wishing to avail itself thereof, the latter should first invoke the
provisions of the tax treaty and prove that they indeed apply to the
corporation.
THE CTA EN BANC RULING10
The CTA En Banc affirmed the CTA Second Division’s Decision dated 29
August 2008 and Resolution dated 14 January 2009. Citing Mirant, the CTA
En Banc held that a ruling from the ITAD of the BIR must be secured prior to
the availment of a preferential tax rate under a tax treaty. Applying the
principle of stare decisis et non quieta movere, the CTA En Banc took into
consideration that this Court had denied the Petition in G.R. No. 168531 filed
by Mirant for failure to sufficiently show any reversible error in the assailed
judgment.11 The CTA En Banc ruled that once a case has been decided in
one way, any other case involving exactly the same point at issue should be
decided in the same manner.
The court likewise ruled that the 15-day rule for tax treaty relief application
under RMO No. 1-2000 cannot be relaxed for petitioner, unlike in CBK Power
Company Limited v. Commissioner of Internal Revenue.12 In that case, the
rule was relaxed and the claim for refund of excess final withholding taxes
was partially granted. While it issued a ruling to CBK Power Company
Limited after the payment of withholding taxes, the ITAD did not issue any
ruling to petitioner even if it filed a request for confirmation on 4 October
2005 that the remittance of branch profits to DB Germany is subject to a
preferential tax rate of 10% pursuant to Article 10 of the RP-Germany Tax
Treaty.
ISSUE
This Court is now confronted with the issue of whether the failure to strictly
comply with RMO No. 1-2000 will deprive persons or corporations of the
benefit of a tax treaty.
THE COURT’S RULING
The Petition is meritorious.
Under Section 28(A)(5) of the NIRC, any profit remitted to its head office
shall be subject to a tax of 15% based on the total profits applied for or
earmarked for remittance without any deduction of the tax component.
However, petitioner invokes paragraph 6, Article 10 of the RP-Germany Tax
Treaty, which provides that where a resident of the Federal Republic of
Germany has a branch in the Republic of the Philippines, this branch may be
subjected to the branch profits remittance tax withheld at source in
accordance with Philippine law but shall not exceed 10% of the gross amount
of the profits remitted by that branch to the head office.
By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch
in the Philippines, remitting to its head office in Germany, the benefit of a
preferential rate equivalent to 10% BPRT.
On the other hand, the BIR issued RMO No. 1-2000, which requires that any
availment of the tax treaty relief must be preceded by an application with
ITAD at least 15 days before the transaction. The Order was issued to
streamline the processing of the application of tax treaty relief in order to
improve efficiency and service to the taxpayers. Further, it also aims to
prevent the consequences of an erroneous interpretation and/or application
of the treaty provisions (i.e., filing a claim for a tax refund/credit for the
overpayment of taxes or for deficiency tax liabilities for underpayment). 13
The crux of the controversy lies in the implementation of RMO No. 1-2000.
Petitioner argues that, considering that it has met all the conditions under
Article 10 of the RP-Germany Tax Treaty, the CTA erred in denying its claim
solely on the basis of RMO No. 1-2000. The filing of a tax treaty relief
application is not a condition precedent to the availment of a preferential tax
rate. Further, petitioner posits that, contrary to the ruling of the CTA, Mirant is
not a binding judicial precedent to deny a claim for refund solely on the basis
of noncompliance with RMO No. 1-2000.
Respondent counters that the requirement of prior application under RMO
No. 1-2000 is mandatory in character. RMO No. 1-2000 was issued pursuant
to the unquestioned authority of the Secretary of Finance to promulgate rules
and regulations for the effective implementation of the NIRC. Thus, courts
cannot ignore administrative issuances which partakes the nature of a statute
and have in their favor a presumption of legality.
The CTA ruled that prior application for a tax treaty relief is mandatory, and
noncompliance with this prerequisite is fatal to the taxpayer’s availment of
the preferential tax rate.
We disagree.
A minute resolution is not a binding precedent
At the outset, this Court’s minute resolution on Mirant is not a binding
precedent. The Court has clarified this matter in Philippine Health Care
Providers, Inc. v. Commissioner of Internal Revenue14 as follows:
It is true that, although contained in a minute resolution, our dismissal of the
petition was a disposition of the merits of the case. When we dismissed the
petition, we effectively affirmed the CA ruling being questioned. As a result,
our ruling in that case has already become final. When a minute resolution
denies or dismisses a petition for failure to comply with formal and
substantive requirements, the challenged decision, together with its findings
of fact and legal conclusions, are deemed sustained. But what is its effect on
other cases?
With respect to the same subject matter and the same issues concerning the
same parties, it constitutes res judicata. However, if other parties or another
subject matter (even with the same parties and issues) is involved, the
minute resolution is not binding precedent. Thus, in CIR v. Baier-Nickel, the
Court noted that a previous case, CIR v. Baier-Nickel involving the same
parties and the same issues, was previously disposed of by the Court thru a
minute resolution dated February 17, 2003 sustaining the ruling of the CA.
Nonetheless, the Court ruled that the previous case "ha(d) no bearing" on the
latter case because the two cases involved different subject matters as they
were concerned with the taxable income of different taxable years.
Besides, there are substantial, not simply formal, distinctions between a
minute resolution and a decision. The constitutional requirement under the
first paragraph of Section 14, Article VIII of the Constitution that the facts and
the law on which the judgment is based must be expressed clearly and
distinctly applies only to decisions, not to minute resolutions. A minute
resolution is signed only by the clerk of court by authority of the justices,
unlike a decision. It does not require the certification of the Chief Justice.
Moreover, unlike decisions, minute resolutions are not published in the
Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks
of a decision. Indeed, as a rule, this Court lays down doctrines or principles
of law which constitute binding precedent in a decision duly signed by the
members of the Court and certified by the Chief Justice. (Emphasis supplied)
Even if we had affirmed the CTA in Mirant, the doctrine laid down in that
Decision cannot bind this Court in cases of a similar nature. There are
differences in parties, taxes, taxable periods, and treaties involved; more
importantly, the disposition of that case was made only through a minute
resolution.
Tax Treaty vs. RMO No. 1-2000
Our Constitution provides for adherence to the general principles of
international law as part of the law of the land. 15The time-honored
international principle of pacta sunt servanda demands the performance in
good faith of treaty obligations on the part of the states that enter into the
agreement. Every treaty in force is binding upon the parties, and obligations
under the treaty must be performed by them in good faith.16 More
importantly, treaties have the force and effect of law in this jurisdiction.17
Tax treaties are entered into "to reconcile the national fiscal legislations of
the contracting parties and, in turn, help the taxpayer avoid simultaneous
taxations in two different jurisdictions."18 CIR v. S.C. Johnson and Son, Inc.
further clarifies that "tax conventions are drafted with a view towards the
elimination of international juridical double taxation, which is defined as the
imposition of comparable taxes in two or more states on the same taxpayer
in respect of the same subject matter and for identical periods. The apparent
rationale for doing away with double taxation is to encourage the free flow of
goods and services and the movement of capital, technology and persons
between countries, conditions deemed vital in creating robust and dynamic
economies. Foreign investments will only thrive in a fairly predictable and
reasonable international investment climate and the protection against
double taxation is crucial in creating such a climate."19
Simply put, tax treaties are entered into to minimize, if not eliminate the
harshness of international juridical double taxation, which is why they are
also known as double tax treaty or double tax agreements.
"A state that has contracted valid international obligations is bound to make
in its legislations those modifications that may be necessary to ensure the
fulfillment of the obligations undertaken."20 Thus, laws and issuances must
ensure that the reliefs granted under tax treaties are accorded to the parties
entitled thereto. The BIR must not impose additional requirements that would
negate the availment of the reliefs provided for under international
agreements. More so, when the RP-Germany Tax Treaty does not provide
for any pre-requisite for the availment of the benefits under said agreement.
Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which
would indicate a deprivation of entitlement to a tax treaty relief for failure to
comply with the 15-day period. We recognize the clear intention of the BIR in
implementing RMO No. 1-2000, but the CTA’s outright denial of a tax treaty
relief for failure to strictly comply with the prescribed period is not in harmony
with the objectives of the contracting state to ensure that the benefits granted
under tax treaties are enjoyed by duly entitled persons or corporations.
Bearing in mind the rationale of tax treaties, the period of application for the
availment of tax treaty relief as required by RMO No. 1-2000 should not
operate to divest entitlement to the relief as it would constitute a violation of
the duty required by good faith in complying with a tax treaty. The denial of
the availment of tax relief for the failure of a taxpayer to apply within the
prescribed period under the administrative issuance would impair the value
of the tax treaty. At most, the application for a tax treaty relief from the BIR
should merely operate to confirm the entitlement of the taxpayer to the relief.
The obligation to comply with a tax treaty must take precedence over the
objective of RMO No. 1-2000.1âwphi1 Logically, noncompliance with tax
treaties has negative implications on international relations, and unduly
discourages foreign investors. While the consequences sought to be
prevented by RMO No. 1-2000 involve an administrative procedure, these
may be remedied through other system management processes, e.g., the
imposition of a fine or penalty. But we cannot totally deprive those who are
entitled to the benefit of a treaty for failure to strictly comply with an
administrative issuance requiring prior application for tax treaty relief.
Prior Application vs. Claim for Refund
Again, RMO No. 1-2000 was implemented to obviate any erroneous
interpretation and/or application of the treaty provisions. The objective of the
BIR is to forestall assessments against corporations who erroneously availed
themselves of the benefits of the tax treaty but are not legally entitled thereto,
as well as to save such investors from the tedious process of claims for a
refund due to an inaccurate application of the tax treaty provisions. However,
as earlier discussed, noncompliance with the 15-day period for prior
application should not operate to automatically divest entitlement to the tax
treaty relief especially in claims for refund.
The underlying principle of prior application with the BIR becomes moot in
refund cases, such as the present case, where the very basis of the claim is
erroneous or there is excessive payment arising from non-availment of a tax
treaty relief at the first instance. In this case, petitioner should not be faulted
for not complying with RMO No. 1-2000 prior to the transaction. It could not
have applied for a tax treaty relief within the period prescribed, or 15 days
prior to the payment of its BPRT, precisely because it erroneously paid the
BPRT not on the basis of the preferential tax rate under
the RP-Germany Tax Treaty, but on the regular rate as prescribed by the
NIRC. Hence, the prior application requirement becomes illogical. Therefore,
the fact that petitioner invoked the provisions of the RP-Germany Tax Treaty
when it requested for a confirmation from the ITAD before filing an
administrative claim for a refund should be deemed substantial compliance
with RMO No. 1-2000.
Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy
for tax recovery when there has been an erroneous payment of
tax.1âwphi1 The outright denial of petitioner’s claim for a refund, on the sole
ground of failure to apply for a tax treaty relief prior to the payment of the
BPRT, would defeat the purpose of Section 229.
Petitioner is entitled to a refund
It is significant to emphasize that petitioner applied – though belatedly – for a
tax treaty relief, in substantial compliance with RMO No. 1-2000. A ruling by
the BIR would have confirmed whether petitioner was entitled to the lower
rate of 10% BPRT pursuant to the RP-Germany Tax Treaty.
Nevertheless, even without the BIR ruling, the CTA Second Division found as
follows:
Deutsche Bank AG Manila Branch the amount of TWENTY TWO MILLION
FIVE HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE
PESOS AND SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine
currency, representing the erroneously paid BPRT for 2002 and prior taxable
years.

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

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

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

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

Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU
net income amounting to PHP 451,257,023.29 for 2002 and prior taxable
years, applying the 10% BPRT. Thus, it is proper to grant petitioner a refund Footnotes
ofthe difference between the PHP 67,688,553.51 (15% BPRT) and PHP
45,125,702.34 (10% BPRT) or a total of PHP 22,562,851.17. * Designated additional member in lieu of Associate Justice Martin S.
Villarama, Jr. per Special Order No. 1502.
WHEREFORE, premises considered, the instant Petition is GRANTED.
Accordingly, the Court of Tax Appeals En Banc Decision dated 29 May 2009 1 Rollo, pp. 12-60.
and Resolution dated 1 July 2009 are REVERSED and SET ASIDE. A new
one is hereby entered ordering respondent Commissioner of Internal 2Id. at 68-78; penned by Associate Justice Lovell R. Bautista and
Revenue to refund or issue a tax credit certificate in favor of petitioner concurred in by then Presiding Justice Ernesto D. Acosta, Associate
Justices Juanito C. Castaneda Jr., Erlinda P. Uy, Caesar A.
Casanova and Olga Palanca-Enriquez.
3 Id. at 79-80.
4 SEC. 28. Rates of Income Tax on Foreign Corporations.-
(A) Tax on Resident Foreign Corporations.-
xxxx
(5) Tax on Branch Profits Remittances. - Any profit remitted
by a branch to its head office shall be subject to a tax of
fifteen percent (15%) which shall be based on the total
profits applied or earmarked for remittance without any
deduction for the tax component thereof (except those
activities which are registered with the Philippine Economic
Zone Authority). The tax shall be collected and paid in the
same manner as provided in Sections 57 and 58 of this
Code: Provided, That interests, dividends, rents, royalties,
including remuneration for technical services, salaries,
wages, premiums, annuities, emoluments or other fixed or
determinable annual, periodic or casual gains, profits,
income and capital gains received by a foreign corporation
during each taxable year from all sources within the
Philippines shall not be treated as branch profits unless the
same are effectively connected with the conduct of its trade
or business in the Philippines.
5 Rollo, pp. 69-70.
6 Id. at 70.
7 Id. at 150-157.
8Id. at 109-125; CTA Second Division Decision dated 29 August
2008, penned by Associate Justice Erlinda P. Uy and concurred in
by Associate Justices Juanito C. Castañeda, Jr. and Olga Palanca-
Enriquez.
9C.T.A. EB No. 40 (CTA Case No. 6382), 7 June 2005, penned by
Associate Justice Erlinda P. Uy and concurred in by then Presiding
Justice Ernesto D. Acosta, and Associate Justices Juanito C.
Castañeda Jr., Lovell R. Bautista, Caesar A. Casanova and Olga
Palanca-Enriquez. The case was affirmed by the Supreme Court in
the Resolutions dated 12 November 2007 and 18 February 2008 in
G.R. No. 168531; (visited 5 June 2013). Pertinent portion of Mirant
provides:
"However, it must be remembered that a foreign corporation
wishing to avail of the benefits of the tax treaty should invoke
the provisions of the tax treaty and prove that indeed the
provisions of the tax treaty applies to it, before the benefits
may be extended to such corporation. In other words, a
resident or non-resident foreign corporation shall be taxed
according to the provisions of the National Internal Revenue
Code, unless it is shown that the treaty provisions apply to
the said corporation, and that, in cases the same are
applicable, the option to avail of the tax benefits under the
tax treaty has been successfully invoked.
Under Revenue Memorandum Order 01-2000 of the Bureau
of Internal Revenue, it is provided that the availment of a tax
treaty provision must be preceded by an application for a tax
treaty relief with its International Tax Affairs Division (ITAD).
This is to prevent any erroneous interpretation and/or
application of the treaty provisions with which the Philippines
is a signatory to. The implementation of the said Revenue
Memorandum Order is in harmony with the objectives of the
contracting state to ensure that the granting of the benefits
under the tax treaties are enjoyed by the persons or
corporations duly entitled to the same."
10 Supra note 2.
11SC Minute Resolutions dated 12 November 2007 and 18 February
2008.
12CBK Power Company Limited v. Commissioner of Internal
Revenue, C.T.A. Case Nos. 6699, 6884 & 7166, 12 February 1999,
penned by Associate Justice Caesar A. Casanova and concurred in
by then Presiding Justice Ernesto D. Acosta and Associate Justice
Lovell R. Bautista.
13 REVENUE MEMORANDUM ORDER NO. 01-00
SUBJECT : Procedures for Processing Tax Treaty Relief
Application
 TO : All Internal Revenue Officers and Others Concerned
I. Objectives:
This Order is issued to streamline the processing of the tax
treaty relief application in order to improve efficiency and
service to the taxpayers.
Furthermore, it is to the best interest of both the taxpayer
and the Bureau of Internal Revenue that any availment of
the tax treaty provisions be preceded by an application for
treaty relief with the International Tax Affairs Division (ITAD).
In this way, the consequences of any erroneous
interpretation and/or application of the treaty provisions (i.e.,
claim for tax refund/credit for overpayment of taxes, or
deficiency tax liabilities for underpayment) can be averted
before proceeding with the transaction and or paying the tax
liability covered by the tax treaty.
xxxx
III. Policies:
In order to achieve the above-mentioned objectives, the
following policies shall be observed:
xxxx
2. Any availment of the tax treaty relief shall be preceded by
an application by filing BIR Form No. 0901 (Application for
Relief from Double Taxation) with ITAD at least 15 days
before the transaction i.e. payment of dividends, royalties,
etc., accompanied by supporting documents justifying the
relief. Consequently, BIR Form Nos. TC 001 and TC 002
prescribed under RMO 10-92 are hereby declared obsolete.
x x x x.
14 G.R. No. 167330, 18 September 2009, 600 SCRA 413, 446-447.
15 Art. 2, Sec. 2.
16 Vienna Convention on the Law on Treaties (1969), Art. 26.
17Luna v. Court of Appeals, G.R. No. 100374-75, 27 November
1992, 216 SCRA 107, 111-112.
18 CIR v. S.C. Johnson and Son, Inc., 368 Phil. 388, 404 (1999).
19 Id. at 404-405.
20 Tañada v. Angara, 388 Phil. 546, 592 (1997).
21 Section 229. Recovery of Tax Erroneously or Illegally Collected. -
No suit or proceeding shall be maintained in any court for the
recovery of any national internal revenue tax hereafter alleged to
have been erroneously or illegally assessed or collected, or of any
penalty claimed to have been collected without authority, of any sum
alleged to have been excessively or in any manner wrongfully
collected without authority, or of any sum alleged to have been
excessively or in any manner wrongfully collected, until a claim for
refund or credit has been duly filed with the Commissioner; but such
suit or proceeding may be maintained, whether or not such tax,
penalty, or sum has been paid under protest or duress.
In any case, no such suit or proceeding shall be filed after
the expiration of two (2) years from the date of payment of
the tax or penalty regardless of any supervening cause that
may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor,
refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to
have been erroneously paid.
22
Rollo. pp.114-115.
23 Id. at 117-118.
24 Id. at 117.
Brown v. Board of Education of Topeka,
347 U.S. 483 (1954)
U.S. Supreme Court
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Brown v. Board of Education of Topeka
Argued December 9, 1952
Reargued December 8, 1953
Decided May 17, 1954*
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia,
and Delaware. They are premised on different facts and different local
conditions, but a common legal question justifies their consideration together
in this consolidated opinion. [Footnote 1]
[487]
In each of the cases, minors of the Negro race, through their legal
representatives, seek the aid of the courts in obtaining admission to the
public schools of their community on a nonsegregated basis. In each
instance,
[488]
they had been denied admission to schools attended by white children under
laws requiring or permitting segregation according to race. This segregation
was alleged to deprive the plaintiffs of the equal protection of the laws under
the Fourteenth Amendment. In each of the cases other than the Delaware
case, a three-judge federal district court denied relief to the plaintiffs on the
so-called "separate but equal" doctrine announced by this Court in Plessy v.
Fergson, 163 U. S. 537. Under that doctrine, equality of treatment is
accorded when the races are provided substantially equal facilities, even
though these facilities be separate. In the Delaware case, the Supreme Court
of Delaware adhered to that doctrine, but ordered that the plaintiffs be
admitted to the white schools because of their superiority to the Negro
schools.
The plaintiffs contend that segregated public schools are not "equal" and
cannot be made "equal," and that hence they are deprived of the equal
protection of the laws. Because of the obvious importance of the question
presented, the Court took jurisdiction. [Footnote 2] Argument was heard in
the 1952 Term, and reargument was heard this Term on certain questions
propounded by the Court. [Footnote 3]
[489]
Reargument was largely devoted to the circumstances surrounding the
adoption of the Fourteenth Amendment in 1868. It covered exhaustively
consideration of the Amendment in Congress, ratification by the states, then-
existing practices in racial segregation, and the views of proponents and
opponents of the Amendment. This discussion and our own investigation
convince us that, although these sources cast some light, it is not enough to
resolve the problem with which we are faced. At best, they are inconclusive.
The most avid proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among "all persons born or
naturalized in the United States." Their opponents, just as certainly, were
antagonistic to both the letter and the spirit of the Amendments and wished
them to have the most limited effect. What others in Congress and the state
legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history
with respect to segregated schools is the status of public education at that
time. [Footnote 4] In the South, the movement toward free common schools,
supported
[490]
by general taxation, had not yet taken hold. Education of white children was
largely in the hands of private groups. Education of Negroes was almost
nonexistent, and practically all of the race were illiterate. In fact, any
education of Negroes was forbidden by law in some states. Today, in
contrast, many Negroes have achieved outstanding success in the arts and
sciences, as well as in the business and professional world. It is true that
public school education at the time of the Amendment had advanced further
in the North, but the effect of the Amendment on Northern States was
generally ignored in the congressional debates. Even in the North, the
conditions of public education did not approximate those existing today. The
curriculum was usually rudimentary; ungraded schools were common in rural
areas; the school term was but three months a year in many states, and
compulsory school attendance was virtually unknown. As a consequence, it
is not surprising that there should be so little in the history of the Fourteenth
Amendment relating to its intended effect on public education.
In the first cases in this Court construing the Fourteenth Amendment,
decided shortly after its adoption, the Court interpreted it as proscribing all
state-imposed discriminations against the Negro race. [Footnote 5] The
doctrine of
[491]
"separate but equal" did not make its appearance in this Court until 1896 in
the case of Plessy v. Ferguson, supra, involving not education but
transportation. [Footnote 6] American courts have since labored with the
doctrine for over half a century. In this Court, there have been six cases
involving the "separate but equal" doctrine in the field of public education.
[Footnote 7] In Cumming v. County Board of Education, 175 U. S. 528,
and Gong Lum v. Rice, 275 U. S. 78, the validity of the doctrine itself was not
challenged. [Footnote 8] In more recent cases, all on the graduate school
[492]
level, inequality was found in that specific benefits enjoyed by white students
were denied to Negro students of the same educational
qualifications. Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v.
Oklahoma, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v.
Oklahoma State Regents, 339 U. S. 637. In none of these cases was it
necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And
in Sweatt v. Painter, supra, the Court expressly reserved decision on the
question whether Plessy v. Ferguson should be held inapplicable to public
education.
In the instant cases, that question is directly presented. Here, unlike Sweatt
v. Painter, there are findings below that the Negro and white schools involved
have been equalized, or are being equalized, with respect to buildings,
curricula, qualifications and salaries of teachers, and other "tangible" factors.
[Footnote 9] Our decision, therefore, cannot turn on merely a comparison of
these tangible factors in the Negro and white schools involved in each of the
cases. We must look instead to the effect of segregation itself on public
education.
In approaching this problem, we cannot turn the clock back to 1868, when
the Amendment was adopted, or even to 1896, when Plessy v.
Ferguson was written. We must consider public education in the light of its
full development and its present place in American life throughout
[493]
the Nation. Only in this way can it be determined if segregation in public
schools deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great
expenditures for education both demonstrate our recognition of the
importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is a
principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education.
Such an opportunity, where the state has undertaken to provide it, is a right
which must be made available to all on equal terms.
We come then to the question presented: does segregation of children in
public schools solely on the basis of race, even though the physical facilities
and other "tangible" factors may be equal, deprive the children of the minority
group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for
Negroes could not provide them equal educational opportunities, this Court
relied in large part on "those qualities which are incapable of objective
measurement but which make for greatness in a law school." In McLaurin v.
Oklahoma State Regents, supra, the Court, in requiring that a Negro
admitted to a white graduate school be treated like all other students, again
resorted to intangible considerations: ". . . his ability to study, to engage in
discussions and exchange views with other students, and, in general, to
learn his profession."
[494]
Such considerations apply with added force to children in grade and high
schools. To separate them from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely ever to be
undone. The effect of this separation on their educational opportunities was
well stated by a finding in the Kansas case by a court which nevertheless felt
compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a
detrimental effect upon the colored children. The impact is greater when it
has the sanction of the law, for the policy of separating the races is usually
interpreted as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segregation with the
sanction of law, therefore, has a tendency to [retard] the educational and
mental development of negro children and to deprive them of some of the
benefits they would receive in a racial[ly] integrated school system. [Footnote
10]"
Whatever may have been the extent of psychological knowledge at the time
of Plessy v. Ferguson, this finding is amply supported by modern authority.
[Footnote 11] Any language
[495]
in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that, in the field of public education, the doctrine of "separate
but equal" has no place. Separate educational facilities are inherently
unequal. Therefore, we hold that the plaintiffs and others similarly situated for
whom the actions have been brought are, by reason of the segregation
complained of, deprived of the equal protection of the laws guaranteed by the
Fourteenth Amendment. This disposition makes unnecessary any discussion
whether such segregation also violates the Due Process Clause of the
Fourteenth Amendment. [Footnote 12]
Because these are class actions, because of the wide applicability of this
decision, and because of the great variety of local conditions, the formulation
of decrees in these cases presents problems of considerable complexity. On
reargument, the consideration of appropriate relief was necessarily
subordinated to the primary question -- the constitutionality of segregation in
public education. We have now announced that such segregation is a denial
of the equal protection of the laws. In order that we may have the full
assistance of the parties in formulating decrees, the cases will be restored to
the docket, and the parties are requested to present further argument on
Questions 4 and 5 previously propounded by the Court for the reargument
this Term. [Footnote 13] The Attorney General
[496]
of the United States is again invited to participate. The Attorneys General of
the states requiring or permitting segregation in public education will also be
permitted to appear as amici curiae upon request to do so by September 15,
1954, and submission of briefs by October 1, 1954. [Footnote 14]
It is so ordered.
* Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United
States District Court for the Eastern District of South Carolina, argued
December 9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v.
County School Board of Prince Edward County, Virginia, et al., on appeal
from the United States District Court for the Eastern District of Virginia,
argued December 10, 1952, reargued December 7-8, 1953, and No.
10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of
Delaware, argued December 11, 1952, reargued December 9, 1953.
[Footnote 1]
In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro
children of elementary school age residing in Topeka. They brought this
action in the United States District Court for the District of Kansas to enjoin
enforcement of a Kansas statute which permits, but does not require, cities of
more than 15,000 population to maintain separate school facilities for Negro
and white students. Kan.Gen.Stat. § 72-1724 (1949). Pursuant to that
authority, the Topeka Board of Education elected to establish segregated
elementary schools. Other public schools in the community, however, are
operated on a nonsegregated basis. The three-judge District Court,
convened under 28 U.S.C. §§ 2281 and 2284, found that segregation in
public education has a detrimental effect upon Negro children, but denied
relief on the ground that the Negro and white schools were substantially
equal with respect to buildings, transportation, curricula, and educational
qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal
under 28 U.S.C. § 1253.
In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children
of both elementary and high school age residing in Clarendon County. They
brought this action in the United States District Court for the Eastern District
of South Carolina to enjoin enforcement of provisions in the state constitution
and statutory code which require the segregation of Negroes and whites in
public schools. S.C.Const., Art. XI, § 7; S.C.Code § 5377 (1942). The three-
judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, denied
the requested relief. The court found that the Negro schools were inferior to
the white schools, and ordered the defendants to begin immediately to
equalize the facilities. But the court sustained the validity of the contested
provisions and denied the plaintiffs admission to the white schools during the
equalization program. 98 F.Supp. 529. This Court vacated the District Court's
judgment and remanded the case for the purpose of obtaining the court's
views on a report filed by the defendants concerning the progress made in
the equalization program. 342 U. S. 350. On remand, the District Court found
that substantial equality had been achieved except for buildings and that the
defendants were proceeding to rectify this inequality as well. 103 F.Supp.
920. The case is again here on direct appeal under 28 U.S.C. § 1253.
In the Virginia case, Davis v. County School Board, the plaintiffs are Negro
children of high school age residing in Prince Edward County. They brought
this action in the United States District Court for the Eastern District of
Virginia to enjoin enforcement of provisions in the state constitution and
statutory code which require the segregation of Negroes and whites in public
schools. Va.Const., § 140; Va.Code § 22-221 (1950). The three-judge District
Court, convened under 28 U.S.C. §§ 2281 and 2284, denied the requested
relief. The court found the Negro school inferior in physical plant, curricula,
and transportation, and ordered the defendants forthwith to provide
substantially equal curricula and transportation and to "proceed with all
reasonable diligence and dispatch to remove" the inequality in physical plant.
But, as in the South Carolina case, the court sustained the validity of the
contested provisions and denied the plaintiffs admission to the white schools
during the equalization program. 103 F.Supp. 337. The case is here on direct
appeal under 28 U.S.C. § 1253.
In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of
both elementary and high school age residing in New Castle County. They
brought this action in the Delaware Court of Chancery to enjoin enforcement
of provisions in the state constitution and statutory code which require the
segregation of Negroes and whites in public schools. Del.Const., Art. X, § 2;
Del.Rev.Code § 2631 (1935). The Chancellor gave judgment for the plaintiffs
and ordered their immediate admission to schools previously attended only
by white children, on the ground that the Negro schools were inferior with
respect to teacher training, pupil-teacher ratio, extracurricular activities,
physical plant, and time and distance involved in travel. 87 A.2d 862. The
Chancellor also found that segregation itself results in an inferior education
for Negro children (see note 10 infra), but did not rest his decision on that
ground. Id. at 865. The Chancellor's decree was affirmed by the Supreme
Court of Delaware, which intimated, however, that the defendants might be
able to obtain a modification of the decree after equalization of the Negro and
white schools had been accomplished. 91 A.2d 137, 152. The defendants,
contending only that the Delaware courts had erred in ordering the
immediate admission of the Negro plaintiffs to the white schools, applied to
this Court for certiorari. The writ was granted, 344 U.S. 891. The plaintiffs,
who were successful below, did not submit a cross-petition.
[Footnote 2]
344 U. S. 1, 141, 891.
[Footnote 3]
345 U.S. 972. The Attorney General of the United States participated both
Terms as amicus curiae.
[Footnote 4]
For a general study of the development of public education prior to the
Amendment, see Butts and Cremin, A History of Education in American
Culture (1953), Pts. I, II; Cubberley, Public Education in the United States
(1934 ed.), cc. II-XII. School practices current at the time of the adoption of
the Fourteenth Amendment are described in Butts and Cremin, supra, at
269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in
the South (1922), cc. VIII, IX. See also H. Ex.Doc. No. 315, 41st Cong., 2d
Sess. (1871). Although the demand for free public schools followed
substantially the same pattern in both the North and the South, the
development in the South did not begin to gain momentum until about 1850,
some twenty years after that in the North. The reasons for the somewhat
slower development in the South (e.g., the rural character of the South and
the different regional attitudes toward state assistance) are well explained in
Cubberley, supra,at 408-423. In the country as a whole, but particularly in the
South, the War virtually stopped all progress in public education. Id. at 427-
428. The low status of Negro education in all sections of the country, both
before and immediately after the War, is described in Beale, A History of
Freedom of Teaching in American Schools (1941), 112-132, 175-195.
Compulsory school attendance laws were not generally adopted until after
the ratification of the Fourteenth Amendment, and it was not until 1918 that
such laws were in force in all the states. Cubberley, supra, at 563-565.
[Footnote 5]
Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West
Virginia, 100 U. S. 303, 307-308 (1880):
"It ordains that no State shall deprive any person of life, liberty, or property,
without due process of law, or deny to any person within its jurisdiction the
equal protection of the laws. What is this but declaring that the law in the
States shall be the same for the black as for the white; that all persons,
whether colored or white, shall stand equal before the laws of the States,
and, in regard to the colored race, for whose protection the amendment was
primarily designed, that no discrimination shall be made against them by law
because of their color? The words of the amendment, it is true, are
prohibitory, but they contain a necessary implication of a positive immunity,
or right, most valuable to the colored race -- the right to exemption from
unfriendly legislation against them distinctively as colored -- exemption from
legal discriminations, implying inferiority in civil society, lessening the security
of their enjoyment of the rights which others enjoy, and discriminations which
are steps towards reducing them to the condition of a subject race."
See also Virginia v. Rives, 100 U. S. 313, 318 (1880); Ex parte Virginia, 100
U. S. 339, 344-345 (1880).
[Footnote 6]
The doctrine apparently originated in Roberts v. City of Boston, 59 Mass.198,
206 (1850), upholding school segregation against attack as being violative of
a state constitutional guarantee of equality. Segregation in Boston public
schools was eliminated in 1855. Mass.Acts 1855, c. 256. But elsewhere in
the North, segregation in public education has persisted in some
communities until recent years. It is apparent that such segregation has long
been a nationwide problem, not merely one of sectional concern.
[Footnote 7]
See also Berea College v. Kentucky, 211 U. S. 45 (1908).
[Footnote 8]
In the Cummin case, Negro taxpayers sought an injunction requiring the
defendant school board to discontinue the operation of a high school for
white children until the board resumed operation of a high school for Negro
children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese
descent, contended only that state authorities had misapplied the doctrine by
classifying him with Negro children and requiring him to attend a Negro
school.
[Footnote 9]
In the Kansas case, the court below found substantial equality as to all such
factors. 98 F.Supp. 797, 798. In the South Carolina case, the court below
found that the defendants were proceeding "promptly and in good faith to
comply with the court's decree." 103 F.Supp. 920, 921. In the Virginia case,
the court below noted that the equalization program was already "afoot and
progressing" (103 F.Supp. 337, 341); since then, we have been advised, in
the Virginia Attorney General's brief on reargument, that the program has
now been completed. In the Delaware case, the court below similarly noted
that the state's equalization program was well under way. 91 A.2d 137, 149.
[Footnote 10]
A similar finding was made in the Delaware case:
"I conclude from the testimony that, in our Delaware society, State-imposed
segregation in education itself results in the Negro children, as a class,
receiving educational opportunities which are substantially inferior to those
available to white children otherwise similarly situated."
87 A.2d 862, 865.
[Footnote 11]
K.B. Clark, Effect of Prejudice and Discrimination on Personality
Development (Mid-century White House Conference on Children and Youth,
1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;
Deutscher and Chein, The Psychological Effects of Enforced Segregation A
Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are
the Psychological Effects of Segregation Under Conditions of Equal
Facilities?, 3 Int.J.Opinion and Attitude Res. 229 (1949); Brameld,
Educational Costs, in Discrimination and National Welfare (MacIver, ed.,
1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And
see generally Myrdal, An American Dilemma (1944).
[Footnote 12]
See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of
the Fifth Amendment.
[Footnote 13]
"4. Assuming it is decided that segregation in public schools violates the
Fourteenth Amendment"
"(a) would a decree necessarily follow providing that, within the limits set by
normal geographic school districting, Negro children should forthwith be
admitted to schools of their choice, or"
"(b) may this Court, in the exercise of its equity powers, permit an effective
gradual adjustment to be brought about from existing segregated systems to
a system not based on color distinctions?"
"5. On the assumption on which questions 4(a) and (b) are based, and
assuming further that this Court will exercise its equity powers to the end
described in question 4(b),"
"(a) should this Court formulate detailed decrees in these cases;"
"(b) if so, what specific issues should the decrees reach;"
"(c) should this Court appoint a special master to hear evidence with a view
to recommending specific terms for such decrees;"
"(d) should this Court remand to the courts of first instance with directions to
frame decrees in these cases and, if so, what general directions should the
decrees of this Court include and what procedures should the courts of first
instance follow in arriving at the specific terms of more detailed decrees?"
[Footnote 14]
See Rule 42, Revised Rules of this Court (effective July 1, 1954).
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Roe v. Wade,
410 U.S. 113 (1973)
U.S. Supreme Court
Roe v. Wade, 410 U.S. 113 (1973)
Roe v. Wade
No. 70-18
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
410 U.S. 113
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p.
179, present constitutional challenges to state criminal abortion legislation.
The Texas statutes under attack here are typical of those that have been in
effect in many States for approximately a century. The Georgia statutes, in
contrast, have a modern cast, and are a legislative product that, to an extent
at least, obviously reflects the influences of recent attitudinal change, of
advancing medical knowledge and techniques, and of new thinking about an
old issue.
We forthwith acknowledge our awareness of the sensitive and emotional
nature of the abortion controversy, of the vigorous opposing views, even
among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure to
the raw edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and to color one's
thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
because we do, we
[117]
have inquired into, and in this opinion place some emphasis upon, medical
and medical-legal history and what that history reveals about man's attitudes
toward the abortion procedure over the centuries. We bear in mind, too, Mr.
Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New
York, 198 U. S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and
the accident of our finding certain opinions natural and familiar or novel and
even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of
the State's Penal Code. [Footnote 1] These make it a crime to "procure an
abortion," as therein
[118]
defined, or to attempt one, except with respect to "an abortion procured or
attempted by medical advice for the purpose of saving the life of the mother."
Similar statutes are in existence in a majority of the States. [Footnote 2]
[119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c.
49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon
modified into language that has remained substantially unchanged to the
present time. SeeTexas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal,
Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541
(1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in
each of these compilations provided the same exception, as does the
present Article 1196, for an abortion by "medical advice for the purpose of
saving the life of the mother." [Footnote 3]
[120]
II
Jane Roe, [Footnote 4] a single woman who was residing in Dallas County,
Texas, instituted this federal action in March 1970 against the District
Attorney of the county. She sought a declaratory judgment that the Texas
criminal abortion statutes were unconstitutional on their face, and an
injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to
terminate her pregnancy by an abortion "performed by a competent, licensed
physician, under safe, clinical conditions"; that she was unable to get a
"legal" abortion in Texas because her life did not appear to be threatened by
the continuation of her pregnancy; and that she could not afford to travel to
another jurisdiction in order to secure a legal abortion under safe conditions.
She claimed that the Texas statutes were unconstitutionally vague and that
they abridged her right of personal privacy, protected by the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments. By an amendment to her
complaint, Roe purported to sue "on behalf of herself and all other women"
similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave
to intervene in Roe's action. In his complaint, he alleged that he had been
arrested previously for violations of the Texas abortion statutes, and
[121]
that two such prosecutions were pending against him. He described
conditions of patients who came to him seeking abortions, and he claimed
that for many cases he, as a physician, was unable to determine whether
they fell within or outside the exception recognized by Article 1196. He
alleged that, as a consequence, the statutes were vague and uncertain, in
violation of the Fourteenth Amendment, and that they violated his own and
his patients' rights to privacy in the doctor-patient relationship and his own
right to practice medicine, rights he claimed were guaranteed by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe, [Footnote 5] a married couple, filed a companion
complaint to that of Roe. They also named the District Attorney as defendant,
claimed like constitutional deprivations, and sought declaratory and injunctive
relief. The Does alleged that they were a childless couple; that Mrs. Doe was
suffering from a "neural-chemical" disorder; that her physician had "advised
her to avoid pregnancy until such time as her condition has materially
improved" (although a pregnancy at the present time would not present "a
serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that, if she should become
pregnant, she would want to terminate the pregnancy by an abortion
performed by a competent, licensed physician under safe, clinical conditions.
By an amendment to their complaint, the Does purported to sue "on behalf of
themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened
three-judge district court. The suits thus presented the situations of the
pregnant single woman, the childless couple, with the wife not pregnant,
[122]
and the licensed practicing physician, all joining in the attack on the Texas
criminal abortion statutes. Upon the filing of affidavits, motions were made for
dismissal and for summary judgment. The court held that Roe and members
of her class, and Dr. Hallford, had standing to sue and presented justiciable
controversies, but that the Does had failed to allege facts sufficient to state a
present controversy, and did not have standing. It concluded that, with
respect to the requests for a declaratory judgment, abstention was not
warranted. On the merits, the District Court held that the
"fundamental right of single women and married persons to choose whether
to have children is protected by the Ninth Amendment, through the
Fourteenth Amendment,"
and that the Texas criminal abortion statutes were void on their face because
they were both unconstitutionally vague and constituted an overbroad
infringement of the plaintiffs' Ninth Amendment rights. The court then held
that abstention was warranted with respect to the requests for an injunction.
It therefore dismissed the Does' complaint, declared the abortion statutes
void, and dismissed the application for injunctive relief. 314 F.Supp. 1217,
1225 (ND Tex.1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C.
§ 1253, have appealed to this Court from that part of the District Court's
judgment denying the injunction. The defendant District Attorney has
purported to cross-appeal, pursuant to the same statute, from the court's
grant of declaratory relief to Roe and Hallford. Both sides also have taken
protective appeals to the United States Court of Appeals for the Fifth Circuit.
That court ordered the appeals held in abeyance pending decision here. We
postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941
(1971)
[123]
It might have been preferable if the defendant, pursuant to our Rule 20, had
presented to us a petition for certiorari before judgment in the Court of
Appeals with respect to the granting of the plaintiffs' prayer for declaratory
relief. Our decisions in Mitchell v. Donovan, 398 U. S. 427 (1970), and Gunn
v. University Committee, 399 U. S. 383 (1970), are to the effect that § 1253
does not authorize an appeal to this Court from the grant or denial of
declaratory relief alone. We conclude, nevertheless, that those decisions do
not foreclose our review of both the injunctive and the declaratory aspects of
a case of this kind when it is properly here, as this one is, on appeal under
1253 from specific denial of injunctive relief, and the arguments as to both
aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U. S.
320(1970); Florida Lime Growers v. Jacobsen, 362 U. S. 73, 80-81 (1960). It
would be destructive of time and energy for all concerned were we to rule
otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention.
Have Roe and the Does established that "personal stake in the outcome of
the controversy," Baker v. Carr, 369 U. S. 186, 204 (1962), that insures that
"the dispute sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of judicial resolution,"
Flast v. Cohen, 392 U. S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.
S. 727, 732 (1972)? And what effect did the pendency of criminal abortion
charges against Dr. Hallford in state court have upon the propriety of the
federal court's granting relief to him as a plaintiff-intervenor?
[124]
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that
Roe is a fictitious person. For purposes of her case, we accept as true, and
as established, her existence; her pregnant state, as of the inception of her
suit in March 1970 and as late as May 21 of that year when she filed an alias
affidavit with the District Court; and her inability to obtain a legal abortion in
Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late a
May, there can be little dispute that it then presented a case or controversy
and that, wholly apart from the class aspects, she, as a pregnant single
woman thwarted by the Texas criminal abortion laws, had standing to
challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2
1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v.
Menghini, 339 F.Supp. 986, 990-991 (Kan.1972). See Truax v. Raich, 239 U.
S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting
anything to the contrary. The "logical nexus between the status asserted and
the claim sought to be adjudicated," Flast v. Cohen, 392 U.S. at 102, and the
necessary degree of contentiousness, Golden v. Zwickler, 394 U. S.
103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was
pregnant at the time of the District Court hearing on May 22, 1970, [Footnote
6] or on the following June 17 when the court's opinion and judgment were
filed. And he suggests that Roe's case must now be moot because she and
all other members of her class are no longer subject to any 1970 pregnancy.
[125]
The usual rule in federal cases is that an actual controversy must exist at
stages of appellate or certiorari review, and not simply at the date the action
is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden
v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S.
403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to
term before the usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive much beyond
the trial stage, and appellate review will be effectively denied. Our law should
not be that rigid. Pregnancy often comes more than once to the same
woman, and in the general population, if man is to survive, it will always be
with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading
review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515
(1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess
Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345
U. S. 629, 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to
undertake this litigation, that she presented a justiciable controversy, and that
the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation
as a plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at
the present time stands charged by indictment with violating said laws in the
Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs.
[126]
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James
H. Hallford, No. C-692524-H. In both cases, the defendant is charged with
abortion. . . ."
In his application for leave to intervene, the doctor made like representations
as to the abortion charges pending in the state court. These representations
were also repeated in the affidavit he executed and filed in support of his
motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under
which he stands charged in criminal prosecutions simultaneously pending in
state court. Although he stated that he has been arrested in the past for
violating the State's abortion laws, he makes no allegation of any substantial
and immediate threat to any federally protected right that cannot be asserted
in his defense against the state prosecutions. Neither is there any allegation
of harassment or bad faith prosecution. In order to escape the rule articulated
in the cases cited in the next paragraph of this opinion that, absent
harassment and bad faith, a defendant in a pending state criminal case
cannot affirmatively challenge in federal court the statutes under which the
State is prosecuting him, Dr. Hallford seeks to distinguish his status as a
present state defendant from his status as a "potential future defendant," and
to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401
U. S. 66 (1971), compels the conclusion that the District Court erred when it
granted declaratory relief to Dr. Hallford instead of refraining from so doing.
The court, of course, was correct in refusing to grant injunctive relief to the
doctor. The reasons supportive of that action, however, are those expressed
in Samuels v. Mackell, supra, and in Younger v.
[127]
Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v.
Ledesma, 401 U. S. 82 (1971); and Byrne v. Karaleis, 401 U. S.
216 (1971). See also Dombrowski v. Pfister, 380 U. S. 479 (1965). We note,
in passing, that Younger and its companion cases were decided after the
three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.
[Footnote 7] He is remitted to his defenses in the state criminal proceedings
against him. We reverse the judgment of the District Court insofar as it
granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue
of the Does' standing in their case has little significance. The claims they
assert are essentially the same as those of Roe, and they attack the same
statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not
being pregnant, who have no desire to have children at this time because of
their having received medical advice that Mrs. Doe should avoid pregnancy,
and for "other highly personal reasons." But they "fear . . . they may face the
prospect of becoming
[128]
parents." And if pregnancy ensues, they "would want to terminate" it by an
abortion. They assert an inability to obtain an abortion legally in Texas and,
consequently, the prospect of obtaining an illegal abortion there or of going
outside Texas to some place where the procedure could be obtained legally
and competently.
We thus have as plaintiffs a married couple who have, as their asserted
immediate and present injury, only an alleged "detrimental effect upon [their]
marital happiness" because they are forced to "the choice of refraining from
normal sexual relations or of endangering Mary Doe's health through a
possible pregnancy." Their claim is that, sometime in the future, Mrs. Doe
might become pregnant because of possible failure of contraceptive
measures, and, at that time in the future, she might want an abortion that
might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character.
Their alleged injury rests on possible future contraceptive failure, possible
future pregnancy, possible future unpreparedness for parenthood, and
possible future impairment of health. Any one or more of these several
possibilities may not take place, and all may not combine. In the Does'
estimation, these possibilities might have some real or imagined impact upon
their marital happiness. But we are not prepared to say that the bare
allegation of so indirect an injury is sufficient to present an actual case or
controversy.Younger v. Harris, 401 U.S. at 41-42; Golden v. Zwickler, 394
U.S. at 109-110; Abele v. Markle, 452 F.2d at 1124-1125; Crossen v.
Breckenridge, 446 F.2d at 839. The Does' claim falls far short of those
resolved otherwise in the cases that the Does urge upon us,
namely, Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Data
Processing Service v. Camp, 397 U. S. 150 (1970);
[129]
and Epperson v. Arkansas, 393 U. S. 97 (1968). See also Truax v.
Raich, 239 U. S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
dismissal.
V [131]
The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to
choose to terminate her pregnancy. Appellant would discover this right in the
concept of personal "liberty" embodied in the Fourteenth Amendment's Due
Process Clause; or in personal, marital, familial, and sexual privacy said to
be protected by the Bill of Rights or its penumbras, see Griswold v.
Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S.
438 (1972); id. at 460 (WHITE, J., concurring in result); or among those
rights reserved to the people by the Ninth Amendment, Griswold v.
Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing
this claim, we feel it desirable briefly to survey, in several aspects, the history
of abortion, for such insight as that history may afford us, and then to
examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion
laws in effect in a majority of States today are of relatively recent vintage.
Those laws, generally proscribing abortion or its attempt at any time during
pregnancy except when necessary to preserve the pregnant woman's life,
are not of ancient or even of common law origin. Instead, they derive from
statutory changes effected, for the most part, in the latter half of the 19th
century.
[130]
1. Ancient attitudes. These are not capable of precise determination. We are
told that, at the time of the Persian Empire, abortifacients were known, and
that criminal abortions were severely punished. [Footnote 8] We are also
told, however, that abortion was practiced in Greek times as well as in the
Roman Era, [Footnote 9] and that "it was resorted to without scruple."
[Footnote 10] The Ephesian, Soranos, often described as the greatest of the
ancient gynecologists, appears to have been generally opposed to Rome's
prevailing free-abortion practices. He found it necessary to think first of the
life of the mother, and he resorted to abortion when, upon this standard, he
felt the procedure advisable. [Footnote 11] Greek and Roman law afforded
little protection to the unborn. If abortion was prosecuted in some places, it
seems to have been based on a concept of a violation of the father's right to
his offspring. Ancient religion did not bar abortion. [Footnote 12]
2. The Hippocratic Oath. What then of the famous Oath that has stood so
long as the ethical guide of the medical profession and that bears the name
of the great Greek (460(?)-377(?) B. C.), who has been described
as the Father of Medicine, the "wisest and the greatest practitioner of his art,"
and the "most important and most complete medical personality of antiquity,"
who dominated the medical schools of his time, and who typified the sum of
the medical knowledge of the past? [Footnote 13] The Oath varies somewhat
according to the particular translation, but in any translation the content is
clear:
"I will give no deadly medicine to anyone if asked, nor suggest any such
counsel; and in like manner, I will not give to a woman a pessary to produce
abortion, [Footnote 14]"
or
"I will neither give a deadly drug to anybody if asked for it, nor will I make a
suggestion to this effect. Similarly, I will not give to a woman an abortive
remedy. [Footnote 15]"
Although the Oath is not mentioned in any of the principal briefs in this case
or in Doe v. Bolton, post, p. 179, it represents the apex of the development of
strict ethical concepts in medicine, and its influence endures to this day. Why
did not the authority of Hippocrates dissuade abortion practice in his time and
that of Rome? The late Dr. Edelstein provides us with a theory: [Footnote 16]
The Oath was not uncontested even in Hippocrates' day; only the
Pythagorean school of philosophers frowned upon the related act of suicide.
Most Greek thinkers, on the other hand, commended abortion, at least prior
to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For
the Pythagoreans, however, it was a matter of dogma. For them, the embryo
was animate from the moment of conception, and abortion meant destruction
of a living being. The abortion clause of the Oath, therefore, "echoes
Pythagorean doctrines,"
[132]
and "[i]n no other stratum of Greek opinion were such views held or
proposed in the same spirit of uncompromising austerity." [Footnote 17]
Dr. Edelstein then concludes that the Oath originated in a group representing
only a small segment of Greek opinion, and that it certainly was not accepted
by all ancient physicians. He points out that medical writings down to Galen
(A.D. 130-200) "give evidence of the violation of almost every one of its
injunctions." [Footnote 18] But with the end of antiquity, a decided change
took place. Resistance against suicide and against abortion became
common. The Oath came to be popular. The emerging teachings of
Christianity were in agreement with the Pythagorean ethic. The Oath
"became the nucleus of all medical ethics," and "was applauded as the
embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean
manifesto, and not the expression of an absolute standard of medical
conduct." [Footnote 19]
This, it seems to us, is a satisfactory and acceptable explanation of the
Hippocratic Oath's apparent rigidity. It enables us to understand, in historical
context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that, at common law, abortion
performed before "quickening" -- the first recognizable movement of the
fetus in utero, appearing usually from the 16th to the 18th week of pregnancy
[Footnote 20] -- was not an indictable offense. [Footnote 21] The absence
[133]
of a common law crime for pre-quickening abortion appears to have
developed from a confluence of earlier philosophical, theological, and civil
and canon law concepts of when life begins. These disciplines variously
approached the question in terms of the point at which the embryo or fetus
became "formed" or recognizably human, or in terms of when a "person"
came into being, that is, infused with a "soul" or "animated." A loose
consensus evolved in early English law that these events occurred at some
point between conception and live birth. [Footnote 22] This was "mediate
animation." Although
[134]
Christian theology and the canon law came to fix the point of animation at 40
days for a male and 80 days for a female, a view that persisted until the 19th
century, there was otherwise little agreement about the precise time of
formation or animation. There was agreement, however, that, prior to this
point, the fetus was to be regarded as part of the mother, and its destruction,
therefore, was not homicide. Due to continued uncertainty about the precise
time when animation occurred, to the lack of any empirical basis for the 40-
80-day view, and perhaps to Aquinas' definition of movement as one of the
two first principles of life, Bracton focused upon quickening as the critical
point. The significance of quickening was echoed by later common law
scholars, and found its way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a
lesser crime, is still disputed. Bracton, writing early in the 13th century,
thought it homicide. [Footnote 23] But the later and predominant view,
following the great common law scholars, has been that it was, at most, a
lesser offense. In a frequently cited
[135]
passage, Coke took the position that abortion of a woman "quick with childe"
is "a great misprision, and no murder." [Footnote 24] Blackstone followed,
saying that, while abortion after quickening had once been considered
manslaughter (though not murder), "modern law" took a less severe view.
[Footnote 25] A recent review of the common law precedents argues,
however, that those precedents contradict Coke, and that even post-
quickening abortion was never established as a common law crime.
[Footnote 26] This is of some importance, because, while most American
courts ruled, in holding or dictum, that abortion of an unquickened fetus was
not criminal under their received common law, [Footnote 27] others followed
Coke in stating that abortion
[136]
of a quick fetus was a "misprision," a term they translated to mean
"misdemeanor." [Footnote 28] That their reliance on Coke on this aspect of
the law was uncritical and, apparently in all the reported cases, dictum (due
probably to the paucity of common law prosecutions for post-quickening
abortion), makes it now appear doubtful that abortion was ever firmly
established as a common law crime even with respect to the destruction of a
quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a
quick fetus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the
felony of abortion before quickening, and thus preserved the "quickening"
distinction. This contrast was continued in the general revision of 1828, 9
Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty,
in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses
Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the
core of English anti-abortion law until the liberalizing reforms of 1967. In
1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into
being. Its emphasis was upon the destruction of "the life of a child capable of
being born alive." It made a willful act performed with the necessary intent a
felony. It contained a proviso that one was not to be
[137]
found guilty of the offense
"unless it is proved that the act which caused the death of the child was not
done in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v.
Bourne, [1939] 1 K.B. 687. This case apparently answered in the affirmative
the question whether an abortion necessary to preserve the life of the
pregnant woman was excepted from the criminal penalties of the 1861 Act. In
his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and
observed that that Act related to "the case where a child is killed by a willful
act at the time when it is being delivered in the ordinary course of
nature." Id. at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso in
the 1929 Act, even though there was no mention of preserving the mother's
life in the 1861 Act. He then construed the phrase "preserving the life of the
mother" broadly, that is, "in a reasonable sense," to include a serious and
permanent threat to the mother's health, and instructed the jury to acquit Dr.
Bourne if it found he had acted in a good faith belief that the abortion was
necessary for this purpose. Id. at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of
1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform
an abortion where two other licensed physicians agree (a)
"that the continuance of the pregnancy would involve risk to the life of the
pregnant woman, or of injury to the physical or mental health of the pregnant
woman or any existing children of her family, greater than if the pregnancy
were terminated,"
or (b)
"that there is a substantial risk that, if the child were born it would suffer from
such physical or mental abnormalities as
[138]
to be seriously handicapped."
The Act also provides that, in making this determination, "account may be
taken of the pregnant woman's actual or reasonably foreseeable
environment." It also permits a physician, without the concurrence of others,
to terminate a pregnancy where he is of the good faith opinion that the
abortion "is immediately necessary to save the life or to prevent grave
permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States
until mid-19th century was the preexisting English common law. Connecticut,
the first State to enact abortion legislation, adopted in 1821 that part of Lord
Ellenborough's Act that related to a woman "quick with child." [Footnote 29]
The death penalty was not imposed. Abortion before quickening was made a
crime in that State only in 1860. [Footnote 30] In 1828, New York enacted
legislation [Footnote 31] that, in two respects, was to serve as a model for
early anti-abortion statutes. First, while barring destruction of an unquickened
fetus as well as a quick fetus, it made the former only a misdemeanor, but
the latter second-degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it
"shall have been necessary to preserve the life of such mother, or shall have
been advised by two physicians to be necessary for such purpose."
By 1840, when Texas had received the common law, [Footnote 32] only eight
American States
[139]
had statutes dealing with abortion. [Footnote 33] It was not until after the War
Between the States that legislation began generally to replace the common
law. Most of these initial statutes dealt severely with abortion after
quickening, but were lenient with it before quickening. Most punished
attempts equally with completed abortions. While many statutes included the
exception for an abortion thought by one or more physicians to be necessary
to save the mother's life, that provision soon disappeared, and the typical law
required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century, the quickening distinction
disappeared from the statutory law of most States and the degree of the
offense and the penalties were increased. By the end of the 1950's, a large
majority of the jurisdictions banned abortion, however and whenever
performed, unless done to save or preserve the life of the mother. [Footnote
34] The exceptions, Alabama and the District of Columbia, permitted abortion
to preserve the mother's health. [Footnote 35] Three States permitted
abortions that were not "unlawfully" performed or that were not "without
lawful justification," leaving interpretation of those standards to the courts.
[Footnote 36] In
[140]
the past several years, however, a trend toward liberalization of abortion
statutes has resulted in adoption, by about one-third of the States, of less
stringent laws, most of them patterned after the ALI Model Penal Code, §
230.3, [Footnote 37] set forth as Appendix B to the opinion in Doe v. Bolton,
post, p. 205.
It is thus apparent that, at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion
was viewed with less disfavor than under most American statutes currently in
effect. Phrasing it another way, a woman enjoyed a substantially broader
right to terminate a pregnancy than she does in most States today. At least
with respect to the early stage of pregnancy, and very possibly without such
a limitation, the opportunity
[141]
to make this choice was present in this country well into the 19th century.
Even later, the law continued for some time to treat less punitively an
abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a
significant role in the enactment of stringent criminal abortion legislation
during that period.
An AMA Committee on Criminal Abortion was appointed in May, 1857. It
presented its report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the
Twelfth Annual Meeting. That report observed that the Committee had been
appointed to investigate criminal abortion "with a view to its general
suppression." It deplored abortion and its frequency and it listed three causes
of "this general demoralization":
"The first of these causes is a widespread popular ignorance of the true
character of the crime -- a belief, even among mothers themselves, that the
foetus is not alive till after the period of quickening."
"The second of the agents alluded to is the fact that the profession
themselves are frequently supposed careless of foetal life. . . ."
"The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent
and actual existence of the child before birth, as a living being. These errors,
which are sufficient in most instances to prevent conviction, are based, and
only based, upon mistaken and exploded medical dogmas. With strange
inconsistency, the law fully acknowledges the foetus in utero and its inherent
rights, for civil purposes; while personally and as criminally affected, it fails to
recognize it,
[142]
and to its life as yet denies all protection."
Id. at 776. The Committee then offered, and the Association adopted,
resolutions protesting "against such unwarrantable destruction of human life,"
calling upon state legislatures to revise their abortion laws, and requesting
the cooperation of state medical societies "in pressing the subject." Id. at 28,
78.
In 1871, a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation,
"We had to deal with human life. In a matter of less importance, we could
entertain no compromise. An honest judge on the bench would call things by
their proper names. We could do no less."
22 Trans. of the Am.Med.Assn. 268 (1871). It proffered resolutions, adopted
by the Association, id. at 38-39, recommending, among other things, that it
"be unlawful and unprofessional for any physician to induce abortion or physician in an accredited hospital only after consultation with two other
premature labor without the concurrent opinion of at least one respectable physicians and in conformity with state law, and that no party to the
consulting physician, and then always with a view to the safety of the child -- procedure should be required to violate personally held moral principles.
if that be possible," [Footnote 38] Proceedings

and calling [144]

"the attention of the clergy of all denominations to the perverted views of of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council
morality entertained by a large class of females -- aye, and men also, on this rendered a complementary opinion. [Footnote 39]
important question."
7. The position of the American Public Health Association. In October, 1970,
Except for periodic condemnation of the criminal abortionist, no further formal the Executive Board of the APHA adopted Standards for Abortion Services.
AMA action took place until 1967. In that year, the Committee on Human These were five in number:
Reproduction urged the adoption of a stated policy of opposition to induced
abortion except when there is "documented medical evidence" of a threat to "a. Rapid and simple abortion referral must be readily available through state
the health or life of the mother, or that the child "may be born with and local public
incapacitating physical deformity or mental deficiency," or that a pregnancy
"resulting from legally established statutory or forcible rape or incest may [145]
constitute a threat to the mental or physical health of the
health departments, medical societies, or other nonprofit organizations."
[143]
"b. An important function of counseling should be to simplify and expedite the
patient," two other physicians "chosen because of their recognized
provision of abortion services; it should not delay the obtaining of these
professional competence have examined the patient and have concurred in
services."
writing," and the procedure "is performed in a hospital accredited by the Joint
Commission on Accreditation of Hospitals." The providing of medical
information by physicians to state legislatures in their consideration of "c. Psychiatric consultation should not be mandatory. As in the case of other
legislation regarding therapeutic abortion was "to be considered consistent specialized medical services, psychiatric consultation should be sought for
with the principles of ethics of the American Medical Association." This definite indications, and not on a routine basis."
recommendation was adopted by the House of Delegates. Proceedings of
the AMA House of Delegates 40-51 (June 1967). "d. A wide range of individuals from appropriately trained, sympathetic
volunteers to highly skilled physicians may qualify as abortion counselors."
In 1970, after the introduction of a variety of proposed resolutions and of a
report from its Board of Trustees, a reference committee noted "polarization "e. Contraception and/or sterilization should be discussed with each abortion
of the medical profession on this controversial issue"; division among those patient."
who had testified; a difference of opinion among AMA councils
and.committees; "the remarkable shift in testimony" in six months, felt to be "Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396
influenced "by the rapid changes in state laws and by the judicial decisions (1971). Among factors pertinent to life and health risks associated with
which tend to make abortion more freely available; " and a feeling "that this abortion were three that 'are recognized as important': "
trend will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference committee. "a. the skill of the physician,"
The preambles emphasized "the best interests of the patient," "sound clinical
judgment," and "informed patient consent," in contrast to "mere
"b. the environment in which the abortion is performed, and above all"
acquiescence to the patient's demand." The resolutions asserted that
abortion is a medical procedure that should be performed by a licensed
"c. the duration of pregnancy, as determined by uterine size and confirmed
by menstrual history."
Id. at 397.
It was said that "a well equipped hospital" offers more protection
"to cope with unforeseen difficulties than an office or clinic without such
resources. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early
abortions in the presence of existing medical complications be performed in
hospitals as inpatient procedures. For pregnancies in the first trimester,
[146]
abortion in the hospital with or without overnight stay "is probably the safest
practice." An abortion in an extramural facility, however, is an acceptable
alternative "provided arrangements exist in advance to admit patients
promptly if unforeseen complications develop." Standards for an abortion
facility were listed. It was said that, at present, abortions should be performed
by physicians or osteopaths who are licensed to practice and who have
"adequate training." Id. at 398.
8. The position of the American Bar Association. At its meeting in February,
1972, the ABA House of Delegates approved, with 17 opposing votes, the
Uniform Abortion Act that had been drafted and approved the preceding
August by the Conference of Commissioners on Uniform State Laws. 58
A.B.A.J. 380 (1972). We set forth the Act in full in the margin. [Footnote 40]
The
[147]
Opinion of the Court Conference has appended an enlightening Prefatory
Note. [Footnote 41]
VII
Three reasons have been advanced to explain historically the enactment of
criminal abortion laws in the 19th century and to justify their continued
existence.
[148]
It has been argued occasionally that these laws were the product of a
Victorian social concern to discourage illicit sexual conduct. Texas, however,
does not advance this justification in the present case, and it appears that no
court or commentator has taken the argument seriously. [Footnote 42] The
appellants and amici contend, moreover, that this is not a proper state
purpose, at all and suggest that, if it were, the Texas statutes are overbroad
in protecting it, since the law fails to distinguish between married and unwed
mothers.
A second reason is concerned with abortion as a medical procedure. When
most criminal abortion laws were first enacted, the procedure was a
hazardous one for the woman. [Footnote 43] This was particularly true prior
to the
[149]
development of antisepsis. Antiseptic techniques, of course, were based on
discoveries by Lister, Pasteur, and others first announced in 1867, but were
not generally accepted and employed until about the turn of the century.
Abortion mortality was high. Even after 1900, and perhaps until as late as the
development of antibiotics in the 1940's, standard modern techniques such
as dilation and curettage were not nearly so safe as they are today. Thus, it
has been argued that a State's real concern in enacting a criminal abortion
law was to protect the pregnant woman, that is, to restrain her from
submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and
various amici refer to medical data indicating that abortion in early
pregnancy, that is, prior to the end of the first trimester, although not without
its risk, is now relatively safe. Mortality rates for women undergoing early
abortions, where the procedure is legal, appear to be as low as or lower than
the rates for normal childbirth. [Footnote 44] Consequently, any interest of
the State in protecting the woman from an inherently hazardous procedure,
except when it would be equally dangerous for her to forgo it, has largely
disappeared. Of course, important state interests in the areas of health and
medical standards do remain.
[150]
The State has a legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that insure maximum
safety for the patient. This interest obviously extends at least to the
performing physician and his staff, to the facilities involved, to the availability
of after-care, and to adequate provision for any complication or emergency
that might arise. The prevalence of high mortality rates at illegal "abortion
mills" strengthens, rather than weakens, the State's interest in regulating the
conditions under which abortions are performed. Moreover, the risk to the
woman increases as her pregnancy continues. Thus, the State retains a
definite interest in protecting the woman's own health and safety when an
abortion is proposed at a late stage of pregnancy.
The third reason is the State's interest -- some phrase it in terms of duty -- in
protecting prenatal life. Some of the argument for this justification rests on
the theory that a new human life is present from the moment of conception.
[Footnote 45] The State's interest and general obligation to protect life then
extends, it is argued, to prenatal life. Only when the life of the pregnant
mother herself is at stake, balanced against the life she carries within her,
should the interest of the embryo or fetus not prevail. Logically, of course, a
legitimate state interest in this area need not stand or fall on acceptance of
the belief that life begins at conception or at some other point prior to live
birth. In assessing the State's interest, recognition may be given to the less
rigid claim that as long as at least potential life is involved, the State may
assert interests beyond the protection of the pregnant woman alone.
[151]
Parties challenging state abortion laws have sharply disputed in some courts
the contention that a purpose of these laws, when enacted, was to protect
prenatal life. [Footnote 46] Pointing to the absence of legislative history to
support the contention, they claim that most state laws were designed solely
to protect the woman. Because medical advances have lessened this
concern, at least with respect to abortion in early pregnancy, they argue that
with respect to such abortions the laws can no longer be justified by any
state interest. There is some scholarly support for this view of original
purpose. [Footnote 47] The few state courts called upon to interpret their
laws in the late 19th and early 20th centuries did focus on the State's interest
in protecting the woman's health, rather than in preserving the embryo and
fetus. [Footnote 48] Proponents of this view point out that in many States,
including Texas, [Footnote 49] by statute or judicial interpretation, the
pregnant woman herself could not be prosecuted for self-abortion or for
cooperating in an abortion performed upon her by another. [Footnote 50]
They claim that adoption of the "quickening" distinction through received
common
[152]
law and state statutes tacitly recognizes the greater health hazards inherent
in late abortion and impliedly repudiates the theory that life begins at
conception.
It is with these interests, and the eight to be attached to them, that this case
is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does
exist under the Constitution. In varying contexts, the Court or individual
Justices have, indeed, found at least the roots of that right in the First
Amendment, Stanley v. Georgia, 394 U. S. 557, 564 (1969); in the Fourth
and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United
States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S.
616 (1886), see Olmstead v. United States, 277 U. S. 438, 478 (1928)
(Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v.
Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486
(Goldberg, J., concurring); or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S.
390, 399 (1923). These decisions make it clear that only personal rights that
can be deemed "fundamental" or "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this
guarantee of personal privacy. They also make it clear that the right has
some extension to activities relating to marriage, Loving v. Virginia, 388 U. S.
1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541-542
(1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460,
463-465
[153]
(WHITE, J., concurring in result); family relationships, Prince v.
Massachusetts, 321 U. S. 158, 166 (1944); and childrearing and
education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v.
Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is,
or, as the District Court determined, in the Ninth Amendment's reservation of
rights to the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy. The detriment that the State
would impose upon the pregnant woman by denying this choice altogether is
apparent. Specific and direct harm medically diagnosable even in early
pregnancy may be involved. Maternity, or additional offspring, may force
upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in this one,
the additional difficulties and continuing stigma of unwed motherhood may be
involved. All these are factors the woman and her responsible physician
necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that
the woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses. With this we do not agree. Appellant's arguments that Texas
either has no valid interest at all in regulating the abortion decision, or no
interest strong enough to support any limitation upon the woman's sole
determination, are unpersuasive. The
[154]
Court's decisions recognizing a right of privacy also acknowledge that some
state regulation in areas protected by that right is appropriate. As noted
above, a State may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting potential life. At
some point in pregnancy, these respective interests become sufficiently
compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute.
In fact, it is not clear to us that the claim asserted by some amici that one has
an unlimited right to do with one's body as one pleases bears a close
relationship to the right of privacy previously articulated in the Court's
decisions. The Court has refused to recognize an unlimited right of this kind
in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905)
(vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization).
We, therefore, conclude that the right of personal privacy includes the
abortion decision, but that this right is not unqualified, and must be
considered against important state interests in regulation.
We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion. A majority, in
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of
overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800
(Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224
(Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048
(ND Ga.1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp.
1385 (ND Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339
F.Supp. 986 (Kan.1972); YWCA v. Kuler, 342 F.Supp. 1048 (NJ
1972); Babbitz v. McCann,
[155]
310 F.Supp. 293 (ED Wis.1970), appeal dismissed, 400 U. S.
1 (1970); People v. Belous, 71 Cal.2d 954, 458 P.2d 194 (1969), cert.
denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
Others have sustained state statutes. Crossen v. Attorney General, 344
F.Supp. 587 (ED Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana
State Board of Medical Examiners, 318 F.Supp. 1217 (ED La.1970), appeal
docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC
1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741
(ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-
5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972); Spears v.
State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S.D. 663, 201
N.W.2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the
right of privacy, however based, is broad enough to cover the abortion
decision; that the right, nonetheless, is not absolute, and is subject to some
limitations; and that, at some point, the state interests as to protection of
health, medical standards, and prenatal life, become dominant. We agree
with this approach.
Where certain "fundamental rights" are involved, the Court has held that
regulation limiting these rights may be justified only by a "compelling state
interest," Kramer v. Union Free School District, 395 U. S. 621, 627
(1969); Shapiro v. Thompson, 394 U. S. 618, 634 (1969), Sherbert v.
Verner, 374 U. S. 398, 406 (1963), and that legislative enactments must be
narrowly drawn to express only the legitimate state interests at
stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of
State, 378 U. S. 500, 508 (1964); Cantwell v. Connecticut, 310 U. S. 296,
307-308 (1940); see
[156]
Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in
result).
In the recent abortion cases cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have concluded
that neither interest justified broad limitations on the reasons for which a
physician and his pregnant patient might decide that she should have an
abortion in the early stages of pregnancy. Courts sustaining state laws have
held that the State's determinations to protect health or prenatal life are
dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the
appellee presented "several compelling justifications for state presence in the
area of abortions," the statutes outstripped these justifications and swept "far
beyond any areas of compelling state interest." 314 F.Supp. at 1222-1223.
Appellant and appellee both contest that holding. Appellant, as has been
indicated, claims an absolute right that bars any state imposition of criminal
penalties in the area. Appellee argues that the State's determination to
recognize and protect prenatal life from and after conception constitutes a
compelling state interest. As noted above, we do not agree fully with either
formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment. In support of this, they
outline at length and in detail the well known facts of fetal development. If this
suggestion of personhood is established, the appellant's case, of course,
collapses,
[157]
for the fetus' right to life would then be guaranteed specifically by the
Amendment. The appellant conceded as much on reargument. [Footnote 51]
On the other hand, the appellee conceded on reargument [Footnote 52] that
no case could be cited that holds that a fetus is a person within the meaning
of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in
defining "citizens," speaks of "persons born or naturalized in the United
States." The word also appears both in the Due Process Clause and in the
Equal Protection Clause. "Person" is used in other places in the Constitution:
in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl.
2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [Footnote 53]
in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument
Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the
superseded cl. 3; in the provision outlining qualifications for the office of
President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and
the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and
Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth
Amendment. But in nearly all these instances, the use of the word is such
that it has application only post-natally. None indicates, with any assurance,
that it has any possible pre-natal application. [Footnote 54]
[158]
All this, together with our observation, supra, that, throughout the major
portion of the 19th century, prevailing legal abortion practices were far freer
than they are today, persuades us that the word "person," as used in the
Fourteenth Amendment, does not include the unborn. [Footnote 55] This is in
accord with the results reached in those few cases where the issue has been
squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751
(WD Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d
194, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle,
351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v.
State, ___ Ind. at ___, 285 N.E.2d at 270; Montana v. Rogers, 278 F.2d 68,
72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U. S.
308 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617
(1970); State v. Dickinson, 28
[159]
Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States
v. Vuitch, 402 U. S. 62 (1971), inferentially is to the same effect, for we there
would not have indulged in statutory interpretation favorable to abortion in
specified circumstances if the necessary consequence was the termination of
life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions
raised by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an
embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material,
or marriage, or procreation, or education, with which Eisenstadt and
Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively
concerned. As we have intimated above, it is reasonable and appropriate for
a State to decide that, at some point in time another interest, that of health of
the mother or that of potential human life, becomes significantly involved.
The woman's privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the
State has a compelling interest in protecting that life from and after
conception. We need not resolve the difficult question of when life begins.
When those trained in the respective disciplines of medicine, philosophy, and
theology are unable to arrive at any consensus, the judiciary, at this point in
the development of man's knowledge, is not in a position to speculate as to
the answer.
[160]
It should be sufficient to note briefly the wide divergence of thinking on this
most sensitive and difficult question. There has always been strong support
for the view that life does not begin until live' birth. This was the belief of the
Stoics. [Footnote 56] It appears to be the predominant, though not the
unanimous, attitude of the Jewish faith. [Footnote 57] It may be taken to
represent also the position of a large segment of the Protestant community,
insofar as that can be ascertained; organized groups that have taken a
formal position on the abortion issue have generally regarded abortion as a
matter for the conscience of the individual and her family. [Footnote 58] As
we have noted, the common law found greater significance in quickening.
Physician and their scientific colleagues have regarded that event with less
interest and have tended to focus either upon conception, upon live birth, or
upon the interim point at which the fetus becomes "viable," that is, potentially
able to live outside the mother's womb, albeit with artificial aid. [Footnote 59]
Viability is usually placed at about seven months (28 weeks) but may occur
earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate
animation," that held sway throughout the Middle Ages and the Renaissance
in Europe, continued to be official Roman Catholic dogma until the 19th
century, despite opposition to this "ensoulment" theory from those in the
Church who would recognize the existence of life from
[161]
the moment of conception. [Footnote 61] The latter is now, of course, the
official belief of the Catholic Church. As one brief amicus discloses, this is a
view strongly held by many non-Catholics as well, and by many physicians.
Substantial problems for precise definition of this view are posed, however,
by new embryological data that purport to indicate that conception is a
"process" over time, rather than an event, and by new medical techniques
such as menstrual extraction, the "morning-after" pill, implantation of
embryos, artificial insemination, and even artificial wombs. [Footnote 62]
In areas other than criminal abortion, the law has been reluctant to endorse
any theory that life, as we recognize it, begins before live birth, or to accord
legal rights to the unborn except in narrowly defined situations and except
when the rights are contingent upon live birth. For example, the traditional
rule of tort law denied recovery for prenatal injuries even though the child
was born alive. [Footnote 63] That rule has been changed in almost every
jurisdiction. In most States, recovery is said to be permitted only if the fetus
was viable, or at least quick, when the injuries were sustained, though few
[162]
courts have squarely so held. [Footnote 64] In a recent development,
generally opposed by the commentators, some States permit the parents of a
stillborn child to maintain an action for wrongful death because of prenatal
injuries. [Footnote 65] Such an action, however, would appear to be one to
vindicate the parents' interest and is thus consistent with the view that the
fetus, at most, represents only the potentiality of life. Similarly, unborn
children have been recognized as acquiring rights or interests by way of
inheritance or other devolution of property, and have been represented by
guardians ad litem. [Footnote 66] Perfection of the interests involved, again,
has generally been contingent upon live birth. In short, the unborn have
never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat,
however, that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman, whether she be
a resident of the State or a nonresident who seeks medical consultation and
treatment there, and that it has still another important and legitimate interest
in protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches
[163]
term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of
the mother, the "compelling" point, in the light of present medical knowledge,
is at approximately the end of the first trimester. This is so because of the
now-established medical fact, referred to above at 149, that, until the end of
the first trimester mortality in abortion may be less than mortality in normal
childbirth. It follows that, from and after this point, a State may regulate the
abortion procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health. Examples of permissible
state regulation in this area are requirements as to the qualifications of the
person who is to perform the abortion; as to the licensure of that person; as
to the facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-than-
hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this
"compelling" point, the attending physician, in consultation with his patient, is
free to determine, without regulation by the State, that, in his medical
judgment, the patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of interference
by the State.
With respect to the State's important and legitimate interest in potential life,
the "compelling" point is at viability. This is so because the fetus then
presumably has the capability of meaningful life outside the mother's womb.
State regulation protective of fetal life after viability thus has both logical and
biological justifications. If the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion
[164]
during that period, except when it is necessary to preserve the life or health
of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those "procured or attempted by medical advice
for the purpose of saving the life of the mother," sweeps too broadly. The
statute makes no distinction between abortions performed early in pregnancy
and those performed later, and it limits to a single reason, "saving" the
mother's life, the legal justification for the procedure. The statute, therefore,
cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional
challenge to the Texas statute asserted on grounds of vagueness. See
United States v. Vuitch, 402 U.S. at 67-72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a lifesaving procedure on behalf of the mother, without
regard to pregnancy stage and without recognition of the other interests
involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related
to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in
the potentiality of human life
[165]
may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.
2. The State may define the term "physician," as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of
the modern abortion statutes are considered. That opinion and this one, of
course, are to be read together. [Footnote 67]
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal
history, with the lenity of the common law, and with the demands of the
profound problems of the present day. The decision leaves the State free to
place increasing restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to the recognized state
interests. The decision vindicates the right of the physician to administer
medical treatment according to his professional judgment up to the points
where important
[166]
state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a
medical decision, and basic responsibility for it must rest with the physician. If
an individual practitioner abuses the privilege of exercising proper medical
judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the
Texas abortion statutes, as a unit, must fall. The exception of Art. 1196
cannot be struck down separately, for then the State would be left with a
statute proscribing all abortion procedures no matter how medically urgent
the case.
Although the District Court granted appellant Roe declaratory relief, it
stopped short of issuing an injunction against enforcement of the Texas
statutes. The Court has recognized that different considerations enter into a
federal court's decision as to declaratory relief, on the one hand, and
injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 252-255
(1967); Dombrowski v. Pfister, 380 U. S. 479 (1965). We are not dealing with
a statute that, on its face, appears to abridge free expression, an area of
particular concern under Dombrowski and refined in Younger v. Harris, 401
U.S. at 50.
We find it unnecessary to decide whether the District Court erred in
withholding injunctive relief, for we assume the Texas prosecutorial
authorities will give full credence to this decision that the present criminal
abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and
Dr. Hallford's complaint in intervention is dismissed. In all other respects, the
judgment
[167]
of the District Court is affirmed. Costs are allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U. S. 726, purported to sound
the death knell for the doctrine of substantive due process, a doctrine under
which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it:
"We have returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws."
Id. at 730. [Footnote 1]
Barely two years later, in Griswold v. Connecticut, 381 U. S. 479, the Court
held a Connecticut birth control law unconstitutional. In view of what had
been so recently said in Skrupa, the Court's opinion
in Griswold understandably did its best to avoid reliance on the Due Process
Clause of the Fourteenth Amendment as the ground for decision. Yet the
Connecticut law did not violate any provision of the Bill of Rights, nor any
other specific provision of the Constitution. [Footnote 2] So it was clear
[168]
to me then, and it is equally clear to me now, that the Griswold decision can
be rationally understood only as a holding that the Connecticut statute
substantively invaded the "liberty" that is protected by the Due Process
Clause of the Fourteenth Amendment. [Footnote 3] As so
understood, Griswold stands as one in a long line of pre-Skrupa cases
decided under the doctrine of substantive due process, and I now accept it
as such.
"In a Constitution for a free people, there can be no doubt that the meaning
of liberty' must be broad indeed." Board of Regents v. Roth, 408 U. S. 564,
572. The Constitution nowhere mentions a specific right of personal choice in
matters of marriage and family life, but the "liberty" protected by the Due
Process Clause of the Fourteenth Amendment covers more than those
freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar
Examiners, 353 U. S. 232, 238-239; Pierce v. Society of Sisters, 268 U. S.
510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v.
Thompson, 394 U. S. 618, 629-630; United States v. Guest, 383 U. S. 745,
757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v. Secretary of
State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127; Bolling v.
Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41.
[169]
As Mr. Justice Harlan once wrote:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot
be found in or limited by the precise terms of the specific guarantees
elsewhere provided in the Constitution. This 'liberty' is not a series of isolated
points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints . . . and which also recognizes, what a
reasonable and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment."
Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of
appeal) (citations omitted). In the words of Mr. Justice Frankfurter,
"Great concepts like . . . 'liberty' . . . were purposely left to gather meaning
from experience. For they relate to the whole domain of social and economic
fact, and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646
(dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in
matters of marriage and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U. S.
1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra;
Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158,
166; Skinner v. Oklahoma, 316 U. S. 535, 541. As recently as last Term,
in Eisenstadt v. Baird, 405 U. S. 438, 453, we recognized
"the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person
[170]
as the decision whether to bear or beget a child."
That right necessarily includes the right of a woman to decide whether or not
to terminate her pregnancy.
"Certainly the interests of a woman in giving of her physical and emotional
self during pregnancy and the interests that will be affected throughout her
life by the birth and raising of a child are of a far greater degree of
significance and personal intimacy than the right to send a child to private
school protected in Pierce v. Society of Sisters, 268 U. S. 510(1925), or the
right to teach a foreign language protected in Meyer v. Nebraska, 262 U. S.
390 (1923)."
Abele v. Markle, 351 F.Supp. 224, 227 (Conn.1972).
Clearly, therefore, the Court today is correct in holding that the right asserted
by Jane Roe is embraced within the personal liberty protected by the Due
Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a
constitutional freedom than that worked by the inflexible criminal statute now
in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful
scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to
permit a State to regulate abortions more stringently, or even to prohibit them
in the late stages of pregnancy. But such legislation is not before us, and I
think the Court today has thoroughly demonstrated that these state interests
cannot constitutionally support the broad abridgment of personal
[171]
liberty worked by the existing Texas law. Accordingly, I join the Court's
opinion holding that that law is invalid under the Due Process Clause of the
Fourteenth Amendment.
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in
question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion is
a plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her lawsuit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge v.
Irvis, 407 U. S. 163 (1972); Sierra, Club v. Morton, 405 U. S. 727 (1972). The
Court's statement of facts in this case makes clear, however, that the record
in no way indicates the presence of such a plaintiff. We know only that
plaintiff Roe at the time of filing her complaint was a pregnant woman; for
aught that appears in this record, she may have been in her last trimester of
pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage of
pregnancy. Nonetheless, the Court uses her complaint against the Texas
statute as a fulcrum for deciding that States may
[172]
impose virtually no restrictions on medical abortions performed during the
first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court
departs from the longstanding admonition that it should never "formulate a
rule of constitutional law broader than is required by the precise facts to
which it is to be applied." Liverpool, New York & Philadelphia S.S. Co. v.
Commissioners of Emigration, 113 U. S. 33, 39 (1885). See also Ashwander
v. TVA, 297 U. S. 288, 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which
the Court decides, I would reach a conclusion opposite to that reached by the
Court. I have difficulty in concluding, as the Court does, that the right of
"privacy" is involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not
"private" in the ordinary usage of that word. Nor is the "privacy" that the Court
finds here even a distant relative of the freedom from searches and seizures
protected by the Fourth Amendment to the Constitution, which the Court has
referred to as embodying a right to privacy. Katz v. United States, 389 U. S.
347 (1967).
If the Court means by the term "privacy" no more than that the claim of a
person to be free from unwanted state regulation of consensual transactions
may be a form of "liberty" protected by the Fourteenth Amendment, there is
no doubt that similar claims have been upheld in our earlier decisions on the
basis of that liberty. I agree with the statement of MR. JUSTICE STEWART
in his concurring opinion that the "liberty," against deprivation of which
without due process the Fourteenth
[173]
Amendment protects, embraces more than the rights found in the Bill of
Rights. But that liberty is not guaranteed absolutely against deprivation, only
against deprivation without due process of law. The test traditionally applied
in the area of social and economic legislation is whether or not a law such as
that challenged has a rational relation to a valid state objective. Williamson v.
Lee Optical Co., 348 U. S. 483, 491 (1955). The Due Process Clause of the
Fourteenth Amendment undoubtedly does place a limit, albeit a broad one,
on legislative power to enact laws such as this. If the Texas statute were to
prohibit an abortion even where the mother's life is in jeopardy, I have little
doubt that such a statute would lack a rational relation to a valid state
objective under the test stated in Williamson, supra. But the Court's
sweeping invalidation of any restrictions on abortion during the first trimester
is impossible to justify under that standard, and the conscious weighing of
competing factors that the Court's opinion apparently substitutes for the
established test is far more appropriate to a legislative judgment than to a
judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance
on the "compelling state interest" test. See Weber v. Aetna Casualty &
Surety Co., 406 U. S. 164, 179 (1972) (dissenting opinion). But the Court
adds a new wrinkle to this test by transposing it from the legal considerations
associated with the Equal Protection Clause of the Fourteenth Amendment to
this case arising under the Due Process Clause of the Fourteenth
Amendment. Unless I misapprehend the consequences of this transplanting
of the "compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than
it found it.
[174]
While the Court's opinion quotes from the dissent of Mr. Justice Holmes
in Lochner v. New York, 198 U. S. 45, 74 (1905), the result it reaches is more
closely attuned to the majority opinion of Mr. Justice Peckham in that case.
As in Lochner and similar cases applying substantive due process standards
to economic and social welfare legislation, the adoption of the compelling
state interest standard will inevitably require this Court to examine the
legislative policies and pass on the wisdom of these policies in the very
process of deciding whether a particular state interest put forward may or
may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than it
does of a determination of the intent of the drafters of the Fourteenth
Amendment.
The fact that a majority of the States reflecting, after all, the majority
sentiment in those States, have had restrictions on abortions for at least a
century is a strong indication, it seems to me, that the asserted right to an
abortion is not "so rooted in the traditions and conscience of our people as to
be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105
(1934). Even today, when society's views on abortion are changing, the very
existence of the debate is evidence that the "right" to an abortion is not so
universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of
the Fourteenth Amendment a right that was apparently completely unknown
to the drafters of the Amendment. As early as 1821, the first state law dealing
directly with abortion was enacted by the Connecticut Legislature.
Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth
[175]
Amendment in 1868, there were at least 36 laws enacted by state or
territorial legislatures limiting abortion. [Footnote 1] While many States have
amended or updated
[176]
their laws, 21 of the laws on the books in 1868 remain in effect today.
[Footnote 3-2] Indeed, the Texas statute struck down today was, as the
majority notes, first enacted in 1857,
[177]
and "has remained substantially unchanged to the present time." Ante at
119.
There apparently was no question concerning the validity of this provision or
of any of the other state statutes when the Fourteenth Amendment was
adopted. The only conclusion possible from this history is that the drafters did
not intend to have the Fourteenth Amendment withdraw from the States the
power to legislate with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here,
and that the enunciation of the substantive constitutional law in the Court's
opinion were proper, the actual disposition of the case by the Court is still
difficult to justify. The Texas statute is struck down in toto, even though the
Court apparently concedes that, at later periods of pregnancy Texas might
impose these self-same statutory limitations on abortion. My understanding
of past practice is that a statute found
[178]
to be invalid as applied to a particular plaintiff, but not unconstitutional as a
whole, is not simply "struck down" but is, instead, declared unconstitutional
as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.
S. 356 (1886); Street v. New York, 394 U. S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
Articles 4 and 5
SECOND DIVISION
G.R. No. 211465, December 03, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SHIRLEY
A. CASIO, Accused-Appellant.
DECISION
LEONEN, J.:
“Chicks mo dong?”1
With this sadly familiar question being used on the streets of many
of our cities, the fate of many desperate women is sealed and their
futures vanquished. This case resulted in the rescue of two minors
from this pernicious practice. Hopefully, there will be more rescues.
Trafficking in persons is a deplorable crime. It is committed even
though the minor knew about or consented to the act of trafficking.
This case involves Republic Act No. 9208,2 otherwise known as the
“Anti-Trafficking in Persons Act of 2003.”3
Accused Shirley A. Casio was charged for the violation of Republic
Act No. 9208, Section 4(a), qualified by Section 6(a). The
information against accused, dated May 5, 2008,
states:chanroblesvirtuallawlibrary
That on or about the 3rd day of May 2008, at about 1:00 o’clock
A.M., in the City of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with deliberate intent, with
intent to gain, did then and there hire and/or recruit AAA, a minor,
17 years old and BBB for the purpose of prostitution and sexual
exploitation, by acting as their procurer for different customers, for
money, profit or any other consideration, in Violation of Sec. 4,
Par. (a), Qualified by Sec. 6, Par. ( a), of R.A. 9208 (Qualified
Trafficking in Persons).
CONTRARY TO LAW.4
The facts, as found by the trial court and the Court of Appeals, are
as follows:
On May 2, 2008, International Justice Mission (IJM),5 a non-
governmental organization, coordinated with the police in order to
entrap persons engaged in human trafficking in Cebu City.6
Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe
Altubar, PO1 Albert Luardo, and PO1 Roy Carlo Veloso composed
the team of police operatives.7 PO1 Luardo and PO1 Veloso were
designated as decoys, pretending to be tour guides looking for girls
to entertain their guests.8 IJM provided them with marked money,
which was recorded in the police blotter.9
The team went to Queensland Motel and rented Rooms 24 and 25.
These rooms were adjacent to each other. Room 24 was
designated for the transaction while Room 25 was for the rest of
the police team.10
PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in
Barangay Kamagayan, Cebu City’s red light district. Accused
noticed them and called their attention by saying “Chicks mo
dong?” (Do you like girls, guys?).11
During trial, PO1 Luardo and PO1 Veloso testified that their
conversation with accused went as
follows:chanroblesvirtuallawlibrary
Accused:Chicks mo dong? (Do you like girls, guys?)
PO1 Unya mga bag-o? Kanang batan-on kay naa mi guests
Luardo: naghulat sa motel. (Are they new? They must be young
because we have guests waiting at the motel.)
Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get
Accused:
them.)12
At that point, PO1 Luardo sent a text message to PSI Ylanan that
they found a prospective subject.13
After a few minutes, accused returned with AAA and BBB, private
complainants in this case.14
Accused:Kining duha kauyon mo ani? (Are you satisfied with these
two?)
PO1 Maayo man kaha na sila modala ug kayat? (Well, are they
Veloso: good in sex?)15
Accused gave the assurance that the girls were good in sex. PO1
Luardo inquired how much their services would cost. Accused
replied, “Tag kinientos” (P500.00).16
PO1 Veloso and PO1 Luardo convinced accused to come with them
to Queensland Motel. Upon proceeding to Room 24, PO1 Veloso
handed the marked money to accused.17
As accused counted the money, PO1 Veloso gave PSI Ylanan a
missed call. This was their pre-arranged signal. The rest of the
team proceeded to Room 24, arrested accused, and informed her
of her constitutional rights. The police confiscated the marked
money from accused.18 Meanwhile, AAA and BBB “were brought to
Room 25 and placed in the custody of the representatives from the
IJM and the DSWD.”19
During trial, AAA testified that she was born on January 27, 1991.
This statement was supported by a copy of her certificate of live
birth.20
AAA narrated that in 2007, she worked as a house helper in
Mandaue City. In March 2008 she stopped working as a house
helper and transferred to Cebu City. She stayed with her cousin,
but she subsequently moved to a boarding house. It was there
where she met her friend, Gee Ann. AAA knew that Gee Ann
worked in a disco club. When Gee Ann found out that AAA was no
longer a virgin, she offered AAA work. AAA agreed because she
needed the money in order to help her father. AAA recalled that
she had sex with her first customer. She was paid P200.00 and
given an additional P500.00 as tip. For the first few weeks, Gee
Ann provided customers for AAA. Eventually, Gee Ann brought her
to Barangay Kamagayan, telling her that there were more
customers in that area.21
AAA stated that she knew accused was a pimp because AAA would
usually see her pimping girls to customers in Barangay
Kamagayan.22 AAA further testified that on May 2, 2008, accused
solicited her services for a customer. That was the first time that
she was pimped by accused.23 Accused brought her, BBB, and a
certain Jocelyn to Queensland Motel.24
AAA testified that Jocelyn stayed in the taxi, while she and BBB
went to Room 24. It was in Room 24 where the customer paid
Shirley. The police rushed in and told AAA and BBB to go to the
other room. AAA was then met by the Department of Social
Welfare and Development personnel who informed her that she
was rescued and not arrested.25
AAA described that her job as a prostitute required her to display
herself, along with other girls, between 7 p.m. to 8 p.m. She
received P400.00 for every customer who selected her.26
The prosecution also presented the police operatives during trial.
PSI Ylanan, SPO1 Mendaros, and SPO1 Altubar testified that after
PO1 Veloso had made the missed call to PSI Ylanan, they “rushed
to Room 24 and arrested the accused.”27 SPO1 Altubar retrieved
the marked money worth P1,000.00 from accused’s right hand
“and upon instruction from PCINSP Ylanan recorded the same at
the ‘police blotter prior operation’. . . .”28
The trial court noted that AAA requested assistance from the IJM
“in conducting the operation against the accused.”29
Version of the accused
In defense, accused testified that she worked as a laundrywoman.
On the evening of May 2, 2008, she went out to buy supper. While
walking, she was stopped by two men on board a blue car. The two
men asked her if she knew someone named Bingbing. She replied
that she only knew Gingging but not Bingbing. The men informed
her that they were actually looking for Gingging, gave her a piece
of paper with a number written on it, and told her to tell Gingging
to bring companions. When accused arrived home, she contacted
Gingging. Gingging convinced her to come because allegedly, she
would be given money by the two males.30
Ruling of the trial court
The Regional Trial Court, Branch 14 in Cebu City found accused
guilty beyond reasonable doubt and
held31 that:chanroblesvirtuallawlibrary
Accused had consummated the act of trafficking of person[s] . . .
as defined under paragraph (a), Section 3 of R.A. 9208 for the
purpose of letting her engage in prostitution as defined under
paragraph [c] of the same Section; the act of “sexual intercourse”
need not have been consummated for the mere “transaction” i.e.
the ‘solicitation’ for sex and the handing over of the “bust money”
of Php1,000.00 already consummated the said act.
....
WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY
beyond reasonable doubt of trafficking in persons under paragraph
(a), Section 4 as qualified under paragraph (a), Section 6 of R.A.
9208 and sentenced to suffer imprisonment of TWENTY (20) YEARS
and to pay a fine of ONE MILLION (Php1,000,000.00).
Finally, accused is ordered to pay the costs of these proceedings.
SO ORDERED[.]32
Ruling of the Court of Appeals
The Court of Appeals affirmed the findings of the trial court but
modified the fine and awarded moral damages. The dispositive
portion of the decision33 reads:chanroblesvirtuallawlibrary
WHEREFORE, in view of the foregoing premises, the instant
appeal is hereby DENIED. The assailed Decision dated 10 August
2010 promulgated by the Regional Trial Court, Branch 14 in Cebu
City in Crim. Case No. CBU-83122 is AFFIRMED WITH
MODIFICATIONS. The accused-appellant is accordingly sentenced
to suffer the penalty of life imprisonment and a fine of
Php2,000,000 and is ordered to pay each of the private
complainants Php150,000 as moral damages.
SO ORDERED.34
Accused filed a notice of appeal 35 on August 28, 2013, which the
Court of Appeals noted and gave due course in its
resolution36 dated January 6, 2014.
The case records of CA-G.R. CEB-CR No. 01490 were received by
this court on March 17, 2014.37
In the resolution38 dated April 29, 2014, this court resolved to
notify the parties that they may file their respective supplemental
briefs within 30 days from notice. This court also required the
Superintendent of the Correctional Institution for Women to
confirm the confinement of accused.39
Counsel for accused40 and the Office of the Solicitor General 41 filed
their respective manifestations, stating that they would no longer
file supplemental briefs considering that all issues had been
discussed in the appellant’s brief and appellee’s brief filed before
the Court of Appeals. Through a letter42 dated June 17, 2014,
Superintendent IV Rachel D. Ruelo confirmed accused’s
confinement at the Correctional Institution for Women since
October 27, 2010.
The sole issue raised by accused is whether the prosecution was
able to prove her guilt beyond reasonable doubt.
However, based on the arguments raised in accused’s brief, the
sole issue may be dissected into the following:
(1) Whether the entrapment operation conducted by the police was
valid, considering that there was no prior surveillance and the
police did not know the subject of the operation;43
(2) Whether the prosecution was able to prove accused’s guilt
beyond reasonable doubt even though there was no evidence
presented to show that accused has a history of engaging in
human trafficking;44 and
(3) Whether accused was properly convicted of trafficking in
persons, considering that AAA admitted that she works as a
prostitute.45
Arguments of accused
Accused argues that there was no valid entrapment. Instead, she
was instigated into committing the crime.46 The police did not
conduct prior surveillance and did not even know who their subject
was.47Neither did the police know the identities of the alleged
victims.
Accused further argues that under the subjective test, she should
be acquitted because the prosecution did not present evidence that
would prove she had a history of engaging in human trafficking or
any other offense. She denied being a pimp and asserted that she
was a laundrywoman.48 In addition, AAA admitted that she worked
as a prostitute. Thus, it was her decision to display herself to solicit
customers.49
Arguments of the plaintiff-appellee
The Office of the Solicitor General, counsel for plaintiff-appellee
People of the Philippines, argued that the trial court did not err in
convicting accused because witnesses positively identified her as
the person who solicited customers and received money for AAA
and BBB.50 Entrapment operations are valid and have been
recognized by courts.51 Likewise, her arrest in flagrante delicto is
valid.52 Hence, the trial court was correct in stating that accused
had “fully consummated the act of trafficking of persons. . .” 53
We affirm accused Shirley A. Casio’s conviction.
I.
Background of Republic Act No. 9208
The United Nations Convention against Transnational Organized
Crime (UN CTOC) was “adopted and opened for signature,
ratification and accession”54 on November 15, 2000. The UN CTOC
is supplemented by three protocols: (1) the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and
Children; (2) the Protocol against the Smuggling of Migrants by
Land, Sea and Air; and, (3) the Protocol against the Illicit
Manufacturing of and Trafficking in Firearms, their Parts and
Components and Ammunition.55
On December 14, 2000, the Philippines signed the United Nations
“Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children” (Trafficking Protocol).56 This was
ratified by the Philippine Senate on September 30, 2001.57 The
Trafficking Protocol’s entry into force was on December 25, 2003. 58
In the Trafficking Protocol, human trafficking is defined
as:chanroblesvirtuallawlibrary
Article 3
Use of terms
For the purposes of this Protocol:
(a) “Trafficking in persons” shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others
or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of
organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a)
have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt
of a child for the purpose of exploitation shall be considered
“trafficking in persons” even if this does not involve any of the
means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
Senator Loren Legarda, in her sponsorship speech, stated that the
“Anti-Trafficking Act will serve as the enabling law of the country’s
commitment to [the] protocol.”59
Senator Luisa Ejercito Estrada also delivered a sponsorship speech
and described trafficking in persons as
follows:chanroblesvirtuallawlibrary
Trafficking in human beings, if only to emphasize the gravity of its
hideousness, is tantamount to modern-day slavery at work. It is a
manifestation of one of the most flagrant forms of violence against
human beings. Its victims suffer the brunt of this insidious form of
violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced
labor, and indentured servitude.
....
As of this time, we have signed the following: the Convention on
the Elimination of all Forms of Discrimination Against Women; the
1995 Convention on the Rights of the Child; the United Nations
Convention on the Protection of Migrant Workers and their
Families; and the United Nations’ Resolution on Trafficking in
Women and Girls, among others.
Moreover, we have also expressed our support for the United
Nations’ Convention Against Organized Crime, including the
Trafficking Protocol in October last year.
At first glance, it appears that we are very responsive to the
problem. So it seems.
Despite these international agreements, we have yet to come up
with a law that shall squarely address human trafficking.60
During the interpellation of Republic Act No. 9208, then numbered
as Senate Bill No. 2444, Senator Teresa Aquino-Oreta asked if
there was a necessity for an anti-trafficking law when other laws
exist that cover trafficking.61
Senator Luisa Ejercito Estrada
explained:chanroblesvirtuallawlibrary
At present, Mr. President, the relevant laws to the trafficking issue
are the Revised Penal Code, Republic Act No. 8042 or the Migrant
Workers and Overseas Filipino Act, R[epublic] A[ct] No. 6955 or
the Mail-Order Bride Act, and Republic Act No. 8239 or the
Philippine Passport Act. These laws address issues such as illegal
recruitment, prostitution, falsification of public documents and the
mail-order bride scheme. These laws do not respond to the issue of
recruiting, harboring or transporting persons resulting in
prostitution, forced labor, slavery and slavery-like practices. They
only address to one or some elements of trafficking independent of
their results or consequence.62 (Emphasis supplied)
Thus, Republic Act No. 9208 was enacted in order to fully address
the issue of human trafficking. Republic Act No. 9208 was passed
on May 12, 2003, and approved on May 26, 2003.
II.
Elements of trafficking in persons
The elements of trafficking in persons can be derived from its
definition under Section 3(a) of Republic Act No. 9208,
thus:chanroblesvirtuallawlibrary
(1) The act of “recruitment, transportation, transfer or harbouring,
or receipt of persons with or without the victim’s consent or
knowledge, within or across national borders.”
(2) The means used which include “threat or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to
achieve the consent of a person having control over another;
and
(3) The purpose of trafficking is exploitation which includes
“exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery, servitude
or the removal or sale of organs.”63
On January 28, 2013, Republic Act No. 1036464 was approved,
otherwise known as the “Expanded Anti-Trafficking in Persons Act
of 2012.” Section 3(a) of Republic Act No. 9208 was amended by
Republic Act No. 10364 as follows:chanroblesvirtuallawlibrary
SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to
read as follows:
“SEC. 3. Definition of Terms. – As used in this Act:
“(a) Trafficking in Persons – refers to the recruitment, obtaining,
hiring, providing, offering, transportation, transfer, maintaining,
harboring, or receipt of persons with or without the victim’s
consent or knowledge, within or across national borders by means
of threat, or use of force, or other forms of coercion, abduction,
fraud, deception, abuse of power or of position, taking advantage
of the vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having
control over another person for the purpose of exploitation which
includes at a minimum, the exploitation or the prostitution of
others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs.
“The recruitment, transportation, transfer, harboring, adoption or
receipt of a child for the purpose of exploitation or when the
adoption is induced by any form of consideration for exploitative
purposes shall also be considered as ‘trafficking in persons’ even if
it does not involve any of the means set forth in the preceding
paragraph. (Emphasis supplied)
Under Republic Act No. 10364, the elements of trafficking in
persons have been expanded to include the following
acts:chanroblesvirtuallawlibrary
(1) The act of “recruitment, obtaining, hiring, providing, offering,
transportation, transfer, maintaining, harboring, or receipt of
persons with or without the victim’s consent or knowledge,
within or across national borders;”
(2) The means used include “by means of threat, or use of force, or
other forms of coercion, abduction, fraud, deception, abuse of
power or of position, taking advantage of the vulnerability of
the person, or, the giving or receiving of payments or benefits
to achieve the consent of a person having control over another
person”
(3) The purpose of trafficking includes “the exploitation or the
prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery, servitude or the removal or
sale of organs” (Emphasis supplied)
The Court of Appeals found that AAA and BBB were recruited by
accused when their services were peddled to the police who acted
as decoys.65 AAA was a child at the time that accused peddled her
services.66 AAA also stated that she agreed to work as a prostitute
because she needed money.67Accused took advantage of AAA’s
vulnerability as a child and as one who need money, as proven by
the testimonies of the witnesses.68
III.
Knowledge or consent of the minor is not a defense under
Republic Act No. 9208.
Accused claims that AAA admitted engaging in prostitution even
before May 2, 2008. She concludes that AAA was predisposed to
having sex with “customers” for money.69 For liability under our
law, this argument is irrelevant. As defined under Section 3(a) of
Republic Act No. 9208, trafficking in persons can still be committed
even if the victim gives consent.
SEC. 3. Definition of Terms. — As used in this Act:
a. Trafficking in Persons - refers to the recruitment,
transportation, transfer or harboring, or receipt of
persons with or without the victim's consent or knowledge,
within or across national borders by means of threat or use
of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking advantage
of the vulnerability of the persons, or, the giving or
receiving of payments or benefits to achieve the consent of
a person having control over another person for the purpose
of exploitation which includes at a minimum, the
exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
The recruitment transportation, transfer, harboring or
receipt of a child for the purpose of exploitation shall also be
considered as “trafficking in persons” even if it does not
involve any of the means set forth in the preceding
paragraph.70(Emphasis supplied)
The victim’s consent is rendered meaningless due to the coercive,
abusive, or deceptive means employed by perpetrators of human
trafficking.71 Even without the use of coercive, abusive, or
deceptive means, a minor’s consent is not given out of his or her
own free will.
Section 4 of Republic Act No. 9208 enumerates the different acts of
trafficking in persons. Accused was charged under Section 4(a),
which states:chanroblesvirtuallawlibrary
SEC. 4. Acts of Trafficking in Persons. — It shall be unlawful for
any person, natural or judicial, to commit any of the following acts.
a. To recruit, transport, transfer, harbor, provide, or receive a
person by any means, including those done under the pretext of
domestic or overseas employment or training or apprenticeship, for
the purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;72
Republic Act No. 9208 further enumerates the instances when the
crime of trafficking in persons is qualified.
SEC. 6. Qualified Trafficking in Persons. — The following are
considered as qualified trafficking:
a. When the trafficked person is a child;
b. When the adoption is effected through Republic Act No.
8043, otherwise known as the “Inter-Country Adoption Act
of 1995” and said adoption is for the purpose of
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
c. When the crime is committed by a syndicate, or in large
scale. Trafficking is deemed committed by a syndicate if
carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or
more persons, individually or as a group;
d. When the offender is an ascendant, parent, sibling,
guardian or a person who exercise authority over the
trafficked person or when the offense is committed by a
public officer or employee;
e. When the trafficked person is recruited to engage in
prostitution with any member of the military or law
enforcement agencies;
f. When the offender is a member of the military or law
enforcement agencies; and
g. When by reason or on occasion of the act of trafficking in
persons, the offended party dies, becomes insane, suffers
mutilation or is afflicted with Human Immunodeficiency
Virus (HIV) or the Acquired Immune Deficiency Syndrome
(AIDS). (Emphasis supplied)73
Section 3 (b) of Republic Act No. 9208 defines “child”
as:chanroblesvirtuallawlibrary
SEC. 3. Definition of Terms. — As used in this Act:
....
b. Child - refers to a person below eighteen (18) years of age or
one who is over eighteen (18) but is unable to fully take care of
or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental
disability or condition.74
Based on the definition of trafficking in persons and the
enumeration of acts of trafficking in persons, accused performed all
the elements in the commission of the offense when she peddled
AAA and BBB and offered their services to decoys PO1 Veloso and
PO1 Luardo in exchange for money. The offense was also qualified
because the trafficked persons were minors.
Here, AAA testified as to how accused solicited her services for the
customers waiting at Queensland Motel. AAA also testified that she
was only 17 years old when accused peddled her. Her certificate of
live birth was presented as evidence to show that she was born on
January 27, 1991.
The prosecution was able to prove beyond reasonable doubt that
accused committed the offense of trafficking in persons, qualified
by the fact that one of the victims was a child. As held by the trial
court:chanroblesvirtuallawlibrary
[T]he act of “sexual intercourse” need not have been consummated
for the mere “transaction” i.e. that ‘solicitation’ for sex and the
handing over of the “bust money” of Php.1,000.00 already
consummated the said act.75
IV.
Validity of the entrapment operation
In People v. Doria,76 this court discussed the objective test and the
subjective test to determine whether there was a valid entrapment
operation:chanroblesvirtuallawlibrary
. . . American federal courts and a majority of state courts use the
“subjective” or “origin of intent” test laid down in Sorrells v. United
States to determine whether entrapment actually occurred. The
focus of the inquiry is on the accused's predisposition to commit
the offense charged, his state of mind and inclination before his
initial exposure to government agents. All relevant facts such as
the accused's mental and character traits, his past offenses,
activities, his eagerness in committing the crime, his reputation,
etc., are considered to assess his state of mind before the crime.
The predisposition test emphasizes the accused's propensity to
commit the offense rather than the officer's misconduct and
reflects an attempt to draw a line between a “trap for the unwary
innocent and the trap for the unwary criminal.” If the accused was
found to have been ready and willing to commit the offense at any
favorable opportunity, the entrapment defense will fail even if a
police agent used an unduly persuasive inducement.
Some states, however, have adopted the “objective” test. . . .
Here, the court considers the nature of the police activity involved
and the propriety of police conduct. The inquiry is focused on the
inducements used by government agents, on police conduct, not
on the accused and his predisposition to commit the crime. For the
goal of the defense is to deter unlawful police conduct. The test of
entrapment is whether the conduct of the law enforcement agent
was likely to induce a normally law-abiding person, other than one
who is ready and willing, to commit the offense; for purposes of
this test, it is presumed that a law-abiding person would normally
resist the temptation to commit a crime that is presented by the
simple opportunity to act unlawfully. (Emphasis supplied, citations
omitted)77
Accused argued that in our jurisprudence, courts usually apply the
objective test in determining the whether there was an entrapment
operation or an instigation.78 However, the use of the objective test
should not preclude courts from also applying the subjective test.
She pointed out that:chanroblesvirtuallawlibrary
Applying the “subjective ” test it is worth invoking that accused-
appellant procures income from being a laundry woman. The
prosecution had not shown any proof evidencing accused-
appellant’s history in human trafficking or engagement in any
offense. She is not even familiar to the team who had has [sic]
been apprehending human traffickers for quite some
time.79 (Citations omitted)
Accused further argued that the police should have conducted a
prior surveillance before the entrapment operation.
Time and again, this court has discussed the difference between
entrapment and instigation. In Chang v. People,80 this court
explained that:chanroblesvirtuallawlibrary
There is entrapment when law officers employ ruses and schemes
to ensure the apprehension of the criminal while in the actual
commission of the crime. There is instigation when the accused is
induced to commit the crime. The difference in the nature of the
two lies in the origin of the criminal intent. In entrapment,
the mens rea originates from the mind of the criminal. The idea
and the resolve to commit the crime comes from him. In
instigation, the law officer conceives the commission of the crime
and suggests to the accused who adopts the idea and carries it into
execution.81
Accused contends that using the subjective test, she was clearly
instigated by the police to commit the offense. She denied being a
pimp and claimed that she earned her living as a laundrywoman.
On this argument, we agree with the finding of the Court of
Appeals:chanroblesvirtuallawlibrary
[I]t was the accused-appellant who commenced the transaction
with PO1 Luardo and PO1 Veloso by calling their attention on
whether they wanted girls for that evening, and when the officers
responded, it was the accused-appellant who told them to wait
while she would fetch the girls for their perusal.82
This shows that accused was predisposed to commit the offense
because she initiated the transaction. As testified by PO1 Veloso
and PO1 Luardo, accused called out their attention by saying
“Chicks mo dong?” If accused had no predisposition to commit the
offense, then she most likely would not have asked PO1 Veloso and
PO1 Luardo if they wanted girls.
The entrapment would still be valid using the objective test. The
police merely proceeded to D. Jakosalem Street in Barangay
Kamagayan. It was accused who asked them whether they wanted
girls. There was no illicit inducement on the part of the police for
the accused to commit the crime.
When accused was arrested, she was informed of her constitutional
rights.83 The marked money retrieved from her was recorded in the
police blotter prior to the entrapment operation and was presented
in court as evidence.84
On accused’s alibi that she was merely out to buy her supper that
night, the Court of Appeals noted that accused never presented
Gingging in court. Thus, her alibi was unsubstantiated and cannot
be given credence.85
With regard to the lack of prior surveillance, prior surveillance is
not a condition for an entrapment operation’s validity.86 In People
v. Padua87 this court underscored the value of flexibility in police
operations:chanroblesvirtuallawlibrary
A prior surveillance is not a prerequisite for the validity of an
entrapment or buy-bust operation, the conduct of which has no
rigid or textbook method. Flexibility is a trait of good police work.
However the police carry out its entrapment operations, for as long
as the rights of the accused have not been violated in the process,
the courts will not pass on the wisdom thereof. The police officers
may decide that time is of the essence and dispense with the need
for prior surveillance.88 (Citations omitted)
This flexibility is even more important in cases involving trafficking
of persons. The urgency of rescuing the victims may at times
require immediate but deliberate action on the part of the law
enforcers.
V.
Imposition of fine and award of damages
The Court of Appeals properly imposed the amount of
P2,000,000.00. Section 10 (b) of Republic Act No. 9208 provides
that:chanroblesvirtuallawlibrary
SEC. 10. Penalties and Sanctions. — The following penalties and
sanctions are hereby established for the offenses enumerated in
this Act:
....
c. Any person found guilty of qualified trafficking under Section 6
shall suffer the penalty of life imprisonment and a fine of not
less than Two million pesos (P2,000,000.00) but not more than
Five million pesos (P5,000,000.00);
However, we modify by raising the award of moral damages from
P150,000.0089 to P500,000.00. We also award exemplary damages
in the amount of P100,000.00. These amounts are in accordance
with the ruling in People v. Lalli90 where this court held
that:chanroblesvirtuallawlibrary
The payment of P500,000 as moral damages and P100,000 as
exemplary damages for the crime of Trafficking in Persons as a
Prostitute finds basis in Article 2219 of the Civil Code, which
states:chanroblesvirtuallawlibrary
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.
....
The criminal case of Trafficking in Persons as a Prostitute is an
analogous case to the crimes of seduction, abduction, rape, or
other lascivious acts. In fact, it is worse. To be trafficked as a
prostitute without one’s consent and to be sexually violated four to
five times a day by different strangers is horrendous and atrocious.
There is no doubt that Lolita experienced physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, and social humiliation when she was
trafficked as a prostitute in Malaysia. Since the crime of Trafficking
in Persons was aggravated, being committed by a syndicate, the
award of exemplary damages is likewise justified.91
Human trafficking indicts the society that tolerates the kind of
poverty and its accompanying desperation that compels our
women to endure indignities. It reflects the weaknesses of that
society even as it convicts those who deviantly thrive in such
hopelessness. We should continue to strive for the best of our
world, where our choices of human intimacies are real choices, and
not the last resort taken just to survive. Human intimacies enhance
our best and closest relationships. It serves as a foundation for two
human beings to face life’s joys and challenges while continually
growing together with many shared experiences. The quality of our
human relationships defines the world that we create also for
others.
Regardless of the willingness of AAA and BBB, therefore, to be
trafficked, we affirm the text and spirit of our laws. Minors should
spend their adolescence moulding their character in environments
free of the vilest motives and the worse of other human beings.
The evidence and the law compel us to affirm the conviction of
accused in this case.
But this is not all that we have done. By fulfilling our duties, we
also express the hope that our people and our government unite
against everything inhuman. We contribute to a commitment to
finally stamp out slavery and human trafficking.
There are more AAA’s and BBBs out there. They, too, deserve to be
rescued. They, too, need to be shown that in spite of what their
lives have been, there is still much good in our world.
WHEREFORE, premises considered, we AFFIRM the decision of
the Court of Appeals dated June 27, 2013, finding accused Shirley
A. Casio guilty beyond reasonable doubt of violating Section 4(a),
qualified by Section 6(a) of Republic Act No. 9208, and sentencing
her to suffer the penalty of life imprisonment and a fine of
P2,000,000.00, with the MODIFICATION that accused-appellant
shall not be eligible for parole under Act No. 4103 (Indeterminate
Sentence Law) in accordance with Section 3 of Republic Act No.
9346.92
The award of damages is likewise MODIFIED as follows:
Accused is ordered to pay each of the private complainants:
(1) P500,000.00 as moral damages; and
(2) P100,000.00 as exemplary damages.
SO ORDERED.
Carpio, (Chairperson), Del Castillo, Villarama, Jr.,* and Mendoza,
JJ., concur.
Endnotes:
*
Designated Acting Member per Special Order No. 1888 dated
November 28, 2014.
1
Rollo, p. 4. The English translation for this is, “Do you like girls,
guys?” “Chicks” is a colloquial term for girls in Cebuano.
2
An Act to Institute Policies to Eliminate Trafficking in Persons
Especially Women and Children, Establishing the Necessary
Institutional Mechanisms for the Protection and Support of
Trafficked Persons, Providing Penalties for its Violations, and for
Other Purposes.
3
Note that the offense was committed on May 2, 2008, prior to the
enactment of Rep. Act No. 10364, which amended Rep. Act No.
9208. Thus, the provisions of Rep. Act No. 9208 cited in this case
are the original provisions.
4
CA rollo, p. 8. Although the information states, “3rd day of May
2008,” the record of the case shows that the offense was
committed on May 2, 2008.
5
International Justice Mission, Get To Know Us (visited November
26, 2014). International Justice Mission or IJM is a United States-
based human rights organization, founded in 1997, which aims to
“protect the poor from violence.” International Justice
Mission, Where We Work (visited November 26, 2014). At present,
IJM has partner offices in Canada, United Kingdom, Netherlands,
and Germany. IJM also has field offices in Latin America, India,
Africa, Southeast Asia including the Philippines.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25513 March 27, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSAURO DIONISIO Y CRUZ, defendant-appellant.
read as follows:
Office of the Solicitor General for plaintiff-appellee.
Rosauro Dionisio y Cruz for and in his own behalf as defendant-appellant.
REYES, J.B.L., Actg. C.J.:
Appeal from a judgment of the Court of First Instance of Manila, in its
Criminal Case No. 65715, convicting appellant Rosauro Dionisio y Cruz of
violating Republic Act, No. 3063, and sentencing him to imprisonment for one
month.
The case and facts are stated in the appellant's, brief (pages 1-2) and
agreed to by the Solicitor General, in this wise:1äwphï1.ñët
ROSAURO DIONISIO, appellant herein, was charged with
having violated Republic Act No. 3063 before the Court of First
Instance of Manila in an information filed by the Assistant City Fiscal
in this wise:
That on or about the 19th day of August, 1962, in the
City of Manila, Philippines, the said accused, a person who
is not duly authorized in any capacity by the Games and
Amusement Board to conduct a horse race, did then and
there wilfully and unlawfully offer, arrange and collect bets
for the Special Daily Double Race being then conducted at
the Sta. Ana Racing Club at Makati, Rizal, and for that
purpose has in possession the following, to wit: cash money
in the amount of P8.50, one Nueva Era Racing Program,
dated Aug. 19, 1962, one list of bets, one ballpen and one
booklet of Daily Double receipt (Original Record, p. 1).
On being arraigned, accused waived his right to be assisted by
counsel, and pleaded not guilty to the charge. (Id., p.5).
However, when the case was finally called for trial, accused
voluntarily waive his right to be assisted by counsel, withdrew his
former plea of not guilty and pleaded guilty to the information
charging him with violation of Rep. Act No. 3063. The Court a
quo found him guilty beyond reasonable doubt and, accordingly,
sentenced him "to suffer one month imprisonment." (Id., p. 18).
Having filed an appeal bond duly approved by the court a quo,
his appeal from the decision of said Court was given due course.
(Id., p. 19).
Section 1 of Republic Act No. 3063 amends section 2 of R.A. 954 to
SEC. 2. No person shall offer, take or arrange bets on any
horse race, or maintain or use a totalizator or other device, method
or system to bet or gamble on any horse race outside the place,
enclosure, or track where the race is held. This prohibition shall not
apply to a race-track or racing club licensed by the Games and
Amusements Board to conduct horse race nor to the duly authorized
agents of such race-truck or racing club and its duly authorized
agents are hereby authorized on the days when races are being held
in its premises to offer, take or arrange bets outside the place,
enclosure or track where the races are held, provided such bets are
offered, taken or arranged only in Rizal Province and chartered
 cities. The sale of such tickets shall be made only from offices or
booths and shall be recorded in the race track before the start of the
races.
Violation of the Act is sanctioned by "a fine of not less than one
thousand pesos nor more than two thousand pesos or by imprisonment for
not less than one month or more than six months, or both, in the discretion of
the Court." (R. A. 954, Sec. 1, as amended by R. A. 3063, sec. 2).
Sole issue posed by appellant is that the penalty as applied to his
offense infringes the constitutional provision that —1äwphï1.ñët
Excessive fines shall not be imposed nor cruel and unusual
punishment inflicted. (Art. III, Sec. 1, clause 19, of the Constitution of
the Philippines).
To bolster his position, appellant argues that the provided penalty is
harsh, the true measure of the gravity of any offense being its effects, if
unchecked, upon the well-being of the people and the body politic. The
premise can be granted, without the conclusion being true or correct.
Neither fines nor imprisonment constitute in themselves cruel and
unusual punishment, for the constitutional stricture has been interpreted as
referring to penalties that are inhuman and barbarous, or shocking to the
conscience (Weems vs. U.S., 217 U. S. 349) and fines or imprisonment are
definitely not in this category.
raised for the first time in the course of the oral argument in the Court
of Appeals. It is also noteworthy, as possible gauge of popular and
judicial reaction the duration of the imprisonment stipulated in the
statute, that some members of the court at first expressed opposition
to any recommendation for executive clemency for the appellant,
believing that he deserved imprisonment within the prescribed range.
What evils should be corrected as pernicious to the body politic, and
how correction should be done, is a matter primarily addressed to the
discretion of the legislative department, not of the courts; and the view that
unsupervised gambling is definitely detrimental to the nation and its citizens
counts with respectable support. "The hope of large or easy gain, obtained
without special effort, turns the head of the workman, and habitual gambling
is a cause of laziness and ruin." (Planiol, Droit Civil, Vol. 2, No. 2110). "The
social scourge of gambling must be stamped out. The laws against gambling
must be enforced to the limit." (Peo. vs. Gorostiza, 77 Phil. 88).
WHEREFORE, the decision appealed from is affirmed. Costs against
appellant. So ordered.1äwphï1.ñët
Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
The Lawphil Project - Arellano Law Foundation

Nor does mere severity constitute cruel and unusual punishment.

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

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

Article 6 and 7
proportion, or severe for a penalty to be obnoxious to the
Constitution. "The fact that the punishment authorized by the statute, FIRST DIVISION
is severe does not make it cruel and unusual." (24 C.J.S. 1187-
1188.) Expressed in other terms, it has been held that to come under
the ban, the punishment must be "flagrantly and plainly oppressive,"
"wholly disproportionate to the nature of the offense as to shock the [G.R. No. 114733. January 2, 1997]
moral sense of the community." (Idem.) Having in mind the necessity
for a radical measure and the public interest at stake, we do not
believe that: five years' confinement for possessing firearms, even as
applied to appellant's and similar cases, can be said to be cruel and AURORA LAND PROJECTS CORP. Doing business under the name
unusual, barbarous, or excessive to the extent of being shocking to "AURORA PLAZA" and TERESITA T. QUAZON, petitioners, vs.
public conscience. It is of interest to note that the validity on NATIONAL LABOR RELATIONS COMMISSION and HONORIO
constitutional grounds of the Act in question was contested neither at DAGUI, respondents.
the trial nor in the elaborate printed brief for the appellant; it was
 DECISION
HERMOSISIMA, JR., J.:
The question as to whether an employer-employee relationship exists in
a certain situation continues to bedevil the courts. Some businessmen try to
avoid the bringing about of an employer-employee relationship in their
enterprises because that judicial relation spawns obligations connected with
workmen's compensation, social security, medicare, minimum wage,
termination pay, and unionism.[1] In light of this observation, it behooves this
Court to be ever vigilant in checking the unscrupulous efforts of some of our
entrepreneurs, primarily aimed at maximizing their return on investments at
the expense of the lowly workingman.
This petition for certiorari seeks the reversal of the Resolution [2] of
public respondent National Labor Relations Commission dated March 16,
1994 affirming with modification the decision of the Labor Arbiter, dated May
25, 1992, finding petitioners liable to pay private respondent the total amount
of P195,624.00 as separation pay and attorney's fees.
The relevant antecedents:
Private respondent Honorio Dagui was hired by Doa Aurora Suntay Tanjangco in
1953 to take charge of the maintenance and repair of the Tanjangco apartments and
residential buildings. He was to perform carpentry, plumbing, electrical and masonry
work. Upon the death of Doa Aurora Tanjangco in 1982, her daughter, petitioner
Teresita Tanjangco Quazon, took over the administration of all the Tanjangco
properties. On June 8, 1991, private respondent Dagui received the shock of his life
when Mrs. Quazon suddenly told him: "Wala ka nang trabaho mula ngayon," [3] on
the alleged ground that his work was unsatisfactory. On August 29, 1991, private
respondent, who was then already sixty-two (62) years old, filed a complaint for
illegal dismissal with the Labor Arbiter.
On May 25, 1992, Labor Arbiter Ricardo C. Nora rendered judgment,
the decretal portion of which reads:
"IN VIEW OF ALL THE FOREGOING, respondents Aurora Plaza and/or Teresita
Tanjangco Quazon are hereby ordered to pay the complainant the total amount of
ONE HUNDRED NINETY FIVE THOUSAND SIX HUNDRED TWENTY FOUR
PESOS (P195,624.00) representing complainant's separation pay and the ten (10%)
percent attorney's fees within ten (10) days from receipt of this Decision.
All other issues are dismissed for lack of merit." [4]
Aggrieved, petitioners Aurora Land Projects Corporation and Teresita T.
Quazon appealed to the National Labor Relations Commission. The
Commission affirmed, with modification, the Labor Arbiter's decision in a
Resolution promulgated on March 16, 1994, in the following manner:
"WHEREFORE, in view of the above considerations, let the appealed decision be as
it is hereby AFFIRMED with (the) MODIFICATION that complainant must be paid
separation pay in the amount of P88,920.00 instead of P177,840.00. The award of
attorney's fees is hereby deleted."[5]
As a last recourse, petitioners filed the instant petition based on grounds
not otherwise succinctly and distinctly ascribed, viz:
I
"RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE
LABOR ARBITER'S DECISION SOLELY ON THE BASIS OF ITS STATEMENT
THAT WE FAIL TO FIND ANY REASON OR JUSTIFICATION TO DISAGREE
WITH THE LABOR ARBITER IN HIS FINDING THAT HONORIO DAGUI
WAS DISMISSED BY THE RESPONDENT' (p. 7, RESOLUTION), DESPITE
AND WITHOUT EVEN BOTHERING TO CONSIDER THE GROUNDS
STATED IN PETITIONERS' APPEAL MEMORANDUM WHICH ARE PLAINLY
MERITORIOUS.
II
RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT
COMPLAINANT WAS EMPLOYED BY THE RESPONDENTS MORE SO
'FROM 1953 TO 1991' (p. 3, RESOLUTION).
III
RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING
SEPARATION PAY IN FAVOR OF PRIVATE RESPONDENT MORE SO FOR
THE EQUIVALENT OF 38 YEARS OF ALLEGED SERVICE.
IV
RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING BOTH
PETITIONERS LIABLE FOR SEPARATION PAY." [6]
It is our impression that the crux of this petition rests on two elemental
issues: (1) Whether or not private respondent Honorio Dagui was an
employee of petitioners; and (2) If he were, whether or not he was illegally
dismissed.
Petitioners insist that private respondent had never been their
employee. Since the establishment of Aurora Plaza, Dagui served therein
only as a job contractor. Dagui had control and supervision of whoever he
would take to perform a contracted job. On occasion, Dagui was hired only
as a "tubero" or plumber as the need arises in order to unclog sewerage
pipes. Every time his services were needed, he was paid accordingly. It was
understood that his job was limited to the specific undertaking of unclogging
the pipes. In effect, petitioners would like us to believe that private
respondent Dagui was an independent contractor, particularly a job
contractor, and not an employee of Aurora Plaza.
We are not persuaded.
Section 8, Rule VIII, Book III of the Implementing Rules and Regulations
of the Labor Code provides in part:
"There is job contracting permissible under the Code if the following conditions are
met:
xxx xxx xxx
(2) The contractor has substantial capital or investment in the form of tools,
equipment, machineries, work premises, and other materials which are necessary in
the conduct of his business."
Honorio Dagui earns a measly sum of P180.00 a day (latest
salary).[7] Ostensibly, and by no stretch of the imagination can Dagui qualify
as a job contractor. No proof was adduced by the petitioners to show that
Dagui was merely a job contractor, and it is absurd to expect that private
respondent, with such humble resources, would have substantial capital or
investment in the form of tools, equipment, and machineries, with which to
conduct the business of supplying Aurora Plaza with manpower and services
for the exclusive purpose of maintaining the apartment houses owned by the
petitioners herein.
The bare allegation of petitioners, without more, that private respondent
Dagui is a job contractor has been disbelieved by the Labor Arbiter and the
public respondent NLRC. Dagui, by the findings of both tribunals, was an
employee of the petitioners. We are not inclined to set aside these findings.
The issue whether or not an employer-employee relationship exists in a
given case is essentially a question of fact. [8] As a rule, repetitious though it
has become to state, this Court does not review supposed errors in the
decision of the NLRC which raise factual issues, because factual findings of
agencies exercising quasi-judicial functions [like public respondent NLRC]
are accorded not only respect but even finality, aside from the consideration
that this Court is essentially not a trier of facts.[9]
However, we deem it wise to discuss this issue full-length if only to
bolster the conclusions reached by the labor tribunals, to which we fully
concur.
Jurisprudence is firmly settled that whenever the existence of an
employment relationship is in dispute, four elements constitute the reliable
yardstick: (a) the selection and engagement of the employee; (b) the
payment of wages; (c) the power of dismissal; and (d) the employer's power
to control the employee's conduct.[10] It is the so-called "control test," and that
is, whether the employer controls or has reserved the right to control the
employee not only as to the result of the work to be done but also as to the
means and methods by which the same is to be accomplished, [11] which
constitute the most important index of the existence of the employer-
employee relationship. Stated otherwise, an employer-employee relationship
exists where the person for whom the services are performed reserves the
right to control not only the end to be achieved but also the means to be used
in reaching such end. [12]
All these elements are present in the case at bar. Private respondent
was hired in 1953 by Doa Aurora Suntay Tanjangco (mother of Teresita
Tanjangco-Quazon), who was then the one in charge of the administration of
the Tanjangco's various apartments and other properties. He was employed
as a stay-in worker performing carpentry, plumbing, electrical and necessary
work (sic) needed in the repairs of Tanjangco's properties. [13] Upon the
demise of Doa Aurora in 1982 petitioner Teresita Tanjangco-Quazon took
over the administration of these properties and continued to employ the
private respondent, until his unceremonious dismissal o0n June 8, 1991.[14]
Dagui was not compensated in terms of profits for his labor or services
like an independent contractor. Rather, he was paid on a daily wage basis at
the rate of P180.00. [15] Employees are those who are compensated for their
labor or services by wages rather than by profits. [16] Clearly, Dagui fits under
this classification.
Doa Aurora and later her daughter petitioner Teresita Quazon evidently
had the power of dismissal for cause over the private respondent.[17]
Finally, the records unmistakably show that the most important requisite
of control is likewise extant in this case. It should be borne in mind that the
power of control refers merely to the existence of the power and not to the
actual exercise thereof. It is not essential for the employer to actually
supervise the performance of duties of the employee; it is enough that the
former has a right to wield the power.[18] The establishment of petitioners is
engaged in the leasing of residential and apartment buildings. Naturally,
private respondent's work therein as a maintenance man had to be
performed within the premises of herein petitioners. In fact, petitioners do not
dispute the fact that Dagui reports for work from 7:00 o'clock in the morning
until 4:00 o'clock in the afternoon. It is not far-fetched to expect, therefore,
that Dagui had to observe the instructions and specifications given by then
Doa Aurora and later by Mrs. Teresita Quazon as to how his work had to be
performed. Parenthetically, since the job of a maintenance crew is
necessarily done within company premises, it can be inferred that both Doa
Aurora and Mrs. Quazon could easily exercise control on private respondent
whenever they please.
The employment relationship established, the next question would have
to be: What kind of an employee is the private respondent regular, casual or
probationary?
We find private respondent to be a regular employee, for Article 280 of
the Labor Code provides:
"Regular and Casual employment. The provisions of written agreement to the
contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or
trade of the employer, except where the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined
at the time of the engagement of the employee or where the work or services to be
performed is seasonal in nature and the employment is for the duration of the
season..
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That, any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed and his employment
shall continue while such actually exists."
As can be gleaned from this provision, there are two kinds of regular
employees, namely: (1) those who are engaged to perform activities which
are usually necessary or desirable in the usual business or trade of the
employer; and (2) those who have rendered at least one year of service,
whether continuous or broken, with respect to the activity in which they are
employed.[19]
Whichever standard is applied, private respondent qualifies as a regular
employee. As aptly ruled by the Labor Arbiter:
"xxx As owner of many residential and apartment buildings in Metro Manila, the
necessity of maintaining and employing a permanent stay-in worker to perform
carpentry, plumbing, electrical and necessary work needed in the repairs of
Tanjangco's properties is readily apparent and is in fact needed. So much so that
upon the demise of Doa Aurora Tanjangco, respondent's daughter Teresita
Tanjangco-Quazon apparently took over the administration of the properties and
continued to employ complainant until his outright dismissal on June 8, 1991 xxx
xxx.[20]
The jobs assigned to private respondent as maintenance man,
carpenter, plumber, electrician and mason were directly related to the
business of petitioners as lessors of residential and apartment buildings.
Moreover, such a continuing need for his services by herein petitioners is
sufficient evidence of the necessity and indispensability of his services to
petitioners' business or trade.
Private respondent Dagui should likewise be considered a regular
employee by the mere fact that he rendered service for the Tanjangcos for
more than one year, that is, beginning 1953 until 1982, under Doa Aurora;
and then from 1982 up to June 8, 1991 under the petitioners, for a total of
twenty-nine (29) and nine (9) years respectively. Owing to private
respondent's length of service, he became a regular employee, by operation
of law, one year after he was employed in 1953 and subsequently in 1982. In
Baguio Country Club Corp. v. NLRC,[21] we decided that it is more in
consonance with the intent and spirit of the law to rule that the status of
regular employment attaches to the casual employee on the day immediately
after the end of his first year of service. To rule otherwise is to impose a
burden on the employee which is not sanctioned by law. Thus, the law does
not provide the qualification that the employee must first be issued a regular
appointment or must first be formally declared as such before he can acquire
a regular status.
Petitioners argue, however, that even assuming arguendo that private
respondent can be considered an employee, he cannot be classified as a
regular employee. He was merely a project employee whose services were
hired only with respect to a specific job and only while the same
exists,[22] thus falling under the exception of Article 280, paragraph 1 of the
Labor Code. Hence, it is claimed that he is not entitled to the benefits prayed
for and subsequently awarded by the Labor Arbiter as modified by public
respondent NLRC.
The circumstances of this case in light of settled case law do not, at all,
support this averment. Consonant with a string of cases beginning with
Ochoco v. NLRC,[23] followed by Philippine National Construction Corporation
v. NLRC,[24] Magante v. NLRC,[25] and Capitol Industrial Construction
Corporation v. NLRC,[26] if truly, private respondent was employed as a
"project employee, " petitioners should have submitted a report of termination
to the nearest public employment office everytime his employment is
terminated due to completion of each project, as required by Policy
Instruction No. 20, which provides:
"Project employees are not entitled to termination pay if they are terminated as a
result of the completion of the project or any phase thereof in which they are
employed, regardless of the number of project in which they have been employed by
a particular construction company. Moreover, the company is not required to obtain
a clearance from the Secretary of Labor in connection with such termination. What is
required of the company is a report to the nearest Public Employment Office for
statistical purposes."
Throughout the duration of private respondent's employment as
maintenance man, there should have been filed as many reports of
termination as there were projects actually finished, if it were true that private
respondent was only a project worker. Failure of the petitioners to comply
with this simple, but nonetheless compulsory, requirement is proof that Dagui
is not a project employee.[27]
Coming now to the second issue as to whether or not private
respondent Dagui was illegally dismissed, we rule in the affirmative.
Jurisprudence abound as to the rule that the twin requirements of due
process, substantive and procedural, must be complied with, before a valid
dismissal exists.[28] Without which the dismissal becomes void.[29]
The twin requirements of notice and hearing constitute the essential
elements of due process. This simply means that the employer shall afford
the worker ample opportunity to be heard and to defend himself with the
assistance of his representative, if he so desires. [30] As held in the case of
Pepsi Cola Bottling Co. v. NLRC:[31]
"The law requires that the employer must furnish the worker sought to be dismissed
with two written notices before termination of employee can be legally effected: (1)
notice which apprises the employee of the particular acts or omissions for which his
dismissal is sought; and (2) the subsequent notice which informs the employee of the
employer's decision to dismiss him (Section 13, BP 130; Sections 2-6, Rule XIV,
Book V Rules and Regulations Implementing the Labor Code as amended). Failure
to comply with the requirements taints the dismissal with illegality. This procedure is
mandatory; in the absence of which, any judgment reached by management is void
and inexistent. (Tingson, Jr. v. NLRC, 185 SCRA 498 [1990]; National Service
Corporation v. NLRC, 168 SCRA 122 [1988]; Ruffy v. NLRC, 182 SCRA 365
[1990]."
These mandatory requirements were undeniably absent in the case at
bar. Petitioner Quazon dismissed private respondent on June 8, 1991,
without giving him any written notice informing the worker herein of the cause
for his termination. Neither was there any hearing conducted in order to give
Dagui the opportunity to be heard and defend himself. He was simply told:
"Wala ka nang trabaho mula ngayon," allegedly because of poor
workmanship on a previous job.[32] The undignified manner by which private
respondent's services were terminated smacks of absolute denial of the
employee's right to due process and betrays petitioner Quazon's utter lack of
respect for labor. Such an attitude indeed deserves condemnation.
The Court, however, is bewildered why only an award for separation pay
in lieu of reinstatement was made by both the Labor Arbiter and the NLRC.
No backwages were awarded. It must be remembered that backwages and
reinstatement are two reliefs that should be given to an illegally dismissed
employee. They are separate and distinct from each other. In the event that
reinstatement is no longer possible, as in this case, [33] separation pay is
awarded to the employee. The award of separation pay is in lieu of
reinstatement and not of backwages. In other words, an illegally dismissed
employee is entitled to (1) either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and (2) backwages.[34] Payment of
backwages is specifically designed to restore an employee's income that was
lost because of his unjust dismissal.[35] On the other hand, payment of
separation pay is intended to provide the employee money during the period
in which he will be looking for another employment. [36]
Considering, however, that the termination of private respondent Dagui
was made on June 8, 1991 or after the effectivity of the amendatory provision
of Republic Act No. 6715 on March 21, 1989, private respondent's
backwages should be computed on the basis of said law.
It is true that private respondent did not appeal the award of the Labor
Arbiter awarding separation pay sans backwages. While as a general rule a
party who has not appealed is not entitled to affirmative relief other than the
ones granted in the decision of the court below,[37] law and jurisprudence
authorize a tribunal to consider errors, although unassigned, if they involve
(1) errors affecting the lower court's jurisdiction over the subject matter, (2)
plain errors not specified, and (3) clerical errors.[38] In this case, the failure of
the Labor Arbiter and the public respondent NLRC to award backwages to
the private respondent, who is legally entitled thereto having been illegally
dismissed, amounts to a "plain error" which we may rectify in this petition,
although private respondent Dagui did not bring any appeal regarding the
matter, in the interest of substantial justice. The Supreme Court is clothed
with ample authority to review matters, even if they are not assigned as
errors on appeal, if it finds that their consideration is necessary in arriving at
a just decision of the case.[39] Rules of procedure are mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided.[40] Thus, substantive rights like
the award of backwages resulting from illegal dismissal must not be
prejudiced by a rigid and technical application of the rules.[41]
Petitioner Quazon argues that, granting the petitioner corporation should
be held liable for the claims of private respondent, she cannot be made
jointly and severally liable with the corporation, notwithstanding the fact that
she is the highest ranking officer of the company, since Aurora Plaza has a
separate juridical personality.
We disagree.
In the cases of Maglutac v. National Labor Relations
Commission,[42] Chua v. National Labor Relations Commission,[43] and A.C
Ransom Labor Union-CCLU v. National Labor Relations Commission[44] we
were consistent in holding that the highest and most ranking officer of the
corporation, which in this case is petitioner Teresita Quazon as manager of
Aurora Land Projects Corporation, can be held jointly and severally liable
with the corporation for the payment of the unpaid money claims of its
employees who were illegally dismissed. In this case, not only was Teresita
Quazon the most ranking officer of Aurora Plaza at the time of the
termination of the private respondent, but worse, she had a direct hand in the
private respondent's illegal dismissal. A corporate officer is not personally
liable for the money claims of discharged corporate employees unless he
acted with evident malice and bad faith in terminating their
employment.[45] Here, the failure of petitioner Quazon to observe the
mandatory requirements of due process in terminating the services of Dagui
evinced malice and bad faith on her part, thus making her liable.
Finally, we must address one last point. Petitioners aver that, assuming
that private respondent can be considered an employee of Aurora Plaza,
petitioners cannot be held liable for separation pay for the duration of his
employment with Doa Aurora Tanjangco from 1953 up to 1982. If petitioners
should be held liable as employers, their liability for separation pay should
only be counted from the time Dagui was rehired by the petitioners in 1982
as a maintenance man.
We agree.
Petitioners' liability for separation pay ought to be reckoned from 1982
when petitioner Teresita Quazon, as manager of Aurora Plaza, continued to
employ private respondent. From 1953 up to the death of Doa Aurora
sometime in 1982, private respondent's claim for separation pay should have
been filed in the testate or intestate proceedings of Doa Aurora. This is
because the demand for separation pay covered by the years 1953-1982 is
actually a money claim against the estate of Doa Aurora, which claim did not
survive the death of the old woman. Thus, it must be filed against her estate
in accordance with Section 5, Rule 86 of the Revised Rules of Court, to wit:
"Section 5. Claims which must be filed under the notice. If not ,filed barred;
exceptions. All claims for money against the decedent, arising from contract, express
or implied, whether the same be due, not due, or contingent, all claims for funeral
expenses for the last sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice; otherwise they are
barred forever, except that they may be set forth as counterclaims in any action that
the executor or administrator may bring against the claimants.xxx xxx."
WHEREFORE, the instant petition is partly GRANTED and the
Resolution of the public respondent National Labor Relations Commission
dated March 16, 1994 is hereby MODIFIED in that the award of separation
pay against the petitioners shall be reckoned from the date private
respondent was re-employed by the petitioners in 1982, until June 8, 1991. In
addition to separation pay, full backwages are likewise awarded to private
respondent, inclusive of allowances, and other benefits or their monetary
equivalent pursuant to Article 279[46] of the Labor Code, as amended by
Section 34 of Republic Act No. 6715, computed from the time he was
dismissed on June 8, 1991 up to the finality of this decision, without
deducting therefrom the earnings derived by private respondent elsewhere
during the period of his illegal dismissal, pursuant to our ruling in Osmalik
Bustamante, et. al. v. National Labor Relations Commission.[47]
No costs.
SO ORDERED.
Padilla, Bellosillo, Vitug, and Kapunan, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment,
and TOMAS D. ACHACOSO, as Administrator of the Philippine
Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for
short), a firm "engaged principally in the recruitment of Filipino workers, male
and female, for overseas placement," 1 challenges the Constitutional validity
of Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC
AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition.
Specifically, the measure is assailed for "discrimination against males or
females;" 2 that it "does not apply to all Filipino workers but only to domestic
helpers and females with similar skills;" 3 and that it is violative of the right to
travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of
the Constitution, providing for worker participation "in policy and decision-
making processes affecting their rights and benefits as may be provided by
law." 4 Department Order No. 1, it is contended, was passed in the absence
of prior consultations. It is claimed, finally, to be in violation of the Charter's
non-impairment clause, in addition to the "great and irreparable injury" that
PASEI members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents
Secretary of Labor and Administrator of the Philippine Overseas Employment
Administration, filed a Comment informing the Court that on March 8, 1988,
the respondent Labor Secretary lifted the deployment ban in the states of
Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway,
Austria, and Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the Philippine
State.
It is admitted that Department Order No. 1 is in the nature of a police power
measure. The only question is whether or not it is valid under the
Constitution.
The concept of police power is well-established in this jurisdiction. It has
been defined as the "state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare." 5 As
defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring
the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not
owe its origin to the Charter. Along with the taxing power and eminent
domain, it is inborn in the very fact of statehood and sovereignty. It is a
fundamental attribute of government that has enabled it to perform the most
vital functions of governance. Marshall, to whom the expression has been
credited, 7 refers to it succinctly as the plenary power of the State "to govern
its citizens." 8
"The police power of the State ... is a power coextensive with self- protection,
and it is not inaptly termed the "law of overwhelming necessity." It may be
said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to
Fernando, it is "rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights
did not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated
to ensure communal peace, safety, good order, and welfare." 10 Significantly,
the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties "Even liberty itself, the greatest of all rights, is
not unrestricted license to act according to one's will." 11 It is subject to the far
more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own
limitations. For all its awesome consequences, it may not be exercised
arbitrarily or unreasonably. Otherwise, and in that event, it defeats the
purpose for which it is exercised, that is, to advance the public good. Thus,
when the power is used to further private interests at the expense of the
citizenry, there is a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of
clear and convincing evidence to the contrary, the presumption logically
stands.
The petitioner has shown no satisfactory reason why the contested measure
should be nullified. There is no question that Department Order No. 1 applies
only to "female contract workers," 14 but it does not thereby make an undue
discrimination between the sexes. It is well-settled that "equality before the
law" under the Constitution 15does not import a perfect Identity of rights
among all men and women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane to the
purposes of the law; (3) they are not confined to existing conditions; and (4)
they apply equally to all members of the same class. 16
The Court is satisfied that the classification made-the preference for female
workers — rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight
that has befallen our female labor force abroad, especially domestic
servants, amid exploitative working conditions marked by, in not a few cases,
physical and personal abuse. The sordid tales of maltreatment suffered by
migrant Filipina workers, even rape and various forms of torture, confirmed
by testimonies of returning workers, are compelling motives for urgent
Government action. As precisely the caretaker of Constitutional rights, the
Court is called upon to protect victims of exploitation. In fulfilling that duty, the
Court sustains the Government's efforts.
The same, however, cannot be said of our male workers. In the first place,
there is no evidence that, except perhaps for isolated instances, our men
abroad have been afflicted with an Identical predicament. The petitioner has
proffered no argument that the Government should act similarly with respect
to male workers. The Court, of course, is not impressing some male
chauvinistic notion that men are superior to women. What the Court is saying
is that it was largely a matter of evidence (that women domestic workers are
being ill-treated abroad in massive instances) and not upon some fanciful or
arbitrary yardstick that the Government acted in this case. It is evidence
capable indeed of unquestionable demonstration and evidence this Court
accepts. The Court cannot, however, say the same thing as far as men are
concerned. There is simply no evidence to justify such an inference. Suffice it
to state, then, that insofar as classifications are concerned, this Court is
content that distinctions are borne by the evidence. Discrimination in this
case is justified.
As we have furthermore indicated, executive determinations are generally
final on the Court. Under a republican regime, it is the executive branch that
enforces policy. For their part, the courts decide, in the proper cases,
whether that policy, or the manner by which it is implemented, agrees with
the Constitution or the laws, but it is not for them to question its wisdom. As a
co-equal body, the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself has
specifically given them enough room on how the law should be effectively
enforced. In the case at bar, there is no gainsaying the fact, and the Court
will deal with this at greater length shortly, that Department Order No. 1
implements the rule-making powers granted by the Labor Code. But what
should be noted is the fact that in spite of such a fiction of finality, the Court is
on its own persuaded that prevailing conditions indeed call for a deployment
ban.
There is likewise no doubt that such a classification is germane to the
purpose behind the measure. Unquestionably, it is the avowed objective of
Department Order No. 1 to "enhance the protection for Filipino female
overseas workers" 17 this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment
will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is
intended to apply indefinitely so long as those conditions exist. This is clear
from the Order itself ("Pending review of the administrative and legal
measures, in the Philippines and in the host countries . . ."18), meaning to say
that should the authorities arrive at a means impressed with a greater degree
of permanency, the ban shall be lifted. As a stop-gap measure, it is
possessed of a necessary malleability, depending on the circumstances of
each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor
and Employment (DOLE) may, upon recommendation of the
Philippine Overseas Employment Administration (POEA), lift
the suspension in countries where there are:
1. Bilateral agreements or understanding with the
Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all
female domestic overseas workers. That it does not apply to "all Filipina
workers" 20 is not an argument for unconstitutionality. Had the ban been
given universal applicability, then it would have been unreasonable and
arbitrary. For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select person or group
of persons within an existing class, to the prejudice of such a person or group
or resulting in an unfair advantage to another person or group of persons. To
apply the ban, say exclusively to workers deployed by A, but not to those
recruited by B, would obviously clash with the equal protection clause of the
Charter. It would be a classic case of what Chase refers to as a law that
"takes property from A and gives it to B." 21 It would be an unlawful invasion
of property rights and freedom of contract and needless to state, an invalid
act. 22 (Fernando says: "Where the classification is based on such
distinctions that make a real difference as infancy, sex, and stage of
civilization of minority groups, the better rule, it would seem, is to recognize
its validity only if the young, the women, and the cultural minorities are
singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law
ministering to their needs is made the basis of discriminatory legislation
against them. If such be the case, it would be difficult to refute the assertion
of denial of equal protection." 23 In the case at bar, the assailed Order clearly
accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on
overseas deployment. From scattered provisions of the Order, it is evident
that such a total ban has hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of
domestic helpers and workers of similar skills defined herein
to the following [sic] are authorized under these guidelines
and are exempted from the suspension.
5.1 Hirings by immediate members of the
family of Heads of State and Government;
5.2 Hirings by Minister, Deputy Minister and
the other senior government officials; and
5.3 Hirings by senior officials of the
diplomatic corps and duly accredited
international organizations.
5.4 Hirings by employers in countries with
whom the Philippines have [sic] bilateral
labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS
OF SIMILAR SKILLS--Vacationing domestic helpers and/or
workers of similar skills shall be allowed to process with the
POEA and leave for worksite only if they are returning to the
same employer to finish an existing or partially served
employment contract. Those workers returning to worksite to
serve a new employer shall be covered by the suspension
and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the
Philippine Overseas Employment Administration (POEA), lift
the suspension in countries where there are:
1. Bilateral agreements or understanding
with the Philippines, and/or,
2. Existing mechanisms providing for
sufficient safeguards to ensure the welfare
and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not
impair the right. The right to travel is subject, among other things, to the
requirements of "public safety," "as may be provided by law." 25 Department
Order No. 1 is a valid implementation of the Labor Code, in particular, its
basic policy to "afford protection to labor," 26 pursuant to the respondent
Department of Labor's rule-making authority vested in it by the Labor
Code. 27 The petitioner assumes that it is unreasonable simply because of its
impact on the right to travel, but as we have stated, the right itself is not
absolute. The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1
constitutes an invalid exercise of legislative power. It is true that police power
is the domain of the legislature, but it does not mean that such an authority
may not be lawfully delegated. As we have mentioned, the Labor Code itself
vests the Department of Labor and Employment with rulemaking powers in
the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker
participation "in policy and decision-making processes affecting their rights
and benefits" 29 is not well-taken. The right granted by this provision, again,
must submit to the demands and necessities of the State's power of
regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for
all. 30
"Protection to labor" does not signify the promotion of employment alone.
What concerns the Constitution more paramountly is that such an
employment be above all, decent, just, and humane. It is bad enough that the
country has to send its sons and daughters to strange lands because it
cannot satisfy their employment needs at home. Under these circumstances,
the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In
this case, the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and as part of
its duty, it has precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately
made use of its authority. It is not contested that it has in fact removed the
prohibition with respect to certain countries as manifested by the Solicitor
General.
The non-impairment clause of the Constitution, invoked by the petitioner,
must yield to the loftier purposes targetted by the Government. 31 Freedom of
contract and enterprise, like all other freedoms, is not free from restrictions,
more so in this jurisdiction, where laissez faire has never been fully accepted
as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on
the business of recruitment. The concern of the Government, however, is not
necessarily to maintain profits of business firms. In the ordinary sequence of
events, it is profits that suffer as a result of Government regulation. The
interest of the State is to provide a decent living to its citizens. The
Government has convinced the Court in this case that this is its intent. We do
not find the impugned Order to be tainted with a grave abuse of discretion to
warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Cortes and Griño-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.
EN BANC
[G.R. No. 128096. January 20, 1999]
PANFILO M. LACSON, petitioner vs. THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR,
THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA
ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF
THE PHILIPPINES, respondents.
ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors.
DECISION
MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act
which further defines the jurisdiction of the Sandiganbayan is being challenged in
this petition for prohibition and mandamus.Petitioner Panfilo Lacson, joined by
petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent
the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-
23057 (for multiple murder) against them on the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the parties pleadings and
documentary proofs, are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be
members of the Kuratong Baleleng gang, reportedly an organized crime syndicate
which had been involve in a spate of bank robberies in Metro Manila, were
slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank
Robbery and Intelligence Task Group (ABRITG) headed by Chief Superintendent
Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed
of police officers from the Traffic Management Command (TMC) led by petitioner-
intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime
Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief
Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by
Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command
(CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC,
that what actually transpired at dawn of May 18, 1995 was a summary execution (or
a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the
ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by
the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate
the incident. This panel later absolve from any criminal liability all the PNP officers
and personnel allegedly involved in the May 18, 1995 incident, with a finding that
the said incident was a legitimate police operation.[1]
However, a review board led by Overall Deputy Ombudsman Francisco Villa
modified the Blancaflor panels finding and recommended the indictment for multiple
murder against twenty-six (26) respondents, including herein petitioner and
intervenors. This recommendation was approved by the Ombudsman, except for the
withdrawal of the charges against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those
charged as principal in eleven (11) informations for murder [2] before
the Sandiganbayans Second Division, while intervenors Romeo Acop and Francisco
Zubia, Jr. were among those charged in the same informations as accessories after-
the-fact.
Upon motion by all the accused in the 11
informations,[3] the Sandiganbayan allowed them to file a motion for reconsideration
of the Ombudsmans action.[4]
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996
eleven (11) amended informations[5] before the Sandiganbayan, wherein petitioner
was charged only as an accessory, together with Romeo Acop and Francisco Zubia,
Jr. and others. One of the accused[6] was dropped from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the
jurisdiction of the Sandiganbayan, asserting that under the amended informations,
the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2
(paragraphs a and c) of Republic Act No. 7975.[7] They contend that the said law
limited the jurisdiction of the Sandiganbayan to cases where one or more of the
"principal accused are government officials with Salary Grade (SG) 27 or higher, or
PNP officials with the rank of Chief Superintendent (Brigadier General) or
higher. The highest ranking principal accused in the amended informations has the
rank of only a Chief Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution[8] dated May 8, 1996 (promulgated on May 9, 1996),
penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and
Justices Balajadia and Garchitorena dissenting,[9] the Sandiganbayan admitted the
amended information and ordered the cases transferred to the Quezon City Regional
Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of
the principal accused has the rank of Chief Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a
reconsideration, insisting that the cases should remain with the Sandiganbayan. This
was opposed by petitioner and some of the accused.
While these motions for reconsideration were pending resolution, and even
before the issue of jurisdiction cropped up with the filing of the amended
informations on March 1, 1996, House Bill No. 2299[10] and No. 1094[11] (sponsored
by Representatives Edcel C. Lagman and Neptali M. Gonzales II, respectively), as
well as Senate Bill No. 844[12] (sponsored by Senator Neptali Gonzales), were
introduced in Congress, defining/expanding the jurisdiction of
the Sandiganbayan. Specifically, the said bills sought, among others, to amend the
jurisdiction of the Sandiganbayan by deleting the word principal from the phrase
principal accused in Section 2 (paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No.
8249[13]. The law is entitled, AN ACT FURTHER DEFINING THE JURISDICTION
OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL
DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND
FOR OTHER PURPOSES. It took effect on February 25, 1997.13 by the President
of the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a
Resolution[14] denying the motion for reconsideration of the Special Prosecutor,
ruling that it stands pat in its resolution dated May 8, 1996.
On the same day,[15] the Sandiganbayan issued an ADDENDUM to its March
5, 1997 Resolution, the pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the
legislature enacted Republic Act 8249 and the President of the Philippines approved
it on February 5, 1997. Considering the pertinent provisions of the new law,
Justices Lagman and Demetriou are now in favor of granting, as they are now
granting, the Special Prosecutors motion for reconsideration. Justice de Leon
has already done so in his concurring and dissenting opinion.
xxxxxxxxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest
has been issued this court has competence to take cognizance of these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the
court admitted the Amended Informations in these cases and by the unanimous
vote of 4 with 1 neither concurring nor dissenting, retained jurisdiction to try
and decide the cases.[16] [Emphasis supplied]
Petitioner now questions the constitutionality of Section 4 R.A. No. 8249,
including Section 7 thereof which provides that the said law shall apply to all cases
pending in any court over which trial has not begun as of the approval
hereof. Petitioner argues that:
a) The questioned provision of the statute were introduced by the authors thereof in
bad faith as it was made to precisely suit the situation in which petitioners cases were
in at the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his
right to procedural due process and the equal protection clause of the
Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9)
months the resolution of a pending incident involving the transfer of the cases to the
Regional Trial Court, the passage of the law may have been timed to overtake such
resolution to render the issue therein moot, and frustrate the exercise of petitioners
vested rights under the old Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plain from the fact that it was again made to
suit the peculiar circumstances in which petitioners cases were under, namely, that
trial had not yet commenced, as provided in Section 7, to make certain that those
cases will no longer be remanded to the Quezon City Regional Trial Court, as
the Sandiganbayan alone should try them, thus making it an ex post factolegislation
and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047
23057 to procedural due process
c) The title of the law is misleading in that it contains the aforesaid innocuous
provisions in Sections 4 and 7 which actually expands rather than defines the
old Sandiganbayan law (RA 7975), thereby violating the one-title-one-subject
requirement for the passage of statutes under Section 26(1), Article VI of the
Constitution.[17]
For their part, the intervenors, in their petition-in-intervention, add that while
Republic Act No. 8249 innocuously appears to have merely expanded the
jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in said statute
impressed upon it the character of a class legislation and an ex-post facto statute
intended to apply specifically to the accused in the Kuratong Baleleng case pending
before the Sandiganbayan.[18] They further argued that if their case is tried before
the Sandiganbayan their right to procedural due process would be violated as they
could no longer avail of the two-tiered appeal to the Sandiganbayan, which they
acquired under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor General filed separate
pleadings in support of the constitutionality of the challenged provisions of the law
in question and praying that both the petition and the petition-in-intervention be
dismissed.
This Court then issued a Resolution[19] requiring the parties to file
simultaneously within a nonextendible period of ten (10) days from notice thereof
additional memoranda on the question of whether the subject amended informations
filed in Criminal Cases Nos. 23047-23057 sufficiently alleged the commission by the
accused therein of the crime charged within the meaning Section 4 b of Republic Act
No. 8249, so as to bring the said cases within the exclusive original jurisdiction of
the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of
the Philippines, filed the required supplemental memorandum within the
nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of
constitutionality, and to justify its nullification there must be a clear and unequivocal
breach of the Constitution, not a doubtful and argumentative one. [20] The burden of
proving the invalidity of the law lies with those who challenge it. That burden, we
regret to say, was not convincingly discharged in the present case.
The creation of the Sandiganbayan was mandated in Section 5, Article XIII of
the 1973 Constitution, which provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known
as Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by public
officers and employees including those in government-owned or controlled
corporations, in relation to their office as may be determined by law."
The said special court is retained in the new (1987) Constitution under the
following provision in Article XI, Section 4:
Section 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.
Pursuant to the constitutional mandate, Presidential Decree No. 1486 [21] created
the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in
chronological order, were enacted: P.D. No. 1606,[22] Section 20 of Batas Pambansa
Blg. 129,[23] P.D. No. 1860,[24] P.D. No. 1861,[25] R.A. No. 7975,[26] and R.A. No.
8249.[27] Under the latest amendments introduced by Section 4 of R.A. No. 8249,
the Sandiganbayan has jurisdiction over the following cases:
SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of higher
rank;
(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the Judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to
the provisions of the Constitution;
(5) All other national and local officials classified as Grade 27 or higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of
this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to salary
Grade 27 or higher, as prescribed in the said Republic Act 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction thereof shall be vested in
the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgment, resolution or orders of the regional trial courts whether in the exercise of
their own original jurisdiction of their appellate jurisdiction as herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction
and over petitions of similar nature, including quo warranto, arising or that may arise
in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing
rules that the Supreme Court has promulgated and may hereafter promulgate, relative
to appeals/petitions for review to the Court of Appeals, shall apply to appeals and
petitions for review filed with the Sandiganbayan. In all cases elevated to
the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of
the Ombudsman, through its special prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees in the proper courts which shall exercise exclusive jurisdiction over
them.
x x x x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 8249 states:
SEC. 7. Transitory provision. This act shall apply to all cases pending in any
court over which trial has not begun as of the approval hereof. (Emphasis
supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A.
7975 provides:
SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended] is
hereby further amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the principal
accused are officials occupying the following positions in the government, whether
in a permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of high
rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and Provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to
the provisions of the Constitution;
(5) All other national and local officials classified as Grade 27 or higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and
employees mentioned in Subsection a of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are occupying positions corresponding
to salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or PNP
officers occupying the rank of superintendent or higher, or their equivalent,
exclusive jurisdiction thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal circuit trial court, as the
case may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from
the final judgments, resolutions or orders of regular courts where all the accused are
occupying positions lower than grade 27, or not otherwise covered by the preceding
enumeration.
xxxxxxxxx
In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees in the proper courts which shall have exclusive jurisdiction over
them.
x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 7975 reads:
SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has not begun
in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word principal before
the word accused appearing in the above-quoted Section 2 (paragraphs a and c) of
R.A. 7975, was deleted. It is due to this deletion of the word principal that the
parties herein are at loggerheads over the jurisdiction of
the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the
Regional Trial Court, not the Sandiganbayan, has jurisdiction over the Subject
criminal cases since none of the principal accused under the amended information
has the rank of Superintendent[28] or higher. On the other hand, the Office of the
Ombudsman, through the Special Prosecutor who is tasked to represent the People
before the Supreme Court except in certain cases,[29] contends that
the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under
the exclusive original jurisdiction of the Sandiganbayan, the following requisites
must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended
(the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten
wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the
law on bribery),[30] (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986
(sequestration cases),[31] or (e) other offenses or felonies whether simple or
complexed with other crimes; (2) the offender committing the offenses in items (a),
(b), (c) and (e) is a public official or employee[32] holding any of the positions
enumerated in paragraph a of Section 4; and (3) the offense committed is in relation
to the office.
Considering that herein petitioner and intervenors are being charged with
murder which is a felony punishable under Title VIII of the Revised Penal Code, the
governing provision on the jurisdictional offense is not paragraph but paragraph b,
Section 4 of R.A. 8249. This paragraph b pertains to other
offenses or felonies whether simple or complexed with other crimes committed by
the public officials and employees mentioned in subsection a of [Section 4, R.A.
8249] in relation to their office. The phrase other offenses or felonies is too broad as
to include the crime of murder, provided it was committed in relation to the accuseds
official functions. Thus, under said paragraph b, what determines
the Sandiganbayans jurisdiction is the official position or rank of the offender that
is, whether he is one of those public officers or employees enumerated in paragraph a
of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4
do not make any reference to the criminal participation of the accused public officer
as to whether he is charged as a principal, accomplice or accessory. In enacting R.A.
8249, the Congress simply restored the original provisions of P.D. 1606 which does
not mention the criminal participation of the public officer as a requisite to determine
the jurisdiction of the Sandiganbayan.
Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249 violate
their right to equal protection of the law[33] because its enactment was particularly
directed only to the Kuratong Balelengcases in the Sandiganbayan, is a contention
too shallow to deserve merit. No concrete evidence and convincing argument were
presented to warrant a declaration of an act of the entire Congress and signed into
law by the highest officer of the co-equal executive department as
unconstitutional. Every classification made by law is presumed reasonable. Thus, the
party who challenges the law must present proof of arbitrariness.[34]
It is an established precept in constitutional law that the guaranty of the equal
protection of the laws is not violated by a legislation based on reasonable
classification. The classification is reasonable and not arbitrary when there is
concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class,[35]
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the
presumption of constitutionality and reasonableness of the questioned
provisions. The classification between those pending cases involving the concerned
public officials whose trial has not yet commenced and whose cases could have been
affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as
against those cases where trial had already started as of the approval of the law, rests
on substantial distinction that makes real differences.[36] In the first instance,
evidence against them were not yet presented, whereas in the latter the parties had
already submitted their respective proofs, examined witness and presented
documents. Since it is within the power of Congress to define the jurisdiction of
courts subject to the constitutional limitations,[37] it can be reasonably anticipated that
an alteration of that jurisdiction would necessarily affect pending cases, which is
why it has to provide for a remedy in the form of a transitory provision. Thus,
petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under
a different category from those similarly situated as them. Precisely, paragraph a of
Section 4 provides that it shall apply to all cases involving" certain public officials
and, under the transitory provision in Section 7, to all cases pending in any
court. Contrary to petitioner and intervenors arguments, the law is not particularly
directed only to the Kuratong Baleleng cases. The transitory provision does not only
cover cases which are in the Sandiganbayan but also in any court. It just happened
that the Kuratong Baleleng cases are one of those affected by the law. Moreover,
those cases where trial had already begun are not affected by the transitory provision
under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised
on what is perceived as bad faith on the part of a Senator and two Justices of
the Sandiganbayan[38] for their participation in the passage of the said provisions. In
particular, it is stressed that the Senator had expressed strong sentiments against
those officials involved in the Kuratong Baleleng cases during the hearings
conducted on the matter by the committee headed by the Senator. Petitioner further
contends that the legislature is biased against him as he claims to have been selected
from among the 67 million other Filipinos as the object of the deletion of the word
principal in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory
provision of R.A. 8249.[39] R.A. 8249, while still a bill, was acted, deliberated,
considered by 23 other Senators and by about 250 Representatives, and was
separately approved by the Senate and House of Representatives and, finally, by the
President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against
petitioner during the committee hearings, the same would not constitute sufficient
justification to nullify an otherwise valid law. Their presence and participation in the
legislative hearings was deemed necessary by Congress since the matter before the
committee involves the graft court of which one is the head of
the Sandiganbayan and the other a member thereof. The Congress, in its plenary
legislative powers, is particularly empowered by the Constitution to invite persons to
appear before it whenever it decides to conduct inquiries in aid of legislation.[40]
 Petitioner and intervenors further argued that the retroactive application of R.A.
8249 to the Kuratong Baleleng cases constitutes an ex post facto law[41] for they are
deprived of their right to procedural due process as they can no longer avail of the
two tiered appeal which they had allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A.
8249. In Calder v. Bull,[42] an ex post facto law is one
(a)which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or
(b) which aggravates a crime or makes it greater that when it was
committed; or
(c) which changes the punishment and inflicts a greater punishment than
the law annexed to the crime when it was committed,
(d) which alters the legal rules of evidence and receives less or different
testimony than the law required at the time of the commission of the
offense in order to convict the defendant.[43]
(e) Every law which, in relation to the offense or its consequences, alters
the situation of a person to his disadvantage.[44]
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done
was lawful;
(g) deprives a person accused of crime of some lawful protection to which
he has become entitled, such as the protection of a former conviction
or acquittal, or a proclamation of amnesty.[45]
[46]
Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A.
8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in
character. Penal laws are those acts of the Legislature which prohibit certain acts and
establish penalties for their violations;[47] or those that define crimes, treat of their
nature, and provide for their punishment.[48] R.A. 7975, which amended P.D. 1606 as
regards the Sandiganbayans jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a procedural
statute, i.e. one which prescribes rules of procedure by which courts applying laws of
all kinds can properly administer justice.[49] Not being a penal law, the retroactive
application of R.A. 8249 cannot be challenged as unconstitutional.
Petitioners and intervenors contention that their right to a two-tiered appeal
which they acquired under R.A. 7975 has been diluted by the enactment of R.A.
8249, is incorrect. The same contention has already been rejected by the court
several times[50] considering that the right to appeal is not a natural right but
statutory in nature that can be regulated by law. The mode of procedure provided for
in the statutory right of appeal is not included in the prohibition against ex post
facto laws.[51] R.A. 8249 pertains only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of an ex post facto law. It does not
mete out a penalty and, therefore, does not come within the prohibition. [52] Moreover,
the law did not alter the rules of evidence or the mode of trial.[53] It has been ruled
that adjective statutes may be made applicable to actions pending and unresolved at
the time of their passage.[54]
In any case, R.A. 8249 has preserved the accuseds right to appeal to the
Supreme Court to review questions of law.[55] On the removal of the intermediate
review facts, the Supreme Court still has the power of review to determine if the
presumption of innocence has been convincingly overcome. [56]
Another point. The challenged law does not violate the one-title-one-subject
provisions of the Constitution. Much emphasis is placed on the wording in the title of
the law that it defines the Sandiganbayan jurisdiction when what it allegedly does is
to expand its jurisdiction. The expansion in the jurisdiction of the Sandiganbayan, if
it can be considered as such, does not have to be expressly stated in the title of the
law because such is the necessary consequence of the amendments. The requirement
that every bill must only have one subject expressed in the title [57] is satisfied if the
title is comprehensive enough, as in this case, to include subjects related to the
general purpose which the statute seeks to achieve.[58] Such rule is severally
interpreted and should be given a practical rather than a technical construction. There
is here sufficient compliance with such requirement, since the title of R.A. 8249
expresses the general subject (involving the jurisdiction of the Sandiganbayan and
the amendment of P.D. 1606, as amended) and all the provisions of the law are
germane to that general subject.[59] The Congress, in employing the word define in
the title of the law, acted within its powers since Section 2, Article VIII of the
Constitution itself empowers the legislative body to define, prescribe,
and apportion the jurisdiction of various courts.[60]
There being no unconstitutional infirmity in both the subject amendatory
provision of Section 4 and the retroactive procedural application of the law as
provided in Section 7 R.A. No. 8249, we shall now determine whether under the
allegations in the Informations, it is the Sandiganbayan or Regional Trial Court
which has jurisdiction over the multiple murder case against herein petitioner and
intervenors.
The jurisdiction of a court is defined by the Constitution or statute. The
elements of that definition must appear in the complaint or information so as to
ascertain which court has jurisdiction over a case.Hence the elementary rule that the
jurisdiction of a court is determined by the allegations in the complaint or
information,[61] and not by the evidence presented by the parties at the trial. [62]
As stated earlier, the multiple murder charge against petitioner and intervenors
falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense
charged must be committed by the offender in relation to his office in order for
the Sandiganbayan to have jurisdiction over it.[63] This jurisdictional requirement is
in accordance with Section 5, Article XIII of the 1973 Constitution which mandated
that the Sandiganbayan shall have jurisdiction over criminal cases committed by
public officers and employees, including those in government-owned or controlled
corporations, in relation to their office as may be determined by law. This
constitutional mandate was reiterated in the new (1987) Constitution when it
declared in Section 4 thereof that the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of multiple
murder was committed in relation to the office of the accused PNP officers.
In People vs. Montejo,[64] we held that an offense is said to have been
committed in relation to the office if it (the offense) is intimately connected with
the office of the offender and perpetrated while he was in the performance of his
official functions.[65] This intimate relation between the offense charged and the
discharge of official duties must be alleged in the Information.[66]
As to how the offense charged be stated in the information, Section 9, Rule 110
of the Revised Rules of Court mandates:
SEC. 9. Cause of Accusation. The acts or omissions complained of as constituting
the offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such form as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper
judgment.(Emphasis supplied)
As early as 1954, we pronounced that the factor that characterizes the charge is
the actual recital of the facts.[67] The real nature of the criminal charges is
determined not from the caption or preamble of the information nor from the
specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or
information.[68]
The noble object of written accusations cannot be overemphasized. This was
explained in U.S. v. Karelsen:[69]
The object of this written accusations was First, To furnish the accused with
such a description of the charge against him as will enable him to make his
defense, and second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same cause, and third, to inform
the court of the facts alleged so that it may decide whether they are sufficient
in law to support a conviction if one should be had. In order that this
requirement may be satisfied, facts must be stated, not conclusions of
law Every crime is made up of certain acts and intent these must be set forth
in the complaint with reasonable
particularity of time, place, names (plaintiff and defendant) and
circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged. (Emphasis supplied)
It is essential, therefore, that the accused be informed of the facts that are
imputed to him as he is presumed to have no independent knowledge of the facts
that constitute the offense.[70]
Applying these legal principles and doctrines to the present case, we find the
amended informations for murder against herein petitioner and intervenors wanting
of specific factual averments to show the intimate relation/connection between
the offense charged and the discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations [71] for murder
reads:
AMENDED INFORMATION
The undersigned Special Prosecution Officer III, Office of the Ombudsman hereby
accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP ERWIN T.
VILLACORTE SENIOR INSP JOSELITO T. ESQUIVEL. INSP RICARDO G.
DANDAN SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON,
SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1
OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT.
ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP.
CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INISP.
GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR
TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2
NORBERTO LASAGA, PO2 LEONARDO GLORIA and PO2 ALEJANDRO G.
LIWANAG of the crime of Murder as defined and penalized under Article 248 of
the Revised Penal Code committed as follows:
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon
City, Philippines and within the jurisdiction of this Honorable Court, the accused
CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE P. ARNADO SPO4 ROBERTO F. LANGCAUON,
SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1
OSMUNDO B. CARINO all taking advantage of their public and official
positions as officers and members of the Philippine National Police and committing
the acts herein alleged in relation to their public office, conspiring with intent to
kill and using firearms with treachery, evident premeditation and taking advantage of
their superior strengths did then and there willfully, unlawfully and
feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds
which caused his instantaneous death to the damage and prejudice of the heirs of the
said victim.
That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO M.
ACOP CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G.
ZUBIA, JR. SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO
II CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR
INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN SPO3 WILLY
NUAS SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G.
LIWANAG committing the acts in relation to office as officers and members of
the Philippine National Police are charged herein as accessories after-the-
fact for concealing the crime herein above alleged by among others falsely
representing that there were no arrests made during the raid conducted by the
accused herein at Superville Subdivision, Paraaque, Metro Manila on or about
the early dawn of May 18, 1995.
CONTRARY TO LAW
While the above-quoted information states that the above-named principal
accused committed the crime of murder in relation to their public office, there is,
however, no specific allegation of facts that the shooting of the victim by the said
principal accused was intimately related to the discharge of their official duties as
police officers. Likewise, the amended information does not indicate that the said
accused arrested and investigated the victim and then killed the latter while in their
custody.
Even the allegations concerning the criminal participation of herein petitioner
and intervenors as among the accessories after-the-fact, the amended information is
vague on this. It is alleged therein that the said accessories concealed the crime
herein-above alleged by, among others, falsely representing that there were no arrests
made during the raid conducted by the accused herein at Superville Subdivision,
Paraaque, Metro Manila, on or about the early dawn of May 18, 1995. The sudden
mention of the arrests made during the raid conducted by the accused surprises the
reader. There is no indication in the amended information that the victim was
one of those arrested by the accused during the raid. Worse, the raid and arrests
were allegedly conducted at Superville Subdivision, Paraaque, Metro Manila but, as
alleged in the immediately preceding paragraph of the amended information, the
shooting of the victim by the principal accused occurred in Mariano Marcos
Avenue, Quezon City. How the raid, arrests and shooting happened in two places far
away from each other is puzzling. Again, while there is the allegation in the amended
information that the said accessories committed the offense in relation to office as
officers and members of the (PNP), we, however, do not see the intimate connection
between the offense charged and the accuseds official functions, which, as earlier
discussed, is an essential element in determining the jurisdiction of
the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularity as
will reasonably indicate the exact offense which the accused is alleged to have
committed in relation to his office was, sad to say, not satisfied. We believe that the
mere allegation in the amended information that the offense was committed by the
accused public officer in relation to his office is not sufficient. That phrase is merely
a conclusion of law, not a factual averment that would show the close intimacy
between the offense charged and the discharge of the accuseds official duties.
In People vs. Magallanes,[72] where the jurisdiction between the Regional Trial
Court and the Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the
complaint or information and not by the result of evidence after trial.
In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended information
alleged
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police
patrol and civilian commandos consisting of regular policemen and x x x special
policemen, appointed and provided by him with pistols and high power guns and
then established a camp x x x at Tipo-tipo which is under his command x x x
supervision and control where his co-defendants were stationed, entertained criminal
complaints and conducted the corresponding investigations, as well as assumed the
authority to arrest and detain persons without due process of law and without
bringing them to the proper court, and that in line with this set-up established by said
Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested
and maltreated Awalin Tebag who died in consequence thereof.
we held that the offense charged was committed in relation to the office of the
accused because it was perpetrated while they were in the performance, though
improper or irregular of their official functions and would not have been committed
had they not held their office, besides, the accused had no personal motive in
committing the crime, thus, there was an intimate connection between the offense
and the office of the accused.
Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the
court below do not indicate that the accused arrested and investigated the victims and
then killed the latter in the course of the investigation. The informations merely
allege that the accused, for the purpose of extracting or extorting the sum
of P353,000.00 abducted, kidnapped and detained the two victims, and failing in
their common purpose, they shot and killed the said victims. For the purpose of
determining jurisdiction, it is these allegations that shall control, and not the
evidence presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase
committed in relation to public office does not appear in the information, which only
signifies that the said phrase is not what determines the jurisdiction of
the Sandiganbayan. What is controlling is the specific factual allegations in the
information that would indicate the close intimacy between the discharge of the
accuseds official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge
of murder was intimately connected with the discharge of official functions of the
accused PNP officers, the offense charged in the subject criminal cases is plain
murder and, therefore, within the exclusive original jurisdiction of the Regional Trial
Court,[73] not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is
hereby sustained. The Addendum to the March 5, 1997 Resolution of
the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to
transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional
Trial Court of Quezon City which has exclusive original jurisdiction over said cases.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
EN BANC
[G.R. No. 127410. January 20, 1999]
CONRADO L. TIU, JUAN T. MONTELIBANO JR. and ISAGANI M.
JUNGCO, petitioners, vs. COURT OF APPEALS, HON. TEOFISTO T.
GUINGONA JR., BASES CONVERSION AND DEVELOPMENT
AUTHORITY, SUBIC BAY METROPOLITAN AUTHORITY,
BUREAU OF INTERNAL REVENUE, CITY TREASURER OF
OLONGAPO and MUNICIPAL TREASURER OF SUBIC,
ZAMBALES, respondents.
DECISION
PANGANIBAN, J.:
The constitutional right to equal protection of the law is not violated by an
executive order, issued pursuant to law, granting tax and duty incentives only to
businesses and residents within the secured area of the Subic Special Economic Zone
and denying them to those who live within the Zone but outside such fenced-in
territory. The Constitution does not require absolute equality among residents. It is
enough that all persons under like circumstances or conditions are given the same
privileges and required to follow the same obligations. In short, a classification based
on valid and reasonable standards does not violate the equal protection clause.
The Case
Before us is a petition for review under Rule 45 of the Rules of Court, seeking
the reversal of the Court of Appeals Decision[1] promulgated on August 29, 1996,
and Resolution[2] dated November 13, 1996, in CA-GR SP No. 37788.[3] The
challenged Decision upheld the constitutionality and validity of Executive Order No.
97-A (EO 97-A), according to which the grant and enjoyment of the tax and duty
incentives authorized under Republic Act No. 7227 (RA 7227) were limited to the
business enterprises and residents within the fenced-in area of the Subic Special
Economic Zone (SSEZ).
The assailed Resolution denied the petitioners motion for reconsideration.
The Facts
On March 13, 1992, Congress, with the approval of the President, passed into
law RA 7227 entitled An Act Accelerating the Conversion of Military Reservations
Into Other Productive Uses, Creating the Bases Conversion and Development
Authority for this Purpose, Providing Funds Therefor and for Other
Purposes. Section 12 thereof created the Subic Special Economic Zone and granted
thereto special privileges, as follows:
SEC. 12. Subic Special Economic Zone. -- Subject to the concurrence by resolution
of the sangguniang panlungsod of the City of Olongapo and the sangguniang
bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a
Special Economic and Free-port Zone consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced, covered, and defined by the 1947
Military Bases Agreement between the Philippines and the United States of America
as amended, and within the territorial jurisdiction of the Municipalities of Morong
and Hermosa, Province of Bataan, hereinafter referred to as the Subic Special
Economic Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the approval
of this Act, each local government unit shall submit its resolution of concurrence to
join the Subic Special Economic Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a proclamation defining the metes and bounds
of the zone as provided herein.
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the Subic
Special Economic Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate employment opportunities
in and around the zone and to attract and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed as a separate
customs territory ensuring free flow or movement of goods and capital within, into
and exported out of the Subic Special Economic Zone, as well as provide incentives
such as tax and duty-free importations of raw materials, capital and
equipment. However, exportation or removal of goods from the territory of the Subic
Special Economic Zone to the other parts of the Philippine territory shall be subject
to customs duties and taxes under the Customs and Tariff Code and other relevant
tax laws of the Philippines;
(c) The provision of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises within the Subic Special Economic
Zone shall be remitted to the National Government, one percent (1%) each to the
local government units affected by the declaration of the zone in proportion to their
population area, and other factors. In addition, there is hereby established a
development fund of one percent (1%) of the gross income earned by all businesses
and enterprises within the Subic Special Economic Zone to be utilized for the
development of municipalities outside the City of Olongapo and the Municipality of
Subic, and other municipalities contiguous to the base areas.
In case of conflict between national and local laws with respect to tax exemption
privileges in the Subic Special Economic Zone, the same shall be resolved in favor
of the latter;
(d) No exchange control policy shall be applied and free markets for foreign
exchange, gold, securities and future shall be allowed and maintained in the Subic
Special Economic Zone;
(e) The Central Bank, through the Monetary Board, shall supervise and regulate the
operations of banks and other financial institutions within the Subic Special
Economic Zone;
(f) Banking and finance shall be liberalized with the establishment of foreign
currency depository units of local commercial banks and offshore banking units of
foreign banks with minimum Central Bank regulation;
(g) Any investor within the Subic Special Economic Zone whose continuing
investment shall not be less than two hundred fifty thousand dollars ($250,000),
his/her spouse and dependent children under twenty-one (21) years of age, shall be
granted permanent resident status within the Subic Special Economic Zone. They
shall have the freedom of ingress and egress to and from the Subic Special Economic
Zone without any need of special authorization from the Bureau of Immigration and
Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this
Act may also issue working visas renewable every two (2) years to foreign
executives and other aliens possessing highly technical skills which no Filipino
within the Subic Special Economic Zone possesses, as certified by the Department of
Labor and Employment. The names of aliens granted permanent residence status and
working visas by the Subic Bay Metropolitan Authority shall be reported to the
Bureau of Immigration and Deportation within thirty (30) days after issuance
thereof;
(h) The defense of the zone and the security of its perimeters shall be the
responsibility of the National Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and
establish its own security and fire-fighting forces; and
(i) Except as herein provided, the local government units comprising the Subic
Special Economic Zone shall retain their basic autonomy and identity. The cities
shall be governed by their respective charters and the municipalities shall operate
and function in accordance with Republic Act No. 7160, otherwise known as the
Local Government Code of 1991.
On June 10, 1993, then President Fidel V. Ramos issued Executive Order No.
97 (EO 97), clarifying the application of the tax and duty incentives thus:
Section 1. On Import Taxes and Duties -- Tax and duty-free importations shall apply
only to raw materials, capital goods and equipment brought in by business
enterprises into the SSEZ. Except for these items, importations of other goods into
the SSEZ, whether by business enterprises or resident individuals, are subject to
taxes and duties under relevant Philippine laws.
The exportation or removal of tax and duty-free goods from the territory of the SSEZ
to other parts of the Philippine territory shall be subject to duties and taxes under
relevant Philippine laws.
Section 2. On All Other Taxes. -- In lieu of all local and national taxes (except import
taxes and duties), all business enterprises in the SSEZ shall be required to pay the tax
specified in Section 12(c) of R.A. No. 7227.
 Nine days after, on June 19, 1993, the President issued Executive Order No. 97-
A (EO 97-A), specifying the area within which the tax-and-duty-free privilege was
operative, viz.:
Section 1.1. The Secured Area consisting of the presently fenced-in former Subic
Naval Base shall be the only completely tax and duty-free area in the SSEFPZ [Subic
Special Economic and Free Port Zone].Business enterprises and individuals
(Filipinos and foreigners) residing within the Secured Area are free to import raw
materials, capital goods, equipment, and consumer items tax and duty-
free. Consumption items, however, must be consumed within the Secured
Area. Removal of raw materials, capital goods, equipment and consumer items out of
the Secured Area for sale to non-SSEFPZ registered enterprises shall be subject to
the usual taxes and duties, except as may be provided herein
On October 26, 1994, the petitioners challenged before this Court the
constitutionality of EO 97-A for allegedly being violative of their right to equal
protection of the laws. In a Resolution dated June 27, 1995, this Court referred the
matter to the Court of Appeals, pursuant to Revised Administrative Circular No. 1-
95.
Incidentally, on February 1, 1995, Proclamation No. 532 was issued by
President Ramos. It delineated the exact metes and bounds of the Subic Special
Economic and Free Port Zone, pursuant to Section 12 of RA 7227.
Ruling of the Court of Appeals
Respondent Court held that there is no substantial difference between the
provisions of EO 97-A and Section 12 of RA 7227. In both, the Secured Area is
precise and well-defined as xxx the lands occupied by the Subic Naval Base and its
contiguous extensions as embraced, covered and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America, as amended,
xxx. The appellate court concluded that such being the case, petitioners could not
claim that EO 97-A is unconstitutional, while at the same time maintaining the
validity of RA 7227.
The court a quo also explained that the intention of Congress was to confine the
coverage of the SSEZ to the secured area and not to include the entire Olongapo City
and other areas mentioned in Section 12 of the law. It relied on the following
deliberations in the Senate:
Senator Paterno. Thank you, Mr. President. My first question is the extent of
the economic zone. Since this will be a free port, in effect, I believe that it is
important to delineate or make sure that the delineation will be quite precise[. M]y
question is: Is it the intention that the entire of Olongapo City, the Municipality of
Subic and the Municipality of Dinalupihan will be covered by the special economic
zone or only portions thereof?
Senator Shahani. Only portions, Mr. President. In other words, where the
actual operations of the free port will take place.
Senator Paterno. I see. So, we should say, COVERING THE DESIGNATED
PORTIONS OR CERTAIN PORTIONS OF OLONGAPO CITY, SUBIC AND
DINALUPIHAN to make it clear that it is not supposed to cover the entire area of all
of these territories.
Senator Shahani. So, the Gentleman is proposing that the words CERTAIN
AREAS ...
The President. The Chair would want to invite the attention of the Sponsor
and Senator Paterno to letter C, which says: THE PRESIDENT OF THE
PHILIPPINES IS HEREBY AUTHORIZED TO PROCLAIM, DELINEATE AND
SPECIFY THE METES AND BOUNDS OF OTHER SPECIAL ECONOMIC
ZONES WHICH MAY BE CREATED IN THE CLARK MILITARY
RESERVATIONS AND ITS EXTENSIONS.
Probably, this provision can be expanded since, apparently, the intention is that
what is referred to in Olongapo as Metro Olongapo is not by itself ipso jure already a
special economic zone.
Senator Paterno. That is correct.
The President. Someone, some authority must declare which portions of the
same shall be the economic zone. Is it the intention of the author that it is the
President of the Philippines who will make such delineation?
Senator Shahani. Yes, Mr. President.
The Court of Appeals further justified the limited application of the tax
incentives as being within the prerogative of the legislature, pursuant to its avowed
purpose [of serving] some public benefit or interest. It ruled that EO 97-A merely
implements the legislative purpose of [RA 7227].
Disagreeing, petitioners now seek before us a review of the aforecited Court of
Appeals Decision and Resolution.
The Issue
Petitioners submit the following issue for the resolution of the Court:
[W]hether or not Executive Order No. 97-A violates the equal protection clause of
the Constitution. Specifically the issue is whether the provisions of Executive Order
No. 97-A confining the application of R.A. 7227 within the secured area and
excluding the residents of the zone outside of the secured area is discriminatory or
not.[4]
The Courts Ruling
The petition[5] is bereft of merit.
Main Issue: The Constitutionality of EO 97-A
Citing Section 12 of RA 7227, petitioners contend that the SSEZ encompasses
(1) the City of Olongapo, (2) the Municipality of Subic in Zambales, and (3) the area
formerly occupied by the Subic Naval Base. However, EO 97-A, according to them,
narrowed down the area within which the special privileges granted to the entire
zone would apply to the present fenced-in former Subic Naval Base only. It has
thereby excluded the residents of the first two components of the zone from enjoying
the benefits granted by the law. It has effectively discriminated against them, without
reasonable or valid standards, in contravention of the equal protection guarantee.
On the other hand, the solicitor general defends, on behalf of respondents, the
validity of EO 97-A, arguing that Section 12 of RA 7227 clearly vests in the
President the authority to delineate the metes and bounds of the SSEZ. He adds that
the issuance fully complies with the requirements of a valid classification.
We rule in favor of the constitutionality and validity of the assailed EO. Said
Order is not violative of the equal protection clause; neither is it
discriminatory. Rather, we find real and substantive distinctions between the
circumstances obtaining inside and those outside the Subic Naval Base, thereby
justifying a valid and reasonable classification.
The fundamental right of equal protection of the laws is not absolute, but is
subject to reasonable classification. If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated
differently from another.[6] The classification must also be germane to the purpose of
the law and must apply to all those belonging to the same class. [7] Explaining the
nature of the equal protection guarantee, the Court in Ichong v. Hernandez[8] said:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either [by] the object to which it is
directed or by [the] territory within which it is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction
between those who fall within such class and those who do not.
Classification, to be valid, must (1) rest on substantial distinctions, (2) be
germane to the purpose of the law, (3) not be limited to existing conditions only, and
(4) apply equally to all members of the same class.[9]
We first determine the purpose of the law. From the very title itself, it is clear
that RA 7227 aims primarily to accelerate the conversion of military reservations
into productive uses. Obviously, the lands covered under the 1947 Military Bases
Agreement are its object. Thus, the law avows this policy:
SEC. 2. Declaration of Policies. -- It is hereby declared the policy of the
Government to accelerate the sound and balanced conversion into alternative
productive uses of the Clark and Subic military reservations and their extensions
(John Hay Station, Wallace Air Station, ODonnell Transmitter Station, San Miguel
Naval Communications Station and Capas Relay Station), to raise funds by the sale
of portions of Metro Manila military camps, and to apply said funds as provided
herein for the development and conversion to productive civilian use of the lands
covered under the 1947 Military Bases Agreement between the Philippines and the
United States of America, as amended.
To undertake the above objectives, the same law created the Bases Conversion
and Development Authority, some of whose relevant defined purposes are:
(b) To adopt, prepare and implement a comprehensive and detailed development
plan embodying a list of projects including but not limited to those provided in the
Legislative-Executive Bases Council (LEBC) framework plan for the sound and
balanced conversion of the Clark and Subic military reservations and their extensions
consistent with ecological and environmental standards, into other productive uses to
promote the economic and social development of Central Luzon in particular and the
country in general;
(c) To encourage the active participation of the private sector in transforming the
Clark and Subic military reservations and their extensions into other productive uses;
Further, in creating the SSEZ, the law declared it a policy to develop the zone into a
self-sustaining, industrial, commercial, financial and investment center. [10]
From the above provisions of the law, it can easily be deduced that the real
concern of RA 7227 is to convert the lands formerly occupied by the US military
bases into economic or industrial areas. In furtherance of such objective, Congress
deemed it necessary to extend economic incentives to attract and encourage
investors, both local and foreign. Among such enticements are:[11] (1) a separate
customs territory within the zone, (2) tax-and-duty-free importations, (3) restructured categorized further. Instead, they are all similarly treated, both in privileges granted
income tax rates on business enterprises within the zone, (4) no foreign exchange and in obligations required.
control, (5) liberalized regulations on banking and finance, and (6) the grant of
resident status to certain investors and of working visas to certain foreign executives All told, the Court holds that no undue favor or privilege was extended. The
and workers. classification occasioned by EO 97-A was not unreasonable, capricious or
unfounded. To repeat, it was based, rather, on fair and substantive considerations that
We believe it was reasonable for the President to have delimited the application were germane to the legislative purpose.
of some incentives to the confines of the former Subic military base. It is this
specific area which the government intends to transform and develop from its status WHEREFORE, the petition is DENIED for lack of merit. The assailed
quo ante as an abandoned naval facility into a self-sustaining industrial and Decision and Resolution are hereby AFFIRMED. Costs against petitioners.
commercial zone, particularly for big foreign and local investors to use as SO ORDERED.
operational bases for their businesses and industries. Why the seeming bias for big
investors? Undeniably, they are the ones who can pour huge investments to spur Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
economic growth in the country and to generate employment opportunities for the Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Filipinos, the ultimate goals of the government for such conversion. The
classification is, therefore, germane to the purposes of the law. And as the legal ______________________________________________
maxim goes, The intent of a statute is the law.[12]
Certainly, there are substantial differences between the big investors who are
being lured to establish and operate their industries in the so-called secured area and
Article 8
the present business operators outside the area. On the one hand, we are talking of
billion-peso investments and thousands of new jobs. On the other hand, definitely EN BANC
none of such magnitude. In the first, the economic impact will be national; in the
second, only local. Even more important, at this time the business activities outside
the secured area are not likely to have any impact in achieving the purpose of the
law, which is to turn the former military base to productive use for the benefit of the [G.R. Nos. 120681-83. October 1, 1999]
Philippine economy. There is, then, hardly any reasonable basis to extend to them
the benefits and incentives accorded in RA 7227. Additionally, as the Court of
Appeals pointed out, it will be easier to manage and monitor the activities within the
secured area, which is already fenced off, to prevent fraudulent importation of
JEJOMAR C. BINAY, petitioner, vs. HON. SANDIGANBAYAN (Third
merchandise or smuggling.
Division) and the DEPARTMENT OF INTERIOR AND LOCAL
It is well-settled that the equal-protection guarantee does not require territorial GOVERNMENT, respondents.
uniformity of laws.[13] As long as there are actual and material differences between
territories, there is no violation of the constitutional clause. And of course, anyone,
including the petitioners, possessing the requisite investment capital can always avail
of the same benefits by channeling his or her resources or business operations into [G.R. No. 128136. October 1, 1999]
the fenced-off free port zone.
We believe that the classification set forth by the executive issuance does not
apply merely to existing conditions. As laid down in RA 7227, the objective is to
MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D.
establish a self-sustaining, industrial, commercial, financial and investment center in
MABIOG, REGINO E. MALAPIT, ERLINDA I. MASANGCAY and
the area. There will, therefore, be a long-term difference between such investment
VICENTE DE LA ROSA, petitioners, vs. HON. SANDIGANBAYAN,
center and the areas outside it.
HON. OMBUDSMAN and its PROSECUTOR WENDELL
Lastly, the classification applies equally to all the resident individuals and BARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY
businesses within the secured area. The residents, being in like circumstances or JOSEPH F. MALLONGA and GIDEON C. MENDOZA, respondents.
contributing directly to the achievement of the end purpose of the law, are not
 DECISION
KAPUNAN, J.:
Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential
Decree No. 1486 created an Anti-Graft Court known as the Sandiganbayan. Since
then the jurisdiction of the Sandiganbayan has under gone various changes, [1] the
most recent of which were effected through Republic Act Nos. 7975[2] and
8249.[3] Whether the Sandiganbayan, under these laws, exercises exclusive original
jurisdiction over criminal cases involving municipal mayors accused of violations of
Republic Act No. 3019[4] and Article 220 of the Revised Penal Code[5] is the central
issue in these consolidated petitions.
In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among
others, the Resolution of the Sandiganbayan denying his motion to refer Criminal
Case Nos. 21001, 21005 and 21007 to the Regional Trial Court (RTC) of Makati and
declaring that the Sandiganbayan has jurisdiction over said cases despite the
enactment of R.A. No. 7975.
In G.R. No. 128136, petitioner Mario C. Magsaysay, et al. assail the October
22, 1996 Resolution of the Sandiganbayan, reversing its Order of June 21, 1996
which suspended the proceedings in Criminal Case No. 23278 in deference to
whatever ruling this Court will lay down in the Binay cases.
The facts, as gathered from t he records, are as follows:
G.R. Nos. 120681-83
On September 7, 1994, the Office of the Ombudsman filed before the
Sandiganbayan three separate informations against petitioner Jejomar Binay, one for
violation of Article 220 of the Revised Penal Code, [6] and two for violation of
Section 3(e) of R.A. No. 3019.[7] The informations, which were subsequently
amended on September 15, 1994, all alleged that the acts constituting these crimes
were committed in 1987 during petitioners incumbency as Mayor of Makati, then a
municipality of Metro Manila.
Thereafter, petitioner moved to quash the informations. He contended that the
six-year delay from the time the charges were filed in the Office of the Ombudsman
on July 27, 1988 to the time the informations were filed in the Sandiganbayan on
September 7, 1994 constituted a violation of his right to due process. Arraignment of
the accused was held in abeyance pending the resolution of this motion.
On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioners
motion to quash. Petitioners motion for reconsideration, which was opposed by the
prosecution, was likewise denied by the Sandiganbayan. The resolution denying the
motion for reconsideration, however, was issued before the petitioner could file a
reply to the prosecutions opposition to the motion for reconsideration.
In the meantime, on March 31, 1995, the prosecution filed a Motion to Suspend
Accused Pendente Lite. The Sandiganbayan, in a Resolution dated April 25, 1995,
granted the motion and ordered the suspension of petitioner for ninety days from
receipt of the resolution. The court ruled that the requisites for suspension pendente
lite were present as petitioner was charged with one of the offenses under Section 13
of R.A. No. 3019[8] and the informations containing these charges had previously
been held valid in the resolution denying the motion to quash and the resolution
denying the motion for reconsideration.
Petitioner thus filed before this Court a petition for certiorari,[9] to set aside the
resolution denying his motion for reconsideration, claiming that he was denied due
process when the Sandiganbayan ordered his suspension pendente lite before he
could file a reply to the prosecutions opposition to his motion for reconsideration of
the resolution denying the motion to quash. In a Resolution dated April 28, 1995, the
Court directed the Sandiganbayan to, among other things, permit petitioner to file
said reply.
After allowing and considering petitioners reply, the Sandiganbayan, on June 6,
1995, issued a Resolution reiterating the denial of his motion for reconsideration of
the denial of the motion to quash. On the same day, the Sandiganbayan issued
another resolution reiterating the order suspending petitioner pendente lite.
Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan,
took effect on May 16, 1995.[10]
On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer
his cases to the proper court for further proceedings, alleging that when the two
Resolutions, both dated June 6, 1995, were issued by the Anti-Graft Court, it had
already lost jurisdiction over the subject cases. The Sandiganbayan, in a Resolution
dated July 4, 1995, denied petitioners motion, holding thus:
There is no question that Municipal Mayors are classified as Grade 27 under the
compensation & Position Classification Act of 1989. Since, at the time of the
commission of the offenses charged in he above-entitled cases, the accused Mayor
Jejomar C. Binay was a Municipal Mayor, although in an acting or interim capacity,
the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases
therein filed against him. The allegation that Mayor Binay ought to have been
classified with a salary grade lower than Grade 27, because at the time of the
commission of the offenses charged he was paid a salary which merits a grade lower
than Grade 27 does not hold water. In 1986 when the herein offenses were
committed by the accused, the Compensation & Position Classification Act of 1989
was not as yet in existence. From the very definition of he very Act itself, it is
evident that the Act was passed and had been effective only in 1989. The Grade
classification of a public officer, whether at the time of the commission of the
offense or thereafter, is determined by his classification under the Compensation &
Position Classification Act of 1989. Thus since the accused Mayor Jejomar C. Binay
was a Municipal Mayor at the time of the commission of the offenses and the
Compensation & Position Classification Act of 1989 classifies Municipal Mayors as
Grade 27, it is a conclusion beyond cavil that the Sandiganbayan has jurisdiction
over the accused herein.
As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor
Jejomar C. Binay had begun receiving a monthly salary of P15,180.00 which is
equivalent to Grade 28 under the salary scale provided for in Section 27 of the said
Act. Under the Index of Occupational Services, the position titles and salary grades
of the Compensation & Position classification system prepared by the Department of
Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the
position of Municipal Mayor had been classified as Grade 27. [11]
On July 7, 1995, petitioner filed the present petition for certiorari, prohibition
and mandamus questioning the jurisdiction of the Sandiganbayan over Criminal Case
Nos. 21001, 21005 and 21007. He prayed, among others, that the Court anuul and set
aside: (1) the Resolution of the Sandiganbayan dated June 6, 1995 reiterating the
denial of the motion for reconsideration of the motion to quash; (2) the Resolution of
the same court also dated June 6, 1995 reiterating the order suspending
petitioner pendente lite; and (3) the Resolution of the Sandiganbayan dated July 4,
1995 denying the motion to refer case to the RTC. Petitioner also asked that the
Court issue a temporary restraining order preventing the suspension and arraignment
of petitioner.
The Court on July 7, 1995, resolved, among others, to issue the temporary
restraining order prayed for.
On July 14, 1995, petitioner filed an Addendum to Petition (To allow the
introduction of alternative reliefs), praying that, should this Court hold that the
Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be
dismissed just the same on the ground that the long delay of the preliminary
investigation before the Ombudsman prior to the filing of the informations, deprived
him of his right to due process; and that, moreover, there was no probable cause to
warrant the filing of the informations.
G.R. No. 128136
Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual,
Batangas. Save for petitioner Vicente dela Rosa, all of Mayor Magsaysays co-
petitioners are officials of the same municipality.
In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San
Pascual, Batangas, charged petitioners along with Elpidia Amada, Jovey C. Babago,
and Brigido H. Buhain, also officials of San Pascual Batangas, with violation of R.A.
No. 3019, as amended. The complaint charged the respondent municipal officials of
overpaying Vicente de la Rosa of TDR Construction for the landscaping project of
the San Pascual Central School. This was docketed in the Office of the Ombudsman
as OMB-1-94-1232.
In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A.
Alarilla recommended the filing of an information for violation of Section 3(e) and
(g) of R.A. No. 3019, as amended, against petitioners with the
Sandiganbayan. Director Elvis John S. Asuncion concurred in the resolution, and
Manuel C. Domingo, Deputy Ombudsman for Luzon, recommended approval of the
same. The resolution was approved by then Acting Ombudsman Francisco A. Villa
with the following marginal note:
Authority is given to the deputy Ombudsman for Luzon to cause the preparation of
the information and to approve the same for filing with the proper court.[12]
On August 11, 1995, an Information for violatiion of Section 3 (e) and (g) was
filed against petitioners and Jovey C. Babago, not with the Sandiganbayan per the
June 14, 1995 Resolution, but with the RTC of Batangas City. The information was
signed by a Lourdes A. Alarilla, the same Graft Investigation Officer who
recommended the filing of the information with the Sandiganbayan.
In the meantime, a group denominated as the Concerned Citizens of San
Pascual, Batangas filed a complaint before the Ombudsman against petitioners, and
Elpidia Amada and Brigido Buhain, with violations of R.A. No. 3019. The complaint
also alleged, among others, the overpricing of the landscaping project of San Pascual
Central School. The case was docketed as OMB-0-94-0149.
In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M.
Nocos recommended the filing of an information charging petitioners with violation
of Section 3(e) and (g) of R.A. No. 3019, as amended with proper court. The
resolution, which was recommended for approval by Nicanor J. Cruz, OIC-Deputy
Ombudsman for Luzon, and approved by Ombudsman Aniano A. Desierto, adopted
the findings and conclusions in the resolution in OMB-1-94-1232 that the
landscaping project was overpriced.
On Febraury 9, 1996, another Information for violation of Section 3(e) of R.A.
No. 3019, as amended, was filed against petitioners for the overpricing of the
landscaping project, this time before the Sandiganbayan. The information was
subsequently amended on May 17, 1996. Except for the date the alleged crime was
committed, the information charged essentially the same inculpatory facts as the
information filed in the RTC. The case was docketed in the Sandiganbayan as Crim.
Case No. 22378.
On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash
the information in Crim. Case No. 22378 on the following grounds: that the
Sandiganbayan had no jurisdiction over the case; that the accused were charged with
the same offense in two informations; and that the proceedings in the Sandiganbayan
would expose petitioners to double jeopardy. The Sandiganbayan denied the
accuseds motion to quash in a Resolution dated June 21, 1996. The court, however,
suspended proceedings in the case until the Supreme Court resolved the question of
the Sandiganbayans jurisdiction involved in the Binay petition.
Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before
the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan,
arguing that under R.A. No. 7975 the Sandiganbayan, not the RTC, had jurisdiction
over the case. On July 3, 1996, the RTC issued an order holding in abeyance the
resolution of the motion to refer the case since the issue of jurisdiction was pending
before the Sandiganbayan.
Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion
for reconsideration of the Sandiganbayans Order dated June 21, 1996. On August 2,
1996, filed their own motion for the reconsideration of the same order. On October
22, 1996, the Sandiganbayan granted the motion for reconsieration filed by the
prosecution and set the case for arraignment. Petitioners moved for a reconsideration
of the October 22, 1996 Resolution ordering their arraignment, which motion was
denied on February 17, 1997.
On February 27, 1997, the accused filed the present petition.
On October 1, 1997, the Court resolved to issue a temporary restraining order
to prevent respondents from further proceeding with Crim. Case No. 23278 of the
Sandiganbayan.
The petition raises the following issues:
I
Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal
mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of
an information for the same offense before the Regional Trial Court having territorial
jurisdiction and venue of the commission of the offense?
II
Are the respondents Ombudsman and the prosecutors estopped by laches or waiver
from filing and prosecuting the case before respondent Sandiganbayan after the filing
earlier of the information in the proper court, thereafter repudiating it, seeking
another court of the same category and finally to respondent court?
III
Whether or not the filing of two (2) informations for the same offense violated the
rule on duplicity of information?
IV
Whether or not the trial to be conducted by respondent court, if the case shall not be
dismissed, will expose the petitioners who are accused therein to double jeopardy?
V
Under the circumstances, are the respondent Ombudsman and the prosecutors guilty
of forum shopping?[13]
On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the
Magsaysay petition) with G.R. Nos. 120681-83 (the Binay petition).
In resolving these consolidated petitions, the Court shall first addrress the
common question of the Sandiganbayans jurisdiction.
I
The Court rules that it is the Sandiganbayan which has jurisdiction over the
subject cases.
The informations against Mayor Binay were filed in the Sandiganbayan on July
7, 1994, pursuant to Presidential Decree No. 1606, [14] as amended by Presidential
Decree No. 1861,[15] the pertinent provisions of which state:
SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation
to their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the penalty
prescribed by law is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00
shall be tried by the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court.
xxx.
 On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had
not yet been arraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was
already in effect when the information against Mayor Magsaysay et al., was filed on
August 11, 1995 in the RTC of Batangas City.
Section 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as
follows:
Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all
cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII of the Revised Penal Code, where one or more of the principal accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher
rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as Grade 27 and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the
provisions of the Constitution; and
(5) All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officieals and employees
mentioned in subsection (a) of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are occupying positions corresponding
to salary grade 27 or higher, as prescribed in the said Republic Act No. 6758, or PNP
officers occupying the rank of superintendent or higher, or their equivalent, exclusive
jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case
may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.
129.
xxx.
While the cases against petitioners were pending in this Court, congress
enacted R.A. No. 8249, again redefining the jurisdiction of the Anti-Graft
Court. This law took effect, per Section 10 thereof, on February 23, 1997, fifteen
days after its complete publication on February 8, 1997 in the Journal and Malaya,
two newspapers of general circulation.
As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606
now reads:
SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at he time of the commission of the offense:
(1) Officials of the executive branch occupying the position of regional director and
higher, otherwise classified as grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher
rank;
(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations.
(2) Members of Congress and officials thereof classified as Grade 27 and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the
provisions of he Constitution; and
(5) All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection (a) of this
section in relation to heir office.
d. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to salary
grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and
PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested
in the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
Petitioners contend that they do not come under the exclusive original
jurisdiction of the Sandiganbayan because:
(1) At the alleged time of the commission of the crimes charged, petitioner
municipal mayors were not classified as Grade 27.
(2) Municipal mayors are not included in the enumeration in Section 4a(1) of
P.D. No. 1606, as amended by R.A. No. 7975.
(3) Congressional records reveal that the law did not intend municipal mayors
to come under the exclusive original jurisdiction of the Sandiganbayan.
A
In support of his contention that his position was not that of Grade 27, Mayor
Binay argues:
xxx. The new laws consistent and repeated reference to salary grade show[s] an
intention to base the separation of jurisdiction between the Sandiganbayan and
the regular courts on pay scale.Grades are determined by compensation. The
essence of grades is pay scales. Therefor, pay scales determine grades.[16]
Mayor Binay, thus, presented a Certification[17] from the City Personnel Officer
of Makati stating that petitioner as mayor received a monthly salary of only
P10,793.00 from March 1987 to December 31, 1988. This amount was supposedly
equivalent to Grade 22 under R.A. No. 6758.
Mayor Magsaysay, for his part, submitted a similar Certification[18] from the
Municipal Treasurer of San Pascual, Batangas, stating:
x x x that the basic monthly salary received by Mario C. Magsaysay, Municipal
Mayor of San Pascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND
EIGHT HUNDRED TWENTY EIGHT PESOS (P11,828.00) per month as of
November 3, 1993 equivalent only to Grade 25, Step 5 of RA 6758, the
Compensation and Position Classification Act of 1989.
Section 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary
constraints. This certification is issued to Mayor Mario C. Magsaysay this 30th day
of May 1996 at San Pascual, Batangas for whatever legal purpose and/or purposes it
may serve.
 The Court does not subscribe to the manner by which petitioners classify
Grades.
The Constitution[19] states that in providing for the standardization of
compensation of government officials and employees, Congress shall take into
account the nature of the responsibilities pertaining to, and the qualifications
required for their positions, thus:
The Congress shall provide for the standardization of compensation of government
officials, including those in government-owned or controlled corporations with
original charters, taking into account the nature of the responsibilities pertaining to,
and the qualifications required for their positions.
Corollary thereto, Republic Act No. 6758[20] provides in Section 2 thereof
that differences in pay are to be based upon substantive differences in duties and
responsibilities, and qualification requirements of the positions. In short, the nature
of an officials position should be the determining factor in the fixing of his or her
salary. This is not only mandated by law but dictated by logic as well.
Consistent with these policies, the law employs the scheme known as the grade
defined in Presidential Decree No. 985[21] as including
xxx all classes of positions which, although different with respect to kind or subject
matter of work, are sufficiently equivalent as to level of difficulty and
responsibilities and level of qualification requirements of the work to warrant the
inclusion of such classes of positions within one range of basic compensation. [22]
The grade, therefore, depends upon the nature of ones position -- the level of
difficulty, responsibilities, and qualification requirements thereof -- relative to that of
another position. It is the officials Grade that determines his or her salary, not the
other way around.
It is possible that a local government officials salary may be less than that
prescribed for his Grade since his salary depends also on the class and financial
capability of his or her respective local government unit.[23] Nevertheless, it is the
law which fixes the officials grade.
Thus, Section 8 of R.A. 6758 fixes the salary grades of the President, Vice-
President, Senate President, Speaker, Chief Justice, Senators, Members of the House
of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen
and Members of the Constitutional Commissions. Section 8 also authorizes the
Department of Budget and Management (DBM) to determine the officials who are of
equivalent rank to the foregoing officials, where applicable and to assign such
officials the same Salary Grades subject to a set of guidelines found in said section.
For positions below those mentioned under Section 8, Section 9 instructs the
DBM to prepare the Index of Occupational Services guided by the Benchmark
Position prescribed in Section 9 and the factors enumerated therein.
To determine whether an official is within the exclusive original jurisdiction of
the Sandiganbayan, therefore, reference should be made to R.A. No. 6758 and the
Index of Occupational Services, Position Titles and Salary Grades. Salary level is not
determinative. An officials grade is not a matter of proof, but a matter of law of
which the Court must take judicial notice.[24]
As both the 1989 and 1997 versions of the Index of Occupational Services,
Position Titles and Salary Grades list the municipal Mayor under Salary Grade 27,
petitioner mayors come within the exclusive original jurisdiction of the
Sandiganbayan. Petitioner mayors are local officials classified as Grade 27 and
higher under the Compensation and Position Classification Act of 1989, under the
catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No.
7975. More accurately, petitioner mayors are [o]fficials of the executive branch
occupying the positions of regional director and higher, otherwise classified as grade
27 and higher, of the Compensation and Position Classification Act of 1989, under
Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. [25]
B
Petitioners, however, argue that they are not included in the enumeration in
Section 4a(1). They invoke the rule in statutory construction expressio unius est
expressio alterius. As what is not included in those enumerated is deemed excluded,
municipal officials are excluded from the Sandiganbayans exclusive original
jurisdiction.
Resort to statutory construction, however, is not appropriate where the law is
clear and unambiguous.[26] The law is clear in this case. As stated earlier, Section
4a(1) of P.D. No. 1606, as amended by R.A. No. 7975, speaks of [o]fficials of the
executive branch occupying the positions of regional director and higher, otherwise
classified as grade 27 and higher, of the compensation and Position Classification
Act of 1989.
The Court fails to see how a different interpretation could arise even if the plain
meaning rule were disregarded and the law subjected to interpretation.
The premise of petitioners argument is that the enumeration in Section 4a(1) is
exclusive. It is not. The phrase specifically including after [o]fficials of the executive
branch occupying the positions of regional director and higher, otherwise classified
as grade 27 and higher, of the Compensation and Position Classification Act of 1989
necessarily conveys the very idea of non-exclusivity of the enumeration.The
principle of expressio unius est exclusio alterius does not apply where other
circumstances indicate that the enumeration was not intended to be exclusive,[27] or
where the enumeration is by way of example only.[28] In Conrado B. Rodrigo, et al.
vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the
catchall in Section 4a(5) was necessary for it would be impractical, if not impossible,
for Congress to list down each position created or will be created pertaining to
grades 27 and above. The same rationale applies to the enumeration in Section
4a(1). Clearly, the law did not intend said enumeration to be an exhaustive list.
Should there be any doubts as to whether petitioner mayors are under the
category of Grade 27, Section 444(d) of the Local Government Code settles the
matter:
The municipal mayor shall receive a minimum monthly compensation corresponding
to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the
implementing guidelines issued pursuant thereto.
In the Courts Resolution in Rodrigo dated July 2, 1999 denying the motion for
reconsideration, we treated the above provision as confirmatory of the Salary Grade
assigned by the DBM to Municipal Mayors.
C Since February 1979, when the Sandiganbayan was established up to the present, the
Petitioner Binay cites previous bills[29] in Congress dealing with the jurisdiction
of the Sandiganbayan. These bills supposedly sought to exclude municipal officials
from the Sandiganbayans exclusive original jurisdiction to relieve these officials
,especially those from the provinces, of the financial burden brought about by trials
in Manila.
The resort to congressional records to determine the proper application of the
law in this case is unwarranted in this case for the same reason that the resort to the
rule of inclusio unius est expressio alterius is inappropriate.
Verily, the interpretation of the law desired by the petitioner may be more humane
but it is also an elementary rule in statutory construction that when the words and
phrases of the statute are clear and unequivocal, their meaning must be determined
from language employed and the statute must be taken to mean exactly what it
says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate
as to the probable intent of the legislature apart from the words (Aparri v. CA, 127
SCRA 233 [1984]). When the law is clear, it is not susceptible to interpretation. It
must be applied regardless of who may be affected, even if the law may be harsh or
onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions
may be conceded, the same as a general rule, should be strictly but reasonably
construed; they extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception. Thus,
where a general rule is established by statute, the court will not curtail the former nor
add to the latter by implication (Samson v. CA., 145 SCRA 654 [1986]). [30]
Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration:
x x x that the inclusion of Municipal Mayors within the jurisdiction of the
Sandiganbayan would be inconvenient since the witness in their case would come
from Baguio City and San Nicolas, Pangasinan.This, according to petitioners, would
defeat one of the purposes of R.A. No. 7975, that is, the convenience of the accused.
The Court, in denying the motion for reconsideration, held, among others, that:
The legislature has nevertheless chosen the mode and standard by which to
implement its intent, and courts have no choice but to apply it. Congress has willed
that positions with Grade 27 and above shall come within the jurisdiction of the
Sandiganbayan and this Court is duty-bound to obey the congressional will.
Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating:
Court has been confronted with the problem of those accused who are of limited
means who stand trial for petty crimes, the so-called small fry -- the barangay
officials, the municipal officials and employees, postal clerks and letter carriers and
the like -- who are involved with nickel-and-dime cases and money-related cases
such as malversation, estafa and theft. xxx
xxx xxx xxx
Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such
that only those occupying high positions in Government and the military fall
under the jurisdiction of the court.[31]
It is not clear, however, whether Senator Roco meant that all municipal
officials are excluded fro mthe jurisdiction of the Sandiganbayan. In any case, courts
are not bound by a legislators opinion in congressional debates regarding the
interpretation of a particular legislation. It is deemed a mere personal opinion of the
legislator.[32] Such opinions do not necessarily reflect the view of the entire
Congress.[33]
D
 From the foregoing discussion, it is clear that the cases against petitioner Binay
cannot be referred to the regular courts under Section 7 of R.A. No. 7975, which
provides:
Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in
the Sandiganbayan shall be referred to the proper courts.
In construing the correct import of Section 7, it may be helpful to refer to the
guidelines in determining jurisdiction laid down in Bengzon vs. Inciong:[34]
The rule is that where a court has already obtained and is exercising jurisdiction over
a controversy, its jurisdiction to proceed to the final determination of the cause is not
affected by new legislation placing jurisdiction over such proceedings in another
tribunal. The exception to the rule is where the statute expressly provides, or is
construed to the effect that it is intended to operate as to actions pending before its
enactment. Where a statute changing the jurisdiction of a court has no retroactive
effect, it cannot be applied to a case that was pending prior to the enactment of the
statute.
R.A. No. 7975, by virtue of Section 7, belongs to the excepetion rather than the
rule. The provision is transitory in nature and expresses the legislatures intention to
apply its provisions on jurisdiction to criminal cases in which trial has not begun in
the Sandiganbayan. To this extent, R.A. 7975 is retroactive.
Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions
are found in other laws reallocating the jurisdiction of the courts. [35] There is no
reason why Section 7 of R.A. No. 7975 should be any different.
The term proper courts, as used in Section 7, means courts of competent
jurisdiction, and such jurisdiction is defined in Section 4 of P.D. No. 1606, as
amended by R.A. No. 7975. The former should not be read in isolation but construed
in conjunction with the latter.
The term proper courts as used in Section 7, therefore, is not restricted
to regular courts, but includes as well the Sandiganbayan, a special court. If the
intent of Congress were to refer all cases the trials of which have not begun to the
regular courts, it should have employed the term proper regular courts or regular
courts instead of proper courts. Accordingly, the law in the third paragraph of
Section 4 P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term
regular courts, not proper courts:
The Sandiganbayan shall exercise exclusive appellate jurisidction on appeals from
the final judgments, resolutions or orders of regular courts where all the accused are
occupying positions lower than salary grade 27, or not otherwise covered by the
preceding enumeration. [Underscoring supplied.]
Construed thus, the effects of Section 7 may be summarized as follows:
1. If trial of cases before the Sandiganbayan has already begun as of the approval of
R.A. No. 7975, R.A. No. 7975 does not apply.
2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A.
No. 7975, then R.A. No. 7975 applies.
(a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No.
7975, the Sandiganbayan has jurisdiction over a case before it, then the case shall be
referred to the Sandiganbayan.
(b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No.
7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be
referred to the regular courts.
The trial of the cases involving Mayor Binay had not yet begun as of the date of
the approval of R.A. 7975; consequently, the Anti-Graft Court retains jurisdiction
over the said cases.
In any case, whatever seeming ambiguity or doubt regarding the application of
Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249,
which states:
Sec. 7. Transitory Provision. - This Act shall apply to all cases pending in any court
over which trial has not begun as of the approval hereof.
The latter provision more accurately expresses the legislatures intent and in any
event should be applied in this case, R.A. No. 8249 having superseded R.A. No.
7975.
In Panfilo M. Lacson vs. The Executive Secretary, et al.,[36] The Court
explained the purpose of the foregoing provision.
x x x it can be reasonably anticipated that an alteration of [Sandiganbayans]
jurisdiction would necessarily affect pending cases, which is why it has to provide
for a remedy in the form of a transitory provision. x x x. The transitory provision
does not only cover cases which are in the Sandiganbayan but also in any court. x x
x. Moreover, those cases where trial had already begun are not affected by the
transitory provision under Section 7 of the new law (RA 8249). [Emphasis in the
original.]
The possible disruptive effect of the amendments to the Sandiganbayans
jurisdiction on pending cases was, therefore, not lost on the legislature. Congress
has, furthermore, deemed the commencement of the trial as the crucial point in
determining whether a court retains a case pending before it or lose the same on the
ground of lack of jurisdiction per the provisions of R.A. 8249. The law obviously
does not want to waste the time and effort already devoted to the presentation of
evidence if trial had already begun. On the other hand, not much disruption would be
caused if the amendment were made to apply to cases the trials of which have not yet
to start.
The ramifications of Section 7 of R.A. No. 8249 may be stated as follows:
1. If trial of the cases pending before whatever court has already begun as of the
approval of R.A. No. 8249, said law does not apply.
2. If trial of cases pending before whatever court has not begun as of the approval of
R.A. No. 8249, then said law applies.
(a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains
jurisdiction.
(b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case
shall be referred to the regular courts.
(c) If the Sandiganbayan has jurisdiction over a case pending before a regular court,
the latter loses jurisdiction and the same shall be referred to the Sandiganbayan.
(d) If a regular court has jurisdiction over a case pending before it, then said court
retains jurisdiction.
Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains
jurisdiction over said cases.
II
Petitioner Binay avers in his Addendum to Petition that his right to speedy
disposition has been violated by the inordinate delay in the resolution of the subject
cases by the Ombudsman.
Article III of the Constitution provides that:
Sec. 16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.
The constitutional right to a speedy disposition of cases is not limited to the
accused in criminal proceedings but extends to all parties in all cases, including civil
and administrative cases, and in all proceedings, including judicial and quasi-judicial
hearings.[37] Hence, under the Constitution, any party to a case may demand
expeditious action on all officials who are tasked with the administration of
justice.[38]
However, the right to a speedy disposition of a case, like the right to speedy
trial,[39] is deemed violated only when the proceedings is attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive a long period of
time is allowed to elapse without the party having his case tried.[40] Equally
applicable is the balancing test used to determine whether a defendant has been
denied his right to a speedy trial, or a speedy disposition of a case for that matter, in
which the conduct of both the prosecution and the defendant is weighed, and such
factors as the length of the delay, the reasons for such delay, the assertion or failure
to assert such right by the accused, and the prejudice caused by the delay.[41] The
concept of speedy disposition is a relative term and must necessarily be a flexible
concept.[42]
A mere mathematical reckoning of the time involved, therefore, would not be
sufficient.[43] In the application of the constitutional guarantee of the right to speedy
disposition of cases, particular regard must also be taken of the facts and
circumstances peculiar to each case.[44]
In Tatad vs.Sandiganbayan,[45] the Court held that the length of delay and the
simplicity of the issues did not justify the delay in the disposition of the cases
therein. The unexplained inaction[46] of the prosecutors called for the dismissal of the
cases against petitioner Tatad.
In Alvizo vs. Sandiganbayan,[47] the Court also ruled that there was no violation
of the right to speedy disposition. The Court took into account the reasons for the
delay, i.e., the frequent amendments of procedural laws by presidential decrees, the
structural reorganizations in existing prosecutorial agencies and the creation of new
ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction,
and the functions and powers of prosecuting agencies. The Court likewise considered
the failure of the accused to assert such right, and the lack of prejudice caused by the
delay to the accused.
In Santiago vs. Garchitorena,[48] the complexity of the issues and the failure of
the accused to invoke her right to speedy disposition at the appropriate time spelled
defeat to her claim to the constitutional guarantee.
In Cadalin vs. POEAs Administrator,[49] the Court, considering also the
complexity of the cases (not run-of-the-mill variety) and the conduct of the parties
lawyers, held that the right to speedy disposition was not violated therein.
In petitioner Binays case, the Court finds that there was no undue delay in the
disposition of the subject cases. The proceedings conducted before the Office of the
Tanodbayan, and later with the Office of the Ombudsman, adequately explains the
length of the delay:
1. That on July 27, 1988 Bobby Brillante filed with the Office of the
Tanodbayan an affidavit-complaint charging, Jejomar Binay, Sergio
Santos, Roberto Chang, Delfin Almeda, Nelson Irasga, Nicasio
Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena
Diaz, Virgilio Clarete, Godofredo Marcelo, Armando San Miguel,
Salvador Pangilinan and John Does of the following offenses: (a)
Massive Malversation of Public Funds; (b) Multiple Falsification of
Public Documents; (c) Usurpation of Official Functions; (d) Violation
of Election Law; and (e) Violation of Sec. 3(e) of R.A. 3019.
1.1. Brillantes complaint was based on the initial findings and
observations of the COA on the examination of the cash and
accounts covering transactions from April 1, 1987 to January 4,
1988 and Post-Audit of Selected Accounts for the last quarter of
1987 of the Municipality of Makati contained in its Report
dated January 11, 1988. The COA furnished the Tanodbayan a
copy of this report on August 1, 1988 upon request of the latter.
1.2. In the letter of the COA transmitting a copy of the report, the
Tanodbayan was informed that this COA audit report of
January 11, 1988 is not yet released since the Mayor of Makati
was given thirty days within which to explain/clarify the
findings in the report and is subject to change or modification
depending upon the explanation/clarification to be submitted by
the Mayor of Makati. Because of this information from the
COA the preliminary investigation was held in abeyance until
the submission of the final report.
1.3. On March 1, 1989, the first part of the Final Report on Audit
of Makati was received by the Office of the Ombudsman and
was transmitted for purposes of the ensuring preliminary
investigation to the Tanodbayan which received the same on
March 22, 1989.
1.4. This first part of the Final Report contained the fifteen (15)
adverse findings, above elsewhere stated as the basis of Bobby
Brillantes complaint.
1.5. Eleven (11) COA auditors participated in the documentation
and analysis of its findings and preparation of the final report.
1.6. The first part of the final report was followed by a
Supplemental Report on Findings No. 1 and 3. This
Supplemental Report is dated July 3, 1989.
2. After securing machine copies of the voluminous documents supporting
the COA findings, Pros. Margarito Gervacio, Chairman of the Panel of
Prosecutors, issued the corresponding subpoena directing the
respondents to submit their respective counter-affidavits.
2.1. In compliance with the subpoena, Mayor Jejomar Binay
submitted his counter-affidavit on May 18, 1990, Marissa Chan,
Feliciano Bascon, Nicanor Santiago, Jr. on June 19, 1990,
Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6,
1990, Roberto Chang on August 27, 1990. Feliciano Bascon
submitted his Supplemental Affidavit on November 22, 1990.
2.2. Thereafter, clarificatory examinations were conducted on
September 27, 1990, October 26, 1990, November 8, 9, 14, 22,
1990.
3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this
Petition for Certiorari in G.R. No. 92380 which he and the
municipality of Makati filed with the Supreme Court against COA
Chairman, Eufemio Domingo and the Commission on Audit, with a
manifestation that said petition is submitted to support Binays stand as
regard COA Finding No. 9 aforestated.
4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing
allegations incriminating Jejomar Binay;
5. Upon being ordered to comment on the said April 2, 1992 affidavit of
Marissa Chan, Jejomar Binay submitted his comment thereto on April
30, 1992.
6. On August 4, 1993, the Investigation Panel submitted to the Deputy
Special Prosecutor its Resolution disposing the preliminary
investigation of the case.
6.1. On August 10, 1993 the said Resolution was approved by the
Special Prosecutor, who forwarded the same and the entire
records to the Office of the Ombudsman for review and/or final
action.
6.2. On August 16, 1994, the Review Panel of the Ombudsman
submitted to the latter its review action for approval.
6.3. On August 19, 1994, the Ombudsman approved some of the
recommendations of the Review Panel and directed the
preparation and filing of the informations.[50]
Furthermore, the prosecution is not bound by the findings of the Commission
on Audit (COA); it must rely on its own independent judgment in the determination
of probable cause. Accordingly, the prosecution had to conduct it s own review of
the COA findings. Judging from said findings, we find that the cases were
sufficiently complex, thus justifying the length of time for their resolution. As held
by the Sandiganbayan in its Resolution dated March 29, 1995 denying the Motion to
Quash:
 2. Ten charges are involved in these cases and the prosecution, unable to
rely on the raw findings of the Commission on Audit in 15 reports
caused the investigation and examination of thousands of vouchers,
payrolls, and supporting documents considering that no less than the
Chairman of the Commission on Audit, assisted by a team supervisor
and 10 team members had to take part in the conduct of a final audit
consisting of evaluation and analysis of the initial findings in the 15
raw reports, the cases must have involved complicated legal and
factual issues which do warrant or justify a longer period of time for
preliminary investigation.
xxx
5. In the TATAD case, the preliminary investigation was resolved close to
three (3) years from the time all the counter-affidavits were submitted
to the Tanodbayan, notwithstanding the fact that very few
documentary and testimonial evidence were involved. In the above-
entitled cases, the preliminary investigation of all ten (10) cases was
terminated in merely two (2) years and four (4) months from the date
Mayor Binay filed his last pleading, on April 30, 1992. [51]
Petitioner claims that the Resolution of the Sandiganbayan ordering his
suspension pendente lite is unwarranted since the informations charging him were
not valid. This contention, however, must fail in view of our pronouncement that
there was no delay in the resolution of the subject cases in violation of his right to
speedy disposition. Accordingly, the informations in question are valid an petitioners
suspension pendente lite must be upheld.
Finally, whether or not there is probable cause to warrant the filing of the
subject cases is a question best left to the discretion of the Ombudsman. Absent any
grave abuse of such discretion, the Court will not interfere in the exercise
thereof.[52] Petitioner in this case has failed to establish any such abuse on the part of
the Ombudsman.
III
Having ruled that the criminal case against petitioners in G.R. No. 128136 is
within the exclusive original jurisdiction of the Sandiganbayan, the Court will now
dispose of the following issues raised by them:
(1) The Sandiganbayan was ousted of its jurisdiction by the filing of an
information alleging the same facts with the Regional Trial Court.
(2) Respondents are estopped from filing an information before the
Sandiganbayan considering that they had already filed another information alleging
the same facts before the Regional Trial Court.
(3) The filing of the information before the Sandiganbayan constitutes double
jeopardy.
The Court tackles these arguments successively then deals with the questions of
duplicity of information and forum shopping.
Petitioners invoke the rule that the jurisdiction of a court once it attaches cannot
be ousted by subsequent happenings or events, although of such character which
would have prevented jurisdiction from attaching in the first instance. [53] They claim
that the filing of the information in the Sandiganbayan was a subsequent happening
or event which cannot oust the RTC of its jurisdiction.
This rule has no application here for the simple reason that the RTC had no
jurisdiction over the case. Jurisdiction never attached to the RTC. When the
information was filed before the RTC, R.A. No. 7975 was already in effect and,
under said law, jurisdiction over the case pertained to the Sandiganbayan.
Neither can estoppel be successfully invoked. First, jurisdiction is determined
by law, not by the consent or agreement of the parties or by estoppel. [54] As a
consequence of this principle, the Court held in Zamora vs. Court of Appeals[55] that:
It follows that as a rule the filing of a complaint with one court which has no
jurisdiction over it does not prevent the plaintiff from filing the same complaint later
with the competent court. The plaintiff is not estopped from doing so simply because
it made a mistake before in the choice of the proper forum. In such a situation, the
only authority the first court can exercise is to dismiss the case for lack of
jurisdiction. This has to be so as a contrary conclusion would allow a party to divest
the competent court of its jurisdiction, whether erroneously or even deliberately, in
derogation of the law.
It is true that the Court has ruled in certain cases[56] that estoppel prevents a
party from questioning the jurisdiction of the court that the party himself
invoked. Estoppel, however, remains the exception rather than the rule, the rule
being that jurisdiction is vested by law.[57] Even in those instances where the Court
applied estoppel, the party estopped consistently invoked the jurisdiction of the court
and actively participated in the proceedings, impugning such jurisdiction only when
faced with an adverse decision. This is not the case here. After discovering that a
similar information had earlier been filed in the RTC, respondents promptly asked
the trial court to refer the case to the Sandiganbayan, which motion was followed by
a motion to resolve the previous motion. There was no consistent invocation of the
RTCs jurisdiction. There were no further proceedings after the filing of the
information save for the motion to refer the case precisely on the ground of lack of
jurisdiction, and the motion to resolve the earlier motion. Finally, the trial court had
not rendered any decision, much less one adverse to petitioners.
Second, petitioners cannot hold respondents in estoppel for the latter are not
themselves party to the criminal action. In a criminal action, the State is the plaintiff,
for the commission of a crime is an offense against the State. Thus, the complaint or
information filed in court is required to be brought in the name of the People of the
Philippines.[58] Even then, the doctrine of estoppel does not apply as against the
people in criminal prosecutions.[59] Violations of the Anti-Graft and Corrupt
Practices Act, like attempted murder,[60] is a public offense. Social and public interest
demand the punishment of the offender; hence, criminal actions for public offenses
can not be waived or condoned, much less barred by the rules of estoppel.[61]
The filing of the information in the Sandiganbayan did not put petitioners in
double jeopardy even though they had already pleaded not guilty to the information
earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC
not being a court of competent jurisdiction. There can be no double jeopardy where
the accused entered a plea in a court that had no jurisdiction.[62] The remedy of
petitioners, therefore, was not to move for the quashal of the information pending in
the Sandiganbayan on the ground of double jeopardy.[63] Their remedy was to move
for the quashal of the information pending in the RTC on the ground of lack of
jurisdiction.[64]
The contention that the filing of the information in the Sandiganbayan violated
the rule against duplicitous informations is patently unmeritorious. That rule
presupposes that there is one complaint or information charging not one offense, but
two or more offenses. Thus, Rule 110 of the Rules of Court states:
Sec. 13. Duplicity of offense. - A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribed a single
punishment for various offenses.
Non-compliance with this rule is a ground for quashing the duplicitous complaint or
information under Rule 117:
Sec. 3. Grounds. - The accused may move to quash the complaint or information on
any of the following grounds:
xxx
(e) That more than one offense is charged except in those cases in which existing
laws prescribe a single punishment for various offenses;
xxx
Here, petitioners are faced not with one information charging more than one
offense but with more than one information charging one offense.
The Court does not find the prosecution guilty of forum-shopping. Broadly
speaking, forum shopping exists when, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
another, or when he institutes two or more actions or proceedings grounded on the
same cause, on the gamble that one or the other court would make a favorable
disposition.[65]We discern no intent on the part of the State, in filing two informations
in two different courts, to gamble that one or the other court would make a favorable
disposition.
Obviously, respondents got their signals crossed. One set of officials, after
investigating a complaint filed by the Vice-Mayor of San Pascual, Batangas charging
petitioners of overpricing, filed the information for violation of Section 3(e) of R.A.
No. 3019 in the RTC. Another set of officials investigated another complaint from
the Concerned Citizens Group accusing petitioners of, among others, overpricing the
same project subject of the previous complaint. Finding probable cause, the second
set of officials instituted the criminal action, charging the same offense and alleging
essentially the same facts as the first, this time in the Sandiganbayan. Later learning
of the procedural faux pas, respondents without undue delay asked the RTC to refer
the case to the Sandiganbayan.
WHEREFORE, the consolidated petitions are hereby DISMISSED.
Bellosillo, Melo, Puno, Vitug, Mendoza, Purisima, Pardo, Buena, Gonzaga-
Reyes, and Ynares-Santiago, JJ., concur.
Panganiban, J., see separate opinion.
Davide, Jr., C.J., joins J. Panganiban in his separate opinion.
Quisumbing, J., concurs with J. Panganibans separate opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE
G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO,
HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON.
SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE
G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO,
HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON.
SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, RAMON JESUS P. PAJE, in his capacity as SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
AND SUBIC BAY METROPOLITAN AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON.
RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR.,
HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSA, RODOLFO SAMBAJON, ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC
BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA
ENERGY, INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, HON.
ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE
GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELHPERALTA,
ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D.
PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q.
RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON JESUS P.
PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES AND REDONDO
PENINSULA ENERGY, INC.,Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on
Certiorari1 assailing the Decision2 dated January 30, 2013 and the
Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP
No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P.
Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government
agency organized and established under Republic Act No. (RA) 7227,4 and
Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of
Understanding (MOU) expressing their intention to build a power plant in
Subic Bay which would supply reliable and affordable power to Subic Bay
Industrial Park (SBIP).5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC
undertook to build and operatea coal-fired power plant.6 In the said MOU,
TCC identified 20 hectares of land at SitioNaglatore, Mt. Redondo, Subic Bay
Freeport Zone (SBFZ) as the suitable area for the project and another site of
approximately 10 hectares tobe used as an ash pond.7 TCC intends to lease
the property from SBMA for a term of 50 years with rent fixed at$3.50 per
square meter, payable in 10 equal 5-year installments.8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental
Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of
Taiwan Cogeneration International Corporation (TCIC), a subsidiary of
TCC,9 for the construction, installation,and operation of 2x150-MW
Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio
Naglatore.10
On June 6, 2008, TCC assigned all its rights and interests under the MOU
dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy), 11 a
corporation duly organized and existing under the laws of the Philippines with
the primary purpose of building, owning, and operating powerplants in the
Philippines, among others.12Accordingly, an Addendum to the said MOU was
executed by SBMA and RP Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an
Environmental Impact Statement (EIS) for the proposed coal-fired power
plant and to assist RP Energy in applying for the issuance ofan ECC from the
Department of Environment and Natural Resources (DENR).14 On August 27,
2008, the Sangguniang Panglungsodof Olongapo City issued Resolution No.
131, Series of 2008, expressing the city government’s objection to the coal-
fired power plant as an energy source and urging the proponent to consider
safer alternative sources ofenergy for Subic Bay.15
On December 22, 2008, the DENR, through former Secretary Jose L.
Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-fired power
plant.16
Sometime thereafter, RP Energy decided to include additional components in
its proposed coal-fired power plant. Due to the changes in the project design,
which involved the inclusion of a barge wharf, seawater intake breakwater,
subsea discharge pipeline, raw water collection system, drainage channel
improvement, and a 230kV double-circuit transmission line,17 RP Energy
requested the DENR Environmental Management Bureau(DENR-EMB) to
amend its ECC.18 In support of its request, RP Energy submitted to the
DENR-EMBan Environmental Performance Report and Management Plan
(EPRMP), which was prepared by GHD.19
On June 8, 2010, RP Energy and SBMA entered into a Lease and
Development Agreement (LDA) over a 380,004.456-square meter parcel of
land to be used for building and operating the coal-fired power plant.20
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment)
allowing the inclusion ofadditional components, among others.21
Several months later, RP Energy again requested the DENR-EMB to amend
the ECC.22 Instead of constructing a 2x150-MW coal-fired power plant, as
originally planned, it now sought toconstruct a 1x300-MWcoal-fired power
plant.23 In support of its request, RP Energy submitted a Project Description
Report (PDR) to the DENR-EMB.24
On May 26, 2011, the DENR-EMB granted the request and further amended
the ECC (second amendment).25
On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued
Resolution No. 2011-149, opposing the establishment of a coal-fired thermal
power plant at SitioNaglatore, Brgy. Cawag, Subic, Zambales.26
On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued
Resolution No. 12, Series of 2011, expressing its strong objection to the coal-
fired power plant as an energy source.27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon.
Rafael V. Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista,
Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano, Hon. James de los Reyes,
Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida
Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio
Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo
Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D.
Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John
Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ of
Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his
capacity as Secretary of the DENR.28
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of
Kalikasan; and (2) refer the case to the CA for hearing and reception of
evidence and rendition of judgment.29 While the case was pending, RP
Energy applied for another amendment to its ECC (third amendment) and
submitted another EPRMP to the DENR-EMB, proposing the construction
and operation of a 2x300-MW coal-fired power plant.30
On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as
CA-G.R. SP No. 00015 and raffled to the Fifteenth Division of the CA.31 In
the Petition, the Casiño Group alleged, among others, that the power plant
project would cause grave environmental damage;32 that it would adversely
affect the health of the residents of the municipalities of Subic,Zambales,
Morong, Hermosa, and the City of Olongapo;33 that the ECC was issued and
the LDA entered into without the prior approval of the concerned
sanggunians as required under Sections 26 and 27 of the Local Government
Code (LGC);34 that the LDA was entered into without securing a prior
certification from the National Commission on Indigenous Peoples (NCIP) as
required under Section 59 of RA8371 or the Indigenous Peoples’ Rights Act
of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No.
2003-30 (DAO 2003-30) which allowsamendments of ECCs is ultra
viresbecause the DENR has no authority to decide on requests for
amendments of previously issued ECCs in the absence of a new EIS;36 and
that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP
Energy’s ECC are null and void.37
On October 29, 2012, the CA conducted a preliminary conference wherein
the parties, with their respective counsels, appeared except for Hon. Teodoro
A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente
G. Bautista, Mario Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and the
SBMA.38 The matters taken up during the preliminary conference were
embodied in the CA’s Resolution dated November 5, 2012, to wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental Compliance Certificate
(‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired
Thermal Power Plant Project (‘Power Plant,’ x x x ) and its
amendment to 1x300 MW Power Plant, and the Lease and
Development Agreement between SBMA and RP Energy complied
with the Certification Precondition as required under Section 59 of
Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997
(‘IPRA Law,’ x x x);
3. Whether x x x RP Energycomplied with all the
procedures/requirements for the issuance of the DENR ECC and its
amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the
National Commission on Indigenous Peoples is applicable in
the instant case;
4. Whether x x x the LGU’s approval under Sections 26 and 27 of the
Local Government Code is necessaryfor the issuance of the DENR
ECC and its amendments, and what constitutes LGU approval;
5. Whether x x x there is a threatened or actual violation of
environmental laws to justify the Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant
complied with the accepted legal standards on thermal
pollution of coastal waters, air pollution, water pollution, and
acid deposits on aquatic and terrestrial ecosystems; and

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

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

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

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

2.1 Whether x x x the instant Petition is proper; 2. paragraphs 1.29 to 1.32; and
 3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to the allegations of DENR
Secretary Paje’s Verified Return. x x x
Respondent RP Energy proposed the following stipulations, which were all
admitted by petitioners, through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic
Special Economic Zone; and
4. Apart from the instant case, petitioners have not challenged the
validity of Section 8.3 of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for
stipulation.39
Thereafter, trial ensued.
The Casiño Group presented three witnesses, namely: (1) Raymond V.
Palatino, a two-term representativeof the KabataanPartylist in the House of
Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales-
Olongapo City Civil Society Network,a director of the PREDA41 Foundation,
and a member of the Zambales Chapter of the Kaya NatinMovement and the
Zambales Chapter of the People Power Volunteers for Reform;42 and (3)
Ramon Lacbain, the ViceGovernor of the Province of Zambales.43
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms.
Mercado), an employee of GHD and the Project Directorof ongoing projects
for RP Energy regarding the proposed power plant project;44 (2) Juha Sarkki
(Engr. Sarkki), a Master of Science degree holder inChemical
Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of Science
Major in Mechanical Engineering from Worcester Polytechnic Institute; 46 (4)
Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer,
Sanitary Engineer, and Environmental Planner in the Philippines;47 and (5)
David C. Evangelista (Mr. Evangelista), a Business Development Analyst
working for RP Energy.48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F.
Rodriguez (Atty. Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was
issued in connection with RP Energy’s application for the 2x300-MW coal-
fired power plant.51
On November 15, 2012, the DENR-EMB granted RP Energy’s application for
the third amendment to its ECC, approving the construction and operation of
a 2x300-MW coal-fired power plant, among others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision denying the privilege of the
writ of kalikasanand the application for an environment protection order due
to the failure of the Casiño Group to prove that its constitutional right to a
balanced and healthful ecology was violated or threatened.53 The CA
likewise found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said
that the provision was not ultra vires,as the express power of the Secretary of
the DENR, the Director and Regional Directors of the EMB to issue an ECC
impliedly includes the incidental power to amend the same.54 In any case, the
CA ruled that the validity of the said section could not becollaterally attacked
in a petition for a writ of kalikasan.55
Nonetheless, the CA resolved to invalidate the ECC dated December 22,
2008 for non-compliance with Section 59 of the IPRA Law56 and Sections 26
and 27 of the LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz),
Director of RP Energy, to affix his signature in the Sworn Statement of Full
Responsibility, which is an integral part of the ECC.58 Also declared invalid
were the ECC first amendment dated July 8, 2010 and the ECC second
amendment dated May 26, 2011 in view of the failure of RP Energy to
comply with the restrictions set forth in the ECC, which specifically require
that "any expansion of the project beyond the project description or any
change in the activity x x x shall be subject to a new Environmental Impact
Assessment."59 However, as to the ECC third amendment dated November
15, 2012, the CA decided not to rule on its validity since it was not raised as
an issue during the preliminary conference.60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it
was issued without the prior consultation and approval of all the sanggunians
concerned as required under Sections 26 and 27 of the LGC,61 and in
violation of Section 59, Chapter VIII ofthe IPRA Law, which enjoins all
departments and other governmental agencies from granting any lease
without a prior certification that the area affected does not overlap with any
ancestral domain.62 The CA noted that no CNO was secured from the NCIP
prior to the execution of the LDA,63 and that the CNO dated October 31, 2012
was secured during the pendency of the case and was issued in connection
with RP Energy’s application for a 2x300-MW coalfired power plant.64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered
DENYING the privilege of the writ of kalikasan and the application for an
environmental protection order. The prayer to declare the nullity of Section
8.3 of the DENR Administrative Order No. 2003-30 for being ultra vires is
DENIED; and the following are all declared INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-
011-4021) dated 22 December 2008 issued in favor of respondent
Redondo Peninsula Energy, Inc. by former Secretary Jose L.
Atienza, Jr. of the Department of Environment and Natural
Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second
amendment dated 26 May 2011, both issued in favor ofrespondent
Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel
T. Cunaof the Department of Environment and Natural Resources,
Environmental Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010
entered into by respondents Subic Bay Metropolitan Authority and
Redondo Peninsula Energy, Inc. involving a parcel of land consisting
of ₱380,004.456 square meters.
SO ORDERED.65
The DENR and SBMA separately moved for reconsideration.66 RP Energy
filed a Motion for Partial Reconsideration,67 attaching thereto a signed
Statement of Accountability.68 The Casiño Group, on the other hand, filed
Omnibus Motions for Clarification and Reconsideration.69
On May 22, 2013, the CAissued a Resolution70 denying the aforesaid
motions for lack of merit. The CA opined that the reliefs it granted in its
Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for
Environmental Cases as the reliefs enumerated therein are broad,
comprehensive, and nonexclusive.71 In fact, paragraph (e) of the
saidprovision allows the granting of "such other reliefs" in consonance with
the objective, purpose, and intent of the Rules.72 SBMA’s contention that the
stoppage of a project for non-compliance with Section 59 of the IPRA Law
may only be done by the indigenous cultural communities or indigenous
peoples was also brushed aside by the CA as the Casiño Group did not file a
case under the IPRA Law but a Petition for a Writ of Kalikasan, which is
available to all natural or juridical persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened to be violated. 73 As
to RP Energy’s belated submission of a signed Statement of Accountability,
the CA gaveno weight and credenceto it as the belated submission of such
document, long after the presentation of evidence of the parties had been
terminated, is not in accord with the rules of fair play.74 Neither was the CA
swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a
mere formal defect, which does not affect the validity of the entire
document.75 The dispositive portion of the Resolution reads:
WHEREFORE,premises considered, respondents Subic Bay Metropolitan
Authority’s Motion for Reconsideration dated 18 February 2013, Department
of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s
Motion for Reconsideration dated 19 February 2013, and Redondo Peninsula
Energy, Inc.’s Motion for Partial Reconsideration dated 22 February 2013, as
well as petitioners’ OmnibusMotions for Clarification and Reconsideration
dated 25 February 2013,are all DENIED for lack of merit.
SO ORDERED.76
Unsatisfied, the parties appealed to this Court.
The Casiño Group’s arguments
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan
as it was able to prove that the operation of the power plant would cause
environmental damage and pollution, and that thiswould adversely affect the
residents of the provinces of Bataan and Zambales, particularly the
municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites
as basis RP Energy’s EIS, which allegedly admits that acid rain may occur in
the combustion of coal;77 that the incidence of asthma attacks among
residents in the vicinity of the project site may increasedue to exposure to
suspended particles from plant operations;78 and that increased sulfur oxides
(SOx) and nitrogen oxides (NOx) emissions may occur during plant
operations.79 It also claims that when the SBMA conducted Social
Acceptability Policy Consultations with different stakeholders on the
proposed power plant, the results indicated that the overall persuasion of the
participants was a clear aversion to the project due to environmental, health,
economic and socio-cultural concerns.80 Finally, it contends that the ECC
third amendment should also be nullified for failure to comply with the
procedures and requirements for the issuance of the ECC.81
The DENR’s arguments
The DENR imputes error on the CAin invalidating the ECC and its
amendments, arguing that the determination of the validity of the ECC as
well as its amendments is beyond the scope of a Petition for a Writ of
Kalikasan.82 And even if it is within the scope, there is no reason to invalidate
the ECC and its amendments as these were issued in accordance with DAO
No. 2003-30.83 The DENR also insists that contrary to the view of the CA, a
new EIS was no longer necessary since the first EIS was still within the
validity period when the first amendment was requested, and that this is
precisely the reason RP Energy was only required to submit an EPRMP in
support of its application for the first amendment.84 As to the second
amendment, the DENR-EMB only required RP Energy to submit documents
to support the proposed revision considering that the change in configuration
of the power plant project, from 2x150MW to 1x300MW, was not
substantial.85 Furthermore, the DENR argues that no permits, licenses,
and/or clearances from other government agencies are required in the
processing and approval of the ECC.86 Thus, non-compliance with Sections
26 and 27 of the LGC as well as Section 59 ofthe IPRA Law is not a ground
to invalidate the ECC and its amendments.87 The DENR further posits that
the ECC is not a concession, permit, or license but is a document certifying
that the proponent has complied with all the requirements of the EIS System
and has committed to implement the approved Environmental Management
Plan.88 The DENR invokes substantial justice so that the belatedly submitted
certified true copy of the ECC containing the signature of Mr. Aboitiz on the
Statement of Accountability may be accepted and accorded weight and
credence.89
SBMA’s arguments
For its part, SBMA asserts that since the CA did not issue a Writ of
Kalikasan, it should not have invalidated the LDA and that in doing so, the
CA acted beyond its powers.90 SBMA likewise puts in issue the legal capacity
of the Casiño Group to impugn the validity of the LDA91 and its failure to
exhaust administrative remedies.92 In any case, SBMA contends that there is
no legal basis to invalidate the LDA as prior consultation under Sections 26
and 27 of the LGC is not required in this case considering that the area is
within the SBFZ.93 Under RA 7227, it is the SBMA which has exclusive
jurisdiction over projects and leases within the SBFZ and that in case of
conflict between the LGC and RA 7227, it is the latter, a special law, which
must prevail.94 Moreover, the lack of prior certification from the NCIP is
alsonot a ground to invalidate a contract.95 If at all, the only effect of non-
compliance with the said requirement under Section 59 of the IPRA Law is
the stoppage or suspension of the project.96 Besides, the subsequent
issuance of a CNO has cured any legal defect found in the LDA. 97
RP Energy’s arguments
RP Energy questions the proprietyof the reliefs granted by the CA
considering that it did not issue a writ of kalikasanin favor of the Casiño
Group.98 RP Energy is of the view that unless a writ of kalikasanis issued, the
CA has no power to grant the reliefs prayed for in the Petition.99 And even if it
does, the reliefs are limited to those enumerated in Section 15, Rule 7 of the
Rules of Procedure for Environmental Cases and that the phrase "such other
reliefs" in paragraph (e) should be limited only to those of the same class or
general nature as the four other reliefs enumerated.100 As to the validity of
the LDA, the ECC and its amendments, the arguments of RP Energy are
basically the same arguments interposed by SBMA and the DENR. RP
Energy maintains that the ECC and its amendments were obtained in
compliance with the DENR rules and regulations;101 that a CNO is not
necessary in the execution of anLDA and in the issuance of the ECC and its
amendments;102 and that prior approval of the local governments, which may
be affected by the project, are not required because under RA 7227, the
decision of the SBMA shall prevail in matters affecting the Subic Special
Economic Zone (SSEZ), except in matters involving defense and
security.103 RP Energy also raises the issue of non-exhaustion of
administrative remedies on the part of the Casiño Group.104 Preliminaries
This case affords us an opportunity to expound on the nature and scope of
the writ of kalikasan. It presents some interesting questions about law and
justice in the context of environmental cases, which we will tackle in the main
body of this Decision.
But we shall first address some preliminary matters, in view of the manner by
which the appellate court disposed of this case.
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of
Procedure for Environmental Cases,106 was issued by the Court pursuant to
its power to promulgate rules for the protection and enforcement of
constitutional rights,107 in particular, the individual’s rightto a balanced and
healthful ecology.108 Section 1 of Rule 7 provides:
Section 1. Nature of the writ.- The writ is a remedy available to a natural or
juridical person, entity authorized by law, people’s organization,
nongovernmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or property of inhabitants in
two or more cities or provinces.
The writ is categorized as a special civil action and was, thus, conceptualized
as an extraordinary remedy,which aims to provide judicial relief from
threatened or actual violation/s of the constitutional right to a balanced and
healthful ecology of a magnitude or degree of damage that transcends
political and territorial boundaries.109 It is intended "to provide a
strongerdefense for environmental rights through judicial efforts where
institutional arrangements of enforcement, implementation and legislation
have fallen short"110 and seeks "to address the potentially exponential nature
of large-scale ecological threats."111
Under Section 1 of Rule 7, the following requisites must be present to avail of
this extraordinary remedy: (1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2) the actual or
threatened violation arises from an unlawful act or omission of a public
official or employee, or private individual or entity; and (3) the actual or
threatened violation involves or will lead to an environmental damage of such
magnitude as to prejudice the life, health or property ofinhabitants in two or
more cities or provinces.
Expectedly, the Rules do not definethe exact nature or degree of
environmental damage but only that it must be sufficientlygrave, in terms of
the territorial scope of such damage, so as tocall for the grant ofthis
extraordinary remedy. The gravity ofenvironmental damage sufficient to grant
the writ is, thus, to be decided on a case-to-case basis.
If the petitioner successfully proves the foregoing requisites, the court shall
render judgment granting the privilege of the writ of kalikasan. Otherwise, the
petition shall be denied. If the petition is granted, the court may grant the
reliefs provided for under Section 15of Rule 7, to wit: Section 15. Judgment.-
Within sixty (60) daysfrom the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation
of environmental laws resulting in environmental destruction or
damage;
(b) Directing the respondent public official, government agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the decision
and orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of
the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the award of
damages to individual petitioners.
It must be noted, however,that the above enumerated reliefs are non-
exhaustive. The reliefs that may be granted under the writ are broad,
comprehensive and non-exclusive.112
Prescinding from the above, the DENR, SBMA and RP Energy are one in
arguing that the reliefs granted by the appellate court, i.e.invalidating the
ECC and its amendments, are improper because it had deniedthe Petition for
Writ of Kalikasanupon a finding that the Casiño Group failed to prove the
alleged environmental damage, actual or threatened, contemplated under the
Rules.
Ordinarily, no reliefs could and should be granted. But the question may be
asked, could not the appellate court have granted the Petition for Writ of
Kalikasanon the ground of the invalidity of the ECC for failure to comply with
certain laws and rules?
This question is the starting point for setting up the framework of analysis
which should govern writ of kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations,
relative to the actual or threatened violation of the constitutional right to a
balanced and healthful ecology, may be grouped into two.
The first set of allegations deals withthe actual environmental damage that
will occur if the power plant project isimplemented. The Casiño Group claims
that the construction and operation of the power plant will result in (1) thermal
pollution of coastal waters, (2) air pollution due to dust and combustion
gases, (3) water pollution from toxic coal combustion waste, and (4) acid
deposition in aquatic and terrestrial ecosystems, which will adversely affect
the residents of the Provinces of Bataan and Zambales, particularly the
Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.
The second set of allegations deals with the failureto comply with certain
laws and rules governing or relating to the issuance ofan ECC and
amendments thereto. The Casiño Group claims that the ECC was issued in
violation of (1) the DENR rules on the issuance and amendment of an ECC,
particularly, DAO 2003-30 and the Revised Procedural Manual for DAO
2003-30 (Revised Manual), (2) Section 59 of the IPRA Law,and (3) Sections
26 and 27 of the LGC. In addition, it claims that the LDA entered into
between SBMA and RP Energy violated Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment,
it is not difficult to discern that, if they are proven, then the Petition for Writ of
Kalikasan could conceivably be granted.
However, as to the second set of allegations, a nuanced approach is
warranted. The power of the courts to nullify an ECC existed even prior to the
promulgation of the Rules on the Writ of Kalikasanfor judicial review of the
acts of administrative agencies or bodies has long been
recognized114 subject, of course, to the doctrine of exhaustion of
administrative remedies.115
But the issue presented before us is nota simple case of reviewing the acts
of an administrative agency, the DENR, which issued the ECC and its
amendments. The challenge to the validity ofthe ECC was raised in the
context of a writ of kalikasancase. The question then is, can the validity of an
ECC be challenged viaa writ of kalikasan?
We answer in the affirmative subject to certain qualifications.
As earlier noted, the writ of kalikasanis principally predicated on an actual or
threatened violation of the constitutional right to a balanced and healthful
ecology, which involves environmental damage of a magnitude that
transcends political and territorial boundaries. A party, therefore, who invokes
the writ based on alleged defects or irregularities in the issuance of an ECC
must not only allege and prove such defects or irregularities, but mustalso
provide a causal link or, at least, a reasonable connection between the
defects or irregularities in the issuance of an ECC and the actual or
threatened violation of the constitutional right to a balanced and healthful
ecology of the magnitude contemplated under the Rules. Otherwise, the
petition should be dismissed outright and the action re-filed before the proper
forum with due regard to the doctrine of exhaustion of administrative
remedies. This must be so ifwe are to preserve the noble and laudable
purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which
could conceivably warrant the granting of the extraordinary remedy of the writ
of kalikasan, is a case where there are serious and substantial
misrepresentations or fraud in the application for the ECC, which, if not
immediately nullified, would cause actual negative environmental impacts of
the magnitude contemplated under the Rules, because the government
agenciesand LGUs, with the final authority to implement the project, may
subsequently rely on such substantially defective or fraudulent ECC in
approving the implementation of the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is
not sufficient to merely allege such defects or irregularities, but to show a
causal link or reasonable connection with the environmental damage of the
magnitude contemplated under the Rules. In the case at bar, no such causal
link or reasonable connection was shown or even attempted relative to the
aforesaid second set of allegations. It is a mere listing of the perceived
defects or irregularities in the issuance of the ECC. This would havebeen
sufficient reason to disallow the resolution of such issues in a writ of
kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we
have liberally examined the alleged defects or irregularities in the issuance of
the ECC and find that there is only one group of allegations, relative to the
ECC, that can be reasonably connected to anenvironmental damageof the
magnitude contemplated under the Rules. This is withrespect to the
allegation that there was no environmental impact assessment relative to the
first and second amendments to the subject ECC. If this were true, then the
implementation of the project can conceivably actually violate or threaten to
violate the right to a healthful and balanced ecology of the inhabitants near
the vicinity of the power plant. Thus, the resolution of such an issue could
conceivably be resolved in a writ of kalikasan case provided that the case
does not violate, or is anexception to the doctrine of exhaustion of
administrative remedies and primary jurisdiction.116
As to the claims that the issuance of the ECC violated the IPRA Law and
LGC and that the LDA, likewise, violated the IPRA Law, we find the same not
to be within the coverage of the writ of kalikasanbecause, assuming there
was non-compliance therewith, no reasonable connection can be made to an
actual or threatened violation of the right to a balanced and healthful ecology
of the magnitude contemplated under the Rules.
To elaborate, the alleged lackof approval of the concerned sanggunians over
the subject project would not lead toor is not reasonably connected with
environmental damage but, rather, it is an affront to the local autonomy of
LGUs. Similarly, the alleged lack of a certificate precondition that the project
site does not overlap with an ancestral domain would not result inor is not
reasonably connected with environmental damage but, rather, it is an
impairment of the right of Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) to their ancestral domains. These alleged violationscould
be the subject of appropriate remedies before the proper administrative
bodies (like the NCIP) or a separate action to compel compliance before the
courts, as the case may be. However, the writ of kalikasan would not be the
appropriate remedy to address and resolve such issues.
Be that as it may, we shall resolve both the issues proper in a writ of
kalikasan case and those which are not, commingled as it were here,
because of the exceptional character of this case. We take judicial notice of
the looming power crisis that our nation faces. Thus, the resolution of all the
issues in this case is of utmost urgency and necessity in order to finally
determine the fate of the project center of this controversy. If we were to
resolve only the issues proper in a writ of kalikasancase and dismiss those
not proper therefor, that will leave such unresolved issues open to another
round of protracted litigation. In any case, we find the records sufficient to
resolve all the issues presented herein. We also rule that, due to the extreme
urgency of the matter at hand, the present case is an exception to the
doctrine of exhaustion of administrative remedies.117 As we have often ruled,
in exceptional cases, we can suspend the rules of procedure in order to
achieve substantial justice, and to address urgent and paramount State
interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the following issues:
1. Whether the Casiño Group was able to prove that the construction
and operation of the power plant will cause grave environmental
damage.
1.1. The alleged thermal pollution of coastal waters, air
pollution due to dust and combustion gases, water pollution
from toxic coal combustion waste, and acid deposition to
aquatic and terrestrial ecosystems that will becaused by the
project.
1.2. The alleged negative environmental assessment of the
project by experts in a report generated during the social
acceptability consultations.
1.3. The alleged admissions of grave environmental damage
in the EIS itself of the project.
2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel
Aboitiz, as representative of RP Energy, in the Statement of
Accountability of the ECC.
3. Whether the first and second amendments to the ECC are invalid
for failure to undergo a new environmental impact assessment (EIA)
because of the utilization of inappropriate EIA documents.
4. Whether the Certificate of Non-Overlap, under Section 59 of the
IPRA Law, is a precondition to the issuanceof an ECC and the lack
of its prior issuance rendered the ECC invalid.
5. Whether the Certificate of Non-Overlap, under Section 59 of the
IPRA Law, is a precondition to the consummation of the Lease and
Development Agreement (LDA) between SBMA and RPEnergy and
the lack of its prior issuance rendered the LDA invalid.
6. Whether compliance with Section 27, in relation to Section 26, of
the LGC (i.e., approval of the concerned sanggunianrequirement) is
necessary prior to the implementation of the power plant project.
7. Whether the validity of the third amendment to the ECC can be
resolved in this case.
Ruling
The parties to this case appealed from the decision of the appellate court
pursuant to Section 16, Rule7 of the Rules of Procedure for Environmental
Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the
adverse judgment or denialof motion for reconsideration, any party may
appeal to the Supreme Court under Rule45 of the Rules of Court. The appeal
may raise questions of fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to
raise, on appeal, questions of fact— and, thus, constitutes an exception to
Rule 45 of the Rules of Court— because ofthe extraordinary nature of the
circumstances surrounding the issuance of a writ of kalikasan.118 Thus, we
shall review both questions of law and fact in resolving the issues presented
in this case.
We now rule on the above-mentioned issues in detail.
 I.
Whether the Casiño Group was able to prove that the construction and
operation of the power plant will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.
As previously noted, the Casiño Group alleged that the construction and
operation of the power plant shall adversely affect the residents of the
Provinces of Bataan and Zambales, particularly, the Municipalities of Subic,
Morong and Hermosa, and the City of Olongapo, as well as the sensitive
ecological balance of the area. Their claims of ecological damage may be
summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of
heated water from the operation of the plant, they claim that the
temperature of the affected bodies of water will rise significantly. This
will have adverse effects on aquatic organisms. It will also cause the
depletion of oxygen in the water. RP Energy claims that there will
beno more than a 3°C increase in water temperature but the Casiño
Group claims that a 1°C to 2°C rise can already affect the
metabolism and other biological functions of aquatic organisms such
asmortality rate and reproduction.
2. Air pollution due to dust and combustion gases. While the Casiño
Group admits that Circulating Fluidized Bed (CFB) Coal technology,
which will be used in the power plant, is a clean technology because
it reduces the emission of toxic gases, it claims that volatile organic
compounds, specifically, polycyclic aromatic hydrocarbons (PAHs)
will also be emitted under the CFB. PAHs are categorized as
pollutants with carcinogenic and mutagenic characteristics. Carbon
monoxide, a poisonous gas, and nitrous oxide, a lethal global
warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste from
coal combustion or the residues from burning pose serious
environmental risk because they are toxic and may cause cancer
and birth defects. Their release to nearby bodies of water will be a
threatto the marine ecosystem of Subic Bay. The project is located in
a flood-prone area and is near three prominent seismic faults as
identified by Philippine Institute of Volcanology and Seismology. The
construction of an ash pond in an area susceptible to flooding and
earthquake also undermines SBMA’s duty to prioritize the
preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power
plant will release 1,888 tons of nitrous oxides and 886 tons of sulfur
dioxide per year. These oxides are responsible for acid deposition.
Acid deposition directly impacts aquatic ecosystems. It is toxic to fish
and other aquatic animals. It will also damage the forests near Subic
Bay as well as the wildlife therein. This will threaten the stability of
the biological diversity of the Subic Bay Freeport which was declared
as one of the ten priority sites among the protected areas in the
Philippines and the Subic Watershed and Forest Reserve. This will
also have an adverse effect on tourism.119
In its January 30, 2013 Decision, the appellate court ruled that the Casiño
Group failed to prove the above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the Casiño Group are not experts
on the CFB technology or on environmental matters. These witnesses even
admitted on cross-examination that theyare not competent to testify on the
environmental impact of the subject project. What is wanting in their
testimonies is their technical knowledgeof the project design/implementation
or some other aspects of the project, even those not requiring
expertknowledge, vis-à-vis the significant negative environmental impacts
which the Casiño Group alleged will occur. Clearly, the Casiño Group failed
to carry the onusof proving the alleged significant negative environmental
impacts of the project. In comparison, RP Energy presented several experts
to refute the allegations of the Casiño Group.
As aptly and extensively discussed by the appellate court:
Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and
Lacbain, all of whom are not experts on the CFB technology or even on
environmental matters. Petitioners did not present any witness from Morong
or Hermosa. Palatino, a former freelance writer and now a Congressman
representing the Kabataan Partylist, with a degree of BS Education major in
Social Studies, admitted that he is not a technical expert. Hermoso, a
Director of the PREDA foundation which is allegedly involved on
environmental concerns, and a member of Greenpeace, is not an expert on
the matter subject of this case. He is a graduate of BS Sociology and a
practicing business director involved in social development and social
welfare services. Lacbain, incumbent ViceGovernor of the Province of
Zambales, anaccounting graduate with a Master in Public Administration,
was a former BancoFilipino teller, entertainment manager, disco manager,
marketing manager and college instructor, and is also not an expert on the
CFB technology. Lacbain also admitted that he is neither a scientist nor an
expert on matters of the environment.
Petitioners cited various scientific studies or articles and websites culled from
the internet. However, the said scientific studiesand articles including the
alleged Key Observations and Recommendations on the EIS of the
Proposed RPE Project by Rex Victor O. Cruz (Exhibit "DDDDD") attached to
the Petition, were not testified to by an expert witness, and are basically
hearsay in nature and cannot be given probative weight. The article
purportedly written by Rex Victor O. Cruz was not even signed by the said
author, which fact was confirmed by Palatino. Petitioners’ witness, Lacbain,
admitted that he did not personally conduct any study on the environmental
or health effects of a coal-firedpower plant, but only attended seminars and
conferences pertaining to climate change; and that the scientific studies
mentioned in the penultimate whereas clause of Resolution No. 2011-149
(Exhibit "AAAAA") of the Sangguniang Panlalawiganof Zambales is based on
what he read on the internet, seminars he attended and what he heard from
unnamed experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was
furnished by the concerned residents the Key Observations and
Recommendations on the EIS of Proposed RPE Project by Rex Victor O.
Cruz, and that he merely received and read the five (5) scientific studies and
articles which challenge the CFB technology. Palatino also testified that: he
was only furnished by the petitioners copies of the studies mentioned in his
Judicial Affidavit and he did not participate in the execution, formulation or
preparation of any of the said documents; he does not personally know Rex
Cruz or any of the authors of the studies included in his Judicial Affidavit; he
did not read other materials about coal-fired power plants; he is not aware of
the acceptable standards as far as the operation of a coal-fired power plant is
concerned; petitioner Velarmino was the one who furnished him copies of the
documents in reference to the MOU and some papers related to the case;
petitioner Peralta was the one who e-mailed to him the soft copy ofall the
documents [letters (a) to (o) of his Judicial Affidavit], except the LGU
Resolutions; and he has never been at the actual Power Plant projectsite. It
must be noted that petitioners Velarmino and Peralta were never presented
as witnesses in this case. In addition, Palatino did not identify the said
studies but simplyconfirmed that the said studies were attached to the
Petition.
Indeed, under the rules of evidence, a witness can testify only to those facts
which the witness knows of his orher personal knowledge, that is, which are
derived from the witness’ own perception. Concomitantly, a witness may not
testify on matters which he or she merely learned from others either because
said witness was told or read or heard those matters. Such testimony is
considered hearsay and may not be received as proof of the truth of what the
witness has learned. This is known as the hearsay rule. Hearsay is notlimited
to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. There are several
exceptions to the hearsay rule under the Rules of Court, among which are
learned treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on
a subjectof history, law, science, or art is admissible as tending to prove the
truth of a matter stated therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in
the subject."
The alleged scientific studies mentioned in the Petition cannot be classified
as learned treatises. We cannot take judicial notice of the same, and no
witness expert in the subjectmatter of this case testified, that the writers of
the said scientific studies are recognized in their profession or calling as
experts in the subject.
In stark contrast, respondent RP Energy presented several witnesses on the
CFB technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of
Science, Major in Mechanical Engineering from Worcester Polytechnic
Institute; he is a Consulting Engineer of Steam Generators of URS; he was
formerly connected with Foster Wheeler where he held the positions of site
commissioning engineer, testing engineer, instrumentation and controls
engineer, mechanical equipment department manager, director of boiler
performance and mechanical design engineering and pulverized coal product
director. He explained that: CFB stands for Circulating Fluidized Bed; it is a
process by which fuel is fed to the lower furnace where it is burned in an
upward flow of combustion air; limestone, which is used as sulfur absorbent,
is also fed to the lower furnace along with the fuel; the mixture offuel, ash,
and the boiler bed sorbent material is carried to the upper part of the furnace
and into a cyclone separator; the heavier particles which generally consist of
the remaining uncombusted fuel and absorbent material are separated in the
cyclone separator and are recirculated to the lower furnace to complete the
combustion of any unburned particles and to enhance SO2 capture by the
sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in
the electrostatic precipitator; furnace temperature is maintained in the range
of 800° to 900° C by suitable heat absorbing surface; the fuel passes through
a crusher that reduces the size to an appropriate size prior to the introduction
into the lower furnace along with the limestone; the limestone is used as a
SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an
inert and stable material; air fans at the bottom of the furnace create
sufficient velocity within the steam generator to maintain a bed of fuel, ash,
and limestone mixture; secondary air is also introduced above the bed to
facilitate circulation and complete combustion of the mixture; the combustion
process generates heat, which then heats the boiler feedwater flowing
through boiler tube bundles under pressure; the heat generated in the
furnace circuit turns the water to saturated steam which is further heated to
superheated steam; this superheated steam leaves the CFB boiler and
expands through a steam turbine; the steam turbine is directly connected to a
generator that turns and creates electricity; after making its way through the
steam turbine, the low-pressure steam is exhausted downwards into a
condenser; heat is removed from the steam, which cools and condenses into
water (condensate); the condensate is then pumped back through a train of
feedwater heaters to gradually increase its temperature beforethis water is
introduced to the boiler to start the process all over again; and CFB
technology has advantagesover pulverized coal firing without backend
cleanup systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions.
Moreover, Wong testified, inter alia, that: CFBs have a wider range of
flexibility so they can environmentally handle a wider range of fuel
constituents, mainly the constituent sulfur; and is capable of handling
different types of coal within the range of the different fuelconstituents; since
CFB is the newer technology than the PC or stalker fire, it has better
environmental production; 50 percent ofthe electric generation in the United
States is still produced by coal combustion; and the CFB absorbs the sulfur
dioxide before it is emitted; and there will be a lower percentage of emissions
than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for
Process Concept in FosterWheeler; he was a Manager of Process
Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of
Science degree in Chemical Engineering.He explained that: CFB boilers will
emit PAHs but only in minimal amounts, while BFB will produce higher PAH
emissions; PAH is a natural product of any combustion process; even
ordinary burning, such as cooking or driving automobiles, will have some
emissions that are not considered harmful; it is only when emissions are of a
significant level that damage may be caused; a CFB technology has minimal
PAH emissions; the high combustion efficiency of CFB technology, due to
long residence time of particles inside the boiler, leads to minimal emissions
of PAH; other factors such as increase in the excess air ratio[,] decrease in
Ca/S, as well as decrease in the sulfur and chlorine contents of coal will
likewise minimize PAH production; and CFB does not cause emissions
beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB
technology is used worldwide; they have a 50% percent share of CFB market
worldwide; and this will be the first CFB by Foster Wheeler in the Philippines;
Foster Wheeler manufactures and supplies different type[s] of boilers
including BFB, but CFB is always applied on burning coal, so they do not
apply any BFB for coal firing; CFB has features which have much better
combustion efficiency, much lower emissions and it is more effective as a
boiler equipment; the longer the coal stays inthe combustion chamber, the
better it is burned; eight (8) seconds is already beyond adequate but it keeps
a margin; in CFB technology, combustion technology is uniform throughout
the combustion chamber; high velocity is used in CFB technology, that is
vigorous mixing or turbulence; turbulence is needed to get contact between
fuel and combustion air; and an important feature of CFB is air distribution.
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical
Engineer, Sanitary Engineer and Environmental Planner in the Philippines;
he is also a chartered Professional Engineer inAustralia and a member of the
colleges of environmental engineers and chemical engineers of the Institution
of Engineers (Australia); he completed his Bachelor in Chemical Engineering
in 1970, Master of Environmental Engineering in 1972 and Doctor of
Environmental Engineering in 1974; he also graduated from the University of
Sydney Law School with the degree of Master of Environmental Law in 2002
and PhD in Law from Macquarie University in 2007. He explained in his
Judicial Affidavit that: the impacts identified and analyzed in the EIA process
are all potential or likely impacts; there are a larger number of EIA techniques
for predicting the potential environmental impacts; it is important to note that
all those methods and techniques are only for predicting the potential
environmental impacts, not the real impacts; almost all environmental
systems are non-linear and they are subject to chaotic behavior that even the
most sophisticated computer could not predict accurately; and the actual or
real environmental impact could only be established when the project is in
actual operation. He testified, inter alia, that: the higher the temperature the
higher the nitrous oxide emitted; in CFB technology, the lower the
temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide
but not as high as conventional coal; the CFB is the boiler; from the boiler
itself,different pollution control facilities are going to be added; and for the
overall plant with the pollution control facilities, the particulate matters,
nitrogen oxide and sulfur dioxide are under control. (Citations omitted) 121
We also note that RP Energy controverted in detail the afore-summarized
allegations of the Casiño Group on the four areas of environmental damage
that will allegedly occur upon the construction and operation of the power
plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power
plant is operational, Ms. Mercado stated in her JudicialAffidavit thus:
Q: What was the result of the Thermal Plume Modeling that was conducted
for RP Energy?
A: The thermal dispersion modeling results show that largest warming
change (0.95°C above ambient) is observed in the shallowest (5 m)
discharge scenario. The warmest surface temperature change for the
deepest (30 m) scenario is 0.18°C. All the simulated scenarios comply with
the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m
mixing zone. The proposed power plant location is near the mouth of Subic
Bay, thus the tidal currents influence the behavior of thermal discharge
plume. Since the area is well-flushed, mixing and dilution of the thermal
discharge is expected.
It also concluded that corals are less likely to be affected by the cooling water
discharge as corals may persist in shallow marine waterswith temperatures
ranging from 18°C to 36°C. The predicted highest temperature of 30.75°C,
from the 0.95°C increase in ambient in the shallowest (5 m) discharge
scenario, is within this range.122
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a
temperature change of 1°C to 2°C canalready affect the metabolism and
other biological functions of aquatic organisms such as mortality rate and
reproduction." What is your expert opinion, if any, on this matter alleged by
the Petitioners?
A: Living organisms have proven time and again that they are very adaptable
to changes in the environment. Living organisms have been isolated in
volcanic vents under the ocean living on the acidic nutrient soup of sulfur and
other minerals emitted by the volcano to sub-freezing temperature in
Antarctica. Asa general rule, metabolism and reproductive activity [increase]
with temperature until a maximum is reached after which [they decline]. For
this reason, during winter, animals hibernate and plants become dormant
after shedding their leaves. It is on the onset of spring that animals breed and
plants bloom when the air and water are warmer. At the middle of autumn
when the temperature drops to single digit, whales, fish, birds and other living
organisms, which are capable of migrating, move to the other end of the
globe where spring is just starting. In the processes of migration, those
migratory species have to cross the tropics where the temperature is not just
one or two degrees warmer but 10 to 20 degrees warmer. When discussing
the impact of 1 to 2 degrees temperature change and its impact on the
ecosystem, the most important factors to consider are – (1) Organism Type –
specifically its tolerance to temperature change (mammals have higher
tolerance); (2) Base Temperature – it is the temperature over the optimum
temperature such that an increasewill result in the decline in number of the
organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited
space or an open ocean that the organism can move to a space more suited
to [a] specific need, such as the migratory birds); and (4) Ecosystem
Complexity and Succession. The more complex the ecosystem the more
stable it is as succession and adaptation [are] more robust.
Normally, the natural variation in water temperature between early morning
to late afternoon could be several degrees (four to five degrees centigrade
and up to ten degrees centigrade on seasonal basis). Therefore, the less
than one degree centigrade change predicted by the GHD modeling would
have minimal impact.123
On cross-examination, Dr. Ouano further explained—
ATTY. AZURA:
x x x When you say Organism Type – you mentioned that mammals have a
higher tolerance for temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example?
DR. OUANO:
Well, mammals have high tolerance because mammals are warm[- ]blooded.
Now, when it comes to cold[-]blooded animals the tolerance is much lower.
But again when you are considering x x x fish [e]specially in open ocean you
have to remember that nature by itself is x x x very brutal x x x where there is
always the prey-predator relationship. Now, most of the fish that we have in
open sea [have] already a very strong adaptability mechanism.And in fact,
Kingman back in 1964 x x x studied the coal reefaround the gulf of Oman
where the temperature variation on day to day basis varied not by 1 degree
to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay
area which when you’re looking at it between daytime variation, early dawn
when it is cold, the air is cold, the sea temperature, sea water is quite cold.
Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in
the] Subic Bay area is around 2 to 4 degrees by natural variation from the
sun as well as from the current that goes around it. So when you are talking
about what the report has said of around 1 degree change, the total impact x
x x on the fishes will be minimal. x x x
ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower
tolerance for temperature variation, are still very adaptable. What about other
sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
That’s what I said. The most sensitive part of the marine ecology is physically
the corals because corals are non-migratory, they are fix[ed]. Second[ly] x x x
corals are also highly dependent on sunlight penetration. If they are exposed
out of the sea, they die; if theyare so deep, they die. And that is why I cited
Kingman in his studies of coral adaptability [in] the sea ofOman where there
was a very high temperature variation, [they] survived.
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic
Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural
temperature variation from the solar side, the days side as well as the
seasonal variation. There are two types of variation since temperatures are
very critical. One is the daily, which means from early morning to around 3:00
o’clock, and the other one is seasonal variation because summer, December,
January, February are the cold months and then by April, May we are having
warm temperature where the temperature goes around 32-33 degrees;
Christmas time, it drops to around 18 to 20 degrees so it[']sa variation of
around seasonal variation of 14 degrees although some of the fish might
even migrate and that is why I was trying to put in corals because they are
the ones that are really fix[ed]. They are not in a position to migrate in this
season.
ATTY. AZURA:
To clarify. You said that the most potentially sensitive part of the ecosystem
would be the corals. DR. OUANO:
Or threatened part because they are the ones [that] are not in a position to
migrate.
ATTY AZURA:
In this case, Dr. Ouano, with respectto this project and the projected
temperature change, will the corals in Subic Bay be affected?
DR. OUANO:
As far as the outlet is concerned, they have established it outside the coral
area. By the time it reaches the coral area the temperature variation, as per
the GHD study is very small, it[’]s almost negligible.
ATTY AZURA:
Specifically, Dr. Ouano, what does negligible mean, what level of variation
are we talking about?
DR. OUANO:
If you are talking about a thermometer, you might be talking about, normally
about .1 degrees centigrade. That’sthe one that you could more or less
ascertain. x x x
ATTY. AZURA:
Dr. Ouano, you mentioned in youranswer to the same question, Question 51,
that there is a normal variation in water temperature. In fact, you said there is
a variation throughout the day, daily and also throughout the year, seasonal.
Just to clarify, Dr. Ouano. When the power plant causes the projected
temperature change of 1 degree to 2 degrees Celsius this will be in addition
to existing variations? What I mean, Dr. Ouano, just so I can understand,
how will that work? How will the temperature change caused by the power
plant work with the existing variation? DR. OUANO:
There is something like what we call the zonal mixing. This is an area of
approximately one or two hectares where the pipe goes out, the hot water
goes out. So that x x x, we have to accept x x x that [throughout it] the zone
will be a disturb[ed] zone. After that one or two hectares park the water
 temperature is well mixed [so] that the temperature above the normal existing 272. Q: What other findings resulted from the Air Dispersion Modeling, if
variation now practically drops down to almost the normal level.124 any?

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

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

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

Predicted GLC for 24-hr averaging National Ambient Air Quality ATTY. AZURA:
period Guideline Values
SO2 17.11 µg/Nm3 180 µg/Nm3 I also noticed, Ms. Mercado, at the bottom part of this chart there are
Receptor IDs, R1, R2, R3 and so forth and on page 188 of this same
NO2 45.79 µg/Nm3 150 µg/Nm3 document, Annex "9-Mercado," there is a list identifying these receptors, for
example, Receptor 6, Your Honor, appears to have been located in
Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that
Predicted GLC for 1-yr averaging period National Ambient Air Quality
mean that if upset condition[s] were to occur, the Olongapo City Poblacion
Guideline Values
will be affected by the emissions? MS. MERCADO:
SO2 6.12 µg/Nm3 80 µg/Nm3
All it means is that there will be higher emissions and a higher ground
NO2 No standard --- concentration. But you might want to alsopay attention to the "y axis," it says
CO No standard --- there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it
means that even under upset conditions… say for R6, the ground level
concentration for upset condition is still around .1 or 10% percent only of the
Clean Air Act limit. So it’s still much lower than the limit.
ATTY. AZURA:
But that would mean, would it not, Ms. Mercado, that in the event of upset
conditions[,] emissionswould increase in the Olongapo City Poblacion?
MS. MERCADO:
Not emissions will increase. The emissions will be the same but the ground
level concentration, the GLC, will be higher if you compare normal versus
upset. But even if it[’]s under upset conditions, it is still only around 10%
percent of the Clean Air Act Limit.
xxxx
J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in an
upset condition, it will emit less than what the national standards dictate?
MS. MERCADO:
Yes, Your Honor.128
With respect to the claims that the powerplant will release dangerous PAHs
and CO, Engr. Sarrki stated in his Judicial Affidavit thus:
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that
Volatile Organic Compounds ("VOC") specifically Polycyclic Aromatic
Hydrocarbon ("PAH") will be emitted even by CFB boilers. What can you say
about this?
A: Actually, the study cited by the Petitioners does not apply to the present
case because it does not refer to CFB technology. The study refers to a
laboratory-scale tubular Bubbling Fluidized Bed ("BFB") test rig and not a
CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB
will produce higher PAH emissions.
xxxx
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air injection
point and does not replicate the staged-air combustion process of the CFB
that RP Energy will use. Thisstaged-air process includes the secondary air.
Injecting secondary air into the system will lead to more complete
combustion and inhibits PAH production. There is a study entitled "Polycyclic
Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC
System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the
Journal of Hazardous Materials B84 (2001) where the findings are discussed.
Also, the small-scale test rig utilized in the study does not simulate the
process conditions (hydrodynamics, heat transfer characteristics, solid and
gas mixing behavior, etc.) seen in a large scale utility boiler, like those which
would be utilized by the Power Plant Project.
xxxx
Q: Aside from residence time of particles and secondary air, what other
factors, if any, reduce PAH production?
A: Increase in the excess air ratio will also minimizePAH production.
Furthermore, decrease in Calcium to Sulfur moral ratio ("Ca/S"), as well as
decrease in the sulfur and chlorine contents of coal will likewise minimize
PAH production. This is also based on the study entitled "Polycyclic Aromatic
Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" by
Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.
In RP Energy’s Power Plant Project, the projected coal to be utilized has low
sulfur and chlorine contents minimizing PAH production. Also, due to
optimum conditions for the in-furnace SO2capture, the Ca/S will be relatively
low, decreasing PAH production.
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide
(CO), a poisonous, colorless and odorless gas is also produced when there
is partial oxidation or when there is not enough oxygen (O2) to form carbon
dioxide (CO2)." What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to
safe amounts. In fact, I understand that the projected emissions level of the
Power Plant Project compl[ies]with the International Finance Corporation
("IFC") standards. Furthermore, characteristics of CFB technology such as
long residence time, uniform temperature and high turbulence provide an
effective combustion environment which results [in] lower and safer CO
emissions.
Q: I have no further questions for youat the moment. Is there anything you
wish to add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary
burning, such as cooking or driving automobiles, will have some emissions
that are not considered harmful. It is only when emissions are of a significant
level that damage may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have
minimal PAH emissions. The high combustion efficiency of CFB technology,
due to the long residence time of particles inside the boiler, leads to the
minimal emissions of PAH. Furthermore,other factors such as increase in the
excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and
chlorine contents of coal will likewise minimize PAH production. CFB does
not cause emissions beyond scientifically acceptable levels, and we are
confident it will not result in the damage speculated by the Petitioners. 129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant
will endanger the health of the inhabitants nearby, Dr. Ouano stated in his
Judicial Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal
combustion waste is highly toxic and is said to cause birth defects and
cancer risks among others x x x." What is your expert opinion, if any, on this
matter alleged by the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed
the earth several million years ago. In the process of compression, some of
the minerals in the soil, rocks or mud, the geologic media for compression,
are also imparted into the compressed remains. If the compressing media of
mud, sediments and rocks contain high concentration of mercury, uranium,
and other toxic substances, the coal formed will likewise contain high
concentration of those substances. If the compressing materials have low
concentration of those substances, then the coal formed will likewise have
low concentration of those substances. If the coal does not contain excessive
quantities of toxic substances, the solid residues are even used in agriculture
to supply micronutrients and improve the potency of fertilizers. It is used
freely as a fill material in roads and other construction activities requiring
large volume of fill and as additive in cement manufacture. After all,
diamonds that people love to hang around their necks and keep close to the
chest are nothing more than the result of special geologic action, as those in
volcanic pipes on coal.130
RP Energy further argued, a matter which the Casiño Group did not rebut or
refute, that the waste generated by the plant will be properly handled, to wit:
4.1.49 When coal is burned in the boiler furnace, two by-products are
generated - bottom and fly ash. Bottom ash consists oflarge and
fused particles that fall to the bottom of the furnace and mix with the
bed media.Fly ash includes finegrained and powdery particles that
are carried away by flue gas into the electrostatic precipitator, which
is then sifted and collected. These by-products are non-hazardous
materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and
Boiler Slag have consequent beneficial uses which "generate
significant environmental, economic, and performance benefits."
Thus, fly ash generated during the process will be sold and
transported to cement manufacturing facilities or other local and
international industries.
4.1.50 RP Energy shall also install safety measures to insure that
waste from burning of coal shall be properly handled and stored.
4.1.51 Bottom ash will be continuously collected from the furnace
and transferred through a series of screw and chain conveyors and
bucket elevator to the bottom ash silo. The collection and handling
system is enclosed to prevent dust generation. Discharge chutes will
be installed at the base of the bottom ash silo for unloading. Open
trucks will be used to collect ash through the discharge chutes.
Bottom ash will be sold, and unsold ash will be stored in ash cells. A
portion of the bottom ash will be reused as bed materialthrough the
installation of a bed media regeneration system (or ash recycle).
Recycled bottom ash will be sieved using a vibrating screen and
transported to a bed material surge bin for re-injection into the boiler.
4.1.52 Fly ash from the electrostatic precipitator is pneumatically
removed from the collection hopper using compressed air and
transported in dry state to the fly ash silo. Two discharge chutes will
be installed at the base of the fly ash silo. Fly ash can either be dry-
transferred through a loading spout into an enclosed lorry or truck for
selling, re-cycling, or wet-transferred through a wet unloader into
open dump trucks and transported to ash cells. Fly ash discharge will
operate in timed cycles, with an override function to
achievecontinuous discharge if required. Fly ash isolation valves in
each branch line will prevent leakage and backflow into non-
operating lines.
4.1.53 Approximately 120,000m² will be required for the construction
of the ash cell. Ash will be stacked along the sloping hill, within a grid
 of excavations (i.e. cells) with a 5m embankment. Excavated soils J. LEAGOGO:
will be used for embankment construction and backfill. To prevent
infiltration [of] ash deposits into the groundwater, a clay layer with No, but did you read it in their report?
minimum depth of400mm will be laid at the base of each cell. For
every 1-m depth of ash deposit, a 10-cm soil backfill will be applied
DR. OUANO: It[’]s not there in their report because it will depend on the
to immobilize ash and prevent migration via wind. Ash cell walls will
supplier, the equipment supplier.
be lined with high-density polyethylene to prevent seepage. This
procedure and treatment method is in fact suitable for disposal of
toxic and hazardous wastes although fly ash is not classified as toxic J. LEAGOGO:
and hazardous materials.131
So it[’]s not yet there?
Anent the claims that the plant is susceptible to earthquake and landslides,
Dr. Ouano testified thus: DR. OUANO:

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

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

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

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

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

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

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

Yes . In upholding the evidence and arguments of RP Energy, relative to the lack
of proof as to the alleged significant environmental damage that will be
J. LEAGOGO: caused by the project, the appellate court relied mainly on the testimonies of
experts, which we find to be in accord withjudicial precedents. Thus, we ruled
in one case:
In terms of concentration, what will that be?
Although courts are not ordinarily bound by testimonies of experts, they may
DR. OUANO:
place whatever weight they choose upon such testimonies in accordance
with the facts of the case. The relative weight and sufficiency of expert
In terms of the GHD study that will result [in] 19 milligrams per standard cubic testimony is peculiarly within the province of the trial court to decide,
meters and the time when acid rain will start [is when the concentration gets] considering the ability and character of the witness, his actions upon the
around 8,000 milligrams per standard cubic meters. So we have 19 witness stand, the weight and process of the reasoning by which he has
compared to 8,000. So weare very, very safe. supported his opinion, his possible bias in favor of the side for whom he
testifies,the fact that he is a paid witness, the relative opportunities for study
J. LEAGOGO: and observation of the matters about which he testifies, and any other
matters which serve to illuminate his statements. The opinion of the expert
What about SO2? may not be arbitrarily rejected; it isto be considered by the court in view of all
the facts and circumstances in the case and when common knowledge
DR. OUANO: utterly fails, the expert opinion may be given controlling effects (20 Am. Jur.,
1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose
ruling thereupon is not reviewable inthe absence of an abuse of that
discretion.136
Hence, we sustain the appellate court’s findings that the Casiño Group failed
to establish the alleged grave environmental damage which will be caused by
the construction and operation of the power plant.
In another vein, we, likewise, agree with the observationsof the appellate
court that the type of coal which shall be used in the power plant has
important implications as to the possible significant negative environmental
impacts of the subject project.137 However, there is no coal supply
agreement, as of yet, entered into by RP Energy with a third-party supplier.
In accordance with the terms and conditions of the ECC and in compliance
with existing environmental laws and standards, RP Energy is obligated to
make use of the proper coal type that will not cause significant negative
environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on the social acceptability
process of the power plant project to bolster itsclaim that the project will
cause grave environmental damage. We purposely discuss this matter in this
separate subsection for reasons which will be made clear shortly.
But first we shall present the pertinent contents of this report.
According to the Casiño Group, from December 7 to 9, 2011, the SBMA
conducted social acceptabilitypolicy consultations with different stakeholders
on RP Energy’s proposed 600 MW coal plant project at the Subic Bay
Exhibition and Convention Center. The results thereof are contained in a
document prepared by SBMA entitled "Final Report: Social Acceptability
Process for RP Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We
notethat SBMA adopted the Final Report as a common exhibit with the
Casiño Group in the course of the proceedings before the appellate court.
The Final Report stated that there was a clear aversion to the concept of a
coal-fired power plant from the participants. Their concerns included
environmental, health, economic and socio-cultural factors. Pertinent to this
case is the alleged assessment, contained in the Final Report, of the
potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz),
Chancellor of the University of the Philippines, Los Baños and a forest
ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related
information as to public health; and (3) Andre Jon Uychiaco, a marine
biologist.
The Final Report stated these experts’alleged views on the project, thus:
IV. EXPERTS’ OPINION
xxxx
The specialists shared the judgment that the conditions were not present to
merit the operation of a coal-fired power plant,and to pursue and carry out
the project with confidence and assurance that the natural assets and
ecosystems within the Freeport area would not be unduly compromised, or
that irreversible damage would not occur and that the threats to the flora and
fauna within the immediate community and its surroundings would be
adequately addressed. The three experts were also of the same opinion that
the proposed coal plant project would pose a wide range of negative impacts
on the environment, the ecosystems and human population within the impact
zone.
The specialists likewise deemed the Environment Impact Assessment (EIA)
conducted by RPEI to be incomplete and limited in scope based on the
following observations:
i. The assessment failed to include areas 10km. to 50km. from the
operation site, although according tothe panel, sulfur emissions
could extend as far as 40-50 km.
ii. The EIA neglected to include other forests in the Freeport in its
scope and that there were no specific details on the protection of the
endangered flora and endemic fauna in the area. Soil, grassland,
brush land, beach forests and home gardens were also apparently
not included in the study.
iii. The sampling methods used inthe study were limited and
insufficient for effective long-term monitoring of surface water,
erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coalfired
power plant [on] its environs and the community therein. Primary among
these were the following:
 i. Formation of acid rain, which would adversely affect the trees and
vegetation in the area which, in turn, would diminish forest cover.
The acid rain would apparently worsen the acidity of the soil in the
Freeport.
ii. Warming and acidification of the seawater in the bay, resulting in
the bio-accumulationof contaminants and toxic materials which
would eventually lead to the overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide,
Ozone and other heavy metals suchas mercury and lead to the
surrounding region, which would adversely affect the health of the
populace in the vicinity.
V. FINDINGS
Based on their analyses of the subject matter, the specialists recommended
that the SBMA re-scrutinize the coal-fired power plant project with the
following goals in mind:
i. To ensure its coherence and compatibility to [the] SBMA mandate,
vision, mission and development plans, including its Protected Area
Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and health;
and
iv. To ensure a complete and comprehensive impacts zone study.
The specialists also urged the SBMA to conduct a Comprehensive Cost And
Benefit Analysis Of The Proposed Coal Plant Project Relative To Each
Stakeholder Which Should Include The Environment As Provider Of
Numerous Environmental Goods And Services.
They also recommended an Integrated/Programmatic Environmental Impact
Assessmentto accurately determine the environmental status of the Freeport
ecosystem as basis and reference in evaluating future similar projects. The
need for a more Comprehensive Monitoring System for the Environment and
Natural Resourceswas also reiterated by the panel.138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS
prepared by RP Energy relative to the project:
Key Observations and Recommendations on the EIS of Proposed RPE
Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the
project site and its immediate vicinity. No vegetation analysis was
done in the brushland areas in the peninsula which is likely to be
affected in the event acid rain forms due to emissions from the power
plant.
2. The forest in the remaining forests inthe Freeport was not
considered as impact zone as indicated by the lack ofdescription of
these forests and the potential impacts the project might have on
these forests. This appears to be a key omission in the EIS
considering that these forests are well within 40 to 50 km away from
the site and that there are studies showing that the impacts of
sulphur emissions can extend as far as 40 to 50 km away from the
source.
3. There are 39 endemic fauna and 1 endangered plant species
(Molave) in the proposed project site. There will be a need to make
sure that these species are protected from being damaged
permanently in wholesale. Appropriate measures such as ex
situconservation and translocation if feasible must be implemented.
4. The Project site is largely in grassland interspersed with some
trees. These plants if affected by acid rain or by sulphur emissions
may disappear and have consequences on the soil properties and
hydrological processes in the area. Accelerated soil erosion and
increased surface runoff and reduced infiltration of rainwater into the
soil.
5. The rest of the peninsula is covered with brushland but were never
included as part of the impact zone.
6. There are home gardens along the coastal areas of the site
planted to ornamental and agricultural crops which are likely to be
affected by acid rain.
7. There is also a beach forest dominated by aroma, talisai and
agoho which will likely be affectedalso by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius
from the project site. However, the OlongapoWatershed Forest
Reserve, a protected area is approximately 10 kmsouthwest of the
projectsite. Considering the prevailing wind movement in the area,
this forest reserve is likely to be affected by acid rain if it occurs from
the emission of the power plant. This forest reserve is however not
included as partof the potential impact area.
9. Soil in the project site and the peninsula is thin and highly acidic
and deficient in NPK with moderate to severe erosion potential. The
sparse vegetation cover in the vicinity of the projectsite is likely a
result of the highly acidic soil and the nutrient deficiency. Additional
acidity may result from acid rain that may form in the area which
could further make it harder for the plants to grow in the area that in
turn could exacerbate the already severe erosion in the area. 10.
There is a need to review the proposalto ensure that the proposed
project is consistent with the vision for the Freeport as enunciated in
the SBMA Master Plan and the Protected Area Management Plan.
This will reinforce the validity and legitimacy of these plans as a
legitimate framework for screening potential locators in the Freeport.
Itwill also reinforce the trust and confidence of the stakeholders on
the competence and authority of the SBMA that would translate in
stronger popular support to the programs implemented in the
Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that
the amounts are the minimum amount and that adequate funds will
be provided by the proponent as necessary beyond the minimum
amounts. Furthermore the basis for the amounts allocated for the
items (public liability and rehabilitation) in Trust Fund and in EGF
(tree planting and landscaping, artificial reef establishment) must be
clarified. The specific damages and impacts that will be covered by
the TF and EGF must also be presented clearly at the outset to avoid
protracted negotiations in the event of actual impacts occurring in the
future.
12. The monitoring plan for terrestrial flora and fauna is not clear on
the frequency of measurement. More importantly, the proposed
method of measurement (sampling transect) while adequate for
estimating the diversity of indices for benchmarking is not sufficient
for long[-]term monitoring. Instead, long[-]term monitoringplots (at
least 1 hectare in size) should be established to monitor the long[-
]term impacts of the project on terrestrial flora and fauna.
13. Since the proposed monitoring of terrestrial flora and fauna is
limited to the vicinity of the project site, it will be useful not only for
mitigating and avoiding unnecessary adverse impacts ofthe project
but also for improving management decisions if long[-]term
monitoring plots for the remaining natural forests in the Freeport are
established. These plots will also be useful for the study of the
dynamic interactions of terrestrial flora and fauna with climate
change, farming and other human activities and the resulting
influences on soil, water, biodiversity, and other vital ecosystem
services in the Freeport.139
We agree with the appellate court that the alleged statements by these
experts cannot be given weight because they are hearsay evidence. None of
these alleged experts testified before the appellate court to confirm the
pertinent contents of the Final Report. No reason appears in the records of
this case as to why the Casiño Group failed to present these expert
witnesses.
We note, however, that these statements, on their face, especially the
observations of Dr. Cruz, raise serious objections to the environmental
soundness of the project, specifically, the EIS thereof.It brings to fore the
question of whether the Court can, on its own, compel the testimonies of
these alleged experts in order to shed light on these matters in view of the
rightat stake— not just damage to the environment but the health, well-being
and,ultimately, the livesof those who may be affected by the project.
The Rules of Procedure for Environmental Cases liberally provide the courts
with means and methods to obtain sufficient information in order to
adequately protect orsafeguard the right to a healthful and balanced ecology.
In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a failure to settle, the
judge shall, among others, determine the necessity of engaging the services
of a qualified expert as a friend of the court (amicus curiae). While, in Section
12141 of Rule 7 (Writ of Kalikasan), a party may avail of discovery measures:
(1) ocular inspection and (2) production or inspection of documents or things.
The liberality of the Rules in gathering and even compelling information,
specifically with regard to the Writ of Kalikasan, is explained in this wise:
[T]he writ of kalikasanwas refashioned as a tool to bridge the gap between
allegation and proof by providing a remedy for would-be environmental
litigants to compel the production of information within the custody of the
government. The writ would effectively serve as a remedy for the
enforcement of the right to information about the environment. The scope of
the fact-finding power could be: (1) anything related to the issuance, grant of
a government permit issued or information controlled by the government or
private entity and (2) [i]nformation contained in documents such as
environmental compliance certificate (ECC) and other government records.
In addition, the [w]rit may also be employed to compel the production of
information, subject to constitutional limitations. This function is analogous to
a discovery measure, and may be availed of upon application for the writ.142
Clearly, in environmental cases, the power toappoint friends of the court in
order to shed light on matters requiring special technical expertise as well as
the power to order ocular inspections and production of documents or things
evince the main thrust of, and the spirit behind, the Rules to allow the court
sufficient leeway in acquiring the necessary information to rule on the issues
presented for its resolution, to the end that the right toa healthful and
balanced ecology may be adequately protected. To draw a parallel, in the
protection of the constitutional rights of an accused, when life or liberty isat
stake, the testimonies of witnesses may be compelled as an attribute of the
Due Process Clause. Here, where the right to a healthful and balanced
ecology of a substantial magnitude is at stake, should we not tread the path
of caution and prudence by compelling the testimonies of these alleged
experts?
After due consideration, we find that, based on the statements in the Final
Report, there is no sufficiently compelling reason to compel the testimonies
of these alleged expert witnesses for the following reasons.
First, the statementsare not sufficiently specificto point to us a flaw (or flaws)
in the study or design/implementation (or some other aspect) of the project
which provides a causal link or, at least, a reasonable connection between
the construction and operation ofthe project vis-à-vis potential grave
environmental damage. In particular, they do not explain why the
Environmental Management Plan (EMP) contained in the EIS of the project
will notadequately address these concerns.
Second, some of the concerns raisedin the alleged statements, like acid rain,
warming and acidification of the seawater, and discharge of pollutants were,
as previously discussed, addressed by the evidence presented by RP
Energy before the appellate court. Again, these alleged statements do not
explain why such concerns are not adequately covered by the EMP of RP
Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain
aspects of the EIS, do not clearly and specifically establish how these
omissions have led to the issuance of an ECC that will pose significant
negative environmental impacts once the project is constructed and becomes
operational. The recommendations stated therein would seem to suggest
points for improvement in the operation and monitoring of the project,but they
do not clearly show why such recommendations are indispensable for the
project to comply with existing environmental laws and standards, or how
non-compliance with such recommendations will lead to an environmental
damage of the magnitude contemplatedunder the writ of kalikasan. Again,
these statements do not state with sufficient particularity how the EMP in the
EIS failed to adequately address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert
witnesses does not appear on record, we cannot assume that their
testimonies are being unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the
taking of the testimonies of these alleged expert witnesses in relation to their
serious objections to the power plant project, we do not foreclose the
possibility that their testimonies could later on be presented, in a proper
case, to more directly, specifically and sufficientlyassail the environmental
soundness of the project and establish the requisite magnitude of actualor
threatened environmental damage, if indeed present. After all, their sense
ofcivic duty may well prevail upon them to voluntarily testify, if there are truly
sufficient reasons tostop the project, above and beyond their inadequate
claims in the Final Report that the project should not be pursued. As things
now stand,however, we have insufficient bases to compel their testimonies
for the reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the
appellate court and Petition for Review before thisCourt, the Casiño Group
belatedly claims that the statements in the EIS prepared by RPEnergy
established the significant negative environmental impacts of the project.
They argue in this manner:
Acid Rain
35. According to RP Energy’s Environmental Impact Statement for its
proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project, acid rain
may occur in the combustion of coal, to wit – x x x x
During the operation phase, combustion of coal will result in emissions of
particulates SOx and NOx. This may contribute to the occurrence of acid rain
due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions
may give rise to health problems for residents within the impact area.
xxxx
Asthma Attacks
36. The same EPRMP143 mentioned the incidence of asthma attacks [as a]
result of power plant operations, to wit –
 xxxx
The incidence of asthma attacks among residents in the vicinity of the project
site may increase due to exposure to suspended particulates from plant
operations.144
RP Energy, however, counters that the above portions of the EIS were
quoted out of context. As to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of
particulates, SOx and NOx. This may contribute to the occurrence of acid
rain due to elevated SO2 levels in the atmosphere. High levels of NO2
emissions may give rise to health problems for residents within the impact
area. Emissions may also have an effect onvegetation (Section 4.1.4.2).
However, the use of CFBC technology is a built-in measure that results in
reduced emission concentrations. SOx emissions will beminimised by the
inclusion of a desulfurisation process, whilst NOx emissions will be reduced
as the coal is burned at a temperature lower than that required to oxidise
nitrogen.145(Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the project
site may increase due to exposureto suspended particulates from plant
operations. Coal and ash particulates may also become suspended and
dispersed into the air during unloading and transport, depending on wind
speed and direction. However, effect on air quality due to windblown coal
particulates will be insignificant as the coal handling system will have
enclosures (i.e. enclosed conveyors and coal dome) to eliminate the
exposure of coal to open air, and therefore greatly reduce the potential for
particulates from being carried away by wind (coalhandling systems, Section
3.4.3.3). In addition, the proposed process will include an
electrostaticprecipitator that will remove fly ash from the flue gas prior to its
release through the stacks, and so particulates emissions will be
minimal.146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid
rain and asthma attacks, it goes on to state that there are mitigating
measures that will be put in place to prevent these ill effects. Quite clearly,
the Casiño Group quoted piecemeal the EIS in sucha way as to mislead this
Court as to its true and full contents.
We deplore the way the Casiño Group has argued this point and we take this
time to remind it that litigants should not trifle withcourt processes. Along the
same lines, we note how the Casiño Group has made serious allegations in
its Petition for Writ of Kalikasanbut failed to substantiate the same in the
course of the proceedings before the appellate court. In particular, during the
preliminary conference of this case, the Casiño Group expressly abandoned
its factual claims on the alleged grave environmental damage that will be
caused by the power plant (i.e., air, water and land pollution) and, instead,
limited itself to legal issues regarding the alleged non-compliance of RP
Energy with certain laws and rules in the procurement of the ECC.147 We
also note how the Casiño Group failed to comment on the subject Petitions
before this Court, which led this Court to eventually dispense with its
comment.148 We must express our disapproval over the way it has
prosecuted itsclaims, bordering as it does on trifling with court processes. We
deem itproper, therefore, to admonishit to be more circumspect in how it
prosecutesits claims.
In sum, we agree with the appellate court that the Casiño Group failed to
substantiate its claims thatthe construction and operation of the power plant
will cause environmental damage of the magnitude contemplated under the
writ of kalikasan. The evidence it presented is inadequate to establish the
factual bases of its claims.
II.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz
(Mr. Aboitiz), as representative of RP Energy, in the Statement of
Accountability of the ECC.
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to
sign the Statement of Accountability portion of the ECC.
We shall discuss the correctness ofthis ruling on both procedural and
substantive grounds. Procedurally, we cannot fault the DENR for protesting
the manner by which the appellate court resolved the issue of the aforesaid
lack of signature. We agree with the DENR that this issue was not among
those raised by the Casiño Group in its Petition for Writ of Kalikasan. 149 What
is more, this was not one of the triable issues specificallyset during the
preliminary conference of this case.150
How then did the issue oflack of signature arise?
A review of the voluminous records indicates that the matterof the lack of
signature was discussed, developed or surfaced only inthe course of the
hearings, specifically, on clarificatory questions from the appellate court, to Your Honor.
wit:
J. LEAGOGO:
J. LEAGOGO:
Now, who is the authorized representative of RP Energy?
I would also show to you your ECC, that’s page 622 of the rollo. I am
showing to you this Environmental Compliance Certificate dated December MS. MERCADO:
22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your
"Exhibit "18." Would you like to go over this? Are you familiar with this
It would be Mr. Aaron Domingo, I believe.
document?
J. LEAGOGO:
MS. MERCADO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the
Yes, it[’]s my Annex "3," Your Honor.
Statement of Accountability?

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

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

J. LEAGOGO: J. LEAGOGO:

Okay. On the same page, page 3, there’s a Statement of Accountability. But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you
agree with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
MS. MERCADO:
Yes, Your Honor.
That’s correct, Your Honor.151
J. LEAGOGO:
We find this line of questioning inadequate to apprise the parties that the lack
Luis, who is Luis Miguel Aboitiz? of signature would be a key issue in this case; as in fact it became decisive in
the eventual invalidation of the ECC by the appellate court.
MS. MERCADO:
Concededly, a court has the power to suspend its rules of procedure in order
During that time he was the authorized representative of RP Energy, to attain substantial justice so that it has the discretion, in exceptional cases,
to take into consideration matters not originally within the scope of the issues
raised in the pleadings or set during the preliminary conference, in order to1.0 SCREENING
prevent a miscarriage of justice. In the case at bar, the importance of the
signature cannot be seriously doubted because it goes into the consent and
commitment of the project proponent to comply with the conditions of the
ECC, which is vital to the protection of the right to a balanced and healthful
ecology of those who may be affected by the project. Nonetheless, the power
of a court tosuspend its rules of procedure in exceptional cases does not 2.0 SCOPING
license it to foist a surprise on the parties in a given case. To illustrate, in oral
arguments before this Court, involving sufficiently important public interest
cases, we note that individual members of the Court, from time to time, point
out matters that may not have been specifically covered by the advisory (the
advisory delineates the issues to be argued and decided). However, a
directive is given to the concerned parties to discuss the aforesaid matters in
their memoranda. Such a procedure ensures that, at the very least, the
parties are apprised that the Court has taken an interest in such matters and
may adjudicate the case on the basis thereof. Thus, the parties are given an
opportunity to adequately argue the issue or meet the issue head-on. We,
therefore, find that the appellate court should have, at the very least, directed EIA STUDY and
RP Energy and the DENR to discuss and elaborate on the issue of lack of 3.0 REPORT
signature in the presentation of their evidence and memoranda, PREPARATION
beforemaking a definitive ruling that the lack thereof invalidated the ECC.This
is in keeping with the basic tenets of due process.
At any rate, we shall disregard the procedural defect and rule directly on EIA REPORT
whether the lack of signature invalidated the ECC in the interest of 4.0 REPORT
substantial justice. and
EVALUATION
The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD
1586, do not specifically state that the lack of signature in the Statement of
Accountability has the effect of invalidating the ECC. Unlike in wills or
donations, where failure to comply withthe specific form prescribed by law
leads to its nullity,152 the applicable laws here are silentwith respect to the
necessity of a signature in the Statement of Accountability and the effect of
the lack thereof. This is, of course, understandable because the Statement of
Accountability is a mere off-shoot of the rule-making powers of the DENR
5.0 DECISION
relative tothe implementation of PD 1151 and PD 1586. To determine,
MAKING
therefore, the effect of the lack of signature, we must look atthe significance
thereof under the Environmental Impact Assessment (EIA) Rules of the
DENR and the surrounding circumstances of this case.
To place this issue in its proper context, a helpful overview of the stages of
the EIA process, taken from the Revised Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process 153
Screeningdetermines if a project is covered or not covered by the PEISS. 154If a
project is covered, screening further determines what document type the proje
should prepare to secure the needed approval, and what the rest of the
requirements are in terms of EMB office of application, endorsing and decision
authorities, duration of processing.
Scopingis a Proponent-driven multi-sectoral formal process of determining the
focused Terms of Reference of the EIA Study. Scoping identifies the most
significant issues/impacts of a proposed project, and then, delimits the extent o
baseline information to those necessary to evaluate and mitigate the impacts.
The need for and scope of an Environmental Risk Assessment (ERA) is also
done during the scoping session. Scoping is done with the local community
through Public Scoping and with a third party EIA Review Committee (EIARC)
through Technical Scoping, both with the participation of the DENR-EMB. The
process results in a signed Formal Scoping Checklist by the review team, with
final approval by the EMB Chief.
The EIA Studyinvolves a description of the proposed project and its alternative
characterization of the project environment, impact identification and prediction
evaluation of impact significance, impact mitigation, formulation of Environmen
Management and Monitoring Plan, withcorresponding cost estimates and
institutional support commitment. The study results are presented in an EIA
Reportfor which an outline is prescribed by EMB for every major document typ
Review of EIA Reportsnormally entails an EMB procedural screening for
compliance with minimum requirements specified during Scoping, followed by
substantive review of either composed third party experts commissioned by EM
as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB
internal specialists, the Technical Committee, for IEE-based applications. EMB
evaluates the EIARC recommendations and the public’s inputs during public
consultations/hearings in the process of recommending a decision on the
application. The EIARC Chair signs EIARC recommendations including issues
outside the mandate of the EMB. The entire EIA review and evaluation process
is summarized in the Review Process Report (RPR) of the EMB, which include
a draft decision document.
Decision Making involves evaluation of EIA recommendations and the draft
decision document, resulting to the issuance of an ECC, CNC or Denial Letter.
When approved, a covered project is issued its certificate of Environmental
Compliance Commitment (ECC) while an application of a non-covered project
issued a Certificate of Non-Coverage (CNC). Endorsing and deciding authoritie
are designated by AO 155 42, and further detailed in this Manual for every rep
type. Moreover, the Proponent signs a sworn statement of full responsibility on
implementation of its commitments prior to the release of the ECC. 156 The EC
is then transmitted to concerned LGUs and other GAs for integration into their
decisionmaking process. The regulated part of EIA Review is limited to the
processes within EMB control. The timelines for the issuance of decision
 documents provided for in AO 42 and DAO 2003-30 are applicable only from the
time the EIA Report is accepted for substantive review to the time a decision isproject proponent’s representative in the Statement of Accountability is
issued on the application.
ONITORING. Monitoring, Validation and Evaluation/Audit stage assesses performance of the
6.0 Proponent against the ECC and itscommitments in the Environmental
ALIDATION, Management and Monitoring Plans to ensure actual impacts of the project are representative of RP Energy, in the Statement of Accountability sufficient
and adequately prevented or mitigated.
VALUATION/
AUDIT
The signing of the Statement of Accountability takes placeat the Decision
Making Stage. After a favorable review of its ECC application, the project
proponent, through its authorized representative, is made to sign a sworn
statement of full responsibility on the implementation ofits commitments prior
to the official release of the ECC.
The definition of the ECC in the Revised Manual highlights the importance of
the signing of the Statement of Accountability:
Environmental Compliance Certificate (ECC) - a certificate of Environmental
Compliance Commitment to which the Proponent conforms with, after DENR-
EMB explains the ECC conditions, by signing the sworn undertaking of full
responsibility over implementation of specified measures which are
necessary to comply with existing environmental regulations or to operate
within best environmental practices that are not currently covered by existing
laws. It is a document issued by the DENR/EMB after a positive review of an
ECC application, certifying that the Proponent has complied with all the
requirements of the EIS System and has committed to implement its
approved Environmental Management Plan. The ECC also provides
guidance to other agencies and to LGUs on EIA findings and
recommendations, which need to be considered in their respective decision-
making process.157 (Emphasis supplied)
As can be seen, the signing of the Statement of Accountabilityis an integral
and significant component of the EIA process and the ECC itself. The evident
intention is to bind the project proponentto the ECC conditions, which will
ensure that the project will not cause significant negative environmental
impacts by the "implementation of specified measures which are necessary
to comply with existing environmental regulations or tooperate within best
environmental practices that are not currently covered by existing laws."
Indeed, the EIA process would be a meaningless exercise if the project
proponent shall not be strictly bound to faithfully comply withthe conditions
necessary toadequately protect the right of the people to a healthful and
balanced ecology.
Contrary to RP Energy’s position, we, thus, find that the signature of the
necessary for the validity of the ECC. It is not, as RP Energy would have it, a
mere formality and its absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as
ground to invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the
negative.
While it is clear that the signing of the Statement of Accountability is
necessary for the validity ofthe ECC, we cannot close oureyes to the
particular circumstances of this case. So often have we ruled that this Court
is not merely a court of law but a court of justice. We find that there are
several circumstances present in this case which militate against the
invalidation of the ECC on this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into
consideration by the appellate court. To reiterate, the matter surfaced during
the hearing of this case on clarificatory questions by the appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the
Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz,
Director, representing Redondo Peninsula Energy with office address located
at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in
complying with all conditions in this Environmental Compliance Certificate
[ECC][.]" Will you tell this Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was
the one who provided this, I believe, to the lawyers. This copy was not signed
because during…
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you
agree with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the apparent lack of opportunity
for the witness to explain the lack of signature, we find that the witness’
testimony does not, by itself, indicate that there was a deliberate or malicious
intent not to sign the Statement of Accountability.
Second, as previously discussed, the concerned parties to this case,
specifically, the DENR and RP Energy, werenot properly apprised that the
issue relative to the lack of signature would be decisive inthe determination
of the validity of the ECC. Consequently, the DENR and RPEnergy cannot be
faulted for not presenting proof during the course ofthe hearings to squarely
tackle the issue of lack of signature.
Third, after the appellate court ruled in its January 30, 2013 Decision that the
lack of signature invalidated the ECC,RP Energy attached, to its Motion for
Partial Reconsideration, a certified true copy of the ECC, issued by the
DENREMB, which bore the signature of Mr. Aboitiz. The certified true copy of
the ECC showed that the Statement of Accountability was signed by Mr.
Aboitiz on December 24, 2008.159
The authenticity and veracity of this certified true copy of the ECC was not
controverted by the Casiño Group in itscomment on RP Energy’s motion for
partial reconsideration before the appellate court nor in their petition before
this Court. Thus, in accordance with the presumption of regularity in the
performance of official duties, it remains uncontroverted that the ECC on file
with the DENR contains the requisite signature of Mr. Aboitiz in the
Statement of Accountability portion.
As previously noted, the DENR and RPEnergy were not properly apprised
that the issue relative to the lack ofsignature would be decisive in the
determination of the validity of the ECC. As a result, we cannot fault RP
Energy for submitting the certified true copy of the ECC only after it learned
that the appellate court had invalidated the ECC on the ground of lack
ofsignature in its January 30, 2013 Decision.
We note, however, that, as previously discussed, the certified true copy of
the Statement of Accountability was signed by Mr. Aboitiz on December 24,
2008 or two days after the ECC’s official release on December 22, 2008. The
aforediscussed rules under the Revised Manual, however, state that the
proponent shall sign the sworn statement of full responsibility on
implementation of its commitments priorto the release of the ECC. Itwould
seem that the ECC was first issued, then it was signed by Mr. Aboitiz, and
thereafter, returned to the DENR to serve as its file copy. Admittedly, there is
lack of strict compliance with the rules although the signature ispresent. Be
thatas it may, we find nothing in the records to indicate that this was done
with bad faith or inexcusable negligence because of the inadequacy of the
evidence and arguments presented, relative to the issue of lack of signature,
in view of the manner this issue arose in this case, as previously discussed.
Absent such proof, we are not prepared to rule that the procedure adopted
by the DENR was done with bad faithor inexcusable negligence but we
remind the DENR to be more circumspect in following the rules it provided in
the Revised Manual. Thus, we rule that the signature requirement was
substantially complied with pro hac vice.
Fourth, we partly agree with the DENRthat the subsequent letter-requests for
amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy,
indicate its implied conformity to the ECC conditions. In practical terms, if
future litigation should occur due to violations of the ECC conditions, RP
Energy would be estopped from denying its consent and commitment to
the ECC conditions even if there was no signature in the Statement of
Accountability. However, we note that the Statement of Accountability
precisely serves to obviate any doubt as to the consent and commitment
of the project proponent to the ECC conditions. At any rate, the aforesaid
letter-requests do additionally indicate RP Energy’s conformity to the
ECC conditions and, thus, negate a pattern to maliciously evade
accountability for the ECC conditions or to intentionally create a
"loophole" in the ECC to be exploited in a possible futurelitigation over
non-compliance with the ECC conditions.
In sum, we rule that the appellate court erred when it invalidated the ECC on
the ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of
Accountability relative to the copy of the ECC submitted by RP Energy to the
appellate court. While the signature is necessary for the validity of the ECC,
the particular circumstances of this case show that the DENR and RP Energy
were not properly apprised of the issue of lack ofsignature in order for them
to present controverting evidence and arguments on this point, as the matter
only developed during the course of the proceedings upon clarificatory
questions from the appellate court. Consequently, RP Energy cannot be
faulted for submitting the certified true copy of the ECC only after it learned
that the ECC had been invalidated on the ground of lack of signature in the
January 30, 2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the
Statement of Accountability portion, was issued by the DENR-EMB and
remains uncontroverted. Itshowed that the Statement of Accountability was
signed by Mr. Aboitiz on December 24, 2008. Although the signing was done
two days after the official release of the ECC on December 22, 2008, absent
sufficient proof, we are not prepared to rule that the procedure adoptedby the
DENR was done with bad faith or inexcusable negligence. Thus, werule that
the signature requirement was substantially complied with pro hac vice.
III.
Whether the first and second amendments to the ECC are invalid for failure
to undergo a new environmental impact assessment (EIA) because of the
utilization of inappropriate EIA documents.
Upholding the arguments of the Casiño Group, the appellate court ruled that
the first and second amendments tothe ECC were invalid because the ECC
contained an express restriction that any expansion of the project beyond the
project description shall be the subject of a new EIA. It found that both
amendments failed to comply with the appropriate EIA documentary
requirements under DAO 2003-30 and the Revised Manual. In particular, it
found that the Environmental Performance Report and Management Plan
(EPRMP) and Project Description Report (PDR), which RP Energy submitted
tothe DENR, relative to the application for the first and second amendments,
respectively, were not the proper EIA document type. Hence, the appellate
court ruled that the aforesaid amendments were invalid.
Preliminarily, we must state that executive actions carry presumptive validity
so that the burden of proof is on the Casiño Group to show that the
procedure adopted bythe DENR in granting the amendments to the ECC
were done with grave abuse of discretion. More so here because the
administration of the EIA process involves special technical skill or
knowledge which the law has specifically vested in the DENR.
After our own examination of DAO 2003-30 and the Revised Manual as well
as the voluminous EIA documents of RP Energy appearing in the records of
this case, we find that the appellate court made an erroneous interpretation
and application of the pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably,
this law recognized the right ofthe people to a healthful
environment.160 Pursuant thereto, in every action, project or undertaking,
which significantly affects the quality of the environment, all agencies and
instrumentalities of the national government, including government-owned or
-controlled corporations, as well as private corporations, firms, and entities
were required to prepare, file and include a statement (i.e., Environmental
Impact Statement or EIS) containing:
(a) the environmental impact of the proposed action, project or
undertaking;
(b) any adverse environmental effect which cannot be avoided
should the proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement
of the longterm productivity of the same; and
(e) whenever a proposal involves the use of depletable or non-
renewable resources, a finding must be made that such use and
commitment are warranted.161
To further strengthen and develop the EIS, PD1586 was promulgated, which
established the Philippine Environmental Impact Statement System (PEISS).
The PEISS is "a systems-oriented and integrated approach to the EIS
system to ensure a rational balance between socio-economic development
and environmental protection for the benefit of present and future
generations."162 The ECC requirement ismandated under Section 4 thereof:
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and
Projects. The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by
proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or
area without first securing an Environmental Compliance Certificate issued
by the President or his dulyauthorized representative. x x x (Emphasis
supplied)
The PEISS consists of the Environmental Impact Assessment (EIA) process,
which is mandatory for private orpublic projects thatmay significantly affect
the quality of the environment. It involves evaluating and predicting the likely
impacts of the project on the environment, designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to
protect the environment and the community’s welfare.163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system
or procedure to determine when a project is required to secure an ECC and
when it is not. When an ECC is not required, the project proponent procures
a Certificate of Non-Coverage (CNC).164 As part of the EIA process, the
project proponent is required to submit certain studies or reports (i.e., EIA
document type) to the DENR-EMB, which willbe used in the review process
in assessing the environmental impact of the project and the adequacy of the
corresponding environmental management plan or program to address such
environmental impact. This will then be part of the bases to grant or deny the
application for an ECC or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document
type for each project category. It classifies a project as belonging to group I,
II, III, IV or V, where:
I- Environmentally Critical Projects (ECPs) in either Environmentally
Critical Area (ECA) or Non-Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects (NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case,
as belonging to category A,B or C, where:
A- new;
B- existing projects for modification or re-start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-
located.165 After which, it states the appropriateEIA document typeneeded for
the application for an ECC or CNC, as the case may be.
The appropriate EIA document type vis-à-vis a particular project depends on
the potential significant environmental impact of the project. At the highest
level would be an ECP, such as the subject project. The hierarchy of EIA
document type, based on comprehensiveness and detail of the study or
report contained therein, insofar as single projects are concerned, is as
follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE) Report,
3. Initial Environmental Examination168 (IEE) Checklist Report,
4. Environmental Performance Report and Management
Plan169 (EPRMP), and
5. Project Description170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energy’s application for anECC, it was required by
the DENR-EMB to submit an EIS because the subject project is: an ECP,
new and a single project.
The present controversy, however, revolves around, not an application for an
ECC, but amendments thereto.
RP Energy requested the subject first amendment to its ECC due to its
desire to modify the project design through the inclusion of a barge wharf,
seawater intake breakwater, subsea discharge pipeline, raw water collection
system, drainage channel improvement and a 230-kV double transmission
line. The DENR-EMB determined that this was a major amendment and,
thus, required RP Energy to submit an EPRMP.
The Casiño Group argued, and the appellate court sustained, that an
EPRMP is not the correct EIA document type based on the definition of an
EPRMP in DAO 2003-30 and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP) —
documentation of the actual cumulative environmental impacts and
effectiveness of current measures for single projects that are already
operating but without ECC's, i.e., Category A-3. For Category B-3 projects, a
checklist form of the EPRMP would suffice;171(Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is
required for "A-2: Existing and to beexpanded (including undertakings that
have stopped operations for more than 5 years and plan to re-start with or
without expansion) and A-3: Operating without ECC."
On the other hand, the Revised Manual delineates when an EPRMP is the
proper EIA document type, thus:
For operating projects with previous ECCs but planning or applying for
clearance to modify/expand or re-start operations, or for projects operating
without an ECCbut applying to secure one to comply with PD 1586
regulations, the appropriate document is not an EIS but an EIA Report
incorporating the project’s environmental performance and its current
Environmental Management Plan. This report isx x x anx x x Environmental
Performance Report and Management Plan (EPRMP) for single project
applications x x x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) -
documentation of the actual cumulative environmental impacts and
effectiveness of current measures for single projects that are already
operating but without ECCs.173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required
for "Item I-B: Existing Projects for Modification or Re-start up (subject to
conditions in Annex 2-1c) and I-C: Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA
document type for an ECP-single project which is:
1. Existing and to be expanded (including undertakings that have
stopped operations for more than 5 years and plan to re-start with or
without expansion);
2. Operating but without ECCs;
3. Operating projects with previous ECCs but planning or applying
for clearance to modify/expand orre-start operations; and
4. Existing projects for modification or re-start up.
It may be observed that, based from the above, DAO2003-30 and the
Revised Manual appear to use the terms "operating"and "existing"
interchangeably. In the case at bar, the subject project has not yet been
constructed although there have been horizontal clearing operations at the
project site.
On its face, therefore, the theory of the Casiño Group, as sustained by the
appellate court — that the EPRMP is not the appropriate EIA document
type— seems plausible because the subject project is not: (1)
operating/existing with a previous ECC but planning or applying for
modification or expansion, or (2) operating but without an ECC. Instead, the
subject project is an unimplemented or a non-implemented, hence,non-
operating project with a previous ECC but planning for modification or
expansion.
The error in the above theory lies in the failure to consider or trace the
applicable provisions of DAO 2003-30 and the Revised Manual on
amendments to an ECC.
The proper starting point in determining the validity of the subject first
amendment, specifically, the propriety of the EIA document type (i.e.,
EPRMP) which RP Energy submitted in relation to its application for the
aforesaid amendment, must of necessity be the rules on amendments to an
ECC.174 This is principally found in Section 8.3,Article II of DAO 2003-03, viz:
8.3 Amending an ECC
Requirements for processing ECC amendments shall depend on the nature
of the request but shall be focused on the information necessary to assess
the environmental impact of such changes.
8.3.1. Requests for minor changes to ECCs such as
extension of deadlines for submission of post-ECC
requirements shall be decided upon by the endorsing
authority.
8.3.2. Requests for major changes to ECCs shall be decided
upon by the deciding authority.
8.3.3. For ECCs issued pursuant to an IEE or IEE checklist,
the processing of the amendment application shall not
exceed thirty (30) working days; and for ECCs issued
pursuant to an EIS, the processing shall not exceed sixty
(60) working days. Provisions on automatic approval related
to prescribed timeframes under AO 42 shall also apply for
the processing of applications to amend ECCs. (Emphasis
supplied)
Implementing the afore-quoted section, the Revised Manual pertinently
states in Section 2.2, paragraph 16:
16) Application Process for ECC Amendments
 Figure 2-4 presents how Proponents may request for minor or major changes 2 requirements may range from a Letter-Request to
in their ECCs. Annex 2-1c provides a decision chart for the determination of EPRMP to the EMB CO/RO while for those with
requirements for project modifications, particularly for delineating which Programmatic ECC, a PEPRMP may need to be
application scenarios will require EPRMP (which will be subject to Figure 2-1 submitted to the EMB CO to support the request. I
process) or other support documentations (which will be subject to Figure 2-4 is important to note that for operating projects, the
process). Figure 2-4, in turn, provides: appropriate document is not an EIS but an EIA
Report incorporating the project’s historical
Figure 2-4. Flowchart on Request for ECC Amendments175 environmental performance and its current EMP,
subject to specific documentary requirements
cenario 1: Request for Minor Amendments Scenario 2: Request for Major Amendments detailed in Annex 2-1cfor every modification
scenario.
Typographical error 1. Expansion of project area w/in catchment
described in EIA
3
Extension of deadlines for submission of
st-ECC requirement/s 2. Increase in production capacity or auxiliary
component of the original project
The ECC-endorsing EMB office assigns a For EPRMP/PEPRMP-based requests, EMB form
Extension of ECC validity
Case Handler to evaluate the request Technical/Review Committee to evaluate the
3. Change/s in process flow or technology
request. For other requests, a Case Handler may
Change in company name/ownership solely undertake the evaluation. EMB CO and RO
4. Addition of new product will process P/EPRMP for PECC/ECC under Grou
Decrease in land/project area or I and II respectively. (Go to Figure 2-1)
oduction capacity 5. Integration of ECCs for similar or dissimilar but
contiguous projects (NOTE: ITEM#5 IS3 4
Other amendments deemed PROPONENT’S OPTION, NOT EMB’S)

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

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

Conversion to new Considered new application but New ECC /EIS 1. Expansion of project area w/in catchment described in EIA
project type (e.g. bunker- with lesser data requirements
fired plant to gas-fired) since most facilities are
2. Increase in production capacity or auxiliary component of the
established; environmental
original project180
performance in the past will
serve as baseline; However, for
operating projects, there may 3. Change/s in process flow or technology
be need to request for Relief
from ECC Commitment prior to 4. Addition of new product
applying for new project type to
ensure no balance of 5. Integration of ECCs for similar or dissimilar but contiguous
environmental accountabilities projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
from the current project
Integration of ECCs for No physical change in project ECC Amendment /Letter 6. Revision/Reformatting of ECC Conditions
similar or contiguous size/area; no change in Request with consolidated
projects process/technology but Project Description Report and 7. Other amendments deemed "major at the discretion of the EMB
improved management of integrated EMP CO/RO Director
(Note: Integration of continuous projects by having
ECCs is at the option of an integrated planning The Casiño Group does not controvert this finding by the DENR-EMB and we
the Proponent to document in the form or an find the same reasonably supported by the evidence on record considering
request/apply) integrated ECC (ECC that, among others, the construction of a 230-kVdouble transmission line
conditions will be harmonized would result in major activities outside the project site which could have
across projects; conditions significant environmental impacts.
relating to requirements within
other agencies’ mandates will Consequently, the amendment was considered asfalling under Item#4 of
be deleted) Annex 2-1c, and, thus, the appropriate EIA document typeis an EPRMP, viz:
Revision/ Reformatting of No physical change on the ECC Amendment /Letter
ECC Conditions project but ECC conditions Request4.onlyIncrease in capacity or Exceedance of PDR (non- ECC Amendment
relating to requirements within auxiliary component of the covered) thresholds is assumed /Environmental Performance
other agencies’ mandates will original project which will that impacts may be potentially Report and Management Plan
be deleted either exceed PDR (non- significant, particularly if (EPRMP)182
covered project) thresholds, modification will result to a next
We now apply these provisions to the case at bar. or EMP & ERA cannot higher level of threshold range
address impacts and risks
arising from modification Modification scenario and
To reiterate, the first amendment to the ECC was requested by RP Energy
due to its planned change of project design involving the inclusion of a barge decision process are applicable
wharf, seawater intake breakwater, subseadischarge pipeline, raw water to both nonimplemented and
collection system, drainage channel improvement and a 230-kV double operating projects with or
179
transmission line. The DENR-EMB determined that the proposed without issued ECCs181
modifications involved a major amendment because it will result in
anincrease in capacity or auxiliary component, as per Scenario 2,Item #2 of Note that the Chart expressly states that, "[m]odification scenario and
Figure 2-4: decision process are applicable to both non-implementedand operating
projects withor without ECCs."183 To recall, the subject project has not been
constructed and is not yet operational, although horizontal clearing activities
have already been undertaken at the project site. Thus, the subject project
may be reasonably classified as a non-implemented project with an issued
ECC, which falls under Item#4 and, hence, an EPRMP is the appropriate EIA
document type.
This lengthy explanation brings us toa simple conclusion. The definitions in
DAO 2003-30 and the Revised Manual, stating that the EPRMP is applicable
to (1) operating/existing projectswith a previous ECC but planning or applying
for modification or expansion, or (2) operating projects but without an ECC,
were not an exclusive list.
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c,
plainly show that the EPRMP can, likewise, be used as an appropriate EIA
document type for a single, non-implemented project applying for a major
amendment to its ECC, involving an increase in capacity or auxiliary
component, which will exceed PDR (non-covered project) thresholds, or
result in the inability of the EMP and ERA to address the impacts and risks
arising from the modification, such as the subject project.
That the proposed modifications in the subject project fall under this class or
type of amendment was a determination made by the DENR-EMBand,
absent a showing of grave abuse of discretion, the DENR-EMB’s findings are
entitled to great respect because it is the administrative agency with the
special competence or expertise to administer or implement the EIS System.
The apparent confusion of the Casiño Group and the appellate court is
understandable. They had approached the issue with a legal training mindset
or background. As a general proposition, the definition of terms in a statute or
rule is controlling as to its nature and scope within the context of legal or
judicial proceedings. Thus, since the procedure adopted by the DENR-EMB
seemed to contradict or go beyond the definition of terms in the relevant
issuances, the Casiño Group and the appellate court concluded that the
procedure was infirm.
However, a holistic reading of DAO2003-30 and the Revised Manual will
show that such a legalistic approach inits interpretation and application is
unwarranted. This is primarily because the EIA process is a system, not a set
of rigid rules and definitions. In the EIA process, there is much room for
flexibility in the determination and use ofthe appropriate EIA document type
as the foregoing discussion has shown.184 To our mind, whatshould be
controlling is the guiding principle set in DAO 2003-30 in the evaluation of
applications for amendments to ECCs, as stated in Section 8.3 thereof:
"[r]equirements for processing ECC amendments shall depend on the nature
of the requestbut shall be focused on theinformation necessary to assess the
environmental impact of such changes."185
This brings us to the next logicalquestion, did the EPRMP provide the
necessary information in order for the DENR-EMB to assess the
environmental impact of RP Energy’s request relative to the first
amendment?
We answer in the affirmative.
In the first place, the Casiño Group never attempted to prove that the subject
EPRMP, submitted by RP Energy to the DENR-EMB, was insufficient for
purposes of evaluating the environmental impact of the proposed
modifications to the original project design. There is no claim that the data
submitted were falsified or misrepresented. Neither was there an attempt to
subpoena the review process documents of the DENR to establish thatthe
grant of the amendment to the ECC was done with grave abuse of discretion
or to the grave prejudice of the right to a healthful environment of those who
will beaffected by the project. Instead, the Casiño Group relied solely on the
definition of terms in DAO 2003-30 and the Revised Manual, which
approach, as previously discussed,was erroneous.
At any rate, we have examined the contents of the voluminous EPRMP
submitted by RP Energy and wefind therein substantial sections explaining
the proposed changes as well as the adjustments that will be made in the
environmental management plan in order to address the potential
environmental impacts of the proposed modifications to the original project
design. These are summarized in the "Project Fact Sheet"186 of the EPRMP
and extensively discussed in Section 4187 thereof. Absent any claim or proof
to the contrary, we have no bases to conclude that these data were
insufficient to assess the environmental impact of the proposed
modifications. In accordance with the presumption of regularity in the
performance of official duties, the DENR-EMB must be deemed to have
adequately assessed the environmental impact of the proposed changes,
before granting the request under the first amendment to the subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the
appropriate EIA document type, for major amendments to an ECC, even for
an unimplemented or non-implementedproject with a previous ECC, such as
the subject project. Consequently, we find that the procedure adopted by the
DENR, in requiring RP Energy to submitan EPRMP in order to undertake the
environmental impact assessment of the planned modifications to the original
project design, relative to the first amendment to the ECC, suffers from no
infirmity.
We apply the same framework of analysis in determining the propriety of a
PDR, as the appropriate EIA document type, relative to the second
amendment to the subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the
definitions of a PDR in DAO 2003-30 and the Revised Manual:
Project Description (PD) — document, which may also be a chapter in an
EIS, that describes the nature, configuration, use of raw materials and
natural resources, production system, waste or pollution generation and
control and the activities of a proposed project. It includes a description of the
use of human resources as well as activity timelines, during the pre-
construction, construction, operation and abandonment phases. It is tobe
used for reviewing co-located and single projects under Category C, aswell
as for Category D projects.188
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a) For new projects: x x x For non-covered projects in Groups II and III, a x x
x Project Description Report (PDR) is the appropriate document to secure a
decision from DENR/EMB. The PDR is a "must" requirement for
environmental enhancement and mitigation projects in both ECAs (Group II)
and NECAs (Group III) to allow EMB to confirm the benign nature of
proposed operations for eventual issuance of a Certificate ofNon-Coverage
(CNC). All other Group III (non-covered) projects do not need to submit
PDRs – application is at the option of the Proponent should it need a CNC for
its own purposes, e.g. financing pre-requisite. For Group V projects, a PDR is
required to ensure new processes/technologies or any new unlisted project
does not pose harm to the environment. The Group V PDR is a basis for
either issuance of a CNC or classification of the project into its proper project
group.
b) For operating projects with previous ECCs but planning or applying for
clearance to modify/expand or re-start operations, or for projects operating
without an ECC but applying to secure oneto comply with PD 1586
regulations, the appropriate document is not an EIS but an EIA Report
incorporating the project’s environmental performance and its current
Environmental Management Plan. This report is either an (6) Environmental
Performance Report and Management Plan (EPRMP) for single project
applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project
applications. However, for small project modifications, an updating of the
project description or the Environmental Management Plan with the use of
the proponent’s historical performance and monitoring records may
suffice.189
xxxx
Project Description (PD) - document, which may also be a chapter in an EIS,
that describes the nature, configuration, use of raw materials and natural
resources, production system, waste or pollution generation and control and
the activities of a proposed project. It includes a description of the use of
human resources as well as activity timelines, during the pre-construction,
construction, operation and abandonment phases.190
We will no longer delve intothe details of these definitions. Suffice it to state,
similar to the discussion on the EPRMP, that if we go by the strict limits of
these definitions, the PDR relative to the subject second amendment would
not fall squarely under any of the above.
However, again, these are not the only provisions governing the PDR in the
Revised Manual.
After the favorable grant of the first amendment, RP Energy applied for
another amendment to its ECC, this time inconsideration of its plan to
change the configuration of the project from 2 x 150 MWto 1 x 300 MW. In
practical terms, this meant that the subject project will still produce 300 MW
of electricity but will now make use of only one boiler (instead of two) to
achieve greater efficiency in the operations of the plant. The DENR-EMB
determined191 this amendment to be minor, under Scenario 1, Item#6 of
Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed "minor" at the discretion of the EMB
CO/RO Director192
— because (1) there is no increase in capacity; (2) it does not constitute any
significant impact; and (3) its EMP and ERA as specified in the submitted
EPRMP remain the same.193 Relative to Annex 2-1c, the requested
amendment was, in turn, determinedto fall under Item#3:
Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter
auxiliary component of the covered project) thresholds is Request with brief descriptionconfiguration.
original project which will assumed that impacts are not additional capacity or
either not entail significant; component195
exceedance of PDR (non-
covered project)
Modification scenario and
thresholds or EMP & ERA
decision process are applicable
can still address impacts & to both non-implemented and
risks arising from operating projects issued
modification ECCs194
We make the same observation, as before, that the above applies to an
unimplemented or non-implemented project with a previous ECC, like the
subject project. Although it may be noted thatthe proposed modification does
not squarely fall under Item#3, considering that, as previously
mentioned,there will be no increase in capacity relative to the second
amendment, still, we find nothing objectionable to this classification by the
DENR-EMB, for it seems plain enough that this classification was used
because the modification was deemed too minor to require a detailed project
study like an EIS or EPRMP. Since this is the classification most relevant and
closely related to the intended amendment, following the basic precept that
the greater includes the lesser, the DENR-EMB reasonably exercised its
discretion in merely requiring a letter request with a brief description of the
modification.
As earlier noted, the PDR is the EIA document type with the least detail, and,
thus, applicable to such minor modifications. Thus, the DENR-EMB cannot
be faulted for requiring RPEnergy to submit a PDR relative to its application
for the second amendment. Consequently, as before, we findthat the
Revised Manual supports the procedure adopted by the DENR-EMB in
requiring RP Energy to submit a PDR in order to assess the environmental
impact of the planned modifications relative to the second amendment.
In their Petition before this Court, the Casiño Group boldly asserts that
"[t]here is nothing in the Project Description Report that provides an
environmental impact assessment of the effects of constructing and
operating a single 300-MW generating unit."196 However, to our dismay, as in
their other serious allegations in their Petition for Writ ofKalikasan, the same
is, likewise, baseless. Apart from such a sweeping claim, the Casiño Group
has provided no evidence or argument to back up the same.
An examination of the PDR readily reveals that it contains the details of the
proposed modifications197 and an express finding that no significant
environmental impact will be generated bysuch modifications, as in fact it is
expected that the operation of the power plant will become more efficient as
a result of the change from 2 x 150 MW to 1 x 300 MW
198 Consequently, the PDR merely reiterates the same
of
mitigating measures that will presumably address the minor modifications to
the project design. Again, no evidence was presented to show substantial
errors or misrepresentations in these data or their inadequacy for providing
the bases for the DENR-EMB to assess the environmental impact of the
proposed modifications under the second amendment.
In fine, absent proof to the contrary, bearing in mind that allegations are not
proof, we sustain the procedure adoptedby the DENR-EMB in requiring RP
Energy to submit a PDR and, on the basis thereof, approving the request for
the second amendment.
In another vein, we note that the appellate court proceeded from the
erroneous premise that the EIA is a document, when it repeatedly stated that
the amendments to the ECC require a new EIA, and not merely an EPRMP
or PDR. The appellate court relied on the provisoin the ECC, which stated
that "[a]ny expansion of the project beyond the project description or any
change in the activity or transfer of location shall besubject to a new
Environmental Impact Assessment."199
However, as correctly pointed out by the DENR and RP Energy, the EIA is
not a document but a process:
Environmental Impact Assessment (EIA) — processthat involves evaluating
and predicting the likely impacts of a project (including cumulative impacts)
on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating
and enhancement measures addressing these consequences to protect the
environment and the community's welfare.The process is undertaken by,
among others, the project proponent and/orEIA Consultant, EMB, a Review
Committee, affected communities and other stakeholders.200 (Emphasis
supplied)
When the provisoin the ECC, therefore, states that a new EIA shall
beconducted, this simply means that the project proponent shall be required
to submit such study or report, as warranted by the DENR Rules and
circumstances, which will sufficiently aid the DENR in making a new EIA and,
thus, determine whether to grant the proposed amendment (or project
modification). Aswe have seen, consistent with DAO 2003-30 and the
Revised Manual, the DENR required RP Energy to submit an EPRMP and a
PDR relative to the latter’s request involving the first and second
amendments, respectively, which led to the new EIA of the project in
compliance with the provisoof the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere
tools used by the DENR to assess the environmental impact of a particular
project. These documents are flexibly used by the DENR, as the
circumstances warrant, in order to adequately assess the impacts of a new
project or modifications thereto. Being the administrative agency entrusted
with the determination of which EIA document type applies to a particular
application for an amendment to an ECC, falling as it does within its
particular technical expertise, wemust accord great respect to its
determination, absent a showing of grave abuse of discretion or patent
illegality.
In sum, we find that the appellate court erred when it ruled that the first and
second amendments to the subject ECC wereinvalid for failure to comply
with a new EIA and for violating DAO 2003-30 and the Revised Manual. The
appellate court failed to properly consider the applicable provisions in DAO
2003-30 and the Revised Manual on amendments to ECCs. Our examination
of the provisions on amendments to ECCs, as well as the EPRMP and PDR
themselves, shows that the DENR reasonably exercised its discretion in
requiring an EPRMP and a PDR for the first and second amendments,
respectively. Through these documents, which the DENR reviewed, a new
EIA was conducted relative to the proposed project modifications. Hence,
absent sufficient showing of grave abuse of discretion or patent illegality,
relative to both the procedure and substance of the amendment process, we
uphold the validity of these amendments.
IV.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA
Law, is a precondition to the issuance of anECC and the lack of its prior
issuance rendered the ECC invalid.
The appellate court ruled that the ECC issued in favor of RP Energy on
December 22, 2008 is invalid because the CNO covering the subject project
was issued only on October 31, 2012 or almost fouryears from the timeof
issuance of the ECC. Thus, the ECC was issued in violation of Section 59 of
the IPRA Law and its implementing rules which require that a CNO be
obtained prior to the issuance of a government agency of, among others, a
license or permit. In so ruling, the appellate court implicitly upheld the Casiño
Group’s argument that the ECC is a form of government license or permit
pursuant to Section 4 of PD 1586 which requires all entities to securean ECC
before (1) engaging in an environmentally critical project or (2) implementing
a project within an environmentally critical area.
The DENR and RP Energy, however, argue that an ECC is not the license or
permit contemplated under Section 59 of the IPRA Law and its implementing
rules as may be deduced from the definition, nature and scope of an ECC
under DAO 2003-03 and the Revised Manual. The DENR explains that the
issuance of an ECC does not exempt the project proponent from securing
other permits and clearances as required under existing laws, including the
CNO, and that the final decision on whether a project will be implemented
lies with the concerned local government unit/s or the lead government
agency which has sectoral mandate to promote the government
programwhere the project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. All departments and other governmental
agencies shall henceforth be strictly enjoined from issuing, renewing, or
granting any concession,license or lease, or entering into any production-
sharing agreement, without prior certification from the NCIP that the area
affected does not overlap with any ancestral domain.Such certification shall
only be issued after a field-based investigation is conducted by the Ancestral
Domains Office of the area concerned: Provided, That no certification shall
be issued by the NCIP without the free and prior informed and written
consent of ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation may
issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the
ICCs/IPs shall have the right to stop or suspend, in accordance with this Act,
any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)
While Section 9, Part II, Rule VIII of National Commission on Indigenous
Peoples (NCIP) Administrative Order No. 01-98201 states:
SECTION 9. Certification Precondition Prior to Issuance of any Permits or
Licenses. —
a. Need for Certification. No department of government or other
agencies shall issue, renew or grant anyconcession, license, lease,
permit, or enter into any production sharing agreement without a
prior certification from the NCIP that the area affected does not
overlap any ancestral domain.
b. Procedure for Issuance ofCertification by NCIP.
1) The certification, above mentioned, shall be issued by the
Ancestral Domain Office, only after a field based
 investigation that such areas are not within any certified or
claimed ancestral domains.
2) The certification shall be issued only upon the free, prior,
informed and written consent of the ICCs/IPs who will be
affected by the operation of such concessions, licenses or
leases or production-sharing agreements. A written consent
for the issuance of such certification shall be signed by at
least a majority of the representatives of all the households
comprising the concerned ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition,
relative to the issuance of any concession, license, lease or agreement over
natural resources, a certification issued by the NCIP that the area subject
thereof does not lie within any ancestral domain.202 This is in keeping with
the State policy to protect the rights of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in
order to ensure their economic, social and cultural well-being as well as to
recognize the applicability of customary laws governing property rights or
relations in determining the ownership and extent of such ancestral
domain.203
The IPRA Law and its implementing rules do not define the terms "license"
and "permit" so that resort to their plain or ordinary meaning in relation to the
intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to perform a
particular act (such as getting married), conduct a particular business or
occupation, operate machinery or vehicles after proving capacity and ability
to do so safely, or use property for a certain purpose"204 while a "permit" has
been defined as "a license or other document given by an authorized public
official or agency (building inspector, department ofmotor vehicles) to allow a
person or business to perform certain acts."205
The evident intention of Section 59, in requiring the CNO prior to the
issuance of a license or permit, is to prevent the implementation of a project
that may impair the right of ICCs/IPs to their ancestral domains. The law
seeks to ensure that a project willnot overlap with any ancestral domain prior
to its implementation and thereby pre-empt any potential encroachment of,
and/or damage to the ancestral domains of ICCs/IPs without their prior and
informed consent.
With these considerationsin mind, we now look atthe definition, nature and
scope of an ECC in order to determine if it falls within the ambit of a "license"
or "permit" to which the CNO requirement, under Section 59 of the IPRA Law
and its implementing rules, finds application. Section 4 of PD 1586 provides,
in part:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
Projects. — The President of the Philippines may, on his own initiative or
upon recommendation of the National Environmental Protection Council, by
proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall
undertake or operate any suchdeclared environmentally critical project or
area without first securing an Environmental Compliance Certificate issued
by the President orhis duly authorized representative.For the proper
management of said critical project or area, the President may by his
proclamation reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the re-alignment of government
personnel, and their specific functionsand responsibilities. (Emphasis
supplied)
While the above statutory provision reveals that the ECC is an indispensable
requirement before (1) the conduct of an environmentally critical project or
(2) the implementation of a project inan environmentally critical area, it does
not follow that the ECC is the "license" or "permit" contemplated under
Section 59 of the IPRA Law and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following definitions shall be applied:
xxxx
d. Environmental Compliance Certificate (ECC) — document issued by the
DENR/EMB after a positive review of an ECC application, certifying that
based on the representations of the proponent, the proposed project or
undertaking will not cause significant negative environmental impact. The
ECC also certifies that the proponent has complied with all the requirements
of the EIS System and has committed to implement its approved
Environmental Management Plan. The ECC contains specific measures and
conditions that the project proponent has to undertake beforeand during the
operation of a project, and in some cases, during the project's abandonment
phase to mitigate identified environmental impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in
part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide
decisionmaking. In this Manual, EIA is primarily presented in the context of a
requirement to integrate environmental concerns in the planning process of
projects at the feasibility stage. Through the EIA Process, adverse
environmental impacts of proposed actions are considerably reduced through
a reiterative review process of project siting, design and other alternatives,
and the subsequent formulation of environmental management and
monitoring plans. A positive determination by the DENR-EMB results to the
issuance of an Environmental Compliance Commitment (ECC) document, to
be conformed to by the Proponent and represents the project’s
Environmental Compliance Certificate. The release of the ECC allows the
project to proceed to the next stage of project planning, which is the
acquisition of approvals from other government agencies and LGUs, after
which the project can start implementation.
xxxx
6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent
upon the EIA Process to undertake a comprehensive and integrated
approach in the review and evaluation of environment-related concerns of
government agencies (GAs), local government units (LGUs) and the general
public. The subsequent EIA findings shall provide guidance and
recommendations to these entities as a basis for their decision making
process.
a) An Inter-agency MOA on EIS Streamlining was entered into in
1992 by 29 government agencies wherein ECC of covered projects
was agreed to be a prerequisite of all other subsequent government
approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007
reiterates in effect the intent of the MOA and reinforces the role of
the ECC/CNC as a guidance document to other agencies and LGUs,
as follows:
i) "No permits and/or clearances issued by other National
Government Agencies and Local Government Units shall be
required in the processing of ECC or CNC applications.
ii) The findings and recommendations ofthe EIA shall be
transmitted to relevant government agencies for them to
integrate in their decision making prior to the issuance of
clearances, permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the
EIS System does not exempt the Proponent from securing
other government permits and clearances as required by
other laws. The current practice of requiring various permits,
clearancesand licenses only constrains the EIA evaluation
process and negates the purpose and function of the EIA."
iv) Henceforth, all related previous instructions and other
issuances shall be made consistent with the Circular.
c) "Permits, licenses and clearances" are inclusive of other national
and local government approvals such as endorsements, resolutions,
certifications, plans and programs, which have to be
cleared/approved or other government documents required within
the respective mandates and jurisdiction of these agencies/LGUs.
xxxx
f) The final decision whether a project will be implemented or not lies either
with the LGUs who have spatial jurisdiction over the project or with the lead
government agency who has sectoral mandate to promote the government
program where the project belongs, e.g. DOE for energy projects; DENR-
MGB for mining projects.(Emphasis supplied)
As can be seen, the issuance of the ECC does not, by and of itself, authorize
the implementation of the project. Although it is indispensable before the
covered project can be commenced, asper Section 4 of PD 1586,the
issuanceof the ECC does not, as of yet, result inthe implementation of the
project. Rather, the ECC is intended to, among others, provide guidance or
act as a decision-making tool to other government agencies and LGUs which
have the final authority to grant licenses or permits, such as building permits
or licenses to operate, that will ultimately result in, or authorize the
implementation of the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of
the IPRA Law is not required to be obtained prior to the issuance of an ECC.
As previously discussed, Section 59 aims to forestall the implementation of a
project that may impair the right of ICCs/IPs totheir ancestral domains, by
ensuring or verifying that a project will not overlap with any ancestral domain
prior to its implementation. However, because the issuance of an ECC does
not result in the implementation of the project, there is no necessity to secure
a CNO prior to an ECC’s issuance as the goal orpurpose, which Section 59
seeks to achieve, is, at the time of the issuance of an ECC, not yet
applicable.
In sum, we find that the ECC is not the license or permit contemplated under
Section 59 of the IPRA Law and its implementing rules. Hence, there is no
necessity to secure the CNO under Section 59 before an ECC may be issued
and the issuance of the subject ECC without first securing the aforesaid
certification does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA
Law, is a precondition to the consummation of the Lease and Development
Agreement (LDA) between SBMA and RP Energy and the lack of its prior
issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA
entered into between the SBMA and RP Energy on June 8, 2010. Similar to
the ECC, the LDA was entered into prior to the issuance ofthe CNO on
October 31, 2012.
Before this Court, SBMA and RP Energy reiterate their arguments on why
the CNO is no longer necessary in the instant case, to wit:
1. Prior to entering into the LDA withRP Energy, SBMA entered into
a lease agreement with HHIC206 -Philippines, Inc. and a CNO was
already issued therefor which, for all intents and purposes, is
applicable to the area leased by RP Energy being part of contiguous
lots in Redondo Peninsula.
2. The site of the power plant project is very distant from the
boundaries of the lone area at the Subic Bay Freeport Zone covered
by an Aeta Community’s Certificate of Ancestral Domain Title
(CADT).
3. There was no indigenous community within the vicinity of the
project area as stated in RP Energy’s EIS.
4. The land where the project is located was subsequently classified
as industrial by the SBMA. 5. The scoping/procedural screening
checklist classified as "not relevant" the issue of indigenous people.
6. Ms. Mercado, who was part of the team which prepared the EIS,
testified that she visited the project site ten or more times and did not
see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing
range of the U.S. Armed Forces which would make it impossible to
be a settlement area of indigenous communities.
8. Atty. Rodriguez stated that the project site is not covered by a
CADT and that from the start of negotiations on the LDA, the SBMA
Ecology Center verified with the NCIP that there was no application
for said area to be covered by a CADT.
RP Energy further argues that, in any case, as a matter of prudence, it
secured a CNO from the NCIP. On October 31, 2012, the NCIP issued the
subject CNO over the project site, which should erase any doubt as to
whether it overlaps with an ancestral domain.
Upholding the arguments of the Casiño Group, the appellate court ruled that
SBMA failed to comply with the CNO requirement and, thus, the LDA entered
into between SBMA and RP Energy is invalid. It rejected the reasons given
by SBMA and RP Energy, to wit:
1. RP Energy’s reliance on its own field investigation that no
indigenous community was found within the vicinity is unavailing
because it was not the field investigation by the NCIP required by the
IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest
settlers in the municipality where the project will be built. Hence, it
was not clearly shown that in 2008, at the time the LDA was entered
into, there were no indigenouscommunities in the project site.
3. SBMA’s representation that the project site is industrial relies on a
letter dated March 5, 2008 and the scoping checklist, which are
hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value
because he is not an officer of SBMA Ecology Center oran officer of
NCIP.
5. At the time the CNO was issued on October 31, 2012, and the
field investigation relative thereto was conducted by the NCIP, the
project site no longer reflected the actual condition on December 22,
2008 when the LDA was entered into because the households which
occupied the site had already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC,
secured a CNO, but oddly did not do the same with respect to the
 lease agreement with RP Energy, considering that both leases cover
lands located within the same peninsula. RP Energy appears to have
been accorded a different treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO
for the power plant project because the two projects are situated in
different locations: the HHIC project is located in Sitio Agusuhin,while
the power plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been
secured prior to the consummation of the LDA between SBMAand RP
Energy, and not after, as was done here, we find that, under the particular
circumstances of this case, the subsequent and belated compliance withthe
CNO requirement does not invalidate the LDA.
For convenience, and as starting point of ouranalysis, we reproduce Section
59 of the IPRA Law below:
SEC. 59. Certification Precondition. All departments and other governmental
agencies shall henceforth be strictly enjoined from issuing, renewing, or
granting any concession, license or lease, or entering into any
productionsharing agreement, without prior certification from the NCIP that
the area affected does not overlap with any ancestral domain.Such
certification shall only be issued after a field-based investigation is conducted
by the Ancestral Domains Office of the area concerned: Provided, That no
certification shall be issued by the NCIP without the free and prior informed
and written consent of ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally,
That the ICCs/IPs shall have the right to stop or suspend, in accordance with
this Act, any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)
The law is clear but its actual operation or application should not be
interpreted beyond the bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government
agencies, including the SBMA. Again, the evident intention is to prevent the
impairment of the right of ICCs/IPs to their ancestral domains. A lease, such
as the LDA under consideration, would result in, among others, granting RP
Energy the right to the use and enjoyment of the project site to the exclusion
of third parties.207 As such, the lease could conceivably encroach on an
ancestral domain if the CNO is not first obtained.
However, implicit in the operation of Section 59 is the practical reality that the
concerned government agency must make a preliminary determinationon
whether or not to obtain the required certification in the first place. To
expound, a government agency, which wishes to lease part of its property
located near Padre Faura Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is obviously inapplicable to its
planned lease. In contrast, a government agency, which intends to lease a
property in a valley or mountainous region, where indigenous communities
are known to reside, conduct hunting activities, perform rituals, or carry out
some other activities, should be reasonably expected to secure the CNO
prior to consummating the planned lease with third persons.
Even if the indigenous community does not actuallyreside on the proposed
lease site, the government agency would still be required to obtain the CNO
preciselyto rule out the possibility that the proposed lease site encroaches
upon an ancestral domain. The reason for this is that an ancestral domain
does not only cover the lands actually occupied by an indigenous community,
but all areas where they have a claim of ownership, through time immemorial
use, such as hunting, burial or worship grounds and to which they have
traditional access for their subsistence and other traditional activities. 208
The wording of the law itself seems to presuppose that if the concession,
lease, license or production-sharing agreement is over natural resources,
then the CNO should be first obtained. This is because the lastterm,
"production-sharing agreement," normally refers to natural resources. But the
problem arises as to what should be considered "natural resources"; for a
vacant lot, nearPadre Faura Street, or a forest land, in Mt. Banahaw, could
both beconsidered as "natural resources," depending on the restrictive or
expansive understanding of that term.
After due consideration, we find that the proper rule of action, for purposes of
application of Section 59, is that all government offices should undertake
proper and reasonable diligence in making a preliminary determination on
whether to secure the CNO, bearing in mind the primordial State interest in
protecting the rights of ICCs/IPs to their ancestral domains. They should
consider the nature and location of the areas involved; the historical
background of the aforesaid areas relative to the occupation, use or claim of
ownership by ICCs/IPs; the present and actual condition of the aforesaid
areas likethe existence of ICCs/IPs within the area itself or within nearby
territories; and such other considerations that would help determine whether
a CNO should be first obtained prior to granting a concession, lease, license
or permit, or entering into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs
may be present or a claim of ownership may be asserted in the future, no
matter how remote, the proper and prudent course ofaction is to obtain the
CNO. In case of doubt, the doubt should be resolved in favor of securing the
CNO and, thus, the government agency is under obligation tosecure the
aforesaid certification in order to protect the interests and rights of ICCs/IPs
to their ancestral domains. This must be so if we are to accord the proper
respect due to, and adequately safeguard the interests and rights of, our
brothers and sisters belonging to ICCs/IPs in consonance with the
constitutional policy209 to promote and protect the rights of ICCS/IPs as
fleshed out in the IPRA Law and its implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should
have first secured a CNO before entering into the LDA with RP Energy for
the following reasons.
First, the Subic area is historicallyknown to be the home of our brothers and
sisters belonging to the Aeta communities. In particular, the EIS210 itself of
RP Energy noted that Aeta communities originally occupiedthe proposed
project site of the power plant. Thus, even if we assume that, at the time of
the ocular inspection of the proposed project site in 2008, there were no Aeta
communities seen thereat, as claimed by RP Energy, the exercise of
reasonable prudence should have moved SBMA and RP Energy to secure a
CNO in order to rule out the possibility that the project site may overlap with
an ancestral domain. This is especially so, in view of the observation
previously made, that lack of actual occupation by an indigenous community
ofthe area does not necessarily mean that it is not a part of anancestral
domain because the latter encompasses areas that are not actually occupied
by indigenouscommunities but are used for other purposes like hunting,
worship or burial grounds.
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified
with the NCIP that the project site does not overlap with an ancestral domain.
However, the person, who allegedly did the verification, and the officer from
the NCIP, who was contacted in this alleged verification, were not presented
in court. Assuming that this verification did take place and that the SBMA
Ecology Center determined that there is no pendingapplication for a CADT
covering the project site and that the presently recognized CADT of Aeta
communities is too far away from the project site, it still does not follow that
the CNO under Section 59 should have been dispensed with. The acts of
individual members ofa government agency, who allegedly checked with the
NCIP that the project site does not overlap with an ancestral domain, cannot
substitute for the CNO required by law. The reason is obvious. Such posture
would circumvent the noble and laudable purposes of the law in providing the
CNO as the appropriate mechanism in order to validly and officially
determine whether a particular project site does not overlap with an ancestral
domain. It would open the doors to abuse because a government agency can
easily claim that it checked with the NCIP regarding any application for an
ancestral domain over a proposed project site while stopping short of
securing a CNO. To reiterate, the legally mandated manner to verify if a
project site overlaps with an ancestral domain is the CNO,and not through
personal verification by members of a government agency with the NCIP.
Third, that the project site was formerlyused as the firing range of the U.S.
Armed Forces does not preclude the possibility that a present orfuture claim
of ancestral domain may be made over the aforesaid site. The concept of an
ancestral domain indicates that, even if the use ofan area was interrupted by
the occupation of foreign forces, it may still be validly claimed to be an
ancestral domain.211
Fourth, that the project site was subsequently classified by the SBMA as
forming part of an industrial zone does not exempt it from the CNO
requirement. The change in the classification of the land is not an exception
to the CNO requirement under the IPRA Law. Otherwise, government
agencies can easily defeat the rights of ICCs/IPs through the conversion of
land use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and
purposes, be applicable to RP Energy. However, ascorrectly ruled by the
appellate court, the CNO issued to HHIC’s shipyard cannot be extended to
RP Energy’s project site because they involve two different locations
although found within the same land mass. The CNO issued in favor of HHIC
clearly states that the findings in the CNO are applicable only to the shipyard
location of HHIC. Last, the steps taken by SBMA, in securing a CNO prior to
its lease agreement with HHIC, was the proper and prudent course of action
that should have been applied to the LDA with RP Energy. It does notmatter
that HHIC itself asked for the CNO prior to entering into a lease agreement
with SBMA, as claimed by SBMA, while RP Energy did not make such a
request because, as we have discussed, SBMA had the obligation, given the
surrounding circumstances, to secure a CNO in order to rule out the
possibility that the project site overlapped with an ancestral domain.
All in all, we find, applying the foregoing rule of action,that SBMA should
have secured a CNO before entering into the LDA with RP Energy.
Considering that Section 59 is a prohibitory statutory provision, a violation
thereof would ordinarily result in the nullification of the contract. 212 However,
we rule that the harsh consequences of such a ruling should not be applied
to the case at bar.
The reason is that this is the first time that we lay down the foregoing rule of
action so much so that it would be inequitable to retroactively apply its effects
with respect to the LDA entered into between SBMA and RPEnergy. We also
note that, under the particular circumstances of this case, there is no
showing that SBMA and RP Energy had a deliberate or ill intent to escape,
defeat or circumvent the mandate of Section 59 of the IPRA Law. On the
contrary, they appear to have believed in good faith, albeiterroneously, that a
CNO was no longer needed because of the afore-discussed defenses they
raised herein. When the matter of lack of a CNO relative to the LDA was
brought to their attention, through the subject Petition for Writ ofKalikasan
filed by the Casiño Group, RP Energy, with the endorsement of SBMA,
promptly undertook to secure the CNO, which was issued on October 31,
2012 and stated that the project site does not overlap with any ancestral
domain.213
Thus, absent proof to the contrary, weare not prepared to rule that SBMA
and RP Energy acted inbad faith or with inexcusable negligence, considering
that the foregoing rule of action has not heretofore been laiddown by this
Court. As a result, we hold that the LDA should notbe invalidated due to
equitable considerations present here.
By so ruling, we clarify that we reject RP Energy’s claim that the belated
submission of the CNO is an "over compliance" on its part. Quite the
contrary, as we have discussed, the CNO should have been first secured
given the surrounding circumstances of this case.
In the same vein, we reject SBMA’s argument thatthe belated application for,
and submission of the CNO cured whatever defect the LDA had. We have
purposely avoided a ruling to the effect that a CNO secured subsequent to
the concession, lease, license, permit or production-sharing agreement will
cure the defect. Such a ruling would lead to abuse of the CNO requirement
since the defect can be cured anyway by a subsequent and belated
application for a CNO. Government agencies and third parties, either through
deliberate intent or negligence, may view it as an excuse not to timely and
promptly secure the CNO, even when the circumstances warrant the
application for a CNO under the aforediscussed rule of action, tothe damage
and prejudice of ICCs/IPs. Verily, once the concession, lease, license or
permit is issued, or the agreement is entered into without the requisite CNO,
consequent damages will have already occurred if it later turns out that the
site overlaps with anancestral domain. This is so even if the ICCs/IPs can
have the project stopped upon discovery thatit overlapped with their
ancestral domain under the last proviso214 of Section 59. To prevent this evil,
compliance with the CNO requirement should be followed through the
aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the
consummation of the LDA between SBMA and RP Energy. However,
considering that this is the first time we lay down the rule of action
appropriate to the application of Section 59, we refrain from invalidating the
LDA due to equitable considerations.
VI.
Whether compliance with Section 27, inrelation to Section 26, of the LGC
(i.e., approval of the concerned sanggunianrequirement) is necessary prior to
the implementation of the power plant project.
Sustaining the arguments ofthe Casiño Group, the appellate court ruled that
the subject project cannot beconstructed and operated until after the prior
approval of the concerned sanggunianrequirement, under Section 27 of the
LGC, is complied with. Hence, the ECC and LDA could not be validly granted
and entered into without first complying with the aforesaid provision. It held
that all the requisites for the application of the aforesaid provision are
present. As to the pertinent provisions of RA 7227 or "TheBases Conversion
and Development Act of 1992," which grants broad powers of administration
to the SBMA over the Subic Special Economic Zone(SSEZ), the appellate
court ruled that RA 7227 contains a provision recognizing the basic
autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA
7227should be harmonized whereby the concerned sanggunian’spower to
approve under Section 27 must be respected.
The DENR impliedly agrees with the Casiño Group that compliance with
Section 27 is still required but without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the
concerned sanggunianrequirement, under Section 27, is inapplicable to the
subject project because it is located within the SSEZ. The LGC and RA 7227
cannot be harmonized because of the clear mandate of the SBMA to govern
and administer all investments and businesses within the SSEZ. Hence, RA
7227 should be deemed as carving out an exception to the prior approval of
the concerned sanggunianrequirement insofar as the SSEZ is concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two
requirements: (1) prior consultations and (2) prior approval of the concerned
sanggunian,viz:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. — It shall be the duty of every national agency or
government-owned or -controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, and extinction of animal or plant
species, to consult with the local government units, non governmental
organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the peopleand the
community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects
thereof. (Emphasis supplied)
SECTION 27. Prior Consultations Required. — No project or program shall
be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution. (Emphasis supplied)
In the case at bar, the Casiño Group only questions the alleged lack of the
prior approval of the concerned sanggunians under Section 27 of the LGC.
Thus, we shall limit our discussion to the resolution of this issue.
(Parenthetically, we note that prior consultations, as required by Section 26
of the LGC, appear to have been complied with. This may begleaned from
the EIS of RPEnergy which contains the documentation of the extensive
public consultations held, under the supervision of the DENR-EMB, relative
to the subject project, as required by the EIA process,215 as well as the
socialacceptability policy consultations conducted by the SBMA, which
generated the document entitled "Final Report: Social Acceptability Process
for RP Energy, Inc.’s 600-MW Coal Plant Project," as noted and discussed in
an earlier subsection.216)
We also note that the Casiño Group argues that the approval of the
concerned sanggunian requirement was necessary prior to the issuance of
the ECC and the consummation of the LDA; the absence of which invalidated
the ECC and LDA.
We shall no longer discuss at length whether the approval of the concerned
sanggunian requirement must be complied with prior to the issuance of an
ECC. As discussed in an earlier subsection, the issuance of an ECC does
not, by itself, result in the implementation of the project. Hence, the purpose
or goal of Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law,
does not yet obtain and, thus, the ECC may be issued evenwithout prior
compliance with Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the concerned
sanggunian requirement should have been complied with prior to the
consummation of the LDA, considering that the LDA is part of the
implementation of the subject project and already vests in RP Energy the
right to the use and enjoyment of the project site, asin fact horizontal clearing
activities were already undertaken by RP Energy at the project site by virtue
of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute
and implementation of the local autonomy granted to, and enjoyed by LGUs
under the Constitution.217 The LGU has the duty to protect its constituents
and interests in the implementation of the project. Hence, the approval of the
concerned sanggunian is required by law to ensure thatlocal communities
partake in the fruits of their own backyard.218
For Section 27, in relation to Section 26, to apply, the following requisites
must concur: (1) the planning and implementation of the project or program is
vested in a national agency or government-owned and-controlled
corporation, i.e., national programs and/or projects which are to be
implemented in a particular local community; and (2) the project or program
may cause pollution, climatic change, depletion of non-renewable resources,
loss of cropland, rangeland, or forest cover, extinction of animal or plant
species, or call for the eviction of a particular group of people residing in the
locality where the project will be implemented.219
In the case at bar, the two requisites are evidently present: (1) the planning
and implementation of the subject project involves the Department of Energy,
DENR, and SBMA; and (2) the subject project may cause pollution, climatic
change, depletion of non-renewable resources, loss of cropland, rangeland,
or forest cover, and extinction of animal or plant species,or call for the
eviction of a particular group of people residing in the locality where the
project will be implemented. Hence, Section 27 of the LGC should ordinarily
apply.
It is not disputed that no approval was sought from the concerned
sangguniansrelative to the subject project.1a\^/phi1Whatis more, the affected
LGUs have expressed their strong oppositions to the project through various
sanggunian resolutions.220 However, it is also undisputed that the subject
project is located within the SSEZ and, thus, under the territorial jurisdiction
of the SBMA pursuant to RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the
concerned sanggunian requirement, under Section 27 of the LGC, relative to
a project within the territorial jurisdiction of the SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount
Pinatubo eruption and the closure of the Subic Naval Base ofthe U.S. Armed
Forces. It sought to revivethe affected areas by creating and developing the
SSEZ into a "self-sustaining industrial, commercial, financial and investment
center to generate employment opportunities in and around the zone and to
attract and promote productive foreign investments."221 The SSEZ covered
the City of Olangapo and Municipality of Subic in the Province ofZambales
and the lands and its contiguous extensions occupied by the former U.S.
Naval Base, which traversed the territories of the Municipalities of Hermosa
and Morong in the Province of Bataan. Under Section 12 of RA 7227, the
creation of the SSEZ was made subject to the concurrence by resolution of
the respective sanggunians of the City of Olongapo and the Municipalities of
Subic, Morong and Hermosa, viz:
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence
by resolution of the sangguniang panlungsod of the City of Olongapo and the
sangguniang bayanof the Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and Free-port Zone consisting of
the City of Olongapo and the Municipality of Subic, Province of Zambales,
the lands occupied by the Subic Naval Base and its contiguous extensions
as embraced, covered, and defined by the 1947 Military Bases Agreement
between the Philippines and the United States of America as amended, and
within the territorial jurisdiction of the Municipalities of Morong and Hermosa,
Province of Bataan, hereinafter referred to as the Subic Special Economic
Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the
approval of this Act, each local government unit shall submit its resolution of
concurrence to join the Subic Special Economic Zone to the office of the
President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians submitted their respective
resolutions of concurrence and the President issued Presidential
Proclamation No. 532, Series of 1995, defining the metes and bounds of the
SSEZ.
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described
the concept of SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or movement of goods and
capital within a portion of the Philippine territory in order to attract investors to
invest their capital in a business climate with the least governmental
intervention. The concept ofthis zone was explained by Senator Guingona in
this wise:
Senator Guingona. Mr. President, the special economic zone is successful in
many places, particularly Hong Kong, which is a free port. The difference
between a special economic zone and an industrial estate is simply
expansive in the sense that the commercial activities, including the
establishment of banks, services, financial institutions, agro-industrial
activities, maybe agriculture to a certain extent.
This delineates the activities that would have the least of government
intervention, and the running of the affairs of the special economic zone
would be run principally by the investors themselves, similar toa housing
subdivision, where the subdivision owners elect their representatives to run
the affairs of the subdivision, toset the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong, Mr.
President, where there is a hub of free port and free entry, free duties and
activities to a maximum spur generation of investment and jobs.
While the investor is reluctant to come in the Philippines, as a rule, because
of red tape and perceived delays, we envision this special economic zone to
be an area where there will be minimum government interference.
The initial outlay may not only come from the Government or the Authority as
envisioned here, but from them themselves, because they would be
encouraged to invest not only for the land but also for the buildings and
factories. As long as they are convinced that in such an area they can do
business and reap reasonable profits, thenmany from other parts, both local
and foreign, would invest, Mr. President.223 (Emphasis in the original)
To achieve the above-mentioned purposes, the law created SBMA to
administer the SSEZ. In the process, SBMA was granted broad and
enormous powers as provided for under Section 13(b) of RA 7227:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority -
The Subic Bay Metropolitan Authority, otherwise knownas the Subic
Authority, shall have the following powers and function: (1) To
operate, administer, manage and develop the ship repair and ship
building facility, container port, oil storage and refueling facility and
Cubi Air Base within the Subic Special Economic and Free-port Zone
as a free market in accordance with the policies set forth in Section
12 of this Act;
(2) To accept any local or foreign investment, business or
enterprise, subject only to such rules and regulations to be
promulgated by the Subic Authority in conformity with the
policies of the Conversion Authority without prejudice to the
nationalization requirements provided for in the Constitution;
(3) To undertake and regulate the establishment, operation
and maintenance of utilities, other services and infrastructure
in the Subic Special Economic Zone including shipping and
related business, stevedoring and port terminal services or
concessions, incidental thereto and airport operations in
coordination with the Civil Aeronautics Board, and to fix just
and reasonable rates, fares charges and other prices
therefor;
(4) To construct, acquire, own, lease, operate and maintain
on its own or through contract, franchise, license permits
bulk purchase from the private sector and build-operate
transfer scheme or joint-venture the required utilities and
infrastructurein coordination with local government units and
appropriate government agencies concerned and
inconformity with existing applicable laws therefor;
(5) To adopt, alter and use a corporate seal; to contract,
lease, sell, dispose, acquire and own properties; to sue and
be sued in order to carry out its duties and functions as
provided for in this Act and to exercise the power of eminent
domain for public use and public purpose;
(6) Within the limitation provided by law, to raise and/or
borrow the necessary funds from local and international
financial institutions and to issue bonds, promissory notes
and other securities for that purpose and to secure the same
by guarantee, pledge, mortgage deed of trust, or assignment
of its properties held by the Subic Authority for the purpose
of financing its projects and programs within the framework
and limitation of this Act;
(7) To operate directly or indirectly or license tourism related
activities subject to priorities and standards set by the Subic
Authority including games and amusements, except horse
racing, dog racing and casino gambling which shall continue
to be licensed by the Philippine Amusement and Gaming
Corporation (PAGCOR) upon recommendation of the
Conversion Authority; to maintain and preserve the forested
areas as a national park;
(8) To authorize the establishment ofappropriate educational
and medical institutions;
(9) To protect, maintain and develop the virgin forests within
the baselands, which will be proclaimed as a national park
and subject to a permanent total log ban, and for this
purpose, the rules and regulations of the Department of
Environment and Natural Resources and other government
agencies directly involved in the above functions shall be
implemented by the Subic Authority;
(10) To adopt and implement measures and standards for
environmental pollution control of all areas within its territory,
including but not limited to all bodies of water and to enforce
the same. For which purpose the Subic Authority shall create
an Ecology Center; and
(11) To exercise such powers as may be essential,
necessary or incidental to the powers granted to it hereunder
as well as to carry out the policies and objectives of this Act.
(Emphasis supplied) The Implementing Rules of RA 7227
further provide:
Sec. 11. Responsibilities of the SBMA. Other than the powers and functions
prescribed in Section 10 of these Rules, the SBMA shall have the following
responsibilities:
(a) The SBMA shall exercise authority and jurisdiction over all economic
activity within the SBF224
xxxx
(f) Consistent with the Constitution, the SBMA shall have the following
powers to enforce the law and these Rules in the SBF:
xxxx
(8) to issue, alter, modify, suspend or revoke for cause, any permit,
certificate, license, visa or privilege allowed under the Act or these Rules;
xxxx
(11) to promulgate such other rules, regulations and circulars as may be
necessary, proper or incidental to carry out the policies and objectives of the
Act, these Rules, as well as the powers and duties of the SBMA
thereunder.225
As can be seen, the SBMA was given broad administrative powers over the
SSEZ and these necessarily include the power to approve or disapprove the
subject project, which is within its territorial jurisdiction. But, as previously
discussed, the LGC grants the concerned sangguniansthe power to approve
and disapprove this same project. The SBMA asserts that its approval of the
project prevails over the apparent disapproval of the concerned sanggunians.
There is, therefore, a real clash between the powers granted under these two
laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall bedeveloped into a self-sustaining,
industrial, commercial, financial and investment center to generate
employment opportunities in and around the zone and to attract and promote
productive foreign investments;
xxxx
(i) Except as herein provided, the local government units comprising the
Subic Special Economic Zone shall retain their basic autonomy and identity.
The cities shall be governed by their respective charters and the
municipalities shall operate and function in accordance with Republic Act No.
7160, otherwise known as the Local Government Code of 1991. (Emphasis
supplied)
This section sets out the basic policies underlying the creation of the SSEZ.
Indeed, as noted by the appellate court, Section 12(i) expressly recognizes
the basic autonomy and identity of the LGUscomprising the SSEZ. However,
the clause "[e]xcept as herein provided" unambiguously provides that the
LGUs do not retain their basic autonomy and identitywhen it comes to
matters specified by the law as falling under the powers, functions and
prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects
within the SSEZ is one such power over which the SBMA’s authority prevails
over the LGU’s autonomy. Hence, there isno need for the SBMA to secure
the approval of the concerned sangguniansprior to the implementation of the
subject project.
This interpretation is based on the broad grant of powers to the SBMA over
all administrative matters relating to the SSEZ under Section 13 of RA 7227,
as afore-discussed. Equally important, under Section 14, other than those
involving defense and security, the SBMA’s decision prevails in case of
conflict between the SBMA and the LGUs in all matters concerning the
SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local
Government Units.
(a) The provisions of existing laws, rules and regulations to the
contrary notwithstanding, the Subic Authority shall exercise
administrative powers, rule-making and disbursement of funds over
the Subic Special Economic Zonein conformity with the oversight
function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local
government units concerned on matters affecting the Subic Special
Economic Zone other than defense and security, the decision of the
SubicAuthority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather
business and investment to further the development of the SSEZ. Such is in
line with the objective of RA 7227 to develop the SSEZ into a self-sustaining
industrial, commercial, financial and investment center. Hence, the decision
of the SBMA would prevail over the apparent objections of the concerned
sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and
confirm the foregoing interpretation. As earlier noted, Section 13 b(4) of RA
7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic
Bay Metropolitan Authority, otherwise knownas the Subic Authority, shall
have the following powers and function: x x x x
(4) To construct, acquire, own, lease, operate and maintain on its own or
through contract, franchise, license permits bulk purchase from the private
sector and build-operate transfer scheme or joint-venture the required utilities
and infrastructure in coordination with local government units and appropriate
government agencies concerned and in conformity with existing applicable
laws therefor;
In the Senate, during the period of amendments, when the provision which
would eventually become the afore-quoted Section 13 b(4) of RA 7227 was
under consideration, the following exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the
provision to the effect that the Authoritywill have the following functions: "to
construct, acquire, own, etcetera," that is all right.
My motion is that we amend this particular line, starting from the word
"structures", by deleting the words that follow on line 31, which states: "in
coordination with local government unitsand", and substitute the following in
place of those words: "SUBJECT TO THE APPROVAL OF THE
SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN
COORDINATION WITH."
So, this paragraph will read, as follows: "to construct, own, lease, operate,
and maintain on its own or through contract, franchise, license permits, bulk
purchase from the private sector and build-operate-transfer scheme or joint
venture the required utilities and infrastructure SUBJECT TO THE
APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN coordination with appropriate government
agencies concerned and in conformity with existing applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the Authority. I would like to
remind our Colleagues that in the Board of Directors, the representatives of
the local government units that agree to join with the Subic Special Economic
Zone will be members of the Board so that they will have a say, Mr.
President. But if we say "subject," that is a very strong word. It really means
that they will be the ones to determine the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there,very categorical inthe promotion
and encouragement of local autonomy, and mandating Congress to enact
the necessary Local Government Code with emphasis on local autonomy.
We have now Section 27 of the new Local Government Code which actually
provides that for every projectin any local government territory, the
conformity or concurrence of the Sanggunian of every such local government
unit shall be secured in the form of resolution—the consent of the
Sanggunian.
The President. Well, both sides have already been heard. There is the Laurel
amendment that would make the power of the Subic Bay Metropolitan
Authority to construct, acquire, own, lease, operate and maintain on its own
or through contract, franchise, license, permits, bulk purchases from private
sector, buildoperate-and-transfer scheme, or joint venture, the required
utilities and infrastructure, subject to approval by the appropriate Sanggunian
of the local government concerned.
This amendment to the amendment has been rejected by the Sponsor. So,
we are voting now on this amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few Senators:
Aye.)
Those who are against the said amendment, say Nay. (Several Senators:
Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting.
The President. A nominal voting should beupon the request of one-fifth of the
Members of the House, but we can accommodate the Gentleman by asking
for a division of the House. Therefore, those in favor of the Laurel
amendment, please raise their right hands. (Few Senators raised their right
hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting. The
President. A nominal voting can be had only upon motion ofone-fifth of the
Members of the Body. Senator Laurel. That is correct, Mr. President. But this
issuch an important issue being presented to us, because this question is
related to the other important issue, which is: May an elected public official of
a particular government unit, such as a town or municipality, participate as a
member of the Board of Directors of this particular zone.
The President. The ruling of the Chair stands. The division of the House is
hereby directed.
As many as are infavor of the Laurel amendment, please raised (sic) their
right hands. (Few Senators raised their right hands.)
As many as are against the said amendment, please do likewise. (Several
Senators raised their right hands.)
The amendment is lost.226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts to engraft Section 27’s prior
approval of the concerned sanggunian requirement under the LGC into RA
7227. Hence, the clear intent was to do awaywith the approval requirement
of the concerned sangguniansrelative to the power ofthe SBMA to approve or
disapprove a project within the SSEZ.
The power to create the SSEZ is expressly recognized in Section 117 of the
LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous Special Economic Zones. —
The establishment by law of autonomous special economic zones in selected
areas of the country shall be subject to concurrence by the local government
units included therein.
When the concerned sanggunians opted to join the SSEZ, they were, thus,
fully aware that this would lead to some diminution of their local autonomy in
order to gain the benefits and privileges of being a part of the SSEZ.
Further, the point of Senator Shahani that the representation of the
concerned LGUs in the Board of Directors will compensate for the diminution
of their local autonomy and allow them to be represented in the decision-
making of the SBMA is not lost on us. This is expressly provided for in
Section 13(c) of RA 7227, viz:
SECTION 13. The Subic Bay Metropolitan Authority. —
xxxx
(c) Board of Directors. — The powers of the Subic Authority shall be vested
in and exercised by a Board of Directors, hereinafter referred to as the
Board, which shall be composed of fifteen (15) members, to wit:
(1) Representatives of the local government units that concur to join
the Subic Special Economic Zone;
(2) Two (2) representatives from the National Government;
(3) Five (5) representatives from the private sector coming from the
present naval stations, public works center, ship repair facility, naval
supply depot and naval air station; and
(4) The remaining balance to complete the Board shall be composed
of representatives from the business and investment sectors.
(Emphasis supplied)
SBMA’s undisputed claim is that, during the board meeting when the subject
project was approved, exceptfor one, all the representatives of the concerned
LGUs were present and voted to approve the subject project.227 Verily, the
wisdom of the law creating the SSEZ; the wisdom of the choice of the
concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of
representation of the concerned LGUs in the decision-making process of the
SBMA are matters outside the scope of the power of judicial review. We can
only interpret and apply the law as we find it.
In sum, we find that the implementation of the project is not subject to the
prior approval of the concerned sanggunians, under Section 27 of the LGC,
and the SBMA’s decision to approve the project prevails over the apparent
objections of the concerned sangguniansof the LGUs, by virtue ofthe clear
provisions of RA 7227. Thus, there was no infirmity when the LDA was
entered into between SBMA and RP Energy despite the lack of approval of
the concerned sanggunians. VII.
Whether the validity of the third amendment to the ECC can be resolved by
the Court.
The Casiño Group argues that the validity of the third amendment should
have been resolved by the appellate court because it is covered by the broad
issues set during the preliminary conference.
RP Energy counters that this issue cannot be resolved because it was
expressly excluded during the preliminary conference.
The appellate court sustained the position of RP Energy and ruled that this Yes, Your Honor.
issue was not included in the preliminary conference so that it cannot be
resolved without violating the right todue process of RP Energy. J. LEAGOGO:

We agree with the appellate court. Because it was 2 x 150 and then 1 x 300?

Indeed, the issue of the validity of the third amendment to the ECC was not ATTY. RIDON:
part of the issues set during the preliminary conference, as it appears at that
time that the application for the third amendment was still ongoing. The
Yes, Your Honor.
following clarificatory questions during the aforesaid conference confirm this,
viz.:
J. LEAGOGO:
J. LEAGOGO:
Up to that point?
So what are you questioning in your Petition?
ATTY. RIDON:
ATTY. RIDON:
Yes, Your Honor.
We are questioning the validity of the amendment, Your Honor.
J. LEAGOGO:
J. LEAGOGO:
Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear
enough for all of us.
Which amendment?
ATTY. RIDON:
ATTY. RIDON:
Yes, Your Honor.228
From 2 x 150 to 1 x 300, Your Honor.
Given the invocation of the right to due process by RP Energy, we must
J. LEAGOGO:
sustain the appellate court’s finding that the issue as to the validity of the
third amendment cannot be adjudicated in this case.
Your Petition does not involve the 2 x 300 which is still pending with the
DENR. Because you still have remedies there, you can make your noise Refutation of the Partial Dissent.
there, you can question it to your heart[’]s content because it is still pending
Justice Leonen partially dissents from the foregoing disposition on the
xxxx
following grounds:

J. LEAGOGO:
(a) Environmental cases, such asa petition for a writ of kalikasan,
should not, in general,be litigated viaa representative, citizen or class
Atty. Ridon, I go back to my question. We’re not yet talking of the legal points suit because of the danger of misrepresenting the interests— and
here. I’m just talking of what are you questioning. You are questioning the 1 x thus, barring future action due to res judicata— of those not actually
300? present in the prosecution of the case, either because they do not
yet exist, like the unborn generations, or because the parties bringing
ATTY. RIDON: suit do not accurately represent the interests ofthe group they
 represent or the class to which they belong. As an exception, such
representative, citizen or class suit may be allowed subject to certain
conditions; and
(b) The amendments to the ECC, granted by the DENR in favor of
RP Energy, are void for failure to submit a new EIS in support of the
applications for these amendments to the subject ECC, and a
petition for writ of kalikasanis not the proper remedy to raise a defect
inthe ECC.
We disagree.
A.
Justice Leonen’s proposition that environmental cases should not, in general,
be litigated via a representative, citizen or class suit is both novel and
ground-breaking. However, it isinappropriate to resolve such an important
issue in this case, in view of the requisites for the exercise of our power of
judicial review, because the matter was not raised by the parties so that the
issue was not squarely tackled and fully ventilated. The proposition will entail,
as Justice Leonen explains, an abandonment or, at least, a modification of
our ruling in the landmark case of Oposa v. Factoran.229 It will also require an
amendment or a modification of Section 5 (on citizen suits), Rule 2 ofthe
Rules of Procedure for Environmental Cases. Hence, it is more appropriate
to await a case where such issues and arguments are properly raisedby the
parties for the consideration of the Court.
B.
Justice Leonen reasons that the amendments to the subject ECC are void
because the applications therefor were unsupported by anEIS, as required
by PD 1151 and PD 1586. The claim is made that an EIS is required by law,
even if the amendment to the ECC is minor, because an EIS is necessary to
determine the environmental impact of the proposed modifications to the
original project design. The DENR rules, therefore, which permit the
modification of the original project design without the requisite EIS, are void
for violating PD 1151 and PD 1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in
every action, project or undertaking that significantly affects the quality of the
environment, viz:
SECTION 4. Environmental Impact Statements. — Pursuant to the above
enunciated policies and goals, all agencies and instrumentalities of the
national government, including government-owned or -controlled
corporations, as well as private corporations, firms and entities shall prepare,
file and include in every action, projector undertaking which significantly
affects the quality of the environmenta detailed statement on —
(a) the environmental impact of the proposed action, project or
undertaking;
(b) any adverse environmental effect which cannot be avoided
should the proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement
of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or
nonrenewable resources, a finding must be made that such use and
commitment are warranted.
Before an environmental impact statement is issued by a lead agency, all
agencies having jurisdiction over, or special expertise on, the subject matter
involved shall comment on the draft environmental impact statement made
by the lead agency within thirty (30) days from receipt of the same.
(Emphasis supplied)
As earlier stated, the EIS was subsequently developed and strengthened
through PD 1586 which established the Philippine Environmental Impact
Statement System. Sections 4 and 5 of PD 1586 provide:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
Projects.1avvphi1 The President of the Philippines may, on his own initiative
or upon recommendation of the National Environmental Protection Council,
by proclamation declare certain projects, undertakings or areas in the country
as environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or
area without first securing an Environmental Compliance Certificate issued
by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his
proclamation reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a)
prepare the proper land or water use pattern for said critical project(s) or
area(s); (b) establish ambient environmental quality standards; (c) develop a
program of environmental enhancement or protective measures against
calamituous factors such as earthquake, floods, water erosion and others,
and (d) perform such other functions as may be directed by the President
from time to time.
SECTION 5. Environmentally Non-Critical Projects. — All other projects,
undertakings and areas not declared by the President as environmentally
critical shall be considered as non-critical and shall not be required to submit
an environmental impact statement. The National Environmental Protection
Council, thru the Ministry of Human Settlements may however require non-
critical projects and undertakings to provide additional environmental
safeguards as it may deem necessary. (Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised
Manual.
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146
was subsequently issued which, among others, classified fossil-fueled power
plants as environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances,
the subject project, a coal power plant, was classified by the DENR as an
environmentally critical project, new and single. Hence, RP Energy was
required to submit an EIS in support of its application for an ECC. RP Energy
thereafter complied with the EIS requirement and the DENR, after review,
evaluation and compliance with the other steps provided in its rules, issued
an ECC in favor of RP Energy. As can be seen, the EIS requirement was
duly complied with.
Anent Justice Leonen’s argument thatthe subsequent amendments to the
ECC were void for failure to prepare and submit a new EIS relative to these
amendments, it is important to note thatPD 1586 does not state the
procedure to be followed when there is an application for an amendment to a
previously issued ECC. There is nothing in PD 1586 which expressly
requires an EIS for an amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing for
amendments to the ECC was challenged by the Casiño Group on the ground
that it is ultra vires before the appellate court. It argued that the laws
governing the ECC do not expressly permit the amendment of an ECC.
However, the appellate court correctly ruled that the validity of the rules
cannot be collaterally attacked. Besides,the power of the DENR to issue
rules on amendments of an ECC is sanctioned under the doctrine of
necessary implication. Considering that the greater power todeny or grant an
ECC is vested by law in the President or his authorized representative, the
DENR, there is no obstacle to the exercise of the lesser or implied power to
amend the ECC for justifiable reasons. This issue was no longer raised
before this Court and, thus, we no longertackle the same here.
Because PD 1586 did not expressly provide the procedure to be followed in
case of an application for an amendment toa previously issued ECC, the
DENR exercised its discretion, pursuant to its delegated authority to
implement this law, in issuing DAO 2003-30 and the Revised Manual.
Justice Leonen’s argument effectively challenges the validity of the
provisions in DAO 2003-30 and the Revised Manual relative to amendments
to an ECC for being contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS
for an amendment to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack
on the validity of DAO 2003-30 and the Revised Manual, which is not allowed
under the premises. The Casiño Group itself has abandoned this claim
before this Court so that the issue is not properly before this Court for its
resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and
the Revised Manual can be allowed in this case, the rules on amendments
appear to be reasonable, absent a showing of grave abuse of discretion or
patent illegality.
Essentially, the rules take into consideration the nature of the amendment in
determining the proper Environmental Impact Assessment (EIA) document
type that the project proponent will submit in support of its application for an
amendment to its previously issued ECC. A minor amendment will require a
less detailed EIA document type, like a Project Description Report (PDR),
while a major amendment will require a more detailed EIA document type,
like an Environmental Performance Report and Management Plan (EPRMP)
or even an EIS.230
The rules appear to be based on the premise that it would be unduly burden
some or impractical to require a project proponent to submit a detailed EIA
document type, like an EIS, for amendments that, upon preliminary
evaluation by the DENR, will not cause significant environmental impact. In
particular, as applied to the subject project, the DENR effectively determined
that it is impractical to requireRP Energy to, in a manner of speaking, start
from scratch by submitting a new EIS in support of its application for the first
amendment to its previously issued ECC, considering that the existing EIS
may be supplemented by an EPRMP to adequately evaluate the
environmental impact of the proposed modifications under the first
amendment. The same reasoning may be applied to the PDR relative to the
second amendment. As previously discussed, the Casiño Group failed to
provethat the EPRMP and PDR were inadequate to assess the
environmental impact of the planned modifications under the first and second
amendments, respectively. On the contrary, the EPRMP and PDR appeared
to contain the details of the planned modifications and the corresponding
adjustments to bemade in the environmental management plan or mitigating
measures inorder to address the potential impacts of these planned
modifications. Hence, absent sufficient proof, there is no basis to conclude
that the procedure adopted by the DENR was done with grave abuse of
discretion.
Justice Leonen’s proposition would effectively impose a stringent
requirement of an EIS for each and every proposed amendment to an ECC,
no matter how minor the amendment may be. While this requirement would
seem ideal, in order to ensure that the environmental impact of the proposed
amendment is fully taken into consideration, the pertinent laws do not,
however, expressly require that such a procedure be followed.As already
discussed, the DENR appear to have reasonably issued DAO 2003-30 and
the Revised Manualrelative to the amendment process of an ECC, by
balancing practicality vis-à-vis the need for sufficient information in
determining the environmental impact of the proposed amendment to an
ECC. In fine, the Court cannot invalidate the rules which appear to be
reasonable, absent a showing of grave abuse of discretion or patent illegality.
We next tackle Justice Leonen’s argument that a petition for certiorari,and
not a writ of kalikasan,is the proper remedy to question a defect in an ECC.
In general, the proper procedure to question a defectin an ECC is to follow
the appeal process provided in DAO 2003-30 and the Revised Manual. After
complying with the proper administrative appeal process, recourse may be
made to the courts in accordance with the doctrine of exhaustion of
administrative remedies. However, as earlier discussed, in exceptional
cases, a writ of kalikasan may be availed of to challenge defects in the ECC
providedthat (1) the defects are causally linked or reasonably connected to
an environmental damage of the nature and magnitudecontemplated under
the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls
under an exception to, the doctrine of exhaustion of administrative remedies
and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect
to the lack of an EIA relative to the first and second amendments to the
subject ECC may be reasonably connected to such an environmental
damage. Further, given the extreme urgency of resolving the issue due to the
looming power crisis, this case may be considered as falling under an
exception to the doctrine of exhaustion of administrative remedies. Thus, the
aforesaid issue may be conceivably resolved in a writ of kalikasan case.
More importantly, we have expressly ruled that this case is an exceptional
case due to the looming power crisis, so that the rules of procedure may be
suspended in order to address issues which, ordinarily, the Court would not
consider proper in a writ of kalikasan case. Hence, all issues, including those
not proper in a writ of kalikasan case, were resolved here in order to forestall
another round of protracted litigation relative to the implementation of the
subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casiño Group failed to
substantiate its claims thatthe construction and operation of the
power plant will cause environmental damage of the magnitude
contemplated under the writ of kalikasan. On the other hand, RP
Energy presented evidenceto establish that the subject project will
not cause grave environmental damage, through its Environmental
Management Plan, which will ensure thatthe project will operate
within the limits of existing environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the
ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of
Accountability relative to the copy of the ECC submitted by RP
Energy to the appellate court. While the signature is necessary for
the validity of the ECC, the particular circumstances of this case
show that the DENR and RP Energy were not properly apprised of
the issue of lack of signature in order for them to present
controverting evidence and arguments on this point, as the issue
only arose during the course of the proceedings upon clarificatory
questions from the appellate court. Consequently, RP Energy cannot
be faulted for submitting the certified true copy of the ECC only after
it learned that the ECC had been invalidatedon the ground of lack of
signature in the January 30, 2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr.
Aboitiz in the Statement of Accountability portion, was issued by the
DENR-EMB, and remains uncontroverted. It showed that the
Statement of Accountability was signed by Mr. Aboitiz on December
24, 2008. Because the signing was done after the official release of
the ECC on December 22, 2008, wenote that the DENR did not
strictly follow its rules, which require that the signing of the Statement
of Accountability should be done before the official release of the
ECC. However, considering that the issue was not adequately
argued norwas evidence presented before the appellate court on the
circumstances at the time of signing, there is insufficient basis to
conclude that the procedure adoptedby the DENR was tainted with
bad faith or inexcusable negligence. We remind the DENR, however,
to be more circumspect in following its rules. Thus, we rule that the
signature requirement was substantially complied with pro hac vice.
3. The appellate court erred when it ruled that the first and second
amendments to the ECC were invalid for failure to comply with a new
EIA and for violating DAO 2003-30 and the Revised Manual. It failed
to properly consider the applicable provisions in DAO 2003-30 and
the Revised Manual for amendment to ECCs. Our own examination
of the provisions on amendments to ECCs in DAO 2003-30 and the
Revised Manual, as wellas the EPRMP and PDR themselves, shows
that the DENR reasonably exercised its discretion in requiring an
EPRMP and a PDR for the first and second amendments,
respectively. Through these documents, which the DENR reviewed,
a new EIA was conducted relative to the proposed project
modifications. Hence, absent sufficient showing of grave abuse of
discretion or patent illegality, relative to both the procedure and
substance of the amendment process, we uphold the validity of
these amendments;
4. The appellate court erred when it invalidated the ECC for failure to
comply with Section 59 of the IPRA Law.1âwphi1 The ECC is not the
license or permit contemplated under Section 59 of the IPRA Law
and its implementing rules. Hence, there is no necessity to secure
the CNO under Section 59 before an ECC may be issued, and the
issuance of the subject ECC without first securing the aforesaid
certification does not render it invalid;
5. The appellate court erred when it invalidated the LDA between
SBMA and RP Energy for failure to comply withSection 59 of the
IPRA Law. While we find that a CNO should have been secured prior
to the consummation of the LDA between SBMA and RP Energy,
considering that this is the first time we lay down the rule of action
appropriate to the application of Section 59, we refrain from
invalidating the LDA for reasons of equity;
6. The appellate court erred when it ruled that compliance with
Section 27, in relation to Section 26, of the LGC (i.e., approval of the
concerned sanggunian requirement) is necessary prior to issuance
of the subjectECC. The issuance of an ECC does not, by itself, result
inthe implementation of the project. Hence, there is no necessity to
secure prior compliance with the approval of the concerned
sanggunian requirement, and the issuance of the subject ECC
without first complying with the aforesaid requirement does not
render it invalid. The appellate court also erred when it ruled that
compliance with the aforesaid requirement is necessary prior to the
consummation of the LDA. By virtue of the clear provisions of RA
7227, the project is not subject to the aforesaid requirement and the
SBMA’s decision to approve the project prevails over the apparent
objections of the concerned sanggunians. Thus, the LDA entered
into between SBMA and RP Energy suffers from no infirmity despite
the lack of approval of the concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity
of the third amendment to the ECC cannot be resolved in this case
because it was not one of the issues set during the preliminary
conference, and would, thus, violate RP Energy’s right to due
process. WHEREFORE, the Court resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and
207276:
2.1. The January 30, 2013 Decision and May 22,
2013 Resolution of the Court of Appeals in CA-G.R.
SP No. 00015 are reversed and set aside;
2.2. The Petition for Writ of Kalikasan, docketed as
CA-G.R. SP No. 00015, is denied for insufficiency of
evidence;
2.3. The validity of the December 22, 2008
Environmental Compliance Certificate, as well as the
July 8, 2010 first amendment and the May 26, 2011
second amendment thereto, issued by the
Department of Environment and Natural Resources
 in favor of Redondo Peninsula Energy, Inc., are FRANCIS H. JARDELEZA**
upheld; and Associate Justice

2.4. The validity of the June 8, 2010 Lease and CERTIFICATION

Development Agreement between Subic Bay
Metropolitan Authority and Redondo Peninsula I certify that the conclusions in the above Decision had been reached in
Energy, Inc. is upheld. consultation before the case was assigned to the writer ofth'e opinion of the
Court.
SO ORDERED.
MARIA LOURDES P.A. SERENO
MARIANO C. DEL CASTILLO Chief Justice
Associate Justice

WE CONCUR:
FIRST DIVISION
MARIA LOURDES P.A. SERENO
Chief Justice G.R. No. 205039, October 21, 2015

SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE MARGARET

ANTONIO T. CARPIO
PRESBITERO J. VELASCO,
Associate Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
ESTELA M. PERLAS-
BERNABE
Associate Justice
(Please see Concurring SANTIAGO, Petitioners, v.RAFFY TULFO, BEN TULFO, AND ERWIN
Opinion) TULFO, Respondents.
JR. DECISION
Associate Justice
PERLAS-BERNABE, J.:
(On leave)
ARTURO D. BRION* Assailed in this petition for review on certiorari1 are the Resolutions dated
Associate Justice August 6, 20122 and January 7, 20133 of the Regional Trial Court of Quezon
City4 (RTC) in SP No. Q-12-71275, which (a) dismissed the petition for writ
of amparo filed by petitioners-spouses Rozelle Raymond Martin "Raymart"
LUCAS P. BERSAMIN (Raymart) and Claudine Margaret Santiago (Claudine; collectively, petitioners)
Associate Justice and (b) dissolved the temporary protection order (TPO) previously issued
therein.
The Facts
Associate Justice
At around 11:40 in the morning of May 6, 2012, petitioners arrived at the
BIENVENIDO L. REYES Ninoy Aquino International Airport Terminal 3 (NAIA 3) aboard a Cebu Pacific
Associate Justice Airline flight from a vacation with their family and friends. They waited for the
arrival of their baggage but were eventually informed that it was offloaded and
transferred to a different flight. Aggrieved, petitioners lodged a complaint
before the Cebu Pacific complaint desk. As they were complaining, they noticed
MARVIC M.V.F. LEONEN a man taking photos of Claudine with his cellular phone. Ray mart approached
Associate Justice the man and asked what he was doing. Suddenly, the man, later identified as
Ramon "Mon" Tulfo (Mon), allegedly punched and kicked Raymart, forcing the
latter to fight back. When Claudine saw the commotion, she approached Mon
and the latter likewise allegedly kicked and pushed her back against the
counter. At that instance, Raymart rushed to defend his wife, while one
Edoardo Benjamin Atilano (Atilano) joined in the brawl. Immediately
thereafter, several airport security personnel came to stop the altercation and
brought them to the Airport Police Department for investigation.5
Days after the incident, respondents Raffy, Ben, and Erwin Tulfo
(respondents), brothers of Mon, aired on their TV program comments and
expletives against petitioners, and threatened that they will retaliate.6Terrified
by the gravity of the threats hurled, petitioners filed a petition for the issuance
of a writ of amparo against respondents on May 11, 2012 before the RTC.7
On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny
Issuance of Protection Order and/or Dismissal of the Petition Motu
Proprio8 (May 23, 2012 Motion) which was opposed by petitioners for being a
prohibited pleading.9
On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas) issued a
Resolution10 granting a TPO in favor of petitioners and directed respondents to
file their return/answer.11
In his return/answer,12 Ben Tulfo claimed that the statements he uttered did
not involve any actual threat and that he merely expressed his strong
sentiments to defend his brother.13
On June 29, 2012, Judge Vargas submitted the case for resolution but
eventually retired on July 11, 2012. Consequently, Judge Maria Filomena Singh
(Judge Singh) was designated as the Acting Presiding Judge who assumed
office and handled the present case.14
The RTC Ruling
In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh,
dismissed the petition and ordered the dissolution of the TPO.16 It held that the
petition is not a proper subject of a writ of amparosince the rules were
intended to apply solely to cases of extralegal killings and enforced
disappearances, noting that the purpose of the law is to, among others,
ascertain the whereabouts of an aggrieved party, recover evidence related to
the death or disappearance of the person identified in the petition, and
determine the facts surrounding the death or disappearance of a missing
person. Consequently, it held that it did not have the authority to issue said
writ in favor of petitioners. In this relation, it explained that while it is true that
the May 23, 2012 Motion was a motion to dismiss and as such, a prohibited
pleading under the rules, it still had the discretion to dismiss the case when in
its own determination the case is not covered by the same rule. It expressed
that the prohibition against motions to dismiss was meant to expedite the
proceedings; thus, in line with the same objective, it has the primary duty to
so declare if it cannot grant the remedy at the outset so as not to waste the
time and resources of the litigants and the courts, both in a moot and
academic exercise.17
Petitioners filed a motion for reconsideration, which was, however, denied for
18
lack of merit in a Resolution19 dated January 7, 2013; hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not the RTC's dismissal of
petitioners' amparo petition was correct.
Petitioners argue that the issuance of a writ of amparo is not limited to cases of
extrajudicial killings, enforced disappearances, or threats thereof.20 They
submit that they need not undergo the human rights abuses such as
extrajudicial killings or enforced disappearances, as is common to landmark
decisions on military and police abuses, before their right to life, liberty, and
security may be protected by a writ ofamparo.21 Further, they insist that the
May 23, 2012 Motion was a prohibited pleading and, hence, should not have
been allowed.22
The Court's Ruling
The petition is bereft of merit.
In the landmark case of Secretary of National Defense v. Manalo
(Manalo),23 the Court has already explained that the writ of amparo, under its
present procedural formulation, namely, A.M. No. 07-9-12-SC,24 otherwise
known as "The Rule on the Writ of Amparo," was intended to address and,
thus, is presently confined to cases involving extralegal killings and/or enforced
disappearances, or threats thereof:
As the Amparo Rule was intended to address the intractable problem
of "extralegal killings" and "enforced disappearances," its coverage, in
its present form, is confined to these two instances or to threats
thereof, x x x. (Emphasis and underscoring supplied) ChanRoble sVirtualawl i brary
Indeed, while amparo (which literally means "protection" in Spanish) has been
regarded as a special remedy provided for the enforcement of constitutional
rights, the parameters of protection are not the same in every jurisdiction.
In Manalo, the origins of amparo were discussed as follows:
The writ of amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish. In 1837, de Tocqueville's Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial
review in the U.S. appealed to many Mexican jurists. One of them, Manuel
Crescencio Rejon, drafted a constitutional provision for his native state,
Yucatan, which granted judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This idea was incorporated
into the national constitution in 1847, viz:
chanRob lesvi rtua lLawl ibra ry
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and Executive
powers of the federal or state governments, limiting themselves to granting
protection in the specific case in litigation, making no general declaration
concerning the statute or regulation that motivated the violation. ChanRobles Vi rtua lawlib rary
Since then, the protection has been an important part of Mexican
constitutionalism. If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to restore
the petitioner to the full enjoyment of the right in question. Amparo thus
combines the principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them from using this power
to make law for the entire nation.
The writ of amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each
country. It became, in the words of a justice of the Mexican Federal Supreme
Court, one piece of Mexico's self-attributed "task of conveying to the world's
legal heritage that institution which, as a shield of human dignity, her own
painful history conceived." What began as a protection against acts or
omissions of public authorities in violation of constitutional rights later evolved
for several purposes: (1) amparo libertad for the protection of personal
freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the
judicial review of the constitutionality of statutes; (3) amparo casacion for the
judicial review of the constitutionality and legality of a judicial decision;
(4) amparo administrativo for the judicial review of administrative actions; and
(5) amparo agrario for the protection of peasants" rights derived from the
agrarian reform process.
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights. Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ
of amparo only to some constitutional guarantees or fundamental rights.26
In our jurisdiction, the contextual genesis, at least, for the
present Amparo Rule has limited the remedy as a response to extrajudicial
killings and enforced disappearances, or threats thereof. "Extrajudicial
killings," according to case law, are generally characterized as "killings
committed without due process of law, i.e., without legal safeguards or judicial
proceedings,"27 while "enforced disappearances," according to Section 3 (g)
of Republic Act No. 9851,28 otherwise known as the "Philippine Act on Crimes
Against International Humanitarian Law, Genocide, and Other Crimes Against
Humanity," "means the arrest, detention, or abduction of persons by, or with
the authorization, support or acquiescence of, a State or a political organization
followed by a refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time."
In Navia v. Pardico,29 the Court held that it must be shown and proved by
substantial evidence that the disappearance was carried out by, or with the
authorization, support or acquiescence of, the State or a political organization,
followed by a refusal to acknowledge the same or give information on the fate
or whereabouts of said missing persons, with the intention of removing them
from the protection of the law for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of proving by substantial evidence
the indispensable element of government participation.30 Notably, the same
requirement of government participation should also apply to extralegal
killings, considering that the writ of amparo was, according to then Chief
Justice Reynato S. Puno, who headed the Committee on the Revision of the
Rules of Court that drafted A.M. No. 07-9-12-SC, intended to "hold public
authorities, those who took their oath to defend the constitution and enforce
our laws, to a high standard of official conduct and hold them accountable to
our people. [In this light] [t]he sovereign Filipino people should be assured
that if their right[s] to life and liberty are threatened or violated, they will find
vindication in our courts of justice."31 Stated differently, the writ of amparo is
an extraordinary remedy that is meant to balance out the government's
incredible power in order to curtail human rights abuses on its end.
Consistent therewith, the delimitation of our current writ of amparo to
extralegal killings and/or enforced disappearances, or threats thereof, is
explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:
Section 1. Petition. - The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's first
paragraph, does state that the writ is a remedy to protect the right to life,
liberty, and security of the person desiring to avail of it, the same section's
second paragraph qualifies that the protection of such rights specifically pertain
to extralegal killings and enforced disappearances or threats thereof, which are
more concrete cases that involve protection to the rights to life, liberty and
security. The two paragraphs should indeed be read together in order to
construe the meaning of the provision. Clearly applicable is the statutory
construction rule that "clauses and phrases must not be taken as detached and
isolated expressions, but the whole and every part thereof must be considered
in fixing the meaning of any of its parts in order to produce a harmonious
whole. Every part of the statute [or, in this case, procedural rule] must be
interpreted with reference to the context, i.e., that every part of the statute
must be considered together with other parts of the statute and kept
subservient to the general intent of the whole enactment."32
In this case, it is undisputed that petitioners' amparo petition before the RTC
does not allege any case of extrajudicial killing and/or enforced disappearance,
or any threats thereof, in the senses above-described. Their petition is merely
anchored on a broad invocation of respondents' purported violation of their
right to life and security, carried out by private individuals without any showing
of direct or indirect government participation. Thus, it is apparent that
their amparo petition falls outside the purview of A.M. No. 07-9-12-SC and,
perforce, must fail. Hence, the RTC, through Judge Singh, properly exercised
its discretion to motu proprio dismiss the same under this principal
determination, regardless of the filing of the May 23, 2012 Motion. The court,
indeed, has the discretion to determine whether or not it has the authority to
grant the relief in the first place. And when it is already apparent that the
petition falls beyond the purview of the rule, it has the duty to dismiss the
petition so as not to prejudice any of the parties through prolonged but futile
litigation.
WHEREFORE, the petition is DENIED. The petition for writ of amparo filed by
petitioners-spouses Rozelle Raymond Martin and Claudine Margaret Santiago
before the Regional Trial Court of Quezon City, docketed as SP No. Q-12-
71275, is hereby DISMISSED.
SO ORDERED. chanroblesvi rtua llawli bra ry
Sereno, C.J., (Chairperson), Velasco, Jr.,* Leonardo-De Castro, and Bersamin,
JJ., concur.
SECOND DIVISION
G.R. No. 187464, November 25, 2015
CABIB ALONTO TANOG, Petitioner, v. HON. RASAD G. BALINDONG,
Acting Presiding Judge, Regional Trial Court, Branch 8, 12th Judicial
Region, MARAWI CITY, AND GAPO SIDIC, Respondent.
DECISION
BRION, J.:
This is a petition for certiorari1 filed by petitioner Cabib Alonto Tanog (Cabib)
assailing the orders dated February 11, 2009; February 13, 2009; and March
2, 2009, respectively, issued by respondent Hon. Rasad G. Balindong (Judge
Balindong), then Acting Presiding Judge of the Regional Trial Court (RTC),
Branch 8, Marawi City, in Criminal Case No. 4471-04.
The Antecedents:
On July 5, 2004, Cabib Tanog, Jr. was shot to death by a group of armed
persons inside the canteen of Dansalan College Foundation, Inc. in Marawi
City, Lanao del Sur.
On the same day, members of the Marawi City police apprehended Gapo Sidic
(Sidic) at a police checkpoint while he was on board a Tamaraw FX vehicle
bound for Iligan City.
On July 8, 2004, the petitioner filed a complaint for murder before the Office of
the City Prosecutor in Marawi City against Sidic, Anwar Bonsalagan, Papas
Balindong, Nago Balindong, and Arsad Balindong for the death of his son,
Cabib, Jr.
In its resolution dated August 3, 2004, the Office of the City Prosecutor found
probable cause to indict the five (5) accused, and recommended the filing of an
information2 for murder against them.
The prosecution filed an Information for murder before the Regional Trial Court
of Marawi City against the accused, docketed as Criminal Case No. 447i_04.
This case was raffled to Branch 9, which was presided by Judge Amer Ibrahim.
Thereafter, Judge Ibrahim issued an "order of arrest" against the accused.
On January 8, 2005, Sidic filed a motion to fix bail before the RTC, claiming
that the evidence of guilt against him was not strong.3 After the prosecution
presented four witnesses, the RTC, Branch 9: (a) considered the presentation
of evidence by the prosecution for the purposes of the motion to fix bail
deemed terminated; and (b) set the presentation of Sidic's counter evidence
on May 21, 2008.
Due to the death of Judge Ibrahim, Judge Lacsaman Busran of the RTC, Branch
11, Marawi City, was designated as Acting Presiding Judge of Branch 9. The
records of Criminal Case No. 4471-04 was re-raffled to Branch 10 because
Judge Busran had been previously designated as its Acting Presiding Judge.
On February 4, 2009, Sidic filed an urgent ex-parte motion to direct special
raffle before the RTC, Branch 10 since he had been in detention for more than
four years, and Branch 10 was already overburdened with numerous cases.
In its Order of February 4, 2009, Judge Busran granted Sidic's motion to direct
a special raffle, and directed his Branch Clerk of Court to forward the records of
Criminal Case No. 4471-04 to the Office of the Clerk of Court (OCC).
On the next day, the OCC transmitted the records of Criminal Case No. 4471-
04 to RTC, Branch 8, presided by respondent Judge Balindong.
In its order dated February 11, 2009,4 the RTC, Branch 8 granted Sidic's
motion to fix bail, and fixed the amount at P30,000.00. It essentially held that
evidence of guilt against Sidic was not strong since the witnesses presented by
the prosecution did not actually see the victim shot.
In its order5 of February 13, 2009, the RTC, Branch 8 directed the City Warden
to release Sidic after the latter had posted the P30,000.00 cash bond.
The prosecution filed an omnibus motion for reconsideration to cancel bond
posted for the provisional liberty of the accused and for inhibition6 before the
RTC, Branch 8.
In his order7 dated March 2, 2009, Judge Balindong held that "[t]he motion to
fix bail was resolved justly and fairly in accordance with the law, rules and
jurisprudence."8 He, however, opted to inhibit himself "from further taking
action on the other incidents"9 of the case out of "delicadeza." The dispositive
portion of this order provides:
chanRoble svirtual Lawlib ra ry
WHEREFORE, the undersigned Acting Presiding Judge is inhibiting himself from
trying and deciding the case of accused Gapo Sidic. The rest of the accused are
at large, hence, the most that the next Judge/Acting Judge can do is to archive
the case insofar as they are concerned and issue alias Warrant of Arrest.
Let the record in its entirety be forwarded to the Office of the Clerk of Court for
appropriate action considering that it cannot be re-raffled to RTC Branch 9 as
the latter sala is presided by Judge Lacsaman M. Busran of RTC Branch 10 who
earlier inhibited himself from trying this case.
SO ORDERED.10
cralawlawl ibra ry
ChanRoblesVi rtua lawlib rary
The Petition for Certiorari
In the present petition, the petitioner alleged that Judge Balindong committed
grave abuse of discretion amounting to lack or excess of jurisdiction when he
granted Sidic's motion to fix bail despite the strong evidence of guilt against
him, and in fixing the amount of bail at only P30,000.00. He maintained that
Judge Balindong should have inhibited himself from taking part in Criminal
Case No. 4471-04 since the latter is related to the accused within the
prohibited degree under Rule 137 of the Rules of Court.
OUR RULING
After due consideration, we resolve to DISMISS the petition.
The case is already moot
A case is said to be moot or academic when it ceases to present a justiciable
controversy by virtue of supervening events, so that a ruling would be of no
practical use or value. Courts generally decline jurisdiction over moot cases
because there is no substantial relief to which petitioner would be entitled and
which would anyway be negated by the dismissal of the petition.11
In Republic Telecommunications Holdings, Inc. v. Santiago,12 we held that:
The rule is well-settled that for a court to exercise its power of adjudication,
there must be an actual case or controversy—one which involves a conflict of
legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extralegal or
other similar considerations not cognizable by a court of justice. Where the
issue has become moot and academic, there is no justiciable controversy, and
an adjudication thereon would be of no practical use or value as courts do not
sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging.
c ralawlawl ibra ry
The events which took place during the pendency of the present case have
rendered the present petition for certiorari moot. The record shows that during
the pendency of this petition, the RTC, Branch 28, Catbalogan City, presided by
Judge Sibanah E. Usman,13 rendered a decision on January 20, 2015, in
Criminal Case No. 4471-04 finding Sidic guilty beyond reasonable doubt of the
crime of murder, and sentenced him to suffer the penalty of reclusion
perpetua. The decision became final and executory on March 26, 2015.
We recall that the present petition questioned Judge Balindong's orders
granting the motion to fix bail filed by Sidic and setting the amount of bail at
only P30,000.00. Sidic was charged with a capital offense, and his conviction
clearly imports that the evidence of guilt against him of the offense charged
was strong. Thus, whatever judgment is reached in this case would no longer
have any practical legal effect or, in the nature of things, can no longer be
enforced. Simply put, the petitioner's conviction of a capital offense, which
had already attained finality,14 warranted his incarceration. Any resolution
on the propriety of Judge Balindong's challenged orders relating to Sidic's
provisional release would be of no useful or practical value.
The petitioner failed to observe the doctrine of judicial hierarchy.
We also point out that the present petition for certiorari should have been filed
with the Court of Appeals (CA) and not with this Court pursuant to the doctrine
of hierarchy of courts. Although this Court, the CA, and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition,mandamus, quo warranto, habeas corpus, and injunction, the
commonality does not give the petitioner unrestricted freedom of
choice in the forum to be used.15 The appropriate forum is the court lowest
in the judicial hierarchy.
The rationale for this rule is two-fold: (a) it would be an imposition upon the
precious time of this Court; and (b) it would cause an inevitable and resultant
delay, intended or otherwise, in the adjudication of cases that some of these
cases may have to be remanded or referred to the lower court as the proper
forum under the rules of procedure, or because these courts are better
equipped to resolve the issues given that this Court is not a trier of facts.16
In Dy v. Bibat-Palamos,17 the Court recognized various exceptions to the strict
application of the principle of hierarchy of courts, as follows:
chanRoble svirtual Lawlib ra ry
chanRoblesv irtual Lawlib rary
xxx, the invocation of this Court's original jurisdiction to issue writs
of certiorari has been allowed in certain instances on the ground of special and
important reasons clearly stated in the petition, such as, (1) when dictated by
the public welfare and the advancement of public policy; (2) when demanded
by the broader interest of justice; (3) when the challenged orders were patent
nullities; or (4) when analogous exceptional and compelling circumstances
called for and justified the immediate and direct handling of the case. cralawlawlibra ry
Thus, this Court, as a rule, will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts, and exceptional
and compelling circumstances (such as cases of national interest and of serious
implications) justify the use of the extraordinary remedy of certiorari, calling
for the exercise of its primary jurisdiction.18 Exceptional and compelling
circumstances were held present in the following cases: (a) Chavez v.
Romulo on citizens' right to bear arms; (b) Government of the United States of
America v. Purganan on bail in extradition proceedings; (c) Commission on
Elections v. Quijano-Padilla on government contract involving modernization
and computerization of voters' registration list; (d) Buklod ng Kawaning EIIB v.
Zamora on status and existence of a public office; and (e) Fortich v. Corona on
the so-called "Win-Win Resolution" of the Office of the President which
modified the approval of the conversion to agro-industrial area.19
In the present case, the petitioner failed to offer any explanation on why he
failed to comply with the principle of judicial hierarchy; he gave no justification
why he did not challenge the assailed RTC orders before the CA. We thus
reaffirm the judicial policy that this Court will not entertain a direct invocation
of its jurisdiction unless the redress desired cannot be obtained in the
appropriate courts below, and exceptional and compelling circumstances justify
the resort to this Court through the extraordinary remedy of writ
of certiorari.20 We reiterate that a petition for certiorari is an extraordinary
remedy and the party who seeks to avail of this remedy must strictly observe
the procedural rules laid down by law and the rules.
The grave abuse of discretion issue
Even if we decide the case on the merits, we still dismiss the present petition
for its failure to establish that the assailed orders of Judge Balindong were
tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.
a. The grant of the motion to fix bail
The right to bail flows from the right to be presumed innocent. It is accorded to
a person in the custody of the law who may be allowed provisional liberty upon
filing of a security to guarantee his appearance before any court, as required
under specified conditions. Before conviction, bail is either a matter of right or
of discretion. It is a matter of right when the offense charged is punishable by
any penalty lower than reclusion perpetua. If the offense charged is punishable
by reclusion perpetua, bail becomes a matter of discretion. Bail is denied if the
evidence of guilt is strong. The court's discretion is limited to determining
whether or not evidence of guilt is strong.21
Corollarily, Article 114, Section 7 of the Revised Rules of Criminal Procedure,
as amended, states that no person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment when the
evidence of guilt is strong, shall be admitted to bail regardless of the stage of
the criminal prosecution.
We point out that the accused were charged of murder, a crime punishable
by reclusion perpetua to death. If the information charges a capital offense,
the right to bail becomes a matter of discretion and the grant thereof may be
justified as a matter of right if the evidence of guilt is not strong. The
determination of whether or not the evidence of guilt is strong, being a matter
of judicial discretion, remains with the judge.
To be sure, the discretion of the trial court is not absolute nor beyond control.
It must be sound, and exercised within reasonable bounds. Judicial discretion,
by its very nature involves the exercise of the judge's individual opinion and
the law has wisely provided that its exercise be guided by well-known rules
that, while allowing the judge rational latitude for the operation of his own
individual views, prevent rulings that are out of control.22
In the present case, we find that Judge Balindong did not act in a whimsical,
arbitrary, and capricious manner when he granted Sidic's motion to fix bail.
The records showed that a hearing on the application for bail was conducted
and that the prosecution presented four witnesses, namely Noma Tanog, Cabib
Tanog, Sr., Saripada Tanog, and Saripoden Tanog Lucman. Judge Balindong
evaluated the testimonies of these witnesses, and found out that none of them
witnessed the actual shooting of the victim: Noma merely saw Sidic running
towards the direction of the vehicles after he (Noma) went to Dansalan College
Foundation, Inc. to verify the gunshots he heard; Saripada admitted that he
did not see Sidic shoot the victim; Cabib admitted that it was Noma who
pointed Sidic to him as one of the victim's assailants; and Saripoden merely
described the attire of one of the men he saw at the canteen, and did not
mention the name of Sidic. On the basis of these testimonies, Judge Balindong
concluded that the prosecution failed to show that the evidence against Sidic
was strong.
We additionally examined the affidavits of Cabib and Noma,23 and found that
these documents supported the findings of Judge Balindong.
In his affidavit, Cabib stated that he was informed of the death of his son by
Adil Dima;24 and that it was Noma who told him the identities of five of the
assailants. For his part, Noma stated in his.affidavit that he saw Sidic as one of
the persons who ran towards a maroon Tamaraw FX (bearing plate number
ATF 754) and a blue Toyota Corona (without any plate number) after the
shooting. He (Noma) mentioned, however, that the Tamaraw FX the police
flagged down was colored red.25 cralaw red
In the light of the testimonies and affidavits of the witnesses, we cannot fault
Judge Balindong if he had ruled that the evidence of guilt against the accused
was not strong.
That the RTC eventually convicted Sidic is of no moment, since the trial judge,
in determining the weight of evidence for the purposes of bail, did not sit to try
the merits of the case.
b. Amount of bail
Contrary to the petitioner's claim, we also hold that Judge Balindong did not
act with grave abuse of discretion when he set the amount of Sidic's
bailatP30,000.00.
Section 9 of Rule 114 of the Rules of Court provides that in fixing the amount
of bail in criminal cases, judges shall primarily consider the following factors:
(a) financial ability of the accused to give bail; (b) nature and circumstances of
the offense; (c) penalty for the offense charged; (d) character and reputation
of the accused; (e) age and health of the accused; (f) weight of the evidence
against the accused; (g) probability of the accused appearing at the trial; (h)
forfeiture of other bail; (i) the fact that the accused was a fugitive from justice
when arrested; and (j) pendency of other cases where the accused is on bail.
It is settled that the amount of bail should be reasonable at all times. In
implementing this mandate, regard should be taken of the prisoner's pecuniary
circumstances. We point out that what is reasonable bail to a man of wealth
may be unreasonable to a poor man charged with a like offense. Thus, the
right to bail should not be rendered nugatory by requiring a sum that is
relatively excessive. The amount should be high enough to assure the presence
of the defendant when required, but no higher than is reasonably calculated to
fulfill this purpose.26
Judge Balindong explained how he arrived at the amount in this manner:
Considering the guidelines under Section 9, Rule 114, Rules of Court, among
them: the health of the accused who has languished in jail since his
apprehension on July 5, 2004 and up to the present or for more than four (4)
years; his character and reputation as he is a former Councillor of Pualas,
Lanao del Sur, in fact, he was incumbent councillor at the time of his
detention; the weight of evidence against him, a weak one; and his financial
ability and considering further the constitutional and statutory provision that
"excessive bail shall not be required," the bail is fixed at P30,000.00.27
cralawlawlib ra ry
Assuming that the bail set by Judge Balindong is low considering that the 2000
Bail Bond Guide of the Department of Justice (DOJ) recommends "no bail" for
murder, we cannot use this fact alone to hold that his order -with respect to
the amount of bail set - had been issued with grave abuse of discretion. We
point out that the DOJ Bail Bond Guide - while persuasive and merits attention
- is not binding on the courts. In fixing the amount of bail, the judge is given
the discretion to set an amount which he or she perceives as appropriate under
given circumstances in relation to the factors enumerated under Section 9 of
Rule 114. As quoted above, Judge Balindong enumerated the reasons (i.e.,
accused's incarceration for more than 4 years; his reputation as a former
councillor; his financial ability; and the weak evidence against him) why he set
the amount of bail at P30,000.00.
c. Non-inhibition of Judge Balindong
The rule on disqualification of judges is laid down in Rule 137, Section 1 of the
Rules of Court, which provides: chanRob lesvi rtual Lawli bra ry
SECTION 1. Disqualification of judges. - No judge or judicial officer shall sit in
any case in which he, or his wife or child, is pecuniarily interested as heir,
legatee, creditor or otherwise, or in which he is related to either party
within the sixth degree of consanguinity or affinity, or to counsel
within the fourth degree, computed according to the rules of the civil law, or
in which he has been executor, administrator, guardian, trustee or counsel, or
in which he has presided in any inferior court when his ruling or decision is the
subject of review, without the written consent of all parties in interest, signed
by them and entered upon the record.
xxx
A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above,
(emphasis ours)
cralawlawl ibra ry
The reason behind the rule on compulsory disqualification of judges was
explained in Villaluz v. Judge Mijares28 as follows: cha nRoblesv irt ual Lawlib rary
The rule on compulsory disqualification of a judge to hear a case where, as in
the instant case, the respondent judge is related to either party within the
sixth degree of consanguinity or affinity rests on the salutary principle that no
chanRoblesv irt ual Lawlib rary
judge should preside in a case in which he is not wholly free, disinterested,
impartial and independent. A judge has both the duty of rendering a just
decision and the duty of doing it in a manner completely free from suspicion as
to its fairness and as to his integrity. The law conclusively presumes that a
judge cannot objectively or impartially sit in such a case and, for that reason,
prohibits him and strikes at his authority to hear and decide it, in the absence
of written consent of all parties concerned. The purpose is to preserve the
people's faith and confidence in the courts of justice. cralawlawl ibra ry
In the present case, we hold that the petitioner failed to substantiate his
allegation that Judge Balindong is related to Sidic within the sixth degree of
consanguinity or affinity to warrant his (Judge Balindong's) mandatory
inhibition from the case.
In his omnibus motion for reconsideration to cancel bond posted for the
provisional liberty of the accused and for inhibition, the petitioner prayed,
among others, that Judge Balindong inhibit himself from trying and deciding
the case on the merit[s]. He alleged that: chanRoble svi rtual Lawli bra ry
xxx the accused is allegedly a relative of the Honorable Acting Presiding Judge
of this Court especially the other accused, namely: Papas Balindong, Nago
Balindong alias Hilal and Arsad Balindong. Besides, accused Gapo Sidic is a
resident and native of BarangayYaran which is an adjacent or adjoining
barangay of Barangay Dapao which is allegedlythe native place of the
Honorable Acting Presiding Judge. Moreover, Barangays Yaran and Dapao are
parts of the Sultanate territory of Picong wherein the Honorable Acting
Presiding Judge of this Honorable Court was crowned as Sultan [of]
Picong.29 (emphasis ours) cralawlawl ib rary
The petitioner described the relationship between Judge Balindong and the
accused with more specifity in the present petition for certiorari by alleging
that: Judge Balindong is the "uncle-in-law" of Sidic; Judge Balindong is the first
cousin of accused Papas; and accused Nago and Arsad are Judge Balindong's
"nephews by first degree cousins."
To support these claims, the petitioner attached to the present petition an
affidavit executed by Manorbi Sidic essentially stating that: (1) Sidic's mother-
in-law is the sister of Judge Balindong; (2) Judge Balindong and Papas are
first-degree cousins; and (3) Nago and Arsad are the "nephews by first-degree
cousins" of Judge Balindong.
To our mind, these bare claims, supported by a mere affidavit of Manorbi that
had not been presented before the RTC, Branch 8, are grossly insufficient to
determine whether Judge Balindong falls within the compulsory inhibition under
Rule 137. We point out that the petitioner's use of the term 'allegedly' in
his omnibus motion for reconsideration to cancel bond posted for the
provisional liberty of the accused and for inhibition revealed that he himself
was unsure and uncertain if Judge Balindong was indeed related to Sidic and
the other accused. Corollarily, the presentation of Manorbi's affidavit - attached
for the first time in this petition for certiorari - without any other evidence to
substantiate the matters stated therein, is inadequate and lacking to determine
the degree of Judge Balindong's relationship to the accused. We note in this
regard that a mere relation by affinity or consanguinity is not enough cause for
the compulsory inhibition of a judge; it should be shown that the he or she is
related to either party within the sixth degree of consanguinity or affinity, or to
counsel within the fourth degree.
We are not unaware that after Judge Balindong had granted Sidic's motion to
fix bail, he opted to inhibit himself "from further taking action on the other
incidents"30 of Criminal Case No. 4471-04 out of "delicadeza." The records do
not indicate what Judge Balindong meant to convey when he used the term
"delicadeza" to justify his inhibition; we cannot imply something that is not
supported by the records of the case.
It would have been ideal if the petitioner had filed an administrative case
against Judge Balindong if he truly believed that the latter committed a
violation of the Code of Judicial Ethics or the Rules. This would have enabled
Judge Balindong to properly answer the charges against him, particularly his
decision not to initially inhibit from Criminal Case No. 4471-04. It would have
also given us ample and sufficient basis to rule on the validity of the
petitioner's claim that Judge Balindong was related to the accused within the
prohibitive degree under Rule 137.
We reiterate that grave abuse of discretion implies a capricious and whimsical
exercise of judgment amounting to lack of jurisdiction or an arbitrary and
despotic exercise of power because of passion or personal hostility. The grave
abuse of discretion must be so patent and gross as to amount to an
evasion or refusal to perform a duty enjoined by law. In this case, the
petitioner failed to establish that Judge Balindong gravely abused his discretion
in issuing the challenged orders.
WHEREFORE, in light of all the foregoing, we DISMISS the petition
for certiorari filed by petitioner Cabib Alonto Tanog.
SO ORDERED.
Velasco,* Del Castillo, Mendoza, and Leonen, JJ., concur
Articles 9 and 10
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 hacenderoof 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 corpusproceeding 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.
/SYNOPSIS
EN BANC
[G.R. No. 125299. January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO
DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @
"NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and
Violeta Gaddao y Catama @ "Neneth" were charged with violation of
Section 4, in relation to Section 21 of the Dangerous Drugs Act of
1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping and aiding one another and without having been authorized by law,
did, then and there willfully, unlawfully and feloniously sell, administer,
deliver and give away to another eleven (11) plastic bags of suspected
marijuana fruiting tops weighing 7,641.08 grams in violation of the above-
cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In
November 1995, members of the North Metropolitan District, Philippine
National Police (PNP) Narcotics Command (Narcom), received information
from two (2) civilian informants (CI) that one "Jun" was engaged in illegal
drug activities in Mandaluyong City. The Narcom agents decided to entrap
and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a
meeting between the Narcom agents and "Jun" was scheduled on December
5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP
Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust
operation. The Narcom agents formed Team Alpha composed of P/Insp.
Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund
Badua and four (4) other policemen as members. P/Insp. Cortes designated
PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the
rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief
of the North Metropolitan District PNP Narcom, gave the team P2,000.00 to
cover operational expenses. From this sum, PO3 Manlangit set
aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso
bills[3]-- as money for the buy-bust operation. The market price of one kilo of
marijuana was then P1,600.00. PO3 Manlangit marked the bills with his
initials and listed their serial numbers in the police blotter.[4] The team rode
in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3
Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit
handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3
Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street
while he got the marijuana from his associate.[5] An hour later, "Jun"
appeared at the agreed place where PO3 Manlangit, the CI and the rest of the
team were waiting. "Jun" took out from his bag an object wrapped in plastic
and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as
SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find
the marked bills on him. Upon inquiry, "Jun" revealed that he left the money
at the house of his associate named "Neneth."[6] "Jun" led the police team to
"Neneth's" house nearby at Daang Bakal.
The team found the door of "Neneth's" house open and a woman inside.
"Jun" identified the woman as his associate.[7] SPO1 Badua asked "Neneth"
about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house.
Standing by the door, PO3 Manlangit noticed a carton box under the dining
table. He saw that one of the box's flaps was open and inside the box was
something wrapped in plastic. The plastic wrapper and its contents appeared
similar to the marijuana earlier "sold" to him by "Jun." His suspicion
aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box.
He peeked inside the box and found that it contained ten (10) bricks of what
appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the
marked bills from "Neneth."[8] The policemen arrested "Neneth." They took
"Neneth" and "Jun," together with the box, its contents and the marked bills
and turned them over to the investigator at headquarters. It was only then that
the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is
Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's"
house were examined at the PNP Crime Laboratory.[9] The bricks, eleven
(11) in all, were found to be dried marijuana fruiting tops of various weights
totalling 7,641.08 grams.[10]
The prosecution story was denied by accused-appellants Florencio Doria
and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that
on December 5, 1995, at 7:00 in the morning, he was at the gate of his house
reading a tabloid newspaper. Two men appeared and asked him if he knew a
certain "Totoy." There were many "Totoys" in their area and as the men
questioning him were strangers, accused-appellant denied knowing any
"Totoy." The men took accused-appellant inside his house and accused him
of being a pusher in their community. When accused-appellant denied the
charge, the men led him to their car outside and ordered him to point out the
house of "Totoy." For five (5) minutes, accused-appellant stayed in the
car. Thereafter, he gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One
of the men, later identified as PO3 Manlangit, pushed open the door and he
and his companions entered and looked around the house for about three
minutes. Accused-appellant Doria was left standing at the door. The
policemen came out of the house and they saw Violeta Gaddao carrying
water from the well. He asked Violeta where "Totoy" was but she replied he
was not there. Curious onlookers and kibitzers were, by that time,
surrounding them. When Violeta entered her house, three men were already
inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw a
box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the car.
They were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta
Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and
Totoy Gaddao sometimes drank together at the neighborhood store. This
closeness, however, did not extend to Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed
that on December 5, 1995, she was at her house at Daang Bakal,
Mandaluyong City where she lived with her husband and five (5) children,
namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged
5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the
morning and bought pan de sal for her children's breakfast. Her husband,
Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her
children and bathed them. Her eldest son, Arvy, left for school at 6:45
A.M. Ten minutes later, she carried her youngest son, Jayson, and
accompanied Arjay to school. She left the twins at home leaving the door
open. After seeing Arjay off, she and Jayson remained standing in front of
the school soaking in the sun for about thirty minutes. Then they headed for
home. Along the way, they passed the artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket suddenly
appeared and grabbed her left wrist. The man pulled her and took her to her
house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other
persons. They asked her about a box on top of the table. This was the first
time she saw the box. The box was closed and tied with a piece of green
straw. The men opened the box and showed her its contents. She said she did
not know anything about the box and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused
Florencio Doria was a friend of her husband, and that her husband never
returned to their house after he left for Pangasinan. She denied the charge
against her and Doria and the allegation that marked bills were found in her
person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City convicted
the accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-appellants
to death and pay a fine of P500,000.00 each. The dispositive portion of the
decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of the
present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659
which cover violations of Sec. 4 of Republic Act No. 6425 and which was
exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from
five hundred thousand pesos to ten million pesos. Taking into consideration,
however, the provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any
person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of
gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said
FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case
of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the
Dangerous Drugs Board, NBI for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from
the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and
also for accused GADDAO for her transfer to the Correctional Institute for
Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme
Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE
TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN
THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE
CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE
PLAIN VIEW DOCTRINE."[14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY
DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE
MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST
MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER
AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND
SENTENCING HER TO DEATH DESPITE THE MANIFESTLY
IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE
POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST
MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE
RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE
SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF
THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE
MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT."[15]
The assigned errors involve two principal issues: (1) the validity of the
buy-bust operation in the apprehension of accused-appellant Doria; and (2)
the validity of the warrantless arrest of accused-appellant Gaddao, the search
of her person and house, and the admissibility of the pieces of evidence
obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A
buy-bust operation is a form of entrapment employed by peace officers as an
effective way of apprehending a criminal in the act of the commission of an
offense.[16] Entrapment has received judicial sanction when undertaken with
due regard to constitutional and legal safeguards.[17]
Entrapment was unknown in common law. It is a judicially created
twentieth-century American doctrine that evolved from the increasing use of
informers and undercover agents in the detection of crimes, particularly
liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of
estoppel and the public interest in the formulation and application of decent
standards in the enforcement of criminal law.[19] It also took off from a
spontaneous moral revulsion against using the powers of government to
beguile innocent but ductile persons into lapses that they might otherwise
resist.[20]
In the American jurisdiction, the term "entrapment" has a generally
negative meaning because it is understood as the inducement of one to
commit a crime not contemplated by him, for the mere purpose of instituting
a criminal prosecution against him.[21] The classic definition of entrapment is
that articulated by Justice Roberts in Sorrells v. United States,[22] the first
Supreme Court decision to acknowledge the concept: "Entrapment is the
conception and planning of an offense by an officer, and his procurement of
its commission by one who would not have perpetrated it except for the
trickery, persuasion or fraud of the officer."[23] It consists of two (2)
elements: (a) acts of persuasion, trickery, or fraud carried out by law
enforcement officers or the agents to induce a defendant to commit a crime;
and (b) the origin of the criminal design in the minds of the government
officials rather than that of the innocent defendant, such that the crime is the
product of the creative activity of the law enforcement officer.[24]
It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate the law.
Not every deception is forbidden. The type of entrapment the law forbids is
the inducing of another to violate the law, the "seduction" of an otherwise
innocent person into a criminal career.[25] Where the criminal intent
originates in the mind of the entrapping person and the accused is lured into
the commission of the offense charged in order to prosecute him, there is
entrapment and no conviction may be had.[26] Where, however, the criminal
intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or public
officials furnished the accused an opportunity for commission of the offense,
or that the accused is aided in the commission of the crime in order to secure
the evidence necessary to prosecute him, there is no entrapment and the
accused must be convicted.[27] The law tolerates the use of decoys and other
artifices to catch a criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an
accused and partakes of the nature of a confession and avoidance.[29] It is a
positive defense. Initially, an accused has the burden of providing sufficient
evidence that the government induced him to commit the offense. Once
established, the burden shifts to the government to show otherwise.[30] When
entrapment is raised as a defense, American federal courts and a majority of
state courts use the "subjective" or "origin of intent" test laid down
in Sorrells v. United States[31] to determine whether entrapment actually
occurred. The focus of the inquiry is on the accused's predisposition to
commit the offense charged, his state of mind and inclination before his
initial exposure to government agents.[32] All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his
eagerness in committing the crime, his reputation, etc., are considered to
assess his state of mind before the crime.[33] The predisposition test
emphasizes the accused's propensity to commit the offense rather than the
officer's misconduct[34] and reflects an attempt to draw a line between a "trap
for the unwary innocent and the trap for the unwary criminal."[35] If the
accused was found to have been ready and willing to commit the offense at
any favorable opportunity, the entrapment defense will fail even if a police
agent used an unduly persuasive inducement.[36] Some states, however, have
adopted the "objective" test.[37] This test was first authoritatively laid down in
the case of Grossman v. State[38] rendered by the Supreme Court of
Alaska. Several other states have subsequently adopted the test by judicial
pronouncement or legislation. Here, the court considers the nature of the
police activity involved and the propriety of police conduct.[39] The inquiry is
focused on the inducements used by government agents, on police conduct,
not on the accused and his predisposition to commit the crime. For the goal
of the defense is to deter unlawful police conduct.[40]The test of entrapment is
whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to
commit the offense;[41] for purposes of this test, it is presumed that a law-
abiding person would normally resist the temptation to commit a crime that
is presented by the simple opportunity to act unlawfully.[42] Official conduct
that merely offers such an opportunity is permissible, but overbearing
conduct, such as badgering, cajoling or importuning,[43] or appeals to
sentiments such as pity, sympathy, friendship or pleas of desperate illness,
are not.[44] Proponents of this test believe that courts must refuse to convict
an entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed
on behalf of the government to bring about the crime "cannot be
countenanced." To some extent, this reflects the notion that the courts should
not become tainted by condoning law enforcement improprieties.[45] Hence,
the transactions leading up to the offense, the interaction between the
accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of detecting
instances of its commission are considered in judging what the effect of the
officer's conduct would be on a normal person.[46]
Both the "subjective" and "objective" approaches have been criticized
and objected to. It is claimed that the "subjective" test creates an "anything
goes" rule, i.e., if the court determines that an accused was predisposed to
commit the crime charged, no level of police deceit, badgering or other
unsavory practices will be deemed impermissible.[47] Delving into the
accused's character and predisposition obscures the more important task of
judging police behavior and prejudices the accused more generally. It ignores
the possibility that no matter what his past crimes and general disposition
were, the accused might not have committed the particular crime unless
confronted with inordinate inducements.[48] On the other extreme, the purely
"objective" test eliminates entirely the need for considering a particular
accused's predisposition. His predisposition, at least if known by the police,
may have an important bearing upon the question of whether the conduct of
the police and their agents was proper.[49] The undisputed fact that the
accused was a dangerous and chronic offender or that he was a shrewd and
active member of a criminal syndicate at the time of his arrest is relegated to
irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to
entrapment. Some states in the United States now combine both the
"subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme
Court declared that the permissibility of police conduct must first be
determined. If this objective test is satisfied, then the analysis turns to
whether the accused was predisposed to commit the crime.[53] In Baca v.
State,[54] the New Mexico Supreme Court modified the state's entrapment
analysis by holding that "a criminal defendant may successfully assert a
defense of entrapment, either by showing lack of predisposition to commit
the crime for which he is charged, or, that the police exceeded the standards
of proper investigation.[55] The hybrid approaches combine and apply the
"objective" and "subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers
while apprehending the accused caught in flagrante delicto. In United States
v. Phelps,[56] we acquitted the accused from the offense of smoking opium
after finding that the government employee, a BIR personnel, actually
induced him to commit the crime in order to prosecute him. Smith, the BIR
agent, testified that Phelps' apprehension came after he overheard Phelps in a
saloon say that he liked smoking opium on some occasions. Smith's
testimony was disregarded. We accorded significance to the fact that it was
Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug.[57] The conduct of the
BIR agent was condemned as "most reprehensible."[58] In People v.
Abella,[59] we acquitted the accused of the crime of selling explosives after
examining the testimony of the apprehending police officer who pretended to
be a merchant. The police officer offered "a tempting price, xxx a very high
one" causing the accused to sell the explosives. We found that there was
inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the
accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the
accused after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman smoothed
the way for the introduction of opium from Hongkong to Cebu after the
accused had already planned its importation and ordered said drug. We ruled
that the apprehending officer did not induce the accused to import opium but
merely entrapped him by pretending to have an understanding with the
Collector of Customs of Cebu to better assure the seizure of the prohibited
drug and the arrest of the surreptitious importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se
Tieng[63] we first laid down the distinction between entrapment vis-a-vis
instigation or inducement. Quoting 16 Corpus Juris,[64] we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the
practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being criminal or punishable,
the general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the
criminal act was done at the 'decoy solicitation' of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present
and apparently assisting in its commission. Especially is this true in that class
of cases where the offense is one of a kind habitually committed, and the
solicitation merely furnishes evidence of a course of conduct. Mere deception
by the detective will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the detective. The fact that an
agent of an owner acts as a supposed confederate of a thief is no defense to
the latter in a prosecution for larceny, provided the original design was
formed independently of such agent; and where a person approached by the
thief as his confederate notifies the owner or the public authorities, and,
being authorised by them to do so, assists the thief in carrying out the plan,
the larceny is nevertheless committed. It is generally held that it is no defense
to a prosecution for an illegal sale of liquor that the purchase was made by a
'spotter,' detective, or hired informer; but there are cases holding the
contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of the Court
of Appeals. In People v. Galicia,[66] the appellate court declared that "there is
a wide difference between entrapment and instigation." The instigator
practically induces the would-be accused into the commission of the offense
and himself becomes a co-principal. In entrapment, ways and means are
resorted to by the peace officer for the purpose of trapping and capturing the
lawbreaker in the execution of his criminal plan.[67] In People v. Tan
Tiong,[68] the Court of Appeals further declared that "entrapment is no bar to
the prosecution and conviction of the lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia was
affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further held, is
not contrary to public policy. It is instigation that is deemed contrary to
public policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American
jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense available to the
accused. It is instigation that is a defense and is considered an absolutory
cause.[72] To determine whether there is entrapment or instigation, our courts
have mainly examined the conduct of the apprehending officers, not the
predisposition of the accused to commit the crime. The "objective" test first
applied in United States v. Phelps has been followed in a series of similar
cases.[73] Nevertheless, adopting the "objective" approach has not precluded
us from likewise applying the "subjective" test. In People v. Boholst,[74] we
applied both tests by examining the conduct of the police officers in a buy-
bust operation and admitting evidence of the accused's membership with the
notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered
accused's previous convictions of other crimes[75] and held that his
opprobrious past and membership with the dreaded gang strengthened the
state's evidence against him. Conversely, the evidence that the accused did
not sell or smoke marijuana and did not have any criminal record was
likewise admitted in People v. Yutuc[76] thereby sustaining his defense that
led to his acquittal.
The distinction between entrapment and instigation has proven to be
very material in anti-narcotics operations. In recent years, it has become
common practice for law enforcement officers and agents to engage in buy-
bust operations and other entrapment procedures in apprehending drug
offenders. Anti-narcotics laws, like anti-gambling laws are regulatory
statutes.[77] They are rules of convenience designed to secure a more orderly
regulation of the affairs of society, and their violation gives rise to
crimes mala prohibita.[78] They are not the traditional type of criminal law
such as the law of murder, rape, theft, arson, etc. that deal with crimes mala
in se or those inherently wrongful and immoral.[79] Laws defining
crimes mala prohibita condemn behavior directed, not against particular
individuals, but against public order.[80] Violation is deemed a wrong against
society as a whole and is generally unattended with any particular harm to a
definite person.[81] These offenses are carried on in secret and the violators
resort to many devices and subterfuges to avoid detection. It is rare for any
member of the public, no matter how furiously he condemns acts mala
prohibita, to be willing to assist in the enforcement of the law. It is
necessary, therefore, that government in detecting and punishing violations
of these laws, rely, not upon the voluntary action of aggrieved individuals,
but upon the diligence of its own officials. This means that the police must be
present at the time the offenses are committed either in an undercover
capacity or through informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice legislation,
the confidential informant system breeds abominable abuse. Frequently, a
person who accepts payment from the police in the apprehension of drug
peddlers and gamblers also accept payment from these persons who deceive
the police. The informant himself may be a drug addict, pickpocket, pimp, or
other petty criminal. For whatever noble purpose it serves, the spectacle that
government is secretly mated with the underworld and uses underworld
characters to help maintain law and order is not an inspiring one.[83] Equally
odious is the bitter reality of dealing with unscrupulous, corrupt and
exploitative law enforcers. Like the informant, unscrupulous law enforcers'
motivations are legion-- harassment, extortion, vengeance, blackmail, or a
desire to report an accomplishment to their superiors. This Court has taken
judicial notice of this ugly reality in a number of cases[84] where we observed
that it is a common modus operandi of corrupt law enforcers to prey on weak
and hapless persons, particularly unsuspecting provincial hicks.[85] The use of
shady underworld characters as informants, the relative ease with which
illegal drugs may be planted in the hands or property of trusting and ignorant
persons, and the imposed secrecy that inevitably shrouds all drug deals have
compelled this Court to be extra-vigilant in deciding drug cases.[86]Criminal
activity is such that stealth and strategy, although necessary weapons in the
arsenal of the police officer, become as objectionable police methods as the
coerced confession and the unlawful search.As well put by the Supreme
Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and
seizures, wiretapping, false arrest, illegal detention and the third degree, it is
a type of lawless enforcement. They all spring from common
motivations. Each is a substitute for skillful and scientific investigation. Each
is condoned by the sinister sophism that the end, when dealing with known
criminals of the 'criminal classes,' justifies the employment of illegal
means."[88]
It is thus imperative that the presumption, juris tantum, of regularity in the
performance of official duty by law enforcement agents raised by the
Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the
constitutionally-protected rights of the individual.[89] It is the duty of courts to
preserve the purity of their own temple from the prostitution of the criminal
law through lawless enforcement.[90] Courts should not allow themselves to
be used as an instrument of abuse and injustice lest an innocent person be
made to suffer the unusually severe penalties for drug offenses.[91]
We therefore stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly and
adequately shown. This must start from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment
of the consideration until the consummation of the sale by the delivery of the
illegal drug subject of the sale.[92] The manner by which the initial contact
was made, whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the illegal
drug, whether to the informant alone or the police officer, must be the subject
of strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. Criminals must be caught but not
at all cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to
commit the crime. If there is overwhelming evidence of habitual
delinquency, recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant to determine
the validity of the defense of inducement.
In the case at bar, the evidence shows that it was the confidential
informant who initially contacted accused-appellant Doria. At the pre-
arranged meeting, the informant was accompanied by PO3 Manlangit who
posed as the buyer of marijuana. PO3 Manlangit handed the marked money
to accused-appellant Doria as advance payment for one (1) kilo of marijuana.
Accused-appellant Doria was apprehended when he later returned and
handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward and
categorical manner and his credibility was not crumpled on cross-
examination by defense counsel. Moreover, PO3 Manlangit's testimony was
corroborated on its material points by SPO1 Badua, his back-up security. The
non-presentation of the confidential informant is not fatal to the prosecution.
Informants are usually not presented in court because of the need to hide
their identity and preserve their invaluable service to the police.[93] It is well-
settled that except when the appellant vehemently denies selling prohibited
drugs and there are material inconsistencies in the testimonies of the arresting
officers,[94] or there are reasons to believe that the arresting officers had
motives to testify falsely against the appellant,[95] or that only the informant
was the poseur-buyer who actually witnessed the entire transaction,[96] the
testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies.[97] There
is no need to present the informant in court where the sale was actually
witnessed and adequately proved by prosecution witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies
and the other police officers' testimonies are minor and do not detract from
the veracity and weight of the prosecution evidence. The source of the money
for the buy-bust operation is not a critical fact in the case at bar. It is enough
that the prosecution proved that money was paid to accused-appellant Doria
in consideration of which he sold and delivered the marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana
"sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit
himself before the trial court. After appellants' apprehension, the Narcom
agents placed this one (1) brick of marijuana recovered from appellant Doria
inside the carton box lumping it together with the ten (10) bricks inside. This
is why the carton box contained eleven (11) bricks of marijuana when
brought before the trial court. The one (1) brick recovered from appellant
Doria and each of the ten (10) bricks, however, were identified and marked
in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?
 A This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated
from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the
fact that we are now dealing with eleven items when the question
posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out
item after item from the box showed to him and brought in front of
him.
COURT Noted.
x x x.
Q Now tell the court, how did you know that those are the eleven
bricks?
x x x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM
and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused
Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this Honorable
Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation
of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun, sir.
COURT Why do you know that that is the thing? Are you sure that is
not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
PROSECUTOR May we request that a tag be placed on this white
plastic bag and this be marked as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the other
letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time and
this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this
morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.
PROSECUTOR May we place on record that the one that was enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that
enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that
 was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper,
with a newspaper wrapping with a piece of paper inside which
reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x x x.
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.
x x x."[99]
The first brick identified by P03 Manlangit was the brick of marijuana "given
to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This
brick, including the newspaper and white plastic wrapping were marked as
Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred
seventy (970) grams.[100]
We also reject appellant's submission that the fact that PO3 Manlangit
and his team waited for almost one hour for appellant Doria to give them the
one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant
cannot capitalize on the circumstance that the money and the marijuana in
the case at bar did not change hands under the usual "kaliwaan"
system. There is no rule of law which requires that in "buy-bust" operations
there must be a simultaneous exchange of the marked money and the
prohibited drug between the poseur-buyer and the pusher.[101] Again, the
decisive fact is that the poseur-buyer received the marijuana from the
accused-appellant.[102]
We also hold that the warrantless arrest of accused-appellant Doria is
not unlawful. Warrantless arrests are allowed in three instances as provided
by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:
"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
x x x."[103]
Under Section 5 (a), as above-quoted, a person may be arrested without a
warrant if he "has committed, is actually committing, or is attempting to
commit an offense." Appellant Doria was caught in the act of committing an
offense. When an accused is apprehended in flagrante delicto as a result of a
buy-bust operation, the police are not only authorized but duty-bound to
arrest him even without a warrant.[104]
The warrantless arrest of appellant Gaddao, the search of her person and
residence, and the seizure of the box of marijuana and marked bills are
different matters.
Our Constitution proscribes search and seizure without a judicial
warrant and any evidence obtained without such warrant is inadmissible for
any purpose in any proceeding.[105] The rule is, however, not absolute. Search
and seizure may be made without a warrant and the evidence obtained
therefrom may be admissible in the following instances:[106] (1) search
incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108] (3)
search in violation of customs laws;[109] (4) seizure of evidence in plain
view;[110] (5) when the accused himself waives his right against unreasonable
searches and seizures.[111]
The prosecution admits that appellant Gaddao was arrested without a
warrant of arrest and the search and seizure of the box of marijuana and the
marked bills were likewise made without a search warrant. It is claimed, A At this instance, it was SPO1 Badua who can testify regarding this buy-
however, that the warrants were not necessary because the arrest was made in bust money, sir.
"hot pursuit" and the search was an incident to her lawful arrest.
x x x."[112]
To be lawful, the warrantless arrest of appellant Gaddao must fall under
SPO1 Badua testified on cross-examination that:
any of the three (3) instances enumerated in Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure as aforequoted. The direct testimony of Q What was your intention in going to the house of Aling Neneth?
PO3 Manlangit, the arresting officer, however shows otherwise:
A To arrest her, sir.
"ATTY VALDEZ, Counsel for appellant Gaddao:
Q But the fact is, Mr. Witness, when you reached the house of Aling
We submit at this juncture, your Honor, that there will be no basis Neneth, Aling Neneth was there?
for that question.
A Yes, sir.
Q This particular exhibit that you identified, the wrapper and the contents
was given to you by whom? Q As far as you can see, she was just inside her house?

A It was given to me by suspect Jun, sir. A I saw her outside, sir.

Q Whereat? Q She was fetching water as a matter of fact?

A At the corner of Boulevard and Jacinto Street, sir. A She was `sa bandang poso.'

Q How about the other items that you were able to recover? Q Carrying a baby?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there will
be no basis for that question.
COURT There is. Answer.
A These other marijuana bricks, because during our follow-up, because
according to Jun the money which I gave him was in the hands of
Neneth and so we proceeded to the house of Neneth, sir.
Q Whereat?
A No, sir.
Q At that particular time when you reached the house of Aling
Neneth and saw her outside the house, she was not committing
any crime, she was just outside the house?
A No, sir.
Q She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct?

A At Daang Bakal near the crime scene at Shaw Boulevard, sir. A I just saw her outside, sir.

Q And what happened upon arrival thereat? Q And at that point in time you already wanted to arrest her. That is
correct, is it not?
A We saw alias Neneth inside the house and we asked him to give us
the buy-bust money, sir. A Yes, sir.

Q You mentioned "him?" Q Now, if any memory of your testimony is correct, according to you
SPO1 Manlangit approached her?
A Her, sir. We asked her to give us the money, the marked money
which Jun gave her, sir. A PO3 Manlangit, sir.

Q And what happened? Q You did not approach her because PO3 Manlangit approached her?
A Yes, sir.
Q During all the time that this confrontation, arrest or whatever by SPO3 A I saw it, sir.
Manlangit was taking place, you were just in the side lines?
Q It was Manlangit who got the money from Aling Neneth?
A I was just watching, sir.
A The buy-bust money was recovered from the house of Aling Neneth,
Q So you were just an on-looker to what Manlangit was doing, because sir.
precisely according to you your role in this buy-bust operation was
as a back-up? Q It was taken from the house of Aling Neneth, not from the person of
Aling Neneth. Is that what you are trying to tell the Court?
A Yes, sir.
A No, sir.
Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
ATTY. VALDEZ: I am through with this witness, your Honor."[113]
A PO3 Manlangit, sir.
Accused-appellant Gaddao was not caught red-handed during the buy-
Q Manlangit got the marijuana? bust operation to give ground for her arrest under Section 5 (a) of Rule
113. She was not committing any crime. Contrary to the finding of the trial
A Yes, sir. court, there was no occasion at all for appellant Gaddao to flee from the
Q And the money from Aling Neneth? policemen to justify her arrest in "hot pursuit."[114] In fact, she was going
about her daily chores when the policemen pounced on her.
A I don't know, sir.
Neither could the arrest of appellant Gaddao be justified under the
Q You did not even know who got the money from Aling Neneth? second instance of Rule 113. "Personal knowledge" of facts in arrests without
PROSECUTOR: warrant under Section 5 (b) of Rule 113 must be based upon "probable
cause" which means an "actual belief or reasonable grounds of
There is no basis for this question, your Honor. Money, there's no suspicion."[115] The grounds of suspicion are reasonable when, in the absence
testimony on that. of actual belief of the arresting officers, the suspicion that the person to be
ATTY. VALDEZ: arrested is probably guilty of committing the offense, is based on actual facts,
i.e., supported by circumstances sufficiently strong in themselves to create
I was asking him precisely. the probable cause of guilt of the person to be arrested.[116] A reasonable
suspicion therefore must be founded on probable cause, coupled with good
PROSECUTOR:
faith on the part of the peace officers making the arrest.[117]
No basis.
Accused-appellant Gaddao was arrested solely on the basis of the
COURT: alleged identification made by her co-accused. PO3 Manlangit, however,
declared in his direct examination that appellant Doria named his co-accused
Sustained. in response to his (PO3 Manlangit's) query as to where the
Q Alright. I will ask you a question and I expect an honest marked money was.[118] Appellant Doria did not point to appellant Gaddao as
answer. According to the records, the amount of P1,600.00 was his associate in the drug business, but as the person with whom he left the
recovered from the person of Aling Neneth. That's right? marked bills. This identification does not necessarily lead to the conclusion
that appellant Gaddao conspired with her co-accused in pushing
A Yes, sir, the buy-bust money. drugs. Appellant Doria may have left the money in her house,[119] with or
Q What you are now saying for certain and for the record is the fact that without her knowledge, with or without any conspiracy. Save for accused-
you were not the one who retrieved the money from Aling Neneth, it appellant Doria's word, the Narcom agents had no reasonable grounds to
was Manlangit maybe? believe that she was engaged in drug pushing. If there is no showing that the
person who effected the warrantless arrest had, in his own right, knowledge
of facts implicating the person arrested to the perpetration of a criminal A Yes, sir.
offense, the arrest is legally objectionable.[120]
Q Badua demanded from Aling Neneth the buy-bust money?
Since the warrantless arrest of accused-appellant Gaddao was illegal, it
follows that the search of her person and home and the subsequent seizure of A Yes, sir.
the marked bills and marijuana cannot be deemed legal as an incident to her Q At that particular instance, you saw the carton?
arrest. This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless A Yes, sir.
seizure valid. Q This carton, according to you was under a table?
Objects falling in plain view of an officer who has a right to be in the A Yes, sir, dining table.
position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence.[121] The "plain view" doctrine Q I noticed that this carton has a cover?
applies when the following requisites concur: (a) the law enforcement officer
A Yes, sir.
in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of the Q I ask you were the flaps of the cover raised or closed?
evidence in plain view is inadvertent; (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband or A It was open, sir. Not like that.
otherwise subject to seizure.[122] The law enforcement officer must lawfully COURT
make an initial intrusion or properly be in a position from which he can
particularly view the area.[123] In the course of such lawful intrusion, he came Go down there. Show to the court.
inadvertently across a piece of evidence incriminating the accused.[124] The INTERPRETER
object must be open to eye and hand[125] and its discovery inadvertent.[126]
Witness went down the witness stand and approached a carton box.
It is clear that an object is in plain view if the object itself is plainly
exposed to sight. The difficulty arises when the object is inside a closed A Like this, sir.
container. Where the object seized was inside a closed package, the object PROSECUTOR
itself is not in plain view and therefore cannot be seized without a
warrant. However, if the package proclaims its contents, whether by its Can we describe it?
distinctive configuration, its transparency, or if its contents are obvious to an
ATTY. VALDEZ
observer, then the contents are in plain view and may be seized.[127] In other
words, if the package is such that an experienced observer could infer from Yes.
its appearance that it contains the prohibited article, then the article is
deemed in plain view.[128] It must be immediately apparent to the police that PROSECUTOR
the items that they observe may be evidence of a crime, contraband or One flap is inside and the other flap is standing and with the
otherwise subject to seizure.[129] contents visible.
PO3 Manlangit, the Narcom agent who found the box, testified on COURT
cross-examination as follows:
Noted.
"ATTY. VALDEZ:
Q At this juncture, you went inside the house?
So here we are. When you and Badua arrived, Aling Neneth was
inside the house? A Yes, sir.
Q And got hold of this carton? Q How far was this from the door?
A Yes, sir. A Two and a half meters from the door, sir. It was in plain view.
Q Did you mention anything to Aling Neneth? Q Under the table according to you?
A I asked her, what's this... A Yes, sir, dining table.
Q No, no. no. did you mention anything to Aling Neneth before getting Q Somewhere here?
the carton?
A It's far, sir.
A I think it was Badua who accosted Aling Neneth regarding the buy-bust
money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang PROSECUTOR
buy-bust money namin?" sir. May we request the witness to place it, where he saw it?
Q Making reference to the marijuana that was given by alias Jun? A Here, sir.
A Yes, sir. Q What you see is a carton?
Q When you proceeded to take hold of this carton, Aling Neneth was not A Yes, sir, with plastic.
yet frisked, is it not [sic]?
Q Marked "Snow Time Ice Pop?"
A I just don't know if she was frisked already by Badua, sir.
A Yes, sir.
Q Who got hold of this?
Q With a piece of plastic visible on top of the carton?
A I was the one, sir.
A Yes, sir.
Q You were the one who got this?
Q That is all that you saw?
A Yes, sir.
A Yes, sir.
Q At that particular point in time, you did not know if the alleged buy-
bust money was already retrieved by Badua? PROSECUTOR

A Yes, sir. For the record, your Honor...

Q You went inside the house? Q You were only able to verify according to you...

A Yes, sir. PROSECUTOR

Q You did not have any search warrant? Panero, wait. Because I am objecting to the words a piece of
plastic. By reading it...
A Yes, sir.
ATTY. VALDEZ
Q In fact, there was nothing yet as far as you were concerned to validate
the fact that Mrs. Gadao was in possession of the buy-bust money That's a piece of plastic.
because according to you, you did not know whether Badua already PROSECUTOR
retrieved the buy-bust money from her?
By reading it, it will connote... this is not a piece of plastic.
A Yes, sir.
 ATTY. VALDEZ PO3 Manlangit and the police team were at appellant Gaddao's house
because they were led there by appellant Doria. The Narcom agents testified
What is that? What can you say, Fiscal? I'm asking you? that they had no information on appellant Gaddao until appellant Doria
PROSECUTOR named her and led them to her.[131] Standing by the door of appellant
Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two
With due respect, what I am saying is, let's place the size of the and a half meters away was the dining table and underneath it was a carton
plastic. A piece of plastic may be big or a small one, for record box. The box was partially open and revealed something wrapped in plastic.
purposes.
In his direct examination, PO3 Manlangit said that he was sure that the
COURT contents of the box were marijuana because he himself checked and marked
Leave that to the court. the said contents.[132] On cross-examination, however, he admitted that he
merely presumed the contents to be marijuana because it had the same
PROSECUTOR plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records
Leave that to the court. reveals that the plastic wrapper was not colorless and transparent as to clearly
manifest its contents to a viewer. Each of the ten (10) bricks of marijuana
Q The only reason according to you, you were able to... Look at this, in the box was individually wrapped in old newspaper and placed inside
no even Superman... I withdraw that. Not even a man with very plastic bags-- white, pink or blue in color.[133] PO3 Manlangit himself
kin [sic] eyes can tell the contents here. And according to the admitted on cross-examination that the contents of the box could be
Court, it could be "tikoy," is it not [sic]? items other than marijuana. He did not know exactly what the box
contained that he had to ask appellant Gaddao about its contents.[134] It
A Yes, sir.
was not immediately apparent to PO3 Manlangit that the content of the
Q Siopao? box was marijuana. The marijuana was not in plain view and its seizure
without the requisite search warrant was in violation of the law and the
A Yes, sir. Constitution.[135] It was fruit of the poisonous tree and should have been
Q Canned goods? excluded and never considered by the trial court.[136]

A Yes, sir. The fact that the box containing about six (6) kilos of marijuana[137] was
found in the house of accused-appellant Gaddao does not justify a finding
Q It could be ice cream because it says Snow Pop, Ice Pop? that she herself is guilty of the crime charged.[138]Apropos is our ruling
A I presumed it was also marijuana because it may ... in People v. Aminnudin,[139] viz:

Q I am not asking you what your presumptions are. I'm asking you "The Court strongly supports the campaign of the government against drug
what it could possibly be. addiction and commends the efforts of our law enforcement officers against
those who would inflict this malediction upon our people, especially the
A It's the same plastic, sir.
susceptible youth. But as demanding as this campaign may be, it cannot be
ATTY. VALDEZ more so than the compulsions of the Bill of Rights for the protection of the
liberty of every individual in the realm, including the basest of criminals. The
I'm not even asking you that question so why are you voluntarily Constitution covers with the mantle of its protection the innocent and the
saying the information. Let the prosecutor do that for you. guilty alike against any manner of high-handedness from the authorities,
COURT however praiseworthy their intentions.
Continue. Next question. Those who are supposed to enforce the law are not justified in disregarding
x x x."[130] the right of the individual in the name of order. Order is too high a price for
the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that
some criminals should escape than that the government should play an
ignoble part.' It is simply not allowed in the free society to violate a law to
enforce another, especially if the law violated is the Constitution itself."[140]
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972,
as amended by Section 13 of Republic Act No. 7659 punishes the "sale,
administration, delivery, distribution and transportation of a prohibited drug"
with the penalty of reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs.-- The penalty of reclusion perpetua to death, and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
x x x."
In every prosecution for illegal sale of dangerous drugs, what is material is
the submission of proof that the sale took place between the poseur-buyer
and the seller thereof and the presentation of the drug, i.e., the corpus delicti,
as evidence in court.[141] The prosecution has clearly established the fact that
in consideration of P1,600.00 which he received, accused-appellant Doria
sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove
that accused-appellant Gaddao conspired with accused-appellant Doria in the
sale of said drug. There being no mitigating or aggravating circumstances,
the lower penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court,
Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-
D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to
suffer the penalty of reclusion perpetua and to pay a fine of five
hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes,
JJ., concur.
Panganiban, J., please see concurring opinion.
EN BANC
[G.R. No. 127755. April 14, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL
ROSARIO y PASCUAL, accused-appellant.
DECISION
BELLOSILLO, J.:
ON AUTOMATIC REVIEW is the decision of the court a quo finding
accused Joselito del Rosario y Pascual guilty as co-principal in the crime of
Robbery with Homicide and sentencing him to death and to pay the heirs of
the victim Virginia Bernas P550,000.00 as actual damages and P100,000.00
as moral and exemplary damages.[1]
Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio
Santos alias Boy Santos and John Doe alias Dodong were charged with
special complex crime of Robbery with Homicide for having robbed Virginia
Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry
and on the occasion thereof shot and killed her.[2]
While accused Joselito del Rosario pleaded not guilty, [3] Virgilio Boy
Santos and John Doe alias Dodong remained at large. Ernesto Jun Marquez
was killed in a police encounter. Only Joselito del Rosario was tried.
These facts were established by the prosecution from the eyewitness
account of tricycle driver Paul Vincent Alonzo: On 13 May 1996 between
6:00 and 6:30 in the evening, Alonzo stopped his tricycle by the side of Nitas
Drugstore, General Luna St., Cabanatuan City, when three women flagged
him. Parked at a distance of about one and a-half (1) meters in front of him
was a tricycle driven by accused Joselito del Rosario. At that point, Alonzo
saw two (2) men and a woman grappling for possession of a bag. After
taking hold of the bag one of the two men armed with a gun started chasing a
man who was trying to help the woman, while the other snatcher kicked the
woman sending her to the ground. Soon after, the armed man returned and
while the woman was still on the ground he shot her on the head. The bag
taken by the man was brought to the tricycle of accused del Rosario where
someone inside received the bag.The armed man then sat behind the driver
while his companion entered the sidecar. When the tricycle sped away
Alonzo gave chase and was able to get the plate number of the tricycle.He
also recognized the driver, after which he went to the nearest police
headquarters and reported the incident.[4]
Accused Joselito del Rosario gave his own version of the incident: At
around 5:30 in the afternoon he was hired for P120.00[5] by a certain Boy
Santos,[6] his co-accused. Their original agreement was that he would drive
him to cockpit at the Blas Edward Coliseum.[7] However, despite their earlier
arrangement boy Santos directed him to proceed to the market place to fetch
Jun Marquez and Dodong Bisaya. He (del Rosario) acceded.[8] Marquez and
Bisaya boarded in front of the parking lot of Merced Drugstore at the public
market.[9] Subsequently, he was asked to proceed and stop at the corner of
Burgos and General Luna Sts. where Bisaya alighted on the pretest of
buying a cigarette. The latter then accosted the victim Virginia Bernas and
grappled with her for the possession of her bag. Jun Marquez alighted from
the tricycle to help Dodong Bisaya.[10] Accused del Rosario tried to leave and
seek help but Boy Santos who stayed inside the tricycle prevented him from
leaving and threatened in fact to shoot him.
Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but
before boarding the tricycle Jun Marquez mercilessly shot the victim on the
head while she was lying prone on the ground. After the shooting, Dodong
Bisaya boarded the sidecar of the tricycle while Jun Marquez rode behind del
Rosario and ordered him to start the engine and drive towards
Dicarma.While inside his tricycle, del Rosario overheard his passengers
saying that they would throw the bag at Zulueta St. where there were cogon
grasses.[11] Upon arriving at Dicarma, the three (3) men alighted and warned
del Rosario not to inform the police authorities about the incident otherwise
he and his family would be harmed.[12] Del Rosario then went
home.[13] Because of the threat, however, he did not report the matter to the
owner of the tricycle nor to the barangay captain and the police.[14]
As earlier stated, the court a quo found accused Joselito del Rosario
guilty as charged and sentenced him to death. He now contends in this
automatic review that the court a quo erred in: (1) Not finding the presence of
threat and irresistible force employed upon him by his co-accused Virgilio
Boy Santos, Ernesto Jun Marquez and Dodong Bisaya; (2) Not considering
his defense that he was not part of the conspiracy among co-accused "Boy"
Santos, "Jun" Marquez and "Dodong" Bisaya to commit the crime of Robbery
with Homicide; (3) Not considering the violations on his constitutional rights
as an accused; and, (4) Not considering that there was no lawful warrantless
arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court. [15]
The conviction of del Rosario must be set aside. His claim for exemption
from criminal liability under Art. 12, par. 5, Revised Penal Code as he acted
under the compulsion of an irresistible force must be sustained. He was then
unarmed and unable to protect himself when he was prevented at gunpoint
by his co-accused from leaving the crime scene during the perpetration of the
robbery and killing, and was only forced to help them escape after the
commission of the crime.[16]
But the trial court ruled that his fear was merely speculative, fanciful and
remote, hence, could not be considered uncontrollable; and that a gun
pointed at him did not constitute irresistible force because it fell short of the
test required by law and jurisprudence.[17]
We disagree. A person who acts under the compulsion of an irresistible
force, like one who acts under the impulse of an uncontrollable fear of equal
or greater injury, is exempt from criminal liability because he does not act
with freedom. Actus me invito factus non est meus actus. An act done by me
against my will is not my act. The force contemplated must be so formidable
as to reduce the actor to a mere instrument who acts not only without will but
against his will. The duress, force, fear or intimidation must be present,
imminent and impending, and of such nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act be done. A threat of
future injury is not enough. The compulsion must be of such a character as to
leave no opportunity for the accused for escape or self-defense in equal
combat.[18]
As a rule, it is natural for people to be seized by fear when threatened
with weapons, even those less powerful that a gun, such as knives and
clubs. People will normally, usually and probably do what an armed man
asks them to do, nothing more, nothing less. In the instant case, del Rosario
was threatened with a gun. He could not therefore be expected to flee nor
risk his life to help a stranger. A person under the same circumstances would
be more concerned with his personal welfare and security rather than the
safety of a person whom he only saw for the first time that day.[19]
Corollary with defense of del Rosario, we hold that the trial court erred
when it said that it was Boy Santos who left the tricycle to chase the
companion of the victim and then shot the victim on the head, instantly killing
her.[20] A careful and meticulous scrutiny of the transcripts and records of the
case, particularly the testimonies of the witness Alonzo and del Rosario
himself, reveals that it was Jun Marquez who ran after the victims helper and
fired at the victim. Witness Alonzo testified on direct examination -
Q: What was that unusual incident that transpired in that place at that
time?
A: I saw two men and a lady grappling for the possession of a bag, sir x x
xx
 Q: What happened after the bag of the lady was grabbed by the two A: At the time one man was kicking the victim it was then his other
men? companion holding the gun chased the helper of the deceased
going towards Burgos Avenue, sir.
A: One helper of the lady was chased by the other man, sir.
Q: What happen (sic) afterwards?
Q: Who was that man who chased the helper of the lady?
A: The man with the gun returned and then while the victim was lying
A: He was the one holding the gun, sir x x x x down in this spot the man holding the gun shot the victim, sir.[22]
Q: What happened when the bag of the woman was already taken by the On cross-examination, the same witness further clarified
two men who grappled the same from her?
Q: So, you saw the two other accused returned back to the tricycle?
A: The man who chased the helper of the lady returned to the scene while
the other man was then kicking the lady who in turn fell to the A: Yes, sir.
ground, sir.
Q: And one of their companion was already inside the tricycle?
Q: What happened to the lady who to the ground?
xxxx
A: The man who chased the helper of the lady returned and then shot the
woman who was then lying on the ground, sir x x x x Court: There was somebody inside the tricycle where the handbag
was given.
Q: What about the bag, what happened to the bag?
xxxx
A: The bag was taken to a motorcycle, sir.
A: Yes, sir.
Q: Will you please state before the Court what you noticed from the
tricycle which was at a distance of about one and a half meter? Q: And the one who sat at the back of the tricycle driver was the
person with the gun?
A: There was a passenger inside the tricycle, sir x x x x
A: Yes, sir.[23]
Q: What happened to that woman that was shot by the man who grappled
for the possession of the bag? On the other hand, accused Del Rosario declared during the direct
examination that
A: She was no longer moving and lying down, sir.
Q: x x x x On the evening of May 13, 1996 you were the driver of the
Q: After the shooting by one of the two men of the woman what else tricycle as testified to by Eduardo Nalagon?
happened?
A: Yes, sir.
A: They went away, sir x x x x
Q: Now, you also heard that there was a shoot out near the Cathedral and
Q: Will you please tell the Court in what portion of the tricycle did these the Nitas Drugstore at Gen. Tinio St.?
men sit in the tricycle?
A: Yes, sir.
A: The man who was holding the gun sat himself behind the
driver while the other man entered the sidecar, sir.[21] xxxx

On the continuation of his direct examination, after an ocular inspection Court: At that time you were seated at the tricycle, which tricycle was
on the crime scene conducted by the trial court, witness Alonzo categorically used by the assailants?
stated A: Yes, sir.
Q: Will you please tell us where in particular did you see the accused who Q: Then what did you do?
was then holding the gun fired at the victim?
A: I tried to escape, sir, but I was stopped by them.
Q: When you said they to whom are you referring?
A: Boy Santos and Jun Marquez, sir.
Q: And at that time where was Boy Santos?
A: He was inside the tricycle, sir.
Q: And what about Jun Marquez?
A: He alighted from the tricycle and helped him grabbed (sic) the bag
of the victim.
Q: And was the bag grabbed and by whom?
A: Yes, sir, by Dodong Visaya was able to grab the bag.
Q: And after that what happened?
A: Both of them rode inside my tricycle, sir.
Court: Did you not see any shooting?
A: There was, sir.
Q: Who was shot?
A: Jun Marquez shot the woman, sir x x x x
Q: When the bag of the woman was being grabbed you know that what
was transpiring was wrong and illegal?
A: Yes, sir.
Q: But you did not try to leave?
A: I tried to leave but Boy Santos who was inside my tricycle
prevented me.
Q: During that time before you leave (sic) how many firearms did you
see?
A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez and
one in the possession of Boy Santos x x x x
Q: And at the time when the shooting took place where was Boy Santos?
A: He was still inside my tricycle, sir.
Q: And during the shooting when Boy Santos was inside the tricycle and
when you tried to escape that was the time when Boy Santos
threatened you if you will escape something will happen to your
family?
A: Yes, sir.
Q: After the shooting who first boarded the tricycle, Boy (Jun?) Marquez
or Dodong Visaya?
A: Dodong Visaya, sir.
Q: And immediately thereafter Jun Marquez boarded your tricycle
sitting at your back?
A: Yes, sir.[24]
On cross-examination, accused further stated
Q: After shopping in that place for one minute what else happened?
A: I saw Dodong Bisaya grabbing the bag of the woman, sir.
Q: How about your two companions, what are (sic) they doing while
Dodong Bisaya was grabbing the bag of the woman?
A: Jun Marquez was helping Dodong Bisaya, sir.
Q: What happened after Jun Marquez helped Dodong Bisaya?
A: I heard a gunshot and I saw the woman lying down x x x x
Q: You could have ran away to seek the help of the police or any private
persons?
A: I was not able to ask for help because Boy Santos pointed his gun to
me, sir.
Q: Was the gun being carried by Boy Santos, is the one that is used in
shooting the old woman?
A: No, sir x x x x.
Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez were
grappling for the possession of the handbag?
A: He was then inside the tricycle, sir x x x x[25]
Q: Mr. Witness, you testified that the reason why you just cannot leave
the area where the incident occurred is because a gun was pointed
to you by Boy Santos and he was telling you that you should not do
anything against their will, they will kill you and your family will be
killed also, is that correct?
A: Yes, sir.
Q: Now, is it not a fact that at the time you stop (sic) your tricycle which
was loaded by your other three co-accused in this case, all of them
alighted and that Boy Santos ran after a helper of the victim going
towards the public market along Burgos Street?
 A: He did not alight from the tricycle, sir.
Court: Are you quite sure of that?
A: Yes, sir.[26]
Del Rosario maintains that Boy Santos never left the tricycle and that
the latter pointed his gun at him and threatened to shoot if he tried to
escape. He also asserted that it was Jun Marquez who shot the victim and
sat behind him in the tricycle.
From the narration of witness Alonzo, these events stood out: that after
the bag of the victim was grabbed, her male helper was chased by a man
holding a gun; that the gunwielder returned and shot the victim and then sat
behind the driver of the tricycle; and, the bag was given to a person who was
inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition
with the testimony of del Rosario, it can be deduced that Jun Marquez was
the person witness Alonzo was referring to when he mentioned that a helper
of the lady was chased by the other man and that this other man could not be
Boy Santos who stayed inside the tricycle and to whom the bag was handed
over. This conclusion gives credence to the claim of del Rosario that Boy
Santos never left the tricycle, and to his allegation that Boy Santos stayed
inside the tricycle precisely to threaten him with violence and prevent him
from fleeing; that there could have been no other plausible reason for Boy
Santos to stay in the tricycle if the accused was indeed a conspirator; that
Boy Santos could have just left the tricycle and helped in the commission of
the crime, particularly when he saw the victim grappling with Dodong Bisaya
and resisting the attempts to grab her bag; and, that Boy Santos opted to
remain inside the tricycle to fulfill his preordained role of threatening del
Rosario and insuring that he would not escape and leave them behind.[27]
Even if the tricycle of del Rosario was only parked one meter and a half
(1) in front of the tricycle of witness Alonzo, the latter still could not have
totally seen and was not privy to events that were transpiring inside the
vehicle, i.e., the pointing of the gun by Boy Santos at del Rosario
simultaneously with the robbing and shooting of the victim. From the exhibits
submitted by the prosecution panel the back of the sidecar of del Rosario
tricycle was not transparent.[28]
There is no doubt that the fear entertained by del Rosario because of
the gun directly pointed at him was real and imminent. Such fear
rendered him immobile and subject to the will of Boy Santos, making him for
the moment of automaton without a will of his own. In other words, in effect,
he could not be any more than a mere instrument acting involuntarily an
against his will. He is therefore exempt from criminal liability since by reason
of fear of bodily harm he was compelled against his will to transport his co-
accused away from the crime scene.
On the issue of conspiracy, the trial court anchored del Rosarios
conviction on his participation in the orchestrated acts of Boy Santos, Jun
Marquez and Dodong Bisaya. According to the trial court, del Rosario
facilitated the escape of the other malefactors from the crime scene and
conspiracy between accused and his passengers was evident because while
the grappling of the bag, the chasing of the helper of the victim and the
shooting that led to the death of Virginia Bernas were happening, accused
Joselito del Rosario was riding on his tricycle and the engine of the motor
was running;[29] that the accused did not deny that the tricycle driven by him
and under his control was hired and used by his co-accused in the
commission of the crime; neither did he deny his failure to report to the
authorities the incident of robbery, killing and fleeing away from the scene of
the crime.[30]
We disagree with the trial court. A conspiracy in the statutory language
exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The objective of the
conspirators is to perform an act or omission punishable by law. That must
be their intent. There is need for concurrence of wills or unity of action and
purpose or for common and joint purpose and design. Its manifestation could
be shown by united and concerted action.[31]
Admittedly, direct proof is not essential to establish conspiracy. Since by
its nature conspiracy is planned in utmost secrecy, it can rarely be proved by
direct evidence. Consequently, the presence of the concurrence of minds
which is involved in conspiracy may be inferred from proof of facts and
circumstances which, taken together, apparently indicate that they are
merely parts of some complete whole. If it is proved that two or more persons
aimed by their acts towards the accomplishment of the same unlawful object,
each doing a part so that their combined acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness
of personal association and a concurrence of sentiment, a conspiracy may
be inferred though no actual meeting among them to concert means is
proved. That would be termed an implied conspiracy.[32] Nevertheless, mere
knowledge, acquiescence or approval of the act, without the cooperation or
agreement to cooperate, is not enough to constitute one a party to a
conspiracy, but that there must be intentional participation in the transaction
with a view to the furtherance of the common design and
purpose. Conspiracy must be established, not by conjectures, but by positive
and conclusive evidence. In fact, the same degree of proof necessary to
establish the crime is required to support a finding of the presence of a
criminal conspiracy, which is, proof beyond reasonable doubt.[33]
In the instant case, while del Rosario admits that he was at the locus
criminis as he was the driver of the getaway vehicle, he nonetheless rebuts
the imputation of guilt against him by asserting that he had no inkling of the
malevolent design of his co-accused to rob and kill since he was not given
any briefing thereof. He was merely hired by Boy Santos to drive to an
agreed destination and he was prevented at gunpoint from leaving the scene
of the crime since he was ordered to help them escape.
In this case, the trial court stated that "there is no evidence that the
accused came to an agreement concerning the commission of the felony and
decided to commit the same."[34]Therefore, in order to convict the accused,
the presence of an implied conspiracy is required to be proved beyond
reasonable doubt. However, the fact that del Rosario was with the other
accused when the crime was committed is insufficient proof to show
cabal. Mere companionship does not establish conspiracy. [35] The only
incriminating evidence against del Rosario is that he was at the scene of the
crime but he has amply explained the reason for his presence and the same
has not been successfully refuted by the prosecution. As stated earlier, he
feared for his safety and security because of the threat made by his co-
accused that he would, be killed should he shout for help. No complicity can
be deduced where there is absolutely no showing that the accused directly
participated in the overt act of robbing and shooting although he was with the
persons who robbed and killed the victim.[36]
That del Rosario did not disclose what he knew about the incident to the
authorities, to his employer or to the barangay captain does not affect his
credibility. The natural hesitance of most people to get involved in a criminal
case is of judicial notice.[37] It must be recalled that del Rosario was merely a
tricycle driver with a family to look after. Given his quite limited means, del
Rosario understandably did not want to get involved in the case so he chose
to keep his silence. Besides, he was threatened with physical harm should
he squeal.
Del Rosario further contends that there was violation of his right to
remain silent, right to have competent and independent counsel preferably of
his own choice, and right to be informed of these rights as enshrined and
guaranteed in the Bill of Rights.[38] As testified to by SP04 Geronimo de Leon,
the prosecution witness who was the team leader of the policemen who
investigated the 13 May incident, during his cross-examination -
Upon finding the name of the owner of the tricycle, they proceeded to Bakod
Bayan in the house of the barangay captain where the owner of the tricycle
was summoned and who in turn revealed the driver's name and was invited
for interview. The driver was accused Joselito del Rosario who volunteered
to name his passengers on May 13, 1996. On the way to the police station,
accused informed them of the bag and lunch kit's location and the place
where the hold-uppers may be found and they reported these findings to their
officers, Capt. Biag and Capt.Cruz. After lunch, they proceeded to
Brgy. Dicarma composed of 15 armed men where a shoot-out transpired that
lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they
went inside the house where they found Marquez dead holding a magazine
and a gun. While all of these were happening, accused del Rosario was at
the back of the school, after which they went back to the police station. The
investigator took the statement of the accused on May 14,1996, and was
only subscribed on May 22,1996. All the while, he was detained in the police
station as ordered by the Fiscal. His statements were only signed on May 16,
1996. He also executed a waiver of his detention. His Sinumpaang Salaysay
was done with the assistance of Ex-Judge Talavera.[39]
A further perusal of the transcript reveals that during the encounter at
Brgy. Dicarma, del Rosario was handcuffed by the police because allegedly
they had already gathered enough evidence against him and they were
afraid that he might attempt to escape.[40]
Custodial investigation is the stage where the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police who carry out a process of
interrogation that lends itself to elicit incriminating statements. It is well-
settled that it encompasses any question initiated by law enforcers after a
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.[41] This concept of custodial investigation has
been broadened by RA 7438[42] to include "the Practice of issuing
an 'invitation' to a person who is investigated in connection with an offense
he is suspected to have committed." Section 2 of the same Act further
provides that -
x x x x Any public officer or employee, or anyone acting under his order or in
his place, who arrests, detains or investigates any person for the commission
of an offense shall inform the latter, in a language known and understood by
him of his right to remain silent and to have competent and independent
counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own counsel,
he must be provided with a competent and independent counsel by the
investigating officer.
From the foregoing, it is clear that del Rosario was deprived of his rights
during custodial investigation. From the time he was "invited" for questioning
at the house of the barangay captain, he was already
under effective custodial investigation, but he was not apprised nor made
aware thereof by the investigating officers. The police already knew the
name of the tricycle driver and the latter was already a suspect in the robbing
and senseless slaying of Virginia Bernas. Since the prosecution failed to
establish that del Rosario had waived his right to remain silent, his verbal
admissions on his participation in the crime even before his actual arrest
were inadmissible against him, as the same transgressed the safeguards
provided by law and the Bill of Rights.
 Del Rosario also avers that his arrest was unlawful since there was no
warrant therefor. Section 5, Rule 113 of the Rules of Court provides:[43]
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person: (a) When, in his presence,
the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; (b) When an offense has in fact been
committed and he has personal knowledge of facts indicating that the person
to be arrested has committed it; and, (c) When the person to be arrested is a
prisoner who has escaped from penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.
It must be recalled that del Rosario was arrested by SPO4 De Leon
during the police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14
May 1996. In People vs Sucro[44] we held that when a police officer sees the
offense, although at a distance, or hears the disturbances created thereby,
and proceeds at once to the scene thereof, he may effect an arrest without a
warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is
deemed committed in his presence or within his view. In essence, Sec. 5,
par. (a), Rule 113, requires that the accused be caught in flagrante delicto or
caught immediately after the consummation of the act. The arrest of del
Rosario is obviously outside the purview of the aforequoted rule since he was
arrested on the day following the commission of the robbery with homicide.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2)
stringent requirements before a warrantless arrest can be effected: (1) an
offense has just been committed; and (2) the person making the arrest
has personal knowledge of facts indicating that the person to be arrested had
committed it. Hence, there must be a large measure of immediacy between
the time the offense was committed and the time of the arrest, and if there
was an appreciable lapse of time between the arrest and the commission of
the crime, a warrant of arrest must be secured. Aside from the sense of
immediacy, it is also mandatory that the person making the arrest must
have personal knowledge of certain facts indicating that the person to be
taken into custody has committed the crime.[45] Again, the arrest of del
Rosario does not comply with these requirements since, as earlier explained,
the arrest came a day after the consummation of the crime and not
immediately thereafter. As such, the crime had not been "just committed" at
the time the accused was arrested. Likewise, the arresting officers had no
personal knowledge of facts indicating that the person to be arrested had
committed the offense since they were not present and were not actual
eyewitnesses to the crime, and they became aware of his identity as the
driver of the getaway tricycle only during the custodial investigation.
However the conspicuous illegality of del Rosario's arrest cannot affect
the jurisdiction of the court a quo because even in instances not allowed by
law, a warrantless arrest is not a jurisdictional defect and any objection
thereto is waived when the person arrested submits to arraignment without
any objection, as in this case.[46]
A transgression of the law has occurred. Unfortunately, an innocent
person lost her life and property in the process. Someone therefore must be
held accountable, but it will not be accused Joselito del Rosario; we must
acquit him. Like victim Virginia Bernas, he too was a hapless victim who was
forcibly used by other persons with nefarious designs to perpetrate a
dastardly act. Del Rosario's defense of "irresistible force" has been
substantiated by clear and convincing evidence. On the other hand,
conspiracy between him and his co-accused was not proved beyond a
whimper of a doubt by the prosecution, thus clearing del Rosario of any
complicity in the crime charged.
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan
City convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery
with Homicide and sentencing him to death, is REVERSED and SET ASIDE,
and the accused is ACQUITTED of the crime charged. His immediate
RELEASE from confinement is ordered unless held for some other lawful
cause. In this regard, the Director of Prisons is directed to report to the Court
his compliance herewith within five (5) days from receipt hereof.
SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, P
THIRD DIVISION
[G.R. No. 121917. March 12, 1997]
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA,
petitioner, vs. COURT OF APPEALS and
PEOPLE of the PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
 On October 26, 1992, high-powered firearms with live
ammunitions were found in the possession of petitioner
Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson,
SN-32919 with six (6) live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP
131120 with four (4) long and one (1) short
magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip
and eight (8) ammunitions; and
"(4) Six additional live double action ammunitions of
.38 caliber revolver."
[1]
Petitioner was correspondingly charged on
December 3, 1992, before the Regional Trial Court
(RTC) of Angeles City with illegal possession of firearms
and ammunitions under P.D. 1866 thru the following
[2]
Information:[3]
"That on or about the 26th day of October, 1992, in the
City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and
feloniously have in his possession and under his
custody and control one (1) M-16 Baby Armalite rifle,
SN-RP 131120 with four (4) long and one (1) short
magazines with ammunitions, one (1) .357 caliber
revolver Smith and Wesson, SN-32919 with six (6)
live ammunitions and one (1) .380 Pietro Beretta, SN-
A35723Y with clip and eight (8) ammunitions, without
having the necessary authority and permit to carry and
possess the same.
ALL CONTRARY TO LAW." [4]
The lower court then ordered the arrest of petitioner, but [5]
granted his application for bail. During the arraignment
[6]
on January 20, 1993, a plea of not guilty was entered for
petitioner after he refused, upon advice of counsel, to
[7] [8]
make any plea. Petitioner waived in writing his right to
[9]
be present in any and all stages of the case. [10]
After trial, Angeles City RTC Judge David Rosete
rendered judgment dated April 25, 1994 convicting
petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1
day of reclusion temporal as minimum, to 21 years
of reclusion perpetua, as maximum". Petitioner filed his
[11]
notice of appeal on April 28, 1994. Pending the appeal
[12]
in the respondent Court of Appeals, the Solicitor- [13]
General, convinced that the conviction shows strong
evidence of guilt, filed on December 2, 1994 a motion to
cancel petitioner's bail bond. The resolution of this
motion was incorporated in the now assailed respondent
court's decision sustaining petitioner's conviction, the [14]
dispositive portion of which reads:
"WHEREFORE, the foregoing circumstances
considered, the appealed decision is hereby
AFFIRMED, and furthermore, the P200,000.00
bailbond posted by accused-appellant for his
provisional liberty, FGU Insurance Corporation Bond
No. JCR (2) 6523, is hereby cancelled. The Regional
Trial Court, Branch 61, Angeles City, is directed to
issue the Order of Arrest of accused-appellant and
thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the
said accused-appellant shall remain under confinement
pending resolution of his appeal, should he appeal to
the Supreme Court. This shall be immediately
 executory. The Regional Trial Court is further directed
to submit a report of compliance herewith.
SO ORDERED." [15]
Petitioner received a copy of this decision on July 26,
1995. On August 9, 1995 he filed a "motion for
[16]
reconsideration (and to recall the warrant of arrest)" but
the same was denied by respondent court in its
September 20, 1995 Resolution, copy of which was [18]
received by petitioner on September 27, 1995. The next
day, September 28, petitioner filed the instant petition for
review on certiorari with application for bail followed by
[19]
two "supplemental petitions" filed by different
counsels, a "second supplemental petition" and an
[20]
urgent motion for the separate resolution of
his application for bail. Again, the Solicitor-
General sought the denial of the application for bail, to
[22]
which the Court agreed in a Resolution promulgated on
July 31, 1996. The Court also granted the Solicitor-
[23]
General's motion to file a consolidated comment on the
petitions and thereafter required the petitioner to file his
reply. However, after his vigorous resistance and
[24]
success on the intramural of bail (both in the respondent
court and this Court) and thorough exposition of
petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete
turnabout by filing a "Manifestation In Lieu Of Comment"
praying for petitioner's acquittal. [25]
The People's detailed narration of facts, well-
supported by evidence on record and given credence by
respondent court, is as follows: [26]
"At about 8:00 o'clock in the evening of October 26,
1992, Enrique Manarang and his compadre Danny
Perez were inside the Manukan sa Highway Restaurant
in Sto. Kristo, Angeles City where they took shelter
from the heavy downpour (pp. 5-6, TSN, February 15,
1993) that had interrupted their ride on motorcycles
(pp. 5-6, ibid.) along McArthur Highway (ibid). While
inside the restaurant, Manarang noticed a vehicle, a
Mitsubishi Pajero, running fast down the highway
[17]
prompting him to remark that the vehicle might get
into an accident considering the inclement weather. (p.
7, Ibid) In the local vernacular, he said thus: 'Ka bilis
na, mumuran pa naman pota makaaksidente ya.' (p.
7, ibid). True enough, immediately after the vehicle
had passed the restaurant, Manarang and Perez heard a
screeching sound produced by the sudden and hard
[21]
braking of a vehicle running very fast (pp. 7-
8, ibid) followed by a sickening sound of the vehicle
hitting something (p. 8, ibid).Danny Cruz, quite sure of
what had happened, remarked 'oy ta na' signifying that
Manarang had been right in his observation (pp. 8-
9, ibid).
"Manarang and Cruz went out to investigate and
immediately saw the vehicle occupying the edge or
shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both the
Spectrum, a civic group and the Barangay Disaster
Coordinating Council, decided to report the incident to
the Philippine National Police of Angeles City (p.
10, ibid). He took out his radio and called the Viper,
the radio controller of the Philippine National Police of
Angeles City (p. 10, ibid). By the time Manarang
completed the call, the vehicle had started to leave the
place of the accident taking the general direction to the
north (p. 11, ibid).
"Manarang went to the location of the accident and
found out that the vehicle had hit somebody (p.
11, ibid).
"He asked Cruz to look after the victim while he went
back to the restaurant, rode on his motorcycle and
chased the vehicle (p. 11 ibid). During the chase he
was able to make out the plate number of the vehicle
as PMA 777 (p. 33, TSN, February 15, 1993). He
called the Viper through the radio once again (p.
34, ibid) reporting that a vehicle heading north with
plate number PMA 777 was involved in a hit and run
accident (p. 20, TSN, June 8, 1993). The Viper, in the
person of SPO2 Ruby Buan, upon receipt of the second
radio call flashed the message to all units of PNP
Angeles City with the order to apprehend the vehicle
(p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake
Gonzales Street near the Traffic Division (pp. 5-7,
TSN, February 23, 1993). SPO2 Juan C. Borja III and
SPO2 Emerlito Miranda immediately borded a mobile
patrol vehicle (Mobile No. 3) and positioned
themselves near the south approach of Abacan bridge
since it was the only passable way going to the north
(pp. 8-9, ibid). It took them about ten (10) seconds to
cover the distance between their office and the Abacan
bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to
the flash message from SPO2 Buan was Mobile No. 7
of the Pulongmaragal Detachment which was then
conducting patrol along Don Juico Avenue (pp. 8-9,
TSN, March 8, 1993). On board were SPO Ruben
Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid).
SPO Ruben Mercado immediately told SPO3 Tan to
proceed to the MacArthur Highway to intercept the
vehicle with plate number PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the
vehicle which figured in the hit and run incident, even
passing through a flooded portion of the MacArthur
Highway two (2) feet deep in front of the Iglesia ni
Kristo church but he could not catch up with the same
vehicle (pp. 11-12, February 15, 1993). When he saw
that the car he was chasing went towards Magalang, he
proceeded to Abacan bridge because he knew
Pulongmaragal was not passable (pp. 12-
14, ibid). When he reached the Abacan bridge, he
found Mobile No. 3 and SPO2 Borja and SPO2
Miranda watching all vehicles coming their way (p. 10,
TSN, February 23, 1993). He approached them and
informed them that there was a hit and run incident (p.
10, ibid). Upon learning that the two police officers
already knew about the incident, Manarang went back
to where he came from (pp. 10-11; ibid). When
Manarang was in front of Tina's Restaurant, he saw the
vehicle that had figured in the hit and run incident
emerging from the corner adjoining Tina's Restaurant
(p. 15, TSN, February 15, 1993). He saw that the
license plate hanging in front of the vehicle bore the
identifying number PMA 777 and he followed it (p.
15, ibid) towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and
SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February
23, 1993). When the vehicle was about twelve (12)
meters away from their position, the two police
officers boarded their Mobile car, switched on the
engine, operated the siren and strobe light and drove
out to intercept the vehicle (p. 11, ibid). They cut into March 8, 1993). As the most senior police officer in
the path of the vehicle forcing it to stop (p. 11, ibid). the group, SPO Mercado took over the matter and
informed appellant that he was being arrested for the
"SPO2 Borja and SPO2 Miranda alighted from Mobile
hit and run incident (p. 13, ibid). He pointed out to
No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda
appellant the fact that the plate number of his vehicle
went to the vehicle with plate number PMA 777 and
was dangling and the railing and the hood were dented
instructed its driver to alight (p. 12, ibid). The driver
(p. 12, ibid). Appellant, however, arrogantly denied
rolled down the window and put his head out while
his misdeed and, instead, played with the crowd by
raising both his hands. They recognized the driver as
holding their hands with one hand and pointing to
Robin C. Padilla, appellant in this case (p.
SPO3 Borja with his right hand saying 'iyan, kinuha
13, ibid). There was no one else with him inside the
ang baril ko' (pp. 13-15, ibid). Because appellant's
vehicle (p. 24). At that moment, Borja noticed that
jacket was short, his gesture exposed a long magazine
Manarang arrived and stopped his motorcycle behind
of an armalite rifle tucked in appellant's back right
the vehicle of appellant (p. 14, ibid). SPO2 Miranda
pocket (p. 16, ibid). SPO Mercado saw this and so
told appellant to alight to which appellant
when appellant turned around as he was talking and
complied. Appellant was wearing a short leather jacket
proceeding to his vehicle, Mercado confiscated the
(p. 16, TSN, March 8, 1993) such that when he
magazine from appellant (pp. 16-17, ibid). Suspecting
alighted with both his hands raised, a gun (Exhibit 'C')
that appellant could also be carrying a rifle inside the
tucked on the left side of his waist was revealed (p. 15,
vehicle since he had a magazine, SPO2 Mercado
TSN, February 23, 1993), its butt protruding (p.
prevented appellant from going back to his vehicle by
15, ibid). SPO2 Borja made the move to confiscate the
opening himself the door of appellant's vehicle (16-
gun but appellant held the former's hand alleging that
17, ibid). He saw a baby armalite rifle (Exhibit
the gun was covered by legal papers (p.
D) lying horizontally at the front by the driver's seat. It
16, ibid). SPO2 Borja, however, insisted that if the gun
had a long magazine filled with live bullets in a semi-
really was covered by legal papers, it would have to be
automatic mode (pp. 17-21, ibid). He asked appellant
shown in the office (p. 16, ibid). After disarming
for the papers covering the rifle and appellant
appellant, SPO2 Borja told him about the hit and run
answered angrily that they were at his home (pp. 26-
incident which was angrily denied by appellant (p.
27, ibid). SPO Mercado modified the arrest of
17, ibid). By that time, a crowd had formed at the place
appellant by including as its ground illegal possession
(p. 19, ibid). SPO2 Borja checked the cylinder of the
of firearms (p. 28, ibid). SPO Mercado then read to
gun and find six (6) live bullets inside (p. 20, ibid).
appellant his constitutional rights (pp. 28-29, ibid).
"While SPO2 Borja and appellant were arguing,
"The police officers brought appellant to the Traffic
Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan
Division at Jake Gonzales Boulevard (pp. 31-32, ibid)
and SPO2 Odejar on board arrived (pp. 11-12, TSN,
where appellant voluntarily surrendered a third
 firearm, a pietro berreta pistol (Exhibit 'L') with a
single round in its chamber and a magazine (pp. 33-
35, ibid) loaded with seven (7) other live
bullets. Appellant also voluntarily surrendered a black
bag containing two additional long magazines and one
short magazine (Exhibits M, N, and O, pp. 36-
37, ibid). After appellant had been interrogated by the
Chief of the Traffic Division, he was transferred to the
Police Investigation Division at Sto. Rosario Street
beside the City Hall Building where he and the
firearms and ammunitions were turned over to SPO2
Rene Jesus Gregorio (pp. 5-10, TSN, July 13,
1993). During the investigation, appellant admitted
possession of the firearms stating that he used them for
shooting (p. 14, ibid). He was not able to produce any
permit to carry or memorandum receipt to cover the
three firearms (pp. 16-18, TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F')
was issued by Captain, Senior Inspector Mario Espino,
PNP, Chief, Record Branch of the Firearms and
Explosives Office (pp. 7-8, TSN, March 4, 1993). The
Certification stated that the three firearms confiscated
from appellant, an M-16 Baby armalite rifle SN-RP
131280, a .357 caliber revolver Smith and Wesson SN
32919 and a .380 Pietro Beretta SN-A35720, were not
registered in the name of Robin C. Padilla (p.
6, ibid). A second Certification dated December 11,
1992 issued by Captain Espino stated that the three
firearms were not also registered in the name of
Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his
arrest was illegal and consequently, the firearms and
ammunitions taken in the course thereof are inadmissible
in evidence under the exclusionary rule; (2) that he is a
confidential agent authorized, under a Mission Order and
Memorandum Receipt, to carry the subject firearms; and
(3) that the penalty for simple illegal possession
constitutes excessive and cruel punishment proscribed
by the 1987 Constitution.
After a careful review of the records of this case, the
[27]
Court is convinced that petitioner's guilt of the crime
charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
Anent the first defense, petitioner questions the
legality of his arrest. There is no dispute that no warrant
was issued for the arrest of petitioner, but that per se did
not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following
instances:[28]
"Sec. 5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it.
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending,
 or has escaped while being transferred from one
confinement to another.
Paragraph (a) requires that the person be arrested (i)
after he has committed or while he is actually committing
or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. Both
elements concurred here, as it has been established that
petitioner's vehicle figured in a hit and run - an offense
committed in the "presence" of Manarang, a private
person, who then sought to arrest petitioner. It must be
stressed at this point that "presence" does not only
require that the arresting person sees the offense, but
also when he "hears the disturbance created thereby
AND proceeds at once to the scene." As testified to by
[30]
Manarang, he heard the screeching of tires followed by a
thud, saw the sideswiped victim (balut vendor), reported
the incident to the police and thereafter gave chase to
the erring Pajero vehicle using his motorcycle in order to
apprehend its driver. After having sent a radio report to
the PNP for assistance, Manarang proceeded to the
Abacan bridge where he found responding policemen
SPO2 Borja and SPO2 Miranda already positioned near
the bridge who effected the actual arrest of petitioner.
Petitioner would nonetheless insist on the illegality of
his arrest by arguing that the policemen who actually
arrested him were not at the scene of the hit and
run. We beg to disagree.That Manarang decided to
[32]
seek the aid of the policemen (who admittedly were
nowhere in the vicinity of the hit and run) in effecting
petitioner's arrest, did not in any way affect the propriety
of the apprehension. It was in fact the most prudent
action Manarang could have taken rather than collaring
petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in
effecting an arrest of a suspect (like herein petitioner)
who , in all probability, could have put up a degree of
resistance which an untrained civilian may not be able to
contain without endangering his own life. Moreover, it is
a reality that curbing lawlessness gains more success
[29]
when law enforcers function in collaboration with private
citizens. It is precisely through this cooperation, that the
offense herein involved fortunately did not become an
additional entry to the long list of unreported and
unsolved crimes.
It is appropriate to state at this juncture that a
suspect, like petitioner herein, cannot defeat the arrest
which has been set in motion in a public place for want of
a warrant as the police was confronted by an urgent
need to render aid or take action. The exigent [33]
circumstances of - hot pursuit, a fleeing suspect, a
[34]
moving vehicle, the public place and the raining
nighttime - all created a situation in which speed is
essential and delay improvident. The [35]
Court
acknowledges police authority to make the forcible stop
since they had more than mere "reasonable and
[31]
articulable" suspicion that the occupant of the vehicle
has been engaged in criminal activity. Moreover, when
[36]
caught in flagrante delicto with possession of an
unlicensed firearm (Smith & Wesson) and ammunition
(M-16 magazine), petitioner's warrantless arrest was
proper as he was again actually committing another
offense (illegal possession of firearm and ammunitions)
and this time in the presence of a peace officer. [37]
Besides, the policemen's warrantless arrest of
petitioner could likewise be justified under paragraph (b)
as he had in fact just committed an offense. There was
no supervening event or a considerable lapse of time
between the hit and run and the actual
apprehension. Moreover, after having stationed
themselves at the Abacan bridge in response to
Manarang's report, the policemen saw for themselves
the fast approaching Pajero of petitioner, its dangling[38]
plate number (PMA 777 as reported by Manarang), and
the dented hood and railings thereof. These formed part
[39]
of the arresting police officer's personal knowledge of the
facts indicating that petitioner's Pajero was indeed the
vehicle involved in the hit and run incident. Verily then,
the arresting police officers acted upon verified personal
knowledge and not on unreliable hearsay information.
Furthermore, in accordance with settled
jurisprudence, any objection, defect or irregularity
attending an arrest must be made before the accused
enters his plea. Petitioner's belated challenge thereto
[41]
aside from his failure to quash the information, his
participation in the trial and by presenting his evidence,
placed him in estoppel to assail the legality of his
arrest. Likewise, by applying for bail, petitioner patently
[42]
waived such irregularities and defects. [43]
We now go to the firearms and ammunitions seized
from petitioner without a search warrant, the admissibility
in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless
search and seizure of property is valid, are as follows:
[44]
1. warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the
Rules of Court and by prevailing jurisprudence ,
[45]
2. Seizure of evidence in "plain view", the elements
of which are: [47]
(a). a prior valid intrusion based on the
valid warrantless arrest in which the police
are legally present in the pursuit of their
official duties;
(b). the evidence
was inadvertently discovered by the police
who had the right to be where they are;
(c). the evidence must be immediately
apparent, and
(d). "plain view" justified mere seizure of
evidence without further search. [48]
[40]
3. search of a moving vehicle. Highly regulated
[49]
by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity. [50]
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it
indeed appears that the authorities stumbled upon
petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly
understood, is a prying into hidden places for that which
is concealed. The seizure of the Smith & Wesson
[51]
revolver and an M-16 rifle magazine was justified for they
[46] came within "plain view" of the policemen
who inadvertently discovered the revolver and magazine
tucked in petitioner's waist and back pocket respectively,
when he raised his hands after alighting from his
Pajero. The same justification applies to the confiscation
of the M-16 armalite rifle which was immediately
apparent to the policemen as they took a casual glance
at the Pajero and saw said rifle lying horizontally near the
driver's seat. Thus it has been held that:
[52]
"(W)hen in pursuing an illegal action or in the
commission of a criminal offense, the . . . police
officers should happen to discover a criminal offense
being committed by any person, they are not precluded
from performing their duties as police officers for the
apprehension of the guilty person and the taking of
the corpus delicti." [53]
"Objects whose possession are prohibited by law
inadvertently found in plain view are subject to seizure
even without a warrant." [54]
With respect to the Berreta pistol and a black bag
containing assorted magazines, petitioner voluntarily
surrendered them to the police. This latter gesture of
[55]
petitioner indicated a waiver of his right against the
alleged search and seizure , and that his failure to
[56]
quash the information estopped him from assailing any
purported defect. [57]
Even assuming that the firearms and ammunitions
were products of an active search done by the
authorities on the person and vehicle of petitioner, their
seizure without a search warrant nonetheless can still be
justified under a search incidental to a lawful arrest (first
instance). Once the lawful arrest was effected, the police
may undertake a protective search of the passenger [58]
compartment and containers in the vehicle which are
within petitioner's grabbing distance regardless of the
nature of the offense. This satisfied the two-tiered test
[60]
of an incidental search: (i) the item to be searched
(vehicle) was within the arrestee's custody or area of
immediate control and
[61]
(ii) the search was
contemporaneous with the arrest. The products of that
[62]
search are admissible evidence not excluded by the
exclusionary rule. Another justification is a search of a
moving vehicle (third instance). In connection therewith,
a warrantless search is constitutionally permissible
when, as in this case, the officers conducting the search
have reasonable or probable cause to believe, before the
search, that either the motorist is a law-offender (like
herein petitioner with respect to the hit and run) or the
contents or cargo of the vehicle are or have been
instruments or the subject matter or the proceeds of
some criminal offense. [63]
Anent his second defense, petitioner contends that
he could not be convicted of violating P.D. 1866 because
he is an appointed civilian agent authorized to possess
and carry the subject firearms and ammunition as
evidenced by a Mission Order and Memorandum
[64]
Receipt duly issued by PNP Supt. Rodialo Gumtang, the
deputy commander of Task Force Aguila, Lianga,
Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two
requisites must be established, viz.: (1) the existence of
the subject firearm and, (2) the fact that the accused who
owned or possessed the firearm does not have the
corresponding license or permit to possess. The first
[65]
element is beyond dispute as the subject firearms and
ammunitions were seized from petitioner's possession
[66]
[59]
via a valid warrantless search, identified and offered in
evidence during trial. As to the second element, the
same was convincingly proven by the
prosecution.Indeed, petitioner's purported Mission Order did not even take the witness stand to explain his
and Memorandum Receipt are inferior in the face of the possession of the subject firearms.
more formidable evidence for the prosecution as our
"Even in appellant's Demurrer to Evidence filed after
meticulous review of the records reveals that the Mission
the prosecution rested contain no allegation of a
Order and Memorandum Receipt were mere
Memorandum Receipts and Mission Order authorizing
afterthoughts contrived and issued under suspicious
appellant to possess and carry the subject firearms.
circumstances. On this score, we lift from respondent
court's incisive observation. Thus: "At the initial presentation of appellant's evidence, the
witness cited was one James Neneng to whom a
"Appellant's contention is predicated on the
subpoena was issued. Superintendent Gumtang was
assumption that the Memorandum Receipts and
not even mentioned. James Neneng appeared in court
Mission Order were issued before the subject firearms
but was not presented by the defense. Subsequent
were seized and confiscated from him by the police
hearings were reset until the defense found
officers in Angeles City. That is not so. The evidence
Superintendent Gumtang who appeared in court
adduced indicate that the Memorandum Receipts and
without subpoena on January 13, 1994." [67]

Mission Order were prepared and executed long after

appellant had been apprehended on October 26, 1992. The Court is baffled why petitioner failed to produce
and present the Mission Order and Memorandum
"Appellant, when apprehended, could not show any
Receipt if they were really issued and existing before his
document as proof of his authority to possess and carry
apprehension.Petitioner's alternative excuses that the
the subject firearms. During the preliminary
subject firearms were intended for theatrical purposes, or
investigation of the charge against him for illegal
that they were owned by the Presidential Security Group,
possession of firearms and ammunitions he could not,
or that his Mission Order and Memorandum Receipt
despite the ample time given him, present any proper
were left at home, further compound their irregularity. As
document showing his authority. If he had, in actuality,
to be reasonably expected, an accused claiming
the Memorandum Receipts and Missions Order, he
innocence, like herein petitioner, would grab the earliest
could have produced those documents easily, if not at
opportunity to present the Mission Order and
the time of apprehension, at least during the
Memorandum Receipt in question and save himself from
preliminary investigation. But neither appellant nor his
the long and agonizing public trial and spare him from
counsel inform the prosecutor that appellant is
proffering inconsistent excuses. In fact, the Mission
authorized to possess and carry the subject firearms
Order itself, as well as the Letter-Directive of the AFP
under Memorandum Receipt and Mission Order. At
Chief of Staff, is explicit in providing that:
the initial presentation of his evidence in court,
appellant could have produced these documents to "VIII. c. When a Mission Order is requested for
belie the charged against him. Appellant did not. He verification by enforcement units/personnels such
 as PNP, Military Brigade and other Military Police
Units of AFP, the Mission Order should be shown
without resentment to avoid embarrassment and/or
misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction
that the confidential instruction will be carried out
through all legal means and do not cover an
actuation in violation of laws. In the latter event,
this Mission Order is rendered inoperative in
respect to such violation."[68]
which directive petitioner failed to heed without cogent
explanation.
The authenticity and validity of the Mission Order and
Memorandum Receipt, moreover, were ably
controverted. Witness for the prosecution Police Supt.
Durendes denied under oath his signature on the dorsal
side of the Mission Order and declared further that he did
not authorize anyone to sign in his behalf. His surname
[69]
thereon, we note, was glaringly misspelled as
"Durembes." In addition, only Unit Commanders and
[70]
Chief of Offices have the authority to issue Mission
Orders and Memorandum Receipts under the Guidelines
on the Issuance of MOs, MRs, & PCFORs. PNP Supt. [71]
Rodialo Gumtang who issued petitioner's Mission Order
and Memorandum Receipt is neither a Unit Commander
nor the Chief of Office, but a mere deputy
commander. Having emanated from an unauthorized
source, petitioner's Mission Order and Memorandum
Receipt are infirm and lacking in force and
effect. Besides, the Mission Order covers "Recom 1-12-
Baguio City," areas outside Supt. Gumtang's area of
[72]
responsibility thereby needing prior approval "by next
higher Headquarters" which is absent in this case. The
[73]
Memorandum Receipt is also unsupported by a
certification as required by the March 5, 1988
Memorandum of the Secretary of Defense which
pertinently provides that:
"No memorandum receipt shall be issued for a CCS
firearms without corresponding certification from
the corresponding Responsible Supply Officer of
the appropriate AFP unit that such firearm has been
officially taken up in that units property book,
and that report of such action has been reported to
higher AFP authority."
Had petitioner's Memorandum Receipt been authentic,
we see no reason why he cannot present the
corresponding certification as well.
What is even more peculiar is that petitioner's name,
as certified to by the Director for Personnel of the PNP,
does not even appear in the Plantilla of Non-Uniform
Personnel or in the list of Civilian Agents or Employees
of the PNP which could justify the issuance of a Mission
Order, a fact admitted by petitioner's counsel. The [74]
implementing rules of P.D. 1866 issued by the then PC-
INP Chief and Director-General Lt. Gen. Fidel V. Ramos
are clear and unambiguous, thus:
"No Mission Order shall be issued to any civilian
agent authorizing the same to carry firearms
outside residence unless he/she is included in the
regular plantilla of the government agencyinvolved
in law enforcement and is receiving regular
compensation for the services he/she is rendering in
the agency. Further, the civilian agent must be
included in a specific law
enforcement/police/intelligence project proposal or
 special project which specifically required the use of
firearms(s) to insure its accomplishment and that the
project is duly approved at the PC Regional Command
level or its equivalent level in other major services of
the AFP, INP and NBI, or at higher levels of
command." [75]
Circular No. 1, dated January 6, 1986, of the then
Ministry of Justice likewise provides as follows:
"If mission orders are issued to civilians (not members
of the uniformed service), they must be civilian agents
included in the regular plantilla of the government
agency involved in law enforcement and are receiving
regular compensation for the service they are
rendering."
That petitioner's Mission Order and Memorandum
Receipt were fabricated pieces of evidence is
accentuated all the more by the testimony and
certification of the Chief of the Records Branch of the
firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or
registered in the name of the petitioner. Thus:
[76]
"Q. In all these files that you have just mentioned Mr.
Witness, what did you find, if any?
"A. I found that a certain Robin C. Padilla is a licensed
registered owner of one 9 mm pistol, Smith and Wesson
with Serial No. TCT 8214 and the following firearms
being asked whether it is registered or not, I did not
find any records, the M-16 and the caliber .357 and
the caliber .380 but there is a firearm with the same
serial number which is the same as that licensed
and/or registered in the name of one Albert
Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of
accused Robin C. Padilla is a pistol, Smith and
Wesson, caliber 9 mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case
are not listed in the names of the accused in this
case?
"A. Yes, sir.[77]
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE
NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 28 November 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St.,
Quezon City is a licensed/registered holder of Pistol Smith and
Wesson Cal 9mm with serial number TCT8214 covered by
License No. RL M76C4476687.
"Further certify that the following firearms are not
registered with this Office per verification from available
records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
 Revolver Cal 357 SN-3219 higher than a .38 caliber pistol, akin to the confiscated
Pistol Cal 380 Pietro Beretta SN-35723 firearms, cannot be licensed to a civilian, as in the case
[82]

of petitioner. The Court, therefore, entertains no doubt in

"However, we have on file one Pistol Cal 380, Beretta with
serial number 35723Y, licensed/registered to one Albert
Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM
under Re-Registered License.
affirming petitioner's conviction especially as we find no
plausible reason, and none was presented, to depart
from the factual findings of both the trial court and
respondent court which, as a rule, are accorded by the
Court with respect and finality.
[83]

"This certification is issued pursuant to Subpoena from City of

Angeles. Anent his third defense, petitioner faults respondent
court "in applying P.D. 1866 in a democratic ambience
"FOR THE CHIEF, FEO: (sic) and a non-subversive context" and adds that
respondent court should have applied instead the
(Sgd.) previous laws on illegal possession of firearms since the
reason for the penalty imposed under P.D. 1866 no
JOS longer exists. He stresses that the penalty of 17 years
[84]

E MARIO M. ESPINO and 4 months to 21 years for simple illegal possession of

Sr. firearm is cruel and excessive in contravention of the
Inspector, PNP Constitution. [85]

Chief,
The contentions do not merit serious consideration.
Records Branch" [78]
The trial court and the respondent court are bound to
apply the governing law at the time of appellant's
In several occasions, the Court has ruled that either
commission of the offense for it is a rule that laws are
the testimony of a representative of, or a certification
repealed only by subsequent ones. Indeed, it is the
[86]

from, the PNP Firearms and Explosives Office (FEO)

duty of judicial officers to respect and apply the law as it
attesting that a person is not a licensee of any firearm
stands. And until its repeal, respondent court can not
[87]

would suffice to prove beyond reasonable doubt the

be faulted for applying P.D. 1866 which abrogated the
second element of illegal possession of
previous statutes adverted to by petitioner.
firearm. In People vs. Tobias, we reiterated that such
[79] [80]

certification is sufficient to show that a person has in fact
no license. From the foregoing discussion, the fact that
petitioner does not have the license or permit to possess
was overwhelmingly proven by the prosecution. The
certification may even be dispensed with in the light of
the evidence that an M-16 rifle and any short firearm
[81]
Equally lacking in merit is appellant's allegation that
the penalty for simple illegal possession is
unconstitutional. The penalty for simple possession of
firearm, it should be stressed, ranges from reclusion
temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a
penalty does not ipso facto make the same cruel and
excessive.
"It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. 'The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual.' (24
C.J.S., 1187-1188). Expressed in other terms, it has been held
that to come under the ban, the punishment must be 'flagrantly
and plainly oppressive', 'wholly disproportionate to the nature
of the offense as to shock the moral sense of the community'
"[88]
It is well-settled that as far as the constitutional
prohibition goes, it is not so much the extent as the
nature of the punishment that determines whether it is, or
is not, cruel and unusual and that sentences of
imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits.[89]
Moreover, every law has in its favor the presumption
of constitutionality. The burden of proving the invalidity of
the statute in question lies with the appellant which
burden, we note, was not convincingly discharged. To
justify nullification of the law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful
and argumentative implication, as in this case. In fact,
[90]
the constitutionality of P.D. 1866 has been upheld twice
by this Court. Just recently, the Court declared that "the
[91]
pertinent laws on illegal possession of firearms [are not]
contrary to any provision of the Constitution. . to 20 years.
." Appellant's grievance on the wisdom of the
[92]
prescribed penalty should not be addressed to
us. Courts are not concerned with the wisdom, efficacy
or morality of laws. That question falls exclusively within
the province of Congress which enacts them and the
Chief Executive who approves or vetoes them. The only
function of the courts, we reiterate, is to interpret and
apply the laws.
With respect to the penalty imposed by the trial court
as affirmed by respondent court (17 years 4 months and
1 day of reclusion temporal, as minimum, to 21 years
of reclusion perpetua, as maximum), we reduce the
same in line with the fairly recent case of People v.
Lian where the Court en banc provided that the
[93]
indeterminate penalty imposable for simple illegal
possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of
ten (10) years and one (1) day to twelve years (12)
of prision mayor, as minimum, to eighteen (18) years,
eight (8) months and one (1) day to twenty (20)
of reclusion temporal, as maximum. This is discernible
from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating circumstances
have been alleged or proved, In accordance with the doctrine
regarding special laws explained in People v.
Simon, although Presidential Decree No. 1866 is a special
[94]
law, the penalties therein were taken from the Revised Penal
Code, hence the rules in said Code for graduating by degrees
or determining the proper period should be applied.
Consequently, the penalty for the offense of simple illegal
possession of firearm is the medium period of the complex
penalty in said Section 1, that is, 18 years, 8 months and 1 day
"This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely imposable as
a general prescription under the law, shall be the maximum of
the range of the indeterminate sentence. The minimum thereof
shall be taken, as aforesaid, from any period of the penalty
next lower in degree, which is, prision mayor in its maximum
period to reclusion temporal in its medium period. [95]
WHEREFORE, premises considered, the decision of
the Court of Appeals sustaining petitioner's conviction by
the lower court of the crime of simple illegal possession
of firearms and ammunitions is AFFIRMED EXCEPT that
petitioner's indeterminate penalty is MODIFIED to ten
(10) years and one (1) day, as minimum, to eighteen (18)
years, eight (8) months and one (1) day, as maximum.
SO ORDERED
Narvasa, C.J. (Chairman), Davide, Jr.,
Melo, and Panganiban, concur.
EN BANC
[G.R. No. 120420. April 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. RUFINO MIRANDILLA BERMAS, accused-
appellant.
DECISION
VITUG, J.:
In convicting an accused, it is not enough that proof beyond
reasonable doubt has been adduced; it is also essential that the
accused has been duly afforded his fundamental rights.
Rufino Mirandilla Bermas pleaded not guilty before the
Regional Trial Court of Paraaque, Branch 274, Metro Manila, to
the crime of rape under a criminal complaint, which read:
COMPLAINT
The undersigned complainant as assisted by her mother
accuses Rufino Mirandilla Bermas, of the crime of Rape,
committed as follows:
"That on or about the 3rd day of August 1994, in the
Municipality of Paraaque, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, while armed with a knife and by
means of force and intimidation, did then and there
willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant against her
will.
CONTRARY TO LAW
Paraaque, Metro Manila
August 8, 1994
(SGD) MANUEL P. BERMAS
Complainant
Assisted by:
(SGD) ROSITA BERMAS
Mother[1]
Evidence was adduced during trial by the parties at the
conclusion of which the lower court, presided over by Hon.
Amelita G. Tolentino, rendered its decision, dated 02 May 1995,
finding the accused guilty of the offense charged and
sentencing him to suffer the extreme penalty of death.
The death penalty having been imposed, the case has
reached this Court by way of automatic review pursuant to
Article 47 of the Revised Penal Code, as amended by Section
22 of Republic Act No. 7659 (otherwise known as An Act To
Impose Death Penalty on Certain Heinous Crimes,
Amending For That Purpose The Revised Penal Code, as
amended, Other Special Penal Laws, and For Other
Purposes, which took effect on 31 December 1993).
The prosecution, through the Office of the Solicitor General,
gave an account, rather briefly, of the evidence submitted by the
prosecution.
"On August 3, 1994, complainant Manuela Bermas, 15
years old, was raped by her own father, appellant Rufino
Bermas, while she was lying down on a wooden bed
inside their house at Creek Drive II, San Antonio Valley
8, Paraaque, Metro Manila (pp. 6-7, TSN, Oct. 19,
1994). Armed with a knife, appellant removed the victim's
shorts and panty, placed himself above her, inserted his
penis in her vagina and conducted coital movements (pp.
7-8, ibid.). After the appellant satisfied his lustful desire,
he threatened the victim with death if she reports the
incident to anyone. (p. 9, ibid.)
"On August 9, 1994, complainant was medically
examined at the NBI, which yielded the following
findings:
"The findings concluded: 1. No evident sign of
extragenital physical injuries noted on the body of the
subject at the time of examination; 2. Hymen, intact but
distensible and its orifice wide (2.7 cm. In diameter) as to
allow complete penetration by an average sized, adult,
Filipino male organ in full erection without producing any
hymenal laceration."[2]
The defense proffered the testimony of the accused, who
denied the charge, and that of his married daughter, Luzviminda
Mendez, who attributed the accusation made by her younger
sister to a mere resentment by the latter. The trial court gave a
summary of the testimony given by the accused and his
daughter Luzviminda; viz:
The accused vehemently denied that he has ever
committed the crime of rape on her daughter, the
complainant. He told the Court that he could not do such
a thing because he loves so much his daughter and his
other children. In fact, he said that he even performed
the dual role of a father and a mother to his children
since the time of his separation from his wife. The
accused further told the Court that in charging him of the
crime of rape, the complainant might have been
motivated by ill-will or revenge in view of the numerous
scoldings that she has received from him on account of
her frequent coming home late at night. The accused
stressed that he knew of no other reason as to why his
daughter, the complainant, would ever charge him of the
crime of rape except probably in retaliation for being
admonished by him whenever she comes home late in
the night.
The married daughter of the accused, who testified in his
behalf, denied that the complainant was raped by the
accused. She said that the complainant did not come
home in the night of August 3, 1994, and that, she is a
liar. She told the Court that the concoction by the
complainant of the rape story is probably due to the
resentment by the latter of the frequent scoldings that
she has been receiving from the accused. She further
added that she was told by the previous household
employer of the complainant that the latter is a liar. She
went on to testify further that she does not believe that
the accused, who is her father, raped the complainant,
who is her younger sister.[3]
The trial court, in its decision of 02 May 1995, found the
case of the prosecution against the accused as having been
duly established and so ruled out the defense theory of denial
and supposed ill-will on the part of private complainant that
allegedly had motivated the filing of the complaint against her
father. The court adjudged:
"WHEREFORE, this Court finds the accused guilty
beyond reasonable doubt of the crime of rape and
hereby sentences him to suffer the DEATH PENALTY, to
indemnify the complainant in the amount of P75,000.00,
Philippine Currency, and to pay the costs.
"SO ORDERED."[4]
In their 61-page brief, defense counsel Fernandez &
Kasilag-Villanueva (in collaboration with the Anti-Death Penalty
Task Force), detailed several errors allegedly committed by the
court a quo; thus:
I. THE ACCUSED WAS DEPRIVED OF DUE
PROCESS.
A. THE ACCUSED WAS DENIED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE AND
VIGILANT COUNSEL
1. The trial court did not observe the correct selection
process in appointing the accused's counsel de officio;
2. The Public Attorney could not give justice to the accused;
a. Negligent in not moving to quash the information on
the ground of illegal arrest;
b. Negligent in not moving to quash the information on
the ground of invalid filing of the information;
c. Negligent in not moving for a preliminary investigation;
d. Negligent in not pointing out the unexplained change
in the case number;
e. Negligent in not moving to inhibit the judge;
f. Negligent in her conduct at the initial trial.
3. The Vanishing Second Counsel de Officio
a. He was not dedicated nor devoted to the accused;
b. His work was shoddy;
4. The Reluctant Third Counsel de Officio
5. The performance of all three counsels de officio was
ineffective and prejudicial to the accused.
B. THE ACCUSED WAS DENIED HIS
CONSTITUTIONAL RIGHT TO BE TRIED BY AN
IMPARTIAL JUDGE AND TO BE PRESUMED
INNOCENT.
C. THE ACCUSED WAS DENIED HIS
CONSTITUTIONAL RIGHT TO BE HEARD AND FOR
WITNESSES TO TESTIFY IN HIS BEHALF.
D. THE ARRAIGNMENT OF THE ACCUSED WAS
INVALID.
E. THE ACCUSED WAS DENIED THE EQUAL
PROTECTION OF THE LAW.
II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH
EXTREME CAUTION THE PROSECUTION'S
EVIDENCE, MISAPPRECIATED THE FACTS AND
THEREFORE ERRED IN FINDING THE ACCUSED
GUILTY OF RAPE BEYOND REASONABLE DOUBT."[5]
The Court, after a painstaking review of the records, finds
merit in the appeal enough to warrant a remand of the case for
new trial.
It would appear that on 08 August 1994 Manuela P.
Bermas, then 15 years of age, assisted by her mother Rosita
Bermas, executed a sworn statement before SPO1 Dominador
Nipas, Jr., of the Paraaque Police Station, stating, in sum, that
she had been raped by accused Rufino Mirandilla Bermas, her
own father, in 1991 and 1993, as well as on 03 August 1994,
particularly the subject matter of the complaint, hereinbefore
quoted, duly signed and filed conformably with Section 7, Rule
112, of the Rules of Court. The Second Assistant Prosecutor,
issued a certification to the effect that the accused had waived
his right to a preliminary investigation.
On the day scheduled for his arraignment on 03 October
1994, the accused was brought before the trial court without
counsel. The court thereupon assigned Atty. Rosa Elmira C.
Villamin of the Public Attorney's Office to be the counsel de
officio. Accused forthwith pleaded not guilty. The pre-trial was
waived.
The initial reception of evidence was held on 19 October
1994. The prosecution placed complainant Manuela Bermas at
the witness stand. She testified on direct examination with
hardly any participation by defense counsel who, inexplicably,
later waived the cross-examination and then asked the court to
be relieved of her duty as counsel de officio.
"ATTY. VILLARIN:
And I am requesting if this Honorable Court would allow me and
my paero besides me, would accede to my request that I be
relieved as counsel de officio because I could not also give
justice to the accused because as a lady lawyer . . . if my
paero here and if this Honorable Court will accede to my
request.
"COURT:
It is your sworn duty to defend the helpless and the
defenseless. That is your sworn duty, Mrs. Counsel de
Officio. Are you retracting?
"ATTY. VILLARIN:
That is why I am asking this Honorable Court."[6]
Counsel's request was granted, and Atty. Roberto Gomez was
appointed the new counsel de officio. While Atty. Gomez was
ultimately allowed to cross-examine the complainant, it should
be quite evident, however, that he barely had time, to prepare
therefor. On this score, defense counsel Fernandez & Kasilag-
Villanueva in the instant appeal would later point out:
To substitute for her, the Public Attorney recommended
Atty. Roberto Gomez to be appointed as defense
counsel de oficio. And so the trial court appointed him.
Atty. Gomez asked for a ten minute recess before he began his
cross examination, presumably to prepare. But a ten minute
preparation to cross examine the complainant upon whose
testimony largely rests the verdict on the accused who stands to
be meted the death penalty if found guilty, is far too
inadequate. He could not possibly have familiarized himself with
the records and surrounding circumstances of the case, read
the complaint, the statement of the complainant, the medico-
legal report, memos of the police, transcripts and other relevant
documents and confer with the accused and his witnesses, all in
ten minutes.[7]
The prosecution abruptly rested its case after the medico-
legal officer had testified.
The reception of the defense evidence was scheduled for
12 December 1994; it was later reset to 09 January 1995. When
the case was called on 09 January 1995, the following
transpired:
COURT:
Where is the counsel for the accused?
COURT:
Did he file his withdrawal in this case? It is supposed to be the turn
of the defense to present its evidence.
PROSECUTOR GARCIA:
Yes, Your Honor. The prosecution had already rested its case.
COURT:
Last time he asked for the continuance of this case and
considering that the accused is under detention ... it seems he
cannot comply with his obligation.
COURT:
(To the accused) Nasaan ang abogado mo?
ACCUSED R. BERMAS:
Wala po.
COURT:
It is already the turn of the defense to present its evidence in this
case. In view of the fact that the defense counsel is not
interested anymore in defending the accused because last
time he moved for the continuance of the hearing of this case
and since this time he did not appear, he is unduly delaying
the proceedings of this case and considering the accused here
is under detention, I think it would be better if the Court
appoints another lawyer. He should file his withdrawal if he is
not interested anymore.
In view of the fact that the counsel de officio has repeatedly
failed to appear in this Court to defend his client-accused,
the Court is hereby constrained to appoint another
counsel de officio to handle the defense of the
accused. For this purpose, Atty. Nicanor Lonzame is
hereby appointed as the counsel de officio for accused
Rufino Mirandilla Bermas.[8]
The hearing scheduled for that day was reset to 16 January
1995 upon the request of Atty. Lonzame. On even date, Atty.
Lonzame himself asked to be relieved as counsel de officio but
later, albeit reluctantly, retracted; thus:
COURT:
Where is the accused? Where is the counsel de officio?
ATTY. NICANOR LONZAME:
As counsel de officio, Your Honor. The lawyer from the PAO is
here, may I be allowed to give her my responsibility as counsel
de officio considering that the lawyer from the PAO ...
COURT:
What about?
ATTY. LONZAME:
I was appointed because the PAO lawyer was not around. If the
Court will allow us to be relieved from our responsibility as
appointed counsel de officio of the accused ...
COURT:
You want to be relieved of your responsibility as appointed counsel
de officio? As an officer of the Court you don't want to handle
the defense of the accused in this case?
ATTY. LONZAME:
 I will be withdrawing my previous manifestation that I be relieved of
my responsibility as counsel de officio.
COURT:
So, therefore, counsel, are you now ready?
ATTY. LONZAME:
Yes, Your Honor.[9]
Trial proceeded with the accused being the first to be put at the
witness stand. He denied the accusation against him. The next
witness to be presented was his married daughter who
corroborated her fathers claim of innocence.
The defense counsel in the instant appeal took over from
Atty. Lonzame who himself, for one reason or another, had
ceased to appear for and in behalf of accused-appellant.
This Court finds and must hold, most regrettably, that
accused-appellant has not properly and effectively been
accorded the right to counsel. So important is the right to
counsel that it has been enshrined in our fundamental law and
its precursor laws. Indeed, even prior to the advent of the 1935
Constitution, the right to counsel of an accused has already
been recognized under General Order No. 58, dated 23 April
1900, stating that a defendant in all criminal prosecutions is
entitled to counsel at every stage of the proceedings,[10] and that
if he is unable to employ counsel, the court must assign one to
defend him.[11] The 1935 Constitution has no less been
expressive in declaring, in Article III, Section 17, thereof, that -
(17) In all criminal prosecutions, the accused shall be
presumed to be innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel,
to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses in his
behalf.
Except for a proviso allowing trial in absentia, the right to
counsel under the 1973 Constitution, essentially, has remained
unchanged. Under the 1987 Constitution, a worthwhile
innovation that has been introduced is the provision from which
prevailing jurisprudence on the availability of the right to counsel
as early as the stage of custodial interrogation can be deemed
to be predicated. The rule, found in Sections 12 and 14, Article
III, of the 1987 Constitution, states -
Sec. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence
of counsel.
xxxxxxxxx
Sec. 14. x x x x x x x x x
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is
unjustifiable.
 The constitutional mandate is reflected in the 1985 Rules of
Criminal Procedures which declares in Section 1, Rule 115,
thereof, that it is a right of the accused at the trial to be present
in person and by counsel at every stage of the proceedings from
the arraignment to the promulgation of the judgment.
The presence and participation of counsel in the defense of
an accused in criminal proceedings should never be taken
lightly.[12] Chief Justice Moran in People vs.
Holgado, explained:
[13]
"In criminal cases there can be no fair hearing unless the
accused be given an opportunity to be heard by counsel. The
right to be heard would be of little avail if it does not include the
right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he
may be convicted not because he is guilty but because he does
not know how to establish his innocence. And this can happen
more easily to persons who are ignorant or uneducated. It is for
this reason that the right to be assisted by counsel is deemed so
important that it has become a constitutional right and it so
implemented that under our rules of procedure it is not enough
for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid
of an attorney, but it is essential that the court should assign
one de oficio for him if he so desires and he is poor or grant him
a reasonable time to procure an attorney of his own." [14]
In William vs. Kaiser,[15] the United States Supreme Court,
through the late Justice Douglas, has rightly observed that the
accused needs the aid of counsel lest he be the victim of
overzealous prosecutors, of the laws complexity or of his own
ignorance or bewilderment. An accused must be given the right
to be represented by counsel for, unless so represented, there
is great danger that any defense presented in his behalf will be
as inadequate considering the legal perquisites and skills
needed in the court proceedings.[16] The right to counsel
proceeds from the fundamental principle of due process which
basically means that a person must be heard before being
condemned. The due process requirement is a part of a persons
basic rights; it is not a mere formality that may be dispensed
with or performed perfunctorily.
The right to counsel must be more than just the presence of
a lawyer in the courtroom or the mere propounding of standard
questions and objections. The right to counsel means that the
accused is amply accorded legal assistance extended by a
counsel who commits himself to the cause for the defense and
acts accordingly. The right assumes an active involvement by
the lawyer in the proceedings, particularly at the trial of the
case, his bearing constantly in mind of the basic rights of the
accused, his being well-versed on the case, and his knowing the
fundamental procedures, essential laws and existing
jurisprudence. The right of an accused to counsel finds
substance in the performance by the lawyer of his sworn duty of
fidelity to his client. Tersely put, it means an efficient and truly
decisive legal assistance and not a simple perfunctory
representation.[17]
It is never enough that accused be simply informed of his
right to counsel; he should also be asked whether he wants to
avail himself of one and should be told that he can hire a
counsel of his own choice if he so desires or that one can be
provided to him at his request.[18] Section 7, Rule 116, of the
Rules of Criminal Procedure provides:
Sec. 7. Appointment of counsel de oficio. - The court,
considering the gravity of the offense and the difficulty of
the questions that may arise, shall appoint as counsel de
oficio only such members of the bar in good standing
who, by reason of their experience and ability may
adequately defend the accused. But in localities where
such members of the bar are not available, the court may
appoint any person, resident of the province and of good
repute for probity and ability, to defend the accused.
A counsel de oficio is expected to do his utmost.[19] A mere pro- Professional Responsibility; otherwise, commission of
forma appointment of de oficio counsel who fails to genuinely any similar act in the future will be severely sanctioned.
protect the interests of the accused merits disapprobation. [20]The
exacting demands expected of a lawyer should be no less than The Court sees no other choice than to direct the remand of
stringent when one is a counsel de officio. He must take the the case to the court a quo for new trial.
case not as a burden but as an opportunity to assist in the
proper dispensation of justice. No lawyer is to be excused from WHEREFORE, let this case be REMANDED to the court a
this responsibility except only for the most compelling and quo for trial on the basis of the complaint, aforequoted, under
cogent reasons.[21] which he was arraigned. Atty. Ricardo A. Fernandez, Jr. of the
Anti-Death Penalty Task Force is hereby appointed counsel de
Just weeks ago, in People vs. Sevilleno, G.R. No. 129058, officio for the appellant.
promulgated on 29 March 1999, this Court has said:
Attys. Rosa Elmina Villamin of the Public Attorney's Office,
We cannot right finis to this discussion without making Paraaque, Roberto Gomez and Nicanor Lonzame are hereby
ADMONISHED for having fallen much too short of their
known our displeasure over the manner by which the
responsibility as officers of the court and as members of the Bar
PAO lawyers dispensed with their duties. All three (3) of and are warned that any similar infraction shall be dealt with
them displayed manifest disinterest on the plight of their most severely.
client.
SO ORDERED.
xxxxxxxxx Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena,
Canon 18 of the Code of Professional Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Responsibility requires every lawyer to serve his client
with utmost dedication, competence and diligence. He
must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively
liable. Obviously, in the instant case, the aforenamed
defense lawyers did not protect, much less uphold, the
fundamental rights of the accused. Instead, they
haphazardly performed their function as counsel de
oficio to the detriment and prejudice of the accused
Sevilleno, however guilty he might have been found to
be after trial. Inevitably, this Court must advise Attys.
Agravante, Pabalinas and Saldavia to adhere closely
and faithfully to the tenets espoused in the Code of

Articles 11-12
FIRST DIVISION
[G.R. Nos. 107041-42. May 15, 1996]
FELICIANO MALIWAT, petitioner, vs. HON. COURT OF APPEALS,
Former Special First Division, and the REPUBLIC OF THE
PHILIPPINES, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; RIGHT
NOT DENIED WHERE ACCUSED WHO TESTIFIED SOUGHT AND
GRANTED THE POSTPONEMENT AND CANCELLATION OF
HEARING FOR NO LESS THAN 40 TIMES. - Maliwat cannot claim that
he was denied due process. The records show that he did testify on his
own behalf and was cross-examined by the prosecution. Admittedly, he
was unable to adduce additional documentary evidence that he claims
would establish his innocence and which he now attaches as annexes in
his petition for review and memorandum of law before the Court. But as
noted earlier, it was Maliwat who had sought the postponements and
cancellations of the hearings for no less than forty (40) times, from the
date of his arraignment to the promulgation of judgment, a fact that
spanned almost a decade (1978 to 1988).
2. JUDICIAL ETHICS; JUDGES; MUST RENDER JUST AND IMPARTIAL
JUDGMENT FREE FROM ANY SUSPICION; GRANTING OF
ACCUSED'S SEVERAL REQUESTS FOR POSTPONEMENT,
LENIENCY NOT IMPARTIALITY. - The guiding rule is that a judge must
not only render a just, correct and impartial decision but should do so in
such a manner as to be free from any suspicion as to his fairness,
impartiality and integrity. As applied to the case at bar, the attitude
exhibited by Judge Diaz speaks more of extraordinary leniency to the
accused in granting all his requests for postponements, even to the
extent of reconsidering his orders declaring the accused as having
waived his right to present further evidence.
3. REMEDIAL LAW; DISQUALIFICATION OF JUDGES; JUDGES NOT
DISQUALIFIED FROM SITTING AND DECIDING CASE WHERE HE
AS THE THEN CLERK OF COURT TESTIFIED ON THE SAME CASE
AFFECTING AN ISSUED CERTIFICATION. - Under Rule 137, Sec. 1
of the Rules of Court, Judge Diaz' previous actuations in testifying as
then clerk of court on the issued official certification did not render him
legally disqualified from sitting and deciding the case. The suggestion
that he is not wholly free, disinterested and independent could have
been buttressed by the exercise of his sound discretion in voluntarily
disqualifying himself. Yet, the manner in which he exhibited himself
during the trial negates any suspicion of prejudgment in the case.
4. ID.; EVIDENCE; GUILT BEYOND REASONABLE DOUBT;
ESTABLISHED IN CASE AT BAR. - The only remaining issue then is
whether or not petitioner's guilt has been proven beyond reasonable
doubt. In the interest of justice, the Court treated the annexes attached
to the petition which had been marked as exhibits in the course of the
trial but were not formally offered, to form part of the records of this
case. And after close scrutiny thereof, the Court is of the considered
opinion, and so holds, that petitioner was correctly convicted of having
committed the crime of falsification of public documents.
5. ID.; ID.; PRESUMPTIONS; PERSON TAKING ADVANTAGE OF A
FALSIFIED DOCUMENT, PRESUMED THE MATERIAL AUTHOR OF
THE 'FALSIFICATION. - The settled rule is that in the absence of
satisfactory explanation, one found in possession of and who used a
forged document is the forger and therefore guilty of falsification. If a
person had in his possession a falsified document and he made use of it
(uttered it), taking advantage of it and profiting thereby, the clear
presumption is that he is the material author of the falsification.
APPEARANCES OF COUNSEL
Tranquilino, R. Gale, and Pacifico C. Yadao for petitioner.
The Solicitor General for respondents.
DECISION
PADILLA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the
Rules of Court is the decision[1] of public respondent Court of Appeals (CA)
dated 29 November 1991 in CA-G.R. Nos. 09428-09429, entitled People of
the Philippines versus Feliciano Maliwat, as well as the resolution dated 17
September 1992 which denied petitioner's motion for reconsideration. The
CA decision and resolution affirmed the decision of the Regional Trial Court
of Cavite City which convicted herein petitioner of falsification of public
documents as defined and penalized under Article 172 par. 1 of the Revised
Penal Code.
In a resolution dated 16 November 1992, this Court denied the present
petition for review for failure to comply with the Rules of Court and Circular
28 -9 1.[2] Petitioner filed a motion for reconsideration which the Court denied
with finality on 18 January 1993.[3] Petitioner followed with a second motion
for reconsideration which the Court noted without action in its 3 March 1993
resolution.[4]
On 21 June 1993, petitioner filed a motion for declaration of mistrial,
pleading for the first time that his constitutional right to due process was
impaired when Judge Rolando Diaz rendered the judgment of conviction in
Criminal Cases Nos. 158-77 and 159-77, knowing fully well that he (Judge
Diaz) previously testified against the petitioner (then accused) in said cases,
while then the Clerk of Court of the Court of First Instance (CFI) Branches 2
and 3 of Cavite City.
The Court issued a resolution[5] on 7 July 1993 requiring Judge Diaz to
comment on the said motion for declaration of mistrial. On 14 July 1993,
petitioner filed a motion for the issuance of a temporary restraining order and
inhibition order against Judge Diaz. On 21 July 1993, the Court issued a
temporary restraining order enjoining Judge Diaz from conducting further
proceedings in Criminal Cases Nos. 158-77 and 159-77 (entitled People of
the Philippines vs. Feliciano Maliwat, Regional Trial Court, Branch 17).[6]
Judge Diaz filed his comment on petitioner's motion. [7] After careful
deliberations, the Court resolved on 14 March 1994 to lift the entry of final
judgment dated 3 February 1993 and to reinstate and give due course to this
petition for review. The parties were required to file their respective
memoranda as the Court ordered the RTC of Cavite City to forward the
records of the cases to the Court.[8]
The antecedent facts of the case may be summarized as follows:
On 18 November 1977, two (2) separate informations were filed before
the then CFI of Cavite, Branch 3 (now RTC, Branch 17) charging petitioner
with the crime of Falsification of Public and Official Documents.
The first information, docketed as Criminal Case No. 158-77, reads as
follows:
"That on or about the first week of November 1975, in the City of Cavite, Republic
of the Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, a private person, having somehow obtained possession of a blank
form of a transfer certificate of title with Serial No. 1403456, which is a public and
official document, did, then and there, wilfully, unlawfully and feloniously commit
acts of falsification, by then and there, filling, typing and inserting on the blank
spaces therein or causing to be filled, typed and inserted on said public and official
document, the technical descriptions of a parcel of land, Lot No. 5825 of the Imus
Estate Subdivision, Province of Cavite, with an area of 553,853 sq. meters including
the corresponding title number, and making it appear that the same is the owner's
reconstituted copy of Transfer Certificate of Title No. RT-11850 of the Register of
Deeds of the Province of Cavite, with the herein accused as the registered owner and
that the said public and official document was reconstituted by virtue of the order of
the Court of First Instance of Cavite dated November 13, 1963 and causing it to
appear further that the then Register of Deeds of the Province of Cavite, Escolastico
Cuevas had participated in the preparation and signing of the said falsified Owner's
copy of TCT No. RT-11850, when in truth and in fact, the said accused well knew
that said parcel of land is already registered in the name of Green Valley Realty
Corporation and that then Register of Deeds Escolastico Cuevas never intervened in
the preparation and signing of said falsified document much less did he authorize
anybody to write his name or affix his signature therein nor was there any judicial
proceedings for reconstitution nor order from the Court regarding TCT RT-11850,
and thereafter, the above-named accused presented the said falsified owner's
duplicate copy of Transfer Certificate of Title No. RT-11850, in the office of the
Register of Deeds of Cavite, for the purpose of reconstituting the original thereof.
Contrary to law."[9]
The second information was docketed as Criminal Case No. 159-77 and
recited the same allegations as in the first information, except that the
number of the TCT involved in the second information was TCT No. RT
11854 with serial no. 1403457, allegedly covering lot no. 5826 of the Imus
Estate Subdivision, with an area of 299,403 sq. meters.
Petitioner was arraigned on 2 August 1978 at which, he pleaded not
guilty to each charge. Thereafter, joint trial of the two (2) cases ensued.
On 12 February 1986, the trial court rendered a decision, later amended
on 28 June 1988, the dispositive part of which, as amended, reads as
follows:
"WHEREFORE, in view of the foregoing, the Court finds the accused Feliciano
Maliwat guilty beyond reasonable doubt of Falsification of Public Documents as
defined and penalized in par. 1, Article 172 of the Revised Penal Code and he is
hereby sentenced to - in Crim. Case No. 158-77 to an indeterminate prison term of
from six (6) months of arresto mayor as minimum, to four (4) years and two (2)
months of prison correccional as maximum and to pay a fine of P5,000.00; in Crim.
Case No. 159-77 to an indeterminate [prison] term of from six (6) months of arresto
mayor as minimum, to four (4) years and two (2) months of prison correccional as
maximum and to pay a fine of P5,000.00 without subsidiary imprisonment in case of
insolvency and to pay the costs in both instances.
SO ORDERED."[10]
The evidence for the prosecution sought to establish that sometime in
October 1975, Maliwat, accompanied by two (2) other persons, went to the
office of Atty. Milagros Santiago, then the acting Register of Deeds of Cavite,
to inquire about the originals of TCT Nos. T-11850 and T-11854 covering lots
5825 and 5826 of the Imus Estate Subdivision. The original copies of said
titles, however, could not be located by the vault keeper of the
office. Meanwhile, Atty. Santiago examined the owner's duplicate copies
presented to her by Maliwat and upon closer scrutiny, she noticed the
annotations on the lower part of the two (2) titles which read: "reconstituted
as per order of CFI/Cavite City dated November 13, 1963 Sgd. Escolastico
Cuevas." The same annotation on the two (2) titles aroused her suspicion
because she was familiar with the customary signature of Escolastico
Cuevas, and the signatures of Cuevas appearing in the two (2)
titles,[11] appeared to be forged.
Atty. Santiago did not confront Maliwat about the said signatures,
instead, she referred the latter to the Clerk of Court (of the CFI) to verify the
existence of such an order from the court records. Maliwat allegedly obliged
but did not return to the office of the Register of Deeds. That same afternoon,
Atty. Santiago went to see the Clerk of Court, Atty. Rolando Diaz, who
informed her that the court had no record of the said orders.
On 6 November 1975, Atty. Santiago wrote a letter to the NBI Director to
report the existence of the alleged dubious certificates of title in Maliwat's
possession and requested for an investigation of the matter. [12] The following
year, Atty. Santiago went on sick leave and Atty. Jorge Gutierrez was
designated by the Land Registration Commission Head Office to act in her
stead from 26 January - 17 February 1976. When Atty. Santiago resumed
her position on 17 February, she received a letter [13] from Atty. Gutierrez
informing her that during her absence, Feliciano Maliwat had applied for
administrative reconstitution of title and that he (Gutierrez) approved the
same, based on the owner's duplicate certificates of title submitted to him.
Concerned with these developments, Atty. Santiago informed the NBI
about the reconstitution of the two (2) alleged fake titles and requested for an
immediate investigation. The NBI acted swiftly and sent subpoenas to
Feliciano Maliwat, Atty. Gutierrez, Atty. Santiago and Atty. Cuevas who all
appeared and testified before NBI agent Tobias Lozada.
Agent Tobias Lozada's investigation[14] revealed that on his first day in
office as acting Register of Deeds (of Cavite), Atty. Gutierrez met a person in
his office who introduced himself as Feliciano Maliwat. Maliwat inquired why
certain titles he had presented for reconstitution as early as 14 January 1976
had not been acted upon. Atty. Gutierrez had the papers located and seeing
no formal defects and believing them to be in order, reconstituted the
titles. Due to some typing errors, however, only one title was delivered to
Maliwat on that day.
The following day, when the deputy Register of Deeds Atty. Alejandro
Villanueva reported for work, Atty. Gutierrez recounted to him the events of
the previous day including the fact that he had reconstituted the titles
belonging to Feliciano Maliwat.
Atty. Villanueva informed Atty. Gutierrez that he should not have
reconstituted the titles since Atty. Santiago believed that they were spurious
and had in fact requested the NBI to look into the matter. Atty. Villanueva
also informed Atty. Gutierrez that Maliwat had been previously convicted for
estafa thru falsification of public document and was generally believed to be
part of a criminal syndicate operating in Cavite.
With this information, Atty. Gutierrez told the NBI that he made his own
investigation and discovered that Maliwat had subsequently tried to obtain a
tax declaration from the Provincial Assessor's Office (PAO) but this was
denied because the PAO personnel doubted the authenticity of his
titles. Upon verification with the LRC main office, he (Gutierrez) was further
informed that no such titles were originally issued to Maliwat. A similar
Verification with the Bureau of Lands yielded the same results. Atty.
Gutierrez alleged that the formal requisites presented by Maliwat for
reconstitution were the following:
(a) a verified petition for issuance of new titles under R.A. 26 signed and sworn to by
Feliciano Maliwat before Salvador R. Aguinaldo, a notary public for Manila and
recorded in the latter's notarial book as Document No. 1215 on Page3 of Book No.
116, Series of 1976 (Annex D).
(b) Transfer Certificate of Title No. RT-11850 on Form No. 1403456 (Annex E) and
TCT No. RT-11854 on Form No. 1403457 (Annex E-2).
Atty. Gutierrez properly identified these documents before the NBI.
Atty. Escolastico Cuevas, retired Register of Deeds of Cavite Province,
whose signatures on the certificates of title were allegedly forged, testified
before the court a quo denying his alleged signature appearing on the two (2)
titles, i.e., TCT No. RT-11850 on form No. 1403456 and TCT No. RT-
11854 on form No. 1403457. He also stated that he executed a sworn
statement[15] before the NBI where he similarly made the same denial. In that
affidavit, he recalled that as witness for the prosecution in a certain criminal
case before Judge Coquia (of the CFI Manila) several years before the
present incident, he encountered the very same titles in open court, and he
testified that the signatures attributed to him in the two (2) titles were not his,
but were plain forgeries.
Maliwat, for his part, denied authorship of the two (2) forged titles and
claimed that he bought the two (2) parcels of land from a certain Benigno T.
Aseo as evidenced by a Deed of Absolute Sale[16] dated 2 January 1963. He
registered the same and surrendered Aseo's titles to the Register of Deeds
for cancellation, after which he was issued two (2) new titles, namely: TCT
No. RT- 11850 with Serial No. 603461 and RT- 11854 with Serial
number 603462.[17] Maliwat further claimed that he witnessed Escolastico
Cuevas, the then Register of Deeds, actually sign his name over the said
titles before they were issued to him.[18]
Thus, from the issuance of his titles in 1963 up to 1975, Maliwat averred
that he took physical possession of the lands covered thereby, and paid real
estate taxes thereon except in 1974 when he went to Canada. He was not
aware of any title adverse to his own titles and that he was informed only
during the trial that a certain Green Valley Corporation had titles to said
property and had been paying the real estate taxes thereon. Although he had
a location plan over the said properties, he did not have them relocated
anymore to determine whether or not there was an overlap of titles.
In 1975, Maliwat alleged that certain buyers were interested in his
property. Together with a friend named Judge Alejo, they went to the
Register of Deeds to have his titles verified but the Register of Deeds
allegedly could not locate the original file copy of Maliwat's owner's duplicate
TCTs in their records. Maliwat was then informed that since the Registry of
Deeds was burned twice in the past, the file (original) titles were presumably
destroyed.
Maliwat admitted that in January 1976, he filed two (2) petitions for
reconstitution of the titles before the Register of Deeds, after which he
received a letter from then acting, Register of Deeds Gutierrez requiring him
to submit the owner's duplicate copies before the Register of Deeds as basis
for the reconstitution of title. Maliwat claimed that Atty. Gutierrez got back the
letter[19]when his wife and his lawyer, Moreno Gaid, went to the office of Atty.
Gutierrez to surrender the owner's duplicate copies - which bore Serial Nos.
603461 and 603462 respectively, and not Serial Nos. 1403456 and 1403457
as evidenced by a receipt[20] issued by Atty. Gutierrez. Maliwat denied having
any knowledge of the existence of TCT-11850 RT and T-11854 RT with
serial nos. 1403456 and 1403457 which found their way into the Register of
Deeds of Cavite and maintained that what were surrendered to Atty.
Gutierrez were genuine owner's duplicate copies of TCT 11850-RT and T-
11854 RT bearing serial numbers 603461 and 603462.
After giving due course to the petition at bar, the Court painstakingly
reviewed the records to inquire and determine whether or not petitioner was
given a fair trial in the lower court.
The Court notes that from the time of petitioner's arraignment on 2
August 1978 up to the time the prosecution offered its evidence, and rested,
the hearings were either reset or cancelled no less than thirty (30) times
owing to a variety of reasons proffered by petitioner. As early as 20 May
1982, the case was set for hearing of the evidence for the defense, but the
case was reset for another eight (8) times, again owing to petitioner's
absences. Within said period, the defense also failed to file any written
objections to the prosecution's formal offer of evidence. When Judge Diaz
took over the case on 12 April 1983, Maliwat moved to postpone for yet
another eight (8) times, prompting Judge Diaz to issue an order on 17
October 1983 declaring Maliwat to have waived his right to present further
evidence.
This was not, however, the end of the trial court's leniency in Maliwat's
favor. Owing to Maliwat's manifestation that he was suffering from chronic
malaria, Judge Diaz reconsidered[21]and set the case for hearing on 26
March 1984. When Maliwat and counsel still failed to appear on said date,
Judge Diaz deemed the case submitted for decision, but again reconsidered
and set another hearing on 11 June 1984 to allow the defense to present
additional evidence. When both accused and counsel still failed to appear,
Judge Diaz deemed the case submitted for decision and required the parties
to file their respective memoranda. Maliwat's lawyer appealed this order to
the Court of Appeals but the appeal was deemed abandoned and dismissed
on 24 October 1987.[22]
Maliwat's absences continued up to the promulgation of judgment by the
trial court which also had to be reset four (4) times. It was only after then that
Maliwat's counsel filed a motion for new trial before the trial court. When the
motion was denied on 14 September 1988, Maliwat appealed the decision to
the appellate court. Maliwat could have filed another motion for new trial
before the appellate court on the ground of newly discovered evidence
material to his defense under Rule 124, Sec. 14 of the new Rules of Criminal
Procedure, but he did not.Instead he sought affirmative relief by prosecuting
his appeal from the judgment of conviction until the Court of Appeals
promulgated its decision affirming the judgment of conviction of the court a
quo.
Under the foregoing facts and circumstances, Maliwat certainly cannot
claim that he was denied due process. The records show that he did testify
on his own behalf and was cross-examined by the prosecution. Admittedly,
he was unable to adduce additional documentary evidence that he claims
would establish his innocence and which he now attaches as annexes in his
petition for review and memorandum of law before the Court. But as noted
earlier, it was Maliwat who had sought the postponements and cancellations
of the hearings for no less than forty (40) times, from the date of his
arraignment to the promulgation of judgment, a fact that spanned almost a
decade (1978 to 1988).
Although admittedly a belated plea, petitioner argues that there was a
mistrial since a vital prosecution witness, then Clerk of Court Rolando Diaz,
became the judge of the case and had no choice but to render a judgment of
conviction against him.
The records show that Rolando Diaz, then Clerk of Court of the CFI of
Cavite City, indeed testified for the prosecution. But as explained by the
Solicitor General, his testimony was limited to certain facts directly connected
with or arising from the performance of his official duties as Clerk of Court,
without any reference to or pronouncement as to the innocence or guilt of the
accused. And as explained by Judge Diaz himself in his comment before this
Court dated 19 January 1994,
"That the only participation of the undersigned Judge as [then] Clerk of Court was to
issue a certification and the only testimony given in this case was, while still a Clerk
of Court of the Court of First Instance of Cavite with station at Cavite City, he saw
the accused Feliciano Maliwat in his office after he was referred to him by the
Acting Register of Deeds of Cavite Province, Atty. Milagros Santiago and who
presented to him two certificates of title and requested for the production of the order
annotated at the bottom of the face of said certificates of title wherein it was shown
that the same had been reconstituted as per order of the Court of First Instance dated
November 30, 1983 and which after diligent search he could not produce, as either
the said order or a copy of the petition were actually inexistent (sic) and he noticed
further that the signature of Escolastico Cuevas, Register of Deeds of the Province of
Cavite at the time said order was issued was not the signature of Atty. Cuevas with
which he was familiar;
That the undersigned did not consider said testimony as bias on his part against the
herein accused and he based his conviction of the accused in these cases not on his
prejudgment but rather on the over-all evidence presented before the Court;
That accused did not question his actuations in these cases during the trial and
instead opted for the continuation thereof thus perhaps believing that the undersigned
would render judgment according to the evidence presented;
That he did not likewise question the actuations of the Judge in his appeal to the
Court of Appeals nor on certiorari to this Honorable Court which denied his petition
for review for failure to comply the Rules of Court in Circular No. 28-91 in a
resolution of November 13, 1992 whereby entry of Judgment was issued on February
3, 1993 by the Deputy Clerk of Court and Chief Judicial Records Office and it was
only on June 21, 1993 did he file the instant motion so as to hold in abeyance the
promulgation of judgment on the ground of mistrial"; [23]
The guiding rule is that a judge must not only render a just, correct and
impartial decision but should do so in such a manner as to be free from any
suspicion as to his fairness, impartiality and integrity. As applied to the case
at bar, the attitude exhibited by Judge Diaz speaks more of extraordinary
leniency to the accused in granting all his requests for postponements, even
to the extent of reconsidering his orders declaring the accused as having
waived his right to present further evidence.
Under Rule 137, Sec. 1 of the Rules of Court, Judge Diaz' previous
actuations did not render him legally disqualified from sitting and deciding the
case. The suggestion that he is not wholly free, disinterested and
independent could have been buttressed by the exercise of his sound
discretion in voluntarily disqualifying himself. Yet, the manner in which he
exhibited himself during the trial negates any suspicion of prejudgment in the
case.
The only remaining issue then is whether or not petitioner's guilt has
been proven beyond reasonable doubt. In the interest of justice, the Court
treated the annexes attached to the petition which had been marked as
exhibits in the course of the trial but were not formally offered, to form part of
the records of this case. And after close scrutiny thereof, the Court is of the
considered opinion, and so holds, that petitioner was correctly
convicted of having committed the crime of falsification of public
documents. As clearly observed by the trial court which was evidently in the
best position to weigh and evaluate the evidence:
"From the evidence submitted, there is no question that the two certificates of title
RT-11850 with serial no. 1403456 and RT- 11854 with Serial No. 1403457 Exhibits
A and B are falsified; that as per finding of the NBI, testified to by then Senior Agent
Toribio Lozada the same were among those intended for the province of Cotabato
but which were lost in transit as per certification issued by Fortunato T. Pascual of
the Land Registration Commission (Exhs. Q and Q-2); and a memorandum circular
of the loss was issued by then Acting Commissioner Gregorio Bilog Jr. of the LRC
(Exh. O) and the titles found their way into the office of the Register of Deeds of
Cavite Province pursuant to a petition for reconstitution filed by the herein accused
on January 8, 1976 (Exh. R) and the same were administratively reconstituted by
then Acting Register of Deeds of Cavite province Atty. Jorge V. Gutierrez and for
which the said owners duplicate were surrendered to the office of the Register of
Deeds of Cavite province and new owner's duplicates issued to the herein
accused. The Court cannot give credence thereto over the positive identification
made by Atty. Santiago in open Court together with the confirmation made by the
NBI agent on the case. Atty. Tobias Lazada and the former Register of Deeds, Atty.
Escolastico Cuevas whose signature thereon was forged. (Italics supplied)
Moreover, a closer scrutiny of the numbering of the titles in question
which accused alleges to have gotten from the office of the Register of
Deeds of Cavite Province when he registered the sale executed in his favor
by Benigno T. Aseo shows the letters 'RT' precedes the number which the
Court can take judicial notice of that the letters RT stand for reconstituted title
and these initials with the corresponding number follow the original number
of the title issued, but in this case the same is missing and does not state the
original number of the title which is out of the ordinary procedure of the
Register of Deeds.
Likewise, it is quite absurd to see that Exhibits 'A' and 'B' which are
accountable forms bearing consecutive serial numbers (1403456 and
1403457) respectively would have been given nonconsecutive title numbers
(RT-11850 and RT-11854) and would have been issued ten months apart
(RT-11850) was issued on November 15, 1983 while RT-11854 was issued
on January 18, 1963.
Moreover, RT-11850 does not bear the number of the certificate of titles
from which it was transferred whereas TCT No. RT-11854 is supposed to
have canceled T-8331 and which apparently conflicts with the allegation of
the accused that he acquired these two parcels of land from Benigno T. Aseo
whose ownership was evidenced by TCT No. T-2474 and T-2475. If that
were the case then, the said title number would have appeared on Exhibits
'A' and 'B'.
Anent, the testimony of the accused that the certificate of title, the
owner's duplicate of TCT No. RT-11850 and RT-11854 which he presented
for reconstitution bore the serial Nos. 603461 and 603462 it will be noted
that he only presented xerox copies of the said titles without producing the
originals and during the investigation at the NBI as per report marked as
Exhibits H and H-4 he never submitted the originals thereof. Whichever serial
numbers they bore, it appears that said title forms were falsified in view of the
attestations of the Land Registration Commission that they were
never intended for the Register of Deeds of Cavite Province." (Italics
supplied)[24]
Additionally, the Court observes that the titles presented by Maliwat for
reconstitution were allegedly owner's duplicate reconstituted titles, since the
numbers were preceded by the letters RT. This fact, assuming it to be true,
negates petitioner's allegation that these titles were obtained from the
Registry of Deeds by canceling Aseo's (the vendor's) titles which were not
reconstituted titles. It also bears stressing that there must have been a
petition for reconstitution, whether judicial or administrative, before Maliwat
could be issued said reconstituted titles.But no such petition was
produced. From Maliwat's testimony, he averred that he obtained the said
titles when Aseo's titles were canceled by virtue of a deed of absolute sale
between him and Aseo.
The Court also observes that Exh. 1-A, which is TCT Nos. RT-11850
and Exh. 4-A which is TCT No. RT-11854[25] were made to appear by
accused as reconstituted titles. Thus, whether or not what were issued to the
accused bore SN 603461 and 603462 or SN 1403456 and 1403457 is of no
moment because both titles should never have been reconstituted titles in
the first place. More so, because the evidence[26] shows that Judicial Forms
with SN 603461 and 603462 were issued to the Registry of Deeds of
Cotabato province in May 1963.Hence, the titles in Maliwat's possession
cannot be genuine.
The Court further notes that the signatures of Escolastico Cuevas in SN-
1403456; SN-1403457 and SN-603461 and SN-603462 were not the same
and, as plain to the naked eye, very different from the specimen signature of
Register of Deeds Escolastico Cuevas[27] executed before the NBI. It is
ineluctable, therefore, that these titles were falsified and the evidence points
to Maliwat as the author of the falsification under par. 1 of Article 172 in
relation to Article 171 of the Revised Penal Code.
As correctly observed by the Court of Appeals:
"When Judicial Forms 109-D, with Serial Nos. 1403456 and 1403457
were filled up, issued and made to appear in form, as Transfer Certificates of
Titles Nos. RT-11850 and RT-11854, respectively, both in the name of
Feliciano Maliwat to show his ownership of Lots Nos. 5825 and 5826 which
are included in the Imus Estate Subdivision although they were not,
falsification as defined in paragraph 7 of Article 171 of the Revised Penal
Code was committed.
Again, when in the same forms it was made to appear that they were
signed and issued by Register of Deeds Escolastico Cuevas, although in
truth and in fact he has neither signed, issued nor filled up the same,
falsification penalized under paragraphs 1, 2, 3 and 4 of the same Article of
the Revised Penal Code has also been committed.
The fact that no proof was introduced to prove or show as to who
committed the falsification abovementioned, does not exempt or exculpate
the herein accused-appellant from liability.The accused-appellant is the
person who stood to benefit by the falsification of the documents in question
as such, 'it is presumed that he is the material author of the falsifications.'
(Sarep vs. Sandiganbayan, 177 SCRA 440; 449).[28]
The settled rule is that in the absence of satisfactory explanation, one
found in possession of and who used a forged document is the forger and
therefore guilty of falsification.[29]
If a person had in his possession a falsified document and he made use
of it (uttered it), taking advantage of it and profiting thereby, -the clear
presumption is that he is the material author of the falsification.[30]
WHEREFORE, the petition is hereby DENIED and the decision of the
Court of Appeals in CA G.R. Nos. 0942829 dated 29 November 1991, which
upholds the amended decision of the Court of First Instance of Cavite dated
28 June 1988 in Criminal Cases Nos. 158-77 and 159-77 is hereby
AFFIRMED en toto. Costs against petitioner.
SO ORDERED
Bellosillo, Vitug, and Hermosisima, Jr., JJ., concur.
Kapunan, J., on leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18208 February 14, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-
appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a complaint was
presented in the Court of First Instance of the city of Manila, charging the
defendants with a violation of the Usury Law (Act No. 2655). Upon said
complaint they were each arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day of September, 1921. At
the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of
the crime charged in the complaint and sentenced each of them to pay a fine
of P120 and, in case of insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From that sentence each of the
defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged
usurious interest was collected was executed before Act No. 2655 was
adopted; (b) that at the time said contract was made (December 30, 1915),
there was no usury law in force in the Philippine Islands; (c) that said Act No.
2655 did not become effective until the 1st day of May, 1916, or four months
and a half after the contract in question was executed; (d) that said law could
have no retroactive effect or operation, and (e) that said law impairs the
obligation of a contract, and that for all of said reasons the judgment imposed
by the lower court should be revoked; that the complaint should be
dismissed, and that they should each be discharged from the custody of the
law.
The essential facts constituting the basis of the criminal action are not in
dispute, and may be stated as follows: (1) That on the 30th day of December,
1915, the alleged offended persons Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a contract (Exhibit B) evidencing
the fact that the former had borrowed from the latter the sum of P300, and (2)
that, by virtue of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants interest at the
rate of five per cent (5%) per month, payable within the first ten days of each
and every month, the first payment to be made on the 10th day of January,
1916. There were other terms in the contract which, however, are not
important for the decision in the present case.
The lower court, in the course of its opinion, stated that at the time of the
execution and delivery of said contract (Exhibit B), there was no law in force
in the Philippine Islands punishing usury; but, inasmuch as the defendants
had collected a usurious rate of interest after the adoption of the Usury Law
in the Philippine Islands (Act No. 2655), they were guilty of a violation of that
law and should be punished in accordance with its provisions.
The law, we think, is well established that when a contract contains an
obligation to pay interest upon the principal, the interest thereby becomes
part of the principal and is included within the promise to pay. In other words,
the obligation to pay interest on money due under a contract, be it express or
implied, is a part of the obligation of the contract. Laws adopted after the
execution of a contract, changing or altering the rate of interest, cannot be
made to apply to such contract without violating the provisions of the
constitution which prohibit the adoption of a law "impairing the obligation of
contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform
their agreement if it is not contrary to the law of the land, morals or public
order. That law must govern and control the contract in every aspect in which
it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the
intention of the parties, necessarily impairs the contract itself. If a law impairs
the obligation of a contract, it is prohibited by the Jones Law, and is null and
void. The laws in force in the Philippine Islands prior to any legislation by the
American sovereignty, prohibited the Legislature from giving to any penal law
a retroactive effect unless such law was favorable to the person accused.
(Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a new
right of action, must not be construed as having a retroactive effect. It is an
elementary rule of contract that the laws in force at the time the contract was
made must govern its interpretation and application. Laws must be construed
prospectively and not retrospectively. If a contract is legal at its inception, it
cannot be rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired, which is
prohibited by the organic law of the Philippine Islands. (U.S. vs. Constantino
Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40 DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
Phil., 570.) EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE
Ex post facto laws, unless they are favorable to the defendant, are prohibited PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
in this jurisdiction. Every law that makes an action, done before the passage NATIONAL BUREAU OF INVESTIGATION, Respondents.
of the law, and which was innocent when done, criminal, and punishes such
action, is an ex post facto law. In the present case Act No. 2655 made an act x-----------------------x
which had been done before the law was adopted, a criminal act, and to
make said Act applicable to the act complained of would be to give it an ex G.R. No. 203299
post facto operation. The Legislature is prohibited from adopting a law which
will make an act done before its adoption a crime. A law may be given a LOUIS "BAROK" C. BIRAOGO, Petitioner,
retroactive effect in civil action, providing it is curative in character, but ex
vs.
post facto laws are absolutely prohibited unless its retroactive effect is NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
favorable to the defendant. POLICE, Respondents.

For the reason, therefore, that the acts complained of in the present case
were legal at the time of their occurrence, they cannot be made criminal by
any subsequent or ex post facto legislation. What the courts may say,
considering the provisions of article 1255 of the Civil Code, when a civil
action is brought upon said contract, cannot now be determined. A contract
may be annulled by the courts when it is shown that it is against morals or
public order.
For all of the foregoing reasons, we are of the opinion, and so decide, that
the acts complained of by the defendants did not constitute a crime at the
time they were committed, and therefore the sentence of the lower court
should be, and is hereby, revoked; and it is hereby ordered and decreed that
the complaint be dismissed, and that the defendants be discharged from the
custody of the law, with costs de oficio. So ordered.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING,
HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET
AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno
Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, x-----------------------x
JJ., concur.
G.R. No. 203359
Republic of the Philippines
SUPREME COURT SENATOR TEOFISTO DL GUINGONA III, Petitioner,
Manila vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
EN BANC SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE,
and DIRECTOR OF THE NATIONAL BUREAU OF
G.R. No. 203335 February 11, 2014
INVESTIGATION, Respondents.

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P.

x-----------------------x
MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL
BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE,
AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and
alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO
M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson
of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson
of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES
P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
Director of the Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the
Department of the Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA
STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of
Investigation (all of the Executive Department of
Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO
AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY
S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT
RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President
of the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO
R. BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of Investigation; and P/DGEN.
NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as
President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her official capacity as Secretary of Justice; LOUIS
NAPOLEON C. CASAMBRE, in his official capacity as Executive
Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the
Philippine National Police,Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU
OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE
HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by
Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-
DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE,
JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic
Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional
and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and
videos, for the general public or for special audiences like
associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases
and payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-
mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet.
The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another
or bully the latter by posting defamatory statements against him that people
can read.
And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or
highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty and the
right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until
further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for
their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer
Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer
system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of
laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for
the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the
client, such permission would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of
viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.7 But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of
vandalism,8 the act of willfully destroying without right the things that belong
to others, in this case their computer data, electronic document, or electronic
data message. Such act has no connection to guaranteed freedoms. There is
no freedom to destroy other people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what
is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it
seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in
bad faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
 (iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his pseudo-
name and another who registers the name because it happens to be his real
name. Petitioners claim that, considering the substantial distinction between
the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated
of the rightful opportunity of registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use,
misuse, transfer, possession, alteration, or deletion of identifying information
belonging to another, whether natural or juridical, without right: Provided: that
if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom
of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord
to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also
from our adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the right
to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how
government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to acquire
another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press
in that journalists would be hindered from accessing the unrestricted user
account of a person in the news to secure information about him that could
be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be
intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of
theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As
such, the press, whether in quest of news reporting or social investigation,
has nothing to fear since a special circumstance is present to negate intent to
gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of
the Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies
into the bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section
of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up the
cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or
sexual activity—is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any
act, transaction, scheme, or design involving the use of a person by another,
for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging
in sexual acts privately through internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30The Court will not declare Section
4(c)(1) unconstitutional where it stands a construction that makes it apply
only to persons engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of sexual organs or
sexual activity with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to
be imposed shall be (1) one degree higher than that provided for in Republic
Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace.
In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces
the use of "electronic, mechanical, digital, optical, magnetic or any other
means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that
a person who merely doodles on paper and imagines a sexual abuse of a 16-
year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off
his ideas on Twitter, anyone who replies to the tweet could be considered
aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it
will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of
commercial electronic communication with the use of computer system which
seeks to advertise, sell, or offer for sale products and services are prohibited
unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a
simple, valid, and reliable way for the recipient to reject
receipt of further commercial electronic messages (opt-out)
from the same source;
(bb) The commercial electronic communication does not
purposely disguise the source of the electronic message;
and
(cc) The commercial electronic communication does not
purposely include misleading information in any part of the
message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a "spam." The term
referred to a Monty Python’s Flying Circus scene in which actors would keep
saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass
to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech
enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right
to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State
cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of
expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic exhibition, or any similar
means, shall be punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the
civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus
Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355
of the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it
with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the
accused’s defamatory statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he published.
Gross or even extreme negligence is not sufficient to establish actual
malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government
demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in
Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence
of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
₱6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed
statement.45 For his defense, the accused must show that he has a justifiable
reason for the defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis
v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good
motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a
crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the discharge
of their official duties.
In such cases if the defendant proves the truth of the imputation made by
him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy
freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely affirms that online
defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings
with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from that
of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement posted on
the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of
the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement
agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest,52 smuggling merchandise into the country,53 or interfering in the
peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users.55 Based on a recent survey, the Philippines ranks 6th in the top
10 most engaged countries for social networking.56 Social networking sites
build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book
of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can
post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only
to his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the
original "posting" will appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of
up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form
of text, pictures, links, short videos, or other media—on the internet. Instead
of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following,"
those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just reposting or
republishing another person’s tweet without the need of copying and pasting
it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that
may have provided the computer used for posting the blog; e) the person
who makes a favorable comment on the blog; and f) the person who posts a
link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Maria’s original post is then multiplied by her friends
and the latter’s friends, and down the line to friends of friends almost ad
infinitum. Nena, who is a stranger to both Maria and Linda, comes across this
blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to
that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of
Nena’s original tweet and posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and making Comments on the
assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting
libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be guilty
of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of
age; and (2) the knowing use of an interactive computer service to send to a
specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context,
depict or describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA
is a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to
the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague regulations, poses
greater U.S. Const. amend. I concerns than those implicated by certain civil
regulations.
 xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223,
presents a great threat of censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled
to constitutional protection. That danger provides further reason for insisting
that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which seeks
to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected freedoms. 62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion
of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement.63 The
terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes
as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence. 67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use
it. In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity
and tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child pornography,"
does this make Google and its users aiders and abettors in the commission
of child pornography crimes?68 Byars highlights a feature in the American law
on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil
liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily
taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make him
a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is
forwarded to third parties and unsolicited commercial communication could
be disseminated on the basis of this information.70 As the source of this
information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated.71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on
Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3)
on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that
is necessary to illegally access another party’s computer system but the
security employed by the system’s lawful owner could frustrate his effort.
Another hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is alerted.72 If
Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not
right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent.73 While this may be true with respect to cybercrimes that
tend to sneak past the area of free expression, any attempt to commit the
other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section
4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and
abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed shall
be one (1) degree higher than that provided for by the Revised Penal Code,
as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact,
if each crime involves some important act which is not an essential element
of the other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against
double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of child pornography
in fact already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under both
Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand
pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure,
the penalty of reclusion temporal or a fine of at least Five hundred thousand
pesos (Ph₱500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:"
Provided, That the penalty to be imposed shall be one (1) degree higher than
that provided for in Republic Act No. 9775, if committed through a computer
system.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
5 shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer
Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement
authorities, with due cause, shall be authorized to collect or record by
technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed will require a court
warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence
that will be obtained is essential to the conviction of any person for, or to the
solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to
collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they
are to be protected. Petitioners invoke the right of every individual to privacy
and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a
rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn. 80 In
assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime
law for there is a need to put order to the tremendous activities in cyberspace
for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of
traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes committed
in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires
signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with
specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterday’s traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual
activity for favor or consideration;86 and producing child pornography87 could
easily evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés,
from kindred places that provide free internet services, and from unregistered
mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber
criminals can quickly erase their tracks. Those who peddle child pornography
could use relays of computers to mislead law enforcement authorities
regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search
and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the people’s right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental
powers may not intrude, and that there exists an independent constitutional
right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States
Supreme Court classified privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence
in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—
the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion.91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of
privacy over a certain matter. The second is an objective test, where his or
her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to
its application to a particular person or group, petitioners’ challenge to
Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general public’s point of
view. Without reasonable expectation of privacy, the right to it would have no
basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient, accompanying
the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal
service. Those who post letters have no expectations that no one will read
the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers
where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where
the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times
across the ocean do not disclose the actual names and addresses
(residential or office) of the sender and the recipient, only their coded internet
protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another through his cellphone, the
service provider’s communication’s system will put his voice message into
packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals
his cellphone number to the service provider when he puts his call through.
He also reveals the cellphone number to the person he calls. The other ways
of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the ‘70s must realize that
they necessarily convey phone numbers to the telephone company in order
to complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate
or exchange data with one another over cyberspace except through some
service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to recognize as
reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data,
analysts may be able to determine a person’s close associations, religious
views, political affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has the procedure that Section
12 of the law provides been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in
drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning
since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will
be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection should
not disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these
data in their hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation
at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection
of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides
minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to track
cyberspace communications in real time and determine their sources and
destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative
of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only to
free speech cases. But Section 12 on its own neither regulates nor punishes
any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance
in ways that have previously been impractical or even impossible. "All the
forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity
and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
subscriber information relating to communication services provided by a
service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six
(6) months: Provided, That once computer data preserved, transmitted or
stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office
of the Prosecutor shall be deemed a notification to preserve the computer
data until the termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order
that law enforcement authorities are to issue as a form of garnishment of
personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to
them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation
to indefinitely keep a copy of the same as they pass its system for the benefit
of users. By virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners’ objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly
issued court warrant, a function usually lodged in the hands of law enforcers
to enable them to carry out their executive functions. The prescribed
procedure for disclosure would not constitute an unlawful search or seizure
nor would it violate the privacy of communications and correspondence.
Disclosure can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a
search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage
medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the
measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and to make
a return thereon but in no case for a period longer than thirty (30) days from
date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would
ensure the proper collection, preservation, and use of computer system or
data that have been seized by virtue of a court warrant. The exercise of
these duties do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede existing search
and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy
the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation
or examination, destroyed or deleted upon the lapse of the prescribed period.
The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the user’s right against deprivation of
property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider
for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a
computer data is prima facie found to be in violation of the provisions of this
Act, the DOJ shall issue an order to restrict or block access to such computer
data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy discussion of property rights
in the digital space, it is indisputable that computer data, produced or created
by their writers or authors may constitute personal property. Consequently,
they are protected from unreasonable searches and seizures, whether while
stored in their personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further,
it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search
warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without
any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section
19, however, merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down Section 19 for being violative
of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter
IV hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an
order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable
or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates
elements of the offense which are defined therein. If Congress had intended
for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies
to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President,
for policy coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers
and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when
it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms
and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The
second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy
of the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of
law and order, which has been considered as sufficient standard. 106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes
posting of unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of
traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer
system without right;
b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring
domain name over the internet in bad faith to the prejudice of
others;
d. Section 4(b)(3) that penalizes identity theft or the use or
misuse of identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious
exhibition of sexual organs or sexual activity for favor or
consideration;
f. Section 4(c)(2) that penalizes the production of child
pornography;
g. Section 6 that imposes penalties one degree higher when
crimes defined under the Revised Penal Code are
committed with the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to
require service providers to preserve traffic data and
subscriber information as well as specified content data for
six months;
j. Section 14 that authorizes the disclosure of computer data
under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and
examination of computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously
preserved computer data after the expiration of the
prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation
to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation
and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and
Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal
Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only
in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, Associate Justice Associate Justice
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.
Commercial Communications, and 4(c)(4) on online Libel.1âwphi1 Associate Justice Associate Justice

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the I join Justice Brion in all his
correct application of Section 7 that authorizes prosecution of the offender JOSE PORTUGAL PEREZ positions
under both the Revised Penal Code and Republic Act 10175 to actual cases, Associate Justice JOSE CATRAL MENDOZA
WITH THE EXCEPTION of the crimes of: Associate Justice

1. Online libel as to which, charging the offender under both Section

4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal No Part
Code constitutes a violation of the proscription against double BIENVENIDO L. REYES ESTELA M. PERLAS-
jeopardy; as well as Associate Justice BERNABE*
Associate Justice
2. Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and See separate dissenting and concurring opinion
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also MARVIC MARIO VICTOR F. LEONEN
constitutes a violation of the same proscription, and, in respect to Associate Justice
these, is VOID and UNCONSTITUTIONAL.
CERTIFICATION
SO ORDERED.
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
ROBERTO A. ABAD that the conclusions in the above Decision had been reached in consultation
Associate Justice before the case was assigned to the writer of the opinion of the Court.

WE CONCUR: MARIA LOURDES P.A. SERENO

Chief Justice
See Concurring & Dissenting Opinion
MARIA LOURDES P. A. SERENO Republic of the Philippines
Chief Justice SUPREME COURT
Manila
See Concurring & Dissenting (no part due to prior case)
Opinion PRESBITERO J. VELASCO, EN BANC
ANTONIO T. CARPIO JR.*
Associate Justice Associate Justice G.R. No. L-20387 January 31, 1968

See Separate Concurring JESUS P. MORFE, plaintiff-appellee,

TERESITA J. LEONARDO-DE vs.
Opinion
CASTRO AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-
ARTURO D. BRION
Associate Justice appellants.
Associate Justice
Jesus P. Morfe for and his own behalf as plaintiff-appellee.
Office of the Solicitor General for defendants-appellants.
FERNANDO, J.:
Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter
public officials and employees from committing acts of dishonesty and
improve the tone of morality in public service. It was declared to be the state
policy "in line with the principle that a public office is a public trust, to repress
certain acts of public officers and private persons alike which constitute graft
or corrupt practices or which may lead thereto." 2 Nor was it the first statute of
its kind to deal with such a grave problem in the public service that
unfortunately has afflicted the Philippines in the post-war era. An earlier
statute decrees the forfeiture in favor of the State of any property found to
have been unlawfully acquired by any public officer or employee. 3
One of the specific provisions of the Anti-Graft and Corrupt Practices Act of
1960 is that every public officer, either within thirty (30) days after its
approval or after his assumption of office "and within the month of January of
every other year thereafter", as well as upon the termination of his position,
shall prepare and file with the head of the office to which he belongs, "a true
detailed and sworn statement of assets and liabilities, including a statement
of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the next preceding
calendar: . . ." 4
In this declaratory relief proceeding, the periodical submission "within the
month of January of every other year thereafter" of such sworn statement of
assets and liabilities after an officer or employee had once bared his financial
condition upon assumption of office was challenged for being violative of due
process as an oppressive exercise of police power and as an unlawful
invasion of the constitutional right to privacy, implicit in the ban against
unreasonable search and seizure construed together with the prohibition
against self-incrimination. The lower court in the decision appealed from
sustained plaintiff, then as well as now, a judge of repute of a court of first
instance. For it, such requirement of periodical submission of such sworn
statement of assets and liabilities exceeds the permissible limit of the police
power and is thus offensive to the due process clause.
We do not view the matter thus and accordingly reverse the lower court.
1. The reversal could be predicated on the absence of evidence to rebut the
presumption of validity. For in this action for declaratory relief filed with the
Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after
asserting his belief "that it was a reasonable requirement for employment
that a public officer make of record his assets and liabilities upon assumption
of office and thereby make it possible thereafter to determine whether, after
assuming his position in the public service, he accumulated assets grossly
disproportionate to his reported incomes, the herein plaintiff [having] filed
within the period of time fixed in the aforesaid Administrative Order No. 334
the prescribed sworn statement of financial condition, assets, income and
liabilities, . . ." 5 maintained that the provision on the "periodical filing of sworn
statement of financial condition, assets, income and liabilities after an officer
or employee had once bared his financial condition, upon assumption of
office, is oppressive and unconstitutional." 6
As earlier noted, both the protection of due process and the assurance of the
privacy of the individual as may be inferred from the prohibition against
unreasonable search and seizure and self-incrimination were relied upon.
There was also the allegation that the above requirement amounts to "an
insult to the personal integrity and official dignity" of public officials, premised
as it is "on the unwarranted and derogatory assumption" that they are
"corrupt at heart" and unless thus restrained by this periodical submission of
the statements of "their financial condition, income, and expenses, they
cannot be trusted to desist from committing the corrupt practices defined. . .
." 7 It was further asserted that there was no need for such a provision as "the
income tax law and the tax census law also require statements which can
serve to determine whether an officer or employee in this Republic has
enriched himself out of proportion to his reported income." 8
Then on February 14, 1962, came an Answer of the then Executive
Secretary and the then Secretary of Justice as defendants, where after
practically admitting the facts alleged, they denied the erroneous conclusion
of law and as one of the special affirmative defenses set forth: "1. That when
a government official, like plaintiff, accepts a public position, he is deemed to
have voluntarily assumed the obligation to give information about his
personal affair, not only at the time of his assumption of office but during the
time he continues to discharge public trust. The private life of an employee
cannot be segregated from his public life. . . ." 9 The answer likewise denied
that there was a violation of his constitutional rights against self-incrimination
as well as unreasonable search and seizure and maintained that "the
provision of law in question cannot be attacked on the ground that it impairs
plaintiff's normal and legitimate enjoyment of his life and liberty because said
provision merely seeks to adopt a reasonable measure of insuring the
interest or general welfare in honest and clean public service and is therefore
a legitimate exercise of the police power." 10
On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings
as in his opinion all his material allegations were admitted. Then on March
10, 1962, an order was issued giving the parties thirty days within which to
submit memoranda, but with or without them, the case was deemed
submitted for decision the lower court being of the belief that "there is no
question of facts, . . . the defendants [having admitted] all the material
allegations of the complaint." 11
The decision, now on appeal, came on July 19, 1962, the lower court
declaring "unconstitutional, null and void Section 7, Republic Act No. 3019,
insofar as it required periodical submittal of sworn statements of financial
conditions, assets and liabilities of an official or employee of the government
after he had once submitted such a sworn statement upon assuming office; .
. . ." 12
In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of
Manila, 13 it was the holding of this Court that in the absence of a factual
foundation, the lower court deciding the matter purely "on the pleadings and
the stipulation of facts, the presumption of validity must prevail." In the
present case likewise there was no factual foundation on which the
nullification of this section of the statute could be based. Hence as noted the
decision of the lower court could be reversed on that ground.
A more extended consideration is not inappropriate however, for as likewise
made clear in the above Ermita-Malate Hotel case: "What cannot be stressed
sufficiently is that if the liberty involved were freedom of the mind or the
person, the standard for the validity of governmental acts is much more
rigorous and exacting, but where the liberty curtailed affects at the most
rights of property, the permissible scope of regulatory measure is wider."
Moreover, in the Resolution denying the Motion for Reconsideration in the
above case, we expressly affirmed: "This is not to discount the possibility of a
situation where the nullity of a statute, executive order, or ordinance may not
be readily apparent but the threat to constitutional rights, especially those
involving the freedom of the mind, present and ominous." 14 In such an event
therefore, "there should not be a rigid insistence on the requirement that
evidence be presented." Also, in the same Resolution, Professor Freund was
quoted thus: "In short, when freedom of the mind is imperiled by law, it is
freedom that commands a momentum of respect; when property is imperiled,
it is the lawmakers' judgment that commands respect. This dual standard
may not precisely reverse the presumption of constitutionality in civil liberties
cases, but obviously it does set up a hierarchy of values within the due
process clause. 15
2. We inquire first whether or not by virtue of the above requirement for a
periodical submission of sworn statement of assets and liabilities, there is an
invasion of liberty protected by the due process clause.
Under the Anti-Graft Act of 1960, after the statement of policy, 16 and
definition of terms, 17 there is an enumeration of corrupt practices declared
unlawful in addition to acts or omissions of public officers already penalized
by existing law. They include persuading, inducing, or influencing another
public officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing himself to be
persuaded, induced, or influenced to commit such violation or offense;
requesting or receiving directly or indirectly any gift, present, share,
percentage, or benefit, for himself, or for any other person, in connection with
any contract or transaction between the government and any other party,
wherein the public officer in his official capacity, has to intervene under the
law; requesting or receiving directly or indirectly any gift, present, or other
pecuniary or material benefit, for himself or for another, from any person for
whom the public officer, in any manner or capacity, has secured or obtained,
or will secure or obtain, any Government permit or license, in consideration
for the help given or to be given; accepting or having any member of his
family accept employment in a private enterprise which has pending official
business with him during the pendency thereof or within one year after its
termination; causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence; neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time on any matter
pending before him for the purpose of obtaining, directly or indirectly, from
any person interested in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other interested party;
entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby; having directly or indirectly
financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity or in
which he is prohibited by the Constitution or by any law from having any
interests; becoming interested directly or indirectly, for personal gain, or
having a material interest in any transaction or act requiring the approval of a
board, panel or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does not
participate in such action; approving or granting knowingly any license,
permit, privilege or benefit in favor of any person not qualified for or not
legally entitled to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled and
divulging valuable information of a confidential character, acquired by his
office or by him on account of his official position to unauthorized persons, or
releasing such information in advance of its authorized release date. 18
After which come the prohibition on private individuals, 19 prohibition on
certain relatives, 20 and prohibition on Members of Congress. 21 Then there is
this requirement of a statement of assets and liabilities, that portion requiring
periodical submission being challenged here. 22 The other sections of the Act
deal with dismissal due to unexplained wealth, reference being made to the
previous statute, 23 penalties for violation, 24 the vesting of original jurisdiction
in the Court of First Instance as the competent court, 25 the prescription of
offenses, 26 the prohibition against any resignation or retirement pending
investigation, criminal or administrative or pending a
prosecution, 27suspension and loss of benefits, 28 exception of unsolicited
gifts or presents of small or insignificant value as well as recognition of
legitimate practice of one's profession or trade or occupation, 29 the
separability clause, 30 and its effectivity. 31
Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the
earlier statute 32 was precisely aimed at curtailing and minimizing the
opportunities for official corruption and maintaining a standard of honesty in
the public service. It is intended to further promote morality in public
administration. A public office must indeed be a public trust. Nobody can
cavil at its objective; the goal to be pursued commands the assent of all. The
conditions then prevailing called for norms of such character. The times
demanded such a remedial device.
The statute was framed with that end in view. It is comprehensive in
character, sufficiently detailed and explicit to make clear to all and sundry
what practices were prohibited and penalized. More than that, an effort was
made, so evident from even a cursory perusal thereof, to avoid evasions and
plug loopholes. One such feature is the challenged section. Thereby it
becomes much more difficult by those disposed to take advantage of their
positions to commit acts of graft and corruption.
While in the attainment of such public good, no infringement of constitutional
rights is permissible, there must be a showing, clear, categorical, and
undeniable, that what the Constitution condemns, the statute allows. More
specifically, since that is the only question raised, is that portion of the statute
requiring periodical submission of assets and liabilities, after an officer or
employee had previously done so upon assuming office, so infected with
infirmity that it cannot be upheld as valid?
Or, in traditional terminology, is this requirement a valid exercise of the police
power? In the aforesaid Ermita-Malate Hotel decision, 33 there is a
reaffirmation of its nature and scope as embracing the power to prescribe
regulations to promote the health, morals, education, good order, safety, or
the general welfare of the people. It has been negatively put forth by Justice
Malcolm as "that inherent and plenary power in the state which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society." 34
Earlier Philippine cases refer to police power as the power to promote the
general welfare and public interest; 35 to enact such laws in relation to
persons and property as may promote public health, public morals, public
safety and the general welfare of each inhabitant; 36 to preserve public order
and to prevent offenses against the state and to establish for the intercourse
of citizen with citizen those rules of good manners and good neighborhood
calculated to prevent conflict of rights. 37 In his work on due process,
Mott 38 stated that the term police power was first used by Chief Justice
Marshall. 39
As currently in use both in Philippine and American decisions then, police
power legislation usually has reference to regulatory measures restraining
either the rights to property or liberty of private individuals. It is undeniable
however that one of its earliest definitions, valid then as well as now, given
by Marshall's successor, Chief Justice Taney does not limit its scope to
curtailment of rights whether of liberty or property of private individuals. Thus:
"But what are the police powers of a State? They are nothing more or less
than the powers of government inherent in every sovereignty to the extent of
its dominions. And whether a State passes a quarantine law, or a law to
punish offenses, or to establish courts of justice, or requiring certain
instruments to be recorded, or to regulate commerce within its own limits, in
every case it exercises the same power; that is to say, the power of
sovereignty, the power to govern men and things within the limits of its
domain." 40 Text writers like Cooley and Burdick were of a similar mind. 41
What is under consideration is a statute enacted under the police power of
the state to promote morality in public service necessarily limited in scope to
officialdom. May a public official claiming to be adversely affected rely on the
due process clause to annul such statute or any portion thereof? The answer
must be in the affirmative. If the police power extends to regulatory action
affecting persons in public or private life, then anyone with an alleged
grievance can invoke the protection of due process which permits deprivation
of property or liberty as long as such requirement is observed.
While the soundness of the assertion that a public office is a public trust and
as such not amounting to property in its usual sense cannot be denied, there
can be no disputing the proposition that from the standpoint of the security of
tenure guaranteed by the Constitution the mantle of protection afforded by
due process could rightfully be invoked. It was so implicitly held in Lacson v.
Romero, 42 in line with the then pertinent statutory provisions 43 that
procedural due process in the form of an investigation at which he must be
given a fair hearing and an opportunity to defend himself must be observed
before a civil service officer or employee may be removed. There was a
reaffirmation of the view in even stronger language when this Court through
Justice Tuason in Lacson v. Roque 44 declared that even without express
provision of law, "it is established by the great weight of authority that the
power of removal or suspension for cause can not, except by clear statutory
authority, be exercised without notice and hearing." Such is likewise the
import of a statement from the then Justice, now Chief Justice, Concepcion,
speaking for the Court in Meneses v. Lacson; 45 "At any rate, the
reinstatement directed in the decision appealed from does not bar such
appropriate administrative action as the behaviour of petitioners herein may
warrant, upon compliance with the requirements of due process."
To the same effect is the holding of this Court extending the mantle of the
security of tenure provision to employees of government-owned or controlled
corporations entrusted with governmental functions when through Justice
Padilla in Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee,
or feeling of security that they would hold their office or employment during
good behavior and would not be dismissed without justifiable cause to be
determined in an investigation, where an opportunity to be heard and defend
themselves in person or by counsel is afforded them, would bring about such
a desirable condition." Reference was there made to promoting honesty and
efficiency through an assurance of stability in their employment relation. It
was to be expected then that through Justice Labrador in Unabia v. City
Mayor, 47 this Court could categorically affirm: "As the removal of petitioner
was made without investigation and without cause, said removal is null and
void. . . ."
It was but logical therefore to expect an explicit holding of the applicability of
due process guaranty to be forthcoming. It did in Cammayo v. Viña, 48 where
the opinion of Justice Endencia for the Court contained the following
unmistakable language: "Evidently, having these facts in view, it cannot be
pretended that the constitutional provision of due process of law for the
removal of the petitioner has not been complied with."
Then came this restatement of the principle from the pen of Justice J.B.L.
Reyes "We are thus compelled to conclude that the positions formerly held
by appellees were not primarily confidential in nature so as to make their
terms of office co-terminal with the confidence reposed in them. The
inevitable corollary is that respondents-appellees, Leon Piñero, et al., were
not subject to dismissal or removal, except for cause specified by law and
within due process. . . ." 49 In a still later decision, Abaya v. Subido, 50 this
Court, through Justice Sanchez, emphasized "that the vitality of the
constitutional principle of due process cannot be allowed to weaken by
sanctioning cancellation" of an employee's eligibility or "of his dismissal from
service — without hearing — upon a doubtful assumption that he has
admitted his guilt for an offense against Civil Service rules." Equally emphatic
is this observation from the same case: "A civil service employee should be
heard before he is condemned. Jurisprudence has clung to this rule with
such unrelenting grasp that by now it would appear trite to make citations
thereof."
If as is so clearly and unequivocally held by this Court, due process may be
relied upon by public official to protect the security of tenure which in that
limited sense is analogous to property, could he not likewise avail himself of
such constitutional guarantee to strike down what he considers to be an
infringement of his liberty? Both on principle, reason and authority, the
answer must be in the affirmative. Even a public official has certain rights to
freedom the government must respect. To the extent then, that there is a
curtailment thereof, it could only be permissible if the due process mandate is
not disregarded.
Since under the constitutional scheme, liberty is the rule and restraint the
exception, the question raised cannot just be brushed aside. In a leading
Philippine case, Rubi v. Provincial Board, 51 liberty as guaranteed by the
Constitution was defined by Justice Malcolm to include "the right to exist and
the right to be free from arbitrary personal restraint or servitude. The term
cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare." In accordance with this
case therefore, the rights of the citizens to be free to use his faculties in all
lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; to pursue any avocation, are all deemed embraced in the
concept of liberty. This Court in the same case, however, gave the warning
that liberty as understood in democracies, is not license. Implied in the term
is restraint by law for the good of the individual and for the greater good, the
peace and order of society and the general well-being. No one can do
exactly as he pleases. Every man must renounce unbridled license. In the
words of Mabini as quoted by Justice Malcolm, "liberty is freedom to do right
and never wrong; it is ever guided by reason and the upright and honorable
conscience of the individual."
The liberty to be safeguarded is, as pointed out by Chief Justice Hughes,
liberty in a social organization, 52 implying the absence of arbitrary restraint
not immunity from reasonable regulations and prohibitions imposed in the
interest of the community. 53 It was Linton's view that "to belong to a society
is to sacrifice some measure of individual liberty, no matter how slight the
restraints which the society consciously imposes." 54 The above statement
from Linton however, should be understood in the sense that liberty, in the
interest of public health, public order or safety, of general welfare, in other
words through the proper exercise of the police power, may be regulated.
The individual thought, as Justice Cardozo pointed out, has still left a
"domain of free activity that cannot be touched by government or law at all,
whether the command is specially against him or generally against him and
others." 55
Is this provision for a periodical submission of sworn statement of assets and
liabilities after he had filed one upon assumption of office beyond the power
of government to impose? Admittedly without the challenged provision, a
public officer would be free from such a requirement. To the extent then that
there is a compulsion to act in a certain way, his liberty is affected. It cannot
be denied however that under the Constitution, such a restriction is allowable
as long as due process is observed.
The more crucial question therefore is whether there is an observance of due
process. That leads us to an inquiry into its significance. "There is no
controlling and precise definition of due process. It furnishes though a
standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid.
What then is the standard of due process which must exist both as a
procedural and as substantive requisite to free the challenged ordinance, or
any action for that matter, from the imputation of legal infirmity sufficient to
spell its doom? It is responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of reason and result in
sheer oppression. Due process is thus hostile to any official action marred by
lack of reasonableness. Correctly has it been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts
fealty 'to those strivings for justice' and judges the act of officialdom of
whatever branch 'in the light of reason drawn from considerations of fairness
that reflect [democratic] traditions of legal and political thought.' It is not a
narrow or 'technical conception with fixed content unrelated to time, place
and circumstances,' decisions based on such a clause requiring a 'close and
perceptive inquiry into fundamental principles of our society.' Questions of
due process are not to be treated narrowly or pedantically in slavery to form
or phrases." 56
It would be to dwell in the realm of abstractions and to ignore the harsh and
compelling realities of public service with its ever-present temptation to heed
the call of greed and avarice to condemn as arbitrary and oppressive a
requirement as that imposed on public officials and employees to file such
sworn statement of assets and liabilities every two years after having done
so upon assuming office. The due process clause is not susceptible to such
a reproach. There was therefore no unconstitutional exercise of police power.
4. The due process question touching on an alleged deprivation of liberty as
thus resolved goes a long way in disposing of the objections raised by
plaintiff that the provision on the periodical submission of a sworn statement
of assets and liabilities is violative of the constitutional right to privacy. There
is much to be said for this view of Justice Douglas: "Liberty in the
constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is indeed the beginning of all
freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr.
Justice Brandeis "the most comprehensive of rights and the right most
valued by civilized men." 58
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy and
interference demands respect. As Laski so very aptly stated: "Man is one
among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the
basis on which his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders his personality. If his
will is set by the will of others, he ceases to be master of himself. I cannot
believe that a man no longer master of himself is in any real sense free." 59
Nonetheless, in view of the fact that there is an express recognition of
privacy, specifically that of communication and correspondence which "shall
be inviolable except upon lawful order of Court or when public safety and
order" 60may otherwise require, and implicitly in the search and seizure
clause, 61 and the liberty of abode 62 the alleged repugnancy of such statutory
requirement of further periodical submission of a sworn statement of assets
and liabilities deserves to be further looked into.
In that respect the question is one of first impression, no previous decision
having been rendered by this Court. It is not so in the United States where, in
the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for
five members of the Court, stated: "Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers 'in any house' in time of peace without the
consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the 'right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.' The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: 'The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people." After referring to various American Supreme
Court decisions, 64 Justice Douglas continued: "These cases bear witness
that the right of privacy which presses for recognition is a legitimate one."
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." 65 It has wider implications though.
The constitutional right to privacy has come into its own.1äwphï1.ñët
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector — protection, in other
words, of the dignity and integrity of the individual — has become
increasingly important as modern society has developed. All the forces of a
technological age — industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society." 66
Even with due recognition of such a view, it cannot be said that the
challenged statutory provision calls for disclosure of information which
infringes on the right of a person to privacy. It cannot be denied that the
rational relationship such a requirement possesses with the objective of a
valid statute goes very far in precluding assent to an objection of such
character. This is not to say that a public officer, by virtue of a position he
holds, is bereft of constitutional protection; it is only to emphasize that in
subjecting him to such a further compulsory revelation of his assets and
liabilities, including the statement of the amounts and sources of income, the
amounts of personal and family expenses, and the amount of income taxes
paid for the next preceding calendar year, there is no unconstitutional
intrusion into what otherwise would be a private sphere.
5. Could it be said, however, as plaintiff contends, that insofar as the
challenged provision requires the periodical filing of a sworn statement of
financial condition, it would be violative of the guarantees against
unreasonable search and seizure and against self-incrimination?
His complaint cited on this point Davis v. United States. 67 In that case,
petitioner Davis was convicted under an information charging him with
unlawfully having in his possession a number of gasoline ration coupons
representing so many gallons of gasoline, an offense penalized under a 1940
statute. 68 He was convicted both in the lower court and in the Circuit Court of
Appeals over the objection that there was an unlawful search which resulted
in the seizure of the coupons and that their use at the trial was in violation of
Supreme Court decisions. 69 In the District Court, there was a finding that he
consented to the search and seizure. The Circuit Court of Appeals did not
disturb that finding although expressed doubt concerning it, affirming
however under the view that such seized coupons were properly introduced
in evidence, the search and seizure being incidental to an arrest, and
therefore reasonable regardless of petitioner's consent.
In affirming the conviction the United States Supreme Court, through Justice
Douglas emphasized that the Court was dealing in this case "not with private
papers or documents, but with gasoline ration coupons which never became
the private property of the holder but remained at all times the property of the
government and subject to inspection and recall by it." 70 He made it clear
that the opinion was not to be understood as suggesting "that officers
seeking to reclaim government property may proceed lawlessly and subject
to no restraints. Nor [does it] suggest that the right to inspect under the
regulations subjects a dealer to a general search of his papers for the
purpose of learning whether he has any coupons subject to inspection and
seizure. The nature of the coupons is important here merely as indicating
that the officers did not exceed the permissible limits of persuasion in
obtaining them." 71
True, there was a strong dissenting opinion by Justice Frankfurter in which
Justice Murphy joined, critical of what it considered "a process of devitalizing
interpretation" which in this particular case gave approval "to what was done
by arresting officers" and expressing the regret that the Court might be "in
danger of forgetting what the Bill of Rights reflects experience with police
excesses."
Even this opinion, however, concerned that the constitutional guarantee
against unreasonable search and seizure "does not give freedom from
testimonial compulsion. Subject to familiar qualifications every man is under
obligation to give testimony. But that obligation can be exacted only under
judicial sanctions which are deemed precious to Anglo-American civilization.
Merely because there may be the duty to make documents available for
litigation does not mean that police officers may forcibly or fraudulently obtain
them. This protection of the right to be let alone except under responsible
judicial compulsion is precisely what the Fourth Amendment meant to
express and to safeguard." 72
It would appear then that a reliance on that case for an allegation that this
statutory provision offends against the unreasonable search and seizure
clause would be futile and unavailing. This is the more so in the light of the
latest decision of this Court in Stonehill v. Diokno, 73 where this Court,
through Chief Justice Concepcion, after stressing that the constitutional
requirements must be strictly complied with, and that it would be "a legal
heresy of the highest order" to convict anybody of a violation of certain
statutes without reference to any of its determinate provisions delimited its
scope as "one of the most fundamental rights guaranteed in our
Constitution," safeguarding "the sanctity, of the domicile and the privacy of
communication and correspondence. . . ." Such is precisely the evil sought to
be remedied by the constitutional provision above quoted — to outlaw the so-
called general warrants.
It thus appears clear that no violation of the guarantee against unreasonable
search and seizure has been shown to exist by such requirement of further
periodical submission of one's financial condition as set forth in the Anti-Graft
Act of 1960.
Nor does the contention of plaintiff gain greater plausibility, much less elicit
acceptance, by his invocation of the non-incrimination clause. According to
the Constitution: "No person shall be compelled to be a witness against
himself." 74 This constitutional provision gives the accused immunity from any
attempt by the prosecution to make easier its task by coercing or intimidating
him to furnish the evidence necessary to convict. He may confess, but only if
he voluntarily wills it. He may admit certain facts but only if he freely chooses
to.75 Or he could remain silent, and the prosecution is powerless to compel
him to talk. 76 Proof is not solely testimonial in character. It may be
documentary. Neither then could the accused be ordered to write, when what
comes from his pen may constitute evidence of guilt or
innocence. 77 Moreover, there can be no search or seizure of his house,
papers or effects for the purpose of locating incriminatory matter. 78
In a declaratory action proceeding then, the objection based on the guaranty
against self-incrimination is far from decisive. It is well to note what Justice
Tuason stated: "What the above inhibition seeks to [prevent] is compulsory
disclosure of incriminating facts." 79 Necessarily then, the protection it affords
will have to await, in the language of Justice J. B. L. Reyes, the existence of
actual cases, "be they criminal, civil or administrative." 80 Prior to such a
stage, there is no pressing need to pass upon the validity of the fear
sincerely voiced that there is an infringement of the non-incrimination clause.
What was said in an American State decision is of relevance. In that case, a
statutory provision requiring any person operating a motor vehicle, who
knows that injury has been caused a person or property, to stop and give his
name, residence, and his license number to the injured party or to a police
officer was sustained against the contention that the information thus exacted
may be used as evidence to establish his connection with the injury and
therefore compels him to incriminate himself. As was stated in the opinion: "If
the law which exacts this information is invalid, because such information,
although in itself no evidence of guilt, might possibly lead to a charge of
crime against the informant, then all police regulations which involve
identification may be questioned on the same ground. We are not aware of
any constitutional provision designed to protect a man's conduct from judicial
inquiry or aid him in fleeing from justice. But, even if a constitutional right be
involved, it is not necessary to invalidate the statute to secure its protection.
If, in this particular case, the constitutional privilege justified the refusal to
give the information exacted by the statute, that question can be raised in the
defense to the pending prosecution. Whether it would avail, we are not called
upon to decide in this proceeding." 81
6. Nor could such a provision be nullified on the allegation that it constitutes
"an insult to the personal integrity and official dignity" of public officials. On its
face, it cannot thus be stigmatized. As to its being unnecessary, it is well to
remember that this Court, in the language of Justice Laurel, "does not pass
upon questions of wisdom, justice or expediency of legislation." 82 As
expressed by Justice Tuason: "It is not the province of the courts to
supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern." 83 There can
be no possible objection then to the observation of Justice Montemayor: "As
long as laws do not violate any Constitutional provision, the Courts merely
interpret and apply them regardless of whether or not they are wise or
salutary." 84 For they, according to Justice Labrador, "are not supposed to
override legitimate policy and . . . never inquire into the wisdom of the law." 85
It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, 86 that only congressional power or competence,
not the wisdom of the action taken may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of powers has in
the main wisely allocated the respective authority of each department and
confined its jurisdiction to such a sphere. There would then be intrusion not
allowable under the Constitution if on a matter left to the discretion of a
coordinate branch, the judiciary would substitute its own. If there be
adherence to the rule of law, as there ought to be, the last offender should be
courts of justice, to which rightly litigants submit their controversy precisely to
maintain unimpaired the supremacy of legal norms and prescriptions. The
attack on the validity of the challenged provision likewise insofar as there
may be objections, even if valid and cogent on its wisdom cannot be
sustained.
WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null
and void Section 7, Republic Act No. 3019, insofar as it requires periodical submittal of sworn
statements of financial conditions, assets and liabilities of an official or employee of the
government after he had once submitted such a sworn statement . . . is reversed." Without
costs.Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar and Angeles, JJ.,
concur.
Sanchez, J., reserves his vote.
Castro, J., concurs in the result.