130 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
G.R. No. 166494. June 29, 2007. *
CARLOS SUPERDRUG CORP., doing business under the
name and style “Carlos Superdrug,” ELSIE M. CANO, doing
business under the name and style “Advance Drug,” Dr.
SIMPLICIO L. YAP, JR., doing business under the name and
style “City Pharmacy,” MELVIN S. DELA SERNA, doing
business under the name and style “Botica dela Serna,” and
LEYTE SERV-WELL CORP., doing business under the name
and style “Leyte Serv-Well
Drugstore,”petitioners, vs. DEPARTMENT OF SOCIAL
WELFARE and DEVELOPMENT (DSWD), DEPARTMENT
OF HEALTH (DOH), DEPARTMENT OF FINANCE (DOF),
DEPARTMENT OF JUSTICE (DOJ), and DEPARTMENT OF
INTERIOR and LOCAL GOVERNMENT (DILG),
respondents.
Expanded Senior Citizens Act of 2003 (R.A. No.
9257); Taxation; Being a tax deduction, the discount given by
drugstores in favor of senior citizens does not reduce taxes owed on
a peso for peso basis but merely offers a fractional reduction in taxes
owed.—Based on the afore-stated DOF Opinion, the tax deduction
scheme does not fully reimburse petitioners for the discount
privilege accorded to senior citizens. This is because the discount is
treated as a deduction, a tax-deductible expense that is subtracted
from the gross income and results in a lower taxable income. Stated
otherwise, it is an amount that is allowed by law to reduce the
income prior to the application of the tax rate to compute the
amount of tax which is due. Being a tax deduction, the discount does
not reduce taxes owed on a peso for peso basis but merely offers a
fractional reduction in taxes owed. Theoretically, the treatment of
the discount as a deduction reduces the net income of the private
establishments concerned. The discounts given would have entered
the coffers and formed part of the gross sales of the private
establishments, were it not for R.A. No. 9257.
Same; Same; Eminent Domain; Words and Phrases; The
permanent reduction in the drugstores’ total revenues is a forced
subsidy corresponding to the taking of private property for public
use or benefit, which constitutes compensable taking for which the
owners would ordinarily become entitled to a just compensation;
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator; A tax deduction
does not offer full reimbursement of the senior citizen discount—as
such, it would not meet the definition of just compensation.—The
permanent reduction in their total revenues is a forced subsidy
corresponding to the taking of private property for public use or
benefit. This constitutes compensable taking for which petitioners
would ordinarily become entitled to a just compensation. Just
compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. The measure is
not the taker’s gain but the owner’s loss. The word just is used to
intensify the meaning of the word compensation, and to convey
the idea that the equivalent to be rendered for the property to be
taken shall be real, substantial, full and ample. A tax deduction
does not offer full reimbursement of the senior citizen discount. As
such, it would not meet the definition of just compensation.
Same; Same; Same; Police Power; The State, in promoting the
health and welfare of a special group of citizens, can impose upon
private establishments the burden of partly subsidizing a
government program.—This raises the question of whether the
State, in promoting the health and welfare of a special group of
citizens, can impose upon private establishments the burden of
partly subsidizing a government program. The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the
contribution of senior citizens to nation-building, and to grant
benefits and privileges to them for their improvement and well-
being as the State considers them an integral part of our society.
Same; Same; Same; Same; R.A. No. 9257 is a legitimate
exercise of police power which, similar to the power of eminent
domain, has general welfare for its object; When the conditions so
demand as determined by the legislature, property rights must bow
to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare; Police power
as an attribute to promote the common good would be diluted
considerably if on the mere plea of property owners that they will
suffer loss of earnings and capital, a questioned provision is
invalidated.—The law is a legitimate exercise of police power
which, similar to the power of eminent domain, has general welfare
for its object. Police power is not capable of an exact definition, but
has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room
for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. Accordingly, it
has been described as “the most essential, insistent and the least
limitable of powers, extending as it does to all the great public
needs.” It is “[t]he power vested in the legislature by the
constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either
with penalties or without, not repugnant to the constitution, as they
shall judge to be for the good and welfare of the commonwealth, and
of the subjects of the same.” For this reason, when the conditions so
demand as determined by the legislature, property rights must bow
to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare. Police
power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer
loss of earnings and capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no basis for
its nullification in view of the presumption of validity which every
law has in its favor.
Same; Same; Same; Same; It is unfair for drugstore owners to
criticize the law because they cannot raise the prices of their
medicines given the cutthroat nature of the players in the industry.—
It is unfair for petitioners to criticize the law because they cannot
raise the prices of their medicines given the cutthroat nature of the
players in the industry. It is a business decision on the part of
petitioners to peg the mark-up at 5%. Selling the medicines below
acquisition cost, as alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right, petitioners cannot
reproach the law for being oppressive, simply because they cannot
afford to raise their prices for fear of losing their customers to
competition.
Same; Same; Same; Same; While the Constitution protects
property rights, petitioners must accept the realities of business and
the State, in the exercise of police power, can intervene in the
operations of a business which may result in an impairment of
property rights in the process.—The Court is not oblivious of the
retail side of the pharmaceutical industry and the competitive
pricing component of the business. While the Constitution protects
property rights, petitioners must accept the realities of business
and the State, in the exercise of police power, can intervene in the
operations of a business which may result in an impairment of
property rights in the process. Moreover, the right to property has
a social dimension. While Article XIII of the Constitution provides
the precept for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the regulation
of contracts and public utilities, continuously serve as a reminder
that the right to property can be relinquished upon the command of
the State for the promotion of public good.
Same; Same; Same; Same; Without sufficient proof that
Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably detrimental to
petitioners, the Court will refrain from quashing a legislative act.—
The success of the senior citizens program rests largely on the
support imparted by petitioners and the other private
establishments concerned. This being the case, the means employed
in invoking the active participation of the private sector, in order to
achieve the purpose or objective of the law, is reasonably and
directly related. Without sufficient proof that Section 4(a) of R.A.
No. 9257 is arbitrary, and that the continued implementation of the
same would be unconscionably detrimental to petitioners, the Court
will refrain from quashing a legislative act.
SPECIAL CIVIL ACTION in the Supreme Court.
Prohibition.
The facts are stated in the opinion of the Court.
Roque and Roque Law Firm for petitioners.
The Solicitor General for respondents.
AZCUNA, J.:
This is a petition for Prohibition with Prayer for Preliminary
1
Injunction assailing the constitutionality of Section 4(a) of
Republic Act (R.A.) No. 9257, otherwise known as the “Ex-
2
panded Senior Citizens Act of 2003.”
_______________
1Under Rule 65 of the Rules of Court.
2An Act Granting Additional Benefits and Privileges to Senior Citizens
Amending for the Purpose Republic Act No. 7432, otherwise known as “An Act
to Maximize the Contribution of Senior Citizens to
134
134 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
Petitioners are domestic corporations and proprietors
operating drugstores in the Philippines.
Public respondents, on the other hand, include the
Department of Social Welfare and Development (DSWD), the
Department of Health (DOH), the Department of Finance
(DOF), the Department of Justice (DOJ), and the Department
of Interior and Local Government (DILG) which have been
specifically tasked to monitor the drugstores’ compliance with
the law; promulgate the implementing rules and regulations
for the effective implementation of the law; and prosecute and
revoke the licenses of erring drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No.
7432, was signed into law by President Gloria Macapagal-
3
Arroyo and it became effective on March 21, 2004. Section 4(a)
of the Act states:
“SEC. 4. Privileges for the Senior Citizens.—The senior citizens
shall be entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in hotels and
similar lodging establishments, restaurants and recreation centers,
and purchase of medicines in all establishments for the exclusive
use or enjoyment of senior citizens, including funeral and burial
services for the death of senior citizens;
...
The establishment may claim the discounts granted under (a),
(f), (g) and (h) as tax deduction based on the net cost of the goods
sold or services rendered: Provided, That the cost of the discount
shall be allowed as deduction from gross income for the same
taxable year that the discount is granted. Provided, further, That
the total amount of the claimed tax deduction net of value added
tax if applicable, shall be included in their gross sales receipts for
tax purposes
_______________
Nation Building, Grant Benefits and Special Privileges and for other
Purposes.”
3 Otherwise known as the Senior Citizens Act.
135
VOL. 526, JUNE 29, 2007 135
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
and shall be subject to proper documentation and to the provisions
of the National Internal Revenue Code, as amended.”
4
On May 28, 2004, the DSWD approved and adopted the
Implementing Rules and Regulations of R.A. No. 9257, Rule
VI, Article 8 of which states:
“Article 8. Tax Deduction of Establishments.—The establishment
may claim the discounts granted under Rule V, Section 4—
Discounts for Establishments; Section 9, Medical and Dental
5
Services in Private Facilities[,] and Sections 10 and 11 —Air, Sea
6 7 8
and
_______________
4 Emphasis supplied.
5 Section 4. Discounts from Establishments.—The grant of twenty percent
(20%) discount on all prices of goods and services offered to the general public
regardless of the amount purchased from all establishments, irrespective of
classification, relative to the utilization of services for the exclusive use of
senior citizen in the following:
...
d) DRUG STORES, HOSPITAL PHARMACIES, MEDICAL AND
OPTICAL CLINICS AND SIMILAR ESTABLISHMENTS DISPENSING
MEDICINES.—The discount for purchases of drugs/medicines shall be subject
to the Guidelines to be issued by the Bureau of Food and Drugs, Department
of Health (BFAD-DOH), in coordination with the Philippine Health Insurance
Corporation (PHILHEALTH).
6 Section 9. Medical and Dental Services in Private Facilities.—The senior
citizen shall be granted twenty percent (20%) discount on medical and dental
services and diagnostic and laboratory fees such as but not limited to x-ray,
computerized tomography scans and blood tests, including professional fees of
attending doctors in all private hospitals and medical facilities, in accordance
with the rules and regulations to be issued by the Department of Health, in
coordination with the Philippine Health Insurance Corporation.
7 Section 10. Air and Transportation Privileges.—At least twenty percent
(20%) discount in fare for domestic air, and sea travel based on the actual fare,
including the promotional fare, advance booking and similar discounted fare
shall be granted for the exclusive use and enjoyment of senior citizens.
8 Section 11. Public Land Transportation Privileges.—Twenty percent
(20%) discount in public railways, including LRT, MRT,
136
136 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
Land Transportation as tax deduction based on the net cost of the
goods sold or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross income for the
same taxable year that the discount is granted; Provided, further,
That the total amount of the claimed tax deduction net of value
added tax if applicable, shall be included in their gross sales
receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal
Revenue Code, as amended; Provided, finally, That the
implementation of the tax deduction shall be subject to the Revenue
Regulations to be issued by the Bureau of Internal Revenue (BIR)
and approved by the Department of Finance (DOF).” 9
On July 10, 2004, in reference to the query of the Drug Stores
Association of the Philippines (DSAP) concerning the
meaning of a tax deduction under the Expanded Senior
Citizens Act, the DOF, through Director IV Ma. Lourdes B.
Recente, clarified as follows:
“1) The difference between the Tax Credit (under the Old Senior
Citizens Act) and Tax Deduction (under the Expanded Senior
Citizens Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior Citizens
Act) grants twenty percent (20%) discount from all establishments relative
to the utilization of transportation services, hotels and similar lodging
establishment, restaurants and recreation centers and purchase of
medicines anywhere in the country, the costs of which may be claimed by
the private establishments concerned as tax credit.
Effectively, a tax credit is a peso-for-peso deduction from a taxpayer’s
tax liability due to the government of the amount of discounts such
establishment has granted to a senior citizen. The establishment recovers
the full amount of discount given to a senior citizen and hence, the
government shoulders 100% of the discounts granted.
_______________
PNR, Skyways and fares in buses (PUB), jeepneys (PUJ), taxi and shuttle
services (AUV) shall be granted for the exclusive use and enjoyment of senior
citizens.
9 Rollo, p. 57.
137
VOL. 526, JUNE 29, 2007 137
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
It must be noted, however, that conceptually, a tax credit scheme under
the Philippine tax system, necessitates that prior payments of taxes have
been made and the taxpayer is attempting to recover this tax payment
from his/her income tax due. The tax credit scheme under R.A. No. 7432
is, therefore, inapplicable since no tax payments have previously occurred.
1.2. The provision under R.A. No. 9257, on the other hand, provides
that the establishment concerned may claim the discounts under Section
4(a), (f), (g) and (h) as tax deduction from gross income, based on the net
cost of goods sold or services rendered.
Under this scheme, the establishment concerned is allowed to deduct
from gross income, in computing for its tax liability, the amount of
discounts granted to senior citizens. Effectively, the government loses in
terms of foregone revenues an amount equivalent to the marginal tax rate
the said establishment is liable to pay the government. This will be an
amount equivalent to 32% of the twenty percent (20%) discounts so
granted. The establishment shoulders the remaining portion of the
granted discounts.
It may be necessary to note that while the burden on [the] government
is slightly diminished in terms of its percentage share on the discounts
granted to senior citizens, the number of potential establishments that
may claim tax deductions, have however, been broadened. Aside from the
establishments that may claim tax creditsunder the old law, more
establishments were added under the new law such as: establishments
providing medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private hospitals and
medical facilities, operators of domestic air and sea transport services,
public railways and skyways and bus transport services.
A simple illustration might help amplify the points discussed above, as
follows:
138
138 SUPREME COURT REPORTS 10 Id., at pp. 67-69; emphasis supplied.
11 The A.O. became effective on October 9, 2004, after its publication in two
ANNOTATED national newspapers of general circulation.
Carlos Superdrug Corp. vs. Department of Social Welfare 12 “Amendment to Administrative Order No. 171, s. 2004 on the Policies

and Development (DSWD) and Guidelines to Implement the Relevant Provisions of

139
Tax Deduction Tax Credit
VOL. 526, JUNE 29, 2007 139
Gross Sales xxxxxx xxxxxx
Carlos Superdrug Corp. vs. Department of Social Welfare
Less : Cost of goods xxxxx xxxxx
and Development (DSWD)
sold
the twenty percent discount shall not be limited to the
Net Sales xxxxxx xxxxxx
purchase of unbranded generic medicines only, but shall
Less: Operating
extend to both prescription and non-prescription medicines
Expenses:
whether branded or generic. Thus, it stated that “[t]he grant
Tax Deduction x x x x --
of twenty percent (20%) discount shall be provided in the
on Discounts purchase of medicines from all establishments dispensing
Other deductions: xxxx xxxx medicines for the exclusive use of the senior citizens.”
Net Taxable Income xxxxx xxxxx Petitioners assail the constitutionality of Section 4(a) of the
Tax Due xxx xxx Expanded Senior Citizens Act based on the following
Less: Tax Credit -- xx grounds: 13

Net Tax Due – xx

As shown above, under a tax deduction scheme, the tax
deduction on discounts was subtracted from Net Sales together
with other deductions which are considered as operating expenses
before the Tax Due was computed based on the Net Taxable Income.
On the other hand, under a tax credit scheme, the amount of
discounts which is the tax credit item, was deducted directly from
the tax due amount.” 10
Meanwhile, on October 1, 2004, Administrative Order (A.O.)
No. 171 or the Policies and Guidelines to Implement the
Relevant Provisions of Republic Act 9257, otherwise known as
the “Expanded Senior Citizens Act of 2003” was issued by the
11
DOH, providing the grant of twenty percent (20%) discount in
1. “1)The law is confiscatory because it infringes Art. III, Sec.
9 of the Constitution which provides that private property
shall not be taken for public use without just compensation;
2. 2)It violates the equal protection clause (Art. III, Sec. 1)
enshrined in our Constitution which states that “no person
shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied of the equal
protection of the laws;” and
3. 3)The 20% discount on medicines violates the constitutional
guarantee in Article XIII, Section 11 that makes “essential
goods, health and other social services available to all
people at affordable cost.” 14

the purchase of unbranded generic medicines from all

_______________
establishments dispensing medicines for the exclusive use of
the senior citizens. Republic Act 9257, otherwise known as the “Expanded Senior Citizens Act
On November 12, 2004, the DOH issued Administrative of 2003.”
13 Rollo, pp. 17-24.
Order No 177 amending A.O. No. 171. Under A.O. No. 177,
12

14 According to petitioners, of the five (5) million Filipinos who are 60 years

_______________ old and above, only 500,000 are in Metro Manila and thus, have access to
Mercury Drug which, because of the bulk discounts it gets from
pharmaceutical companies and suppliers, can afford to give the 20% discount
. Unlike Mercury Drug, small- to medium-scale drugstores similar to those of
petitioners’, however, can only impose minimal mark-ups for competitive
pricing but are constrained to raise the prices of their medicines so that they
would be able to recoup the 20% discount that they extend to senior citizens.
In the end, roughly 4.5 million senior citizens in the provinces or in the areas
where Mercury Drug is not present will not be able to benefit fully from the
discount that the law provides.
140
140 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
Petitioners assert that Section 4(a) of the law is
unconstitutional because it constitutes deprivation of private
property. Compelling drugstore owners and establishments to
grant the discount will result in a loss of profit and capital
because 1) drugstores impose a mark-up of only 5% to 10% on
branded medicines; and 2) the law failed to provide a scheme
whereby drugstores will be justly compensated for the
discount.
Examining petitioners’ arguments, it is apparent that what
petitioners are ultimately questioning is the validity of the tax
deduction scheme as a reimbursement mechanism for the
twenty percent (20%) discount that they extend to senior
citizens.
Based on the afore-stated DOF Opinion, the tax deduction
scheme does not fully reimburse petitioners for the discount
privilege accorded to senior citizens. This is because the
discount is treated as a deduction, a tax-deductible expense
that is subtracted from the gross income and results in a lower
taxable income. Stated otherwise, it is an amount that is
allowed by law to reduce the income prior to the application
15
of the tax rate to compute the amount of tax which is
due. Being a tax deduction, the discount does not reduce
16
taxes owed on a peso for peso basis but merely offers a
fractional reduction in taxes owed.
_______________
15 Under Section 34 of the Tax Code, the itemized deductions considered as
allowable deductions from gross income include ordinary and necessary
expenses, interest, taxes, losses, bad debts, depreciation, depletion of oil and
gas wells and mines, charitable and other contributions, research and
development expenditures, and pension trust contributions.
16 Commissioner of Internal Revenue v. Central Luzon Drug
Corporation, G.R. No. 159647, April 15, 2005, 456 SCRA 414, 428-429 citing
Smith, West’s Tax Law Dictionary (1993), pp. 177-178, 196.
141
VOL. 526, JUNE 29, 2007 141
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
Theoretically, the treatment of the discount as a deduction
reduces the net income of the private establishments
concerned. The discounts given would have entered the coffers
and formed part of the gross sales of the private
establishments, were it not for R.A. No. 9257.
The permanent reduction in their total revenues is a forced
subsidy corresponding to the taking of private property for
public use or benefit. This constitutes compensable taking for
17
which petitioners would ordinarily become entitled to a just
compensation.
Just compensation is defined as the full and fair equivalent
of the property taken from its owner by the expropriator. The
measure is not the taker’s gain but the owner’s loss. The
word just is used to intensify the meaning of the
word compensation, and to convey the idea that the
equivalent to be rendered for the property to be taken shall be
real, substantial, full and ample. 18
_______________
17 The concept of public use is no longer confined to the traditional notion
of use by the public, but held synonymous with public interest, public benefit,
public welfare, and public convenience. The discount privilege to which senior
citizens are entitled is actually a benefit enjoyed by the general public to which
these citizens belong (Commissioner of Internal Revenue v. Central Luzon
Drug Corporation, supranote 14, at p. 444; Land Bank of the Philippines v. De
Leon, 437 Phil. 347, 359; 388 SCRA 537, 546 [2002] citing Estate of Salud
Jimenez v. Philippine Export Processing Zone, G.R. No. 137285, January 16,
2001, 349 SCRA 240, 264).
 18 National Power Corporation v. Manubay Agro-Industrial Development
Corporation, G.R. No. 150936, August 18, 2004, 437 SCRA 60, 68
citing Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343.
142
142 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
A tax deduction does not offer full reimbursement of the senior
citizen discount. As such, it would not meet the definition of
just compensation. 19
Having said that, this raises the question of whether the
State, in promoting the health and welfare of a special group
of citizens, can impose upon private establishments the
burden of partly subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize
the contribution of senior citizens to nation-building, and to
grant benefits and privileges to them for their improvement
and well-being as the State considers them an integral part of
our society. 20
The priority given to senior citizens finds its basis in the
Constitution as set forth in the law itself. Thus, the Act
provides:
“SEC. 2. Republic Act No. 7432 is hereby amended to read as
follows:
SECTION 1. Declaration of Policies and Objectives.—Pursuant
to Article XV, Section 4 of the Constitution, it is the duty of
_______________
19 In the case of Commissioner of Internal Revenue v. Central Luzon Drug
Corporation, supra note 14, the Court held that just compensation confers the
right to receive an equivalent amount for the discount given and the prompt
payment of such amount. The advantage of a tax deduction is that the cost of
the discount can immediately be refunded, though not fully, by declaring it as
a deductible expense in computing for taxable income. In a tax credit, one has
to await the issuance of a tax credit certificate indicating the correct amount
of the discounts given before the latter can be refunded. Thus, the availment
of a tax credit necessitates prior payment of income tax.
20 Article XV of the Constitution states: “Section 1. The State recognizes the
Filipino family as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.”
143
VOL. 526, JUNE 29, 2007 143
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
the family to take care of its elderly members while the State may
design programs of social security for them. In addition to this,
Section 10 in the Declaration of Principles and State Policies
provides: “The State shall provide social justice in all phases of
national development.” Further, Article XIII, Section 11, provides:
“The State shall adopt an integrated and comprehensive approach
to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and children.”
Consonant with these constitutional principles the following are the
declared policies of this Act:
...
(f) To recognize the important role of the private sector
in the improvement of the welfare of senior citizens and to
actively seek their partnership.” 21
To implement the above policy, the law grants a twenty
percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and
other similar places of culture, leisure and amusement; fares
for domestic land, air and sea travel; utilization of services in
hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the
exclusive use or enjoyment of senior citizens. As a form of
reimbursement, the law provides that business
establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which,
similar to the power of eminent domain, has general welfare
for its object. Police power is not capable of an exact definition,
but has been purposely veiled in general terms to underscore
its comprehensiveness to meet all exigencies and provide
enough room for an efficient and flexible response to condi-
_______________
Emphasis supplied.
21
144
144 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
tions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as “the most
22
essential, insistent and the least limitable of powers,
extending as it does to all the great public needs.” It is “[t]he
23
power vested in the legislature by the constitution to make,
ordain, and establish all manner of wholesome and reasonable
laws, statutes, and ordinances, either with penalties or
without, not repugnant to the constitution, as they shall judge
to be for the good and welfare of the commonwealth, and of
the subjects of the same.” 24
For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to the
primacy of police power because property rights, though
sheltered by due process, must yield to general welfare. 25
Police power as an attribute to promote the common good
would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and capital,
the questioned provision is invalidated. Moreover, in the
absence of evidence demonstrating the alleged confiscatory
effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which
every law has in its favor.26
Given these, it is incorrect for petitioners to insist that the
grant of the senior citizen discount is unduly oppressive to
their business, because petitioners have not taken time to
_______________
22 Sangalang v. Intermediate Appellate Court, G.R. No. 71169, August 25,
1989, 176 SCRA 719.
23 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor
of Manila, L-24693, July 31, 1967, 20 SCRA 849 citing Noble State Bank v.
Haskell, 219 U.S. 412 (1911).
24 U.S. v. Toribio, 15 Phil. 85 (1910) citing Commonwealth v. Alger, 7 Cush.,
53 (Mass. 1851); U.S. v. Pompeya, 31 Phil. 245, 253-254 (1915).
25 Alalayan v. National Power Corporation, 24 SCRA 172 (1968).
26 Id.
145
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Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
calculate correctly and come up with a financial report, so that
they have not been able to show properly whether or not the
tax deduction scheme really works greatly to their
disadvantage. 27
In treating the discount as a tax deduction, petitioners
insist that they will incur losses because, referring to the DOF
Opinion, for every P1.00 senior citizen discount that
petitioners would give, P0.68 will be shouldered by them as
only P0.32 will be refunded by the government by way of a tax
deduction.
To illustrate this point, petitioner Carlos Super Drug cited
the anti-hypertensive maintenance drug Norvasc as an
example. According to the latter, it acquires Norvasc from the
distributors at P37.57 per tablet, and retails it at P39.60 (or
at a margin of 5%). If it grants a 20% discount to senior
citizens or an amount equivalent to P7.92, then it would have
to sell Norvasc at P31.68 which translates to a loss from
capital of P5.89 per tablet. Even if the government will allow
a tax deduction, only P2.53 per tablet will be refunded and not
the full amount of the discount which is P7.92. In short, only
32% of the 20% discount will be reimbursed to the
drugstores. 28
Petitioners’ computation is flawed. For purposes of
reimbursement, the law states that the cost of the discount
shall be deducted from gross income, the amount of income
29
de-
_______________
27 The person who impugns the validity of a statute must have personal
interest in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement (People v. Vera, 65 Phil. 56 [1937]).
28 Rollo, p. 11.
29 Section 27(E)(4) of the National Internal Revenue Code (NIRC) provides
that for purposes of applying the minimum corporate income tax on domestic
corporations, the term ‘gross income’ shall mean gross sales less sales returns,
discounts and allowances and cost of goods sold. For a trading or
merchandising concern, ‘cost of goods sold’ shall include the invoice cost of the
goods sold, plus import duties, freight in transporting the goods to the place
where
146
146 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
rived from all sources before deducting allowable expenses,
which will result in net income. Here, petitioners tried to show
a loss on a per transaction basis, which should not be the case.
An income statement, showing an accounting of petitioners’
sales, expenses, and net profit (or loss) for a given period could
have accurately reflected the effect of the discount on their
income. Absent any financial statement, petitioners cannot
substantiate their claim that they will be operating at a loss
should they give the discount. In addition, the computation
was erroneously based on the assumption that their
customers consisted wholly of senior citizens. Lastly, the 32%
tax rate is to be imposed on income, not on the amount of the
discount.
Furthermore, it is unfair for petitioners to criticize the law
because they cannot raise the prices of their medicines given
the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the markup
at 5%. Selling the medicines below acquisition cost, as alleged
by petitioners, is merely a result of this decision. Inasmuch as
pricing is a property right, petitioners cannot reproach the
law for being oppressive, simply because they cannot afford to
raise their prices for fear of losing their customers to
competition.
The Court is not oblivious of the retail side of the
pharmaceutical industry and the competitive pricing
component of the business. While the Constitution protects
property rights, petitioners must accept the realities of
business and the State, in the exercise of police power, can
intervene in the operations of a business which may result in
an impairment of property rights in the process.
Moreover, the right to property has a social dimension.
While Article XIII of the Constitution provides the precept for
the protection of property, various laws and jurisprudence,
_______________
the goods are actually sold including insurance while the goods are in
transit.
147
VOL. 526, JUNE 29, 2007 147
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
particularly on agrarian reform and the regulation of
contracts and public utilities, continuously serve as a
reminder that the right to property can be relinquished upon
the command of the State for the promotion of public good. 30
Undeniably, the success of the senior citizens program
rests largely on the support imparted by petitioners and the
other private establishments concerned. This being the case,
the means employed in invoking the active participation of the
private sector, in order to achieve the purpose or objective of
the law, is reasonably and directly related. Without sufficient
proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that
the continued implementation of the same would be
unconscionably detrimental to petitioners, the Court will
refrain from quashing a legislative act. 31
WHEREFORE, the petition is DISMISSED for lack of
merit.
No costs.
_______________
 30 By the “general police power of the State, persons and property are
subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the State; of the perfect right in the
legislature to do which, no question ever was, or, upon acknowledged and
general principles, ever can be made, so far as natural persons are concerned.”
(U.S. v. Toribio, supra note 24, at pp. 98-99, citing Thorpe v. Rutland &
Burlington R.R. Co. (27 Vt., 140, 149).
31 Subject to the determination of the courts as to what is a proper exercise

of police power using the due process clause and the equal protection clause
as yardsticks, the State may interfere wherever the public interests demand it,
and in this particular a large discretion is necessarily vested in the legislature
to determine, not only what interests of the public require, but what measures
are necessary for the protection of such interests (U.S. v. Toribio, supra note 24,
at p. 98, citing Lawton v. Steele, 152 U.S. 133,136; Barbier v. Connoly, 113
U.S. 27; Kidd v. Pearson, 128 U.S. 1).
148
148 SUPREME COURT REPORTS ANNOTATED
Carlos Superdrug Corp. vs. Department of Social Welfare
and Development (DSWD)
SO ORDERED.
Puno (C.J.), Ynares-Santiago, Carpio, Austria-
Martinez,Corona, Carpio-Morales, Tinga, Chico-
Nazario, Garcia, Velasco, Jr.and Nachura, JJ., concur.
Quisumbing, J., On Official Leave.
Sandoval-Gutierrez, J., On Leave.
Petition dismissed.
Notes.—Without discrediting the accomplishments of
nonagenarians capable of great physical feats, it should be
acknowledged as a matter of general assumption that persons
of the alleged seller’s age—93 years—are typically sedentary
and rarely so foolhardy as to insist on traveling significant
distances alone. (Tigno vs. Aquino, 444 SCRA 61 [2004])
The term “cost” in Sec. 4(a) of R.A. No. 7432 refers to the
amount of the 20% discount extended by a private
establishment to senior citizens in their purchase of
medicines. (Bicolandia Drug Corporation vs. Commissioner of
Internal Revenue, 492 SCRA 159[2006])

——o0o——
G.R. No. 161107. March 12, 2013.*
149
HON. MA. LOURDES C. FERNANDO, in her capacity as City
Mayor of Marikina City, JOSEPHINE C. EVANGELISTA, in
her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, petitioners, vs. ST.
SCHOLASTICA’S COLLEGE and ST. SCHOLASTICA’S
ACADEMY-MARIKINA, INC., respondents.
Constitutional Law; Police Power; Police power is the plenary
power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety
and general welfare of the people.—“Police power is the plenary
power vested in the legislature to make statutes and ordinances to
_______________
* EN BANC.
142
142 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
promote the health, morals, peace, education, good order or
safety and general welfare of the people.” The State, through the
legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police
power is embodied in Section 16 of the Local Government Code of
1991 (R.A. No. 7160), known as the General Welfare Clause, which
has two branches. “The first, known as the general legislative
power, authorizes the municipal council to enact ordinances and
make regulations not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties conferred
upon the municipal council by law. The second, known as the police
power proper, authorizes the municipality to enact ordinances as
may be necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their
property.”
Same; Same; Ordinances; For an ordinance to be valid, it must
not only be within the corporate powers of the local government unit
to enact and pass according to the procedure prescribed by law, it
must also conform to the substantive requirements.—White Light
Corporation v. City of Manila, 576 SCRA 416 (2009), discusses the
test of a valid ordinance: The test of a valid ordinance is well
established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and pass
according to the procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent
with public policy; and (6) must not be unreasonable.
Same; Same; Same; Rational Relationship Test; Strict Scrutiny
Test; To successfully invoke the exercise of police power as the
rationale for the enactment of an ordinance and to free it from the
imputation of constitutional infirmity, two tests have been used by
the Court―the rational relationship test and the strict scrutiny
test.—To successfully invoke the exercise of police power as the
rationale for the enactment of an ordinance and to free it from the
imputation of constitutional infirmity, two tests have been used by
the Court―the rational relationship test and the strict scrutiny test:
We ourselves
143
VOL. 693, MARCH 12, 2013 143
Fernando vs. St. Scholastica's College
have often applied the rational basis test mainly in analysis of
equal protection challenges. Using the rational basis examination,
laws or ordinances are upheld if they rationally further a legitimate
governmental interest. Under intermediate review, governmental
interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
for achieving that interest.
Same; Same; Same; The State may not, under the guise of police
power, permanently divest owners of the beneficial use of their
property solely to preserve or enhance the aesthetic appearance of the
community.—Regarding the beautification purpose of the setback
requirement, it has long been settled that the State may not, under
the guise of police power, permanently divest owners of the
beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community. The Court, thus, finds
Section 5 to be unreasonable and oppressive as it will substantially
divest the respondents of the beneficial use of their property solely
for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192
is invalid.
Remedial Law; Civil Procedure; Appeals; Points of law,
theories, issues, and arguments not adequately brought to the
attention of the lower court will not be ordinarily considered by a
reviewing court, inasmuch as they cannot be raised for the first time
on appeal.—The petitioners, however, argue that the invalidity of
Section 5 was properly cured by Zoning Ordinance No. 303, Series
of 2000, which classified the respondents’ property to be within an
institutional zone, under which a five-meter setback has been
required. The petitioners are mistaken. Ordinance No. 303, Series
of 2000, has no bearing to the case at hand. The Court notes with
displeasure that this argument was only raised for the first time on
appeal in this Court in the petitioners’ Reply. Considering that
Ordinance No. 303 was enacted on December 20, 2000, the
petitioners could very well have raised it in their defense before the
RTC in 2002. The settled rule in this jurisdiction is that a party
cannot change the legal theory of this case under which the
controversy was heard and decided in the trial court. It should be
the same theory under which the review on appeal is conducted.
Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court
144
144 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal. This
will be offensive to the basic rules of fair play, justice, and due
process.
Constitutional Law; Ordinances; Right to Property; Right to
Privacy; Compelling the respondents to construct their fence in
accordance with the assailed ordinance is, thus, a clear
encroachment on their right to property, which necessarily includes
their right to decide how best to protect their property; It also appears
that requiring the exposure of their property via a see-thru fence is
violative of their right to privacy.—Compelling the respondents to
construct their fence in accordance with the assailed ordinance is,
thus, a clear encroachment on their right to property, which
necessarily includes their right to decide how best to protect their
property. It also appears that requiring the exposure of their
property via a see-thru fence is violative of their right to privacy,
considering that the residence of the Benedictine nuns is also
located within the property. The right to privacy has long been
considered a fundamental right guaranteed by the Constitution
that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone, as governmental
powers should stop short of certain intrusions into the personal life
of its citizens. It is inherent in the concept of liberty, enshrined in
the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17,
Article III of the 1987 Constitution. The enforcement of Section 3.1
would, therefore, result in an undue interference with the
respondents’ rights to property and privacy. Section 3.1 of
Ordinance No. 192 is, thus, also invalid and cannot be enforced
against the respondents.
Statutes; Retroactivity of Laws; Curative statutes are enacted
to cure defects in a prior law or to validate legal proceedings which
would otherwise be void for want of conformity with certain legal
requirements; Curative statutes, by their very essence, are
retroactive.—“Curative statutes are enacted to cure defects in a
prior law or to validate legal proceedings which would otherwise be
void for want of conformity with certain legal requirements. They
are intended to supply defects, abridge superfluities and curb
certain evils. They are intended to enable persons to carry into
effect that which they have designed or intended, but has failed of
expected legal consequence by reason of some statutory disability
or irregularity in their own action. They make valid that which,
before the enactment of the stat-
145
VOL. 693, MARCH 12, 2013 145
Fernando vs. St. Scholastica's College
ute was invalid. Their purpose is to give validity to acts done
that would have been invalid under existing laws, as if existing laws
have been complied with. Curative statutes, therefore, by their very
essence, are retroactive.”
Same; Where part of a statute is void as repugnant to the
Constitution, while another part is valid, the valid portion, if
susceptible to being separated from the invalid, may stand and be
enforced.―Sections 3.1 and 5 of Ordinance No. 192, as amended,
are, thus, invalid and cannot be enforced against the respondents.
Nonetheless, “the general rule is that where part of a statute is void
as repugnant to the Constitution, while another part is valid, the
valid portion, if susceptible to being separated from the invalid, may
stand and be enforced.” Thus, the other sections of the assailed
ordinance remain valid and enforceable.
PETITION for review on certiorari of a decision of the Court
of Appeals.
The facts are stated in the decision of the Court.
Jason A. Amante for petitioners.
Domingo Fregillana, Jr. for respondents.
MENDOZA, J.:
Before this Court is a petition for review
on certiorari under Rule 45 of the Rules of Court, which seeks
to set aside the December 1, 2003 Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St.
Scholastica’s Academy-Marikina, Inc. (SSA-Marikina) are
educational institutions organized under the laws of the
Republic of
_______________
1 Rollo, pp. 37-52. Penned by Associate Justice Jose L. Sabio, Jr., and
concurred in by Associate Justice Delilah Vidallon-Magtolis and Associate
Justice Hakim S. Abdulwahid.
146
146 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
the Philippines, with principal offices and business addresses
at Leon Guinto Street, Malate, Manila, and at West Drive,
Marikina Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land
measuring a total of 56,306.80 square meters, located in
Marikina Heights and covered by Transfer Certificate Title
(TCT) No. 91537. Located within the property are SSA-
Marikina, the residence of the sisters of the Benedictine
Order, the formation house of the novices, and the retirement
house for the elderly sisters. The property is enclosed by a tall
concrete perimeter fence built some thirty (30) years ago.
Abutting the fence along the West Drive are buildings,
facilities, and other improvements.3
The petitioners are the officials of the City Government of
Marikina. On September 30, 1994, the Sangguniang
Panlungsod of Marikina City enacted Ordinance No.
192,4 entitled “Regulating the Construction of Fences and
Walls in the Municipality of Marikina.” In 1995 and 1998,
Ordinance Nos. 2175 and 2006 were enacted to amend Sections
7 and 5, respectively. Ordinance No. 192, as amended, is
reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF
FENCES AND WALLS IN THE MUNICIPALITY OF
MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Bayan as the local legislative
body of the municipality to
_______________
2 Id., at pp. 37-38.
3 Id., at p. 38.
4 Id., at pp. 74-77.
5 Id., at pp. 78-79.
6 Id., at p. 80.
147
VOL. 693, MARCH 12, 2013 147
Fernando vs. St. Scholastica's College
“x x x Prescribe reasonable limits and restraints on the use of
property within the jurisdiction of the municipality, x x x”;
WHEREAS the effort of the municipality to accelerate its
economic and physical development, coupled with
urbanization and modernization, makes imperative the
adoption of an ordinance which shall embody up-to-date and
modern technical design in the construction of fences of
residential, commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known
as the National Building Code of the Philippines, does not
adequately provide technical guidelines for the construction
of fences, in terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall
provide more efficient and effective enforcement of laws on
public safety and security;
WHEREAS, it has occurred in not just a few occasions that
high fences or walls did not actually discourage but, in fact,
even protected burglars, robbers, and other lawless elements
from the view of outsiders once they have gained ingress into
these walls, hence, fences not necessarily providing security,
but becomes itself a “security problem”;
WHEREAS, to discourage, suppress or prevent the
concealment of prohibited or unlawful acts earlier
enumerated, and as guardian of the people of Marikina, the
municipal government seeks to enact and implement rules
and ordinances to protect and promote the health, safety and
morals of its constituents;
WHEREAS, consistent too, with the “Clean and Green
Program” of the government, lowering of fences and walls
shall encourage people to plant more trees and ornamental
plants in their yards, and when visible, such trees and
ornamental plants are expected to create an aura of a clean,
green and beautiful environment for Marikeños;
WHEREAS, high fences are unsightly that, in the past, people
planted on sidewalks to “beautify” the façade of their
residences but, however, become hazards and obstructions to
pedestrians;
WHEREAS, high and solid walls as fences are considered
“unneighborly” preventing community members to easily
communicate
148
148 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
and socialize and deemed to create “boxed-in” mentality
among the populace;
WHEREAS, to gather as wide-range of opinions and
comments on this proposal, and as a requirement of the Local
Government Code of 1991 (R.A. 7160), the Sangguniang
Bayan of Marikina invited presidents or officers of
homeowners associations, and commercial and industrial
establishments in Marikina to two public hearings held on
July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed
ordinance were fully presented to the attendees and no
vehement objection was presented to the municipal
government;
NOW, THEREFORE, BE IT ORDAINED BY THE
SANGGUNIANG BAYAN OF MARIKINA IN SESSION
DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the
construction of all fences, walls and gates on lots classified or
used for residential, commercial, industrial, or special
purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot fronting a
street, alley or public thoroughfare.
b. Back Yard – the part of the lot at the rear of the
structure constructed therein.
c. Open fence – type of fence which allows a view of “thru-
see” of the inner yard and the improvements therein.
(Examples: wrought iron, wooden lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a
passage of persons or vehicles fronting a street, alley, or
public thoroughfare.
Section 3. The standard height of fences or walls
allowed under this ordinance are as follows:
(1) Fences on the front yard – shall be no more than
one (1) meter in height. Fences in excess of one (1)
meter shall be of an open fence type, at least
eighty percent (80%) see-thru; and149
VOL. 693, MARCH 12, 2013 149
Fernando vs. St. Scholastica's College
 (2) Fences on the side and back yard – shall be in
accordance with the provisions of P.D. 1096 otherwise
known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas
specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built
within the five (5) meter parking area allowance
located between the front monument line and the
building line of commercial and industrial
establishments and educational and religious
institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of
residential subdivisions.
(2) When public safety or public welfare requires,
the Sangguniang Bayan may allow the construction
and/or maintenance of walls higher than as prescribed
herein and shall issue a special permit or exemption.
Section 7. Transitory Provision.—Real property owners
whose existing fences and walls do not conform to the
specifications herein are allowed adequate period of time from
the passage of this Ordinance within which to conform, as
follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8
(public and privately owned)
Section 8. Penalty.—Walls found not conforming to the
provisions of this Ordinance shall be demolished by the
municipal government at the expense of the owner of the lot
or structure.
Section 9. The Municipal Engineering Office is tasked to
strictly implement this ordinance, including the issuance of
the necessary
_______________
7 Ordinance No. 200, Series of 1998, id.
8 Ordinance No. 217, Series of 1995, id., at p. 78.
150
150 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
implementing guidelines, issuance of building and fencing
permits, and demolition of non-conforming walls at the lapse
of the grace period herein provided.
Section 10. Repealing Clause.—All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the
foregoing provisions are hereby repealed, amended or
modified.
Section 11. Separability Clause.—If for any reason or
reasons, local executive orders, rules and regulations or parts
thereof in conflict with this Ordinance are hereby repealed
and/or modified accordingly.
Section 12. Effectivity.—This ordinance takes effect after
publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a
letter to the respondents ordering them to demolish and
replace the fence of their Marikina property to make it 80%
see-thru, and, at the same time, to move it back about six (6)
meters to provide parking space for vehicles to park.9 On April
26, 2000, the respondents requested for an extension of time
to comply with the directive.10 In response, the petitioners,
through then City Mayor Bayani F. Fernando, insisted on the
enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for
prohibition with an application for a writ of preliminary
injunction and temporary restraining order before the
Regional Trial Court, Marikina, Branch 273 (RTC), docketed
as SCA Case No. 2000-381-MK.11
The respondents argued that the petitioners were acting in
excess of jurisdiction in enforcing Ordinance No. 192, assert-
_______________
9 Id., at p. 39.
10 Id., at p. 85.
11 Id., at p. 39.
151
VOL. 693, MARCH 12, 2013 151
Fernando vs. St. Scholastica's College
ing that such contravenes Section 1, Article III of the 1987
Constitution. That demolishing their fence and constructing
it six (6) meters back would result in the loss of at least
1,808.34 square meters, worth about P9,041,700.00, along
West Drive, and at least 1,954.02 square meters, worth
roughly P9,770,100.00, along East Drive. It would also result
in the destruction of the garbage house, covered walk, electric
house, storage house, comfort rooms, guards’ room, guards’
post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of the
ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that
the petitioners could only appropriate a portion of their
property through eminent domain. They also pointed out that
the goal of the provisions to deter lawless elements and
criminality did not exist as the solid concrete walls of the
school had served as sufficient protection for many years.12
The petitioners, on the other hand, countered that the
ordinance was a valid exercise of police power, by virtue of
which, they could restrain property rights for the protection
of public safety, health, morals, or the promotion of public
convenience and general prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary
injunction, enjoining the petitioners from implementing the
demolition of the fence at SSC’s Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated
October 2, 2002, granting the petition and ordering the
issuance of
_______________
12 Id., at pp. 56-57.
13 Id., at p. 57.
14 Id., at pp. 39-40.
152
152 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
a writ of prohibition commanding the petitioners to
permanently desist from enforcing or implementing
Ordinance No. 192 on the respondents’ property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in
Marikina and to move it back six (6) meters would amount to
an appropriation of property which could only be done through
the exercise of eminent domain. It held that the petitioners
could not take the respondents’ property under the guise of
police power to evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the
parking space was for the benefit of the students and patrons
of SSA-Marikina, considering that the respondents were
already providing for sufficient parking in compliance with
the standards under Rule XIX of the National Building Code.
It further found that the 80% see-thru fence requirement
could run counter to the respondents’ right to privacy,
considering that the property also served as a residence of the
Benedictine sisters, who were entitled to some sense of
privacy in their affairs. It also found that the respondents
were able to prove that the danger to security had no basis in
their case. Moreover, it held that the purpose of beautification
could not be used to justify the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as
amended, provided for retroactive application. It held,
however, that such retroactive effect should not impair the
respondents’ vested substantive rights over the perimeter
walls, the six-meter strips of land along the walls, and the
building, structures, facilities, and improvements, which
would be destroyed by the demolition of the walls and the
seizure of the strips of land.
The RTC also found untenable the petitioners’ argument
that Ordinance No. 192 was a remedial or curative statute
_______________
 15 Id., at pp. 54-68. Penned by Judge Olga Palanca-Enriquez.
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Fernando vs. St. Scholastica's College
intended to correct the defects of buildings and structures,
which were brought about by the absence or insufficiency of
laws. It ruled that the assailed ordinance was neither
remedial nor curative in nature, considering that at the time
the respondents’ perimeter wall was built, the same was valid
and legal, and the ordinance did not refer to any previous
legislation that it sought to correct.
The RTC noted that the petitioners could still take action
to expropriate the subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of
prohibition is hereby issued commanding the respondents to
permanently desist from enforcing or implementing Ordinance No.
192, Series of 1994, as amended, on petitioners’ property in question
located at Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the
petitioners’ appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in
Ordinance No. 192 did not justify the exercise of police power,
as it did not only seek to regulate, but also involved the taking
of the respondents’ property without due process of law. The
respondents were bound to lose an unquantifiable sense of
security, the beneficial use of their structures, and a total of
3,762.36 square meters of property. It, thus, ruled that the
assailed ordinance could not be upheld as valid as it clearly
invaded the personal and property rights of the respondents
and “[f]or being unreasonable, and undue restraint of trade.”17
_______________
16 Id., at p. 68.
17 Id., at p. 49.
154
154 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
153
It noted that although the petitioners complied with
procedural due process in enacting Ordinance No. 192, they
failed to comply with substantive due process. Hence, the
failure of the respondents to attend the public hearings in
order to raise objections did not amount to a waiver of their
right to question the validity of the ordinance.
The CA also shot down the argument that the five-meter
setback provision for parking was a legal easement, the use
and ownership of which would remain with, and inure to, the
benefit of the respondents for whom the easement was
primarily intended. It found that the real intent of the setback
provision was to make the parking space free for use by the
public, considering that such would cease to be for the
exclusive use of the school and its students as it would be
situated outside school premises and beyond the school
administration’s control.
In affirming the RTC ruling that the ordinance was not a
curative statute, the CA found that the petitioner failed to
point out any irregularity or invalidity in the provisions of the
National Building Code that required correction or cure. It
noted that any correction in the Code should be properly
undertaken by the Congress and not by the City Council of
Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant
appeal is DENIED. The October 2, 2002 Decision and the January
13, 2003 Order of the Regional Trial Court (RTC) of Marikina City,
Branch 273, granting petitioners-appellees’ petition for Prohibition
in SCA Case No. 2000-381-MK are hereby AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now
before this Court presenting the following
_______________
18 Id., at pp. 51-52.
155
VOL. 693, MARCH 12, 2013 155
 Fernando vs. St. Scholastica's College
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN DECLARING THAT CITY
ORDINANCE NO. 192, SERIES OF 1994 IS NOT A
VALID EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN RULING THAT THE
AFOREMENTIONED ORDINANCE IS AN
EXERCISE OF THE CITY OF THE POWER OF
EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN DECLARING THAT THE
CITY VIOLATED THE DUE PROCESS CLAUSE IN
IMPLEMENTING ORDINANCE NO. 192, SERIES
OF 1994; AND
4. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN RULING THAT THE
ABOVE-MENTIONED ORDINANCE CANNOT BE
GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the
assailed ordinance, pertaining to the five-meter setback
requirement is, as held by the lower courts,
invalid.20 Nonetheless, the petitioners argue that such
invalidity was subsequently cured by Zoning Ordinance No.
303, series of 2000. They also contend that Section 3, relating
to the 80% see-thru fence requirement, must be complied
with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections
3.1 and 5 of Ordinance No. 192 are valid exercises of police
power by the City Government of Marikina.
_______________
19 Id., at p. 17.
20 Id., at pp. 182-188.
156
156 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
“Police power is the plenary power vested in the legislature
to make statutes and ordinances to promote the health,
morals, peace, education, good order or safety and general
welfare of the people.”21The State, through the legislature, has
delegated the exercise of police power to local government
units, as agencies of the State. This delegation of police power
is embodied in Section 1622 of the Local Government Code of
1991 (R.A. No. 7160), known as the General Welfare
Clause,23 which has two branches. “The first, known as the
general legislative power, authorizes the municipal council to
enact ordinances and make regulations not repugnant to law,
as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by
law. The second, known as the police power proper, authorizes
the municipality to enact ordinances as may be necessary and
proper for the health and safety, prosperity, morals, peace,
good order, comfort, and convenience of the municipality and
its inhabitants, and for the protection of their property.”24
_______________
21 Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156052, February
13, 2008, 545 SCRA 92, 136.
22 Sec. 16. General Welfare.―Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government
units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
23 Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 969;
329 SCRA 314, 325 (2000).
24 Rural Bank of Makati v. Municipality of Makati, G.R. No. 150763, July
2, 2004, 433 SCRA 362, 371-372.
157
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Fernando vs. St. Scholastica's College
 White Light Corporation v. City of Manila,25 discusses the
test of a valid ordinance:
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.26
Ordinance No. 192 was passed by the City Council of
Marikina in the apparent exercise of its police power. To
successfully invoke the exercise of police power as the
rationale for the enactment of an ordinance and to free it from
the imputation of constitutional infirmity, two tests have been
used by the Court―the rational relationship test and the strict
scrutiny test:
We ourselves have often applied the rational basis test mainly
in analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying
strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny
test, Ordinance No. 192, series of 1994 must be struck down
_______________
25 G.R. No. 122846, January 20, 2009, 576 SCRA 416.
26 Id., at p. 433.
27 Id., at p. 437.
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158 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
for not being reasonably necessary to accomplish the City’s
purpose. More importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must
pass the following requisites as discussed in Social Justice
Society (SJS) v. Atienza, Jr.:28
As with the State, local governments may be considered as
having properly exercised their police power only if the following
requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise
and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful
subject and lawful method.29
Lacking a concurrence of these two requisites, the police
power measure shall be struck down as an arbitrary intrusion
into private rights and a violation of the due process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to
the issue at hand, to wit:
Section 3. The standard height of fences of walls allowed
under this ordinance are as follows:
(1) Fences on the front yard – shall be no more than
one (1) meter in height. Fences in excess of one (1)
meter shall be an open fence type, at least eighty
percent (80%) see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built
within the five (5) meter parking area allowance located
between the front
_______________
28 Supra note 21.
29 Id., at p. 138.
30 City of Manila v. Laguio, Jr., 495 Phil. 289, 313; 455 SCRA 308, 332
(2005).
159
VOL. 693, MARCH 12, 2013 159
Fernando vs. St. Scholastica's College
monument line and the building line of commercial and
industrial establishments and educational and religious
institutions.
The respondents, thus, sought to prohibit the petitioners
from requiring them to (1) demolish their existing concrete
wall, (2) build a fence (in excess of one meter) which must be
80% see-thru, and (3) build the said fence six meters back in
order to provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which
requires the five-meter setback of the fence to provide for a
parking area. The petitioners initially argued that the
ownership of the parking area to be created would remain
with the respondents as it would primarily be for the use of
its students and faculty, and that its use by the public on non-
school days would only be incidental. In their Reply, however,
the petitioners admitted that Section 5 was, in fact, invalid for
being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the
setback requirement was to make the parking space free for
use by the public, considering that it would no longer be for
the exclusive use of the respondents as it would also be
available for use by the general public. Section 9 of Article III
of the 1987 Constitution, a provision on eminent domain,
provides that private property shall not be taken for public
use without just compensation.
The petitioners cannot justify the setback by arguing that
the ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of
title nor the total destruction of value is essential to taking.
In fact, it is usually in cases where the title remains
_______________
31 Rollo, p. 184.
160
160 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
with the private owner that inquiry should be made to
determine whether the impairment of a property is merely
regulated or amounts to a compensable taking.32 The Court is
of the view that the implementation of the setback
requirement would be tantamount to a taking of a total of
3,762.36 square meters of the respondents’ private property
for public use without just compensation, in contravention to
the Constitution.
Anent the objectives of prevention of concealment of
unlawful acts and “un-neighborliness,” it is obvious that
providing for a parking area has no logical connection to, and
is not reasonably necessary for, the accomplishment of these
goals.
Regarding the beautification purpose of the setback
requirement, it has long been settled that the State may not,
under the guise of police power, permanently divest owners of
the beneficial use of their property solely to preserve or
enhance the aesthetic appearance of the community.33 The
Court, thus, finds Section 5 to be unreasonable and oppressive
as it will substantially divest the respondents of the beneficial
use of their property solely for aesthetic purposes.
Accordingly, Section 5 of Ordinance No. 192 is invalid.
The petitioners, however, argue that the invalidity of
Section 5 was properly cured by Zoning Ordinance No.
303,34 Series of 2000, which classified the respondents’
property to be within an institutional zone, under which a
five-meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of
2000, has no bearing to the case at hand.
The Court notes with displeasure that this argument was
only raised for the first time on appeal in this Court in the
_______________
32 Office of the Solicitor General v. Ayala Land, Incorporated, G.R. No.
177056, September 18, 2009, 600 SCRA 617, 644-645.
33 People v. Fajardo, 104 Phil. 443, 447-448 (1958).
34 Rollo, pp. 190-310.
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VOL. 693, MARCH 12, 2013 161
Fernando vs. St. Scholastica's College
petitioners’ Reply. Considering that Ordinance No. 303 was
enacted on December 20, 2000, the petitioners could very well
have raised it in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot change
the legal theory of this case under which the controversy was
heard and decided in the trial court. It should be the same
theory under which the review on appeal is conducted. Points
of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be
ordinarily considered by a reviewing court, inasmuch as they
cannot be raised for the first time on appeal. This will be
offensive to the basic rules of fair play, justice, and due
process.35
Furthermore, the two ordinances have completely different
purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning
ordinance which classifies the city into specific land uses. In
fact, the five-meter setback required by Ordinance No. 303
does not even appear to be for the purpose of providing a
parking area.
By no stretch of the imagination, therefore, can Ordinance
No. 303, “cure” Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition
filed by the respondents is Ordinance No. 192 and, as such,
the precise issue to be determined is whether the petitioners
can be prohibited from enforcing the said ordinance, and no
other, against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No.
192 may be invalid, Section 3.1 limiting the height of fences
to one meter and requiring fences in excess of one meter to be
at least 80% see-thru, should remain valid and enforceable
against the respondents.
_______________
35 Peña v. Tolentino, G.R. Nos. 155227-28, February 9, 2011, 642 SCRA
310, 324-325.
162
162 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the
petitioners must show the reasonable relation between the
purpose of the police power measure and the means employed
for its accomplishment, for even under the guise of protecting
the public interest, personal rights and those pertaining to
private property will not be permitted to be arbitrarily
invaded.36
The principal purpose of Section 3.1 is “to discourage,
suppress or prevent the concealment of prohibited or unlawful
acts.” The ultimate goal of this objective is clearly the
prevention of crime to ensure public safety and security. The
means employed by the petitioners, however, is not
reasonably necessary for the accomplishment of this purpose
and is unduly oppressive to private rights.
The petitioners have not adequately shown, and it does not
appear obvious to this Court, that an 80% see-thru fence
would provide better protection and a higher level of security,
or serve as a more satisfactory criminal deterrent, than a tall
solid concrete wall. It may even be argued that such exposed
premises could entice and tempt would-be criminals to the
property, and that a see-thru fence would be easier to bypass
and breach. It also appears that the respondents’ concrete
wall has served as more than sufficient protection over the
last 40 years.
As to the beautification purpose of the assailed ordinance,
as previously discussed, the State may not, under the guise of
police power, infringe on private rights solely for the sake of
the aesthetic appearance of the community. Similarly, the
Court cannot perceive how a see-thru fence will foster
“neighborliness” between members of a community.
_______________
36 City of Manila v. Laguio, Jr., supra note 30, at pp. 312-313; p. 332.
163
VOL. 693, MARCH 12, 2013 163
Fernando vs. St. Scholastica's College
Compelling the respondents to construct their fence in
accordance with the assailed ordinance is, thus, a clear
encroachment on their right to property, which necessarily
includes their right to decide how best to protect their
property.
It also appears that requiring the exposure of their
property via a see-thru fence is violative of their right to
privacy, considering that the residence of the Benedictine
nuns is also located within the property. The right to privacy
has long been considered a fundamental right guaranteed by
the Constitution that must be protected from intrusion or
constraint. The right to privacy is essentially the right to be
let alone,37 as governmental powers should stop short of
certain intrusions into the personal life of its citizens.38It is
inherent in the concept of liberty, enshrined in the Bill of
Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article
III of the 1987 Constitution.39
_______________
37 Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 396,
citing Morfe v. Mutuc, 130 Phil. 415; 22 SCRA 424 (1968).
38 White Light Corporation v. City of Manila, supra note 19, at p. 441,
citing City of Manila v. Laguio, 495 Phil. 289; 455 SCRA 308 (2005).
39 Gamboa v. Chan, supra note 37, at pp. 397-398, citing Ople v. Torres,
354 Phil. 948; 293 SCRA 141 (1998).
Sec. 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or
164
164 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
The enforcement of Section 3.1 would, therefore, result in
an undue interference with the respondents’ rights to
property and privacy. Section 3.1 of Ordinance No. 192 is,
thus, also invalid and cannot be enforced against the
respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No.
192 by including the regulation of educational institutions
which was unintentionally omitted, and giving said
educational institutions five (5) years from the passage of
Ordinance No. 192 (and not Ordinance No. 217) to conform to
its provisions.40 The petitioners argued that the amendment
could be retroactively applied because the assailed ordinance
is a curative statute which is retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192
cannot be enforced against the respondents, it is no longer
necessary to rule on the issue of retroactivity. The Court shall,
nevertheless, pass upon the issue for the sake of clarity.
“Curative statutes are enacted to cure defects in a prior law
or to validate legal proceedings which would otherwise be void
_______________
when public safety or order requires otherwise as prescribed by law.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
xxx xxx xxx
Sec. 17. No person shall be compelled to be a witness against himself.
40 Rollo, pp. 78-79.
165
VOL. 693, MARCH 12, 2013 165
Fernando vs. St. Scholastica's College
for want of conformity with certain legal requirements. They
are intended to supply defects, abridge superfluities and curb
certain evils. They are intended to enable persons to carry into
effect that which they have designed or intended, but has
failed of expected legal consequence by reason of some
statutory disability or irregularity in their own action. They
make valid that which, before the enactment of the statute
was invalid. Their purpose is to give validity to acts done that
would have been invalid under existing laws, as if existing
laws have been complied with. Curative statutes, therefore,
by their very essence, are retroactive.”41
The petitioners argue that Ordinance No. 192 is a curative
statute as it aims to correct or cure a defect in the National
Building Code, namely, its failure to provide for adequate
guidelines for the construction of fences. They ultimately seek
to remedy an insufficiency in the law. In aiming to cure this
insufficiency, the petitioners attempt to add lacking
provisions to the National Building Code. This is not what is
contemplated by curative statutes, which intend to correct
irregularities or invalidity in the law. The petitioners fail to
point out any irregular or invalid provision. As such, the
assailed ordinance cannot qualify as curative and retroactive
in nature.
At any rate, there appears to be no insufficiency in the
National Building Code with respect to parking provisions in
relation to the issue of the respondents. Paragraph 1.16.1,
Rule XIX of the Rules and Regulations of the said code
requires an educational institution to provide one parking slot
for every ten classrooms. As found by the lower courts, the
respondents provide a total of 76 parking slots for their 80
classrooms and, thus, had more than sufficiently complied
with the law.
_______________
41 Narzoles v. National Labor Relations Commission, 395 Phil. 758, 764-
765; 341 SCRA 533, 538 (2000).
166
166 SUPREME COURT REPORTS ANNOTATED
Fernando vs. St. Scholastica's College
Ordinance No. 192, as amended, is, therefore, not a
curative statute which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are,
thus, invalid and cannot be enforced against the respondents.
Nonetheless, “the general rule is that where part of a statute
is void as repugnant to the Constitution, while another part is
valid, the valid portion, if susceptible to being separated from
the invalid, may stand and be enforced.”42 Thus, the other
sections of the assailed ordinance remain valid and
enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear
that the petitioners were acting in excess of their jurisdiction
in enforcing Ordinance No. 192 against the respondents. The
CA was correct in affirming the decision of the RTC in issuing
the writ of prohibition. The petitioners must permanently
desist from enforcing Sections 3.1 and 5 of the assailed
ordinance on the respondents’ property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2,
2002 Decision of the Regional Trial Court in SCA Case No.
2000-381-MK is AFFIRMED but MODIFIED to read as
follows:
WHEREFORE, the petition is GRANTED. The writ
of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing or
implementing Sections 3.1 and 5 of Ordinance No. 192,
Series of 1994, as amended, on the petitioners’ property
in question located in Marikina Heights, Marikina,
Metro Manila.
_______________
42 PKSMMN v. Executive Secretary, G.R. Nos. 147036-37, April 10, 2012,
669 SCRA 49, 74.
167
VOL. 693, MARCH 12, 2013 167
Fernando vs. St. Scholastica's College
No pronouncement as to costs.
SO ORDERED.
Sereno (C.J.), Carpio, Velasco, Jr., Leonardo-De Castro,
Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
Reyes, Perlas-Bernabe and Leonen, JJ., concur.
Perez, J., On official leave.
Petition denied, judgment affirmed with modification.
Note.―An action for declaratory relief should be filed by a
person interested under a deed, a will, a contract or other
written instrument, and whose rights are affected by a
statute, an executive order, a regulation or an ordinance.
(Malana vs. Tappa, 600 SCRA 189 [2009])

――o0o――

G.R. No. 184203. November 26, 2014.*

 CITY OF LAPU-LAPU, petitioner, vs. PHILIPPINE
ECONOMIC ZONE AUTHORITY, respondent.
G.R. No. 187583. November 26, 2014.*
PROVINCE OF BATAAN, represented by GOVERNOR
ENRIQUE T. GARCIA, JR., and EMERLINDA S. TALENTO,
in her capacity as Provincial Treasurer of Bataan,
petitioners, vs.PHILIPPINE ECONOMIC ZONE
AUTHORITY, respondent.
Remedial Law; Civil Procedure; Appeals; Under the Rules of
Court, there are three (3) modes of appeal from Regional Trial Court
(RTC) decisions.—Under the Rules of Court, there are three modes
of appeal from Regional Trial Court decisions. The first mode is
through an ordinary appeal before the Court of Appeals where the
decision assailed was rendered in the exercise of the Regional Trial
Court’s original jurisdiction. Ordinary appeals are governed by
Rule 41, Sections 3 to 13 of the Rules of Court. In ordinary appeals,
questions of fact or mixed questions of fact and law may be raised.
The second mode is through a petition for review before the Court
of Appeals where the decision assailed was rendered by the
Regional Trial Court in the exercise of its appellate jurisdiction.
Rule 42 of the Rules of Court governs petitions for review before the
Court of Appeals. In petitions for review under Rule 42, questions
of fact, of law, or mixed questions of fact and law may be raised.
The third mode is through an appeal by certiorari before this court
under Rule 45 where only questions of law shall be raised.
Same; Same; Same; “Question of Fact” and “Question of Law,”
Distinguished.—A question of fact exists when there is doubt as to
the truth or falsity of the alleged facts. On the other hand, there is
a question of law if the appeal raises doubt as to the applicable law
on a certain set of facts.
_______________
* SECOND DIVISION.
525
VOL. 742, NOVEMBER 26, 2014 525
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Same; Same; Same; Under Rule 50, Section 2, an improper
appeal before the Court of Appeals (CA) is dismissed outright and
shall not be referred to the proper court.—Under Rule 50, Section 2,
an improper appeal before the Court of Appeals is dismissed
outright and shall not be referred to the proper court: SEC.
2. Dismissal of improper appeal to the Court of Appeals.—An appeal
under Rule 41 taken from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for review from the
appellate judgment of a Regional Trial Court shall be dismissed. An
appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed outright.
Rule 50, Section 2 repealed Rule 50, Section 3 of the 1964 Rules of
Court, which provided that improper appeals to the Court of
Appeals shall not be dismissed but shall be certified to the proper
court for resolution: Sec. 3. Where appealed case erroneously,
brought.—Where the appealed case has been erroneously brought
to the Court of Appeals, it shall not dismiss the appeal, but shall
certify the case to the proper court, with a specific and clear
statement of the grounds therefor.
Same; Same; Same; Petition for Review on Certiorari; With
respect to appeals by certiorari directly filed before the Supreme
Court (SC) but which raise questions of fact, paragraph 4(b) of
Circular No. 2-90 dated March 9, 1990 states that the SC “retains
the option, in the exercise of its sound discretion and considering the
attendant circumstances, either itself to take cognizance of and
decide such issues or to refer them to the Court of Appeals (CA) for
determination.”—With respect to appeals by certioraridirectly filed
before this court but which raise questions of fact, paragraph 4(b)
of Circular No. 2-90 dated March 9, 1990 states that this court
“retains the option, in the exercise of its sound discretion and
considering the attendant circumstances, either itself to take
cognizance of and decide such issues or to refer them to the Court
of Appeals for determination.”
Same; Special Civil Actions; Jurisdiction; Courts; Regional
Trial Courts; Declaratory Relief; The court with jurisdiction over
petitions for declaratory relief is the Regional Trial Court (RTC), the
subject matter of litigation in an action for declaratory relief being
incapable of pecuniary estimation.—The court with jurisdiction
over
526
526 SUPREME COURT REPORTS ANNOTATED
 City of Lapu-Lapu vs. Philippine Econimic Zone Authority
petitions for declaratory relief is the Regional Trial Court, the
subject matter of litigation in an action for declaratory relief being
incapable of pecuniary estimation. Section 19 of the Judiciary
Reorganization Act of 1980 provides: SEC. 19. Jurisdiction in Civil
Cases.—Regional Trial Courts shall exercise exclusive original
jurisdiction: (1) In all civil actions in which the subject of litigation
is incapable of pecuniary estimation[.] Consistent with the law, the
Rules state that a petition for declaratory relief is filed “in the
appropriate Regional Trial Court.” A special civil action for
declaratory relief is filed for a judicial determination of any
question of construction or validity arising from, and for a
declaration of rights and duties, under any of the following subject
matters: a deed, will, contract or other written instrument, statute,
executive order or regulation, ordinance, or any other governmental
regulation. However, a declaratory judgment may issue only if
there has been “no breach of the documents in question.” If the
contract or statute subject matter of the action has already been
breached, the appropriate ordinary civil action must be filed. If
adequate relief is available through another form of action or
proceeding, the other action must be preferred over an action for
declaratory relief.
Same; Same; Same; Same; Same; Same; It is required that the
parties to the action for declaratory relief be those whose rights or
interests are affected by the contract or statute in question.—It is
also required that the parties to the action for declaratory relief be
those whose rights or interests are affected by the contract or
statute in question. “There must be an actual justiciable
controversy or the ‘ripening seeds’ of one” between the parties. The
issue between the parties “must be ripe for judicial determination.”
An action for declaratory relief based on theoretical or hypothetical
questions cannot be filed for our courts are not advisory courts.
Same; Same; Same; Jurisdiction over the subject matter is “the
power to hear and determine cases of the general class to which the
proceedings in question belong.”—There are several aspects of
jurisdiction. Jurisdiction over the subject matter is “the power to
hear and determine cases of the general class to which the
proceedings in question belong.” It is conferred by law, which may
either be the Constitution or a statute. Jurisdiction over the subject
matter means “the nature of the cause of action and the relief
sought.” Thus, the cause of action and character of the relief sought
as alleged in the
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
complaint are examined to determine whether a court had
jurisdiction over the subject matter. Any decision rendered by a
court without jurisdiction over the subject matter of the action is
void.
Same; Civil Procedure; Jurisdiction; Jurisdiction over the
person of the defendant is indispensable in actions in personam or
those actions based on a party’s personal liability.—Another aspect
of jurisdiction is jurisdiction over the person. It is “the power of [a]
court to render a personal judgment or to subject the parties in a
particular action to the judgment and other rulings rendered in the
action.” A court automatically acquires jurisdiction over the person
of the plaintiff upon the filing of the initiatory pleading. With
respect to the defendant, voluntary appearance in court or a valid
service of summons vests the court with jurisdiction over the
defendant’s person. Jurisdiction over the person of the defendant is
indispensable in actions in personam or those actions based on a
party’s personal liability. The proceedings in an action in
personam are void if the court had no jurisdiction over the person
of the defendant.
Same; Same; Same; Jurisdiction over the res is necessary in
actions in rem or those actions “directed against the thing or
property or status of a person and seek judgments with respect
thereto as against the whole world.”—Jurisdiction over the res or
the thing under litigation is acquired either “by the seizure of the
property under legal process, whereby it is brought into actual
custody of the law; or as a result of the institution of legal
proceedings, in which the power of the court is recognized and made
effective.” Jurisdiction over the res is necessary in actions in rem or
those actions “directed against the thing or property or status of a
person and seek judgments with respect thereto as against the
whole world.” The proceedings in an action in rem are void if the
court had no jurisdiction over the thing under litigation.
Taxation; Assessment; Exhaustion of Administrative Remedies;
In case of an erroneous assessment, the taxpayer must exhaust the
administrative remedies provided under the Local Government Code
(LGC) before resorting to judicial action.—Once an assessment has
already been issued by the assessor, the proper remedy of a
taxpayer depends on whether the assessment was erroneous or
illegal. An erroneous assessment “presupposes that the taxpayer is
subject to the tax but is disputing the correctness of the amount
assessed.” With an erroneous assessment, the taxpayer claims that
the local
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528 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
assessor erred in determining any of the items for computing
the real property tax, i.e., the value of the real property or the
portion thereof subject to tax and the proper assessment levels. In
case of an erroneous assessment, the taxpayer must exhaust the
administrative remedies provided under the Local Government
Code before resorting to judicial action.
Same; Same; Payment under protest and appeal to the Local
Board of Assessment Appeals (LBAA) are “successive administrative
remedies to a taxpayer who questions the correctness of an
assessment.”—Payment under protest and appeal to the Local
Board of Assessment Appeals are “successive administrative
remedies to a taxpayer who questions the correctness of an
assessment.” The Local Board Assessment Appeals shall not
entertain an appeal “without the action of the local assessor” on the
protest. If the taxpayer is still unsatisfied after appealing with the
Local Board of Assessment Appeals, the taxpayer may appeal with
the Central Board of Assessment Appeals within 30 days from
receipt of the Local Board’s decision.
Same; Same; In case of an illegal assessment, the taxpayer may
directly resort to judicial action without paying under protest the
assessed tax and filing an appeal with the Local and Central Board
of Assessment Appeals (CBAA).—On the other hand, an assessment
is illegal if it was made without authority under the law. In case of
an illegal assessment, the taxpayer may directly resort to judicial
action without paying under protest the assessed tax and filing an
appeal with the Local and Central Board of Assessment Appeals.
Remedial Law; Injunction; Words and Phrases; Injunction “is
a judicial writ, process or proceeding whereby a party is ordered to
do or refrain from doing a certain act.”—Injunction “is a judicial
writ, process or proceeding whereby a party is ordered to do or
refrain from doing a certain act.” “It may be the main action or
merely a provisional remedy for and as incident in the main action.”
The essential requisites of a writ of injunction are: “(1) there must
be a right in esse or the existence of a right to be protected; and (2)
the act against which the injunction is directed to constitute a
violation of such right.”
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Same; Civil Procedure; Jurisdiction; Objections to jurisdiction
cannot be waived and may be brought at any stage of the
proceedings, even on appeal.—Jurisdiction is “the power to hear and
determine cases of the general class to which the proceedings in
question belong.” Jurisdiction is a matter of substantive law. Thus,
an action may be filed only with the court or tribunal where the
Constitution or a statute says it can be brought. Objections to
jurisdiction cannot be waived and may be brought at any stage of
the proceedings, even on appeal. When a case is filed with a court
which has no jurisdiction over the action, the court shall motu
proprio dismiss the case.
Same; Same; Venue; A party’s objections to venue must be
brought at the earliest opportunity either in a motion to dismiss or
in the answer; otherwise the objection shall be deemed waived.—
Venue is “the place of trial or geographical location in which an
action or proceeding should be brought.” In civil cases, venue is a
matter of procedural law. A party’s objections to venue must be
brought at the earliest opportunity either in a motion to dismiss or
in the answer; otherwise the objection shall be deemed waived.
When the venue of a civil action is improperly laid, the court
cannot motu proprio dismiss the case.
Same; Same; Same; The venue of an action depends on whether
the action is a real or personal action.—The venue of an action
depends on whether the action is a real or personal action. Should
the action affect title to or possession of real property, or interest
therein, it is a real action. The action should be filed in the proper
court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated. If the action is a personal
action, the action shall be filed with the proper court where the
plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or in the case
of a nonresident defendant where he may be found, at the election
of the plaintiff.
Same; Same; Judgments; Judgment on the Merits; Words and
Phrases; A judgment on the merits is one which “determines the
rights and liabilities of the parties based on the disclosed facts,
irrespective of the formal, technical or dilatory objections.”—Appeal
is the remedy “to obtain a reversal or modification of a judgment on
the merits.” A judgment on the merits is one which “determines the
rights and liabilities of the parties based on the disclosed facts,
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530 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
irrespective of the formal, technical or dilatory objections.” It
is not even necessary that the case proceeded to trial. So long as the
“judgment is general” and “the parties had a full legal opportunity
to be heard on their respective claims and contentions,” the
judgment is on the merits.
Same; Same; Appeals; Petition for Review on Certiorari; An
appeal before the Supreme Court (SC) raising pure questions of law
is commenced by filing a petition for review on certiorari under Rule
45 of the Rules of Court.—In our jurisdiction, the term “certiorari”
is used in two ways. An appeal before this court raising pure
questions of law is commenced by filing a petition
for review on certiorari under Rule 45 of the Rules of Court. An
appeal by certiorari, which continues the proceedings commenced
before the lower courts, is filed to reverse or modify judgments or
final orders. Under the Rules, an appeal by certiorari must be filed
within 15 days from notice of the judgment or final order, or of the
denial of the appellant’s motion for new trial or reconsideration.
Same; Special Civil Actions; Certiorari; A petition for certiorari
under Rule 65, is an independent and original action filed to set
aside proceedings conducted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of
jurisdiction.—A petition for certiorari under Rule 65, on the other
hand, is an independent and original action filed to set aside
proceedings conducted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
Under the Rules, a petition for certiorari may only be filed if there
is no appeal or any plain, speedy, or adequate remedy in the
ordinary course of law. The petition must be filed within 60 days
from notice of the judgment, order, or resolution.
Taxation; Real Property Taxes; Real property taxes are collected
by the Local Treasurer, not by the Bureau of Internal Revenue (BIR)
in charge of collecting national internal revenue taxes, fees, and
charges.—The local tax cases referred to in Section 7, paragraph
(a)(3) of Republic Act No. 1125, as amended, include cases involving
real property taxes. Real property taxation is governed by Book II
of the Local Government Code on “Local Taxation and Fiscal
Matters.” Real property taxes are collected by the Local Treasurer,
not by the Bureau of Internal Revenue in charge of collecting
national internal revenue taxes, fees, and charges. Section 7,
paragraph (a)(5) of Re-
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
public Act No. 1125, as amended by Republic Act No. 9282,
separately provides for the exclusive appellate jurisdiction of the
Court of Tax Appeals over decisions of the Central Board of
Assessment Appeals involving the assessment or collection of real
property taxes.
Remedial Law; Civil Procedure; Courts; Court of Tax Appeals;
Jurisdiction; The Supreme Court (SC) has ruled that the Court of
Tax Appeals (CTA), not the Court of Appeals (CA), has the exclusive
original jurisdiction over petitions for certiorari assailing
interlocutory orders issued by Regional Trial Courts (RTCs) in a
local tax case.—We have also ruled that the Court of Tax Appeals,
not the Court of Appeals, has the exclusive original jurisdiction over
petitions for certiorari assailing interlocutory orders issued by
Regional Trial Courts in a local tax case. We explained in The City
of Manila v. Hon. Grecia-Cuerdo, 715 SCRA 182 (2014), that while
the Court of Tax Appeals has no express grant of power to issue
writs of certiorari under Republic Act No. 1125, as amended, the tax
court’s judicial power as defined in the Constitution includes the
power to determine “whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the [Regional Trial Court] in issuing an interlocutory order of
jurisdiction in cases falling within the exclusive appellate
jurisdiction of the tax court.”
 Same; Same; Exhaustion of Administrative Remedies;
Exhaustion of administrative remedies under the Local Government
Code (LGC) is necessary in cases of erroneous assessments where the
correctness of the amount assessed is assailed.—Exhaustion of
administrative remedies under the Local Government Code is
necessary in cases of erroneous assessments where the correctness
of the amount assessed is assailed. The taxpayer must first pay the
tax then file a protest with the Local Treasurer within 30 days from
date of payment of tax. If protest is denied or upon the lapse of the
60-day period to decide the protest, the taxpayer may appeal to the
Local Board of Assessment Appeals within 60 days from the denial
of the protest or the lapse of the 60-day period to decide the protest.
The Local Board of Assessment Appeals has 120 days to decide the
appeal.
Taxation; Local Board of Assessment Appeals; If the taxpayer
is unsatisfied with the Local Board’s decision, the taxpayer may
appeal before the Central Board of Assessment Appeals (CBAA)
within thirty (30) days from receipt of the Local Board’s decision.—
If the taxpayer
532
532 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
is unsatisfied with the Local Board’s decision, the taxpayer
may appeal before the Central Board of Assessment Appeals within
30 days from receipt of the Local Board’s decision. The decision of
the Central Board of Assessment Appeals is appealable before the
Court of Tax Appeals En Banc. The appeal before the Court of Tax
Appeals shall be filed following the procedure under Rule 43 of the
Rules of Court. The Court of Tax Appeals’ decision may then be
appealed before this court through a petition for review
on certiorari under Rule 45 of the Rules of Court raising pure
questions of law.
Assessment; Exhaustion of Administrative Remedies; In case of
an illegal assessment where the assessment was issued without
authority, exhaustion of administrative remedies is not necessary
and the taxpayer may directly resort to judicial action.—In case of
an illegal assessment where the assessment was issued without
authority, exhaustion of administrative remedies is not necessary
and the taxpayer may directly resort to judicial action. The
taxpayer shall file a complaint for injunction before the Regional
Trial Court to enjoin the local government unit from collecting real
property taxes. The party unsatisfied with the decision of the
Regional Trial Court shall file an appeal, not a petition
for certiorari, before the Court of Tax Appeals, the complaint being
a local tax case decided by the Regional Trial Court. The appeal
shall be filed within fifteen (15) days from notice of the trial court’s
decision.
Taxation; Notice of Delinquency; Injunction; In case the local
government unit (LGU) has issued a notice of delinquency, the
taxpayer may file a complaint for injunction to enjoin the impending
sale of the real property at public auction.—In case the local
government unit has issued a notice of delinquency, the taxpayer
may file a complaint for injunction to enjoin the impending sale of
the real property at public auction. In case the local government
unit has already sold the property at public auction, the taxpayer
must first deposit with the court the amount for which the real
property was sold, together with interest of 2% per month from the
date of sale to the time of the institution of action. The taxpayer
may then file a complaint to assail the validity of the public auction.
The decisions of the Regional Trial Court in these cases shall be
appealable before the Court of Tax Appeals, and the latter’s
decisions appealable before this court through a petition for review
on certiorari under Rule 45 of the Rules of Court.
533
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Same; Real Property Taxes; Real property taxes are annual
taxes levied on real property such as lands, buildings, machinery,
and other improvements not otherwise specifically exempted under
the Local Government Code (LGC).—Real property taxes are annual
taxes levied on real property such as lands, buildings, machinery,
and other improvements not otherwise specifically exempted under
the Local Government Code. Real property taxes are ad valorem,
with the amount charged based on a fixed proportion of the value of
the property. Under the law, provinces, cities, and municipalities
within the Metropolitan Manila Area have the power to levy real
property taxes within their respective territories. The general rule
is that real properties are subject to real property taxes. This is true
especially since the Local Government Code has withdrawn
exemptions from real property taxes of all persons, whether natural
or juridical.
Same; Same; Tax Exemptions; For persons granted tax
exemptions or incentives before the effectivity of the Local
Government Code (LGC), Section 193 withdrew these tax exemption
privileges; Nevertheless, local government units (LGUs) may grant
tax exemptions under such terms and conditions as they may deem
necessary.—For persons granted tax exemptions or incentives
before the effectivity of the Local Government Code, Section 193
withdrew these tax exemption privileges. These persons consist of
both natural and juridical persons, including government-owned or
-controlled corporations: SEC. 193. Withdrawal of Tax Exemption
Privileges.—Unless otherwise provided in this code, tax exemptions
or incentives granted to or presently enjoyed by all persons,
whether natural or juridical, including government-owned or -
controlled corporations, except local water districts, cooperatives
duly registered under R.A. 6938, non-stock and nonprofit hospitals
and educational institutions, are hereby withdrawn upon effectivity
of this Code. As discussed, Section 234 withdrew all tax privileges
with respect to real property taxes. Nevertheless, local government
units may grant tax exemptions under such terms and conditions
as they may deem necessary.
Same; Same; Same; In Mactan Cebu International Airport
Authority v. Marcos, 261 SCRA 667 (1996), the Supreme Court (SC)
classified the exemptions from real property taxes into ownership,
character, and usage exemptions.—In Mactan Cebu International
Airport Authority v. Marcos,261 SCRA 667 (1996), this court classi-
534
534 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
fied the exemptions from real property taxes into ownership,
character, and usage exemptions. Ownership exemptions are
exemptions based on the ownership of the real property. The
exemptions of real property owned by the Republic of the
Philippines, provinces, cities, municipalities, barangays, and
registered cooperatives fall under this classification. Character
exemptions are exemptions based on the character of the real
property. Thus, no real property taxes may be levied on charitable
institutions, houses and temples of prayer like churches,
parsonages, or convents appurtenant thereto, mosques, and
nonprofit or religious cemeteries. Usage exemptions are exemptions
based on the use of the real property. Thus, no real property taxes
may be levied on real property such as: (1) lands and buildings
actually, directly, and exclusively used for religious, charitable or
educational purpose; (2) machineries and equipment actually,
directly and exclusively used by local water districts or by
government-owned or -controlled corporations engaged in the
supply and distribution of water and/or generation and
transmission of electric power; and (3) machinery and equipment
used for pollution control and environmental protection.
Same; Philippine Economic Zone Authority; The Philippine
Economic Zone Authority (PEZA) is an instrumentality of the
national government. It is not integrated within the department
framework but is an agency attached to the Department of Trade
and Industry (DTI).—An instrumentality is “any agency of the
National Government, not integrated within the department
framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy, usually through
a charter.” Examples of instrumentalities of the national
government are the Manila International Airport Authority, the
Philippine Fisheries Development Authority, the Government
Service Insurance System, and the Philippine Reclamation
Authority. These entities are not integrated within the department
framework but are nevertheless vested with special functions to
carry out a declared policy of the national government. Similarly,
the PEZA is an instrumentality of the national government. It is
not integrated within the department framework but is an agency
attached to the Department of Trade and Industry.
Same; Same; Special Economic Zones; Congress created the
Philippine Economic Zone Authority (PEZA) to operate, administer,
manage and develop special economic zones in the Philippines. Spe-
535
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
cial economic zones are areas with highly developed or which
have the potential to be developed into agro-industrial, industrial
tourist/recreational, commercial, banking, investment and financial
centers.—As an instrumentality of the national government, the
PEZA is vested with special functions or jurisdiction by law.
Congress created the PEZA to operate, administer, manage and
develop special economic zones in the Philippines. Special economic
zones are areas with highly developed or which have the potential
to be developed into agro-industrial, industrial tourist/recreational,
commercial, banking, investment and financial centers.
Same; Same; Tax Exemptions; Real Property Taxes; Being an
instrumentality of the national government, the Philippine
Economic Zone Authority (PEZA) cannot be taxed by local
government units (LGUs).—Being an instrumentality of the
national government, the PEZA cannot be taxed by local
government units. Although a body corporate vested with some
corporate powers, the PEZA is not a government-owned or -
controlled corporation taxable for real property taxes.
Government-Owned or -Controlled Corporations; Under the
Constitution, government-owned or -controlled corporations
(GOCCs) are created in the interest of the common good and should
satisfy the test of economic viability.—Government entities are
created by law, specifically, by the Constitution or by statute. In the
case of government-owned or -controlled corporations, they are
incorporated by virtue of special charters to participate in the
market for special reasons which may be related to dysfunctions or
inefficiencies of the market structure. This is to adjust reality as
against the concept of full competition where all market players are
price takers. Thus, under the Constitution, government-owned or -
controlled corporations are created in the interest of the common
good and should satisfy the test of economic viability. Article XII,
Section 16 of the Constitution provides: Section 16. The Congress
shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-
owned or -controlled corporations may be created or established by
special charters in the interest of the common good and subject to
the test of economic viability.
Government Instrumentality; When a government entity
performs sovereign functions, it need not meet the test of economic
viability.—Government instrumentalities, on the other hand, are
also
536
536 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
created by law but partake of sovereign functions. When a
government entity performs sovereign functions, it need not meet
the test of economic viability.
Philippine Economic Zone Authority; Under the Special
Economic Zone Act of 1995, the Philippine Economic Zone Authority
(PEZA) was established primarily to perform the governmental
function of operating, administering, managing, and developing
special economic zones to attract investments and provide
opportunities for preferential use of Filipino labor.—The law created
the PEZA’s charter. Under the Special Economic Zone Act of 1995,
the PEZA was established primarily to perform the governmental
function of operating, administering, managing, and developing
special economic zones to attract investments and provide
opportunities for preferential use of Filipino labor. Under its
charter, the PEZA was created a body corporate endowed with some
corporate powers. However, it was not organized as a stock or non-
stock corporation. Nothing in the PEZA’s charter provides that the
PEZA’s capital is divided into shares. The PEZA also has no
members who shall share in the PEZA’s profits.
Same; Taxation; Tax Exemptions; Real Property Taxes; The
Supreme Court (SC) ruled that the Philippine Economic Zone
Authority (PEZA) is exempt from real property taxes by virtue of its
charter. A provision in the Special Economic Zone Act of 1995
explicitly exempting the PEZA is unnecessary.—We rule that the
PEZA is exempt from real property taxes by virtue of its charter. A
provision in the Special Economic Zone Act of 1995 explicitly
exempting the PEZA is unnecessary. The PEZA assumed the real
property exemption of the EPZA under Presidential Decree No. 66.
Section 11 of the Special Economic Zone Act of 1995 mandated the
EPZA “to evolve into the PEZA in accordance with the guidelines
and regulations set forth in an executive order issued for this
purpose.” President Ramos then issued Executive Order No. 282 in
1995, ordering the PEZA to assume the EPZA’s powers, functions,
and responsibilities under Presidential Decree No. 66 not
inconsistent with the Special Economic Zone Act of 1995.
Same; Same; Same; Same; Contrary to the Philippine
Economic Zone Authority’s (PEZA’s) claim, developers of economic
zones, whether public or private developers, are liable for real
property taxes on lands they own.—Contrary to the PEZA’s claim,
developers of
 537
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
economic zones, whether public or private developers, are
liable for real property taxes on lands they own. Section 24 does not
distinguish between a public and private developer. Thus, courts
cannot distinguish. Unless the public developer is exempt under the
Local Government Code or under its charter enacted after the Local
Government Code’s effectivity, the public developer must pay real
property taxes on their land.
Same; Same; Same; Same; The Philippine Economic Zone
Authority (PEZA) cannot be taxed for real property taxes even if it
acts as a developer or operator of special economic zones. The PEZA
is an instrumentality of the national government exempt from
payment of real property taxes under Section 133(o) of the Local
Government Code (LGC).—At any rate, the PEZA cannot be taxed
for real property taxes even if it acts as a developer or operator of
special economic zones. The PEZA is an instrumentality of the
national government exempt from payment of real property taxes
under Section 133(o) of the Local Government Code. As this court
said in Manila International Airport Authority v. Court of Appeals,
495 SCRA 591 (2006), “there must be express language in the law
empowering local governments to tax national government
instrumentalities. Any doubt whether such power exists is resolved
against local governments.”
Public Dominion; Properties of public dominion are outside the
commerce of man. These properties are exempt from “levy,
encumbrance or disposition through public or private sale.”—
Properties of public dominion are outside the commerce of man.
These properties are exempt from “levy, encumbrance or disposition
through public or private sale.” As this court explained in Manila
International Airport Authority: Properties of public dominion,
being for public use, are not subject to levy, encumbrance or
disposition through public or private sale. Any encumbrance, levy
on execution or auction sale of any property of public dominion is
void for being contrary to public policy. Essential public services
will stop if properties of public dominion are subject to
encumbrances, foreclosures and auction sale[.] On the other hand,
all other properties of the state that are not intended for public use
or are not intended for some public service or for the development
of the national wealth are patrimonial properties. Article 421 of the
Civil Code of the Philippines provides: Art. 421. All other property
of the State, which is not of the character stated in
538
538 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
the preceding article, is patrimonial property. Patrimonial
properties are also properties of the state, but the state may dispose
of its patrimonial property similar to private persons disposing of
their property. Patrimonial properties are within the commerce of
man and are susceptible to prescription, unless otherwise provided.
Same; Taxation; Tax Exemptions; Real Property Taxes;
Freeport Area of Bataan; The Freeport Area of Bataan, where the
government allows tax and duty-free importation of goods, is
considered property of public dominion. The Freeport Area of
Bataan is owned by the state and cannot be taxed under Section
234(a) of the Local Government Code (LGC).—A port of entry, where
imported goods are unloaded then introduced in the market for
public consumption, is considered property for public use. Thus,
Article 420 of the Civil Code classifies a port as property of public
dominion. The Freeport Area of Bataan, where the government
allows tax and duty-free importation of goods, is considered
property of public dominion. The Freeport Area of Bataan is owned
by the state and cannot be taxed under Section 234(a) of the Local
Government Code. Properties of public dominion, even if titled in
the name of an instrumentality as in this case, remain owned by
the Republic of the Philippines. If property registered in the name
of an instrumentality is conveyed to another person, the property is
considered conveyed on behalf of the Republic of the Philippines.
Philippine Economic Zone Authority; Taxation; Tax
Exemptions; Real Property Taxes; Even the Philippine Economic
Zone Authority’s (PEZA’s) lands and buildings whose beneficial use
have been granted to other persons may not be taxed with real
property taxes; Under Section 24 of the Special Economic Zone Act
of 1995, no taxes, whether local or national, shall be imposed on all
business establishments operating within the economic zones.—
Even the PEZA’s lands and buildings whose beneficial use have
been granted to other persons may not be taxed with real property
taxes. The PEZA may only lease its lands and buildings to PEZA-
registered economic zone enterprises and entities. These PEZA-
registered enterprises and entities, which operate within economic
zones, are not subject to real property taxes. Under Section 24 of
the Special Economic Zone Act of 1995, no taxes, whether local or
national, shall be imposed on all business establishments operating
within the economic zones.
539
VOL. 742, NOVEMBER 26, 2014 539
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
PETITIONS for review on certiorari of the decisions and
resolutions of the Court of Appeals.
The facts are stated in the opinion of the Court.
Office of the City Attorney for City of Lapu-Lapu.
Aurelio Angeles, Jr. for Province of Bataan, et al.
Alma Florence A. Logronio and Procolo M. Olaivar for
respondent in G.R. No. 184203.
LEONEN, J.:
The Philippine Economic Zone Authority is exempt from
payment of real property taxes.
These are consolidated1 petitions for review
on certiorari the City of Lapu-Lapu and the Province of
Bataan separately filed against the Philippine Economic Zone
Authority (PEZA).
In G.R. No. 184203, the City of Lapu-Lapu (the City)
assails the Court of Appeals’ decision2 dated January 11, 2008
and resolution3dated August 6, 2008, dismissing the City’s
appeal for being the wrong mode of appeal. The City appealed
the Regional Trial Court, Branch 111, Pasay City’s decision
finding the PEZA exempt from payment of real property
taxes.
In G.R. No. 187583, the Province of Bataan (the Province)
assails the Court of Appeals’ decision4 dated August 27, 2008
_______________
1 Resolution dated March 14, 2011.
2 Rollo (G.R. No. 184203), pp. 51-54. This decision in C.A.-G.R. CV No.
88318 was penned by Associate Justice Josefina Guevara-Salonga, with
Associate Justices Vicente Q. Roxas and Ramon R. Garcia, concurring.
3 Id., at pp. 48-49.
4 Rollo (G.R. No. 187583), pp. 57-68. This decision in C.A.-G.R. S.P. No.
100984 was penned by Associate Justice Marlene Gonzales-
540
540 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
and resolution5 dated April 16, 2009, granting the PEZA’s
petition for certiorari. The Court of Appeals ruled that the
Regional Trial Court, Branch 115, Pasay City gravely abused
its discretion in finding the PEZA liable for real property taxes
to the Province of Bataan.
Facts common to the consolidated petitions
In the exercise of his legislative powers,6 President
Ferdinand E. Marcos issued Presidential Decree No. 66 in
1972, declaring as government policy the establishment of
export processing zones in strategic locations in the
Philippines. Presidential Decree No. 66 aimed “to encourage
and promote foreign commerce as a means of making the
Philippines a center of international trade, of strengthening
our export trade and foreign exchange position, of hastening
industrialization, of reducing domestic unemployment, and of
accelerating the development of the country.”7
To carry out this policy, the Export Processing Zone
Authority (EPZA) was created to operate, administer, and
manage the export processing zones established in the Port of
Mariveles, Bataan8 and such other export processing zones
that may be created by virtue of the decree.9
The decree declared the EPZA nonprofit in character10 with
all its revenues devoted to its development, improvement, and
maintenance.11 To maintain this nonprofit character, the
EPZA was declared exempt from all taxes that may be due to
_______________
Sison, with Associate Justices Juan Q. Enriquez, Jr. and Isaias P.
Dicdican, concurring.
5 Id., at pp. 69-71.
6 Proc. No. 1081 dated September 21, 1972.
 7 Pres. Decree No. 66 (1972), Sec. 1.
8 Rep. Act No. 5490 (1969), Sec. 2.
9 Pres. Decree No. 66 (1972), Sec. 4(a).
10 Pres. Decree No. 66 (1972), Sec. 21.
11 Id.
541
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
the Republic of the Philippines, its provinces, cities,
municipalities, and other government agencies and
instrumentalities.12 Specifically, Section 21 of Presidential
Decree No. 66 declared the EPZA exempt from payment of
real property taxes:
Section 21. Nonprofit Character of the Authority; Exemption
from Taxes.—The Authority shall be nonprofit and shall devote and
use all its returns from its capital investment, as well as excess
revenues from its operations, for the development, improvement
and maintenance and other related expenditures of the Authority
to pay its indebtedness and obligations and in furtherance and
effective implementation of the policy enunciated in Section 1 of
this Decree. In consonance therewith, the Authority is hereby
declared exempt:
....
(b) From all income taxes, franchise taxes, realty taxes and all
other kinds of taxes and licenses to be paid to the National
Government, its provinces, cities, municipalities and other
government agencies and instrumentalities[.]
In 1979, President Marcos issued Proclamation No. 1811,
establishing the Mactan Export Processing Zone. Certain
parcels of land of the public domain located in the City of
Lapu-Lapu in Mactan, Cebu were reserved to serve as site of
the Mactan Export Processing Zone.
In 1995, the PEZA was created by virtue of Republic Act
No. 7916 or “the Special Economic Zone Act of 1995”13 to
operate, administer, manage, and develop economic zones in
the country.14The PEZA was granted the power to register,
regulate, and supervise the enterprises located in the
economic
_______________
12 Pres. Decree No. 66 (1972), Sec. 21(a).
13 Rep. Act No. 7916 (1995), Sec. 11.
14 Rep. Act No. 7916 (1995), Sec. 13(a).
542
542 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
zones.15 By virtue of the law, the export processing zone in
Mariveles, Bataan became the Bataan Economic Zone16 and
the Mactan Export Processing Zone the Mactan Economic
Zone.17
As for the EPZA, the law required it to “evolve into the
PEZA in accordance with the guidelines and regulations set
forth in an executive order issued for [the] purpose.”18
On October 30, 1995, President Fidel V. Ramos issued
Executive Order No. 282, directing the PEZA to assume and
exercise all of the EPZA’s powers, functions, and
responsibilities “as provided in Presidential Decree No. 66, as
amended, insofar as they are not inconsistent with the
powers, functions, and responsibilities of the PEZA, as
mandated under [the Special Economic Zone Act of
1995].”19 All of EPZA’s properties, equipment, and assets,
among others, were ordered transferred to the PEZA.20
Facts of G.R. No. 184203
In the letter21 dated March 25, 1998, the City of Lapu-Lapu,
through the Office of the Treasurer, demanded from the PEZA
P32,912,350.08 in real property taxes for the period from 1992
to 1998 on the PEZA’s properties located in the Mactan
Economic Zone.
The City reiterated its demand in the letter22 dated May 21,
1998. It cited Sections 193 and 234 of the Local Government
Code of 1991 that withdrew the real property tax exemptions
previously granted to or presently enjoyed by all persons. The
_______________
15 Rep. Act No. 7916 (1995), Sec. 13(b).
16 Rep. Act No. 7916 (1995), Sec. 5(ll).
17 Rep. Act No. 7916 (1995), Sec. 5(m).
18 Rep. Act No. 7916 (1995), Sec. 11.
19 Exec. Order No. 282 (1995), Sec. 1.
20 Exec. Order No. 282 (1995), Sec. 2.
21 RTC Records (Civil Case No. 02-0410), p. 16.
22 Id., at pp. 17-20.
543
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
City pointed out that no provision in the Special Economic
Zone Act of 1995 specifically exempted the PEZA from
payment of real property taxes, unlike Section 21 of
Presidential Decree No. 66 that explicitly provided for EPZA’s
exemption. Since no legal provision explicitly exempted the
PEZA from payment of real property taxes, the City argued
that it can tax the PEZA.
The City made subsequent demands23 on the PEZA. In its
last reminder24 dated May 13, 2002, the City assessed the
PEZA P86,843,503.48 as real property taxes for the period
from 1992 to 2002.
On September 11, 2002, the PEZA filed a petition for
declaratory relief25 with the Regional Trial Court of Pasay
City, praying that the trial court declare it exempt from
payment of real property taxes. The case was raffled to
Branch 111.
The City answered26 the petition, maintaining that the
PEZA is liable for real property taxes. To support its
argument, the City cited a legal opinion dated September 6,
1999 issued by the Department of Justice,27 which stated that
the PEZA is not exempt from payment of real property taxes.
The Department of Justice based its opinion on Sections 193
and 234 of the Local Government Code that withdrew the tax
exemptions, including real property tax exemptions,
previously granted to all persons.
A reply28 was filed by the PEZA to which the City filed a
rejoinder.29
_______________
23 RTC Records, pp. 20-21, dated July 14, 1998; p. 22, dated December 22,
1998; p. 23, dated January 28, 1999; pp. 24-25, dated March 8, 1999; p. 26,
dated May 29, 2000; pp. 27-31, dated December 13, 1999; pp. 32-33, dated May
2, 2000.
24 RTC Records, pp. 34-35.
25 Id., at pp. 2-15.
26 Id., at pp. 79-88.
27 Id., at pp. 83-87.
28 Id., at pp. 119-124.
544
544 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Pursuant to Rule 63, Section 3 of Rules of Court,30 the
Office of the Solicitor General filed a comment31 on the PEZA’s
petition for declaratory relief. It agreed that the PEZA is
exempt from payment of real property taxes, citing Sections
24 and 51 of the Special Economic Zone Act of 1995.
The trial court agreed with the Solicitor General. Section
24 of the Special Economic Zone Act of 1995 provides:
SEC. 24. Exemption from National and Local Taxes.—Except
for real property taxes on land owned by developers, no taxes, local
and national, shall be imposed on business establishments
operating within the ECOZONE. In lieu thereof, five percent (5%)
of the gross income earned by all business enterprises within the
ECOZONE shall be paid and remitted as follows:
a. Three percent (3%) to the National Government;
b. Two percent (2%) which shall be directly remitted by the
business establishments to the treasurer’s office of the municipality
or city where the enterprise is located.
Section 51 of the law, on the other hand, provides:
SEC. 51. Ipso Facto Clause.—All privileges, benefits,
advantages or exemptions granted to special economic zones under
Republic Act No. 7227, shall ipso facto be accorded to special
economic zones already created or to be created under this Act. The
free port status shall not be vested upon new special economic
zones.
_______________
29 Id., at pp. 167-173.
30 Rules of Court, Rule 63, Sec. 3 provides:
Notice on Solicitor General.—In any action which involves the validity of a
statute, executive order or regulation, or any other governmental regulation,
the Solicitor General shall be notified by the party assailing the same and shall
be entitled to be heard upon such question.
31 RTC Records, pp. 137-166.
545
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Based on Section 51, the trial court held that all privileges,
benefits, advantages, or exemptions granted to special
economic zones created under the Bases Conversion and
Development Act of 1992 apply to special economic zones
created under the Special Economic Zone Act of 1995. Since
these benefits include exemption from payment of national or
local taxes, these benefits apply to special economic zones
owned by the PEZA.
According to the trial court, the PEZA remained tax-
exempt regardless of Section 24 of the Special Economic Zone
Act of 1995. It ruled that Section 24, which taxes real property
owned by developers of economic zones, only applies to private
developers of economic zones, not to public developers like the
PEZA. The PEZA, therefore, is not liable for real property
taxes on the land it owns.
Characterizing the PEZA as an agency of the National
Government, the trial court ruled that the City had no
authority to tax the PEZA under Sections 133(o) and 234(a) of
the Local Government Code of 1991.
In the resolution32 dated June 14, 2006, the trial court
granted the PEZA’s petition for declaratory relief and
declared it exempt from payment of real property taxes.
The City filed a motion for reconsideration,33 which the trial
court denied in its resolution34 dated September 26, 2006.
The City then appealed35 to the Court of Appeals.
The Court of Appeals noted the following issues the City
raised in its appellant’s brief: (1) whether the trial court had
jurisdiction over the PEZA’s petition for declaratory relief; (2)
whether the PEZA is a government agency performing gov-
_______________
32 Id., at pp. 179-191. This resolution was penned by Judge Wilhelmina
B. Jorge-Wagan.
33 Id., at pp. 200-227.
34 Id., at p. 262.
35 CA Rollo (C.A.-G.R. CV No. 88318), pp. 12-44.
546
546 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
ernmental functions; and (3) whether the PEZA is exempt
from payment of real property taxes.
The issues presented by the City, according to the Court of
Appeals, are pure questions of law which should have been
raised in a petition for review on certiorari directly filed before
this court. Since the City availed itself of the wrong mode of
appeal, the Court of Appeals dismissed the City’s appeal in
the decision36 dated January 11, 2008.
The City filed a motion for extension of time to file a motion
for reconsideration,37 which the Court of Appeals denied in the
resolution38 dated April 11, 2008.
Despite the denial of its motion for extension, the City filed
a motion for reconsideration.39 In the resolution40 dated
August 6, 2008, the Court of Appeals denied that motion.
In its petition for review on certiorari with this court,41 the
City argues that the Court of Appeals “hid under the skirts of
technical rules”42 in resolving its appeal. The City maintains
that its appeal involved mixed questions of fact and law.
According to the City, whether the PEZA performed
governmental functions “cannot completely be addressed by
law but [by] the factual and actual activities [the PEZA is]
carrying out.”43
 Even assuming that the petition involves pure questions of
law, the City contends that the subject matter of the case “is
of extreme importance with [far-reaching] consequence that
[its magnitude] would surely shape and determine the course
_______________
36 Rollo (G.R. No. 184203), pp. 51-54.
37 CA Rollo (C.A.-G.R. CV No. 88318), pp. 127-130.
38 Id., at p. 131.
39 Id., at pp. 132-149.
40 Rollo (G.R. No. 184203), pp. 48-49.
41 Id., at pp. 21-46.
42 Id., at p. 36.
43 Id., at p. 33.
547
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
of our nation’s future.”44 The Court of Appeals, the City
argues, should have resolved the case on the merits.
The City insists that the trial court had no jurisdiction to
hear the PEZA’s petition for declaratory relief. According to
the City, the case involves real property located in the City of
Lapu-Lapu. The petition for declaratory relief should have
been filed before the Regional Trial Court of the City of Lapu-
Lapu.45
Moreover, the Province of Bataan, the City of Baguio, and
the Province of Cavite allegedly demanded real property taxes
from the PEZA. The City argues that the PEZA should have
likewise impleaded these local government units as
respondents in its petition for declaratory relief. For its failure
to do so, the PEZA violated Rule 63, Section 2 of the Rules of
Court, and the trial court should have dismissed the petition.46
This court ordered the PEZA to comment on the City’s
petition for review on certiorari.47
At the outset of its comment, the PEZA argues that the
Court of Appeals’ decision dated January 11, 2008 had become
final and executory. After the Court of Appeals had denied the
City’s appeal, the City filed a motion for extension of time to
file a motion for reconsideration. Arguing that the time to file
a motion for reconsideration is not extendible, the PEZA filed
its motion for reconsideration out of time. The City has no
more right to appeal to this court.48
The PEZA maintains that the City availed itself of the
wrong mode of appeal before the Court of Appeals. Since the
City raised pure questions of law in its appeal, the PEZA
_______________
44 Id., at p. 34.
45 Id., at pp. 40-42.
46 Id., at p. 76.
47 Rollo (G.R. No. 184203), p. 91, resolution dated November 17, 2008.
48 Id., at pp. 118-124.
548
548 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
argues that the proper remedy is a petition for review
on certiorari with this court, not an ordinary appeal before the
appellate court. The Court of Appeals, therefore, correctly
dismissed outright the City’s appeal under Rule 50, Section 2
of the Rules of Court.49
On the merits, the PEZA argues that it is an agency and
instrumentality of the National Government. It is therefore
exempt from payment of real property taxes under Sections
133(o) and 234(a) of the Local Government Code.50 It adds that
the tax privileges under Sections 24 and 51 of the Special
Economic Zone Act of 1995 applied to it.51
Considering that the site of the Mactan Economic Zone is a
reserved land under Proclamation No. 1811, the PEZA claims
that the properties sought to be taxed are lands of public
dominion exempt from real property taxes.52
As to the jurisdiction issue, the PEZA counters that the
Regional Trial Court of Pasay had jurisdiction to hear its
petition for declaratory relief under Rule 63, Section 1 of the
Rules of Court.53 It also argued that it need not implead the
Province of Bataan, the City of Baguio, and the Province of
Cavite as respondents considering that their demands came
after the PEZA had already filed the petition in court.54

Facts of G.R. No. 187583
After the City of Lapu-Lapu had demanded payment of real
property taxes from the PEZA, the Province of Bataan
followed suit. In its letter55 dated May 29, 2003, the Province,
_______________
49 Id., at pp. 124-128.
50 Id., at pp. 129-135.
51 Id., at pp. 136-138.
52 Id., at pp. 138-139.
53 Id., at pp. 141-145.
54 Id., at pp. 145-149.
55 CA Rollo (C.A.-G.R. S.P. No. 100984), p. 100.
549
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
through the Office of the Provincial Treasurer, informed
the PEZA that it would be sending a real property tax billing
to the PEZA. Arguing that the PEZA is a developer of
economic zones, the Province claimed that the PEZA is liable
for real property taxes under Section 24 of the Special
Economic Zone Act of 1995.
In its reply letter56 dated June 18, 2003, the PEZA
requested the Province to suspend the service of the real
property tax billing. It cited its petition for declaratory relief
against the City of Lapu-Lapu pending before the Regional
Trial Court, Branch 111, Pasay City as basis.
The Province argued that serving a real property tax
billing on the PEZA “would not in any way affect [its] petition
for declaratory relief before [the Regional Trial Court] of
Pasay City.”57 Thus, in its letter58 dated June 27, 2003, the
Province notified the PEZA of its real property tax liabilities
for June 1, 1995 to December 31, 2002 totalling
P110,549,032.55.
After having been served a tax billing, the PEZA again
requested the Province to suspend collecting its alleged real
property tax liabilities until the Regional Trial Court of Pasay
City resolves its petition for declaratory relief.59
The Province ignored the PEZA’s request. On January 20,
2004, the Province served on the PEZA a statement of unpaid
real property tax for the period from June 1995 to December
2004.60
The PEZA again requested the Province to suspend
collecting its alleged real property taxes.61 The Province
denied the request in its letter62 dated January 29, 2004, then
served on
_______________
56 Id., at p. 101.
57 Id., at p. 102.
58 Id.
59 Id., at p. 103.
60 Id., at pp. 104-106.
61 Id., at p. 107.
62 Id., at pp. 108-109.
550
550 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
the PEZA a warrant of levy63 covering the PEZA’s real
properties located in Mariveles, Bataan.
The PEZA’s subsequent requests64 for suspension of
collection were all denied by the Province.65 The Province then
served on the PEZA a notice of delinquency in the payment of
real property taxes66 and a notice of sale of real property for
unpaid real property tax.67 The Province finally sent the PEZA
a notice of public auction of the latter’s properties in
Mariveles, Bataan.68
On June 14, 2004, the PEZA filed a petition for
injunction69 with prayer for issuance of a temporary
restraining order and/or writ of preliminary injunction before
the Regional Trial Court of Pasay City, arguing that it is
exempt from payment of real property taxes. It added that the
notice of sale issued by the Province was void because it was
not published in a newspaper of general circulation as
required by Section 260 of the Local Government Code.70
_______________
63 Id., at pp. 110-111.
64 CA Rollo (C.A.-G.R. S.P. No. 100984), pp. 112-113, dated April 28,
2004; pp. 115-116, dated May 5, 2004.
65 Id., at p. 114, dated April 30, 2004; p. 117, dated May 7, 2004.
66 Id., at pp. 118-119.
67 Id., at pp. 120-122.
68 Id., at pp. 123-125.
69 Id., at pp. 126-135.
70 Rep. Act No. 7160 (1991), Sec. 260 provides:
SECTION 260. Advertisement and Sale.—Within thirty (30) days
after service of the warrant of levy, the local treasurer shall proceed to publicly
advertise for sale or auction the property or a usable portion thereof as may
be necessary to satisfy the tax delinquency and expenses of sale. The
advertisement shall be effected by posing a notice at the main entrance of the
provincial, city or municipal building, and in a publicly accessible and
conspicuous place in the barangay where the real property is located, and by
publication once a week for two (2) weeks in a newspaper of general circulation
in the province, city or municipality where the property is lo-
551
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
The case was raffled to Branch 115.
In its order71 dated June 18, 2004, the trial court issued a
temporary restraining order against the Province. After the
PEZA had filed a P100,000.00 bond,72 the trial court issued a
writ of preliminary injunction,73 enjoining the Province from
selling the PEZA’s real properties at public auction.
On March 3, 2006, the PEZA and Province both manifested
that each would file a memorandum after which the case
would be deemed submitted for decision. The parties then
filed their respective memoranda.74
In the order75 dated January 31, 2007, the trial court denied
the PEZA’s petition for injunction. The trial court ruled that
the PEZA is not exempt from payment of real property taxes.
According to the trial court, Sections 193 and 234 of the Local
Government Code had withdrawn the real property tax
exemptions previously granted to all persons, whether
natural or juridical.76 As to the tax exemptions under Section
51 of the Special Economic Zone Act of 1995, the trial court
ruled that the provision only applies to businesses operating
within the economic zones, not to the PEZA.77
_______________
cated. The advertisement shall specify the amount of the delinquent tax,
the interest due thereon and expense of sale, the date and place of sale, the
name of the owner of the real property or person having legal interest therein,
and a description of the property to be sold[.]
71 CA Rollo (C.A.-G.R. S.P. No. 100984), p. 140.
72 Id., at pp. 143-144.
73 Id., at pp. 141-142.
74 Id., at p. 14.
75 Id., at pp. 51-52. This decision was penned by Judge Francisco G.
Mendiola.
76 Id., at p. 52.
77 Id., at p. 53.
552
552 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
The PEZA filed before the Court of Appeals a petition
for certiorari78 with prayer for issuance of a temporary
restraining order.
The Court of Appeals issued a temporary restraining order,
enjoining the Province and its Provincial Treasurer from
selling PEZA’s properties at public auction scheduled on
October 17, 2007.79 It also ordered the Province to comment on
the PEZA’s petition.
In its comment,80 the Province alleged that it received a
copy of the temporary restraining order only on October 18,
2007 when it had already sold the PEZA’s properties at public
auction. Arguing that the act sought to be enjoined was
already fait accompli, the Province prayed for the dismissal of
the petition for certiorari.
The PEZA then filed a supplemental petition for certiorari,
prohibition, and mandamus81 against the Province, arguing
that the Provincial Treasurer of Bataan acted with grave
abuse of discretion in issuing the notice of delinquency and
notice of sale. It maintained that it is exempt from payment
of real property taxes because it is a government
instrumentality. It added that its lands are property of public
dominion which cannot be sold at public auction.
The PEZA also filed a motion82 for issuance of an order
affirming the temporary restraining order and a writ of
preliminary injunction to enjoin the Province from
consolidating title over the PEZA’s properties.
In its resolution83 dated January 16, 2008, the Court of
Appeals admitted the supplemental petition for certiorari,
prohibition, and mandamus. It required the Province to
comment
_______________
78 Id., at pp. 2-49.
79 Id., at pp. 244-245.
80 Id., at pp. 251-260.
81 Id., at pp. 261-299.
82 Id., at pp. 300-330.
83 Id., at pp. 332-334.
553
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
on the supplemental petition and to file a memorandum on
the PEZA’s prayer for issuance of temporary restraining
order.
The Province commented84 on the PEZA’s supplemental
petition, to which the PEZA replied.85
The Province then filed a motion86 for leave to admit
attached rejoinder with motion to dismiss. In the rejoinder
with motion to dismiss,87 the Province argued for the first time
that the Court of Appeals had no jurisdiction over the subject
matter of the action.
According to the Province, the PEZA erred in filing a
petition for certiorari. Arguing that the PEZA sought to
reverse a Regional Trial Court decision in a local tax case, the
Province claimed that the court with appellate jurisdiction
over the action is the Court of Tax Appeals. The PEZA then
prayed that the Court of Appeals dismiss the petition
for certiorari for lack of jurisdiction over the subject matter of
the action.
The Court of Appeals held that the issue before it was
whether the trial court judge gravely abused his discretion in
dismissing the PEZA’s petition for prohibition. This issue,
according to the Court of Appeals, is properly addressed in a
petition for certiorari over which it has jurisdiction to resolve.
It, therefore, maintained jurisdiction to resolve the PEZA’s
petition for certiorari.88
Although it admitted that appeal, not certiorari, was the
PEZA’s proper remedy to reverse the trial court’s
decision,89 the Court of Appeals proceeded to decide the
petition for certiorari in “the broader interest of justice.”90
_______________
84 Id., at pp. 369-393.
85 Id., at pp. 414-440.
86 Id., at pp. 459-463.
87 Id., at pp. 464-482.
86 Id., at pp. 459-463.
87 Id., at pp. 464-482.
89 Id., at p. 61.
90 Id., at p. 62.
554
554 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
The Court of Appeals ruled that the trial court judge
gravely abused his discretion in dismissing the PEZA’s
petition for prohibition. It held that Section 21 of Presidential
Decree No. 66 and Section 51 of the Special Economic Zone
Act of 1995 granted the PEZA exemption from payment of real
property taxes.91 Based on the criteria set in Manila
International Airport Authority v. Court of Appeals,92 the
Court of Appeals found that the PEZA is an instrumentality
of the national government. No taxes, therefore, could be
levied on it by local government units.93
In the decision94 dated August 27, 2008, the Court of
Appeals granted the PEZA’s petition for certiorari. It set aside
the trial court’s decision and nullified all the Province’s
proceedings with respect to the collection of real property
taxes from the PEZA.
The Province filed a motion for reconsideration,95 which the
Court of Appeals denied in the resolution96 dated April 16,
2009 for lack of merit.
In its petition for review on certiorari with this court,97 the
Province of Bataan insists that the Court of Appeals had no
jurisdiction to take cognizance of the PEZA’s petition
for certiorari. The Province maintains that the Court of Tax
Appeals had jurisdiction to hear the PEZA’s petition since it
involved a local tax case decided by a Regional Trial Court.98
The Province reiterates that the PEZA is not exempt from
payment of real property taxes. The Province points out that
the EPZA, the PEZA’s predecessor, had to be categorically
_______________
91 Id., at pp. 62-64.
92 528 Phil. 181; 495 SCRA 591 (2006) [Per J. Carpio, En Banc].
93 Rollo (G.R. No. 187583), p. 65.
94 Id., at pp. 57-68.
95 CA Rollo (C.A.-G.R. S.P. No. 100984), pp. 496-520.
96 Rollo (G.R. No. 187583), pp. 69-70.
97 Id., at pp. 16-56.
98 Id., at pp. 25-29.
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exempted from payment of real property taxes. The EPZA,
therefore, was not inherently exempt from payment of real
property taxes and so is the PEZA. Since Congress omitted
from the Special Economic Zone Act of 1995 a provision
specifically exempting the PEZA from payment of real
property taxes, the Province argues that the PEZA is a taxable
entity. It cited the rule in statutory construction that
provisions omitted in revised statutes are deemed repealed.99
With respect to Sections 24 and 51 of the Special Economic
Zone Act of 1995 granting tax exemptions and benefits, the
Province argues that these provisions only apply to business
establishments operating within special economic zones,100 not
to the PEZA.
This court ordered the PEZA to comment on the Province’s
petition for review on certiorari.101
In its comment,102 the PEZA argues that the Court of
Appeals had jurisdiction to hear its petition
for certiorari since the issue was whether the trial court
committed grave abuse of discretion in denying its petition for
injunction. The PEZA maintains that it is exempt from
payment of real property taxes under Section 21 of
Presidential Decree No. 66 and Section 51 of the Special
Economic Zone Act of 1995.
The Province filed its reply,103 reiterating its arguments in
its petition for review on certiorari.
On the PEZA’s motion,104 this court consolidated the
petitions filed by the City of Lapu-Lapu and the Province of
Bataan.105
_______________
99 Id., at pp. 41-42.
100 Id., at pp. 46-48.
101 Id., at p. 76, resolution dated July 29, 2009.
102 Id., at pp. 94-120.
103 Id., at pp. 129-143.
104 Id., at pp. 158-190.
105 Resolution dated March 14, 2011.
556
556 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
The issues for our resolution are the following:
I. Whether the Court of Appeals erred in dismissing the
City of Lapu-Lapu’s appeal for raising pure questions of law;
II. Whether the Regional Trial Court, Branch 111, Pasay
City had jurisdiction to hear, try, and decide the City of Lapu-
Lapu’s petition for declaratory relief;
III. Whether the petition for injunction filed before the
Regional Trial Court, Branch 115, Pasay City, is a local tax
case appealable to the Court of Tax Appeals; and
 IV. Whether the PEZA is exempt from payment of real
property taxes.
We deny the consolidated petitions.
I.
The Court of Appeals did not err in dismissing the City
of Lapu-Lapu’s appeal for raising pure questions of law
Under the Rules of Court, there are three modes of appeal
from Regional Trial Court decisions. The first mode is through
an ordinary appeal before the Court of Appeals where the
decision assailed was rendered in the exercise of the Regional
Trial Court’s original jurisdiction. Ordinary appeals are
governed by Rule 41, Sections 3 to 13 of the Rules of Court. In
ordinary appeals, questions of fact or mixed questions of fact
and law may be raised.106
The second mode is through a petition for review before the
Court of Appeals where the decision assailed was rendered by
the Regional Trial Court in the exercise of its appellate
jurisdiction. Rule 42 of the Rules of Court governs petitions
for review before the Court of Appeals. In petitions for review
_______________
106 Rules of Court, Rule 41, Sec. 2(a).
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under Rule 42, questions of fact, of law, or mixed questions
of fact and law may be raised.107
The third mode is through an appeal by certiorari before
this court under Rule 45 where only questions of law shall be
raised.108
A question of fact exists when there is doubt as to the truth
or falsity of the alleged facts.109 On the other hand, there is a
question of law if the appeal raises doubt as to the applicable
law on a certain set of facts.110
Under Rule 50, Section 2, an improper appeal before the
Court of Appeals is dismissed outright and shall not be
referred to the proper court:
SEC. 2. Dismissal of improper appeal to the Court of
Appeals.—An appeal under Rule 41 taken from the Regional Trial
Court to the Court of Appeals raising only questions of law shall be
dismissed, issues purely of law not being reviewable by said court.
Similarly, an appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial Court shall
be dismissed.
An appeal erroneously taken to the Court of Appeals shall not
be transferred to the appropriate court but shall be dismissed
outright.
Rule 50, Section 2 repealed Rule 50, Section 3 of the 1964
Rules of Court, which provided that improper appeals to the
Court of Appeals shall not be dismissed but shall be certified
to the proper court for resolution:
_______________
107 Rules of Court, Rule 41, Sec. 2(b).
108 Rules of Court, Rule 41, Sec. 2(c).
109 Far Eastern Surety and Insurance Co., Inc. v. People, G.R. No. 170618,
November 20, 2013, 710 SCRA 358, 365 [Per J. Brion, Second
Division]; Republic v. Malabanan, G.R. No. 169067, October 6, 2010, 632
SCRA 338, 345 [Per J.Villarama, Jr., Third Division].
110 Id.
558
558 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Sec. 3. Where appealed case erroneously, brought.—Where the
appealed case has been erroneously brought to the Court of
Appeals, it shall not dismiss the appeal, but shall certify the case to
the proper court, with a specific and clear statement of the grounds
therefor.
With respect to appeals by certiorari directly filed before
this court but which raise questions of fact, paragraph 4(b) of
Circular No. 2-90 dated March 9, 1990 states that this court
“retains the option, in the exercise of its sound discretion and
considering the attendant circumstances, either itself to take
cognizance of and decide such issues or to refer them to the
Court of Appeals for determination.”
In Indoyon, Jr. v. Court of Appeals,111 we said that this
court “cannot tolerate ignorance of the law on appeals.”112 It is
not this court’s task to determine for litigants their proper
remedies under the Rules.113
We agree that the City availed itself of the wrong mode of
appeal before the Court of Appeals. The City raised pure
questions of law in its appeal. The issue of whether the
Regional Trial Court of Pasay had jurisdiction over the
PEZA’s petition for declaratory relief is a question of law,
jurisdiction being a matter of law.114 The issue of whether the
PEZA is a government instrumentality exempt from payment
of real property taxes is likewise a question of law since this
question
_______________
111 G.R. No. 193706, March 12, 2013, 693 SCRA 201 [Per CJ. Sereno, En
Banc].
112 Id., at p. 207, citing Ybañez v. Court of Appeals, 323 Phil. 643; 253
SCRA 540 (1996) [Per J. Francisco, Third Division].
113 Id., at pp. 207-208.
114 Municipality of Pateros v. Court of Appeals, 607 Phil. 104, 114; 589
SCRA 130, 139 (2009) [Per J. Nachura, Third Division]; Sevilleno v. Carilo,
559 Phil. 789, 792; 533 SCRA 385, 387 (2007) [Per J. Sandoval-Gutierrez,
First Division].
559
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is resolved by examining the provisions of the PEZA’s
charter as well as other laws relating to the PEZA.115
The Court of Appeals, therefore, did not err in dismissing
the City’s appeal pursuant to Rule 50, Section 2 of the Rules
of Court.
Nevertheless, considering the important questions
involved in this case, we take cognizance of the City’s petition
for review on certiorari in the interest of justice.
In Municipality of Pateros v. The Honorable Court of
Appeals,116the Municipality of Pateros filed an appeal under
Rule 42 before the Court of Appeals, which the Court of
Appeals denied outright for raising pure questions of law.
This court agreed that the Municipality of Pateros “committed
a procedural infraction”117 and should have directly filed a
petition for review on certiorari before this court.
Nevertheless, “in the interest of justice and in order to
write finis to [the] controversy,”118 this court “opt[ed] to relax
the rules”119 and proceeded to decide the case. This court said:
_______________
115 See Republic v. City of Parañaque, G.R. No. 191109, July 18, 2012,
677 SCRA 246, 257-260 [Per J. Mendoza, Third Division]; Government Service
Insurance System v. City Treasurer of the City of Manila, G.R. No. 186242,
December 23, 2009, 609 SCRA 330, 349 [Per J. Velasco, Jr., Third
Division]; National Housing Authority v. Iloilo City, 584 Phil. 604, 609-610;
562 SCRA 629, 636 (2008) [Per J.Tinga, Second Division]; Philippine Fisheries
Development Authority v. Court of Appeals, 560 Phil. 738, 748; 534 SCRA 490,
500 (2007) [Per J. Azcuna, First Division]; Manila International Airport
Authority v. Court of Appeals, supra note 92 at pp. 209-213; p. 652.
116 Municipality of Pateros v. Court of Appeals, supra note 114.
117 Id., at p. 114; p. 139.
118 Id.
119 Id.
560
560 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
While it is true that rules of procedure are intended to promote
rather than frustrate the ends of justice, and while the swift
unclogging of the dockets of the courts is a laudable objective, it
nevertheless must not be met at the expense of substantial justice.
The Court has allowed some meritorious cases to proceed despite
inherent procedural defects and lapses. This is in keeping with the
principle that rules of procedure are mere tools designed to
facilitate the attainment of justice, and that strict and rigid
application of rules which should result in technicalities that tend
to frustrate rather than promote substantial justice must always be
avoided. It is a far better and more prudent cause of action for the
court to excuse a technical lapse and afford the parties a review of
the case to attain the ends of justice, rather than dispose of the case
on technicality and cause grave injustice to the parties, giving a
false impression of speedy disposal of cases while actually resulting
in more delay, if not a miscarriage of justice.120
Similar to Municipality of Pateros, we opt to relax the rules
in this case. The PEZA operates or otherwise administers
special economic zones all over the country. Resolving the
substantive issue of whether the PEZA is taxable for real
property taxes will clarify the taxing powers of all local
government units where special economic zones are operated.
This case, therefore, should be decided on the merits.
II.
The Regional Trial Court of Pasay had no jurisdiction
to hear, try, and decide the PEZA’s petition for
declaratory relief against the City of Lapu-Lapu
_______________
120 Id., at p. 115; pp. 139-140, citing Tabujara III v. People, 591 Phil. 216,
231; 570 SCRA 229, 243 (2008) [Per J. Chico-Nazario, Third Division].
561
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Rule 63 of the Rules of Court governs actions for
declaratory relief. Section 1 of Rule 63 provides:
SECTION 1. Who may file petition.—Any person interested
under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation,
ordinance, or any other governmental regulation may, before
breach or violation, thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties,
thereunder.
An action for reformation of an instrument, to quiet title to real
property or remove clouds therefrom, or to consolidate ownership
under Article 1607 of the Civil Code, may be brought under this
Rule.
The court with jurisdiction over petitions for declaratory
relief is the Regional Trial Court, the subject matter of
litigation in an action for declaratory relief being incapable of
pecuniary estimation.121Section 19 of the Judiciary
Reorganization Act of 1980 provides:
SEC. 19. Jurisdiction in Civil Cases.—Regional Trial Courts
shall exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of litigation is
incapable of pecuniary estimation[.]
Consistent with the law, the Rules state that a petition for
declaratory relief is filed “in the appropriate Regional Trial
Court.”122
_______________
121 See Sabitsana v. Muertegui, G.R. No. 181359, August 5, 2013, 703
SCRA 145, 158-159 [Per J. Del Castillo, Second Division]; See also Allied
Broadcasting Center, Inc. v. Republic, 268 Phil. 852, 857; 190 SCRA 782, 786
(1990) [Per J.Gancayco, En Banc], cited in W. B. Riano, Civil Procedure II
(The Bar Lecture Series), p. 216 (2012).
122 Rules of Court, Rule 63, Sec. 1.
562
562 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
A special civil action for declaratory relief is filed for a
judicial determination of any question of construction or
validity arising from, and for a declaration of rights and
duties, under any of the following subject matters: a deed,
will, contract or other written instrument, statute, executive
order or regulation, ordinance, or any other governmental
regulation.123 However, a declaratory judgment may issue only
if there has been “no breach of the documents in question.”124 If
the contract or statute subject matter of the action has already
been breached, the appropriate ordinary civil action must be
filed.125 If adequate relief is available through another form of
action or proceeding, the other action must be preferred over
an action for declaratory relief.126
In Ollada v. Central Bank of the Philippines,127 the Central
Bank issued CB-IED Form No. 5 requiring certified public
accountants to submit an accreditation under oath before they
were allowed to certify financial statements submitted to the
bank. Among those financial statements the Central Bank
disallowed were those certified by accountant Felipe B.
Ollada.128
Claiming that the requirement “restrained the legitimate
pursuit of one’s trade,”129 Ollada filed a petition for declaratory
relief against the Central Bank.
This court ordered the dismissal of Ollada’s petition
“without prejudice to [his] seeking relief in another
appropriate action.”130According to this court, Ollada’s right
had already
_______________
123 Id.
124 Republic v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA
273, 283 [Per J. Perlas-Bernabe, En Banc].
125 Ollada v. Central Bank of the Philippines, 115 Phil. 284, 291; 5 SCRA
297, 303 (1962) [Per J. Dizon, En Banc].
126 Republic v. Roque, supra.
127 Ollada v. Central Bank of the Philippines, supra.
128 Id.
129 Id., at p. 285; p. 298.
130 Id., at p. 291; p. 304.
563
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
been violated when the Central Bank refused to accept the
financial statements he prepared. Since there was already a
breach, a petition for declaratory relief was not proper. Ollada
must pursue the “appropriate ordinary civil action or
proceeding.”131 This court explained:
Petitioner commenced this action as, and clearly intended it to
be one for Declaratory Relief under the provisions of Rule 66 of the
Rules of Court. On the question of when a special civil action of this
nature would prosper, we have already held that the complaint for
declaratory relief will not prosper if filed after a contract, statute or
right has been breached or violated. In the present case such is
precisely the situation arising from the facts alleged in the petition
for declaratory relief. As vigorously claimed by petitioner himself,
respondent had already invaded or violated his right and caused
him injury — all these giving him a complete cause of action
enforceable in an appropriate ordinary civil action or proceeding.
The dismissal of the action was, therefore, proper in the light of our
ruling in De Borja v. Villadolid, 47 O.G. (5) p. 2315, and Samson v.
Andal, No. L-3439, July 31, 1951, where we held that an action for
declaratory relief should be filed before there has been a breach of
a contract, statutes or right, and that it is sufficient to bar such
action, that there had been a breach — which would constitute
actionable violation. The rule is that an action for Declaratory
Relief is proper only if adequate relief is not available through the
means of other existing forms of action or proceeding. (1 C.J.S.
1027-1028)132
It is also required that the parties to the action for
declaratory relief be those whose rights or interests are
affected by the contract or statute in question.133 “There must
be an ac-
_______________
131 Id.
132 Id.
133 Supra note 124.
564
564 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
tual justiciable controversy or the ‘ripening seeds’ of
one”134between the parties. The issue between the parties
“must be ripe for judicial determination.”135 An action for
declaratory relief based on theoretical or hypothetical
questions cannot be filed for our courts are not advisory
courts.136
In Republic v. Roque,137 this court dismissed respondents’
petition for declaratory relief for lack of justiciable
controversy. According to this court, “[the respondents’] fear
of prospective prosecution [under the Human Security Act]
was solely based on remarks of certain government officials
which were addressed to the general public.”138
 In Velarde v. Social Justice Society,139 this court refused to
resolve the issue of “whether or not [a religious leader’s
endorsement] of a candidate for elective office or in urging or
requiring the members of his flock to vote for a specific
candidate is violative [of the separation clause].”140 According
to the court, there was no justiciable controversy and ordered
the dismissal of the Social Justice Society’s petition for
declaratory relief. This court explained:
Indeed, SJS merely speculated or anticipated without factual
moorings that, as religious leaders, the petitioner and his
corespondents below had endorsed or threatened to endorse a
candidate or candidates for elective offices; and that such actual or
threatened endorsement “will enable [them] to elect men to public
office who [would] in turn be forever beholden to their leaders,
enabling them to control the government”[;] and “pos[ing] a clear
and present danger of serious erosion of the people’s
_______________
134 Id.
135 Id.
136 Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004, 428
SCRA 283, 293 [Per J. Panganiban, En Banc].
137 Supra note 124.
138 Id., at p. 284.
139 Velarde v. Social Justice Society, supra.
140 Id., at p. 286.
565
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
faith in the electoral process[;] and reinforc[ing] their belief that
religious leaders determine the ultimate result of elections,” which
would then be violative of the separation clause.
Such premise is highly speculative and merely theoretical, to say
the least. Clearly, it does not suffice to constitute a justiciable
controversy. The Petition does not even allege any indication or
manifest intent on the part of any of the respondents below to
champion an electoral candidate, or to urge their so-called flock to
vote for, or not to vote for, a particular candidate. It is a time-
honored rule that sheer speculation does not give rise to an
actionable right.
Obviously, there is no factual allegation that SJS’ rights are
being subjected to any threatened, imminent and inevitable
violation that should be prevented by the declaratory relief sought.
The judicial power and duty of the courts to settle actual
controversies involving rights that are legally demandable and
enforceable cannot be exercised when there is no actual or
threatened violation of a legal right.
All that the 5-page SJS Petition prayed for was “that the
question raised in paragraph 9 hereof be resolved.” In other words,
it merely sought an opinion of the trial court on whether the
speculated acts of religious leaders endorsing elective candidates
for political offices violated the constitutional principle on the
separation of church and state. SJS did not ask for a declaration of
its rights and duties; neither did it pray for the stoppage of any
threatened violation of its declared rights. Courts, however, are
proscribed from rendering an advisory opinion.141
In sum, a petition for declaratory relief must satisfy six
requisites:
_______________
141 Id., at pp. 291-293.
566
566 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
[F]irst, the subject matter of the controversy must be a deed,
will, contract or other written instrument, statute, executive order
or regulation, or ordinance; second, the terms of said documents
and the validity thereof are doubtful and require judicial
construction; third, there must have been no breach of the
documents in question; fourth, there must be an actual justiciable
controversy or the “ripening seeds” of one between persons whose
interests are adverse; fifth, the issue must be ripe for judicial
determination; and sixth, adequate relief is not available through
other means or other forms of action or proceeding.142 (Emphases
omitted)
We rule that the PEZA erred in availing itself of a petition
for declaratory relief against the City. The City had already
issued demand letters and real property tax assessment
against the PEZA, in violation of the PEZA’s alleged tax-
exempt status under its charter. The Special Economic Zone
Act of 1995, the subject matter of PEZA’s petition for
declaratory relief, had already been breached. The trial court,
therefore, had no jurisdiction over the petition for declaratory
relief.
There are several aspects of jurisdiction.143 Jurisdiction
over the subject matter is “the power to hear and determine
cases of the general class to which the proceedings in question
belong.”144 It is conferred by law, which may either be the
Constitution or a statute.145 Jurisdiction over the subject
matter means “the nature of the cause of action and the relief
_______________
142 Id., at p. 283, citing Almeda v. Bathala Marketing Industries, Inc., 566
Phil. 458, 467; 542 SCRA 470, 478-479 (2008) [Per J. Nachura, Third
Division].
143 Boston Equity Resources, Inc. v. Court of Appeals, G.R. No. 173946,
June 19, 2013, 699 SCRA 16, 28 [Per J. Perez, Second Division].
144 Villagracia v. Fifth (5th) Shari’a District Court, G.R. No. 188832, April
23, 2014, 723 SCRA 550. [Per J. Leonen, Third Division].
145 Id.
567
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
sought.”146 Thus, the cause of action and character of the
relief sought as alleged in the complaint are examined to
determine whether a court had jurisdiction over the subject
matter.147 Any decision rendered by a court without
jurisdiction over the subject matter of the action is void.148
Another aspect of jurisdiction is jurisdiction over the
person. It is “the power of [a] court to render a personal
judgment or to subject the parties in a particular action to the
judgment and other rulings rendered in the action.”149 A court
automatically acquires jurisdiction over the person of the
plaintiff upon the filing of the initiatory pleading.150 With
respect to the defendant, voluntary appearance in court or a
valid service of summons vests the court with jurisdiction over
the defendant’s person.151 Jurisdiction over the person of the
defendant is indispensable in actions in personam or those
actions based on a party’s personal liability.152 The
proceedings in an action in personam are void if the court had
no jurisdiction over the person of the defendant.153
Jurisdiction over the res or the thing under litigation is
acquired either “by the seizure of the property under legal
process, whereby it is brought into actual custody of the law;
or as a result of the institution of legal proceedings, in which
the power of the court is recognized and made
effective.”154 Jurisdiction over the res is necessary in actions in
rem or those actions “directed against the thing or property or
status of a
_______________
146 Philippine Association of Free Labor Unions (PAFLU) v. Padilla, 106
Phil. 591, 593 (1959) [Per J. Labrador, En Banc]; Perkins v. Roxas, 72 Phil.
514, 517 (1941) [Per J. Laurel, En Banc].
147 Supra note 144.
148 Id.
149 Id.
150 Id.
151 Id.
152 Id.
153 Id.
154 Id.
568
568 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
person and seek judgments with respect thereto as against
the whole world.”155 The proceedings in an action in rem are
void if the court had no jurisdiction over the thing under
litigation.156
In the present case, the Regional Trial Court had no
jurisdiction over the subject matter of the action, specifically,
over the remedy sought. As this court explained in Malana v.
Tappa:157
. . . an action for declaratory relief presupposes that there has
been no actual breach of the instruments involved or of rights arising
thereunder. Since the purpose of an action for declaratory relief is to
secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, or contract for their guidance in the
enforcement thereof, or compliance therewith, and not to settle issues
arising from an alleged breach thereof, it may be entertained only
before the breach or violation of the statute, deed, or contract to
which it refers. A petition for declaratory relief gives a practical
remedy for ending controversies that have not reached the state
where another relief is immediately available; and supplies the
need for a form of action that will set controversies at rest before
they lead to a repudiation of obligations, an invasion of rights, and
a commission of wrongs.
Where the law or contract has already been contravened prior to
the filing of an action for declaratory relief, the courts can no longer
assume jurisdiction over the action. In other words, a court has no
more jurisdiction over an action for declaratory relief if its subject
has already been infringed or transgressed before the institution of
the action.158 (Emphasis supplied)
_______________
155 Id.
156 Id.
157 616 Phil. 177; 600 SCRA 189 (2009) [Per J. Chico-Nazario, Third
Division].
158 Id., at pp. 188-189; pp. 201-202.
569
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The trial court should have dismissed the PEZA’s petition
for declaratory relief for lack of jurisdiction.
Once an assessment has already been issued by the
assessor, the proper remedy of a taxpayer depends on whether
the assessment was erroneous or illegal.
An erroneous assessment “presupposes that the taxpayer
is subject to the tax but is disputing the correctness of the
amount assessed.”159 With an erroneous assessment, the
taxpayer claims that the local assessor erred in determining
any of the items for computing the real property tax, i.e., the
value of the real property or the portion thereof subject to tax
and the proper assessment levels. In case of an erroneous
assessment, the taxpayer must exhaust the administrative
remedies provided under the Local Government Code before
resorting to judicial action.
The taxpayer must first pay the real property tax under
protest. Section 252 of the Local Government Code provides:
SECTION 252. Payment Under Protest.—(a) No protest shall
be entertained unless the taxpayer first pays the tax. There shall
be annotated on the tax receipts the words “paid under protest.”
The protest in writing must be filed within thirty (30) days from
payment of the tax to the provincial, city treasurer or municipal
treasurer, in the case of a municipality within Metropolitan Manila
Area, who shall decide the protest within sixty (60) days from
receipt.
(b) The tax or a portion thereof paid under protest, shall be
held in trust by the treasurer concerned.
(c) In the event that the protest is finally decided in favor of the
taxpayer, the amount or portion of the tax protested shall be
refunded to the protestant, or applied as tax credit against his
existing or future tax liability.
_______________
159 National Power Corporation v. Province of Quezon, G.R. No. 171586,
January 25, 2010, 611 SCRA 71, 91 [Per J. Brion, Special Second Division].
570
570 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
(d) In the event that the protest is denied or upon the lapse of
the sixty-day period prescribed in subparagraph (a), the taxpayer
may avail of the remedies as provided for in Chapter 3, Title II,
Book II of this Code.
Should the taxpayer find the action on the protest
unsatisfactory, the taxpayer may appeal with the Local Board
of Assessment Appeals within 60 days from receipt of the
decision on the protest:
SECTION 226. Local Board of Assessment Appeals.—Any
owner or person having legal interest in the property who is not
satisfied with the action of the provincial, city or municipal assessor
in the assessment of his property may, within sixty (60) days from
the date of receipt of the written notice of assessment, appeal to the
Board of Assessment Appeals of the provincial or city by filing a
petition under oath in the form prescribed for the purpose, together
with copies of the tax declarations and such affidavits or documents
submitted in support of the appeal.
Payment under protest and appeal to the Local Board of
Assessment Appeals are “successive administrative remedies
to a taxpayer who questions the correctness of an
assessment.”160 The Local Board Assessment Appeals shall not
entertain an appeal “without the action of the local
assessor”161 on the protest.
If the taxpayer is still unsatisfied after appealing with the
Local Board of Assessment Appeals, the taxpayer may appeal
with the Central Board of Assessment Appeals within 30 days
from receipt of the Local Board’s decision:
SECTION 229. Action by the Local Board of Assessment
Appeals.—The Board shall decide the appeal
_______________
160 Id., at p. 95.
161 Id.
571
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within one hundred twenty (120) days from the date of receipt of
such appeal. The Board, after hearing, shall render its decision
based on substantial evidence or such relevant evidence on record
as a reasonable mind might accept as adequate to support the
conclusion.
(b) In the exercise of its appellate jurisdiction, the Board shall
have the power to summon witnesses, administer oaths, conduct
ocular inspection, take depositions, and
issue subpoena and subpoena duces tecum. The proceedings of the
Board shall be conducted solely for the purpose of ascertaining the
facts without necessarily adhering to technical rules applicable in
judicial proceedings.
(c) The secretary of the Board shall furnish the owner of the
property or the person having legal interest therein and the
provincial or city assessor with a copy of the decision of the Board.
In case the provincial or city assessor concurs in the revision or the
assessment, it shall be his duty to notify the owner of the property
or the person having legal interest therein of such fact using the
form prescribed for the purpose. The owner of the property or the
person having legal interest therein or the assessor who is not
satisfied with the decision of the Board, may, within thirty (30) days
after receipt of the decision of said Board, appeal to the Central
Board of Assessment Appeals, as herein provided. The decision of
the Central Board shall be final and executory. (Emphasis supplied)
On the other hand, an assessment is illegal if it was made
without authority under the law.162 In case of an illegal
assessment, the taxpayer may directly resort to judicial action
without paying under protest the assessed tax and filing an
_______________
162 Ty v. Trampe, 321 Phil. 81, 101; 250 SCRA 500, 506 (1995)
[Per J.Panganiban, En Banc]. See J. Carpio, Concurring Opinion, in Camp
John Hay Development Corporation v. Central Board of Assessment Appeals,
G.R. No. 169234, October 2, 2013, 706 SCRA 547, 578 [Per J. Perez, Second
Division].
572
572 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
appeal with the Local and Central Board of Assessment
Appeals.
In Ty v. Trampe,163 the Municipal Assessor of Pasig sent
Alejandro B. Ty a notice of assessment with respect to Ty’s
real properties in Pasig. Without resorting to the
administrative remedies under the Local Government Code,
Ty filed before the Regional Trial Court a petition, praying
that the trial court nullify the notice of assessment. In
assessing the real property taxes due, the Municipal Assessor
used a schedule of market values solely prepared by him. This,
Ty argued, was void for being contrary to the Local
Government Code requiring that the schedule of market
values be jointly prepared by the provincial, city, and
municipal assessors of the municipalities within the
Metropolitan Manila Area.
This court ruled that the assessment was illegal for having
been issued without authority of the Municipal Assessor.
Reconciling provisions of the Real Property Tax Code and the
Local Government Code, this court held that the schedule of
market values must be jointly prepared by the provincial, city,
and municipal assessors of the municipalities within the
Metropolitan Manila Area.
As to the issue of exhaustion of administrative remedies,
this court held that Ty did not err in directly resorting to
judicial action. According to this court, payment under protest
is required only “where there is a question as to the
reasonableness of the amount assessed.”164 As to appeals
before the Local and Central Board of Assessment Appeals,
they are “fruitful only where questions of fact are involved.”165
Ty raised the issue of the legality of the notice of
assessment, an issue that did not go into the reasonableness
of the amount assessed. Neither did the issue involve a
question of fact. Ty raised a question of law and, therefore,
need not re-
_______________
163 Ty v. Trampe, id.
164 Id., at p. 101; p. 519.
165 Id.
573
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
sort to the administrative remedies provided under the
Local Government Code.
In the present case, the PEZA did not avail itself of any of
the remedies against a notice of assessment. A petition for
declaratory relief is not the proper remedy once a notice of
assessment was already issued.
Instead of a petition for declaratory relief, the PEZA should
have directly resorted to a judicial action. The PEZA should
have filed a complaint for injunction, the “appropriate
ordinary civil action”166 to enjoin the City from enforcing its
demand and collecting the assessed taxes from the PEZA.
After all, a declaratory judgment as to the PEZA’s tax-exempt
status is useless unless the City is enjoined from enforcing its
demand.
Injunction “is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a
certain act.”167 “It may be the main action or merely a
provisional remedy for and as incident in the main
action.”168 The essential requisites of a writ of injunction are:
“(1) there must be a right in esse or the existence of a right to
be protected; and (2) the act against which the injunction is
directed to constitute a violation of such right.”169
We note, however, that the City confused the concepts of
jurisdiction and venue in contending that the Regional Trial
_______________
166 Supra note 125 at p. 291; p. 303.
167 Agoo Rice Mill Corporation v. Land Bank of the Philippines, G.R. No.
173036, September 26, 2012, 682 SCRA 36, 46 [Per J. Brion, Second
Division]; Garayblas v. Atienza, Jr., 525 Phil. 291, 306; 492 SCRA 202, 217
(2006) [Per J.Callejo, Sr., First Division]; Bacolod City Water District v.
Labayen, 487 Phil. 335, 346; 446 SCRA 110, 122 (2004) [Per J. Puno, Second
Division].
168 Id.
169 Agoo Rice Mill Corporation v. Land Bank of the Philippines, supra.
574
574 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Court of Pasay had no jurisdiction because the real
properties involved in this case are located in the City of Lapu-
Lapu.
On the one hand, jurisdiction is “the power to hear and
determine cases of the general class to which the proceedings
in question belong.”170 Jurisdiction is a matter of substantive
law.171 Thus, an action may be filed only with the court or
tribunal where the Constitution or a statute says it can be
brought.172 Objections to jurisdiction cannot be waived and
may be brought at any stage of the proceedings, even on
appeal.173 When a case is filed with a court which has no
jurisdiction over the action, the court shall motu
proprio dismiss the case.174
 On the other hand, venue is “the place of trial or
geographical location in which an action or proceeding should
be brought.”175 In civil cases, venue is a matter of procedural
law.176 A party’s objections to venue must be brought at the
earliest opportunity either in a motion to dismiss or in the
answer; otherwise the objection shall be deemed waived.177
_______________
170 Supra note 144.
171 Nocum v. Tan, 507 Phil. 620, 626; 470 SCRA 639, 645 (2005)
[Per J. Chico-Nazario, Second Division].
172 Supra note 144.
173 Id., citing Ibrahim v. Commission on Elections, G.R. No. 192289,
January 8, 2013, 688 SCRA 129, 145 [Per J. Reyes, En Banc], citing Republic
v. Bantigue Point Development Corporation, G.R. No. 162322, March 14, 2012,
668 SCRA 158 [Per J.Sereno, Second Division]; Figueroa v. People, 580 Phil.
58, 76; 558 SCRA 63, 79 (2008) [Per J. Nachura, Third Division]; Mangaliag
v. Catubig-Pastoral, 510 Phil. 637, 648; 474 SCRA 153, 163 (2005)
[Per J. Austria-Martinez, Second Division]; Calimlim v. Ramirez, 204 Phil.
25, 35; 118 SCRA 399, 406 (1982) [Per J. Vasquez, First Division].
174 Rules of Court, Rule 9, Sec. 1; supra note 144.
175 Nocum v. Tan, supra at p. 629; p. 648.
176 Id., at p. 626; p. 645.
177 Rules of Court, Rule 9, Sec. 1.
575
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
When the venue of a civil action is improperly laid, the
court cannot motu proprio dismiss the case.178
The venue of an action depends on whether the action is a
real or personal action. Should the action affect title to or
possession of real property, or interest therein, it is a real
action. The action should be filed in the proper court which
has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.179 If the action is a
personal action, the action shall be filed with the proper court
where the plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal defendants
resides, or in the case of a nonresident defendant where he
may be found, at the election of the plaintiff.180
The City was objecting to the venue of the action, not to the
jurisdiction of the Regional Trial Court of Pasay. In essence,
the City was contending that the PEZA’s petition is a real
action as it affects title to or possession of real property, and,
therefore, the PEZA should have filed the petition with the
Regional Trial Court of Lapu-Lapu City where the real
properties are located.
However, whatever objections the City has against the
venue of the PEZA’s action for declaratory relief are already
deemed waived. Objections to venue must be raised at the
earliest possible opportunity.181 The City did not file a motion
to dismiss the petition on the ground that the venue was
improperly laid. Neither did the City raise this objection in its
answer.
_______________
178 Rudolf Lietz Holding, Inc. v. Registry of Deeds of Parañaque City, 398
Phil. 626, 633; 344 SCRA 680, 686 (2000) [Per Ynares-Santiago, First
Division]. However, a court may motu proprio dismiss the case on any grounds
for the dismissal of a civil action if the case falls under summary procedure
per Section 4 of the 1991 Revised Rule on Summary Procedure.
179 Rules of Court, Rule 4, Sec. 1.
180 Rules of Court, Rule 4, Sec. 2.
181 Rules of Court, Rule 9, Sec. 1.
576
576 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
In any event, the law sought to be judicially interpreted in
this case had already been breached. The Regional Trial Court
of Pasay, therefore, had no jurisdiction over the PEZA’s
petition for declaratory relief against the City.
III.
The Court of Appeals had no jurisdiction over the
PEZA’s petition for certiorari against the Province of
Bataan
 Appeal is the remedy “to obtain a reversal or modification
of a judgment on the merits.”182 A judgment on the merits is
one which “determines the rights and liabilities of the parties
based on the disclosed facts, irrespective of the formal,
technical or dilatory objections.”183 It is not even necessary
that the case proceeded to trial.184 So long as the “judgment is
general”185 and “the parties had a full legal opportunity to be
heard on their respective claims and contentions,”186 the
judgment is on the merits.
_______________
182 Samson v. Fiel-Macaraig, G.R. No. 166356, February 2, 2010, 611
SCRA 345, 351 [Per J. Carpio, Second Division]; Bugarin v. Palisoc, 513 Phil.
59, 66; 476 SCRA 587, 595 (2005) [Per J. Quisumbing, First
Division]; Association of Integrated Security Force of Bislig (AISFB)-ALU v.
Court of Appeals, 505 Phil. 10, 18; 467 SCRA 483, 490 (2005) [Per J. Chico-
Nazario, Second Division].
183 Mendiola v. Court of Appeals, 327 Phil. 1156, 1164; 258 SCRA 492,
500 (1996) [Per J. Hermosisima, Jr., First Division]; Nabus v. Court of
Appeals, 271 Phil. 768, 779; 193 SCRA 732, 739 (1991) [Per J. Regalado,
Second Division].
184 Mendiola v. Court of Appeals, id.; Nabus v. Court of Appeals, id., at
pp. 779-780; p. 740.
185 Mendiola v. Court of Appeals, id.; Nabus v. Court of Appeals, id., at p.
780; id.
186 Mendiola v. Court of Appeals, id., at p. 1165; p. 501; Nabus v. Court of
Appeals, id.
577
VOL. 742, NOVEMBER 26, 2014 577
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
On the other hand, certiorari is a special civil action filed
to annul or modify a proceeding of a tribunal, board, or officer
exercising judicial or quasi-judicial functions.187 Certiorari,
which in Latin means “to be more fully informed,”188 was
originally a remedy in the common law. This court discussed
the history of the remedy of certiorari in Spouses Delos Santos
v. Metropolitan Bank and Trust Company:189
In the common law, from which the remedy of certiorari evolved,
the writ of certiorari was issued out of Chancery, or the King’s
Bench, commanding agents or officers of the inferior courts to
return the record of a cause pending before them, so as to give the
party more sure and speedy justice, for the writ would enable the
superior court to determine from an inspection of the record
whether the inferior court’s judgment was rendered without
authority. The errors were of such a nature that, if allowed to stand,
they would result in a substantial injury to the petitioner to whom
no other remedy was available. If the inferior court acted without
authority, the record was then revised and corrected in matters of
law. The writ of certiorari was limited to cases in which the inferior
court was said to be exceeding its jurisdiction or was not proceeding
according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.190
In our jurisdiction, the term “certiorari” is used in two
ways. An appeal before this court raising pure questions of
law is commenced by filing a petition
for review on certiorari under Rule 45 of the Rules of Court.
An appeal by certiorari, which continues the proceedings
commenced before the lower
_______________
187 Rules of Court, Rule 65, Sec. 1.
188 Black’s Law Dictionary, Eighth edition, p. 241 (2004).
189 G.R. No. 153852, October 24, 2012, 684 SCRA 410 [Per J. Bersamin,
First Division].
190 Id., at pp. 420-421.
578
578 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
courts,191 is filed to reverse or modify judgments or final
orders.192 Under the Rules, an appeal by certiorari must be
filed within 15 days from notice of the judgment or final order,
or of the denial of the appellant’s motion for new trial or
reconsideration.193
A petition for certiorari under Rule 65, on the other hand,
is an independent and original action filed to set aside
proceedings conducted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of
jurisdiction.194 Under the Rules, a petition for certiorari may
only be filed if there is no appeal or any plain, speedy, or
adequate remedy in the ordinary course of law.195 The petition
must be filed within 60 days from notice of the judgment,
order, or resolution.196
Because of the longer period to file a petition for certiorari,
some litigants attempt to file petitions for certiorari as
substitutes for lost appeals by certiorari. However, Rule 65 is
clear that a petition for certiorari will not prosper if appeal is
available. Appeal is the proper remedy even if the error, or
one of the errors, raised is grave abuse of discretion on the
part of the court rendering judgment.197 If appeal is available,
a petition for certiorari cannot be filed.
In this case, the trial court’s decision dated January 31,
2007 is a judgment on the merits. Based on the facts disclosed
by the parties, the trial court declared the PEZA liable to the
_______________
191 Madrigal Transport, Inc. v. Lapanday Holdings Corp., 479 Phil. 768,
780-781; 436 SCRA 123, 135 (2004) [Per J. Panganiban, Third Division].
192 Id., at p. 781; p. 135.
193 Rules of Court, Rule 45, Sec. 2.
194 Supra note 191 at p. 781; p. 138.
195 Rules of Court, Rule 65, Sec. 1.
196 Rules of Court, Rule 65, Sec. 4.
197 Bugarin v. Palisoc, supra note 182; Association of Integrated Security
Force of Bislig (AISFB)-ALU v. Court of Appeals, supra note 182 at p. 18; p.
493.
579
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Province of Bataan for real property taxes. The PEZA’s
proper remedy against the trial court’s decision, therefore, is
appeal.
Since the PEZA filed a petition for certiorari against the
trial court’s decision, it availed itself of the wrong remedy. As
the Province of Bataan contended, the trial court’s decision
dated January 31, 2007 “is only an error of judgment
appealable to the higher level court and may not be corrected
by filing a petition for certiorari.”198 That the trial court judge
allegedly committed grave abuse of discretion does not make
the petition for certiorari the correct remedy. The PEZA
should have raised this ground in an appeal filed within 15
days from notice of the assailed resolution.
This court, “in the liberal spirit pervading the Rules of
Court and in the interest of substantial justice,”199 has treated
petitions for certiorari as an appeal: “(1) if the petition
for certiorari was filed within the reglementary period within
which to file a petition for review on certiorari; (2) when errors
of judgment are averred; and (3) when there is sufficient
reason to justify the relaxation of the rules.”200 Considering
that “the nature of an action is determined by the allegations
of the complaint or the petition and the character of the relief
sought,”201 a petition which “actually avers errors of judgment
rather than errors than that of jurisdiction”202 may be
considered a petition for review.
However, suspending the application of the Rules has its
disadvantages. Relaxing procedural rules may reduce the
_______________
198 Rollo (G.R. No. 187583), pp. 31-32.
199 City of Manila v. Grecia-Cuerdo, G.R. No. 175723, February 4, 2014,
715 SCRA 182 [Per J. Peralta, En Banc]; Oaminal v. Castillo, 459 Phil. 542,
556; 413 SCRA 189, 200 (2003) [Per J. Panganiban, Third Division].
200 Id.
201 Oaminal v. Castillo, supra at p. 557; p. 200.
202 Id., citing Delsan Transport Lines, Inc. v. Court of Appeals, 335 Phil.
1066, 1075; 268 SCRA 597, 605 (1997) [Per J. Mendoza, Second Division].
580
580 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
“effective enforcement of substantive rights,”203 leading to
“arbitrariness, caprice, despotism, or whimsicality in the
settlement of disputes.”204 Therefore, for this court to suspend
the application of the Rules, the accomplishment of
substantial justice must outweigh the importance of
predictability of court procedures.
The PEZA’s petition for certiorari may be treated as an
appeal. First, the petition for certiorari was filed within the
15-day reglementary period for filing an appeal. The PEZA
filed its petition for certiorari before the Court of Appeals on
October 15, 2007,205which was 12 days from October 3,
2007206 when the PEZA had notice of the trial court’s order
denying the motion for reconsideration.
Second, the petition for certiorari raised errors of
judgment. The PEZA argued that the trial court erred in
ruling that it is not exempt from payment of real property
taxes given Section 21 of Presidential Decree No. 66 and
Sections 11 and 51 of the Special Economic Zone Act of 1995.207
Third, there is sufficient reason to relax the rules given the
importance of the substantive issue presented in this case.
However, the PEZA’s petition for certiorari was filed before
the wrong court. The PEZA should have filed its petition
before the Court of Tax Appeals.
The Court of Tax Appeals has the exclusive appellate
jurisdiction over local tax cases decided by Regional Trial
Courts. Section 7, paragraph (a)(3) of Republic Act No. 1125,
as amended by Republic Act No. 9282, provides:
_______________
203 Sebastian v. Morales, 445 Phil. 595, 605; 397 SCRA 549, 558 (2003)
[Per J.Quisumbing, Second Division].
204 Id.
205 CA Rollo (C.A.-G.R. S.P. No. 100984), p. 2.
206 Id., at p. 7.
207 Id., at pp. 33-34.
581
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Sec. 7. Jurisdiction.—The [Court of Tax Appeals] shall
exercise:
a. Exclusive appellate jurisdiction to review by appeal, as
herein provided:
....
3. Decisions, orders or resolutions of the Regional Trial Courts
in local tax cases originally decided or resolved by them in the
exercise of their original or appellate jurisdiction[.]
The local tax cases referred to in Section 7, paragraph (a)(3)
of Republic Act No. 1125, as amended, include cases involving
real property taxes. Real property taxation is governed by
Book II of the Local Government Code on “Local Taxation and
Fiscal Matters.” Real property taxes are collected by the Local
Treasurer,208 not by the Bureau of Internal Revenue in charge
of collecting national internal revenue taxes, fees, and
charges.209
_______________
208 Local Gov’t. Code, Sec. 247 provides;
SEC. 247. Collection of Tax.—The collection of the real property tax with
interest thereon and related expenses, and the enforcement of the remedies
provided for in this Title or any applicable laws, shall be the responsibility of
the city or municipal treasurer concerned. The city or municipal treasurer may
deputize the barangay treasurer to collect all taxes on real property located in
the barangay: Provided, That the barangay treasurer is properly bonded for
the purpose: Provided, further, That the premium on the bond shall be paid by
the city or municipal government concerned.
209 Tax Code, Title I, Sec. 2 provides:
SEC. 2. Powers and duties of the Bureau of Internal Revenue.—The
Bureau of Internal Revenue shall be under the supervision and control of the
Department of Finance and its powers and duties shall comprehend the
assessment and collection of all national internal revenue taxes, fees, and
charges, and the enforcement of all forfeitures, penalties, and fines connected
therewith, including the execution of judgments in all cases decided in its favor
by the Court of Tax Appeals and the ordinary courts. The Bureau shall give
582
582 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
Section 7, paragraph (a)(5) of Republic Act No. 1125, as
amended by Republic Act No. 9282, separately provides for
the exclusive appellate jurisdiction of the Court of Tax
Appeals over decisions of the Central Board of Assessment
Appeals involving the assessment or collection of real
property taxes:
Sec. 7. Jurisdiction.—The [Court of Tax Appeals] shall
exercise:
a. Exclusive appellate jurisdiction to review by appeal, as
herein provided:
 ....
5. Decisions of the Central Board of Assessment Appeals in the
exercise of its appellate jurisdiction over cases involving the
assessment and taxation of real property originally decided by the
provincial or city board of assessment appeals[.]
This separate provision, nevertheless, does not bar the
Court of Tax Appeals from taking cognizance of trial court
decisions involving the collection of real property tax cases.
Sections 256210and 266211 of the Local Government Code ex-
_______________
effect to and administer the supervisory and police powers conferred to it
by this Code or other laws.
210 Local Gov’t. Code, Sec. 256 provides:
SEC. 256. Remedies for the Collection of Real Property Tax.—For the
collection of the basic real property tax and any other tax levied under this
Title, the local government unit concerned may avail of the remedies by
administrative action thru levy on real property or by judicial action.
211 Local Gov’t. Code, Sec. 266 provides:
SEC. 266. Collection of Real Property Tax Through the Courts.—
The local government unit concerned may enforce the collection of the basic
real property tax or any other tax levied under this Title by civil action in any
court of competent jurisdiction. The civil action shall be filed by the local
treasurer within the period prescribed in Section 270 of this Code.
583
VOL. 742, NOVEMBER 26, 2014 583
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
pressly allow local government units to file “in any court of
competent jurisdiction” civil actions to collect basic real
property taxes. Should the trial court rule against them, local
government units cannot be barred from appealing before the
Court of Tax Appeals — the “highly specialized body
specifically created for the purpose of reviewing tax cases.”212
We have also ruled that the Court of Tax Appeals, not the
Court of Appeals, has the exclusive original jurisdiction over
petitions for certiorari assailing interlocutory orders issued
by Regional Trial Courts in a local tax case. We explained
in The City of Manila v. Hon. Grecia-Cuerdo213 that while the
Court of Tax Appeals has no express grant of power to issue
writs of certiorari under Republic Act No. 1125,214 as amended,
the tax court’s judicial power as defined in the
Constitution215 includes the power to determine “whether or
not there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the [Regional Trial
Court] in issuing an interlocutory order of jurisdiction in cases
falling within the exclusive appellate jurisdiction of the tax
court.”216 We further elaborated:
Indeed, in order for any appellate court to effectively exercise its
appellate jurisdiction, it must have the author-
_______________
212 Phil. Refining Co. v. Court of Appeals, 326 Phil. 680, 689; 256 SCRA
667, 675-676 (1996) [Per J. Regalado, Second Division].
213 Supra note 199.
214 An Act Creating the Court of Tax Appeals (1954).
215 Const., Art. VIII, Sec. 1 provides:
Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
216 Supra note 199.
584
584 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
ity to issue, among others, a writ of certiorari. In transferring
exclusive jurisdiction over appealed tax cases to the CTA, it can
reasonably be assumed that the law intended to transfer also such
power as is deemed necessary, if not indispensable, in aid of such
appellate jurisdiction. There is no perceivable reason why the
transfer should only be considered as partial, not total.
....
If this Court were to sustain petitioners’ contention that
jurisdiction over their certiorari petition lies with the CA, this
Court would be confirming the exercise by two judicial bodies, the
CA and the CTA, of jurisdiction over basically the same subject
matter — precisely the split-jurisdiction situation which is
anathema to the orderly administration of justice. The Court cannot
accept that such was the legislative motive, especially considering
that the law expressly confers on the CTA, the tribunal with the
specialized competence over tax and tariff matters, the role of
judicial review over local tax cases without mention of any other
court that may exercise such power. Thus, the Court agrees with
the ruling of the CA that since appellate jurisdiction over private
respondents’ complaint for tax refund is vested in the CTA, it
follows that a petition for certiorari seeking nullification of an
interlocutory order issued in the said case should, likewise, be filed
with the same court. To rule otherwise would lead to an absurd
situation where one court decides an appeal in the main case while
another court rules on an incident in the very same case.
Stated differently, it would be somewhat incongruent with the
pronounced judicial abhorrence to split jurisdiction to conclude that
the intention of the law is to divide the authority over a local tax
case filed with the RTC by giving to the CA or this Court jurisdiction
to issue a writ of certiorari against interlocutory orders of the RTC
but giving to the CTA the jurisdiction over the appeal from the
decision of the trial court in the same case. It is more in consonance
with logic and legal soundness to conclude that the grant of
appellate jurisdiction to the CTA over tax cases filed in and decided
by the RTC carries with it
585
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
the power to issue a writ of certiorari when necessary in aid of
such appellate jurisdiction. The supervisory power or jurisdiction of
the CTA to issue a writ of certiorari in aid of its appellate
jurisdiction should coexist with, and be a complement to, its
appellate jurisdiction to review, by appeal, the final orders and
decisions of the RTC, in order to have complete supervision over the
acts of the latter.217 (Citations omitted)
In this case, the petition for injunction filed before the
Regional Trial Court of Pasay was a local tax case originally
decided by the trial court in its original jurisdiction. Since the
PEZA assailed a judgment, not an interlocutory order, of the
Regional Trial Court, the PEZA’s proper remedy was an
appeal to the Court of Tax Appeals.
Considering that the appellate jurisdiction of the Court of
Tax Appeals is to the exclusion of all other courts, the Court
of Appeals had no jurisdiction to take cognizance of the
PEZA’s petition. The Court of Appeals acted without
jurisdiction in rendering the decision in C.A.-G.R. S.P. No.
100984. Its decision in C.A.-G.R. S.P. No. 100984 is void.218
The filing of appeal in the wrong court does not toll the
period to appeal. Consequently, the decision of the Regional
Trial Court, Branch 115, Pasay City, became final and
executory after the lapse of the 15th day from the PEZA’s
receipt of the trial court’s decision.219 The denial of the petition
for injunction became final and executory.
_______________
217 Id.
218 See City of Iriga v. Camarines Sur III Electric Cooperative, Inc.
(CASURECO III), G.R. No. 192945, September 5, 2012, 680 SCRA 236, 244
[Per J.Perlas-Bernabe, Second Division].
219 See Land Bank of the Philippines v. Court of Appeals, G.R. No.
190660, April 11, 2011, 647 SCRA 561, 567 [Per J. Carpio-Morales, Third
Division].
586
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IV.
The remedy of a taxpayer depends on the stage in which
the local government unit is enforcing its authority to
impose real property taxes
The proper remedy of a taxpayer depends on the stage in
which the local government unit is enforcing its authority to
collect real property taxes. For the guidance of the members
of the bench and the bar, we reiterate the taxpayer’s remedies
against the erroneous or illegal assessment of real property
taxes.
Exhaustion of administrative remedies under the Local
Government Code is necessary in cases of erroneous
assessments where the correctness of the amount assessed is
assailed. The taxpayer must first pay the tax then file a
protest with the Local Treasurer within 30 days from date of
payment of tax.220 If protest is denied or upon the lapse of the
60-day period to decide the protest, the taxpayer may appeal
to the Local Board of Assessment Appeals within 60 days from
the denial of the protest or the lapse of the 60-day period to
decide the protest.221 The Local Board of Assessment Appeals
has 120 days to decide the appeal.222
If the taxpayer is unsatisfied with the Local Board’s
decision, the taxpayer may appeal before the Central Board of
Assessment Appeals within 30 days from receipt of the Local
Board’s decision.223
_______________
220 Rep. Act No. 7160, Sec. 252.
221 Rep. Act No. 7160, Sec. 226.
222 Rep. Act No. 7160, Sec. 229(a).
223 Rep. Act No. 7160, Sec. 229(c).
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The decision of the Central Board of Assessment Appeals
is appealable before the Court of Tax Appeals En Banc.224 The
appeal before the Court of Tax Appeals shall be filed following
the procedure under Rule 43 of the Rules of Court.225
The Court of Tax Appeals’ decision may then be appealed
before this court through a petition for review
on certiorari under Rule 45 of the Rules of Court raising pure
questions of law.226
In case of an illegal assessment where the assessment was
issued without authority, exhaustion of administrative
remedies is not necessary and the taxpayer may directly
resort to judicial action.227The taxpayer shall file a complaint
for injunction before the Regional Trial Court228 to enjoin the
local government unit from collecting real property taxes.
The party unsatisfied with the decision of the Regional
Trial Court shall file an appeal, not a petition for certiorari,
before the Court of Tax Appeals, the complaint being a local
tax case decided by the Regional Trial Court.229 The appeal
shall be filed within fifteen (15) days from notice of the trial
court’s decision.
The Court of Tax Appeals’ decision may then be appealed
before this court through a petition for review on certiorari
_______________
224 Rep. Act No. 1125, as amended by Rep. Act No. 9282, Sec. 7(a)(5);
Rules of Procedure In The Court of Tax Appeals, Rule 4, Sec. 2(e).
225 Rules of Procedure In The Court of Tax Appeals, Rule 8, Sec. 4(c).
226 Rep. Act No. 1125 (1954), as amended by Rep. Act No. 9282 (2004),
Sec. 19.
227 Ty v. Trampe, supra note 162 at pp. 101-102; p. 518.
228 Batas Blg. 129 (1994), Sec. 19; Bank of the Philippine Islands v. Hong,
G.R. No. 161771, February 15, 2012, 666 SCRA 71, 78 [Per J. Villarama, Jr.,
First Division].
229 Rep. Act No. 1125 (1954), as amended by Rep. Act No. 9282 (2004),
Sec. 7(a)(3).
588
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
under Rule 45 of the Rules of Court raising pure questions
of law.230
In case the local government unit has issued a notice of
delinquency, the taxpayer may file a complaint for injunction
to enjoin the impending sale of the real property at public
auction. In case the local government unit has already sold
the property at public auction, the taxpayer must first deposit
with the court the amount for which the real property was
sold, together with interest of 2% per month from the date of
sale to the time of the institution of action. The taxpayer may
then file a complaint to assail the validity of the public
auction.231 The decisions of the Regional Trial Court in these
cases shall be appealable before the Court of Tax
Appeals,232 and the latter’s decisions appealable before this
court through a petition for review on certiorari under Rule 45
of the Rules of Court.233
V.
The PEZA is exempt from payment of real property taxes
The jurisdictional errors in this case render these
consolidated petitions moot. We do not review void decisions
rendered without jurisdiction.
However, the PEZA alleged that several local government
units, including the City of Baguio and the Province of Cavite,
have issued their respective real property tax assessments
against the PEZA. Other local government units will likely
follow suit, and either the PEZA or the local government units
_______________
230 Rep. Act No. 1125 (1954), as amended by Rep. Act No. 9282 (2004),
Sec. 19.
231 Rep. Act No. 7160 (1991), Sec. 267.
232 Supra note 229.
233 Supra note 230.
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taxing the PEZA may file their respective actions against
each other.
In the interest of judicial economy234 and avoidance of
conflicting decisions involving the same issues,235 we resolve
the substantive issue of whether the PEZA is exempt from
payment of real property taxes.
Real property taxes are annual taxes levied on real
property such as lands, buildings, machinery, and other
improvements not otherwise specifically exempted under the
Local Government Code.236 Real property taxes are ad
valorem, with the amount charged based on a fixed proportion
of the value of the property.237Under the law, provinces, cities,
and municipalities within the Metropolitan Manila Area have
the power to levy real property taxes within their respective
territories.238
The general rule is that real properties are subject to real
property taxes. This is true especially since the Local
Government Code has withdrawn exemptions from real
property taxes of all persons, whether natural or juridical:
SEC. 234. Exemptions from Real Property Tax.—The following
are exempted from payment of real property tax:
(a) Real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof
has been granted, for consideration or otherwise, to a taxable
person;
_______________
234 Salud v. Court of Appeals, G.R. No. 100156, June 27, 1994, 233 SCRA
384, 389 [Per J. Puno, Second Division].
235 See Pryce Corporation v. China Banking Corporation, G.R. No.
172302, February 18, 2014, 716 SCRA 207, 235 [Per J. Leonen, En Banc].
236 Local Gov’t. Code, Sec. 232.
237 Local Gov’t. Code, Sec. 198(c).
238 Local Gov’t. Code, Sec. 232.
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(b) Charitable institutions, churches, parsonages or convents
appurtenant thereto, mosques, nonprofit or religious cemeteries
and all lands, buildings, and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and
exclusively used by local water districts and government-owned or
-controlled corporations engaged in the supply and distribution of
water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as
provided under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and
environmental protection.
Except as provided herein, any exemption from payment of real
property taxes previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including government-owned
or -controlled corporations are hereby withdrawn upon the effectivity
of this Code.(Emphasis supplied)
The person liable for real property taxes is the “taxable
person who had actual or beneficial use and possession [of the
real property for the taxable period,] whether or not [the
person owned the property for the period he or she is being
taxed].”239
The exceptions to the rule are provided in the Local
Government Code. Under Section 133(o), local government
units have no power to levy taxes of any kind on the national
government, its agencies and instrumentalities and local
government units:
_______________
239 Government Service Insurance System v. City Treasurer of the City of
Manila, supra note 115 at p. 982; p. 351, citing Testate Estate of Concordia T.
Lim v. City of Manila, 261 Phil. 602, 607; 182 SCRA 482, 486 (1990)
[Per J. Gutierrez, Jr., Third Division]; Manila Electric Company v. Barlis, 410
Phil. 167, 178; 357 SCRA 832, 840 (2001) [Per J. De Leon, Jr., Second
Division].
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SEC. 133. Common Limitations on the Taxing Powers of Local
Government Units.—Unless otherwise provided herein, the exercise
of taxing powers of provinces, cities, municipalities,
and barangays shall not extend to the levy of the following:
....
(o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities and local
government units.
Specifically on real property taxes, Section 234 enumerates
the persons and real property exempt from real property
taxes:
SEC. 234. Exemptions from Real Property Tax.— The
following are exempted from payment of real property tax:
(a) Real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof has
been granted, for consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents
appurtenant thereto, mosques, nonprofit or religious cemeteries and
all lands, buildings, and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and
exclusively used by local water districts and government-owned or -
controlled corporations engaged in the supply and distribution of
water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as
provided under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and
environmental protection.
592
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Except as provided herein, any exemption from payment of real
property tax previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including all government-
owned or -controlled corporations are hereby withdrawn upon the
effectivity of this Code. (Emphasis supplied)
For persons granted tax exemptions or incentives before
the effectivity of the Local Government Code, Section 193
withdrew these tax exemption privileges. These persons
consist of both natural and juridical persons, including
government-owned or -controlled corporations:
SEC. 193. Withdrawal of Tax Exemption Privileges.—Unless
otherwise provided in this code, tax exemptions or incentives
granted to or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations,
except local water districts, cooperatives duly registered under R.A.
6938, non-stock and nonprofit hospitals and educational
institutions, are hereby withdrawn upon effectivity of this Code.
As discussed, Section 234 withdrew all tax privileges with
respect to real property taxes.
Nevertheless, local government units may grant tax
exemptions under such terms and conditions as they may
deem necessary:
SEC. 192. Authority to Grant Tax Exemption Privileges.—
Local government units may, through ordinances duly approved,
grant tax exemptions, incentives or reliefs under such terms and
conditions as they may deem necessary.
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In Mactan Cebu International Airport Authority v. Hon.
Marcos,240 this court classified the exemptions from real
property taxes into ownership, character, and usage
exemptions.
Ownership exemptions are exemptions based on the
ownership of the real property. The exemptions of real
property owned by the Republic of the Philippines, provinces,
cities, municipalities, barangays, and registered cooperatives
fall under this classification.241
Character exemptions are exemptions based on the
character of the real property. Thus, no real property taxes
may be levied on charitable institutions, houses and temples
of prayer like churches, parsonages, or convents appurtenant
thereto, mosques, and nonprofit or religious cemeteries.242
Usage exemptions are exemptions based on the use of the
real property. Thus, no real property taxes may be levied on
real property such as: (1) lands and buildings actually,
directly, and exclusively used for religious, charitable or
educational purpose; (2) machineries and equipment actually,
directly and exclusively used by local water districts or by
government-owned or -controlled corporations engaged in the
supply and distribution of water and/or generation and
transmission of electric power; and (3) machinery and
equipment used for pollution control and environmental
protection.243
Persons may likewise be exempt from payment of real
properties if their charters, which were enacted or reenacted
after the effectivity of the Local Government Code, exempt
them payment of real property taxes.244
_______________
240 330 Phil. 392; 261 SCRA 667 (1996) [Per J. Davide, Jr., Third
Division].
241 Id., at p. 410; p. 686.
242 Id.
243 Id.
244 Government Service Insurance System v. City Treasurer of the City of
Manila, supra note 115 at pp. 976-977; p. 341.
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
V. (A)
The PEZA is an instrumentality of the national
government
An instrumentality is “any agency of the National
Government, not integrated within the department
framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers,
administering special funds, and enjoying operational
autonomy, usually through a charter.”245
Examples of instrumentalities of the national government
are the Manila International Airport Authority,246 the
Philippine Fisheries Development Authority,247 the
Government Service Insurance System,248 and the Philippine
Reclamation Authority.249 These entities are not integrated
within the department framework but are nevertheless vested
with special functions to carry out a declared policy of the
national government.
Similarly, the PEZA is an instrumentality of the national
government. It is not integrated within the department
framework but is an agency attached to the Department of
Trade and Industry.250 Book IV, Chapter 7, Section 38(3)(a) of
the Administrative Code of 1987 defines “attachment”:
SEC. 38. Definition of Administrative Relationship.—Unless
otherwise expressly stated in the Code or
_______________
245 Exec. Order No. 292, Introductory Provisions, Sec. 2(10).
246 Manila International Airport Authority v. Court of
Appeals, supra note 92 at pp. 212-214; p. 662.
247 Philippine Fisheries Development Authority v. Court of
Appeals, supra note 115 at p. 668; p. 500.
 248 Government Service Insurance System v. City Treasurer of the City of
Manila, supra note 115 at pp. 978-981; p. 354.
249 Republic v. City of Parañaque, supra note 115 at p. 263.
250 Rep. Act No. 7916 (1995), Sec. 11.
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in other laws defining the special relationships of particular
agencies, administrative relationships shall be categorized and
defined as follows:
....
(3) Attachment.—(a) This refers to the lateral relationship
between the department or its equivalent and the attached agency
or corporation for purposes of policy and program coordination. The
coordination may be accomplished by having the department
represented in the governing board of the attached agency or
corporation, either as chairman or as a member, with or without
voting rights, if this is permitted by the charter; having the
attached corporation or agency comply with a system of periodic
reporting which shall reflect the progress of the programs and
projects; and having the department or its equivalent provide
general policies through its representative in the board, which shall
serve as the framework for the internal policies of the attached
corporation or agency[.]
Attachment, which enjoys “a larger measure of
independence”251compared with other administrative
relationships such as supervision and control, is further
explained in Beja, Sr. v. Court of Appeals:252
An attached agency has a larger measure of independence
from the Department to which it is attached than one which
is under departmental supervision and control or
administrative supervision. This is borne out by the “lateral
relationship” between the Department and the attached
agency. The attachment is merely for “policy and program
coordination.” With respect to administrative matters, the
independence of an attached agency from Departmental
control and supervision is further reinforced by the fact that
even an agency under a
_______________
251 Beja, Sr. v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207
SCRA 689, 697 [Per J. Romero, En Banc].
252 Id.
596
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Department’s administrative supervision is free from
Departmental interference with respect to appointments and other
personnel actions “in accordance with the decentralization of
personnel functions” under the Administrative Code of 1987.
Moreover, the Administrative Code explicitly provides that Chapter
8 of Book IV on supervision and control shall not apply to chartered
institutions attached to a Department.253
With the PEZA as an attached agency to the Department
of Trade and Industry, the 13-person PEZA Board is chaired
by the Department Secretary.254 Among the powers and
functions of the PEZA is its ability to coordinate with the
Department of Trade and Industry for policy and program
formulation and implementation.255In strategizing and
prioritizing the development of special economic zones, the
PEZA coordinates with the Department of Trade and
Industry.256
The PEZA also administers its own funds and operates
autonomously, with the PEZA Board formulating and
approving the PEZA’s annual budget.257 Appointments and
other personnel actions in the PEZA are also free from
departmental interference, with the PEZA Board having the
exclusive and final authority to promote, transfer, assign and
reassign officers of the PEZA.258
As an instrumentality of the national government, the
PEZA is vested with special functions or jurisdiction by law.
Congress created the PEZA to operate, administer, manage
and develop special economic zones in the
Philippines. Special economic zones are areas with highly
259
developed or which
_______________
 253 Id.
254 Rep. Act No. 7916 (1995), Sec. 11.
255 Rep. Act No. 7916 (1995), Sec. 13(h).
256 Rep. Act No. 7916 (1995), Sec. 21.
257 Rep. Act No. 7916 (1995), Secs. 12(d) and 19.
258 Rep. Act No. 7916 (1995), Sec. 16.
259 Rep. Act No. 7916 (1995), Sec. 13(a).
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have the potential to be developed into agro-industrial,
industrial tourist/recreational, commercial, banking,
investment and financial centers.260 By operating,
administering, managing, and developing special economic
zones which attract investments and promote use of domestic
labor, the PEZA carries out the following policy of the
Government:
SECTION 2. Declaration of Policy.—It is the declared policy of
the government to translate into practical realities the following
State policies and mandates in the 1987 Constitution, namely:
(a) “The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives to
needed investments.” (Sec. 20, Art. II)
(b) “The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.” (Sec. 12, Art. XII)
In pursuance of these policies, the government shall actively
encourage, promote, induce and accelerate a sound and balanced
industrial, economic and social development of the country in order
to provide jobs to the people especially those in the rural areas,
increase their productivity and their individual and family income,
and thereby improve the level and quality of their living condition
through the establishment, among others, of special economic zones
in suitable and strategic locations in the country and through
measures that shall effectively attract legitimate and productive
foreign investments.261
Being an instrumentality of the national government, the
PEZA cannot be taxed by local government units.
_______________
260 Rep. Act No. 7916 (1995), Sec. 4(a)
261 Rep. Act No. 7916 (1995).
598
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Although a body corporate vested with some corporate
powers,262 the PEZA is not a government-owned or -controlled
corporation taxable for real property taxes.
Section 2(13) of the Introductory Provisions of the
Administrative Code of 1987 defines the term “government-
owned or -controlled corporation”:
SEC. 2. General Terms Defined.—Unless the specific words of
the text, or the context as a whole, or a particular statute, shall
require a different meaning:
....
(13) Government-owned or -controlled corporation refers to any
agency organized as a stock or non-stock corporation, vested with
functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government directly or
through its instrumentalities either wholly, or, where applicable as
in the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock: Provided, That government-owned
or -controlled corporations may be further categorized by the
Department of the Budget, the Civil Service Commission, and the
Commission on Audit for purposes of the exercise and discharge of
their respective powers, functions and responsibilities with respect
to such corporations.
Government entities are created by law, specifically, by the
Constitution or by statute. In the case of government-owned
or -controlled corporations, they are incorporated by virtue of
special charters263 to participate in the market for special
reasons which may be related to dysfunctions or inefficiencies
of the market structure. This is to adjust reality as against
the concept of full competition where all market players are
price takers. Thus, under the Constitution, government-
owned or -controlled corporations are created in the interest
_______________
 262 Supra note 254.
263 Const., Art. XII, Sec. 16.
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of the common good and should satisfy the test of economic
viability.264 Article XII, Section 16 of the Constitution
provides:
Section 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of private
corporations. Government-owned or -controlled corporations may
be created or established by special charters in the interest of the
common good and subject to the test of economic viability.
Economic viability is “the capacity to function efficiently in
business.”265 To be economically viable, the entity “should not
go into activities which the private sector can do better.”266
To be considered a government-owned or -controlled
corporation, the entity must have been organized as a stock or
non-stock corporation.267
Government instrumentalities, on the other hand, are also
created by law but partake of sovereign functions. When a
government entity performs sovereign functions, it need not
meet the test of economic viability. In Manila International
Airport Authority v. Court of Appeals,268 this court explained:
In contrast, government instrumentalities vested with corporate
powers and performing governmental or public functions need not
meet the test of economic vi-
_______________
264 Republic v. City of Parañaque, supra note 115 at p. 259, citing Manila
International Airport Authority v. Court of Appeals, supra note 92 at pp. 234-
237; p. 641.
265 Republic v. City of Parañaque, id., at p. 262, citing Manila
International Airport Authority v. Court of Appeals, id., at p. 237; p. 641, citing
J. G. Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, p. 1181 (2003).
266 Id.
267 Manila International Airport Authority v. Court
Appeals, supra note 92 at p. 210; p. 615.
268 Id.
600
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ability. These instrumentalities perform essential public
services for the common good, services that every modern State
must provide its citizens. These instrumentalities need not be
economically viable since the government may even subsidize their
entire operations. These instrumentalities are not the
“government-owned or -controlled corporations” referred to in
Section 16, Article XII of the 1987 Constitution.
Thus, the Constitution imposes no limitation when the
legislature creates government instrumentalities vested with
corporate powers but performing essential governmental or public
functions. Congress has plenary authority to create government
instrumentalities vested with corporate powers provided these
instrumentalities perform essential government functions or public
services. However, when the legislature creates through special
charters corporations that perform economic or commercial
activities, such entities — known as “government-owned or -
controlled corporations” — must meet the test of economic viability
because they compete in the market place.
....
Commissioner Blas F. Ople, proponent of the test of economic
viability, explained to the Constitutional Commission the purpose
of this test, as follows:
MR. OPLE: Madam President, the reason for this concern is
really that when the government creates a corporation, there is a
sense in which this corporation becomes exempt from the test of
economic performance. We know what happened in the past. If a
government corporation loses, then it makes its claim upon the
taxpayers’ money through new equity infusions from the
government and what is always invoked is the common good. That
is the reason why this year, out of a budget of P115 billion for the
entire government, about P28 billion of this will go into equity
infusions to support a few government financial institutions. And
this is all taxpayers’ money
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 which could have been relocated to agrarian reform, to social
services like health and education, to augment the salaries of
grossly underpaid public employees. And yet this is all going down
the drain.
Therefore, when we insert the phrase “ECONOMIC
VIABILITY” together with the “common good,” this becomes a
restraint on future enthusiasts for state capitalism to excuse
themselves from the responsibility of meeting the market test so
that they become viable. And so, Madam President, I reiterate, for
the committee’s consideration and I am glad that I am joined in this
proposal by Commissioner Foz, the insertion of the standard of
“ECONOMIC VIABILITY OR THE ECONOMIC TEST,” together
with the common good.
....
Clearly, the test of economic viability does not apply to
government entities vested with corporate powers and performing
essential public services. The State is obligated to render essential
public services regardless of the economic viability of providing
such service. The noneconomic viability of rendering such essential
public service does not excuse the State from withholding such
essential services from the public.269 (Emphases and citations
omitted)
The law created the PEZA’s charter. Under the Special
Economic Zone Act of 1995, the PEZA was established
primarily to perform the governmental function of operating,
administering, managing, and developing special economic
zones to attract investments and provide opportunities for
preferential use of Filipino labor.
_______________
269 Id., at pp. 235-237; pp. 640-642.
602
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Under its charter, the PEZA was created a body corporate
endowed with some corporate powers. However, it was not
organized as a stock270 or non-stock271 corporation. Nothing in
the PEZA’s charter provides that the PEZA’s capital is divided
into shares.272 The PEZA also has no members who shall share
in the PEZA’s profits.
The PEZA does not compete with other economic zone
authorities in the country. The government may even
subsidize the PEZA’s operations. Under Section 47 of the
Special Economic Zone Act of 1995, “any sum necessary to
augment [the PEZA’s] capital outlay shall be included in the
General Appropriations Act to be treated as an equity of the
national government.”273
_______________
270 Corp. Code, Sec. 3 provides:
Classes of corporations.—Corporations formed or organized under this
Code may be stock or non-stock corporations. Corporations which have capital
stock divided into shares and are authorized to distribute to the holders of
such shares dividends or allotments of the surplus profits on the basis of the
shares held are stock corporations. All other corporations are non-stock
corporations.
271 Corp. Code, Sec. 87 provides:
Definition.—For the purposes of this Code, a non-stock corporation is one
where no part of its income is distributable as dividends to its members,
trustees, or officers, subject to the provisions of this Code on
dissolution: Provided, That any profit which a non-stock corporation may
obtain as an incident to its operations shall, whenever necessary or proper, be
used for the furtherance of the purpose or purposes for which the corporation
was organized, subject to the provisions of this Title.
Republic v. City of Parañaque, supra note 115 at p. 258, citing Manila
International Airport Authority v. Court of Appeals, supra note 92 at pp. 211-
212; pp. 670-671.
272 Pres. Decree No. 66, Sec. 5 in relation to Exec. Order No. 282 dated
October 30, 1995, Sec. 1.
273 Rep. Act No. 7916 (1995), Sec. 47.
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The PEZA, therefore, need not be economically viable. It is
not a government-owned or -controlled corporation liable for
real property taxes.
V. (B)
The PEZA assumed the nonprofit character, including
the tax exempt status, of the EPZA
The PEZA’s predecessor, the EPZA, was declared nonprofit
in character with all its revenues devoted for its development,
improvement, and maintenance. Consistent with this
nonprofit character, the EPZA was explicitly declared exempt
from real property taxes under its charter. Section 21 of
Presidential Decree No. 66 provides:
Section 21. Nonprofit Character of the Authority; Exemption
from Taxes.—The Authority shall be nonprofit and shall devote and
use all its returns from its capital investment, as well as excess
revenues from its operations, for the development, improvement
and maintenance and other related expenditures of the Authority
to pay its indebtedness and obligations and in furtherance and
effective implementation of the policy enunciated in Section 1 of
this Decree. In consonance therewith, the Authority is hereby
declared exempt:
....
(b) From all income taxes, franchise taxes, realty taxes and all
other kinds of taxes and licenses to be paid to the National
Government, its provinces, cities, municipalities and other
government agencies and instrumentalities[.]
The Special Economic Zone Act of 1995, on the other hand,
does not specifically exempt the PEZA from payment of real
property taxes.
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Nevertheless, we rule that the PEZA is exempt from real
property taxes by virtue of its charter. A provision in the
Special Economic Zone Act of 1995 explicitly exempting the
PEZA is unnecessary. The PEZA assumed the real property
exemption of the EPZA under Presidential Decree No. 66.
Section 11 of the Special Economic Zone Act of 1995
mandated the EPZA “to evolve into the PEZA in accordance
with the guidelines and regulations set forth in an executive
order issued for this purpose.” President Ramos then issued
Executive Order No. 282 in 1995, ordering the PEZA to
assume the EPZA’s powers, functions, and responsibilities
under Presidential Decree No. 66 not inconsistent with the
Special Economic Zone Act of 1995:
SECTION 1. Assumption of EPZA’s Powers and Functions by
PEZA.—All the powers, functions and responsibilities of EPZA as
provided under its Charter, Presidential Decree No. 66, as
amended, insofar as they are not inconsistent with the powers,
functions and responsibilities of the PEZA, as mandated under
Republic Act No. 7916, shall hereafter be assumed and exercised by
the PEZA. Henceforth, the EPZA shall be referred to as the PEZA.
The following sections of the Special Economic Zone Act of
1995 provide for the PEZA’s powers, functions, and
responsibilities:
SEC. 5. Establishment of ECOZONES.—To ensure the
viability and geographical dispersal of ECOZONES through a
system of prioritization, the following areas are initially identified
as ECOZONES, subject to the criteria specified in Section 6:
....
The metes and bounds of each ECOZONE are to be delineated
and more particularly described in a proclamation to be issued by
the President of the Philippines,
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upon the recommendation of the Philippine Economic Zone
Authority (PEZA), which shall be established under this Act, in
coordination with the municipal and/or city council, National Land
Use Coordinating Committee and/or the Regional Land Use
Committee.
SEC. 6. Criteria for the Establishment of Other
ECOZONES.—In addition to the ECOZONES identified in Section
5 of this Act, other areas may be established as ECOZONES in a
proclamation to be issued by the President of the Philippines
subject to the evaluation and recommendation of the PEZA, based
on a detailed feasibility and engineering study which must conform
to the following criteria:
(a) The proposed area must be identified as a regional growth
center in the Medium-Term Philippine Development Plan or by the
Regional Development Council;
(b) The existence of required infrastructure in the proposed
ECOZONE, such as roads, railways, telephones, ports,
airports, etc., and the suitability and capacity of the proposed site
to absorb such improvements;
(c) The availability of water source and electric power supply
for use of the ECOZONE;
(d) The extent of vacant lands available for industrial and
commercial development and future expansion of the ECOZONE as
well as of lands adjacent to the ECOZONE available for
development of residential areas for the ECOZONE workers;
(e) The availability of skilled, semi-skilled and non-skilled
trainable labor force in and around the ECOZONE;
(f) The area must have a significant incremental advantage
over the existing economic zones and its potential profitability can
be established;
(g) The area must be strategically located; and
(h) The area must be situated where controls can easily be
established to curtail smuggling activities.
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Other areas which do not meet the foregoing criteria may be
established as ECOZONES: Provided, That the said area shall be
developed only through local government and/or private sector
initiative under any of the schemes allowed in Republic Act No.
6957 (the build-operate-transfer law), and without any financial
exposure on the part of the national government: Provided, further,
That the area can be easily secured to curtail smuggling
activities: Provided, finally, That after five (5) years the area must
have attained a substantial degree of development, the indicators
of which shall be formulated by the PEZA.
SEC. 7. ECOZONE to be a Decentralized Agro-Industrial,
Industrial, Commercial/Trading, Tourist, Investment and
Financial Community.—Within the framework of the Constitution,
the interest of national sovereignty and territorial integrity of the
Republic, ECOZONE shall be developed, as much as possible, into
a decentralized, self-reliant and self-sustaining industrial,
commercial/trading, agro-industrial, tourist, banking, financial and
investment center with minimum government intervention. Each
ECOZONE shall be provided with transportation,
telecommunications, and other facilities needed to generate linkage
with industries and employment opportunities for its own
inhabitants and those of nearby towns and cities.
The ECOZONE shall administer itself on economic, financial,
industrial, tourism development and such other matters within the
exclusive competence of the national government.
The ECOZONE may establish mutually beneficial economic
relations with other entities within the country, or, subject to the
administrative guidance of the Department of Foreign Affairs
and/or the Department of Trade and Industry, with foreign entities
or enterprises.
Foreign citizens and companies owned by non-Filipinos in
whatever proportion may set up enterprises in the ECOZONE,
either by themselves or in joint venture with Filipinos in any sector
of industry, international trade
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and commerce within the ECOZONE. Their assets, profits and
other legitimate interests shall be protected: Provided, That the
ECOZONE through the PEZA may require a minimum investment
for any ECOZONE enterprises in freely convertible
currencies: Provided, further, That the new investment shall fall
under the priorities, thrusts and limits provided for in the Act.
SEC. 8. ECOZONE to be Operated and Managed as Separate
Customs Territory.—The ECOZONE shall be managed and
operated by the PEZA as separate customs territory.
The PEZA is hereby vested with the authority to issue certificate
of origin for products manufactured or processed in each ECOZONE
in accordance with the prevailing rules or origin, and the pertinent
regulations of the Department of Trade and Industry and/or the
Department of Finance.
SEC. 9. Defense and Security.—The defense of the ECOZONE
and the security of its perimeter fence shall be the responsibility of
the national government in coordination with the PEZA. Military
forces sent by the national government for the purpose of defense
shall not interfere in the internal affairs of any of the ECOZONE
and expenditure for these military forces shall be borne by the
national government. The PEZA may provide and establish the
ECOZONES’ internal security and firefighting forces.
SEC. 10. Immigration.—Any investor within the ECOZONE
whose initial investment shall not be less than One Hundred Fifty
Thousand Dollars ($150,000.00), his/her spouse and dependent
children under twenty-one (21) years of age shall be granted
permanent resident status within the ECOZONE. They shall have
freedom of ingress and egress to and from the ECOZONE without
any need of special authorization from the Bureau of Immigration.
The PEZA shall issue working visas renewable every two (2)
years to foreign executives and other aliens, process-
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ing highly-technical skills which no Filipino within the
ECOZONE possesses, as certified by the Department of Labor and
Employment. The names of aliens granted permanent resident
status and working visas by the PEZA shall be reported to the
Bureau of Immigration within thirty (30) days after issuance
thereof.
SEC. 13. General Powers and Functions of the Authority.—
The PEZA shall have the following powers and functions:
(a) To operate, administer, manage and develop the ECOZONE
according to the principles and provisions set forth in this Act;
(b) To register, regulate and supervise the enterprises in the
ECOZONE in an efficient and decentralized manner;
(c) To coordinate with local government units and exercise
general supervision over the development, plans, activities and
operations of the ECOZONES, industrial estates, export processing
zones, free trade zones, and the like;
(d) In coordination with local government units concerned and
appropriate agencies, to construct, acquire, own, lease, operate and
maintain on its own or through contract, franchise, license, bulk
purchase from the private sector and build-operate-transfer scheme
or joint venture, adequate facilities and infrastructure, such as light
and power systems, water supply and distribution systems,
telecommunication and transportation, buildings, structures,
warehouses, roads, bridges, ports and other facilities for the
operation and development of the ECOZONE;
(e) To create, operate and/or contract to operate such agencies
and functional units or offices of the authority as it may deem
necessary;
(f) To adopt, alter and use a corporate seal; make contracts,
lease, own or otherwise dispose of personal or real property; sue and
be sued; and otherwise carry out its duties and functions as
provided for in this Act;
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(g) To coordinate the formulation and preparation of the
development plans of the different entities mentioned above;
(h) To coordinate with the National Economic and
Development Authority (NEDA), the Department of Trade and
Industry (DTI), the Department of Science and Technology (DOST),
and the local government units and appropriate government
agencies for policy and program formulation and implementation;
and
(i) To monitor and evaluate the development and requirements
of entities in subsection (a) and recommend to the local government
units or other appropriate authorities the location, incentives, basic
services, utilities and infrastructure required or to be made
available for said entities.
SEC. 17. Investigation and Inquiries.—Upon a written formal
complaint made under oath, which on its face provides reasonable
basis to believe that some anomaly or irregularity might have been
committed, the PEZA or the administrator of the ECOZONE
concerned, shall have the power to inquire into the conduct of firms
or employees of the ECOZONE and to conduct investigations, and
for that purpose may subpoena witnesses, administer oaths, and
compel the production of books, papers, and other
evidences: Provided, That to arrive at the truth, the investigator(s)
may grant immunity from prosecution to any person whose
testimony or whose possessions of documents or other evidence is
necessary or convenient to determine the truth in any investigation
conducted by him or under the authority of the PEZA or the
administrator of the ECOZONE concerned.
 SEC. 21. Development Strategy of the ECOZONE.—The
strategy and priority of development of each ECOZONE established
pursuant to this Act shall be formulated by the PEZA, in
coordination with the Department of Trade and Industry and the
National Economic and Development Authority; Provided, That
such development strategy is consistent with the priorities of the
national government as outlined in the medium-term Philippine
development plan. It shall be the policy of the gov-
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ernment and the PEZA to encourage and provide Incentives and
facilitate private sector participation in the construction and
operation of public utilities and infrastructure in the ECOZONE,
using any of the schemes allowed in Republic Act No. 6957 (the
build-operate-transfer law).
SEC. 22. Survey of Resources.—The PEZA shall, in
coordination with appropriate authorities and neighboring cities
and municipalities, immediately conduct a survey of the physical,
natural assets and potentialities of the ECOZONE areas under its
jurisdiction.
SEC. 26. Domestic Sales.—Goods manufactured by an
ECOZONE enterprise shall be made available for immediate retail
sales in the domestic market, subject to payment of corresponding
taxes on the raw materials and other regulations that may be
adopted by the Board of the PEZA.
However, in order to protect the domestic industry, there shall
be a negative list of Industries that will be drawn up by the PEZA.
Enterprises engaged in the industries included in the negative list
shall not be allowed to sell their products locally. Said negative list
shall be regularly updated by the PEZA.
The PEZA, in coordination with the Department of Trade and
Industry and the Bureau of Customs, shall jointly issue the
necessary implementing rules and guidelines for the effective
Implementation of this section.
SEC. 29. Eminent Domain.—The areas comprising an
ECOZONE may be expanded or reduced when necessary. For this
purpose, the government shall have the power to acquire, either by
purchase, negotiation or condemnation proceedings, any private
lands within or adjacent to the ECOZONE for:
a. Consolidation of lands for zone development purposes;
b. Acquisition of right of way to the ECOZONE; and
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c. The protection of watershed areas and natural assets
valuable to the prosperity of the ECOZONE.
If in the establishment of a publicly-owned ECOZONE, any
person or group of persons who has been occupying a parcel of land
within the Zone has to be evicted, the PEZA shall provide the person
or group of persons concerned with proper disturbance
compensation: Provided, however, That in the case of displaced
agrarian reform beneficiaries, they shall be entitled to the benefits
under the Comprehensive Agrarian Reform Law, including but not
limited to Section 36 of Republic Act No. 3844, in addition to a
homelot in the relocation site and preferential employment in the
project being undertaken.
SEC. 32. Shipping and Shipping Register.—Private shipping
and related business including private container terminals may
operate freely in the ECOZONE, subject only to such minimum
reasonable regulations of local application which the PEZA may
prescribe.
The PEZA shall, in coordination with the Department of
Transportation and Communications, maintain a shipping register
for each ECOZONE as a business register of convenience for ocean-
going vessels and issue related certification.
Ships of all sizes, descriptions and nationalities shall enjoy
access to the ports of the ECOZONE, subject only to such
reasonable requirement as may be prescribed by the PEZA In
coordination with the appropriate agencies of the national
government.
SEC. 33. Protection of Environment.—The PEZA, in
coordination with the appropriate agencies, shall take concrete and
appropriate steps and enact the proper measure for the protection
of the local environment.
SEC. 34. Termination of Business.—Investors In the
ECOZONE who desire to terminate business or operations shall
comply with such requirements and procedures which the PEZA
shall set, particularly those relating to the clearing of debts. The
assets of the closed enterprise can be transferred and the funds con
be remitted
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out of the ECOZONE subject to the rules, guidelines and
procedures prescribed jointly by the Bangko Sentral ng Pilipinas,
the Department of Finance and the PEZA.
SEC. 35. Registration of Business Enterprises.—Business
enterprises within a designated ECOZONE shall register with the
PEZA to avail of all incentives and benefits provided for in this Act.
SEC. 36. One-Stop Shop Center.—The PEZA shall establish a
one stop shop center for the purpose of facilitating the registration
of new enterprises in the ECOZONE. Thus, all appropriate
government agencies that are Involved In registering, licensing or
issuing permits to investors shall assign their representatives to
the ECOZONE to attend to Investor’s requirements.
SEC. 39. Master Employment Contracts.—The PEZA, in
coordination with the Department of Tabor and Employment, shall
prescribe a master employment contract for all ECOZONE
enterprise staff members and workers, the terms of which provide
salaries and benefits not less than those provided under this Act,
the Philippine Labor Code, as amended, and other relevant
issuances of the national government.
SEC. 41. Migrant Worker.—The PEZA, in coordination with
the Department of Labor and Employment, shall promulgate
appropriate measures and programs leading to the expansion of the
services of the ECOZONE to help the local governments of nearby
areas meet the needs of the migrant workers.
SEC. 42. Incentive Scheme.—An additional deduction
equivalent to one-half (1/2) of the value of training expenses
incurred in developing skilled or unskilled labor or for managerial
or other management development programs incurred by
enterprises in the ECOZONE can be deducted from the national
government’s share of three percent (3%) as provided In Section 24.
The PEZA, the Department of Labor and Employment, and the
Department of Finance shall jointly make a review of the incentive
scheme provided In this section every two (2) years or when
circumstances so warrant.
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SEC. 43. Relationship with the Regional Development
Council.—The PEZA shall determine the development goals for the
ECOZONE within the framework of national development plans,
policies and goals, and the administrator shall, upon approval by
the PEZA Board, submit the ECOZONE plans, programs and
projects to the regional development council for inclusion in and as
inputs to the overall regional development plan.
SEC. 44. Relationship with the Local Government Units.—
Except as herein provided, the local government units comprising
the ECOZONE 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.
SEC. 45. Relationship of PEZA to Privately-Owned Industrial
Estates.—Privately-owned industrial estates shall retain their
autonomy and independence and shall be monitored by the PEZA
for the implementation of incentives.
SEC. 46. Transfer of Resources.—The relevant functions of the
Board of Investments over industrial estates and agri-export
processing estates shall be transferred to the PEZA. The resources
of government-owned Industrial estates and similar bodies except
the Bases Conversion Development Authority and those areas
identified under Republic Act No. 7227, are hereby transferred to
the PEZA as the holding agency. They are hereby detached from
their mother agencies and attached to the PEZA for policy, program
and operational supervision.
The Boards of the affected government-owned industrial estates
shall be phased out and only the management level and an
appropriate number of personnel shall be retained.
Government personnel whose services are not retained by the
PEZA or any government office within the ECOZONE shall be
entitled to separation pay and such re-
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tirement and other benefits they are entitled to under the laws
then in force at the time of their separation: Provided, That in no
case shall the separation pay be less than one and one-fourth (1 1/4)
month of every year of service.
The nonprofit character of the EPZA under Presidential
Decree No. 66 is not inconsistent with any of the powers,
functions, and responsibilities of the PEZA. The EPZA’s
nonprofit character, including the EPZA’s exemption from
real property taxes, must be deemed assumed by the PEZA.
In addition, the Local Government Code exempting
instrumentalities of the national government from real
property taxes was already in force274 when the PEZA’s
charter was enacted in 1995. It would have been redundant to
provide for the PEZA’s exemption in its charter considering
that the PEZA is already exempt by virtue of Section 133(o) of
the Local Government Code.
As for the EPZA, Commonwealth Act No. 470 or the
Assessment Law was in force when the EPZA’s charter was
enacted. Unlike the Local Government Code, Commonwealth
Act No. 470 does not contain a provision specifically
exempting instrumentalities of the national government from
payment of real property taxes.275 It was necessary to put an
exempting provision in the EPZA’s charter.
_______________
274 The Local Government Code became effective on January 1,
1992. Miguel v. Court of Appeals, G.R. No. 111749, February 23, 1994, 230
SCRA 339, 340 [Per J. Quiason, First Division].
275 Commonwealth Act No. 470 (1939), Sec. 3 provides:
Property exempt from tax.—The exemptions shall be as follows:
(a) Property owned by the United States of America, the Commonwealth
of the Philippines, any province, city, municipality or municipal district.
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_______________
(b) Cemeteries or burial grounds.
(c) Churches and parsonages or convents appurtenant thereto, and all
lands, buildings, and improvements used exclusively for religious, charitable,
scientific, or educational purposes.
(d) When the entire assessed valuation of real property in any one
municipality or municipal district belonging to a single owner is not in excess
of one hundred pesos, or when the assessed valuation of a house, used as
residence of the owner thereof, together with the lot on which the same is built,
does not exceed three hundred pesos and such owner has no other property,
the tax thereon shall not be collected, nor shall the tax be collected on a
dwelling house built on the field, nor or an adjacent orchard, if any, as
improvement, if the assessed value of each assessed separately, is not in excess
of one hundred pesos, though in any event of the property shall be valued for
the purposes of assessment and record shall be kept thereof as in other cases.
(e) Land held by a homesteader under an application filed in accordance
with law prior to the approval by the Director of lands of the final evidence as
required by law; but this exemption does not extend to buildings and
improvements thereon the title to which is not in the Government.
(f) Machinery, which term shall embrace machines, mechanical
contrivances, instruments, appliances, and apparatus attached to the real
estate, used for industrial agricultural or manufacturing purposes, during the
first five years of the operation of the machinery.
(g) Fruit trees and bamboo plants, except where the land upon which
they grow is planted principally in such growth.
(h) Until December thirty-first, nineteen hundred thirty-nine, land not
exceeding one hundred hectares used for airports or landing fields open to all
aircraft operations, either free of charge or upon the payment of a nominal
charge, together with such improvements thereon as are used exclusively for
aeronautical purposes, when such airports are necessary facilities for air
commerce. The airports or landing files herein exempted from taxation shall
revert to their original taxation status upon the certification of the Secretary
of Public Works and Communications that they are no longer necessary or
suitable facilities for air commerce.
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Contrary to the PEZA’s claim, however, Section 24 of the
Special Economic Zone Act of 1995 is not a basis for the
PEZA’s exemption. Section 24 of the Special Economic Zone
Act of 1995 provides:
Sec. 24. Exemption from National and Local Taxes.—Except
for real property taxes on land owned by developers, no taxes, local
and national, shall be imposed on business establishments
operating within the ECOZONE. In lieu thereof, five percent (5%)
of the gross income earned by all business enterprises within the
ECOZONE shall be paid and remitted as follows:
(a) Three percent (3%) to the National Government;
 (b) Two percent (2%) which shall be directly remitted by the
business establishments to the treasurer’s office of the municipality
or city where the enterprise is located. (Emphasis supplied)
Tax exemptions provided under Section 24 apply only to
business establishments operating within economic zones.
Considering that the PEZA is not a business establishment
but an instrumentality performing governmental functions,
Section 24 is inapplicable to the PEZA.
Also, contrary to the PEZA’s claim, developers of economic
zones, whether public or private developers, are liable for real
property taxes on lands they own. Section 24 does not
distinguish between a public and private developer. Thus,
courts cannot distinguish.276 Unless the public developer is
exempt under the Local Government Code or under its charter
en-
_______________
The provisions hereof notwithstanding, depreciation allowance shall be
made for machinery mentioned in Section three (f) equivalent to an amount
not exceeding ten per centum of its value for its year of use.
276 Cruz v. Commission on Audit, 420 Phil. 102, 109; 368 SCRA 85, 90
(2001) [Per J. Pardo, En Banc].
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acted after the Local Government Code’s effectivity, the
public developer must pay real property taxes on their land.
At any rate, the PEZA cannot be taxed for real property
taxes even if it acts as a developer or operator of special
economic zones. The PEZA is an instrumentality of the
national government exempt from payment of real property
taxes under Section 133(o) of the Local Government Code. As
this court said in Manila International Airport Authority,
“there must be express language in the law empowering local
governments to tax national government instrumentalities.
Any doubt whether such power exists is resolved against local
governments.”277
V. (C)
Real properties under the PEZA’s title are owned by the
Republic of the Philippines
Under Section 234(a) of the Local Government Code, real
properties owned by the Republic of the Philippines are
exempt from real property taxes:
SEC. 234. Exemptions from Real Property Tax.—The following
are exempted from payment of real property tax:
(a) Real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof
has been granted, for consideration or otherwise, to a taxable
person[.]
Properties owned by the state are either property of public
dominion or patrimonial property. Article 420 of the Civil
_______________
277 Manila International Airport Authority v. Court of
Appeals, supra note 92 at p. 215; p. 620.
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Code of the Philippines enumerates property of public
dominion:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character;
(2) Those which belong to the State, without belonging for
public use, and are intended for some public service or for the
development of the national wealth.
Properties of public dominion are outside the commerce of
man. These properties are exempt from “levy, encumbrance or
disposition through public or private sale.”278 As this court
explained in Manila International Airport Authority:
 Properties of public dominion, being for public use, are not
subject to levy, encumbrance or disposition through public or
private sale. Any encumbrance, levy on execution or auction sale of
any property of public dominion is void for being contrary to public
policy. Essential public services will stop if properties of public
dominion are subject to encumbrances, foreclosures and auction
sale[.]279
On the other hand, all other properties of the state that are
not intended for public use or are not intended for some public
service or for the development of the national wealth are
patrimonial properties. Article 421 of the Civil Code of the
Philippines provides:
_______________
278 Id., at p. 219; p. 624.
279 Id.
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Art. 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial property.
Patrimonial properties are also properties of the state, but
the state may dispose of its patrimonial property similar to
private persons disposing of their property. Patrimonial
properties are within the commerce of man and are
susceptible to prescription, unless otherwise provided.280
In this case, the properties sought to be taxed are located
in publicly owned economic zones. These economic zones are
property of public dominion. The City seeks to tax properties
located within the Mactan Economic Zone,281 the site of which
was reserved by President Marcos under Proclamation No.
1811, Series of 1979. Reserved lands are lands of the public
domain set aside for settlement or public use, and for specific
public purposes by virtue of a presidential
proclamation. Reserved lands are inalienable and outside
282
the commerce of man,283 and remain property of the Republic
until withdrawn
_______________
280 Civil Code, Art. 1113.
281 RTC Records (Civil Case No. 02-0410), p. 29.
282 Exec. Order no. 292 (1987), Book III, Title I, Chapter 4, Sec. 14
provides:
SEC. 14. Power to Reserve Lands of the Public and Private Domain of the
Government.—(1) The President shall have the power to reserve for settlement
or public use, and for specific public purposes, any of the lands of the public
domain, the use of which is not otherwise directed by law. The reserved land
shall thereafter remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.
....
Manila International Airport Authority v. Court of Appeals, supra note 92
at pp. 220-221; p. 626.
283 Public Land Act, Secs. 83 and 88 provide:
SECTION 83. Upon the recommendation of the Secretary of Agriculture
and Natural Resources, the President may designate by
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from public use either by law or presidential
proclamation.284Since no law or presidential proclamation has
been issued withdrawing the site of the Mactan Economic
Zone from public use, the property remains reserved land.
As for the Bataan Economic Zone, the law consistently
characterized the property as a port. Under Republic Act No.
5490, Congress declared Mariveles, Bataan “a principal port
of entry”285 to serve as site of a foreign trade zone where for-
_______________
proclamation any tract or tracts of land of the public domain as
reservations for the use of the Republic of the Philippines or of any of its
branches, or of the inhabitants thereof, in accordance with regulations
prescribed for this purpose, or for quasi-public uses or purposes when the
public interest requires it, including reservations for highways, rights of way
for railroads, hydraulic power sites, irrigation systems, communal pastures
or leguas comunales, public parks, public quarries, public fishponds,
workingman’s village and other improvements for the public benefit.
SECTION 88. The tract or tracts of land reserved under the provisions
of Section eighty-three shall be non-alienable and shall not be subject to
occupation, entry, sale, lease, or other disposition until again declared
alienable under the provisions of this Act or by proclamation of the President.
Manila International Airport Authority v. Court of Appeals, id., at p. 221;
p. 625.
284 Exec. Order No. 292 (1987), Book III, Title I, Chapter 4, Sec. 14
provides:
SEC. 14. Power to Reserve Lands of the Public and Private Domain of the
Government.—(1) The President shall have the power to reserve for settlement
or public use, and for specific public purposes, any of the lands of the public
domain, the use of which is not otherwise directed by law. The reserved land
shall thereafter remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.
....
Manila International Airport Authority v. Court of Appeals, id., at p. 221;
p. 625.
285 Rep. Act No. 5490 (1969), Sec. 2 provides:
621
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
eign and domestic merchandise may be brought in without
being subject to customs and internal revenue laws and
regulations of the Philippines.286 Section 4 of Republic Act No.
5490 provided that the foreign trade zone in Mariveles,
Bataan “shall at all times remain to be owned by the Govern-
ment”:
SEC. 4. Powers and Duties.—The Foreign Trade Zone
Authority shall have the following powers and duties:
a. To fix and delimit the site of the Zone which at all times
remain to be owned by the Government, and which shall have a
contiguous and adequate area with well defined and policed
boundaries, with adequate enclosures to segregate the Zone from
the customs territory for protection of revenues, together with
suitable provisions for ingress and egress of per-
_______________
SEC. 2. Mariveles Port: establishment of foreign trade zone therein:
admission of foreign and domestic merchandise.—To attain the above policy,
Mariveles, Province of Bataan, is hereby made a principal port of entry by
further amending section seven hundred one of Republic Act Numbered
Nineteen hundred thirty-seven, otherwise known as Tariff and Customs Code
of the Philippines, as amended. . . .
....
There is hereby established in the Mariveles Port a foreign trade zone
herein referred to as the Zone. Foreign and domestic merchandise of every
description, except such as is prohibited by law, may, without being subject to
the customs and internal revenue laws and regulations of the Philippines,
except as otherwise provided in this Act, be brought into the Zone and may be
stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted,
graded, cleaned, mixed with foreign or domestic merchandise, or otherwise
manipulated, or be manufactured except as otherwise provided in this Act,
and be exported, destroyed or sent into customs territory of the Philippines
therefrom, in the original package or otherwise[.]
286 Rep. Act No. 5490, Sec. 2.
622
622 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
sons, conveyance, vessels and merchandise sufficient for the
purpose of this Act[.] (Emphasis supplied)
The port in Mariveles, Bataan then became the Bataan
Economic Zone under the Special Economic Zone Act of
1995.287 Republic Act No. 9728 then converted the Bataan
Economic Zone into the Freeport Area of Bataan.288
A port of entry, where imported goods are unloaded then
introduced in the market for public consumption, is
considered property for public use. Thus, Article 420 of the
Civil Code classifies a port as property of public dominion. The
Freeport Area of Bataan, where the government allows tax
and duty-free importation of goods,289 is considered property of
public dominion. The Freeport Area of Bataan is owned by the
state and cannot be taxed under Section 234(a) of the Local
Government Code.
Properties of public dominion, even if titled in the name of
an instrumentality as in this case, remain owned by the
Republic of the Philippines. If property registered in the name
of an instrumentality is conveyed to another person, the
property is considered conveyed on behalf of the Republic of
the Philippines. Book I, Chapter 12, Section 48 of the
Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property.—
Whenever real property of the government is
_______________
 287 Rep. Act No. 7916 (1995), Sec. 5(ll).
288 Rep. Act No. 9728 (2009), Sec. 3 provides:
SEC. 3. Conversion of the Bataan Economic Zone (BEZ) into the Freeport
Area of Bataan.—The existing Bataan Economic Zone located in the
Municipality of Mariveles, Province of Bataan is hereby converted into a
special economic zone and Freeport to be known as the Freeport Area of
Bataan (FAB). The FAB shall cover the Municipality of Mariveles, Province of
Bataan.
289 Rep. Act No. 9728 (2009), Sec. 4(e).
623
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
authorized by law to be conveyed, the deed of conveyance shall
be executed in behalf of the government by the following:
....
(2) For property belonging to the Republic of the Philippines,
but titled in the name of any political subdivision or of any corporate
agency or instrumentality, by the executive head of the agency or
instrumentality. (Emphasis supplied)
In Manila International Airport Authority, this court
explained:
[The exemption under Section 234(a) of the Local Government
Code] should be read in relation with Section 133(o) of the same
Code, which prohibits local governments from imposing “[t]axes,
fess or charges of any kind on the National Government, its
agencies and instrumentalities x x x.” The real properties owned
by the Republic are titled either in the name of the Republic itself or
in the name of agencies or instrumentalities of the National
Government. The Administrative Code allows real property owned
by the Republic to be titled in the name of agencies or
instrumentalities of the national government. Such real properties
remained owned by the Republic of the Philippines and continue to
be exempt from real estate tax.
The Republic may grant the beneficial use of its real property to
an agency or instrumentality of the national government. This
happens when title of the real property is transferred to an agency
or instrumentality even as the Republic remains the owner of the
real property. Such arrangement does not result in the loss of the
tax exemption. Section 234(a) of the Local Government Code states
that real property owned by the Republic loses its tax exemption
only if the “beneficial use thereof has been granted, for
consideration or otherwise, to a
624
624 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
taxable person.” . . .290 (Emphasis in the original; italics
supplied)
Even the PEZA’s lands and buildings whose beneficial use
have been granted to other persons may not be taxed with real
property taxes. The PEZA may only lease its lands and
buildings to PEZA-registered economic zone enterprises and
entities.291 These PEZA-registered enterprises and entities,
which operate within economic zones, are not subject to real
property taxes. Under Section 24 of the Special Economic
Zone Act of 1995, no taxes, whether local or national, shall be
imposed on all business establishments operating within the
economic zones:
SEC. 24. Exemption from National and Local Taxes.—Except
for real property on land owned by developers, no taxes, local and
national, shall be imposed on business establishments operating
within the ECOZONE. In lieu thereof, five percent (5%) of the gross
income earned by all business enterprises within the ECOZONE
shall be paid and remitted as follows:
a. Three percent (3%) to the National Government;
b. Two percent (2%) which shall be directly remitted by the
business establishments to the treasurer’s office of the municipality
or city where the enterprise is located.292 (Emphasis supplied)
_______________
290 Manila International Airport Authority v. Court of
Appeals, supra note 92 at pp. 224-225; p. 629.
291 Rules And Regulations To Implement Republic Act No. 7916, Rule V,
Sec. 1 provides:
SECTION 1. Qualifications.—Lands and buildings within an
ECOZONE can be leased only to ECOZONE enterprises/entities authorized
by or registered with the PEZA and owned or controlled by Philippine
nationals or by aliens under such terms and conditions as the Board may
formulate.
292 Rep. Act No. 7916 (1995).
625
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City of Lapu-Lapu vs. Philippine Econimic Zone Authority
In lieu of revenues from real property taxes, the City of
Lapu-Lapu collects two-fifths of 5% final tax on gross income
paid by all business establishments operating within the
Mactan Economic Zone:
SEC. 24. Exemption from National and Local Taxes.—Except
for real property on land owned by developers, no taxes, local and
national, shall be imposed on business establishments operating
within the ECOZONE. In lieu thereof, five percent (5%) of the gross
income earned by all business enterprises within the ECOZONE
shall be paid and remitted as follows:
a. Three percent (3%) to the National Government;
b. Two percent (2%) which shall be directly remitted by the
business establishments to the treasurer’s office of the municipality
or city where the enterprise is located.293 (Emphasis supplied)
For its part, the Province of Bataan collects a fifth of the
5% final tax on gross income paid by all business
establishments operating within the Freeport Area of Bataan:
Section 6. Imposition of a Tax Rate of Five Percent (5%) on
Gross Income Earned.—No taxes, local and national, shall be
imposed on business establishments operating within the FAB. In
lieu thereof, said business establishments shall pay a five percent
(5%) final tax on their gross income earned in the following
percentages:
(a) One per centum (1%) to the National Government;
(b) One per centum (1%) to the Province of Bataan;
(c) One per centum (1%) to the treasurer’s office of the
Municipality of Mariveles; and
_______________
293 Rep. Act No. 7916 (1995).
626
626 SUPREME COURT REPORTS ANNOTATED
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
(d) Two per centum (2%) to the Authority of the Freeport of
Area of Bataan.294 (Emphasis supplied)
Petitioners, therefore, are not deprived of revenues from
the operations of economic zones within their respective
territorial jurisdictions. The national government ensured
that local government units comprising economic zones shall
retain their basic autonomy and identity.295
All told, the PEZA is an instrumentality of the national
government. Furthermore, the lands owned by the PEZA are
real properties owned by the Republic of the Philippines. The
City of Lapu-Lapu and the Province of Bataan cannot collect
real property taxes from the PEZA.
WHEREFORE, the consolidated petitions are DENIED.
SO ORDERED.
Carpio (Chairperson), Del Castillo,
Mendoza and Reyes,** JJ., concur.
Consolidated petitions denied.
Notes.—The grant of tax exemption is a matter of
legislative policy that is within the exclusive prerogative of
Congress. (Diaz vs. Secretary of Finance, 654 SCRA 96 [2011])
_______________
294 Rep. Act No. 9728 (2009).
295 Rep. Act No. 7916 (1995), Sec. 44 provides:
SEC. 44. Relationship with Local Government Units.—Except as herein
provided, the local government units comprising the ECOZONE 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.
* * Designated acting member per Special Order No. 1881 dated November
25, 2014.
627
VOL. 742, NOVEMBER 26, 2014 627
City of Lapu-Lapu vs. Philippine Econimic Zone Authority
The Local Government Code withdrew tax exemption
privileges previously given to natural or juridical persons, and
granted local government units the power to impose franchise
tax. (Cagayan Electric Power and Light Co., Inc. vs. City of
Cagayan de Oro, 685 SCRA 609 [2012])
——o0o——

VOL. 442, NOVEMBER 17, 2004 573
Agabon vs. National Labor Relations Commission
G.R. No. 158693. November 17, 2004. *
JENNY M. AGABON and VIRGILIO C. AGABON,
petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION (NLRC), RIVIERA HOME
IMPROVEMENTS, INC. and VICENTE ANGELES,
respondents.
Labor Law; Administrative Law; If the factual findings of the
NLRC and the Labor Arbiter are conflicting, the reviewing court
may delve into the records and examine for itself the questioned
findings.—It is well-settled that findings of fact of quasi-judicial
agencies like the NLRC are accorded not only respect but even
finality if the findings are supported by substantial evidence. This
is especially so when such findings were affirmed by the Court of
Appeals. However, if the factual findings of the NLRC and the
Labor Arbiter are con-
_______________
*EN BANC.
574
574 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
flicting, as in this case, the reviewing court may delve into the
records and examine for itself the questioned findings. Accordingly,
the Court of Appeals, after a careful review of the facts, ruled that
petitioners’ dismissal was for a just cause. They had abandoned
their employment and were already working for another employer.
Same; Dismissal of Employees; To dismiss an employee, the
law requires not only the existence of a just and valid cause but also
enjoins the employer to give the employee the opportunity to be heard
and to defend himself.—To dismiss an employee, the law requires
not only the existence of a just and valid cause but also enjoins the
employer to give the employee the opportunity to be heard and to
defend himself. Article 282 of the Labor Code enumerates the just
causes for termination by the employer: (a) serious misconduct or
willful disobedience by the employee of the lawful orders of his
employer or the latter’s representative in connection with the
employee’s work; (b) gross and habitual neglect by the employee of
his duties; (c) fraud or willful breach by the employee of the trust
reposed in him by his employer or his duly authorized
representative; (d) commission of a crime or offense by the employee
against the person of his employer or any immediate member of his
family or his duly authorized representative; and (e) other causes
analogous to the foregoing.
Same; Same; Abandonment; Words and
Phrases; Abandonment is the deliberate and unjustified refusal of
an employee to resume his employment—it is a form of neglect of
duty, hence, a just cause for termination of employment by the
employer.—Abandonment is the deliberate and unjustified refusal
of an employee to resume his employment. It is a form of neglect of
duty, hence, a just cause for termination of employment by the
employer. For a valid finding of abandonment, these two factors
should be present: (1) the failure to report for work or absence
without valid or justifiable reason; and (2) a clear intention to sever
employer-employee relationship, with the second as the more
determinative factor which is manifested by overt acts from which
it may be deduced that the employees has no more intention to
work. The intent to discontinue the employment must be shown by
clear proof that it was deliberate and unjustified.
Same; Same; Same; Moonlighting; Subcontracting for another
company clearly shows the intention to sever the employer-employee
relationship; The record of an employee is a relevant consideration
in
575
VOL. 442, NOVEMBER 17, 2004 575
Agabon vs. National Labor Relations Commission
determining the penalty that should be meted out to him.—In
February 1999, petitioners were frequently absent having
subcontracted for an installation work for another company.
Subcontracting for another company clearly showed the intention
to sever the employer-employee relationship with private
respondent. This was not the first time they did this. In January
1996, they did not report for work because they were working for
another company. Private respondent at that time warned
petitioners that they would be dismissed if this happened again.
Petitioners disregarded the warning and exhibited a clear intention
to sever their employer-employee relationship. The record of an
employee is a relevant consideration in determining the penalty
that should be meted out to him.
Same; Same; The employer may not be compelled to continue to
employ such persons whose continuance in the service will patently
be inimical to his interests.—The law imposes many obligations on
the employer such as providing just compensation to workers,
observance of the procedural requirements of notice and hearing in
the termination of employment. On the other hand, the law also
recognizes the right of the employer to expect from its workers not
only good performance, adequate work and diligence, but also good
conduct and loyalty. The employer may not be compelled to continue
to employ such persons whose continuance in the service will
patently be inimical to his interests.
Same; Same; Dismissals based on just causes contemplate acts
or omissions attributable to the employee while dismissals based on
authorized causes involve grounds under the Labor Code which
allow the employer to terminate employees.—Dismissals based on
just causes contemplate acts or omissions attributable to the
employee while dismissals based on authorized causes involve
grounds under the Labor Code which allow the employer to
terminate employees. A termination for an authorized cause
requires payment of separation pay. When the termination of
employment is declared illegal, reinstatement and full backwages
are mandated under Article 279. If reinstatement is no longer
possible where the dismissal was unjust, separation pay may be
granted.
Same; Same; Due Process; Notice Requirement; Procedurally,
(1) if the dismissal is based on a just cause under Article 282 of the
Labor Code, the employer must give the employee two written notices
and a hearing or opportunity to be heard if requested by the employee
576
576 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
before terminating the employment, and (2) if the dismissal is
based on authorized causes under Articles 283 and 284, the
employer must give the employee and the Department of Labor and
Employment written notices 30 days prior to the effectivity of his
separation; Failure to observe due process in a dismissal for just or
authorized cause does not invalidate the dismissal but makes the
employer liable for non-compliance with the procedural
requirements of due process.—Procedurally, (1) if the dismissal is
based on a just cause under Article 282, the employer must give the
employee two written notices and a hearing or opportunity to be
heard if requested by the employee before terminating the
employment: a notice specifying the grounds for which dismissal is
sought a hearing or an opportunity to be heard and after hearing or
opportunity to be heard, a notice of the decision to dismiss; and (2)
if the dismissal is based on authorized causes under Articles 283
and 284, the employer must give the employee and the Department
of Labor and Employment written notices 30 days prior to the
effectivity of his separation. From the foregoing rules four possible
situations may be derived: (1) the dismissal is for a just cause under
Article 282 of the Labor Code, for an authorized cause under Article
283, or for health reasons under Article 284, and due process was
observed; (2) the dismissal is without just or authorized cause but
due process was observed; (3) the dismissal is without just or
authorized cause and there was no due process; and (4) the
dismissal is for just or authorized cause but due process was not
observed. In the first situation, the dismissal is undoubtedly valid
and the employer will not suffer any liability. In the second and
third situations where the dismissals are illegal, Article 279
mandates that the employee is entitled to reinstatement without
loss of seniority rights and other privileges and full backwages,
inclusive of allowances, and other benefits or their monetary
equivalent computed from the time the compensation was not paid
up to the time of actual reinstatement. In the fourth situation, the
dismissal should be upheld. While the procedural infirmity cannot
be cured, it should not invalidate the dismissal. However, the
employer should be held liable for non-compliance with the
procedural requirements of due process.
Same; Same; Same; Same; The fact that the employee may not
be residing in the address indicated in the employer’s records does
not excuse the employer from sending the notices to the employee’s
last known address.—The present case squarely falls under the
fourth
577
VOL. 442, NOVEMBER 17, 2004 577
Agabon vs. National Labor Relations Commission
situation. The dismissal should be upheld because it was
established that the petitioners abandoned their jobs to work for
another company. Private respondent, however, did not follow the
notice requirements and instead argued that sending notices to the
last known addresses would have been useless because they did not
reside there anymore. Unfortunately for the private respondent,
this is not a valid excuse because the law mandates the twin notice
requirements to the employee’s last known address. Thus, it should
be held liable for non-compliance with the procedural requirements
of due process.
Same; Same; Same; Same; The Court believes that the ruling
in Serrano v. National Labor Relations Commission, 323 SCRA 445
(2000), did not consider the full meaning of Article 279 of the Labor
Code which provision means that the termination is illegal only if it
is not for any of the justified or authorized causes provided by law
and that payment of backwages and other benefits, including
reinstatement, is justified only if the employee was unjustly
dismissed; The fact that the Serrano ruling can cause unfairness
and injustice which elicited strong dissent has prompted the Court
to revisit the doctrine.—The rationale for the re-examination of
the Wenphil doctrine in Serrano was the significant number of
cases involving dismissals without requisite notices. We concluded
that the imposition of penalty by way of damages for violation of the
notice requirement was not serving as a deterrent. Hence, we now
required payment of full backwages from the time of dismissal until
the time the Court finds the dismissal was for a just or authorized
cause. Serrano was confronting the practice of employers to
“dismiss now and pay later” by imposing full backwages. We
believe, however, that the ruling in Serrano did not consider the full
meaning of Article 279 of the Labor Code which states: ART. 279.
Security of Tenure.—In cases of regular employment, the employer
shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement. This means
that the termination is illegal only if it is not for any of the justified
or authorized causes provided by law. Payment of backwages and
other benefits, including reinstate-
578
578 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
ment, is justified only if the employee was unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice
which elicited strong dissent has prompted us to revisit the
doctrine.
Same; Same; Same; Constitutional Law; The Due Process
Clause in Article III, Section 1 of the Constitution embodies a system
of rights based on moral principles so deeply imbedded in the
traditions and feelings of our people as to be deemed fundamental to
a civilized society as conceived by our entire history.—To be sure,
the Due Process Clause in Article III, Section 1 of the Constitution
embodies a system of rights based on moral principles so deeply
imbedded in the traditions and feelings of our people as to be
deemed fundamental to a civilized society as conceived by our entire
history. Due process is that which comports with the deepest
notions of what is fair and right and just. It is a constitutional
restraint on the legislative as well as on the executive and judicial
powers of the government provided by the Bill of Rights.
Same; Same; Same; Same; Statutory due process should be
differentiated from failure to comply with constitutional due
process—constitutional due process protects the individual from the
government and assures him of his rights in criminal, civil or
administrative proceedings while statutory due process found in the
Labor Code and Implementing Rules protects employees from being
unjustly terminated without just cause after notice and hearing.—
Due process under the Labor Code, like Constitutional due
process, has two aspects: substantive, i.e., the valid and authorized
causes of employment termination under the Labor Code; and
procedural, i.e., the manner of dismissal. Procedural due process
requirements for dismissal are found in the Implementing Rules of
P.D. 442, as amended, otherwise known as the Labor Code of the
Philippines in Book VI, Rule I, Sec. 2, as amended by Department
Order Nos. 9 and 10. Breaches of these due process requirements
violate the Labor Code. Therefore statutory due process should be
differentiated from failure to comply with constitutional due
process. Constitutional due process protects the individual from the
government and assures him of his rights in criminal, civil or
administrative proceedings; while statutory due processfound in the
Labor Code and Implementing Rules protects employees from being
unjustly terminated without just cause after notice and hearing.
579
VOL. 442, NOVEMBER 17, 2004 579
Agabon vs. National Labor Relations Commission
Same; Same; Same; The better rule is to abandon the Serrano
doctrine and to follow Wenphil v. National Labor Relations
Commission, 170 SCRA 69 (1989), by holding that the dismissal
was for just cause but imposing sanctions on the employer, which
sanctions, however, must be stiffer than that imposed in Wenphil.—
After carefully analyzing the consequences of the divergent
doctrines in the law on employment termination, we believe that in
cases involving dismissals for cause but without observance of the
twin requirements of notice and hearing, the better rule is to
abandon the Serrano doctrine and to follow Wenphil by holding
that the dismissal was for just cause but imposing sanctions on the
employer. Such sanctions, however, must be stiffer than that
imposed in Wenphil. By doing so, this Court would be able to
achieve a fair result by dispensing justice not just to employees, but
to employers as well.
Same; Same; Same; The constitutional policy to provide full
protection to labor is not meant to be a sword to oppress employers—
the commitment of this Court to the cause of labor does not prevent
it from sustaining the employer when it is in the right.—The
unfairness of declaring illegal or ineffectual dismissals for valid or
authorized causes but not complying with statutory due process
may have far-reaching consequences. This would encourage
frivolous suits, where even the most notorious violators of company
policy are rewarded by invoking due process. This also creates
absurd situations where there is a just or authorized cause for
dismissal but a procedural infirmity invalidates the termination.
Let us take for example a case where the employee is caught
stealing or threatens the lives of his co-employees or has become a
criminal, who has fled and cannot be found, or where serious
business losses demand that operations be ceased in less than a
month. Invalidating the dismissal would not serve public interest.
It could also discourage investments that can generate employment
in the local economy. The constitutional policy to provide full
protection to labor is not meant to be a sword to oppress employers.
The commitment of this Court to the cause of labor does not prevent
us from sustaining the employer when it is in the right, as in this
case. Certainly, an employer should not be compelled to pay
employees for work not actually performed and in fact abandoned.
The employer should not be compelled to continue employing a
person who is admittedly guilty of misfeasance or malfeasance and
whose continued employment is patently inimical to the employer.
580
580 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
The law protecting the rights of the laborer authorizes neither
oppression nor self-destruction of the employer.
Same; Same; Social Justice; An employee who is clearly guilty
of conduct violative of Article 282 should not be protected by the
Social Justice Clause of the Constitution—social justice must be
founded on the recognition of the necessity of interdependence among
diverse units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our social
and economic life; Social justice is not based on rigid formulas set
in stone—it has to allow for changing times and circumstances.—
An employee who is clearly guilty of conduct violative of Article 282
should not be protected by the Social Justice Clause of the
Constitution. Social justice, as the term suggests, should be used
only to correct an injustice. As the eminent Justice Jose P. Laurel
observed, social justice must be founded on the recognition of the
necessity of interdependence among diverse units of a society and of
the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the
state of promoting the health, comfort, and quiet of all persons, and
of bringing about “the greatest good to the greatest number.” This
is not to say that the Court was wrong when it ruled the way it did
in Wenphil, Serrano and related cases. Social justice is not based on
rigid formulas set in stone. It has to allow for changing times and
circumstances.
 Same; Same; Due Process; The violation of an employee’s right
to statutory due process by the employer warrants the payment of
indemnity in the form of nominal damages, the amount of which is
addressed to the sound discretion of the court, taking into account
the relevant circumstances.—The violation of the petitioners’ right
to statutory due process by the private respondent warrants the
payment of indemnity in the form of nominal damages. The amount
of such damages is addressed to the sound discretion of the court,
taking into account the relevant circumstances. Considering the
prevailing circumstances in the case at bar, we deem it proper to fix
it at P30,000.00. We believe this form of damages would serve to
deter employers from future violations of the statutory due process
rights of employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter under
the Labor Code and its Implementing Rules.
581
VOL. 442, NOVEMBER 17, 2004 581
Agabon vs. National Labor Relations Commission
Same; Evidence; Payment; Burden of Proof; As a general rule,
one who pleads payment has the burden of proving it—even where
the employee must allege non-payment, the general rule is that the
burden rests on the employer to prove payment, rather than on the
employee to prove non-payment.—We affirm the ruling of the
appellate court on petitioners’ money claims. Private respondent is
liable for petitioners’ holiday pay, service incentive leave pay and
13th month pay without deductions. As a general rule, one who
pleads payment has the burden of proving it. Even where the
employee must allege non-payment, the general rule is that the
burden rests on the employer to prove payment, rather than on the
employee to prove non-payment. The reason for the rule is that the
pertinent personnel files, payrolls, records, remittances and other
similar documents—which will show that overtime, differentials,
service incentive leave and other claims of workers have been
paid—are not in the possession of the worker but in the custody and
absolute control of the employer.
Same; Wages; Thirteenth Month Pay; The 13th month pay is
included in the definition of wage under Article 97(f) of the Labor
Code from which the employer is prohibited under Article 113 from
making any deductions without the employee’s knowledge and
consent.—Anent the deduction of SSS loan and the value of the
shoes from petitioner Virgilio Agabon’s 13th month pay, we find the
same to be unauthorized. The evident intention of Presidential
Decree No. 851 is to grant an additional income in the form of the
13th month pay to employees not already receiving the same so as
“to further protect the level of real wages from the ravages of world-
wide inflation.” Clearly, as additional income, the 13th month pay
is included in the definition of wage under Article 97(f) of the Labor
Code, to wit: (f) “Wage” paid to any employee shall mean the
remuneration or earnings, however designated, capable of being
expressed in terms of money whether fixed or ascertained on a time,
task, piece, or commission basis, or other method of calculating the
same, which is payable by an employer to an employee under a
written or unwritten contract of employment for work done or to be
done, or for services rendered or to be rendered and includes the
fair and reasonable value, as determined by the Secretary of Labor,
of board, lodging, or other facilities customarily furnished by the
employer to the employee . . .” from which an employer is prohibited
under Article 113 of the same Code from making any deductions
without the em-
582
582 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
ployee’s knowledge and consent. In the instant case, private
respondent failed to show that the deduction of the SSS loan and
the value of the shoes from petitioner Virgilio Agabon’s 13th month
pay was authorized by the latter. The lack of authority to deduct is
further bolstered by the fact that petitioner Virgilio Agabon
included the same as one of his money claims against private
respondent.
PETITION for review on certiorari of a decision of the Court
of Appeals.
The facts are stated in the opinion of the Court.
Public Attorney’s Office for petitioners.
Nestor P. Ricolcol for private respondents.
602
602 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision of the
1 SO ORDERED.’ ”
Court of Appeals dated January 23, 2003, in CA-G.R. SP No.
63017, modifying the decision of National Labor Relations
Commission (NLRC) in NLRC-NCR Case No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is
engaged in the business of selling and installing ornamental
and construction materials. It employed petitioners Virgilio
Agabon and Jenny Agabon as gypsum board and cornice
installers on January 2, 1992 until February 23, 1999 when
2 The Court of Appeals in turn ruled that the dismissal of the
they were dismissed for abandonment of work.
Petitioners then filed a complaint for illegal dismissal and
payment of money claims and on December 28, 1999, the
3 dispositive portion of the decision reads:
Labor Arbiter rendered a decision declaring the dismissals
illegal and ordered private respondent to pay the monetary
claims. The dispositive portion of the decision states:
“WHEREFORE, premises considered, We find the termination of
the complainants illegal. Accordingly, respondent is hereby ordered
to pay them their backwages up to November 29, 1999 in the sum
of:
1. 1.Jenny M. Agabon—P56, 231.93
2. 2.Virgilio C. Agabon—56, 231.93
and, in lieu of reinstatement to pay them their separation pay of
one (1) month for every year of service from date of hiring up to
November 29, 1999.
Respondent is further ordered to pay the complainants their
holiday pay and service incentive leave pay for the years 1996, 1997
and 1998 as well as their premium pay for holidays and rest days
and Virgilio Agabon’s 13th month pay differential amounting to
TWO THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or
the aggregate amount of ONE HUNDRED TWENTY ONE
THOUSAND SIX HUNDRED SEVENTY EIGHT & 93/100
(P121,678.93) Pesos for Jenny Agabon, and ONE HUNDRED
TWENTY THREE THOUSAND EIGHT HUNDRED TWENTY
EIGHT & 93/100 (P123,828.93) Pesos for Virgilio Agabon, as per
attached computation of Julieta C. Nicolas, OIC, Research and
Computation Unit, NCR.
4
On appeal, the NLRC reversed the Labor Arbiter because it
found that the petitioners had abandoned their work, and
were not entitled to backwages and separation pay. The other
money claims awarded by the Labor Arbiter were also denied
for lack of evidence. 5
Upon denial of their motion for reconsideration, petitioners
filed a petition for certiorari with the Court of Appeals.
petitioners was not illegal because they had abandoned their
employment but ordered the payment of money claims. The
“WHEREFORE, the decision of the National Labor Relations
Commission is REVERSED only insofar as it dismissed petitioner’s
money claims. Private respondents are ordered to pay petitioners
holiday pay for four (4) regular holidays in 1996, 1997, and 1998, as
well as their service incentive leave pay for said years, and to pay
the balance of petitioner Virgilio Agabon’s 13th month pay for 1998
in the amount of P2,150.00.
“SO ORDERED.” 6
Hence, this petition for review on the sole issue of whether
petitioners were illegally dismissed. 7
Petitioners assert that they were dismissed because the
private respondent refused to give them assignments unless
they agreed to work on a “pakyaw” basis when they reported
for duty on February 23, 1999. They did not agree on this
arrangement because it would mean losing benefits as Social
Security System (SSS) members. Petitioners also claim that
private respondent did not comply with the twin requirements
of notice and hearing. 8
Private respondent, on the other hand, maintained that
petitioners were not dismissed but had abandoned their
work. In fact, private respondent sent two letters to the last
9
known addresses of the petitioners advising them to report for
work. Private respondent’s manager even talked to petitioner
Virgilio Agabon by telephone sometime in June 1999 to tell
him about the new assignment at Pacific Plaza Towers
involving 40,000 square meters of cornice installation work.
However, petitioners did not report for work because they had
subcontracted to perform installation work for another
company. Petitioners also demanded for an increase in their
wage to P280.00 per day. When this was not granted,
petitioners stopped reporting for work and filed the illegal
dismissal case. 10
It is well-settled that findings of fact of quasi-judicial
agencies like the NLRC are accorded not only respect but even
finality if the findings are supported by substantial evidence.
This is especially so when such findings were affirmed by the
Court of Appeals. However, if the factual findings of the
11
NLRC and the Labor Arbiter are conflicting, as in this case,
the reviewing court may delve into the records and examine
for itself the questioned findings.12
Accordingly, the Court of Appeals, after a careful review of
the facts, ruled that petitioners’ dismissal was for a just cause.
They had abandoned their employment and were already
working for another employer.
To dismiss an employee, the law requires not only the
existence of a just and valid cause but also enjoins the
employer to give the employee the opportunity to be heard and
to defend himself. Article 282 of the Labor Code enumerates
13
the just causes for termination by the employer: (a) serious
misconduct or willful disobedience by the employee of the
lawful orders of his employer or the latter’s representative in
connection with the employee’s work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful
breach by the employee of the trust reposed in him by his
employer or his duly authorized representative; (d)
commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family
or his duly authorized representative; and (e) other causes
analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of
an employee to resume his employment. It is a form of neglect
14
of duty, hence, a just cause for termination of employment by
the employer. For a valid finding of abandonment, these two
15
factors should be present: (1) the failure to report for work or
absence without valid or justifiable reason; and (2) a clear
intention to sever employer-employee relationship, with the
second as the more determinative factor which is manifested
by overt acts from which it may be deduced that the employees
has no more intention to work. The intent to discontinue the
employment must be shown by clear proof that it was
deliberate and unjustified.16
In February 1999, petitioners were frequently absent
having subcontracted for an installation work for another
company. Subcontracting for another company clearly showed
the intention to sever the employer-employee relationship
with private respondent. This was not the first time they did
this. In January 1996, they did not report for work because
they were working for another company. Private respondent
at that time warned petitioners that they would be dismissed
if this happened again. Petitioners disregarded the warning
and exhibited a clear intention to sever their employer-
employee relationship. The record of an employee is a relevant
consideration in determining the penalty that should be
meted out to him. 17
In Sandoval Shipyard v. Clave, we held that an employee
18
who deliberately absented from work without leave or
permission from his employer, for the purpose of looking for a
job elsewhere, is considered to have abandoned his job. We
should apply that rule with more reason here where
petitioners were absent because they were already working in
another company.
The law imposes many obligations on the employer such as
providing just compensation to workers, observance of the
procedural requirements of notice and hearing in the
termination of employment. On the other hand, the law also
recognizes the right of the employer to expect from its workers
not only good performance, adequate work and diligence, but
also good conduct and loyalty. The employer may not be
19
compelled to continue to employ such persons whose
continuance in the service will patently be inimical to his
interests.20
After establishing that the terminations were for a just and
valid cause, we now determine if the procedures for dismissal
were observed.
The procedure for terminating an employee is found in
Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:
Standards of due process: requirements of notice.—In all cases of
termination of employment, the following standards of due process
shall be substantially observed:
1. I.For termination of employment based on just causes as
defined in Article 282 of the Code:
(a)A written notice served on the employee specifying the
ground or grounds for termination, and giving to said employee
reasonable opportunity within which to explain his side;
(b)A hearing or conference during which the employee
concerned, with the assistance of counsel if the employee so
desires, is given opportunity to respond to the charge,
present his evidence or rebut the evidence presented against
him; and
(c)A written notice of termination served on the employee
indicating that upon due consideration of all the
circumstances, grounds have been established to justify his
termination.
In case of termination, the foregoing notices shall be served on
the employee’s last known address.
Dismissals based on just causes contemplate acts or omissions
attributable to the employee while dismissals based on
authorized causes involve grounds under the Labor Code
which allow the employer to terminate employees. A
termination for an authorized cause requires payment of
separation pay. When the termination of employment is
declared illegal, reinstatement and full backwages are
mandated under Article 279. If reinstatement is no longer
possible where the dismissal was unjust, separation pay may
be granted.
Procedurally, (1) if the dismissal is based on a just cause
under Article 282, the employer must give the employee two
written notices and a hearing or opportunity to be heard if
requested by the employee before terminating the
employment: a notice specifying the grounds for which
dismissal is sought a hearing or an opportunity to be heard
and after hearing or opportunity to be heard, a notice of the
decision to dismiss; and (2) if the dismissal is based on
authorized causes under Articles 283 and 284, the employer
must give the employee and the Department of Labor and
Employment written notices 30 days prior to the effectivity of
his separation.
From the foregoing rules four possible situations may be
derived: (1) the dismissal is for a just cause under Article 282
of the Labor Code, for an authorized cause under Article 283,
or for health reasons under Article 284, and due process was
observed; (2) the dismissal is without just or authorized cause
but due process was observed; (3) the dismissal is without just
or authorized cause and there was no due process; and (4) the
dismissal is for just or authorized cause but due process was
not observed.
In the first situation, the dismissal is undoubtedly valid
and the employer will not suffer any liability.
In the second and third situations where the dismissals are
illegal, Article 279 mandates that the employee is entitled to
reinstatement without loss of seniority rights and other
privileges and full backwages, inclusive of allowances, and
other benefits or their monetary equivalent computed from
the time the compensation was not paid up to the time of
actual reinstatement.
 In the fourth situation, the dismissal should be upheld.
While the procedural infirmity cannot be cured, it should not
invalidate the dismissal. However, the employer should be
held liable for non-compliance with the procedural
requirements of due process.
The present case squarely falls under the fourth situation.
The dismissal should be upheld because it was established
that the petitioners abandoned their jobs to work for another
company. Private respondent, however, did not follow the
notice requirements and instead argued that sending notices
to the last known addresses would have been useless because
they did not reside there anymore. Unfortunately for the
private respondent, this is not a valid excuse because the law
mandates the twin notice requirements to the employee’s last
known address. Thus, it should be held liable for
21
noncompliance with the procedural requirements of due
process.
A review and re-examination of the relevant legal
principles is appropriate and timely to clarify the various
rulings on employment termination in the light of Serrano v.
National Labor Relations Commission. 22
Prior to 1989, the rule was that a dismissal or termination
is illegal if the employee was not given any notice. In the 1989
case of Wenphil Corp. v. National Labor Relations Commis-
sion, we reversed this long-standing rule and held that the
23
dismissed employee, although not given any notice and
hearing, was not entitled to reinstatement and backwages
because the dismissal was for grave misconduct and
insubordination, a just ground for termination under Article
282. The employee had a violent temper and caused trouble
during office hours, defying superiors who tried to pacify him.
We concluded that reinstating the employee and awarding
backwages “may encourage him to do even worse and will
render a mockery of the rules of discipline that employees are
required to observe.” We further held that:
24
Under the circumstances, the dismissal of the private respondent
for just cause should be maintained. He has no right to return to
his former employment.
However, the petitioner must nevertheless be held to account for
failure to extend to private respondent his right to an investigation
before causing his dismissal. The rule is explicit as above discussed.
The dismissal of an employee must be for just or authorized cause
and after due process. Petitioner committed an infraction of the
second requirement. Thus, it must be imposed a sanction for its
failure to give a formal notice and conduct an investigation as
required by law before dismissing petitioner from employment.
Considering the circumstances of this case petitioner must
indemnify the private respondent the amount of P1,000.00. The
measure of this award depends on the facts of each case and the
gravity of the omission committed by the employer. 25
The rule thus evolved: where the employer had a valid reason
to dismiss an employee but did not follow the due process
requirement, the dismissal may be upheld but the employer
will be penalized to pay an indemnity to the employee. This
became known as the Wenphil or Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of
the sanction was changed. We held that the violation by the
employer of the notice requirement in termination for just or
authorized causes was not a denial of due process that will
nullify the termination. However, the dismissal is ineffectual
and the employer must pay full backwages from the time of
termination until it is judicially declared that the dismissal
was for a just or authorized cause.
The rationale for the re-examination of
the Wenphil doctrine in Serrano was the significant number
of cases involving dismissals without requisite notices. We
concluded that the imposition of penalty by way of damages
for violation of the notice requirement was not serving as a
deterrent. Hence, we now required payment of full backwages
from the time of dismissal until the time the Court finds the
dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to
“dismiss now and pay later” by imposing full backwages.
 We believe, however, that the ruling in Serrano did not
consider the full meaning of Article 279 of the Labor Code
which states:
ART. 279. Security of Tenure.—In cases of regular employment, the
employer shall not terminate the services of an employee except for
a just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement.
This means that the termination is illegal only if it is not for
any of the justified or authorized causes provided by law.
Payment of backwages and other benefits, including
reinstatement, is justified only if the employee was unjustly
dismissed.
The fact that the Serrano ruling can cause unfairness and
injustice which elicited strong dissent has prompted us to
revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1
of the Constitution embodies a system of rights based on
moral principles so deeply imbedded in the traditions and
feelings of our people as to be deemed fundamental to a
civilized society as conceived by our entire history. Due
process is that which comports with the deepest notions of
what is fair and right and just. It is a constitutional restraint
26
on the legislative as well as on the executive and judicial
powers of the government provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional due
process, has two aspects: substantive, i.e., the valid and
authorized causes of employment termination under the
Labor Code; and procedural, i.e., the manner of dismissal.
Procedural due process requirements for dismissal are found
in the Implementing Rules of P.D. 442, as amended, otherwise
known as the Labor Code of the Philippines in Book VI, Rule
I, Sec. 2, as amended by Department Order Nos. 9 and
10. Breaches of these due process requirements violate the
27
Labor Code. Therefore statutory due process should be
differentiated from failure to comply with constitutional due
process.
Constitutional due process protects the individual from the
government and assures him of his rights in criminal, civil or
administrative proceedings; while statutory due process found
in the Labor Code and Implementing Rules protects
employees from being unjustly terminated without just cause
after notice and hearing.
In Sebuguero v. National Labor Relations
Commission, the dismissal was for a just and valid cause but
28
the employee was not accorded due process. The dismissal was
upheld by the Court but the employer was sanctioned. The
sanction should be in the nature of indemnification or penalty,
and depends on the facts of each case and the gravity of the
omission committed by the employer.
In Nath v. National Labor Relations Commission, it was 29
ruled that even if the employee was not given due process, the
failure did not operate to eradicate the just causes for
dismissal. The dismissal being for just cause, albeit without
due process, did not entitle the employee to reinstatement,
backwages, damages and attorney’s fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG
Marine Services, Inc. v. National Labor Relations
Commission, which opinion he reiterated in Serrano, stated:
30
C. Where there is just cause for dismissal but due process has not
been properly observed by an employer, it would not be right to
order either the reinstatement of the dismissed employee or the
payment of backwages to him. In failing, however, to comply with
the procedure prescribed by law in terminating the services of the
employee, the employer must be deemed to have opted or, in any
case, should be made liable, for the payment of separation pay. It
might be pointed out that the notice to be given and the hearing to
be conducted generally constitute the two-part due process
requirement of law to be accorded to the employee by the employer.
Nevertheless, peculiar circumstances might obtain in certain
situations where to undertake the above steps would be no more
than a useless formality and where, accordingly, it would not be
imprudent to apply the res ipsa loquitur rule and award, in lieu of
separation pay, nominal damages to the employee. x x x. 31
After carefully analyzing the consequences of the divergent
doctrines in the law on employment termination, we believe
that in cases involving dismissals for cause but without
observance of the twin requirements of notice and hearing,
the better rule is to abandon the Serrano doctrine and to
follow Wenphil by holding that the dismissal was for just
cause but imposing sanctions on the employer. Such
sanctions, however, must be stiffer than that imposed
in Wenphil. By doing so, this Court would be able to achieve a
fair result by dispensing justice not just to employees, but to
employers as well.
The unfairness of declaring illegal or ineffectual dismissals
for valid or authorized causes but not complying with
statutory due process may have far-reaching consequences.
This would encourage frivolous suits, where even the most
notorious violators of company policy are rewarded by
invoking due process. This also creates absurd situations
where there is a just or authorized cause for dismissal but a
procedural infirmity invalidates the termination. Let us take
for example a case where the employee is caught stealing or
threatens the lives of his co-employees or has become a
criminal, who has fled and cannot be found, or where serious
business losses demand that operations be ceased in less than
a month. Invalidating the dismissal would not serve public
interest. It could also discourage investments that can
generate employment in the local economy.
The constitutional policy to provide full protection to labor
is not meant to be a sword to oppress employers. The
commitment of this Court to the cause of labor does not
prevent us from sustaining the employer when it is in the
right, as in this case. Certainly, an employer should not be
32
compelled to pay employees for work not actually performed
and in fact abandoned.
The employer should not be compelled to continue
employing a person who is admittedly guilty of misfeasance or
malfeasance and whose continued employment is patently
inimical to the employer. The law protecting the rights of the
laborer authorizes neither oppression nor self-destruction of
the employer. 33
It must be stressed that in the present case, the petitioners
committed a grave offense, i.e., abandonment, which, if the
requirements of due process were complied with, would
undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of
Article 282 should not be protected by the Social Justice
Clause of the Constitution. Social justice, as the term
suggests, should be used only to correct an injustice. As the
eminent Justice Jose P. Laurel observed, social justice must
be founded on the recognition of the necessity of
interdependence among diverse units of a society and of the
protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of
the state of promoting the health, comfort, and quiet of all
persons, and of bringing about “the greatest good to the
greatest number.” 34
This is not to say that the Court was wrong when it ruled
the way it did in Wenphil, Serrano and related cases. Social
justice is not based on rigid formulas set in stone. It has to
allow for changing times and circumstances.
Justice Isagani Cruz strongly asserts the need to apply a
balanced approach to labor-management relations and
dispense justice with an even hand in every case:
We have repeatedly stressed that social justice—or any justice for
that matter—is for the deserving, whether he be a millionaire in his
mansion or a pauper in his hovel. It is true that, in case of
reasonable doubt, we are to tilt the balance in favor of the poor to
whom the Constitution fittingly extends its sympathy and
compassion. But never is it justified to give preference to the poor
simply because they are poor, or reject the rich simply because they
are rich, for
_______________
33 Filipro, Inc. v. National Labor Relations Commission, G.R. No. L-
70546, 16 October 1986, 145 SCRA 123.
34 Calalang v. Williams, 70 Phil. 726, 735 (1940).
616
616 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
justice must always be served for the poor and the rich alike,
according to the mandate of the law. 35
Justice in every case should only be for the deserving party. It
should not be presumed that every case of illegal dismissal
would automatically be decided in favor of labor, as
management has rights that should be fully respected and
enforced by this Court. As interdependent and indispensable
partners in nation-building, labor and management need each
other to foster productivity and economic growth; hence, the
need to weigh and balance the rights and welfare of both the
employee and employer.
Where the dismissal is for a just cause, as in the instant
case, the lack of statutory due process should not nullify the
dismissal, or render it illegal, or ineffectual. However, the
employer should indemnify the employee for the violation of
his statutory rights, as ruled in Reta v. National Labor
Relations Commission. The indemnity to be imposed should
36
be stiffer to discourage the abhorrent practice of “dismiss now,
pay later,” which we sought to deter in the Serrano ruling.
The sanction should be in the nature of indemnification or
penalty and should depend on the facts of each case, taking
into special consideration the gravity of the due process
violation of the employer.
Under the Civil Code, nominal damages is adjudicated in
order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any
loss suffered by him. 37
_______________
35 Gelos v. Court of Appeals, G.R. No. 86186, 8 May 1992, 208 SCRA 608,
616.
G.R. No. 112100, 27 May 1994, 232 SCRA 613, 618.
36
Art. 2221, Civil Code.
37
617
VOL. 442, NOVEMBER 17, 2004 617
Agabon vs. National Labor Relations Commission
As enunciated by this Court in Viernes v. National Labor
Relations Commission, an employer is liable to pay
38
indemnity in the form of nominal damages to an employee
who has been dismissed if, in effecting such dismissal, the
employer fails to comply with the requirements of due process.
The Court, after considering the circumstances therein, fixed
the indemnity at P2,590.50, which was equivalent to the
employee’s one month salary. This indemnity is intended not
to penalize the employer but to vindicate or recognize the
employee’s right to statutory due process which was violated
by the employer. 39
The violation of the petitioners’ right to statutory due
process by the private respondent warrants the payment of
indemnity in the form of nominal damages. The amount of
such damages is addressed to the sound discretion of the
court, taking into account the relevant
circumstances. Considering the prevailing circumstances in
40
the case at bar, we deem it proper to fix it at P30,000.00. We
believe this form of damages would serve to deter employers
from future violations of the statutory due process rights of
employees. At the very least, it provides a vindication or
recognition of this fundamental right granted to the latter
under the Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in
holding that it failed to pay petitioners’ holiday pay, service
incentive leave pay and 13th month pay.
We are not persuaded.
We affirm the ruling of the appellate court on petitioners’
money claims. Private respondent is liable for petitioners’
holiday pay, service incentive leave pay and 13th month pay
without deductions.
As a general rule, one who pleads payment has the burden
of proving it. Even where the employee must allege non-
payment, the general rule is that the burden rests on the
employer to prove payment, rather than on the employee to
prove non-payment. The reason for the rule is that the
pertinent personnel files, payrolls, records, remittances and
other similar documents—which will show that overtime,
differentials, service incentive leave and other claims of
workers have been paid—are not in the possession of the
worker but in the custody and absolute control of the
employer. 41
In the case at bar, if private respondent indeed paid
petitioners’ holiday pay and service incentive leave pay, it
could have easily presented documentary proofs of such
monetary benefits to disprove the claims of the petitioners.
But it did not, except with respect to the 13th month pay
wherein it presented cash vouchers showing payments of the
benefit in the years disputed. Allegations by private
42
respondent that it does not operate during holidays and that
it allows its employees 10 days leave with pay, other than
being self-serving, do not constitute proof of payment.
Consequently, it failed to discharge the onus
probandi thereby making it liable for such claims to the
petitioners.
Anent the deduction of SSS loan and the value of the shoes
from petitioner Virgilio Agabon’s 13th month pay, we find the
same to be unauthorized. The evident intention of
Presidential Decree No. 851 is to grant an additional
income in the form of the 13th month pay to employees not
already receiving the same so as “to further protect the level
43
of real wages from the ravages of world-wide
inflation.” Clearly, as additional income, the 13th month pay
44
is included in the definition of wage under Article 97(f) of the
Labor Code, to wit:
(f) “Wage” paid to any employee shall mean the remuneration or
earnings, however designated, capable of being expressed in terms
of money whether fixed or ascertained on a time, task, piece, or
commission basis, or other method of calculating the same, which
is payable by an employer to an employee under a written or
unwritten contract of employment for work done or to be done, or
for services rendered or to be rendered and includes the fair and
reasonable value, as determined by the Secretary of Labor, of board,
lodging, or other facilities customarily furnished by the employer to
the employee . . .”
from which an employer is prohibited under Article 113 of 45
the same Code from making any deductions without the
employee’s knowledge and consent. In the instant case,
private
_______________
43 UST Faculty Union v. National Labor Relations Commission, G.R. No.
90445, 2 October 1990, 190 SCRA 215.
44 “Whereas” clauses, P.D. No. 851.
45 “Art. 113. Wage deduction.—No employer, in his own behalf or in behalf
of any person, shall make any deduction from the wages of his employees
except:
1. (a)In cases where the worker is insured with his consent by the
employer, and the deduction is to recompense the employer for the
amount paid by him as premium on the insurance;
2. (b)For union dues, in cases where the right of the worker or his union
to check off has been recognized by the employer or authorized in
writing by the individual worker concerned; and
3. (c)In cases where the employer is authorized by law or regulations
issued by the Secretary of Labor and Employment.
620
620 SUPREME COURT REPORTS ANNOTATED
Agabon vs. National Labor Relations Commission
respondent failed to show that the deduction of the SSS
loanand the value of the shoes from petitioner Virgilio
Agabon’s13th month pay was authorized by the latter. The
lack ofauthority to deduct is further bolstered by the fact that
petitioner Virgilio Agabon included the same as one of his The offer to re-employ an employee could not have the
moneyclaims against private respondent. effect of validating an otherwise arbitrary dismissal. (Hantex
The Court of Appeals properly reinstated the monetary claims Trading Co., Inc. vs. Court of Appeals, 390 SCRA 181 [2002])
awarded by the Labor Arbiter ordering the private respondent
to pay each of the petitioners holiday pay for four regular ——o0o——
holidays from 1996 to 1998, in the amount of P6,520.00,
service incentive leave pay for the same period in the amount
of P3,255.00 and the balance of Virgilio Agabon’s thirteenth
month pay for 1998 in the amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is
DENIED. The decision of the Court of Appeals dated January
23, 2003, in CA-G.R. SP No. 63017, finding that petitioners
Jenny and Virgilio Agabon abandoned their work, and
ordering private respondent to pay each of the petitioners
holiday pay for four regular holidays from 1996 to 1998, in the
amount of P6,520.00, service incentive leave pay for the same
period in the amount of P3,255.00 and the balance of Virgilio
Agabon’s thirteenth month pay for 1998 in the amount of
P2,150.00 is AFFIRMED with the MODIFICATION that
private respondent Riviera Home Improvements, Inc. is
further ORDERED to pay each of the petitioners the amount
of P30,000.00 as nominal damages for non-compliance with
statutory due process.
No costs.
SO ORDERED.

Notes.—Separation pay is allowed as a measure of social

justice only in those instances where the employee is validly
dismissed for causes other than serious misconduct or those
reflecting on his moral character. (Salavarria vs. Letran
College, 296 SCRA 184 [1998])
While the right of an employer to terminate the services of
an employee for a just or authorized cause is recognized,
nevertheless, the dismissal of employees must be made within
the parameters of law and pursuant to the tenets of equity
and fair play. (Colegio de San Juan de Letran vs. Association
of Employees and Faculty of Letran, 340 SCRA 587 [2000])

G.R. No. 178552. October 5, 2010.*
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK,
INC., on behalf of the South-South Network (SSN) for Non-
State Armed Group Engagement, and ATTY. SOLIMAN M.
SANTOS, JR., petitioners, vs. ANTI-TERRORISM
COUNCIL, THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE,
THE NATIONAL SECURITY ADVISER, THE CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES,
AND THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, respondents.
G.R. No. 178554. October 5, 2010.*
KILUSANG MAYO UNO (KMU), represented by its
Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
represented by its National President Joselito V. Ustarez and
Sec-
_______________
* EN BANC.
147
VOL. 632, OCTOBER 5, 2010 147
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
retary General Antonio C. Pascual, and CENTER FOR
TRADE UNION AND HUMAN RIGHTS, represented by its
Executive Director Daisy Arago, petitioners, vs. HON.
EDUARDO ERMITA, in his capacity as Executive Secretary,
NORBERTO GONZALES, in his capacity as Acting Secretary
of National Defense, HON. RAUL GONZALES, in his capacity
as Secretary of Justice, HON. RONALDO PUNO, in his
capacity as Secretary of the Interior and Local Government,
GEN. HERMOGENES ESPERON, in his capacity as AFP
Chief of Staff, and DIRECTOR GENERAL OSCAR CAL-
DERON, in his capacity as PNP Chief of Staff, respondents.
G.R. No. 178581. October 5, 2010.*
BAGONG ALYANSANG MAKABAYAN (BAYAN),
GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION
(GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY
OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS
NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT),
MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR.
BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR.,
SISTER MARY JOHN MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA,
DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES,
DANILO RAMOS, EMERENCIANA DE LESUS, RITA
BAUA, REY CLARO CASAMBRE, petitioners, vs. GLORIA
MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-
148
148 SUPREME COURT REPORTS ANNOTATED
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, 149
DEPARTMENT OF JUSTICE SECRETARY RAUL VOL. 632, OCTOBER 5, 2010 149
GONZALES, DEPARTMENT OF FOREIGN AFFAIRS Southern Hemisphere Engagement Network, Inc. vs. Anti-
SECRETARY ALBERTO ROMULO, DEPARTMENT OF Terrorism Council
NATIONAL DEFENSE ACTING SECRETARY NORBERTO TIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL OF JUSTICE SECRETARY RAUL GONZALEZ,
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
DEPARTMENT OF FINANCE SECRETARY MARGARITO ALBERTO ROMULO, DEPARTMENT OF NATIONAL
TEVES, NATIONAL SECURITY ADVISER NORBERTO DEFENSE ACTING SECRETARY NORBERTO GONZALES,
GONZALES, THE NATIONAL INTELLIGENCE DEPARTMENT OF INTERIOR AND LOCAL
COORDINATING AGENCY (NICA), THE NATIONAL GOVERNMENT SECRETARY RONALDO PUNO,
BUREAU OF INVESTIGATION (NBI), THE BUREAU OF DEPARTMENT OF FINANCE SECRETARY MARGARITO
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE TEVES, NATIONAL SECURITY ADVISER NORBERTO
INTELLIGENCE SERVICE OF THE ARMED FORCES OF GONZALES, THE NATIONAL INTELLIGENCE
THE PHILIPPINES (ISAFP), THE ANTI-MONEY COORDINATING AGENCY (NICA), THE NATIONAL
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
CENTER ON TRANSNATIONAL CRIME, IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE INTELLIGENCE SERVICE OF THE ARMED FORCES OF
GEN. OSCAR CALDERON, THE PNP, including its THE PHILIPPINES (ISAFP), THE ANTI-MONEY
intelligence and investigative elements, AFP CHIEF GEN. LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
HERMOGENES ESPERON, respondents. CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF
G.R. No. 178890. October 5, 2010.* THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF CALDERON, THE PNP, including its intelligence and
PEOPLE’S RIGHTS, represented herein by Dr. Edelina de la investigative elements, AFP CHIEF GEN. HERMOGENES
Paz, and representing the following organizations: ESPERON, respondents.
HUSTISYA, represented by Evangeline Hernandez and also G.R. No. 179157. October 5, 2010.*
on her own behalf; DESAPARECIDOS, represented by Mary THE INTEGRATED BAR OF THE PHILIPPINES (IBP),
Guy Portajada and also on her own behalf, SAMAHAN NG represented by Atty. Feliciano M. Bautista, COUNSELS FOR
MGA EX-DETAINEES LABAN SA DETENSYON AT PARA THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA
SA AMNESTIYA (SELDA), represented by Donato CONSUELO A.S. MADRIGAL and FORMER SENATORS
Continente and also on his own behalf, ECUMENICAL SERGIO OSMEÑA III and WIGBERTO E. TAÑADA,
MOVEMENT FOR JUSTICE AND PEACE (EMJP), petitioners, vs. EXECUTIVE SECRETARY EDUARDO
represented by Bishop Elmer M. Bolocon, UCCP, and ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM
PROMOTION OF CHURCH PEOPLE’S RESPONSE, COUNCIL (ATC), respondents.
represented by Fr. Gilbert Sabado, OCARM, G.R. No. 179461. October 5, 2010.*
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her BAGONG ALYANSANG MAKABAYAN-SOUTHERN
capacity as President and Commander-in-Chief, EXECU- TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG MAGSASAKA-TIMOG GONZALES, THE NATIONAL INTELLIGENCE
KATAGALUGAN (KASAMA-TK), MOVEMENT OF COORDINATING AGENCY (NICA), THE NATIONAL
CONCERNED CITIZENS BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
150 IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
150 SUPREME COURT REPORTS ANNOTATED INTELLIGENCE SERVICE OF THE ARMED FORCES OF
Southern Hemisphere Engagement Network, Inc. vs. Anti- THE PHILIPPINES (ISAFP), THE ANTI-MONEY
Terrorism Council LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF
ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
FOR UNITY, RECOGNITION AND ADVANCEMENT OF 151
GOVERNMENT EMPLOYEES (COURAGE-ST), VOL. 632, OCTOBER 5, 2010 151
PAGKAKAISA’T UGNAYAN NG MGA MAGBUBUKID SA Southern Hemisphere Engagement Network, Inc. vs. Anti-
LAGUNA (PUMALAG), SAMAHAN NG MGA Terrorism Council
MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE CALDERON, THE PNP, including its intelligence and
OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, investigative elements, AFP CHIEF GEN. HERMOGENES
KONGRESO NG MGA MAGBUBUKID PARA SA ESPERON, respondents.
REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS Certiorari; Certiorari does not lie against respondents who do
NG MGA KATUTUBO SA TIMOG KATAGALUGAN not exercise judicial or quasi-judicial functions.—
(BALATIK), SAMAHAN AT UGNAYAN NG MGA Preliminarily, certiorari does not lie against respondents who do
MAGSASAKANG KABABAIHAN SA TIMOG not exercise judicial or quasi-judicial functions. Section 1, Rule 65
of the Rules of Court is clear: “Section 1. Petition for certiorari.—
KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS
When any tribunal, board or officer exercising judicial or quasi-
RURAL POOR ORGANIZATION FOR PROGRESS &
judicial functions has acted without or in excess of its or his
EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO jurisdiction, or with grave abuse of discretion amounting to
REYES, FRANCESCA B. TOLENTINO, JANNETTE E. lack or excess of jurisdiction, and there is no appeal, nor any
BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE plain, speedy, and adequate remedy in the ordinary course of law,
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, a person aggrieved thereby may file a verified petition in the proper
petitioners, vs.GLORIA MACAPAGAL-ARROYO, in her court, alleging the facts with certainty and praying that judgment
capacity as President and Commander-in-Chief, be rendered annulling or modifying the proceedings of such
EXECUTIVE SECRETARY EDUARDO ERMITA, tribunal, board or officer, and granting such incidental reliefs as
DEPARTMENT OF JUSTICE SECRETARY RAUL law and justice may require.” (Emphasis and underscoring
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS supplied) Parenthetically, petitioners do not even allege with any
modicum of particularity how respondents acted without or in
SECRETARY ALBERTO ROMULO, DEPARTMENT OF
excess of their respective jurisdictions, or with grave abuse of
NATIONAL DEFENSE ACTING SECRETARY NORBERTO
discretion amounting to lack or excess of jurisdiction.
GONZALES, DEPARTMENT OF INTERIOR AND LOCAL Judicial Review; Requisites.—In constitutional litigations, the
GOVERNMENT SECRETARY RONALDO PUNO, power of judicial review is limited by four exacting
DEPARTMENT OF FINANCE SECRETARY MARGARITO requisites, viz.: (a) there must be an actual case or controversy; (b)
TEVES, NATIONAL SECURITY ADVISER NORBERTO petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.
Same; Locus Standi; Requisites; Words and Phrases; Locus
standi or legal standing has been defined as a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is
being challenged; A party who assails the constitutionality of a
statute must have a direct and personal interest—it must show not
only that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way.—Locus standi or legal standing requires a
personal stake
152
152 SUPREME COURT REPORTS
ANNOTATED
Southern Hemisphere Engagement Network, Inc. vs.
Anti-Terrorism Council
in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
constitutional questions. Anak Mindanao Party-List Group v. The
Executive Secretary, 531 SCRA 583 (2007), summarized the rule
on locus standi, thus: “Locus standi or legal standing has been
defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional
questions. [A] party who assails the constitutionality of a statute
must have a direct and personal interest. It must show not only
that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely
that it suffers thereby in some indefinite way. It must show that it
has been or is about to be denied some right or privilege to which it
is lawfully entitled or that it is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injuryas a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a
favorable action.”
Same; Same; While transcendental public importance
dispenses with the requirement that petitioner has experienced or is
in actual danger of suffering direct and personal injury, cases
involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation—compelling
State and societal interests in the proscription of harmful conduct
necessitate a closer judicial scrutiny of locus standi.—While Chavez
v. Presidential Commission on Good Government (PCGG), 299
SCRA 744 (1998), holds that transcendental public importance
dispenses with the requirement that petitioner has experienced or
is in actual danger of suffering direct and personal injury, cases
involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling
State and societal interests in the proscription of harmful conduct,
as will later be elucidated, necessitate a closer judicial scrutiny
of locus standi.
Same; Same; Human Security Act of 2007 (Republic Act No.
9372); Judicial Notice; A court cannot take judicial notice of any fact
which, in part, is dependent on the existence or non-existence of a
fact of which the court has no constructive knowledge; The Court
cannot take judicial notice of the alleged “tagging” of petitioners as
militant organizations fronting for the Communist Party of the
Philippines and its armed wing, the National People’s Army.—
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY,
SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HE
AD and Agham, petitioner-organizations in G.R. No. 178581,
would like the Court to take judicial notice of
respondents’ allegedaction of tagging them as militant
organizations fronting for the Communist Party of the Philippines
(CPP) and its armed wing, the National People’s Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of
proscription without following the procedure under the law. The
petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations. The Court cannot take judicial notice of the alleged
“tagging” of petitioners. “Generally speaking, matters of judicial
notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety.
Hence, it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally knownwithin the
territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources
whose accuracy cannot reasonably be questionable. Things of
“common knowledge,” of which courts take judicial matters coming
to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of every person.
As the common knowledge of man ranges far and wide, a wide
variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has
no constructive knowledge.” (emphasis and underscoring
supplied.)
Same; Same; Same; While in our jurisdiction there is still no
judicially declared terrorist organization, the United States of
America (US) and the European Union (EU) have both classified the
Communist Party of the Philippines (CPP), National People’s Army
(NPA) and Abu Sayyaf Group as foreign terrorist organizations;
There is yet to be filed before the courts an application to declare the
Communist Party of the Philippines (CPP) and National People’s
Army (NPA) organizations as domestic terrorist or outlawed
organizations under Republic Act (RA) No. 9372.—While in our
jurisdiction there is still no judicially declared terrorist
organization, the United States of America (US) and the European
Union (EU) have both classified the CPP, NPA and Abu
Sayyaf Group as foreign terrorist organizations. The Court takes
note of the joint statement of Executive Secretary Eduardo Ermita
and Justice Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU classification of the
CPP and NPA as terrorist organizations. Such statement
notwithstanding,there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as
domestic terrorist or outlawed organizations under RA
9372. Again, RA 9372 has been in effect for three years now. From
July 2007 up to the present, petitioner-organizations have
conducted their activities fully and freely without any threat of,
much less an actual, prosecution or proscription under RA 9372.
Same; Same; Same; The mere invocation of the duty to preserve
the rule of law does not suffice to clothe the Integrated Bar of the
Philippines (IBP) or any of its members with standing.—
Petitioners IBP and CODALin G.R. No. 179157 base their claim
of locus standi on their sworn duty to uphold the Constitution. The
IBP zeroes in on Section 21 of RA 9372 directing it to render
assistance to those arrested or detained under the law. The mere
invocation of the duty to preserve the rule of law does not, however,
suffice to clothe the IBP or any of its members with standing. The
IBP failed to sufficiently demonstrate how its mandate under the
assailed statute revolts against its constitutional rights and duties.
Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Same; Same; Same; Mere invocation of human rights advocacy
has nowhere been held sufficient to clothe litigants with locus standi.
—Petitioners Southern Hemisphere Engagement
Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental
importance, “which must be settled early” and are of “far-reaching
implications,” without mention of any specific provision of RA 9372
under which they have been charged, or may be charged. Mere
invocation of human rights advocacy has nowhere been held
sufficient to clothe litigants with locus standi. Petitioners must
show an actual, or immediate danger of sustaining, direct injury as
a result of the law’s enforcement. To rule otherwise would be to
corrupt the settled doctrine of locus standi, as every worthy cause
is an interest shared by the general public.
Same; Same; Same; A taxpayer suit is proper only when there
is an exercise of the spending or taxing power of Congress, whereas
citizen standing must rest on direct and personal interest in the
proceeding; Republic Act (RA) No. 9372 is a penal statute and does
not even provide for any appropriation from Congress for its
implementation.—Neither can locus standi be conferred upon
individual petitioners as taxpayers and citizens. A taxpayer suit is
proper only when there is an exercise of the spending or taxing
power of Congress, whereas citizen standing must rest on direct and
personal interest in the proceeding. RA 9372 is a penal statute and
does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens
has alleged any direct and personal interest in the implementation
of the law.
Same; Same; Generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus standi.—It bears
to stress that generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus standi. Evidence
of a direct and personal interest is key.
Same; Actual Case or Controversy; By constitutional fiat,
judicial power operates only when there is an actual case or
controversy; An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.—By constitutional fiat, judicial
power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law. Judicial
power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government. (emphasis and underscoring supplied.) As early
as Angara v. Electoral Commission, 63 Phil. 139 (1936), the Court
ruled that the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by
the parties. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities. An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.
Same; Same; While a reasonable certainty of the occurrence of
a perceived threat to any constitutional interest may suffice to
provide a basis for mounting a constitutional challenge, this is
qualified by the requirement that there must be sufficient facts to
enable the Court to intelligently adjudicate the issues.—The Court
is not unaware that a reasonable certainty of the occurrence of
a perceived threat to any constitutional interest suffices to provide
a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to
enable the Court to intelligently adjudicate the issues.
Same; Same; Legal Research; Prevailing American
jurisprudence allows an adjudication on the merits when an
anticipatory petition clearly shows that the challenged prohibition
forbids the conduct or activity that a petitioner seeks to do, as there
would then be a justiciable controversy; Petitioners’ obscure
allegations of sporadic “surveillance” and supposedly being tagged
as “communist fronts” in no way approximate a credible threat of
prosecution.—Very recently, the US Supreme Court, in Holder v.
Humanitarian Law Project, 561 U.S. [unpaginated] (2010), allowed
the pre-enforcement reviewof a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a “credible threat of
prosecution” and “should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.” The
plaintiffs therein filed an action before a federal court to assail the
constitutionality of the material support statute, 18 U.S.C. §2339B
(a) (1), proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist
organizations. They claimed that they intended to provide support
for the humanitarian and political activities of two such
organizations. Prevailing American jurisprudence allows an
adjudication on the merits when an anticipatory petition clearly
shows that the challenged prohibition forbids the conduct
or activity that a petitioner seeks to do, as there would then
be a justiciable controversy. Unlike the plaintiffs in Holder,
however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct
or activity that they seek to do. No demonstrable threat has been
established, much less a real and existing one. Petitioners’
obscure allegations of sporadic “surveillance” and
supposedly being tagged as “communist fronts” in no way
approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion,
which is not its function.
Same; Same; Declaratory Relief; Jurisdiction; Without any
justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Supreme Court has no original
jurisdiction.—Without any justiciable controversy, the petitions
have become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions
characterized by “double contingency,” where both the activity the
petitioners intend to undertake and the anticipated reaction to it of
a public official are merely theorized, lie beyond judicial review
for lack of ripeness.
Same; Same; Allegations of abuse must be anchored on real
events before courts may step in to settle actual controversies
involving rights which are legally demandable and enforceable.—
The possibility of abuse in the implementation of RA 9372 does not
avail to take the present petitions out of the realm of the surreal
and merely imagined. Such possibility is not peculiar to RA 9372
since the exercise of any power granted by law may be abused.
Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights
which are legally demandable and enforceable.
Void for Vagueness Doctrine; Facial Challenges; Criminal Law;
Words and Phrases; The doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane; A statute or act suffers
from the defect of vagueness when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its
meaning and differ as to its application; The overbreadth doctrine
decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.—The confusion apparently stems from
the interlocking relation of the overbreadth and vaguenessdoctrines
as grounds for a facial or as-applied challenge against a penal
statute (under a claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the freedom of speech
and cognate rights). To be sure, the doctrine of vagueness and the
doctrine of overbreadth do not operate on the same plane. A statute
or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It
is repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.
The overbreadth doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms. As distinguished from the vagueness doctrine, the
overbreadth doctrine assumes that individuals will understand
what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected.
Same; Same; Same; Same; Distinguished from an as-applied
challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, pinpointing
its flaws and defects, not only on the basis of its actual operation to
the parties, but also on the assumption or prediction that its very
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existence may cause others not before the court to refrain from
constitutionally protected speech or activities; A litigant cannot
successfully mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.—A “facial” challenge is
likewise different from an “as-applied” challenge. Distinguished
from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others
not before the court to refrain from constitutionally protected
speech or activities. Justice Mendoza accurately phrased the
subtitle in his concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.
Same; Same; Freedom of Expression; The allowance of a facial
challenge in free speech cases is justified by the aim to avert the
“chilling effect” on protected speech, the exercise of which should not
at all times be abridged.—The allowance of a facial challenge in free
speech cases is justified by the aim to avert the “chilling effect” on
protected speech, the exercise of which should not at all times be
abridged. As reflected earlier, this rationale is inapplicable to plain
penal statutes that generally bear an “in terrorem effect” in
deterring socially harmful conduct. In fact, the legislature may even
forbid and penalize acts formerly considered innocent and lawful,
so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.
Same; Same; Same; By its nature, the overbreadth doctrine has
to necessarily apply a facial type of invalidation in order to plot
areas of protected speech, inevitably almost always under situations
not before the court, that are impermissibly swept by the
substantially overbroad regulation.—It is settled, on the other
hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech
cases. By its nature, the overbreadth doctrine has to necessarily
apply a facial type of invalidation in order to plot areas of protected
speech, inevitably almost always under situations not before the
court, that are
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impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed
for being substantially overbroad if the court confines itself only to
facts as applied to the litigants.
Same; Same; Same; Legal Research; American jurisprudence
instructs that “vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case
at hand and not with regard to the statute’s facial validity”; In this
jurisdiction, the void-for-vagueness doctrine asserted under the due
process clause has been utilized in examining the constitutionality
of criminal statutes.—American jurisprudence instructs that
“vagueness challenges that do not involve the First Amendment
must be examined in light of the specific facts of the case at hand
and not with regard to the statute’s facial validity.” For more than
125 years, the US Supreme Court has evaluated defendants’ claims
that criminal statutes are unconstitutionally vague, developing a
doctrine hailed as “among the most important guarantees of liberty
under law.” In this jurisdiction, the void-for-vagueness doctrine
asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least
three cases, the Court brought the doctrine into play in analyzing
an ordinance penalizing the non-payment of municipal tax on
fishponds, the crime of illegal recruitment punishable under Article
132(b) of the Labor Code, and the vagrancy provision under Article
202 (2) of the Revised Penal Code. Notably, the petitioners in these
three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with
the therein assailed penal statute, unlike in the present case.
Same; Same; Same; Human Security Act of 2007 (Republic Act
(R.A.) No. 9372); Terrorism; What Republic Act (R.A.) No. 9372
seeks to penalize is conduct, not speech; Before a charge for terrorism
may be filed under RA 9372, there must first be a predicate crime
actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of
the government to accede to an “unlawful demand,” thus, given the
presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition
cannot recategorize the unprotected conduct into a protected
speech.—From the definition of the crime of terrorism in the earlier
cited Section 3 of RA 9372, the following elements may be culled:
(1) the offender commits an act
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punishable under any of the cited provisions of the Revised
Penal Code, or under any of the enumerated special penal laws; (2)
the commission of the predicate crime sows and creates a condition
of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand. In insisting on
a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of “unlawful demand” in the
definition of terrorism must necessarily be transmitted through
some form of expression protected by the free speech clause. The
argument does not persuade. What the law seeks to penalize
is conduct, not speech. Before a charge for terrorism may be filed
under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in
the other elements of the crime, including the coercion of the
government to accede to an “unlawful demand.” Given the presence
of the first element, any attempt at singling out or highlighting the
communicative component of the prohibition cannot recategorize
the unprotected conduct into a protected speech.
Same; Same; Same; Same; Almost every commission of a crime
entails some mincing of words on the part of the offender like in
declaring to launch overt criminal acts against a victim, in haggling
on the amount of ransom or conditions, or in negotiating a deceitful
transaction; Utterances not elemental but inevitably incidental to
the doing of the criminal conduct alter neither the intent of the law
to punish socially harmful conduct nor the essence of the whole act
as conduct and not speech.—Petitioners’ notion on the transmission
of message is entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every commission of a
crime entails some mincing of words on the part of the offender like
in declaring to launch overt criminal acts against a victim, in
haggling on the amount of ransom or conditions, or in negotiating a
deceitful transaction. An analogy in one U.S. case illustrated that
the fact that the prohibition on discrimination in hiring on the basis
of race will require an employer to take down a sign reading “White
Applicants Only” hardly means that the law should be analyzed as
one regulating speech rather than conduct. Utterances not
elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and
not speech. This holds
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true a fortiori in the present case where the expression figures
only as an inevitable incident of making the element of coercion
perceptible.
PETITIONS Challenging the Constitutionality of R.A. No.
9372 “An Act to Secure the State and Protect Our People
from Terrorism,” Otherwise Known as the Human Security
Act of 2007.
The facts are stated in the opinion of the Court.
Soliman M. Santos and Vicente Dante P. Adan for
petitioners in G.R. No. 178552.
Remegio D. Saladero, Jr. and Nenita C. Mahinay for
Kilusang Mayo Uno, etc., et al.
Edre U. Olalia for Bagong Alyansang Makabayan
(Bayan).
Rex J.M.A. Fernandez and Alfonso Cinco IV for
petitioners in G.R. No. 178890.
Pacifico Agabin, Rodolfo Urbiztondo and Neri Javier
Colmenares for petitioners in G.R. No. 179157.
Ryan A. Matibag for petitioner in G.R. No. 179461.
CARPIO-MORALES, J.:
Before the Court are six petitions challenging the
constitutionality of Republic Act No. 9372 (RA 9372), “An Act
to Secure the State and Protect our People from Terrorism,”
otherwise known as the Human Security Act of 2007,1 signed
into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15,
2007,2petitioner Southern Hemisphere Engagement Network,
Inc., a
_______________
 1 A consolidation of House Bill No. 4839 and Senate Bill No. 2137.
2 REPUBLIC ACT No. 9372, Sec. 62.
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non-government organization, and Atty. Soliman Santos, Jr.,
a concerned citizen, taxpayer and lawyer, filed a petition
for certiorariand prohibition on July 16, 2007 docketed
as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang
Mayo Uno (NAFLU-KMU), and Center for Trade Union and
Human Rights (CTUHR), represented by their respective
officers3 who are also bringing the action in their capacity as
citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong
Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and
Action (GABRIELA), Kilusang Magbubukid ng Pilipinas
(KMP), Movement of Concerned Citizens for Civil Liberties
(MCCCL), Confederation for Unity, Recognition and Advance-
ment of Government Employees (COURAGE), Kalipunan
ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite
Workers (SCW), League of Filipino Students (LFS), Anak-
bayan, Pambansang Lakas ng Kilusang Mamamalakaya
(PAMALAKAYA), Alliance of Concerned Teachers (ACT),
Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers,4 and joined
_______________
3 KMU Chairperson Elmer Labog, NAFLU-KMU National President
Joselito V. Ustarez and NAFLU-KMU Secretary General Antonio C. Pascual,
and CTUHR Executive Director Daisy Arago.
4 BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA
Secretary General Emerenciana de Jesus, KMP Secretary General Danilo
Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President
Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW
Chairperson Merly Grafe, LFS National Chairperson Vencer Crisostomo,
Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA
Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante
Chairperson Concepcion Bragas-Regalado, HEAD Deputy Secretary General
Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni Tapang. Grafe and
Tapang, however, failed to verify the petition.
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by concerned citizens and taxpayers Teofisto Guingona, Jr.,
Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister
Mary John Manansan, OSB, Dean Consuelo Paz, Atty.
Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos
Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato
Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and
Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member
organizations Hustisya, Desaparecidos, Samahan ng mga Ex-
Detainees Laban sa Detensyon at para sa Amnestiya
(SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church People’s Response (PCPR),
which were represented by their respective officers5 who are
also bringing action on their own behalf, filed a petition
for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines
(IBP), Counsels for the Defense of Liberty (CODAL),6 Senator
Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and
Wigberto E. Tañada filed a petition for certiorari and
prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog
(BAYAN-ST), other regional chapters and organizations
mostly based in the Southern Tagalog Region,7 and individu-
_______________
5 Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for
Hustisya, Mary Guy Portajada for Desaparecidos, Donato Continente for
SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for PCPR.
 6 IBP is represented by Atty. Feliciano M. Bautista, national president,
while CODAL is represented by Atty. Noel Neri, convenor/
member.
7 BAYAN-ST is represented by Secretary General Arman Albarillo;
Katipunan ng mga Magsasaka sa Timog Katagulagan (KASAMA-TK) by
Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa
Timog Katagalugan (PAMANTIK-KMU) by Regional Secretary General Luz
Baculo; GABRIELA-Southern Taga-
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als8 followed suit by filing on September 19, 2007 a petition
for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN
petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the
Anti-Terrorism Council9 composed of, at the time of the filing
of the petitions, Executive Secretary Eduardo Ermita as
Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo,
Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also
impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National
Police (PNP) Chief Gen. Oscar Calderon.
_______________
log by Secretary General Helen Asdolo; Organized Labor Association in Line
Industries and Agriculture (OLALIA) by Chairperson Romeo Legaspi;
Southern Tagalog Region Transport Organization (STARTER) by Regional
Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional
Coordinator Bayani Cambronero; Anakbayan-ST by Regional Chairperson
Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco; PAMALAKAYA-
ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa
Timog Katagalugan (BALATIK) by Regional Auditor Aynong Abnay; Kongreso
ng mga Magbubukid para sa Repormang Agraryo (Kompra) represented by
member Leng Jucutan; Martir ng Bayan with no representation; Pagkakaisa
at Ugnayan ng mga Magbubukid sa Laguna (PUMALAG) represented by
Provincial Secretary General Darwin Liwag; and Los Baños Rural Poor
Organization for Progress and Equality represented by Teodoro Reyes.
8 Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran,
Edgardo Bitara Yap, Oscar Lapida, Delfin de Claro, Sally Astera, Christian
Niño Lajara, Mario Anicete, and Emmanuel Capulong.
9 REPUBLIC ACT No. 9372, Sec. 53.
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The Karapatan, BAYAN and BAYAN-ST petitions likewise
impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau
of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to
certiorari is improper
Preliminarily, certiorari does not lie against respondents
who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court is clear:
“Section 1. Petition for certiorari.—When any tribunal, board
or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may
require.” (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any
modicum of particularity how respondents acted without or in
excess of their respective jurisdictions, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the
petitions fail just the same.
In constitutional litigations, the power of judicial review is
limited by four exacting requisites, viz.: (a) there must be an
actual case or controversy; (b) petitioners must possess locus
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standi; (c) the question of constitutionality must be raised at
the earliest opportunity; and (d) the issue of constitutionality
must be the lis mota of the case.10
In the present case, the dismal absence of the first two
requisites, which are the most essential, renders the
discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in
the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive
Secretary12summarized the rule on locus standi, thus:
“Locus standi or legal standing has been defined as a personal
and substantial interest in a case such that the party has sustained
or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question on standing is whether
a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must
have a direct and personal interest. It must show not only that
the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely
that it suffers thereby in some indefinite way. It must show that it
has been
_______________
10 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003,
415 SCRA 44, 133 (2003).
11 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633; 338 SCRA
81, 100 (2000), citing Baker v. Carr, 369 U.S. 186 (1962).
12 G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.
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168 SUPREME COURT REPORTS ANNOTATED
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or is about to be denied some right or privilege to which it is lawfully
entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a
favorable action.” (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of
being suspected “communist fronts” by the government,
especially the military; whereas individual petitioners
invariably invoke the “transcendental importance” doctrine
and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public
importance dispenses with the requirement that petitioner
has experienced or is in actual danger of suffering direct and
personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of
constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later
be elucidated, necessitate a closer judicial scrutiny of locus
standi.
Petitioners have not presented any personal stake in the
outcome of the controversy. None of them faces any charge
under RA 9372.
 KARAPATAN, Hustisya, Desaparecidos, SELDA, EM
JP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to “close security surveillance by state
security forces,” their members followed by “suspicious
persons” and “vehicles with dark windshields,” and their
offices monitored by “men with military build.” They likewise
claim that they have been branded as “enemies of the
[S]tate.”14
_______________
13 360 Phil. 133; 299 SCRA 744 (1998).
14 Rollo (G.R. No. 178890), pp. 11-12.
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Even conceding such gratuitous allegations, the Office of
the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the
purported “surveillance”and the implementation of
RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KA
DAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in
G.R. No. 178581, would like the Court to take judicial
notice of respondents’ alleged action of tagging them as
militant organizations fronting for the Communist Party of
the Philippines (CPP) and its armed wing, the National
People’s Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the
procedure under the law.15 The petition of BAYAN-ST, et
al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged
“tagging” of petitioners.
“Generally speaking, matters of judicial notice have three
material requisites: (1) the matter must be one of common and
general knowledge; (2) it must be well and authoritatively
settled and not doubtful or uncertain; and (3) it must be known
to be within the limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to be judicially
known is that of notoriety. Hence, it can be said that judicial notice
is limited to facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be one not subject
to a reasonable dispute in that it is either: (1) generally
knownwithin the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be
questionable.
Things of “common knowledge,” of which courts take judicial
matters coming to the knowledge of men generally in the course of
the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally
_______________
15 Rollo (G.R. No. 178581), p. 17.
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170 SUPREME COURT REPORTS ANNOTATED
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known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a
wide variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has
no constructive knowledge.”16 (emphasis and underscoring
supplied.)
No ground was properly established by petitioners for the
taking of judicial notice. Petitioners’ apprehension is
insufficient to substantiate their plea. That no specific
charge or proscription under RA 9372 has been filed against
them, three years after its effectivity, belies any claim of
imminence of their perceived threat emanating from the so-
called tagging.
The same is true with
petitioners KMU, NAFLU and CTUHR in G.R. No. 178554,
who merely harp as well on their supposed “link” to the CPP
and NPA. They fail to particularize how the implementation
of specific provisions of RA 9372 would result in direct injury
to their organization and members.
While in our jurisdiction there is still no judicially declared
terrorist organization, the United States of America17 (US)
and the European Union18 (EU) have both classified the CPP,
threat of, much less an actual, prosecution or proscription
under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution
initiated by Party-list Representatives Saturnino Ocampo,
Teodoro Casiño, Rafael Mariano and Luzviminda
Ilagan,20 urged the government to resume peace negotiations
with the NDF by removing the impediments thereto, one of
which is the adoption of designation of the CPP and NPA by
the US and EU as foreign terrorist organizations. Considering
the policy statement of the Aquino Administration21 of
resuming

_______________ _______________

16 Vide Genesis Transport Service, Inc. v. Unyon ng Malayang 19 Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
Manggagawa ng Genesis Transport, G.R. No. 182114, April 5, 2010, 617 SCRA <http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-
352. 75951/Reds_target_of_terror_law>(last visited August 16, 2010).
17 <http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited 20 House Resolution No. 641.
August 13, 2010). 21 In his State of the Nation Address, President Benigno Aquino III said:
18 <http://eur- “x x x x. Tungkol naman po sa CPP-NPA-NDF: handa na ba kayong maglaan
ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf ng kongkretong mungkahi, sa halip na pawang batikos lamang?
> and its recent update <http://eur- Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:023:0037:01:EN:HT tigil-putukan. Mag-usap tayo.
M> on the Council Common Position (last visited August 13, 2010). Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura
171 sa hangin. Nananawagan ako: huwag po natin hayaang masayang ang
VOL. 632, OCTOBER 5, 2010 171 napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang
adhikain.
Southern Hemisphere Engagement Network, Inc. vs. Anti- 172
Terrorism Council 172 SUPREME COURT REPORTS ANNOTATED
NPA and Abu Sayyaf Group as foreign terrorist Southern Hemisphere Engagement Network, Inc. vs. Anti-
organizations. The Court takes note of the joint statement of Terrorism Council
Executive Secretary Eduardo Ermita and Justice Secretary peace talks with the NDF, the government is not imminently
Raul Gonzales that the Arroyo Administration would adopt disposed to ask for the judicial proscription of the CPP-NPA
the US and EU classification of the CPP and NPA as terrorist consortium and its allied organizations.
organizations.19 Such statement notwithstanding, there is More important, there are other parties not before the
yet to be filed before the courts an application to Court with direct and specific interests in the questions
declare the CPP and NPA organizations as domestic being raised.22 Of recent development is the filing of the first
terrorist or outlawed organizations under RA case for proscription under Section 1723 of RA 9372 by the
9372.Again, RA 9372 has been in effect for three years now. Department of Justice before the Basilan Regional Trial Court
From July 2007 up to the present, petitioner-organizations
have conducted their activities fully and freely without any
against the Abu Sayyaf Group.24Petitioner-organizations do
not in the least allege any link to the Abu Sayyaf Group.
_______________
Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang
nagpapatuloy ang barilan, patuloy din ang pagkakagapos natin sa kahirapan.
x x x x.” See: <http://www.gov.ph/2010/07/26/
state-of-the-nation-address-2010> (last visited August 25, 2010).
22 In Francisco v. House of Representatives, 460 Phil. 830, 899; 415 SCRA
44, 139 (2003), the Court followed the determinants cited by Mr, Justice
Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental
importance doctrine, to wit: (a) the character of the funds or other assets
involved in the case; (b) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (c) the lack of any other party with a
more direct and specific interest in the questions being raised.
23 SEC. 17. Proscription of Terrorist Organization, Association, or
Group of Persons.—Any organization, association, or group of persons
organized for the purpose of engaging in terrorism, or which, although not
organized for that purpose, actually uses acts to terrorize mentioned in this
Act or to sow and create a condition of widespread fear and panic among the
populace in order to coerce the government to give in to an unlawful demand
shall, upon application of the Department of Justice before a competent
Regional Trial Court, with due notice and opportunity to be heard given to the
organization, association, or group of persons concerned, be declared as a
terrorist and outlawed organization, association, or group of persons by the
said Regional Trial Court.
24 <http://www.philstar.com/Article.aspx?articleId=607149&publicationS
ubCate-goryId=63> (last visited: September 1, 2010).
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Some petitioners attempt, in vain though, to show the
imminence of a prosecution under RA 9372 by alluding to past
rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of
rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also
named in the dismissed rebellion charges were petitioners
Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato
Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist
movement were petitioner-organizations KMU, BAYAN,
GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.26
The dismissed rebellion charges, however, do not save the
day for petitioners. For one, those charges were filed in 2006,
prior to the enactment of RA 9372, and dismissed by this
Court. For another, rebellion is defined and punished under
the Revised Penal Code. Prosecution for rebellion is not made
more imminent by the enactment of RA 9372, nor does the
enactment thereof make it easier to charge a person with
rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion
charges bear no relation to prospective charges under RA
9372. It cannot be overemphasized that three years after the
enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base
their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained
under the law.
_______________
25 G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
26 Rollo (G.R. No. 178581), pp. 111-125.
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The mere invocation of the duty to preserve the rule of law
does not, however, suffice to clothe the IBP or any of its
members with standing.27 The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover,
both the IBP and CODAL have not pointed to even a single
arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who
claims to have been the subject of “political surveillance,” also
lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of “political surveillance,” the Court
finds that she has not shown even the slightest threat of being
charged under RA 9372. Similarly lacking in locus
standi are former Senator Wigberto
Tañada and Senator Sergio Osmeña III, who cite their
being respectively a human rights advocate and an oppositor
to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement
Network and Atty. Soliman Santos Jr. in G.R. No.
178552 also conveniently state that the issues they raise are
of transcendental importance, “which must be settled early”
and are of “far-reaching implications,” without mention of any
specific provision of RA 9372 under which they have been
charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants
with locus standi. Petitioners must show an actual, or
immediate danger of sustaining, direct injury as a result of
the law’s enforcement. To rule otherwise would be to corrupt
the settled doctrine of locus standi, as every worthy cause is
an interest shared by the general public.
Neither can locus standi be conferred upon individual
petitioners as taxpayers and citizens. A taxpayer suit is
proper only when there is an exercise of the spending or taxing
_______________
27 Supra note 22 at p. 896.
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power of Congress,28 whereas citizen standing must rest on
direct and personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for
any appropriation from Congress for its implementation,
while none of the individual petitioner-citizens has alleged
any direct and personal interest in the implementation of the
law.
It bears to stress that generalized interests, albeit
accompanied by the assertion of a public right, do not
establish locus standi.Evidence of a direct and personal
interest is key.
Petitioners fail to present an
actual case or controversy
By constitutional fiat, judicial power operates only when
there is an actual case or controversy.
“Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government.”30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court
ruled that the power of judicial review is limited to actual
cases or controversies to be exercised after full opportunity of
_______________
28 Gonzales v. Hon. Narvasa, 392 Phil. 518, 525; 337 SCRA 733, 742
(2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.
29 Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec, G.R. No. 132922, April 21, 1998, 289 SCRA 337.
30 CONSTITUTION, Article VIII, Section 1.
31 63 Phil. 139, 158 (1936).
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argument by the parties. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.32
Information Technology Foundation of the Philippines v.
COMELEC33 cannot be more emphatic:
“[C]ourts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be
justiciable—definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a
legal right, on the one hand, and a denial thereof on the
other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts.” (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law
converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on
uncertain, contingent events.34Similarly, a petition that fails
to allege that an application for a license to operate a radio or
television station has been denied or granted by the
authorities does not
_______________
32 Republic Telecommunications Holding, Inc. v. Santiago, G.R. No.
140338, August 7, 2007, 529 SCRA 232, 243.
33 499 Phil. 281, 304-305; 460 SCRA 291, 312-313 (2005).
34 Mariano, Jr. v. Commission on Elections, 312 Phil. 259; 242 SCRA 211
(1995).
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present a justiciable controversy, and merely wheedles the
Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press
Institute v. Commission on Elections36 for failure to cite any
specific affirmative action of the Commission on Elections to
implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,37 to rule on the religious freedom
claim of the therein petitioners based merely on a perceived
potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual
controversy between real litigants.
The list of cases denying claims resting on purely
hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional
challenge. This, however, is qualified by the requirement that
there must be sufficient facts to enable the Court to
intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v.
Humanitarian Law Project,39 allowed the pre-enforcement
review of a criminal statute, challenged on vagueness
grounds, since plaintiffs faced a “credible threat of
prosecution” and “should not be required to await and undergo
a criminal prosecution
_______________
35 Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18,
1990, 190 SCRA 782.
36 314 Phil. 131; 244 SCRA 272 (1995).
37 G.R. No. 89651, November 10, 1989, 179 SCRA 287.
38 De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17,
2010, 615 SCRA 666, citing Buckley v. Valeo, 424 U.S. 1, 113-118 (1976)
and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
39 561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.
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as the sole means of seeking relief.”40 The plaintiffs therein
filed an action before a federal court to assail the
constitutionality of the material support statute, 18 U.S.C.
§2339B (a) (1),41 proscribing the provision of material support
to organizations declared by the Secretary of State as foreign
terrorist organizations. They claimed that they intended to
provide support for the humanitarian and political activities
of two such organizations.
Prevailing American jurisprudence allows an adjudication
on the merits when an anticipatory petition clearly shows
that the challenged prohibition forbids the conduct or
activity that a petitioner seeks to do, as there would then
be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners
have failed to show that the challenged provisions of RA 9372
forbid constitutionally protected conduct or activity that
they seek to do. No demonstrable threat has been established,
much less a real and existing one.
_______________
40 Id. citing Babbitt v. Farm Workers, supra.
41 § 2339B. Providing material support or resources to designated foreign
terrorist organizations.
(a) Prohibited Activities.—
(1) Unlawful conduct.—Whoever knowingly provides material support
or resources to a foreign terrorist organization, or attempts or conspires to do
so, shall be fined under this title or imprisoned not more than 15 years, or
both, and, if the death of any person results, shall be imprisoned for any term
of years or for life. To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization (as defined in
subsection (g)(6)), that the organization has engaged or engages in terrorist
activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality
Act), or that the organization has engaged or engages in terrorism (as defined
in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years
1988 and 1989).
42 Doe v. Bolton, 410 U.S. 179, 188-189 (1973).
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Petitioners’ obscure allegations of sporadic
“surveillance” and supposedly being tagged as
“communist fronts” in no way approximate a credible
threat of prosecution. From these allegations, the Court is
being lured to render an advisory opinion, which is not its
function.43
Without any justiciable controversy, the petitions have
become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions
characterized by “double contingency,” where both the activity
the petitioners intend to undertake and the anticipated
reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372
does not avail to take the present petitions out of the realm of
the surreal and merely imagined. Such possibility is not
peculiar to RA 9372 since the exercise of any power granted
by law may be abused.45Allegations of abuse must be anchored
on real events before courts may step in to settle actual
controversies involving rights which are legally
demandable and enforceable.
_______________
43 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509,
January 18, 2005, 449 SCRA 1, 10, citing Allied Broadcasting Center, Inc. v.
Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
44 LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW Vol. I, p. 332 (3rd
ed. 2000), citing Steffel v. Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson,
421 U.S. 426 (1975).
45 Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5,
1993, 227 SCRA 100, 117, stating that “all powers are susceptible of abuse.
The mere possibility of abuse cannot, however, infirm per se the grant of
power[.]”
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180 SUPREME COURT REPORTS ANNOTATED
 Southern Hemisphere Engagement Network, Inc. vs. Anti- RA 9372 in that terms like “widespread and extraordinary
Terrorism Council fear and panic among the populace” and “coerce the
A facial invalidation of a statute is government to give in to an unlawful demand” are nebulous,
allowed only in free speech cases, leaving law enforcement agencies with no standard to
wherein certain rules of constitutional measure the prohibited acts.
litigation are rightly excepted Respondents, through the OSG, counter that the doctrines
Petitioners assail for being intrinsically vague and of void-for-vagueness and overbreadth find no application in
impermissibly broad the definition of the crime of the present case since these doctrines apply only to free
terrorism46 under speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these
_______________ doctrines, it is imperative to outline the schools of thought on
46 RA 9372 defines the crime of terrorism as follows:
whether the void-for-vagueness and overbreadth doctrines
SEC. 3. Terrorism.—Any person who commits an act punishable under are equally applicablegrounds to assail a penal statute.
any of the following provisions of the Revised Penal Code: Respondents interpret recent jurisprudence as slanting
a. Article 222 (Piracy in General and Mutiny in the High Seas or in the toward the idea of limiting the application of the two doctrines
Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
to free speech cases. They particularly cite Romualdez v. Hon.
c. Article 134-a (Coup d’etat), including acts committed by private Sandiganbayan47and Estrada v. Sandiganbayan.48
persons; The Court clarifies.
d. Article 248 (Murder); At issue in Romualdez v. Sandiganbayan was whether the
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction); or under
word “intervene” in Section 549 of the Anti-Graft and Corrupt
1. Presidential Decree No. 1613 (The Law on Arson); Practices Act was intrinsically vague and impermissibly
2. Republic Act No. 6969 (Toxic Substances and Hazardous and broad. The Court stated that “the overbreadth and the vague-
Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability _______________
Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law); imprisonment, without the benefit of parole as provided for under Act No.
5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway 4103, otherwise known as the Indeterminate Sentence Law, as amended.
Robbery Law of 1974); and, 47 479 Phil. 265; 435 SCRA 371 (2004).
6. Presidential Decree No. 1866, as amended (Decree Codifying 48 421 Phil. 290; 369 SCRA 394 (2001).
the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, 49 Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It shall
Acquisition or Disposition of Firearms, Ammunitions or Explosives) be unlawful for the spouse or for any relative, by consanguinity or affinity,
thereby sowing and creating a condition of widespread and extraordinary fear within the third civil degree, of the President of the Philippines, the Vice-
and panic among the populace, in order to coerce the government to give in to President of the Philippines, the President of the Senate, or the Speaker of the
an unlawful demand shall be guilty of the crime of terrorism and shall suffer House of Representatives, to intervene, directly or indirectly, in any business,
the penalty of forty (40) years of transaction, contract or application with the Government x x x. (Underscoring
181 supplied)
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 ness doctrines have special application only to free-speech
cases,” and are “not appropriate for testing the validity of
penal statutes.”50 It added that, at any rate, the challenged
provision, under which the therein petitioner was charged,
is not vague.51
While in the subsequent case of Romualdez v. Commission
on Elections,52 the Court stated that a facial invalidation of
criminal statutes is not appropriate, it nonetheless proceeded
to conduct a vagueness analysis, and concluded that the
therein subject election offense53 under the Voter’s
Registration Act of 1996, with which the therein petitioners
were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate
Opinion55of Justice Vicente V. Mendoza in the Estrada case,
where the Court found the Anti-Plunder Law (Republic Act
No. 7080) clear and free from ambiguity respecting the
definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates
these two doctrines to the concept of a “facial” invalidation as
opposed to an “as-applied” challenge. He basically postulated
that allegations that a penal statute is vague and overbroad
do not justify a facial review of its validity. The pertinent
portion of the Concurring Opinion of Justice Mendoza, which
was quoted at length in the main Estrada decision, reads:
“A facial challenge is allowed to be made to a vague statute and
to one which is overbroad because of possible “chilling effect” upon
protected speech. The theory is that “[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
_______________
50 Romualdez v. Hon. Sandiganbayan, supra at p. 281.
51 Id., at p. 288.
52 G.R. No. 167011, April 30, 2008, 553 SCRA 370.
53 Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic
Act No. 8189.
54 Romualdez v. Commission on Elections, supra at p. 284.
55 Estrada v. Sandiganbayan, supra at pp. 421-450.
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itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity.” The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone,
the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court
put it, in an opinion by Chief Justice Rehnquist, “we have not
recognized an ‘overbreadth’ doctrine outside the limited context of
the First Amendment.” In Broadrick v. Oklahoma, the Court ruled
that “claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only
spoken words” and, again, that “overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct.” For this
reason, it has been held that “a facial challenge to a legislative act
is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid.” As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. “A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.”
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing “on
their faces” statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made
to do service when what is involved is a criminal statute. With
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respect to such statute, the established rule is that “one to whom
application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional.” As has been pointed out,
“vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial
invalidation, whilestatutes found vague as a matter of due
process typically are invalidated [only] ‘as applied’ to a
particular defendant.” Consequently, there is no basis for
petitioner’s claim that this Court review the Anti-Plunder Law on
its face and in its entirety.
Indeed, “on its face” invalidation of statutes results in striking
them down entirely on the ground that they might be applied to
parties not before the Court whose activities are constitutionally
protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract
contexts. But, as the U.S. Supreme Court pointed out in Younger
v. Harris
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-
line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, “on its face” invalidation of statutes has been
described as “manifestly strong medicine,” to be employed
“sparingly and only as a last resort,” and is generally disfavored. In
determining the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is
charged.”56 (Underscoring supplied.)
_______________
56 Id., at pp. 353-356.
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The confusion apparently stems from the interlocking
relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal
statute (under a claim of violation of due process of law) or a
speech regulation (under a claim of abridgement of the
freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when
it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ
as to its application. It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees that
a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be
achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.58
As distinguished from the vagueness doctrine, the
overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly
refrain from that behavior, even though some of it is
protected.59
A “facial” challenge is likewise different from an “as-
applied” challenge.
_______________
57 People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.
58 Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March
31, 1992, 207 SCRA 712, 719-720.
59 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme
Court, Revisited, 30 Am. J. Crim. L. 279 (2003), note 39, citing Michael C.
Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235,
261-262 (1994).
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Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its
actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before
the court to refrain from constitutionally protected speech or
activities.60
Justice Mendoza accurately phrased the subtitle61 in his
concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable
to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either
vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is
justified by the aim to avert the “chilling effect” on protected
speech, the exercise of which should not at all times be
abridged.62 As reflected earlier, this rationale is inapplicable
to plain penal statutes that generally bear an “in
terrorem effect” in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally
protected rights.63
The Court reiterated that there are “critical limitations by
which a criminal statute may be challenged” and “under-
_______________
60 Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489
SCRA 160, 239; Romualdez v. Commission on Elections, supra at p. 418, note
35.
61 Estrada v. Sandiganbayan, supra at p. 429.
62 CONSTITUTION, Art. III, Sec. 4.
63 The power to define crimes and prescribe their corresponding penalties
is legislative in nature and inherent in the sovereign power of the state to
maintain social order as an aspect of police power. The legislature may even
forbid and penalize acts formerly considered innocent and lawful provided that
no constitutional rights have been abridged. (People v. Siton, G.R. No. 169364,
September 18, 2009, 600 SCRA 476, 485).
187
VOL. 632, OCTOBER 5, 2010 187
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
scored that an ‘on-its-face’ invalidation of penal statutes x x x
may not be allowed.”64
“[T]he rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal
statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be
possible. A strong criticism against employing a facial challenge in
the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and
concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my
opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State’s ability to deal with
crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere is the concern with the “chilling;” deterrent effect of the overbroad
showing that, as applied to third parties, the penal statute is vague statute on third parties not courageous enough to bring suit. The
or overbroad, notwithstanding that the law is clear as applied to Court assumes that an overbroad law’s “very existence may cause
him.”65 (Emphasis and underscoring supplied) others not before the court to refrain from constitutionally protected
It is settled, on the other hand, that the application of speech or expression.” An overbreadth ruling is designed to remove
the overbreadth doctrine is limited to a facial kind of that deterrent effect on the speech of those third
challenge and, owing to the given rationale of a facial parties.”66 (Emphasis in the original omitted; underscoring
challenge, applicable only to free speech cases. supplied.)
By its nature, the overbreadth doctrine has to necessarily In restricting the overbreadth doctrine to free speech
apply a facial type of invalidation in order to plot areas of claims, the Court, in at least two cases,67 observed that the US
protected speech, inevitably almost always under situations Supreme Court has not recognized an overbreadth doctrine
not before the court, that are impermissibly swept by the outside the limited context of the First Amendment,68 and that
substantially overbroad regulation. Otherwise stated, a claims of facial overbreadth have been entertained in cases
statute cannot be properly analyzed for being substantially involving statutes which, by their terms, seek to regulate
overbroad if the court confines itself only to facts as applied to only spoken words.69 In Virginia v. Hicks,70 it was held that
the litigants. rarely, if ever, will an overbreadth challenge succeed against
a law or regulation that is not specifically addressed
_______________ to speech or speech-related conduct. Attacks on overly broad
64 Romualdez v. Commission on Elections, supra at p. 643. _______________
65 Id., at pp. 645-646.
188 66 David v. Macapagal-Arroyo, supra at p. 238.
188 SUPREME COURT REPORTS ANNOTATED 67 Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.
68 Estrada v. Sandiganbayan, supra at p. 354.
Southern Hemisphere Engagement Network, Inc. vs. Anti- 69 Id.
Terrorism Council 70 539 U.S. 113, 156 L. Ed. 2d 148 (2003).
“The most distinctive feature of the overbreadth technique is 189
that it marks an exception to some of the usual rules of VOL. 632, OCTOBER 5, 2010 189
constitutional litigation. Ordinarily, a particular litigant claims Southern Hemisphere Engagement Network, Inc. vs. Anti-
that a statute is unconstitutional as applied to him or her; if the Terrorism Council
litigant prevails, the courts carve away the unconstitutional aspects
statutes are justified by the “transcendent value to all society
of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
of constitutionally protected expression.”71
rights of third parties and can only assert their own interests. In Since a penal statute may only be
overbreadth analysis, those rules give way; challenges are assailed for being vague as applied to
permitted to raise the rights of third parties; and the court petitioners, a limited vagueness analysis
invalidates the entire statute “on its face,” not merely “as applied of the definition of “terrorism” in RA 9372
for” so that the overbroad law becomes unenforceable until a is legally impermissible absent an actual
properly authorized court construes it more narrowly. The factor or imminent charge against them
that motivates courts to depart from the normal adjudicatory rules
 While Estrada did not apply the overbreadth doctrine, it
did not preclude the operation of the vagueness test on the
Anti-Plunder Law as applied to the therein petitioner,
finding, however, that there was no basis to review the law
“on its face and in its entirety.”72 It stressed that “statutes
found vague as a matter of due processtypically are
invalidated only ‘as applied’ to a particular defendant.”73
American jurisprudence74 instructs that “vagueness
challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and
not with regard to the statute’s facial validity.”
For more than 125 years, the US Supreme Court has
evaluated defendants’ claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as
“among the most important guarantees of liberty under
law.”75
_______________
71 Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).
72 Estrada v. Sandiganbayan, supra at p. 355.
73 Id.
74 United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517
U.S. 1119, 134 L. Ed. 2d 519 (1996); Chapman v. United States, 500 U.S. 453,
114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87, 46 L. Ed. 2d 228
(1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
75 Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme
Court, Revisited, 30 Am. J. Crim. L. 279 (2003).
190
190 SUPREME COURT REPORTS ANNOTATED
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
In this jurisdiction, the void-for-vagueness doctrine
asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at
least three cases,76 the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of
municipal tax on fishponds, the crime of illegal recruitment
punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal
Code. Notably, the petitioners in these three cases, similar to
those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute,
unlike in the present case.
There is no merit in the claim that RA
9372 regulates speech so as to permit
a facial analysis of its validity
From the definition of the crime of terrorism in the earlier
cited Section 3 of RA 9372, the following elements may be
culled: (1) the offender commits an act punishable under any
of the cited provisions of the Revised Penal Code, or under any
of the enumerated special penal laws; (2) the commission of
the predicate crime sows and creates a condition of
widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to
coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the
law penalizes speech, petitioners contend that the element of
“unlawful demand” in the definition of terrorism77 must
necessarily be transmitted through some form of expression
protected by the free speech clause.
_______________
76 People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People
v. Dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163; People v.
Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.
77 REPUBLIC ACT No. 9372, Sec. 3, supra.
191
VOL. 632, OCTOBER 5, 2010 191
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
The argument does not persuade. What the law seeks to
penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372,
there must first be a predicate crime actually committed to
trigger the operation of the key qualifying phrases in the other
elements of the crime, including the coercion of the
government to accede to an “unlawful demand.” Given the
presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition
cannot recategorize the unprotected conduct into a protected
speech.
Petitioners’ notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one particle of
an element of the crime. Almost every commission of a crime
entails some mincing of words on the part of the offender like
in declaring to launch overt criminal acts against a victim, in
haggling on the amount of ransom or conditions, or in
negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an
employer to take down a sign reading “White Applicants
Only” hardly means that the law should be analyzed as one
regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the
doing of the criminal conduct alter neither the intent of the
law to punish socially harmful conduct nor the essence of the
whole act as conduct and not speech. This holds true a
fortiori in the present case where the expression figures only
as an inevitable incident of making the element of coercion
perceptible.
“[I]t is true that the agreements and course of conduct here were
as in most instances brought about through speaking or writ-
_______________
78 Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S.
47, 164 L.Ed 2d 156 (2006).
192
192 SUPREME COURT REPORTS ANNOTATED
Southern Hemisphere Engagement Network, Inc. vs. Anti-
Terrorism Council
ing. But it has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because
the conductwas, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech
and press would make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.”79 (italics
and underscoring supplied)
Certain kinds of speech have been treated as unprotected
conduct, because they merely evidence a prohibited
conduct.80 Since speech is not involved here, the Court cannot
heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged
in a vagueness analysis of the therein subject penal statute as
applied to the therein petitioners inasmuch as they
were actually charged with the pertinent crimes challenged
on vagueness grounds. The Court in said cases, however,
found no basis to review the assailed penal statute on its face
and in its entirety.
In Holder, on the other hand, the US Supreme
Court allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since the therein
plaintiffs faced a “credible threat of prosecution” and
“should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.”
As earlier reflected, petitioners have
established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited
vagueness analysis of the assailed definition of “terrorism” is
thus legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling on
a statute’s future effect on hypothetical scenarios nor allows
the courts to be used as an extension of a failed legislative
lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
Notes.—Related to the “overbreadth” doctrine is the “void
for vagueness doctrine” which holds that “a law is facially
invalid if men of common intelligence must necessarily guess
at its meaning and differ as to its application,” and like
overbreadth, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications.
(David vs. Macapagal-Arroyo, 489 SCRA 160 [2006])
The Court can tolerate to a certain degree the deliberate
vagueness sometimes employed in legislation, yet
constitutional due process demands a higher degree of clarity
when infringements on life or liberty are intended. (People vs.
Bon, 506 SCRA 168 [2006])
An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other
statutes. (Romualdez vs. Commission on Elections, 553 SCRA
370 [2008])
The time has come to reconsider the statement
in Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), that
the overbreadth and the vagueness doctrines have special
application only to free-speech cases and that they are not
appropriate for testing the validity of penal statutes—rooted
in unyielding formalism and deprived of guidance from basic
constitutional tenets, that dicta disenchants the rights of free
people, diminishing as it does, the basic right to due process.
(Tinga, J., dissenting in Romualdez vs. Commission on
Elections, 553 SCRA 370 [2008])
——o0o——

G.R. No. 179267. June 25, 2013.*
JESUS C. GARCIA, petitioner, vs. THE HONORABLE RAY
ALAN T. DRILON, Presiding Judge, Regional Trial Court-
Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for
herself and in behalf of minor children, namely: JO-ANN,
JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, respondents.
Remedial Law; Civil Procedure; Courts; Family Courts; Family
Courts Act of 1997 (R.A. No. 8369); It must be stressed that Family
Courts are special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the “Family Courts Act of
1997,” family courts have exclusive original jurisdiction to hear and
decide cases of domestic violence against women and children.—At
the outset, it must be stressed that Family Courts are special
courts, of the same level as Regional Trial Courts. Under R.A. 8369,
otherwise known as the “Family Courts Act of 1997,” family courts
have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children. In accordance with
said law, the Supreme Court designated from among the branches
of the Regional Trial Courts at least one Family Court in each of
several key cities identified. To achieve harmony with the first
mentioned law, Section 7 of R.A. 9262 now provides that Regional
Trial Courts designated as Family Courts shall have original and
exclusive jurisdiction over cases of VAWC defined under the latter
law.
Same; Same; Same; Regional Trial Courts; It is settled that
Regional Trial Courts have jurisdiction to resolve the
constitutionality of a statute, “this authority being embraced in the
general definition of the judicial power to determine what are the
valid and binding laws by the criterion of their conformity to the
fundamental law.”—Inspite of its designation as a family court, the
RTC of Bacolod City remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases whether
civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency. It is settled that RTCs have
jurisdiction to resolve the constitutionality of a statute, “this
authority being embraced in the general definition of the judicial
power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law.” The
Constitution vests the power of judicial review or the power to
declare the constitutionality or validity of a law, treaty,
international or executive agreement, presidential decree, order,
instruction, ordinance, or regulation not only in this Court, but in
all RTCs. We said in J.M. Tuason and Co., Inc. v. CA, 3 SCRA 696
(1961), that, “[p]lainly the Constitution contemplates that the
inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue.”
Same; Violence Against Women and Children; Section 20 of
A.M. No. 04-10-11-SC, the Rule on Violence Against Women and
Their Children, lays down a new kind of procedure requiring the
respondent to file an opposition to the petition and not an answer.—
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and
not an answer. Thus: SEC. 20. Opposition to petition.—(a) The
respondent may file an opposition to the petition which he himself
shall verify. It must be accompanied by the affidavits of witnesses
and shall show cause why a temporary or permanent protection
order should not be issued; (b) Respondent shall not include in
the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject
thereof may be litigated in a separate civil action.
Same; Civil Procedure; Cause of Action; The
unconstitutionality of a statute is not a cause of action that could be
the subject of a counterclaim, cross-claim or a third-party
complaint.—We cannot subscribe to the theory espoused by
petitioner that, since a counterclaim, cross-claim and third-party
complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein.
A counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing party.
A crossclaim, on the other hand, is any claim by one party against
a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim
therein. Finally, a third-party complaint is a claim that a
defending party may, with leave of court, file against a person not
a party to the action for contribution, indemnity, subrogation or any
other relief, in respect of his opponent’s claim. As pointed out by
Justice Teresita J. Leonardo-De Castro, the unconstitutionality of
a statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint. Therefore, it
is not prohibited from being raised in the opposition in view of the
familiar maxim expressio unius est exclusio alterius.
Same; Evidence; Constitutional Law; The question relative to
the constitutionality of a statute is one of law which does not need to
be supported by evidence.—That the proceedings in Civil Case No.
06-797 are summary in nature should not have deterred petitioner
from raising the same in his Opposition. The question relative to
the constitutionality of a statute is one of law which does not need
to be supported by evidence.
Same; Temporary Protection Order (TPO); If a temporary
protection order issued is due to expire, the trial court may extend or
renew the said order for a period of thirty (30) days each time until
final judgment is rendered.—To obviate potential dangers that may
arise concomitant to the conduct of a hearing when necessary,
Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary
protection order issued is due to expire, the trial court may extend
or renew the said order for a period of thirty (30) days each time
until final judgment is rendered. It may likewise modify the
extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to
litigate the constitutional issues, without necessarily running afoul
of the very purpose for the adoption of the rules on summary
procedure.
Same; Provisional Remedies; Injunction; Temporary Protection
Order (TPO); It bears stressing that protection orders are granted ex
parte so as to protect women and their children from acts of violence.
To issue an injunction against such orders will defeat the very
purpose of the law against Violence Against Women and Children.—
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment
granting permanent protection shall not stay its enforcement, with
more reason that a TPO, which is valid only for thirty (30) days at
a time, should not be enjoined. The mere fact that a statute is
alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined. In Younger v. Harris, Jr., 27
L.Ed.2d 669 (1971), the Supreme Court of the United States
declared, thus: Federal injunctions against state criminal statutes,
either in their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith, for his
alleged criminal acts. The imminence of such a prosecution even
though alleged to be unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its extraordinary powers
only to prevent irreparable injury to the plaintiff who seeks its aid.
(Citations omitted) The sole objective of injunctions is to preserve
the status quo until the trial court hears fully the merits of the case.
It bears stressing, however, that protection orders are granted ex
parte so as to protect women and their children from acts of
violence. To issue an injunction against such orders will defeat the
very purpose of the law against VAWC.
Constitutional Law; Separation of Powers; Courts are not
concerned with the wisdom, justice, policy, or expediency of a statute;
By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any
law.—It is settled that courts are not concerned with the wisdom,
justice, policy, or expediency of a statute. Hence, we dare not
venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse
under R.A. 9262 to women and children only. No proper challenge
on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this
judgment. The choice may be perceived as erroneous but even then,
the remedy against it is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the
legislative that determines the necessity, adequacy, wisdom and
expediency of any law. We only step in when there is a violation of
the Constitution. However, none was sufficiently shown in this
case.
 Same; Equal Protection of the Laws; Equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed.—Equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope Workers’
Union, 59 SCRA 54 (1974), is instructive: The guaranty of equal
protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does
not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does
not require that things which are different in fact be treated in law
as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate. The
equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter
of constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification should be
based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must
not be limited to existing conditions only; and that it
must apply equally to each member of the class. This Court
has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and
is not palpably arbitrary.
Same; Same; The unequal power relationship between women
and men; the fact that women are more likely than men to be victims
of violence; and the widespread gender bias and prejudice against
women all make for real differences justifying the classification
under the law.—The unequal power relationship between women
and men; the fact that women are more likely than men to be
victims of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the
classification under the law. As Justice McIntyre succinctly states,
“the accommodation of differences ... is the essence of true equality.”
Same; Same; Gender-Based Violence; According to the
Philippine Commission on Women (the National Machinery for
Gender Equality and Women’s Empowerment), violence against
women (VAW) is deemed to be closely linked with the unequal power
relationship between women and men otherwise known as “gender-
based violence.”—According to the Philippine Commission on
Women (the National Machinery for Gender Equality and Women’s
Empowerment), violence against women (VAW) is deemed to be
closely linked with the unequal power relationship between
women and men otherwise known as “gender-based violence.”
Societal norms and traditions dictate people to think men are the
leaders, pursuers, providers, and take on dominant roles in society
while women are nurturers, men’s companions and supporters, and
take on subordinate roles in society. This perception leads to men
gaining more power over women. With power comes the need to
control to retain that power. And VAW is a form of men’s expression
of controlling women to retain power.
Same; Same; The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and prejudices against
women.—The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and prejudices against
women. As emphasized by the CEDAW Committee on the
Elimination of Discrimination against Women, addressing or
correcting discrimination through specific measures focused on
women does not discriminate against men. Petitioner’s contention,
therefore, that R.A. 9262 is discriminatory and that it is an “anti-
male,” “husband-bashing,” and “hate-men” law deserves scant
consideration. As a State Party to the CEDAW, the Philippines
bound itself to take all appropriate measures “to modify the social
and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women.” Justice Puno correctly pointed out that “(t)he paradigm
shift changing the character of domestic violence from a private
affair to a public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the judges.”
Same; Same; The distinction between men and women is
germane to the purpose of R.A. 9262, which is to address violence
committed against women and children, spelled out in its
Declaration of Policy.—The distinction between men and women is
germane to the purpose of R.A. 9262, which is to address violence
committed against women and children, spelled out in
its Declaration of Policy, as follows: SEC. 2. Declaration of Policy.—
It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State
also recognizes the need to protect the family and its members
particularly women and children, from violence and threats to their
personal safety and security. Towards this end, the State shall exert
efforts to address violence committed against women and children
in keeping with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration of
Human Rights, the Convention on the Elimination of All Forms of
Discrimination Against Women, Convention on the Rights of the
Child and other international human rights instruments of which
the Philippines is a party.
Same; Same; The application of R.A. 9262 is not limited to the
existing conditions when it was promulgated, but to future
conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.—The
application of R.A. 9262 is not limited to the existing conditions
when it was promulgated, but to future conditions as well, for as
long as the safety and security of women and their children are
threatened by violence and abuse. R.A. 9262 applies equally to all
women and children who suffer violence and abuse.
Statutes; An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its
provisions.—There is nothing in the definition of VAWC that is
vague and ambiguous that will confuse petitioner in his defense.
The acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited acts.
They are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited,
and need not guess at its meaning nor differ in its application. Yet,
petitioner insists that phrases like “depriving or threatening to
deprive the woman or her child of a legal right,” “solely controlling
the conjugal or common money or properties,” “marital infidelity,”
and “causing mental or emotional anguish” are so vague that they
make every quarrel a case of spousal abuse. However, we have
stressed that the “vagueness” doctrine merely requires a reasonable
degree of certainty for the statute to be upheld — not absolute
precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because it
might have been more explicit in its wordings or detailed in its
provisions.
Criminal Law; Violence Against Women and Children;
Conspiracy; While the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or
dating relationship, it does not preclude the application of the
principle of conspiracy under the Revised Penal Code (RPC).—
VAWC may likewise be committed “against a woman with whom
the person has or had a sexual or dating relationship.” Clearly, the
use of the gender-neutral word “person” who has or had a sexual or
dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be
related or connected to the victim by marriage, former marriage, or
a sexual or dating relationship, it does not preclude the application
of the principle of conspiracy under the Revised Penal Code
(RPC). Thus, in the case of Go-Tan v. Spouses Tan, 567 SCRA 231
(2008), the parents-in-law of Sharica Mari L. Go-Tan, the victim,
were held to be proper respondents in the case filed by the latter
upon the allegation that they and their son (Go-Tan’s husband) had
community of design and purpose in tormenting her by giving her
insufficient financial support; harassing and pressuring her to be
ejected from the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically.
Remedial Law; Temporary Protection Order; Words and
Phrases; A protection order is an order issued to prevent further acts
of violence against women and their children, their family or
household members, and to grant other necessary reliefs; The rules
require that petitions for protection order be in writing, signed and
verified by the petitioner thereby undertaking full responsibility,
criminal or civil, for every allegation therein.—A protection
order is an order issued to prevent further acts of violence against
women and their children, their family or household members, and
to grant other necessary reliefs. Its purpose is to safeguard the
offended parties from further harm, minimize any disruption in
their daily life and facilitate the opportunity and ability to regain
control of their life. “The scope of reliefs in protection orders is
broadened to ensure that the victim or offended party is afforded all
the remedies necessary to curtail access by a perpetrator to the
victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent
the perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the court to
award temporary custody of minor children to protect the children
from violence, to prevent their abduction by the perpetrator and to
ensure their financial support.” The rules require that petitions for
protection order be in writing, signed and verified by the petitioner
thereby undertaking full responsibility, criminal or civil, for every
allegation therein. Since “time is of the essence in cases of VAWC if
further violence is to be prevented,” the court is authorized to
issue ex parte a TPO after raffle but before notice and hearing when
the life, limb or property of the victim is in jeopardy and there is
reasonable ground to believe that the order is necessary to protect
the victim from the immediate and imminent danger of VAWC or
to prevent such violence, which is about to recur.
Same; Same; Just like a writ of preliminary attachment which
is issued without notice and hearing because the time in which the
hearing will take could be enough to enable the defendant to abscond
or dispose of his property, in the same way, the victim of Violence
Against Women and Children may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death,
if notice and hearing were required before such acts could be
prevented.—The grant of a TPO ex parte cannot, therefore, be
challenged as violative of the right to due process. Just like a writ
of preliminary attachment which is issued without notice and
hearing because the time in which the hearing will take could be
enough to enable the defendant to abscond or dispose of his
property, in the same way, the victim of VAWC may already have
suffered harrowing experiences in the hands of her tormentor, and
possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the
necessities of protecting vital public interests, among which is
protection of women and children from violence and threats to their
personal safety and security. It should be pointed out that when the
TPO is issued ex parte, the court shall likewise order that notice be
immediately given to the respondent directing him to file an
opposition within five (5) days from service. Moreover, the court
shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are
initially effective for thirty (30) days from service on the
respondent. Where no TPO is issued ex parte, the court will
nonetheless order the immediate issuance and service of the notice
upon the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall likewise be
indicated on the notice.
Same; Same; The respondent of a petition for protection order
should be apprised of the charges imputed to him and afforded an
opportunity to present his side; “To be heard” does not only mean
verbal arguments in court; one may be heard also through
pleadings.—It is clear from the foregoing rules that the respondent
of a petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his side.
Thus, the fear of petitioner of being “stripped of family, property,
guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened” is a
mere product of an overactive imagination. The essence of due
process is to be found in the reasonable opportunity to be heard and
submit any evidence one may have in support of one’s defense. “To
be heard” does not only mean verbal arguments in court; one may
be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process.
Same; Same; Indubitably, petitioner may be removed and
excluded from private respondent’s residence, regardless of
ownership, only temporarily for the purpose of protecting the latter.
Such removal and exclusion may be permanent only where no
property rights are violated.—Petitioner next laments that the
removal and exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership of the residence,
is virtually a “blank check” issued to the wife to claim any property
as her conjugal home. The wording of the pertinent rule, however,
does not by any stretch of the imagination suggest that this is so. It
states: SEC. 11. Reliefs available to the offended party.—The
protection order shall include any, some or all of the following
reliefs: x x x x (c) Removing and excluding the respondent from the
residence of the offended party, regardless of ownership of the
residence, either temporarily for the purpose of protecting the
offended party, or permanently where no property rights are
violated. If the respondent must remove personal effects from the
residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the
respondent has gathered his things and escort him from the
residence; x x x x Indubitably, petitioner may be removed and
excluded from private respondent’s residence, regardless of
ownership, only temporarily for the purpose of protecting the latter.
Such removal and exclusion may be permanent only where no
property rights are violated. How then can the private respondent
just claim any property and appropriate it for herself, as petitioner
seems to suggest?
Same; Same; Under Section 23(c) of A.M. No. 04-10-11-SC, the
court shall not refer the Violence Against Women and Children case
or any issue thereof to a mediator.—Under Section 23(c) of A.M. No.
04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by
the Commentary on Section 311 of the Model Code on Domestic and
Family Violence as follows: This section prohibits a court from
ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a
subject for compromise. A process which involves parties
mediating the issue of violence implies that the victim is somehow
at fault. In addition, mediation of issues in a proceeding for an order
of protection is problematic because the petitioner is frequently
unable to participate equally with the person against whom the
protection order has been sought.
Same; Same; Barangay Protection Order (BPO); The Barangay
Protection Order issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders
the perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus,
purely executive in nature, in pursuance of his duty under the Local
Government Code to “enforce all laws and ordinances,” and to
“maintain public order in the barangay.”—Judicial power includes
the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. On the other
hand, executive power “is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance.” As clearly
delimited by the aforequoted provision, the BPO issued by
the Punong Barangay or, in his unavailability, by any
available Barangay Kagawad, merely orders the perpetrator to
desist from (a) causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child physical harm.
Such function of the Punong Barangayis, thus, purely executive in
nature, in pursuance of his duty under the Local Government Code
to “enforce all laws and ordinances,” and to “maintain public order
in the barangay.” We have held that “(t)he mere fact that an officer
is required by law to inquire into the existence of certain facts and
to apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect private
rights do not constitute an exercise of judicial powers.”
Statutes; Before a statute or its provisions duly challenged are
voided, an unequivocal breach or a clear conflict with the
Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of
the Court.—Before a statute or its provisions duly challenged are
voided, an unequivocal breach or a clear conflict with the
Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of
the Court. In other words, the grounds for nullity must be beyond
reasonable doubt. In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to
warrant a declaration of the unconstitutionality of R.A. 9262, which
is an act of Congress and signed into law by the highest officer of
the co-equal executive department. As we said in Estrada v.
Sandiganbayan, 369 SCRA 394 (2001), courts must assume that
the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts
and for the purpose of promoting what is right and advancing the
welfare of the majority.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Roland G. Ravina for petitioner.
Ma. Rowena Amelia V. Guanzon for private respondents.
Mae Niña Reyes-Gallos for private respondents.
Claire Angeline P. Luczon co-counsel for private
respondents.
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the
Philippines boasts of 86.8 million Filipinos — or 93 percent of
a total population of 93.3 million adhering to the teachings of
Jesus Christ.1Yet, the admonition for husbands to love their
wives as their own bodies just as Christ loved the church and
gave himself up for her2failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women
(NCRFW) reported that, for the years 2000-2003, “female
violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women’s intimate partners such as their
husbands and live-in partners.”3
Thus, on March 8, 2004, after nine (9) years of spirited
advocacy by women’s groups, Congress enacted Republic
Act (R.A.) No. 9262, entitled “An Act Defining Violence
Against
Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes.” It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their children
(VAWC) perpetrated by women’s intimate partners, i.e.,
husband; former husband; or any person who has or had a
sexual or dating relationship, or with whom the woman has a
common child.5 The law provides for protection orders from
the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding
to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of the equal
protection and due process clauses, and an undue delegation
of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private
respondent) filed, for herself and in behalf of her minor
children, a verified petition6 (Civil Case No. 06-797) before the
Regional Trial Court (RTC) of Bacolod City for the issuance of
a Temporary Protection Order (TPO) against her husband,
Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She
claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital
infidelity on the part of petitioner, with threats of deprivation
of custody of her children and of financial support.7
Private respondent’s claims
Private respondent married petitioner in 2002 when she
was 34 years old and the former was eleven years her senior.
They have three (3) children, namely: Jo-Ann J. Garcia, 17
years old, who is the natural child of petitioner but whom
private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and
faithful wife, whose life revolved around her husband. On the
other hand, petitioner, who is of Filipino-Chinese descent, is
dominant, controlling, and demands absolute obedience from
his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took
up law, and even when she was already working part time at
a law office, petitioner trivialized her ambitions and prevailed
upon her to just stay at home. He was often jealous of the fact
that his attractive wife still catches the eye of some men, at
one point threatening that he would have any man eyeing her
killed.9
Things turned for the worse when petitioner took up an
affair with a bank manager of Robinson’s Bank, Bacolod City,
who is the godmother of one of their sons. Petitioner admitted
to the affair when private respondent confronted him about it
in 2004. He even boasted to the household help about his
sexual relations with said bank manager. Petitioner told
private respondent, though, that he was just using the woman
because of their accounts with the bank.10
Petitioner’s infidelity spawned a series of fights that left
private respondent physically and emotionally wounded. In
one of their quarrels, petitioner grabbed private respondent
on both arms and shook her with such force that caused
bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their daughter, Jo-
Ann, who had seen the text messages he sent to his paramour
and whom he blamed for squealing on him. He beat Jo-Ann on
the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves, petitioner
would beat her up. Even the small boys are aware of private
respondent’s sufferings. Their 6-year-old son said that when
he grows up, he would beat up his father because of his cruelty
to private respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005,
while at home, she attempted suicide by cutting her wrist. She
was found by her son bleeding on the floor. Petitioner simply
fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which
time petitioner never bothered to visit, nor apologized or
showed pity on her. Since then, private respondent has been
undergoing therapy almost every week and is taking anti-
depressant medications.12
When private respondent informed the management of
Robinson’s Bank that she intends to file charges against the
bank manager, petitioner got angry with her for jeopardizing
the manager’s job. He then packed his things and told private
respondent that he was leaving her for good. He even told
private respondent’s mother, who lives with them in the
family home, that private respondent should just accept his
extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her.13
Private respondent is determined to separate from
petitioner but she is afraid that he would take her children
from her and deprive her of financial support. Petitioner had
previously warned her that if she goes on a legal battle with
him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly
the construction of deep wells. He is the President of three
corporations — 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation — of which he
and private respondent are both stockholders. In contrast to
the absolute control of petitioner over said corporations,
private respondent merely draws a monthly salary of
P20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less than
P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the
same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of
P60,000.00 from Negros Rotadrill Corporation, and enjoys
unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16 After private
respondent confronted him about the affair, petitioner forbade
her to hold office at JBTC Building, Mandalagan, where all
the businesses of the corporations are conducted, thereby
depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner
has not given private respondent an accounting of the
businesses the value of which she had helped raise to millions
of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent
danger of violence against the private respondent and her
children exists or is about to recur, the RTC issued a TPO18 on
March 24, 2006 effective for thirty (30) days, which is quoted
hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the
conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he refuses,
ordering that he be removed by police officers from the
conjugal dwelling; this order is enforceable notwithstanding
that the house is under the name of 236 Realty Holdings Inc.
(Republic Act No. 9262 states “regardless of ownership”), this
is to allow the Petitioner (private respondent herein) to enter
the conjugal dwelling without any danger from the
Respondent.
After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the
conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police
assistance on Sunday, 26 March 2006 because of the danger
that the Respondent will attempt to take her children from
her when he arrives from Manila and finds out about this
suit.
b) To stay away from the petitioner and her children,
mother and all her household help and driver from a distance
of 1,000 meters, and shall not enter the gate of the subdivision
where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her
children, mother and household help, nor send gifts, cards,
flowers, letters and the like. Visitation rights to the children
may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber
firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent’s
firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the
children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses
and other cash he received from all the corporations from 1
January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must
submit to the Court not later than 2 April 2006. Thereafter,
an accounting of all these funds shall be reported to the court
by the Comptroller, copy furnished to the Petitioner, every 15
days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting
support pendente lite, and considering the financial resources
of the Respondent and his threat that if the Petitioner sues
she will not get a single centavo, the Respondent is ordered to
put up a BOND TO KEEP THE PEACE in the amount of
FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the
trial court issued an amended TPO,20 effective for thirty (30)
days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which
they are using in Negros Occidental.
j) The petitioners are given the continued use and
occupation of the house in Parañaque, the continued use of
the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep
the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally
fixed in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support
could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an
Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO21seeking the denial of the renewal of the TPO on the
grounds that it did not (1) comply with the three-day notice
rule, and (2) contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle used by
private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a more
manageable level at P100,000.00.Subsequently, on May 23,
2006, petitioner moved22 for the modification of the TPO to
allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet
again, but subject only to the following modifications prayed
for by private respondent:
a) That respondent (petitioner herein) return the clothes
and other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture
and equipment in the conjugal house in Pitimini St.,
Capitolville Subdivision, Bacolod City within 24 hours from
receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women’s Desk of the Bacolod
City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left, so
that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an inventory
of the household furniture, equipment and other things in the
conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes of the
three petitioners (sic) children within 24 hours from receipt
of the Temporary Protection Order by his counsel, otherwise
be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational
expenses of the children upon presentation of proof of
payment of such expenses.23
Claiming that petitioner continued to deprive them of
financial support; failed to faithfully comply with the TPO;
and committed new acts of harassment against her and their
children, private respondent filed another application24 for the
issuance of a TPO ex parte. She alleged inter alia that
petitioner contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan
Patrol and Starex Van used by private respondent and the
children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long
firearms that scared the two small boys, Jessie Anthone and
Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to
school, two men allegedly attempted to kidnap him, which
incident traumatized the boy resulting in his refusal to go
back to school. On another occasion, petitioner allegedly
grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for
violation of R.A. 7610, also known as the “Special Protection
of Children Against Child Abuse, Exploitation and
Discrimination Act.”
Aside from the replevin suit, petitioner’s lawyers initiated
the filing by the housemaids working at the conjugal home of
a complaint for kidnapping and illegal detention against
private respondent. This came about after private respondent,
armed with a TPO, went to said home to get her and her
children’s belongings. Finding some of her things inside a
housemaid’s (Sheryl Jamola) bag in the maids’ room, private
respondent filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for
thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is
hereby:
1) Prohibited from threatening to commit or committing,
personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form with the
offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends,
relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia’s three
brothers, her mother Primitiva Jaype, cook Novelita Caranzo,
driver Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the petitioner’s
other household helpers from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the
Petitioners are temporarily residing, as well as from the
schools of the three children; Furthermore, that respondent
shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their
tuition or other fees directly, otherwise he will have access to
the children through the schools and the TPO will be
rendered nugatory;
4) Directed to surrender all his firearms including .9MM
caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental for the
period from August 6 to September 6, 2006; and support in
arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007
the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol
with Plate No. FEW 508 and a Starex van with Plate No. FFD
991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another
vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease
or otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those
in which the conjugal partnership of gains of the Petitioner
Rosalie J. Garcia and respondent have an interest in,
especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties
which are conjugal assets or those in which the conjugal
partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes “I,” “I-
1,” and “I-2,” including properties covered by TCT Nos. T-
186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and
E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the
transfer, sale, encumbrance or disposition of these above-
cited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature
will be forged in order to effect the encumbrance or sale of
these properties to defraud her or the conjugal partnership of
gains.
In its Order29 dated September 26, 2006, the trial court
extended the aforequoted TPO for another ten (10) days, and
gave petitioner a period of five (5) days within which to show
cause why the TPO should not be renewed, extended, or the same. Secondly, the challenge to the validity of R.A. 9262
modified. Upon petitioner’s manifestation,30 however, that he through a petition for prohibition seeking to annul the
has not received a copy of private respondent’s motion to protection orders issued by the trial court constituted a
modify/renew the TPO, the trial court directed in its collateral attack on said law.
Order31 dated October 6, 2006 that petitioner be furnished a His motion for reconsideration of the foregoing Decision
copy of said motion. Nonetheless, an Order32 dated a day having been denied in the Resolution37 dated August 14, 2007,
earlier, October 5, had already been issued renewing the TPO petitioner is now before us alleging that—
dated August 23, 2006. The pertinent portion is quoted The Issues
hereunder: I.
xxxx THE COURT OF APPEALS ERRED IN DISMISSING THE
x x x it appearing further that the hearing could not yet be PETITION ON THE THEORY THAT THE ISSUE OF
finally terminated, the Temporary Protection Order issued on CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
August 23, 2006 is hereby renewed and extended for thirty OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
(30) days and continuously extended and renewed for thirty COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
(30) days, after each expiration, until further orders, and II.
subject to such modifications as may be ordered by the court. THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
After having received a copy of the foregoing Order, FAILING TO CONCLUDE THAT R.A. 9262 IS
petitioner no longer submitted the required comment to DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
private respondent’s motion for renewal of the TPO arguing EQUAL PROTECTION CLAUSE.
III.
that it would only be an “exercise in futility.”33
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN
Proceedings before the CA
NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
During the pendency of Civil Case No. 06-797, petitioner PROCESS CLAUSE OF THE CONSTITUTION.
filed before the Court of Appeals (CA) a petition34 for _______________
prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for 36 Decision dated January 24, 2007. Penned by Associate Justice Priscilla
Baltazar-Padilla, with Associate Justices Arsenio J. Magpale and Romeo F. Barza,
injunction and temporary restraining order, challenging (1) concurring. Id., at pp. 47-57.
the constitutionality of R.A. 9262 for being violative of the due 37 Id., at pp. 60-61.
process and the equal protection clauses, and (2) the validity 396
of the modified TPO issued in the civil case for being “an 396 SUPREME COURT REPORTS ANNOTATED
unwanted product of an invalid law.” Garcia vs. Drilon
On May 26, 2006, the appellate court issued a 60-day IV.
Temporary Restraining Order35 (TRO) against the THE COURT OF APPEALS ERRED IN NOT FINDING THAT
enforcement of the TPO, the amended TPOs and other orders THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE
pursuant thereto. TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
Subsequently, however, on January 24, 2007, the appellate
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
court dismissed36 the petition for failure of petitioner to raise DECLARING R.A. No. 9262 AS INVALID AND
the constitutional issue in his pleadings before the trial court UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
in the civil case, which is clothed with jurisdiction to resolve
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by
petitioner against the constitutionality of R.A. 9262, we shall
first tackle the propriety of the dismissal by the appellate
court of the petition for prohibition (CA-G.R. CEB-SP. No.
01698) filed by petitioner.
As a general rule, the question of constitutionality must be
raised at the earliest opportunity so that if not raised in the
pleadings, ordinarily it may not be raised in the trial, and if
not raised in the trial court, it will not be considered on
appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of
R.A. 9262 before the RTC of Bacolod City, petitioner argues
that the Family Court has limited authority and jurisdiction
that is “inadequate to tackle the complex issue of
constitutionality.”41
We disagree.
Family Courts have authority
and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are
special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the “Family Courts Act
of 1997,” family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women and
children.42 In accordance with said law, the Supreme Court
designated from among the branches of the Regional Trial
Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the latter
law, viz.:
_______________
42 SEC. 5. Jurisdiction of Family Courts.—The Family Courts shall
have exclusive original jurisdiction to hear and decide the following cases:
xxxx
k) Cases of domestic violence against:
1) Women—which are acts of gender based violence that results,
or are likely to result in physical, sexual or psychological harm or
suffering to women; and other forms of physical abuse such as battering
or threats and coercion which violate a woman’s personhood, integrity
and freedom movement; and
2) Children—which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and all other
conditions prejudicial to their development.
43 Sec. 17, R.A. 8369.
398
398 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
SEC. 7. Venue.—The Regional Trial Court designated
as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their
children under this law. In the absence of such court in the
place where the offense was committed, the case shall be filed
in the Regional Trial Court where the crime or any of its
elements was committed at the option of the complainant.
(Emphasis supplied)
Inspite of its designation as a family court, the RTC of
Bacolod City remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases
whether civil, criminal, special proceedings, land registration,
guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 “this authority being embraced
in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law.”46 The Constitution vests
the power of judicial review or the power to declare the
constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all
RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that,
“[p]lainly the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where
such constitutionality happens to be in issue.” Section 5,
Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following
powers:
xxx
2. Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of
lower courts in:
a. All cases in which the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the
earliest opportunity in his Opposition to the petition for
protection order before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the review of
this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to the
petition and not an answer.49 Thus:
SEC. 20. Opposition to petition.—(a) The respondent may
file an opposition to the petition which he himself shall verify.
It must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection
order should not be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint,
but any cause of action which could be the subject thereof may
be litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner
that, since a counterclaim, cross-claim and third-party
complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein.
A counterclaim is defined as any claim for money or other
relief which a defending party may have against an opposing
party.50 A crossclaim, on the other hand, is any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original
action or of a counterclaim therein.51 Finally, a third-party
complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in
respect of his opponent’s claim.52As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a
statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the
opposition in view of the familiar maxim expressio unius est
exclusio alterius.
Moreover, it cannot be denied that this issue affects the
resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the very
statute the validity of which is being attacked53 by petitioner
who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262
is, for all intents and purposes, a valid cause for the non-
issuance of a protection order.That the proceedings in Civil
Case No. 06-797 are summary in nature should not have
deterred petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a statute is
one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-
SC nonetheless allows the conduct of a hearing to determine
legal issues, among others, viz.:
 SEC. 25. Order for further hearing.—In case the court
determines the need for further hearing, it may issue an order
containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have
been marked and will be presented;
(d) Names of witnesses who will be ordered to present their
direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties
which shall be done in one day, to the extent possible, within
the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to
the conduct of a hearing when necessary, Section 26 (b) of
A.M. No. 04-10-11-SC provides that if a temporary protection
order issued is due to expire, the trial court may extend or
renew the said order for a period of thirty (30) days each time
until final judgment is rendered. It may likewise modify the
extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed
to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules
on summary procedure.
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for
injunction and temporary restraining order (CA-G.R. CEB -
SP. No. 01698). Petitioner may have proceeded upon an
honest belief that if he finds succor in a superior court, he
could be granted an injunctive relief. However, Section 22(j)
of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-
day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders
pursuant thereto was improper, and it effectively hindered
the case from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal
or certioraribefore judgment is prohibited. Moreover, if the
appeal of a judgment granting permanent protection shall not
stay its enforcement,55 with more reason that a TPO, which is
valid only for thirty (30) days at a time,56 should not be
enjoined.The mere fact that a statute is alleged to be
unconstitutional or invalid, does not of itself entitle a litigant
to have the same enjoined.57 In Younger v. Harris, Jr.,58 the
Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either
in their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even
if such statutes are unconstitutional. No citizen or member of
the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized and,
hence, unlawful is not alone ground for relief in equity which
exerts its extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status
quo until the trial court hears fully the merits of the case. It
bears stressing, however, that protection orders are
granted ex parte so as to protect women and their children
from acts of violence. To issue an injunction against such
orders will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not
shirk from our obligation to determine novel issues, or issues
of first impression, with far-reaching implications. We have,
time and again, discharged our solemn duty as final arbiter of
constitutional issues, and with more reason now, in view of
private respondent’s plea in her Comment59 to the instant
Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in
enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to
prevent and criminalize spousal and child abuse, which could
very well be committed by either the husband or the wife,
gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill
No. 2723,61 which became R.A. 9262, reveals that while the
sponsor, Senator Luisa Pimentel-Ejercito (better known as
Senator Loi Estrada), had originally proposed what she called
a “synthesized measure”62 — an amalgamation of two
measures, namely, the “Anti-Domestic Violence Act” and the
“AntiAbuse of Women in Intimate Relationships Act”63 —
providing protection to “all family members, leaving no one in
isolation” but at the same time giving special attention to
women as the “usual victims” of violence and
abuse,64 nonetheless, it was eventually agreed that men be
denied protection under the same measure. We quote
pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record,
Mr. President. Some women’s groups have expressed
concerns and relayed these concerns to me that if we are
to include domestic violence apart from against women
as well as other members of the household, including
children or the husband, they fear that this would
weaken the efforts to address domestic violence of which
the main victims or the bulk of the victims really are the
wives, the spouses or the female partners in a
relationship. We would like to place that on record. How
does the good Senator respond to this kind of
observation?
_______________
60 Petition, Id., at pp. 26-27.
61 An Act Defining Violence Against Women and Members of the Family,
Prescribing Penalties Therefor, Providing for Protective Measures for Victims
and for Other Purposes.
62 Congressional Records, Vol. III, No. 45, December 10, 2003, p. 27.
63 Id., at p. 25.
64 Id., at p. 27.
405
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Garcia vs. Drilon
Senator Estrada. Yes, Mr. President, there is this group of
women who call themselves “WIIR” Women in Intimate
Relationship. They do not want to include men in this
domestic violence. But plenty of men are also being
abused by women. I am playing safe so I placed here
members of the family, prescribing penalties therefor
and providing protective measures for victims. This
includes the men, children, live-in, common-law wives,
and those related with the family.65
xxxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the
discussion whether to limit this to women and not to
families which was the issue of the AWIR group. The
understanding that I have is that we would be having a
broader scope rather than just women, if I remember
correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator
Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support
of the measure. Do not get me wrong. However, I believe
that there is a need to protect women’s rights especially
in the domestic environment.
As I said earlier, there are nameless, countless, voiceless
women who have not had the opportunity to file a case
against their spouses, their live-in
_______________
65 Id., at pp. 43-44.
 406
406 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
partners after years, if not decade, of battery and abuse. If we
broaden the scope to include even the men, assuming they can
at all be abused by the women or their spouses, then it would
not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier
conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their
lives so dearly will agree with this representation.
Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the
women are, we are not given equal opportunities
especially in the domestic environment where the macho
Filipino man would always feel that he is stronger, more
superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the
committee came up with this bill because the family
members have been included in this proposed measure
since the other members of the family other than women
are also possible victims of violence. While women are
most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains
that in some relatively few cases, men also stand to be
victimized and that children are almost always the
helpless victims of violence. I am worried that there may
not be enough protection extended to other family
members particularly children who are excluded.
Although Republic Act No. 7610, for instance, more or
less, addresses the special needs of abused children. The
same law is inadequate. Protection orders for one are not
available in said law.
I am aware that some groups are apprehensive about
granting the same protection to men, fearing that they
may use this law to justify their abusive
407
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Garcia vs. Drilon
behavior against women. However, we should also recognize
that there are established procedures and standards in our
courts which give credence to evidentiary support and cannot
just arbitrarily and whimsically entertain baseless
complaints.
Mr. President, this measure is intended to harmonize
family relations and to protect the family as the basic
social institution. Though I recognize the unequal power
relations between men and women in our society, I
believe we have an obligation to uphold inherent rights
and dignity of both husband and wife and their
immediate family members, particularly children.
While I prefer to focus mainly on women, I was
compelled to include other family members as a critical
input arrived at after a series of consultations/meetings
with various NGOs, experts, sports groups and other
affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the
other senators.
Senator Sotto. Yes, with the permission of the two ladies on
the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III
is recognized.
Senator Sotto. I presume that the effect of the proposed
amendment of Senator Legarda would be removing the
“men and children” in this particular bill and focus
specifically on women alone. That will be the net effect
of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa
“Loi” Ejercito Estrada, I am not sure now whether she is
 inclined to accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or not
because if she is going to accept this, I will propose an
amendment to the amendment rather than object to the
amendment, Mr. President.408
408 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
xxxx
Senator Estrada. The amendment is accepted, Mr.
President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Before we act on the
amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the
rationale used by the distinguished proponent of the
amendment. As a matter of fact, I tend to agree. Kung
may maaabuso, mas malamang iyong babae kaysa sa
lalake. At saka iyong mga lalake, puwede na talagang
magulpi iyan. Okey lang iyan. But I cannot agree that
we remove the children from this particular measure.
So, if I may propose an amendment—
The President Pro Tempore. To the amendment.
Senator Sotto.—more than the women, the children are
very much abused. As a matter of fact, it is not limited
to minors. The abuse is not limited to seven, six, 5-year-
old children. I have seen 14, 15-year-old children being
abused by their fathers, even by their mothers. And it
breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of
children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of children
and not only women.409
VOL. 699, JUNE 25, 2013 409
Garcia vs. Drilon
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we
remove the aspect of the men in the bill but not the
children.
Senator Legarda. I agree, Mr. President, with the
Minority Leader.
The President Pro Tempore. Effectively then, it will
be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
[Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom,
justice, policy, or expediency of a statute.67 Hence, we dare not
venture into the real motivations and wisdom of the members
of Congress in limiting the protection against violence and
abuse under R.A. 9262 to women and children only. No proper
challenge on said grounds may be entertained in this
proceeding. Congress has made its choice and it is not our
prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it
is to seek its amendment or repeal by the legislative. By the
principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency
of any law.68 We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this
case.
_______________
66 Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-147.
67 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of
Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 391.
68 Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993,
227 SCRA 100, 113-114.
 410
410 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
R.A. 9262 does not violate the
guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope
Workers’ Union69 is instructive:
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid
discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification
is that it be reasonable, which means that the classification
should be based on
_______________
69 158 Phil. 60, 86-87; 59 SCRA 54, 77-78 (1974).
411
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Garcia vs. Drilon
substantial distinctions which make for real differences; that
it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that
it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
(Emphasis supplied)
Measured against the foregoing jurisprudential yardstick,
we find that R.A. 9262 is based on a valid classification as
shall hereinafter be discussed and, as such, did not violate the
equal protection clause by favoring women over men as
victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men;
the fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the
classification under the law. As Justice McIntyre succinctly
states, “the accommodation of differences ... is the essence of
true equality.”70
A. Unequal power relationship
between men and women
According to the Philippine Commission on Women (the
National Machinery for Gender Equality and Women’s
Empowerment), violence against women (VAW) is deemed to
be closely linked with the unequal power relationship
between women and men otherwise known as “gender-
based violence”. Societal norms and traditions dictate people
to
_______________
70 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, p. 169.
412
412 SUPREME COURT REPORTS ANNOTATED
 Garcia vs. Drilon
think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men’s
companions and supporters, and take on subordinate roles in
society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that
power. And VAW is a form of men’s expression of controlling
women to retain power.71
The United Nations, which has long recognized VAW as a
human rights issue, passed its Resolution 48/104 on the
Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that “violence against women is a
manifestation of historically unequal power relations
between men and women, which have led to domination
over and discrimination against women by men and to the
prevention of the full advancement of women, and that
violence against women is one of the crucial social
mechanisms by which women are forced into subordinate
positions, compared with men.”72
Then Chief Justice Reynato S. Puno traced the historical
and social context of gender-based violence and developments
in advocacies to eradicate VAW, in his remarks delivered
during the Joint Launching of R.A. 9262 and its Implementing
Rules last October 27, 2004, the pertinent portions of which
are quoted hereunder:
History reveals that most societies sanctioned the use of
violence against women. The patriarch of a family was
accorded the right to use force on members of the family
under his control. I quote the early studies:
_______________
71 Philippine Commission on Women, National Machinery for Gender
Equality and Women’s Empowerment, “Violence Against Women (VAW),”
<http://www.pcw.gov.ph> (visited November 16, 2012).
72 <http://www.lawphil.net/international/treaties/dec_dec_1993.html>
(visited November 16, 2012).
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Garcia vs. Drilon
Traditions subordinating women have a long history
rooted in patriarchy—the institutional rule of men. Women
were seen in virtually all societies to be naturally inferior
both physically and intellectually. In ancient Western
societies, women whether slave, concubine or wife, were
under the authority of men. In law, they were treated as
property.
The Roman concept of patria potestas allowed the husband
to beat, or even kill, his wife if she endangered his property
right over her. Judaism, Christianity and other religions
oriented towards the patriarchal family strengthened the
male dominated structure of society.
English feudal law reinforced the tradition of male control
over women. Even the eminent Blackstone has been quoted
in his commentaries as saying husband and wife were one and
that one was the husband. However, in the late 1500s and
through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common
law developed the rule of thumb, which allowed husbands to
beat their wives with a rod or stick no thicker than their
thumb.
In the later part of the 19th century, legal recognition of
these rights to chastise wives or inflict corporeal punishment
ceased. Even then, the preservation of the family was given
more importance than preventing violence to women.
The metamorphosis of the law on violence in the United
States followed that of the English common law. In 1871, the
Supreme Court of Alabama became the first appellate court
to strike down the common law right of a husband to beat his
wife:
The privilege, ancient though it may be, to beat one’s
wife with a stick, to pull her hair, choke her, spit in her
face or kick her about the floor, or to inflict upon her
like indignities, is not now acknowledged by our law...
In person, the wife is entitled to the same protection of
the law that the husband can invoke for himself.414
414 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
As time marched on, the women’s advocacy movement
became more organized. The temperance leagues initiated it.
These leagues had a simple focus. They considered the evils
of alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands’
other watering holes. Soon, however, their crusade was joined
by suffragette movements, expanding the liberation
movement’s agenda. They fought for women’s right to vote, to
own property, and more. Since then, the feminist movement
was on the roll.
The feminist movement exposed the private invisibility of
the domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No
less than the United States Supreme Court, in 1992
case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country,
approximately two million women are the victims of
severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every eight
husbands had assaulted their wives during the past
year. The [American Medical Association] views these
figures as “marked underestimates,” because the
nature of these incidents discourages women from
reporting them, and because surveys typically exclude
the very poor, those who do not speak English well, and
women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA,
“researchers on family violence agree that the true
incidence of partner violence is probably doublethe
above estimates; or four million severely assaulted
women per year.”
Studies on prevalence suggest that from one-fifth to
one-third of all women will be physically assaulted by a
partner or ex-partner during their lifetime... Thus on an
average day in the United States, nearly 11,000 women
are severely assaulted by their male partners. Many of
these incidents involve sexual assault... In families
where wife beat-
415
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Garcia vs. Drilon
ing takes place, moreover, child abuse is often present
as well.
Other studies fill in the rest of this troubling picture.
Physical violence is only the most visible form of abuse.
Psychological abuse, particularly forced social and
economic isolation of women, is also common.
Many victims of domestic violence remain with their
abusers, perhaps because they perceive no superior
alternative...Many abused women who find temporary
refuge in shelters return to their husbands, in large
part because they have no other source of income...
Returning to one’s abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that
8.8 percent of all homicide victims in the United States
are killed by their spouses...Thirty percent of female
homicide victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the
Violence Against Women Act.
In the International front, the women’s struggle for
equality was no less successful. The United States Charter
and the Universal Declaration of Human Rights affirmed the
equality of all human beings. In 1979, the UN General
Assembly adopted the landmark Convention on the
Elimination of all Forms of Discrimination Against Women
(CEDAW). In 1993, the UN General Assembly also adopted
the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women
have been regularly held in Mexico City, Copenhagen,
Nairobi and Beijing. The UN itself established a Commission
on the Status of Women.
The Philippines has been in cadence with the half — and
full — steps of all these women’s movements. No less than
Section 14, Article II of our 1987 Constitution mandates the
State to recognize the role of women in nation building and to
ensure the fundamental equality before the law of women and
men. Our Senate has ratified the CEDAW as well as the
Convention on the Rights of
416
416 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
 the Child and its two protocols. To cap it all, Congress, on Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
March 8, 2004, enacted Rep. Act No. 9262, entitled “An Act Rape 997 927 659 837 811 770 1,042 832
Defining Violence Against Women and Their Children, Incestuous Rape 38 46 26 22 28 27 19 23
Providing for Protective Measures for Victims, Prescribing
Attempted Rape 194 148 185 147 204 167 268 201
Penalties therefor and for other Purposes.” (Citations
Acts of Lasci-viousness 580 536 382 358 445 485 745 625
omitted)
Physical Injuries 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588

B.Women are the “usual” and “most likely” Sexual Harassment 53 37 38 46 18 54 83 63

victims of violence.
RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021
Threats 319 223 199 182 220 208 374 213
At the time of the presentation of Senate Bill No. 2723,
Seduction 62 19 29 30 19 19 25 15
official statistics on violence against women and children
Concubinage 121 102 93 109 109 99 158 128
show that —
RA 9208 17 11 16 24 34 152 190 62
x x x physical injuries had the highest number of cases at
5,058 in 2002 representing 55.63% of total cases reported Abduction / Kidnapping 29 16 34 23 28 18 25 22

(9,903). And for the first semester of 2003, there were 2,381 Unjust Vexation 90 50 59 59 83 703 183 155

reported cases out of 4,354 cases which represent 54.31%. xxx
(T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417
physically abused/maltreated cases out of the total of 5,608
cases. xxx (T)here are 1,091 DSWD cases out of a total
number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women’s intimate partners such as their
husbands and live-in partners.73
Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an
eight-year period from 2004 to August of 2011 with violations
_______________
73 As reported by Senator Loi Estrada in her Sponsorship Speech,
Congressional Records, Vol. III, No. 45, December 10, 2003, p. 22.
417
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Garcia vs. Drilon
under R.A. 9262 ranking first among the different VAW
categories since its implementation in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported Cases 2004 2005 2006 2007 2008 2009 2010 2011
Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
*2011 report covers only from January to August
Source: Philippine National Police – Women and Children Protection
Center (WCPC)
On the other hand, no reliable estimates may be obtained
on domestic abuse and violence against men in the
Philippines because incidents thereof are relatively low and,
perhaps, because many men will not even attempt to report
the
_______________
74 Philippine Commission on Women, “Statistics on Violence Against
Filipino Women,” <http://pcw.gov.ph/statistics/201210/statistics-violence-
against-filipino-women> (visited October 12, 2012).
418
418 SUPREME COURT REPORTS ANNOTATED
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situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more)
times, compared with 11% of the smaller number of men who
had ever experienced domestic violence; and women
constituted 89% of all those who had experienced 4 or more
incidents of domestic violence.75 Statistics in Canada show
that spousal violence by a woman against a man is less likely
to cause injury than the other way around (18 percent versus
44 percent). Men, who experience violence from their spouses
are much less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience sexual
assault. In fact, many cases of physical violence by a woman
against a spouse are in self-defense or the result of many
years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and
abuse perpetrated against men in the Philippines, the same
cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance
requiring drivers of animal-drawn vehicles to pick up, gather
and deposit in receptacles the manure emitted or discharged
by their vehicle-drawing animals in any public highways,
streets, plazas, parks or alleys, said ordinance was challenged
as violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing
animals and not to those animals, although not utilized, but
similarly pass through the same streets.
The ordinance was upheld as a valid classification for the
reason that, while there may be non-vehicle-drawing animals
_______________
75 Women’s Aid, “Who are the victims of domestic violence?,” citing Walby
and Allen, 2004, <www.womensaid.org.uk/domestic-violence-
articles.asp?section=00010001002200410001&itemid=1273
November 16, 2012).
76 Toronto District School Board, Facts and
<www.tdsb.on.ca/site/viewitem.asp?siteid=15&
menuid=23082&pageid=20007>(visited November 16, 2012).
419
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Garcia vs. Drilon
that also traverse the city roads, “but their number must
be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to
constitute a menace to the health of the community.”77 The
mere fact that the legislative classification may result in
actual inequality is not violative of the right to equal
protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the
law is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution,
trial, and sentencing, crimes against women are often treated
differently and less seriously than other crimes. This was
argued by then United States Senator Joseph R. Biden, Jr.,
now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a
valid exercise of the U.S. Congress’ authority under the
Commerce and Equal Protection Clauses. He stressed that
the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to “double
victimization”—first at the hands of the offender and then
of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship
Speech for Senate Bill No. 2723 that “(w)henever violence
occurs in the family, the police treat it as a private matter and
advise the parties to settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might later be
_______________
(visited
77 People v. Solon, 110 Phil. 39, 41 (1960).
78 Victoriano v. Elizalde Rope Workers’ Union, supra note 69, p. 90; p. 80.
Statistics
79 Biden, Jr., Joseph R., “The Civil Rights Remedy of the Violence Against
Women Act: A Defense,” 37 Harvard Journal on Legislation 1 (Winter, 2000).
420
419 420 SUPREME COURT REPORTS ANNOTATED
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withdrawn. This lack of response or reluctance to be involved
by the police and prosecution reinforces the escalating,
recurring and often serious nature of domestic violence.”80
Sadly, our own courts, as well, have exhibited prejudices
and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC
Judge Venancio J. Amila for Conduct Unbecoming of a Judge.
He used derogatory and irreverent language in reference to
the complainant in a petition for TPO and PPO under R.A.
9262, calling her as “only a live-in partner” and presenting her
as an “opportunist” and a “mistress” in an “illegitimate
relationship.” Judge Amila even called her a “prostitute,” and
accused her of being motivated by “insatiable greed” and of
absconding with the contested property.81 Such remarks
betrayed Judge Amila’s prejudices and lack of gender
sensitivity.
The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and prejudices against
women. As emphasized by the CEDAW Committee on the
Elimination of Discrimination against Women, addressing or
correcting discrimination through specific measures focused
on women does not discriminate against men.82 Petitioner’s
contention,83 therefore, that R.A. 9262 is discriminatory and
that it is an “anti-male,” “husband-bashing,” and “hate-men”
law deserves scant consideration. As a State Party to the
CEDAW, the Philippines bound itself to take all appropriate
measures “to modify the social and cultural patterns of
conduct of men and women, with a view to achieving the elimi-
_______________
80 Congressional Records, Vol. III, No. 45, December 10, 2003, pp. 22-23.
81 Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645 SCRA
1, 8.
82 “General recommendation No. 25, on article 4, paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination against Women,
on temporary special measures” <www.un.org/
womenwatch/.../recommendation> (visited January 4, 2013).
83 Petition, Rollo, p. 27.
421
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Garcia vs. Drilon
nation of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men and
women.”84 Justice Puno correctly pointed out that “(t)he
paradigm shift changing the character of domestic violence
from a private affair to a public offense will require the
development of a distinct mindset on the part of the police, the
prosecution and the judges.”85
II. The classification is germane to the purpose
of the law.
The distinction between men and women is germane to the
purpose of R.A. 9262, which is to address violence committed
against women and children, spelled out in its Declaration of
Policy, as follows:
SEC. 2. Declaration of Policy.—It is hereby declared that
the State values the dignity of women and children and
guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members
particularly women and children, from violence and threats
to their personal safety and security.
Towards this end, the State shall exert efforts to address
violence committed against women and children in keeping
with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration
of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the
Rights of the Child and other international human rights
instruments of which the Philippines is a party.
_______________
84 Article 5(a), CEDAW.
85 “The Rule on Violence Against Women and Their Children,” Remarks
delivered during the Joint Launching of R.A. 9262 and its Implementing Rules
last October 27, 2004 at the Session Hall of the Supreme Court.
422
422 SUPREME COURT REPORTS ANNOTATED
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In 1979, the U.N. General Assembly adopted the CEDAW,
which the Philippines ratified on August 5, 1981.
Subsequently, the Optional Protocol to the CEDAW was also
ratified by the Philippines on October 6, 2003.86 This
Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all
appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family
relations on the basis of equality of men and women.88 The
Philippines likewise ratified the Convention on the Rights of
the Child and its two protocols.89 It is, thus, bound by said
Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the
existing conditions when it was promulgated, but to future
conditions as well, for as long as the safety and security of
women and their children are threatened by violence and
abuse.
R.A. 9262 applies equally to all women and children who
suffer violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault,
coercion, harass-
_______________
86 Supra note 49.
87 Article 15.
88 Article 16.
89 Supra note 49.
423
VOL. 699, JUNE 25, 2013 423
Garcia vs. Drilon
ment or arbitrary deprivation of liberty. It includes, but is not
limited to, the following acts:
A. “Physical Violence” refers to acts that include bodily or
physical harm;
B. “Sexual violence” refers to an act which is sexual in
nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim’s body, forcing
her/him to watch obscene publications and indecent
shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other
harm or coercion;
c) Prostituting the woman or child.
C. “Psychological violence” refers to acts or omissions
causing or likely to cause mental or emotional suffering of the
victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation,
repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of
common children.
D. “Economic abuse” refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profes-
424
424 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
sion, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims’ own money or properties or
solely controlling the conjugal money or properties.
 It should be stressed that the acts enumerated in the
aforequoted provision are attributable to research that has
exposed the dimensions and dynamics of battery. The acts
described here are also found in the U.N. Declaration on the
Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what
constitutes abuse removes the difference between violent
action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague
and ambiguous that will confuse petitioner in his defense. The
acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited
acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct
is prohibited, and need not guess at its meaning nor differ in
its application.91 Yet, petitioner insists92 that phrases like
“depriving or threatening to deprive the woman or her child
of a legal right,” “solely controlling the conjugal or common
money or properties,” “marital infidelity,” and “causing
mental or
_______________
90 Supra note 49.
91 Estrada v. Sandiganbayan, 421 Phil. 290, 351-352; 369 SCRA 394, 439
(2001).
92 Petition, Rollo, p. 35.
425
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emotional anguish” are so vague that they make every quarrel
a case of spousal abuse. However, we have stressed that the
“vagueness” doctrine merely requires a reasonable degree of
certainty for the statute to be upheld — not absolute precision
or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible
as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it
might have been more explicit in its wordings or detailed in
its provisions.93
There is likewise no merit to the contention that R.A. 9262
singles out the husband or father as the culprit. As defined
above, VAWC may likewise be committed “against a woman
with whom the person has or had a sexual or dating
relationship.” Clearly, the use of the gender-neutral word
“person” who has or had a sexual or dating relationship with
the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related
or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v.
Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan,
the victim, were held to be proper respondents in the case filed
by the latter upon the allegation that they and their son (Go-
Tan’s husband) had community of design and purpose in
tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.
_______________
93 Estrada v. Sandiganbayan, supra note 91, at pp. 352-353; p. 440.
94 G.R. No. 168852, September 30, 2008, 567 SCRA 231.
426
426 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
425
R.A. 9262 is not violative of the due
process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically
in the issuance of POs, of all protections afforded by the due
process clause of the Constitution. Says he: “On the basis of
unsubstantiated allegations, and practically no opportunity to
respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened.”95
A protection order is an order issued to prevent further
acts of violence against women and their children, their family
or household members, and to grant other necessary reliefs.
Its purpose is to safeguard the offended parties from further
harm, minimize any disruption in their daily life and facilitate
the opportunity and ability to regain control of their life.96“The
scope of reliefs in protection orders is broadened to ensure
that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of violence; to
accord the victim and any designated family or household
member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the
court to award temporary custody of minor children to protect
the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support.”97
The rules require that petitions for protection order be in
writing, signed and verified by the petitioner98 thereby under-
_______________
95 Petition, Rollo, p. 31.
96 Sec. 4 (o), A.M. No. 04-10-11-SC.
97 Supra note 49.
98 Sec. 7, A.M. No. 04-10-11-SC.
427
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Garcia vs. Drilon
taking full responsibility, criminal or civil, for every allegation
therein. Since “time is of the essence in cases of VAWC if
further violence is to be prevented,”99 the court is authorized
to issue ex parte a TPO after raffle but before notice and
hearing when the life, limb or property of the victim is in
jeopardy and there is reasonable ground to believe that the
order is necessary to protect the victim from the immediate
and imminent danger of VAWC or to prevent such violence,
which is about to recur.100
There need not be any fear that the judge may have no
rational basis to issue an ex parte order. The victim is
required not only to verify the allegations in the petition, but
also to attach her witnesses’ affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be
challenged as violative of the right to due process. Just like a
writ of preliminary attachment which is issued without notice
and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose
of his property,102 in the same way, the victim of VAWC may
already have suffered harrowing experiences in the hands of
her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a
constitutional commonplace that the ordinary requirements
of procedural due process must yield to the necessities of
protecting vital public interests,103 among which is protection
of women and children from violence and threats to their
personal safety and security.
_______________
99 Supra note 49.
100 Id.
101 Supra note 85.
102 Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212
SCRA 260, 265.
103 Laguna Lake Development Authority v. Court of Appeals, G.R. No.
110120, March 16, 1994, 231 SCRA 292, 307, citing Pollution Adjudication
Board v. Court of Appeals, G.R. No. 93891, March 11, 1991, 195 SCRA 112.
428
428 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
It should be pointed out that when the TPO is issued ex
parte, the court shall likewise order that notice be
immediately given to the respondent directing him to file an
opposition within five (5) days from service. Moreover, the
court shall order that notice, copies of the petition and TPO be
served immediately on the respondent by the court sheriffs.
The TPOs are initially effective for thirty (30) days from
service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless
order the immediate issuance and service of the notice upon
the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent
himself shall verify, must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or
permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a
petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his
side. Thus, the fear of petitioner of being “stripped of family,
property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of
what happened” is a mere product of an overactive
imagination. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence
one may have in support of one’s defense. “To be heard” does
not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either
_______________
104 Sec. 15, A.M. No. 04-10-11-SC.
105 Sec. 16, A.M. No. 04-10-11-SC.
106 Sec. 20, A.M. No. 04-10-11-SC.
429
VOL. 699, JUNE 25, 2013 429
Garcia vs. Drilon
through oral arguments or pleadings, is accorded, there is no
denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006
an Opposition to the Urgent Ex-Parte Motion for Renewal of
the TPO that was granted only two days earlier on April 24,
2006. Likewise, on May 23, 2006, petitioner filed a motion for
the modification of the TPO to allow him visitation rights to
his children. Still, the trial court in its Order dated September
26, 2006, gave him five days (5) within which to show cause
why the TPO should not be renewed or extended. Yet, he chose
not to file the required comment arguing that it would just be
an “exercise in futility,” conveniently forgetting that the
renewal of the questioned TPO was only for a limited period
(30 days) each time, and that he could prevent the continued
renewal of said order if he can show sufficient cause therefor.
Having failed to do so, petitioner may not now be heard to
complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of
the respondent in the VAWC case from the residence of the
victim, regardless of ownership of the residence, is virtually a
“blank check” issued to the wife to claim any property as her
conjugal home.108
The wording of the pertinent rule, however, does not by any
stretch of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party.—The
protection order shall include any, some or all of the following
reliefs:
xxxx
(c) Removing and excluding the respondent from the
residence of the offended party, regardless of owner-
_______________
107 Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671 SCRA 66, 74.
108 Petition, Rollo, pp. 30-31.
430
430 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
ship of the residence, either temporarily for the purpose of
protecting the offended party, or permanently where no
property rights are violated. If the respondent must remove
personal effects from the residence, the court shall direct a
law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his
things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from
private respondent’s residence, regardless of ownership, only
temporarily for the purpose of protecting the latter. Such
removal and exclusion may be permanent only where no
property rights are violated. How then can the private
respondent just claim any property and appropriate it for
herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that “by criminalizing run-of-the-mill
arguments, instead of encouraging mediation and counseling,
the law has done violence to the avowed policy of the State to
“protect and strengthen the family as a basic autonomous
social institution.”109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court
shall not refer the case or any issue thereof to a mediator. The
reason behind this provision is well-explained by the
Commentary on Section 311 of the Model Code on Domestic
and Family Violence as follows:110
This section prohibits a court from ordering or referring
parties to mediation in a proceeding for an order for pro-
_______________
109 Id., at p. 36.
110 Supra note 49.
431
VOL. 699, JUNE 25, 2013 431
Garcia vs. Drilon
tection. Mediation is a process by which parties in equivalent
bargaining positions voluntarily reach consensual agreement
about the issue at hand. Violence, however, is not a
subject for compromise. A process which involves parties
mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with
the person against whom the protection order has been
sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the
exercise of judicial power which, under the Constitution, is
placed upon the “Supreme Court and such other lower courts
as may be established by law” and, thus, protests the
delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May
Issue and How.—Barangay Protection Orders (BPOs) refer to
the protection order issued by the Punong Barangay ordering
the perpetrator to desist from committing acts under Section
5 (a) and (b) of this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of
the basis of the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the
application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the
order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the
time of the issuance of the BPO. BPOs shall be effective for
fifteen
_______________
111 Petition, Rollo, pp. 130-131.
432
432 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
(15) days. Immediately after the issuance of an ex parte BPO,
the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the respondent, or
direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in
any proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112On the other hand,
executive power “is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws
into practical operation and enforcing their due observance.”113
As clearly delimited by the aforequoted provision, the BPO
issued by the Punong Barangay or, in his unavailability, by
any available Barangay Kagawad, merely orders the
perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman
or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to “enforce all laws
and ordinances,” and to “maintain public order in the
barangay.”114
We have held that “(t)he mere fact that an officer is
required by law to inquire into the existence of certain facts
and to apply the law thereto in order to determine what his
official conduct shall be and the fact that these acts may affect
_______________
112 Sec. 1, Article VIII, 1987 Constitution.
113 Laurel v. Desierto, 430 Phil. 658; 381 SCRA 48 (2002).
114 People v. Tomaquin, 478 Phil. 885, 899; 435 SCRA 23, 36 (2004), citing
Section 389, Chapter 3, Title One, Book III, Local Government Code of 1991,
as amended.
433
VOL. 699, JUNE 25, 2013 433
Garcia vs. Drilon
private rights do not constitute an exercise of judicial
powers.”115
In the same manner as the public prosecutor ascertains
through a preliminary inquiry or proceeding “whether there
is reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof,”
the Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the
woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with
the issuance of a BPO.
We need not even belabor the issue raised by petitioner
that since barangay officials and other law enforcement
agencies are required to extend assistance to victims of
violence and abuse, it would be very unlikely that they would
remain objective and impartial, and that the chances of
acquittal are nil. As already stated, assistance by barangay
officials and other law enforcement agencies is consistent with
their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are
voided, an unequivocal breach or a clear conflict with the
Constitution, not merely a doubtful or argumentative one,
must be demonstrated in such a manner as to leave no doubt
in the mind of the Court. In other words, the grounds for
nullity must be beyond reasonable doubt.116In the instant case,
however, no concrete evidence and convincing arguments
were presented by petitioner to warrant a declaration
_______________
115 Lovina and Montilla v. Moreno and Yonzon, 118 Phil 1401, 1406; 9
SCRA 557, 561 (1963).
116 Hacienda Luisita, Incorporated v. Presidential Agrarian Reform
Council, G.R. No. 171101, July 5, 2011, 653 SCRA 154, 258.
434
434 SUPREME COURT REPORTS ANNOTATED
Garcia vs. Drilon
of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-
equal executive department. As we said in Estrada v.
Sandiganbayan,117 courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers,
and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare
of the majority.
We reiterate here Justice Puno’s observation that “the
history of the women’s movement against domestic violence
shows that one of its most difficult struggles was the fight
against the violence of law itself. If we keep that in mind, law
will not again be a hindrance to the struggle of women for
equality but will be its fulfillment.”118Accordingly, the
constitutionality of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED for lack of merit.
SO ORDERED.
 For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the
Note.—Judge Arcaya-Chua is guilty of gross ignorance of 5th paragraph of Section 10, Republic Act (R.A.) No. 8042,2 to wit:
the law for issuing a Temporary Protection Order (TPO) in
Sec. 10. Money Claims. - x x x In case of termination of overseas
favor of petitioner Albert Chang Tan, since a TPO cannot be employment without just, valid or authorized cause as defined by law or
issued in favor of a man against his wife under R.A. No. 9292, contract, the workers shall be entitled to the full reimbursement of his
known as the Anti-Violence Against Women and Their placement fee with interest of twelve percent (12%) per annum, plus his
Children Act of 2004. (Ocampo vs. Arcaya-Chua, 619 SCRA 59 salaries for the unexpired portion of his employment contract or for three
[2010]) (3) months for every year of the unexpired term, whichever is less.
——o0o——
x x x x (Emphasis and underscoring supplied)
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
does not magnify the contributions of overseas Filipino workers (OFWs)
to national development, but exacerbates the hardships borne by them by
unduly limiting their entitlement in case of illegal dismissal to their lump-
sum salary either for the unexpired portion of their employment contract
"or for three months for every year of the unexpired term, whichever is
less" (subject clause). Petitioner claims that the last clause violates the
G.R. No. 167614 March 24, 2009 OFWs' constitutional rights in that it impairs the terms of their contract,
deprives them of equal protection and denies them due process.
ANTONIO M. SERRANO, Petitioner,
vs. By way of Petition for Review under Rule 45 of the Rules of Court,
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., petitioner assails the December 8, 2004 Decision3 and April 1, 2005
INC., Respondents. Resolution4 of the Court of Appeals (CA), which applied the subject
clause, entreating this Court to declare the subject clause unconstitutional.
DECISION
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow
AUSTRIA-MARTINEZ, J.: Navigation Co., Ltd. (respondents) under a Philippine Overseas
Employment Administration (POEA)-approved Contract of Employment
For decades, the toil of solitary migrants has helped lift entire families and with the following terms and conditions:
communities out of poverty. Their earnings have built houses, provided
health care, equipped schools and planted the seeds of businesses. They Duration of contract 12 months
have woven together the world by transmitting ideas and knowledge from
country to country. They have provided the dynamic human link between Position Chief Officer
cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts Basic monthly salary US$1,400.00
development, but how smart public policies can magnify this effect.
Hours of work 48.0 hours per week
United Nations Secretary-General Ban Ki-Moon
Global Forum on Migration and Development Overtime US$700.00 per month
Brussels, July 10, 20071
Vacation leave with pay 7.00 days per month5
On March 19, 1998, the date of his departure, petitioner was constrained
to accept a downgraded employment contract for the position of Second
Officer with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the
end of April 1998.6
Respondents did not deliver on their promise to make petitioner Chief
Officer.7 Hence, petitioner refused to stay on as Second Officer and was
repatriated to the Philippines on May 26, 1998.8
Petitioner's employment contract was for a period of 12 months or from
March 19, 1998 up to March 19, 1999, but at the time of his repatriation
on May 26, 1998, he had served only two (2) months and seven (7) days
of his contract, leaving an unexpired portion of nine (9) months and twenty-
three (23) days.
Petitioner filed with the Labor Arbiter (LA) a Complaint against 9 dismissal of petitioner illegal and awarding him monetary benefits,
respondents for constructive dismissal and for payment of his money
claims in the total amount of US$26,442.73, broken down as follows:
May 27/31, 1998 (5 days) incl. Leave pay
June 01/30, 1998
July 01/31, 1998
August 01/31, 1998
Sept. 01/30, 1998
Oct. 01/31, 1998
Nov. 01/30, 1998
Dec. 01/31, 1998
Jan. 01/31, 1999
Feb. 01/28, 1999
Mar. 1/19, 1999 (19 days) incl. leave pay
25,38
Amount adjusted to chief mate's salary
(March 19/31, 1998 to April 1/30, 1998) + 1,060
------
------
------
TOTAL CLAIM US$
as well as moral and exemplary damages and attorney's fees.
The LA rendered a Decision dated July 15, 1999, declaring the
to wit:
WHEREFORE, premises considered, judgment is hereby
rendered declaring that the dismissal of the complainant
US$ 413.90(petitioner) by the respondents in the above-entitled case was
illegal and the respondents are hereby ordered to pay the
2,590.00 complainant [petitioner], jointly and severally, in Philippine
2,590.00 Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED
2,590.00 SEVENTY U.S. DOLLARS (US $8,770.00), representing the
complainant’s salary for three (3) months of the unexpired
2,590.00 portion of the aforesaid contract of employment. 1avv phi 1
2,590.00 The respondents are likewise ordered to pay the complainant
[petitioner], jointly and severally, in Philippine Currency, based on
2,590.00 the rate of exchange prevailing at the time of payment, the amount
2,590.00 of FORTY FIVE U.S. DOLLARS (US$ 45.00),12 representing the
complainant’s claim for a salary differential. In addition, the
2,590.00 respondents are hereby ordered to pay the complainant, jointly
and severally, in Philippine Currency, at the exchange rate
2,590.00 prevailing at the time of payment, the complainant’s (petitioner's)
claim for attorney’s fees equivalent to ten percent (10%) of the total
1,640.00 amount awarded to the aforesaid employee under this Decision.
-----------------------------------
The claims of the complainant for moral and exemplary damages
-----------------------------------
are hereby DISMISSED for lack of merit.
----------
All other claims are hereby DISMISSED.
SO ORDERED.13 (Emphasis supplied)
In awarding petitioner a lump-sum salary of US$8,770.00, the LA
based his computation on the salary period of three months only -
- rather than the entire unexpired portion of nine months and 23
days of petitioner's employment contract - applying the subject
clause. However, the LA applied the salary rate of US$2,590.00,
consisting of petitioner's "[b]asic salary, US$1,400.00/month +
US$700.00/month, fixed overtime pay, + US$490.00/month,
vacation leave pay = US$2,590.00/compensation per month."14
Respondents appealed15 to the National Labor Relations
Commission (NLRC) to question the finding of the LA that
petitioner was illegally dismissed.
Petitioner also appealed16 to the NLRC on the sole issue that the
LA erred in not applying the ruling of the Court in Triple Integrated
Services, Inc. v. National Labor Relations Commission17 that in
case of illegal dismissal, OFWs are entitled to their salaries for the
unexpired portion of their contracts.18
In a Decision dated June 15, 2000, the NLRC modified the LA
Decision, to wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED.
Respondents are hereby ordered to pay complainant, jointly and
severally, in Philippine currency, at the prevailing rate of exchange
at the time of payment the following:
1. Three (3) months salary
$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney’s fees 424.50
TOTAL US$4,669.50
The other findings are affirmed.
SO ORDERED.19
The NLRC corrected the LA's computation of the lump-sum salary
awarded to petitioner by reducing the applicable salary rate from
US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide
for the award of overtime pay, which should be proven to have been
actually performed, and for vacation leave pay."20
Petitioner filed a Motion for Partial Reconsideration, but this time he
questioned the constitutionality of the subject clause.21 The NLRC denied
the motion.22
Petitioner filed a Petition for Certiorari23 with the CA, reiterating the
constitutional challenge against the subject clause.24 After initially
dismissing the petition on a technicality, the CA eventually gave due
course to it, as directed by this Court in its Resolution dated August 7,
2003 which granted the petition for certiorari, docketed as G.R. No.
151833, filed by petitioner.
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling
on the reduction of the applicable salary rate; however, the CA skirted the
constitutional issue raised by petitioner.25
His Motion for Reconsideration26 having been denied by the
CA,27 petitioner brings his cause to this Court on the following grounds:
I
The Court of Appeals and the labor tribunals have decided the case in a
way not in accord with applicable decision of the Supreme Court involving
similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to
three (3) months
II
In the alternative that the Court of Appeals and the Labor Tribunals were
merely applying their interpretation of Section 10 of Republic Act No. 8042,
it is submitted that the Court of Appeals gravely erred in law when it failed
to discharge its judicial duty to decide questions of substance not
theretofore determined by the Honorable Supreme Court, particularly, the
constitutional issues raised by the petitioner on the constitutionality of said
law, which unreasonably, unfairly and arbitrarily limits payment of the
award for back wages of overseas workers to three (3) months.
III
Even without considering the constitutional limitations [of] Sec. 10 of
Republic Act No. 8042, the Court of Appeals gravely erred in law in
excluding from petitioner’s award the overtime pay and vacation pay
provided in his contract since under the contract they form part of his
salary.28
On February 26, 2008, petitioner wrote the Court to withdraw his petition
as he is already old and sickly, and he intends to make use of the monetary
award for his medical treatment and medication.29 Required to comment,
counsel for petitioner filed a motion, urging the court to allow partial
execution of the undisputed monetary award and, at the same time,
praying that the constitutional question be resolved.30
Considering that the parties have filed their respective memoranda, the
Court now takes up the full merit of the petition mindful of the extreme
importance of the constitutional question raised therein.
On the first and second issues
The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora. What
remains disputed is only the computation of the lump-sum salary to be
awarded to petitioner by reason of his illegal dismissal.
Applying the subject clause, the NLRC and the CA computed the lump-
sum salary of petitioner at the monthly rate of US$1,400.00 covering the
period of three months out of the unexpired portion of nine months and 23
days of his employment contract or a total of US$4,200.00.
Impugning the constitutionality of the subject clause, petitioner contends
that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he
is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to
his salaries for the entire nine months and 23 days left of his employment
contract, computed at the monthly rate of US$2,590.00.31
The Arguments of Petitioner
Petitioner contends that the subject clause is unconstitutional because it
unduly impairs the freedom of OFWs to negotiate for and stipulate in their
overseas employment contracts a determinate employment period and a
fixed salary package.32 It also impinges on the equal protection clause, for
it treats OFWs differently from local Filipino workers (local workers) by
putting a cap on the amount of lump-sum salary to which OFWs are
entitled in case of illegal dismissal, while setting no limit to the same
monetary award for local workers when their dismissal is declared illegal;
that the disparate treatment is not reasonable as there is no substantial
distinction between the two groups;33 and that it defeats Section
18,34 Article II of the Constitution which guarantees the protection of the
rights and welfare of all Filipino workers, whether deployed locally or
overseas.35
Moreover, petitioner argues that the decisions of the CA and the labor
tribunals are not in line with existing jurisprudence on the issue of money
claims of illegally dismissed OFWs. Though there are conflicting rulings
on this, petitioner urges the Court to sort them out for the guidance of
affected OFWs.36
Petitioner further underscores that the insertion of the subject clause into
R.A. No. 8042 serves no other purpose but to benefit local placement
agencies. He marks the statement made by the Solicitor General in his
Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the
payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges
on its obligation. Hence, placement agencies that are in good faith and
which fulfill their obligations are unnecessarily penalized for the acts of the
foreign employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money
claims was reduced under Section 10 of R.A. No. 8042. 37 (Emphasis
supplied)
Petitioner argues that in mitigating the solidary liability of placement
agencies, the subject clause sacrifices the well-being of OFWs. Not only
that, the provision makes foreign employers better off than local employers
because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months
of the unexpired employment contract while local employers are liable for
the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the
amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on
the matter. On the other hand, foreign employers will only be limited to
giving the illegally dismissed migrant workers the maximum of three (3)
months unpaid salaries notwithstanding the unexpired term of the contract
that can be more than three (3) months.38
Lastly, petitioner claims that the subject clause violates the due process
clause, for it deprives him of the salaries and other emoluments he is
entitled to under his fixed-period employment contract.39
The Arguments of Respondents
In their Comment and Memorandum, respondents contend that the
constitutional issue should not be entertained, for this was belatedly
interposed by petitioner in his appeal before the CA, and not at the earliest
opportunity, which was when he filed an appeal before the NLRC.40
The Arguments of the Solicitor General
The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect
on July 15, 1995, its provisions could not have impaired petitioner's 1998
employment contract. Rather, R.A. No. 8042 having preceded petitioner's
contract, the provisions thereof are deemed part of the minimum terms of
petitioner's employment, especially on the matter of money claims, as this
was not stipulated upon by the parties.42
Moreover, the OSG emphasizes that OFWs and local workers differ in
terms of the nature of their employment, such that their rights to monetary
benefits must necessarily be treated differently. The OSG enumerates the
essential elements that distinguish OFWs from local workers: first, while
local workers perform their jobs within Philippine territory, OFWs perform
their jobs for foreign employers, over whom it is difficult for our courts to
acquire jurisdiction, or against whom it is almost impossible to enforce
judgment; and second, as held in Coyoca v. National Labor Relations
Commission43 and Millares v. National Labor Relations
Commission,44 OFWs are contractual employees who can never acquire
regular employment status, unlike local workers who are or can become
regular employees. Hence, the OSG posits that there are rights and
privileges exclusive to local workers, but not available to OFWs; that these
peculiarities make for a reasonable and valid basis for the differentiated
treatment under the subject clause of the money claims of OFWs who are
illegally dismissed. Thus, the provision does not violate the equal
protection clause nor Section 18, Article II of the Constitution.45
Lastly, the OSG defends the rationale behind the subject clause as a
police power measure adopted to mitigate the solidary liability of
placement agencies for this "redounds to the benefit of the migrant
workers whose welfare the government seeks to promote. The survival of
legitimate placement agencies helps [assure] the government that migrant
workers are properly deployed and are employed under decent and
humane conditions."46
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of
the acts of its co-equals, such as the Congress, it does so only when these
conditions obtain: (1) that there is an actual case or controversy involving
a conflict of rights susceptible of judicial determination;47 (2) that the
constitutional question is raised by a proper party48 and at the earliest
opportunity;49 and (3) that the constitutional question is the very lis mota
of the case,50otherwise the Court will dismiss the case or decide the same
on some other ground.51
Without a doubt, there exists in this case an actual controversy directly
involving petitioner who is personally aggrieved that the labor tribunals and
the CA computed his monetary award based on the salary period of three
months only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne in mind that
the requirement that a constitutional issue be raised at the earliest
opportunity entails the interposition of the issue in the pleadings before
a competent court, such that, if the issue is not raised in the pleadings
before that competent court, it cannot be considered at the trial and, if not
considered in the trial, it cannot be considered on appeal.52 Records
disclose that the issue on the constitutionality of the subject clause was
first raised, not in petitioner's appeal with the NLRC, but in his Motion for
Partial Reconsideration with said labor tribunal,53 and reiterated in his
Petition for Certiorari before the CA.54Nonetheless, the issue is deemed
seasonably raised because it is not the NLRC but the CA which has the
competence to resolve the constitutional issue. The NLRC is a labor
tribunal that merely performs a quasi-judicial function – its function in the
present case is limited to determining questions of fact to which the
legislative policy of R.A. No. 8042 is to be applied and to resolving such As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995
questions in accordance with the standards laid down by the law preceded the execution of the employment contract between petitioner
itself;55 thus, its foremost function is to administer and enforce R.A. No. and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
8042, and not to inquire into the validity of its provisions. The CA, on the particularly the subject clause, impaired the employment contract of the
other hand, is vested with the power of judicial review or the power to parties. Rather, when the parties executed their 1998 employment
declare unconstitutional a law or a provision thereof, such as the subject contract, they were deemed to have incorporated into it all the provisions
clause.56 Petitioner's interposition of the constitutional issue before the CA of R.A. No. 8042.
was undoubtedly seasonable. The CA was therefore remiss in failing to
take up the issue in its decision. But even if the Court were to disregard the timeline, the subject clause
may not be declared unconstitutional on the ground that it impinges on the
The third condition that the constitutional issue be critical to the resolution impairment clause, for the law was enacted in the exercise of the police
of the case likewise obtains because the monetary claim of petitioner to power of the State to regulate a business, profession or calling, particularly
his lump-sum salary for the entire unexpired portion of his 12-month the recruitment and deployment of OFWs, with the noble end in view of
employment contract, and not just for a period of three months, strikes at ensuring respect for the dignity and well-being of OFWs wherever they
the very core of the subject clause. may be employed.61Police power legislations adopted by the State to
promote the health, morals, peace, education, good order, safety, and
Thus, the stage is all set for the determination of the constitutionality of the general welfare of the people are generally applicable not only to future
subject clause. contracts but even to those already in existence, for all private contracts
must yield to the superior and legitimate measures taken by the State to
Does the subject clause violate Section 10, promote public welfare.62
Article III of the Constitution on non-impairment
of contracts? Does the subject clause violate Section 1,
Article III of the Constitution, and Section 18,
The answer is in the negative. Article II and Section 3, Article XIII on labor
as a protected sector?
Petitioner's claim that the subject clause unduly interferes with the
stipulations in his contract on the term of his employment and the fixed The answer is in the affirmative.
salary package he will receive57 is not tenable.
Section 1, Article III of the Constitution guarantees:
Section 10, Article III of the Constitution provides:
No person shall be deprived of life, liberty, or property without due process
No law impairing the obligation of contracts shall be passed. of law nor shall any person be denied the equal protection of the law.

The prohibition is aligned with the general principle that laws newly
enacted have only a prospective operation,58and cannot affect acts or
contracts already perfected;59 however, as to laws already in existence,
their provisions are read into contracts and deemed a part thereof.60 Thus,
the non-impairment clause under Section 10, Article II is limited in
application to laws about to be enacted that would in any way derogate
from existing acts or contracts by enlarging, abridging or in any manner
changing the intention of the parties thereto.
Section 18,63 Article II and Section 3,64 Article XIII accord all members of
the labor sector, without distinction as to place of deployment, full
protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing
constitutional provisions translate to economic security and parity: all
monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed
by, or spared the burden imposed on, others in like circumstances.65
Such rights are not absolute but subject to the inherent power of Congress
to incorporate, when it sees fit, a system of classification into its legislation;
however, to be valid, the classification must comply with these
requirements: 1) it is based on substantial distinctions; 2) it is germane to
the purposes of the law; 3) it is not limited to existing conditions only; and
4) it applies equally to all members of the class.66
There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the deferential or
rational basis scrutiny in which the challenged classification needs only be
shown to be rationally related to serving a legitimate state interest;67 b) the
middle-tier or intermediate scrutiny in which the government must show
that the challenged classification serves an important state interest and
that the classification is at least substantially related to serving that
interest;68 and c) strict judicial scrutiny69 in which a legislative classification
which impermissibly interferes with the exercise of a fundamental right70 or
operates to the peculiar disadvantage of a suspect class71 is presumed
unconstitutional, and the burden is upon 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.72
Under American jurisprudence, strict judicial scrutiny is triggered by
suspect classifications73 based on race74 or gender75 but not when the
classification is drawn along income categories.76
It is different in the Philippine setting. In Central Bank (now Bangko Sentral
ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng
Pilipinas,77 the constitutionality of a provision in the charter of the Bangko
Sentral ng Pilipinas(BSP), a government financial institution (GFI), was
challenged for maintaining its rank-and-file employees under the Salary
Standardization Law (SSL), even when the rank-and-file employees of
other GFIs had been exempted from the SSL by their respective charters.
Finding that the disputed provision contained a suspect classification
based on salary grade, the Court deliberately employed the standard of
strict judicial scrutiny in its review of the constitutionality of said provision.
More significantly, it was in this case that the Court revealed the broad
outlines of its judicial philosophy, to wit:
Congress retains its wide discretion in providing for a valid classification,
and its policies should be accorded recognition and respect by the courts
of justice except when they run afoul of the Constitution. The deference
stops where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution. When these
violations arise, this Court must discharge its primary role as the vanguard
of constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection
by the Constitution requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless, these foreign decisions
and authorities are not per se controlling in this jurisdiction. At best, they
are persuasive and have been used to support many of our decisions. We
should not place undue and fawning reliance upon them and regard them
as indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments. We live
in a different ambience and must decide our own problems in the light of
our own interests and needs, and of our qualities and even idiosyncrasies
as a people, and always with our own concept of law and justice. Our laws
must be construed in accordance with the intention of our own lawmakers
and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly, they
must be construed to serve our own public interest which is the be-all and
the end-all of all our laws. And it need not be stressed that our public
interest is distinct and different from others.
xxxx
Further, the quest for a better and more "equal" world calls for the use of
equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in the
Constitution. The Preamble proclaims "equality" as an ideal precisely in
protest against crushing inequities in Philippine society. The command to
promote social justice in Article II, Section 10, in "all phases of national
development," further explicitated in Article XIII, are clear commands to
the State to take affirmative action in the direction of greater equality. x x
x [T]here is thus in the Philippine Constitution no lack of doctrinal support
for a more vigorous state effort towards achieving a reasonable measure
of equality.
Our present Constitution has gone further in guaranteeing vital social and
economic rights to marginalized groups of society, including labor. Under
the policy of social justice, the law bends over backward to accommodate
the interests of the working class on the humane justification that those
with less privilege in life should have more in law. And the obligation to
afford protection to labor is incumbent not only on the legislative and
executive branches but also on the judiciary to translate this pledge into a
living reality. Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in
its rational and objectively secular conception may at least be
approximated.
xxxx
Under most circumstances, the Court will exercise judicial restraint in
deciding questions of constitutionality, recognizing the broad discretion
given to Congress in exercising its legislative power. Judicial scrutiny
would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment.
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial scrutiny
ought to be more strict. A weak and watered down view would call for
the abdication of this Court’s solemn duty to strike down any law repugnant
to the Constitution and the rights it enshrines. This is true whether the
actor committing the unconstitutional act is a private person or the
government itself or one of its instrumentalities. Oppressive acts will be
struck down regardless of the character or nature of the actor.
xxxx
In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a
benefit specifically withheld from the lower grades. Officers of the BSP
now receive higher compensation packages that are competitive with the
industry, while the poorer, low-salaried employees are limited to the rates
prescribed by the SSL. The implications are quite disturbing: BSP rank-
and-file employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the
rank-and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is they - and
not the officers - who have the real economic and financial need for the
adjustment . This is in accord with the policy of the Constitution "to free
the people from poverty, provide adequate social services, extend to them
a decent standard of living, and improve the quality of life for all." Any act
of Congress that runs counter to this constitutional desideratum deserves
strict scrutiny by this Court before it can pass muster. (Emphasis supplied)
Imbued with the same sense of "obligation to afford protection to labor,"
the Court in the present case also employs the standard of strict judicial
scrutiny, for it perceives in the subject clause a suspect classification
prejudicial to OFWs.
Upon cursory reading, the subject clause appears facially neutral, for it
applies to all OFWs. However, a closer examination reveals that the
subject clause has a discriminatory intent against, and an invidious impact
on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis-
à-vis OFWs with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than
one year; and
Third, OFWs vis-à-vis local workers with fixed-period employment;
OFWs with employment contracts of less than one year vis-à-
vis OFWs with employment contracts of one year or more
As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc.
v. National Labor Relations Commission79(Second Division, 1999) that the
Court laid down the following rules on the application of the periods
prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which
amount to award an illegally dismissed overseas contract worker,
i.e., whether his salaries for the unexpired portion of his employment
contract or three (3) months’ salary for every year of the unexpired
term, whichever is less, comes into play only when the employment
contract concerned has a term of at least one (1) year or more. This
is evident from the words "for every year of the unexpired term"
which follows the words "salaries x x x for three months." To follow
petitioners’ thinking that private respondent is entitled to three (3) months
salary only simply because it is the lesser amount is to completely
disregard and overlook some words used in the statute while giving effect
to some. This is contrary to the well-established rule in legal hermeneutics
that in interpreting a statute, care should be taken that every part or word
thereof be given effect since the law-making body is presumed to know
the meaning of the words employed in the statue and to have used them
Skippers v. Maguad84 6 months 2 months 4 month
advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied)
Bahia Shipping v. 9 months 8 months 4 month
In Marsaman, the OFW involved was illegally dismissed two months into Reynaldo Chua 85
his 10-month contract, but was awarded his salaries for the remaining 8
months and 6 days of his contract. Centennial 9 months 4 months 5 month
Transmarine v. dela
Prior to Marsaman, however, there were two cases in which the Court Cruz l86
made conflicting rulings on Section 10(5). One was Asian Center for
Career and Employment System and Services v. National Labor Relations Talidano v. Falcon87 12 months 3 months 9 month
Commission (Second Division, October 1998),81 which involved an OFW
who was awarded a two-year employment contract, but was dismissed Univan v. CA 88 12 months 3 months 9 month
after working for one year and two months. The LA declared his dismissal
illegal and awarded him SR13,600.00 as lump-sum salary covering eight Oriental v. CA 89 12 months more than 2 10 mont
months, the unexpired portion of his contract. On appeal, the Court months
reduced the award to SR3,600.00 equivalent to his three months’ salary,
this being the lesser value, to wit: PCL v. NLRC90 12 months more than 2 more or
months
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas
employment without just, valid or authorized cause is entitled to his salary Olarte v. Nayona91 12 months 21 days 11 mont
for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less. JSS v.Ferrer92 12 months 16 days 11 mont

Pentagon v. 12 months 9 months and 7 2 month

In the case at bar, the unexpired portion of private respondent’s
Adelantar93 days
employment contract is eight (8) months. Private respondent should
therefore be paid his basic salary corresponding to three (3) months or a Phil. Employ v. 12 months 10 months 2 month
total of SR3,600.82 Paramio, et al.94
Another was Triple-Eight Integrated Services, Inc. v. National Labor Flourish Maritime v. 2 years 26 days 23 mont
Relations Commission (Third Division, December 1998),83 which involved Almanzor 95
an OFW (therein respondent Erlinda Osdana) who was originally granted
a 12-month contract, which was deemed renewed for another 12 months. Athenna Manpower 1 year, 10 1 month 1 year,
After serving for one year and seven-and-a-half months, respondent v. Villanos 96 months and 28 28 days
Osdana was illegally dismissed, and the Court awarded her salaries for days
the entire unexpired portion of four and one-half months of her contract.

The Marsaman interpretation of Section 10(5) has since been adopted in As the foregoing matrix readily shows, the subject clause classifies OFWs
the following cases: into two categories. The first category includes OFWs with fixed-period
employment contracts of less than one year; in case of illegal dismissal,
they are entitled to their salaries for the entire unexpired portion of their
Case Title Contract Period of Service Unexpired PeriodThe second
contract. Periodcategory
Appliedconsists
in the of OFWs with fixed-period
Period Computation
employment contracts of one year of the in case of illegal dismissal,
or more;
Monetary
they are entitled to monetaryAward
award equivalent to only 3 months of the
unexpired portion of their contracts.
The disparity in the treatment of these two groups cannot be discounted.
Barros v. NLRC, et 12 months 4 months 8 month
In Skippers, the respondent OFW worked for only 2 months out of his 6-
al.103
month contract, but was awarded his salaries for the remaining 4 months.
In contrast, the respondent OFWs in Oriental and PCL who had also
Philippine 12 months 6 months and 22 5 month
worked for about 2 months out of their 12-month contracts were awarded
Transmarine v. days days
their salaries for only 3 months of the unexpired portion of their contracts.
Carilla104
Even the OFWs involved in Talidano and Univan who had worked for a
longer period of 3 months out of their 12-month contracts before being
illegally dismissed were awarded their salaries for only 3 months. It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract
periods or the unexpired portions thereof, were treated alike in terms of
To illustrate the disparity even more vividly, the Court assumes a the computation of their monetary benefits in case of illegal dismissal.
hypothetical OFW-A with an employment contract of 10 months at a Their claims were subjected to a uniform rule of computation: their basic
monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an salaries multiplied by the entire unexpired portion of their employment
employment contract of 15 months with the same monthly salary rate of contracts.
US$1,000.00. Both commenced work on the same day and under the
same employer, and were illegally dismissed after one month of work. The enactment of the subject clause in R.A. No. 8042 introduced a
Under the subject clause, OFW-A will be entitled to US$9,000.00, differentiated rule of computation of the money claims of illegally
equivalent to his salaries for the remaining 9 months of his contract, dismissed OFWs based on their employment periods, in the
whereas OFW-B will be entitled to only US$3,000.00, equivalent to his process singling out one category whose contracts have an unexpired
salaries for 3 months of the unexpired portion of his contract, instead of portion of one year or more and subjecting them to the peculiar
US$14,000.00 for the unexpired portion of 14 months of his contract, as disadvantage of having their monetary awards limited to their salaries for
the US$3,000.00 is the lesser amount. 3 months or for the unexpired portion thereof, whichever is less, but all the
while sparing the other category from such prejudice, simply because the
The disparity becomes more aggravating when the Court takes into latter's unexpired contracts fall short of one year.
account jurisprudence that, prior to the effectivity of R.A. No. 8042 on
July 14, 1995,97 illegally dismissed OFWs, no matter how long the period Among OFWs With Employment Contracts of More Than One Year
of their employment contracts, were entitled to their salaries for the entire
unexpired portions of their contracts. The matrix below speaks for itself: Upon closer examination of the terminology employed in the subject
clause, the Court now has misgivings on the accuracy of
Case Title Contract Period Period of the Period
Unexpired MarsamanPeriod
interpretation.
Applied in the
Service Computation of the
The Court notes that theAward
Monetary subject clause "or for three (3) months for every
year of the unexpired term, whichever is less" contains the qualifying
ATCI v. CA, et al.98 2 years 2 months phrases "every
22 months 22year"
monthsand "unexpired term." By its ordinary meaning, the
word "term" means a limited or definite extent of time.105 Corollarily, that
Phil. Integrated v. 2 years 7 days "every
23 months andyear"
23 is23but part ofand
months an "unexpired
23 days term" is significant in many ways:
NLRC99 days first, the unexpired term must be at least one year, for if it were any shorter,
there would be no occasion for such unexpired term to be measured by
JGB v. NLC100 2 years 9 months every year; and
15 months 15 second,
months the original term must be more than one year, for
otherwise, whatever would be the unexpired term thereof will not reach
Agoy v. NLRC101 2 years 2 months 22 months
even a year. Consequently,
22 months the more decisive factor in the determination
of when the subject clause "for three (3) months for every year of the
EDI v. NLRC, et al.102 2 years 5 months 19 months 19 months
unexpired term, whichever is less" shall apply is not the length of the
original contract period as held in Marsaman,106 but the length of the
unexpired portion of the contract period -- the subject clause applies in
cases when the unexpired portion of the contract period is at least one
year, which arithmetically requires that the original contract period be more
than one year.
Viewed in that light, the subject clause creates a sub-layer of
discrimination among OFWs whose contract periods are for more than one
year: those who are illegally dismissed with less than one year left in their
contracts shall be entitled to their salaries for the entire unexpired portion
thereof, while those who are illegally dismissed with one year or more
remaining in their contracts shall be covered by the subject clause, and
their monetary benefits limited to their salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the
subject clause, the Court assumes hypothetical OFW-C and OFW-D, who
each have a 24-month contract at a salary rate of US$1,000.00 per month.
OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
month. Considering that there is at least 12 months remaining in the
contract period of OFW-C, the subject clause applies to the computation
of the latter's monetary benefits. Thus, OFW-C will be entitled, not to
US$12,000,00 or the latter's total salaries for the 12 months unexpired
portion of the contract, but to the lesser amount of US$3,000.00 or the
latter's salaries for 3 months out of the 12-month unexpired term of the
contract. On the other hand, OFW-D is spared from the effects of the
subject clause, for there are only 11 months left in the latter's contract
period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent
to his/her total salaries for the entire 11-month unexpired portion.
OFWs vis-à-vis Local Workers
With Fixed-Period Employment
As discussed earlier, prior to R.A. No. 8042, a uniform system of
computation of the monetary awards of illegally dismissed OFWs was in
place. This uniform system was applicable even to local workers with
fixed-term employment.107
The earliest rule prescribing a uniform system of computation was actually
Article 299 of the Code of Commerce (1888),108 to wit:
Article 299. If the contracts between the merchants and their shop clerks
and employees should have been made of a fixed period, none of the
contracting parties, without the consent of the other, may withdraw from
the fulfillment of said contract until the termination of the period agreed
upon.
Persons violating this clause shall be subject to indemnify the loss and
damage suffered, with the exception of the provisions contained in the
following articles.
In Reyes v. The Compañia Maritima,109 the Court applied the foregoing
provision to determine the liability of a shipping company for the illegal
discharge of its managers prior to the expiration of their fixed-term
employment. The Court therein held the shipping company liable for the
salaries of its managers for the remainder of their fixed-term employment.
There is a more specific rule as far as seafarers are concerned: Article
605 of the Code of Commerce which provides:
Article 605. If the contracts of the captain and members of the crew with
the agent should be for a definite period or voyage, they cannot be
discharged until the fulfillment of their contracts, except for reasons of
insubordination in serious matters, robbery, theft, habitual drunkenness,
and damage caused to the vessel or to its cargo by malice or manifest or
proven negligence.
Article 605 was applied to Madrigal Shipping Company, Inc. v.
Ogilvie,110 in
which the Court held the shipping company liable for the salaries and
subsistence allowance of its illegally dismissed employees for
the entire unexpired portion of their employment contracts.
While Article 605 has remained good law up to the present,111 Article 299
of the Code of Commerce was replaced by Art. 1586 of the Civil Code of
1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired
for a certain time and for a certain work cannot leave or be dismissed
without sufficient cause, before the fulfillment of the contract. (Emphasis
supplied.)
Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or"
in Article 1586 as a conjunctive "and" so as to apply the provision to local
workers who are employed for a time certain although for no particular
skill. This interpretation of Article 1586 was reiterated in Garcia Palomar
v. Hotel de France Company.113 And in both Lemoine and Palomar, the
Court adopted the general principle that in actions for wrongful discharge
founded on Article 1586, local workers are entitled to recover damages to
the extent of the amount stipulated to be paid to them by the terms of their
contract. On the computation of the amount of such damages, the Court
in Aldaz v. Gay114 held:
The doctrine is well-established in American jurisprudence, and nothing
has been brought to our attention to the contrary under Spanish
jurisprudence, that when an employee is wrongfully discharged it is his
duty to seek other employment of the same kind in the same community,
for the purpose of reducing the damages resulting from such wrongful
discharge. However, while this is the general rule, the burden of showing
that he failed to make an effort to secure other employment of a like nature,
and that other employment of a like nature was obtainable, is upon the
defendant. When an employee is wrongfully discharged under a contract
of employment his prima facie damage is the amount which he would be
entitled to had he continued in such employment until the termination of
the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich.,
492; Farrell vs. School District No. 2, 98 Mich., 43.)115(Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new provisions
on fixed-term employment: Section 2 (Obligations with a Period), Chapter
3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of
Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly
provide for the remedies available to a fixed-term worker who is illegally
discharged. However, it is noted that in Mackay Radio & Telegraph Co.,
Inc. v. Rich,117 the Court carried over the principles on the payment of
damages underlying Article 1586 of the Civil Code of 1889 and applied the
same to a case involving the illegal discharge of a local worker whose
fixed-period employment contract was entered into in 1952, when the new
Civil Code was already in effect.118
More significantly, the same principles were applied to cases involving
overseas Filipino workers whose fixed-term employment contracts were
illegally terminated, such as in First Asian Trans & Shipping Agency, Inc.
v. Ople,119involving seafarers who were illegally discharged. In Teknika
Skills and Trade Services, Inc. v. National Labor Relations
Commission,120 an OFW who was illegally dismissed prior to the expiration
of her fixed-period employment contract as a baby sitter, was awarded
salaries corresponding to the unexpired portion of her contract. The Court
arrived at the same ruling in Anderson v. National Labor Relations
Commission,121 which involved a foreman hired in 1988 in Saudi Arabia for
a fixed term of two years, but who was illegally dismissed after only nine
months on the job -- the Court awarded him salaries corresponding to 15
months, the unexpired portion of his contract. In Asia World Recruitment,
Inc. v. National Labor Relations Commission,122 a Filipino working as a
security officer in 1989 in Angola was awarded his salaries for the
remaining period of his 12-month contract after he was wrongfully
discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations
Commission,123 an OFW whose 12-month contract was illegally cut short
in the second month was declared entitled to his salaries for the remaining
10 months of his contract.
In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term
employment who were illegally discharged were treated alike in terms of
the computation of their money claims: they were uniformly entitled to their
salaries for the entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the subject
clause, illegally dismissed OFWs with an unexpired portion of one year or
more in their employment contract have since been differently treated in
that their money claims are subject to a 3-month cap, whereas no such
limitation is imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a suspect
classification in that, in the computation of the monetary benefits of
fixed-term employees who are illegally discharged, it imposes a 3-
month cap on the claim of OFWs with an unexpired portion of one
year or more in their contracts, but none on the claims of other OFWs
or local workers with fixed-term employment. The subject clause
singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
There being a suspect classification involving a vulnerable sector
protected by the Constitution, the Court now subjects the classification to
a strict judicial scrutiny, and determines whether it serves a compelling
state interest through the least restrictive means.
What constitutes compelling state interest is measured by the scale of
rights and powers arrayed in the Constitution and calibrated by history.124 It
is akin to the paramount interest of the state125 for which some individual
liberties must give way, such as the public interest in safeguarding health
or maintaining medical standards,126 or in maintaining access to
information on matters of public concern.127
In the present case, the Court dug deep into the records but found no
compelling state interest that the subject clause may possibly serve.
The OSG defends the subject clause as a police power measure
"designed to protect the employment of Filipino seafarers overseas x x x.
By limiting the liability to three months [sic], Filipino seafarers have better
chance of getting hired by foreign employers." The limitation also protects
the interest of local placement agencies, which otherwise may be made to
shoulder millions of pesos in "termination pay."128
The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the
payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges
on its obligation. Hence, placement agencies that are in good faith and
which fulfill their obligations are unnecessarily penalized for the acts of the
foreign employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money
are reduced under Section 10 of RA 8042.
This measure redounds to the benefit of the migrant workers whose
welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers
are properly deployed and are employed under decent and humane
conditions.129 (Emphasis supplied)
However, nowhere in the Comment or Memorandum does the OSG cite
the source of its perception of the state interest sought to be served by the
subject clause.
The OSG locates the purpose of R.A. No. 8042 in the speech of Rep.
Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314),
from which the law originated;130 but the speech makes no reference to the
underlying reason for the adoption of the subject clause. That is only
natural for none of the 29 provisions in HB 14314 resembles the subject
clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision
on money claims, to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and
decide, within ninety (90) calendar days after the filing of the complaint,
the claims arising out of an employer-employee relationship or by virtue of
the complaint, the claim arising out of an employer-employee relationship
or by virtue of any law or contract involving Filipino workers for overseas
employment including claims for actual, moral, exemplary and other forms
of damages.
The liability of the principal and the recruitment/placement agency or any
and all claims under this Section shall be joint and several.
Any compromise/amicable settlement or voluntary agreement on any
money claims exclusive of damages under this Section shall not be less
than fifty percent (50%) of such money claims: Provided, That any
installment payments, if applicable, to satisfy any such compromise or
voluntary settlement shall not be more than two (2) months. Any
compromise/voluntary agreement in violation of this paragraph shall be
null and void.
Non-compliance with the mandatory period for resolutions of cases
provided under this Section shall subject the responsible officials to any or
all of the following penalties:
(1) The salary of any such official who fails to render his decision
or resolution within the prescribed period shall be, or caused to be,
withheld until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any
appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without
prejudice to any liability which any such official may have incurred under
other existing laws or rules and regulations as a consequence of violating
the provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on
the computation of money claims.
A rule on the computation of money claims containing the subject clause
was inserted and eventually adopted as the 5th paragraph of Section 10
of R.A. No. 8042. The Court examined the rationale of the subject clause
in the transcripts of the "Bicameral Conference Committee (Conference
Committee) Meetings on the Magna Carta on OCWs (Disagreeing
Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However,
the Court finds no discernible state interest, let alone a compelling one,
that is sought to be protected or advanced by the adoption of the subject
clause.
In fine, the Government has failed to discharge its burden of proving the
existence of a compelling state interest that would justify the perpetuation
of the discrimination against OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject
clause is to protect the employment of OFWs by mitigating the solidary
liability of placement agencies, such callous and cavalier rationale will
have to be rejected. There can never be a justification for any form of
government action that alleviates the burden of one sector, but imposes
the same burden on another sector, especially when the favored sector is
composed of private businesses such as placement agencies, while the
disadvantaged sector is composed of OFWs whose protection no less
than the Constitution commands. The idea that private business interest
can be elevated to the level of a compelling state interest is odious.
Moreover, even if the purpose of the subject clause is to lessen the
solidary liability of placement agencies vis-a-vistheir foreign principals,
there are mechanisms already in place that can be employed to achieve
that purpose without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and
Employment of Land-Based Overseas Workers, dated February 4, 2002,
imposes administrative disciplinary measures on erring foreign employers
who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary
disqualification to preventive suspension. The POEA Rules and
Regulations Governing the Recruitment and Employment of Seafarers,
dated May 23, 2003, contains similar administrative disciplinary measures
against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive
means of aiding local placement agencies in enforcing the solidary liability
of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No.
8042 is violative of the right of petitioner and other OFWs to equal
protection.1avv phi 1
Further, there would be certain misgivings if one is to approach the
declaration of the unconstitutionality of the subject clause from the lone
perspective that the clause directly violates state policy on labor under
Section 3,131Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are presumed self-
executing,132 there are some which this Court has declared not judicially
enforceable, Article XIII being one,133 particularly Section 3 thereof, the
nature of which, this Court, in Agabon v. National Labor Relations
Commission,134 has described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and security of
tenure may be deemed as self-executing in the sense that these are
automatically acknowledged and observed without need for any enabling
legislation. However, to declare that the constitutional provisions are
enough to guarantee the full exercise of the rights embodied therein, and
the realization of ideals therein expressed, would be impractical, if not
unrealistic. The espousal of such view presents the dangerous tendency
of being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible suggests a blanket
shield in favor of labor against any form of removal regardless of
circumstance. This interpretation implies an unimpeachable right to
continued employment-a utopian notion, doubtless-but still hardly within
the contemplation of the framers. Subsequent legislation is still needed to
define the parameters of these guaranteed rights to ensure the protection
and promotion, not only the rights of the labor sector, but of the employers'
as well. Without specific and pertinent legislation, judicial bodies will be at
a loss, formulating their own conclusion to approximate at least the aims
of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be
a source of a positive enforceable right to stave off the dismissal of an
employee for just cause owing to the failure to serve proper notice or
hearing. As manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for their
enforceability.135 (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal source of
direct enforceable rights, for the violation of which the questioned clause
may be declared unconstitutional. It may unwittingly risk opening the
floodgates of litigation to every worker or union over every conceivable
violation of so broad a concept as social justice for labor.
It must be stressed that Section 3, Article XIII does not directly bestow on
the working class any actual enforceable right, but merely clothes it with
the status of a sector for whom the Constitution urges protection through
executive or legislative action and judicial recognition. Its utility is best
limited to being an impetus not just for the executive and legislative
departments, but for the judiciary as well, to protect the welfare of the
working class. And it was in fact consistent with that constitutional agenda
that the Court in Central Bank (now Bangko Sentral ng Pilipinas)
Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by
then Associate Justice now Chief Justice Reynato S. Puno, formulated the
judicial precept that when the challenge to a statute is premised on the
perpetuation of prejudice against persons favored by the Constitution with
special protection -- such as the working class or a section thereof -- the
Court may recognize the existence of a suspect classification and subject
the same to strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial
scrutiny formulated in Central Bank Employee Association exaggerate the
significance of Section 3, Article XIII is a groundless
apprehension. Central Bank applied Article XIII in conjunction with the
equal protection clause. Article XIII, by itself, without the application of the
equal protection clause, has no life or force of its own as elucidated
in Agabon.
Along the same line of reasoning, the Court further holds that the subject
clause violates petitioner's right to substantive due process, for it deprives
him of property, consisting of monetary benefits, without any existing valid
governmental purpose.136
The argument of the Solicitor General, that the actual purpose of the
subject clause of limiting the entitlement of OFWs to their three-month
salary in case of illegal dismissal, is to give them a better chance of getting
hired by foreign employers. This is plain speculation. As earlier discussed,
there is nothing in the text of the law or the records of the deliberations
leading to its enactment or the pleadings of respondent that would indicate
that there is an existing governmental purpose for the subject clause, or
even just a pretext of one.
The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioner's right to equal protection, but also her right to substantive due
process under Section 1,137 Article III of the Constitution.
The subject clause being unconstitutional, petitioner is entitled to his
salaries for the entire unexpired period of nine months and 23 days of his
employment contract, pursuant to law and jurisprudence prior to the
enactment of R.A. No. 8042.
On the Third Issue
Petitioner contends that his overtime and leave pay should form part of
the salary basis in the computation of his monetary award, because these
are fixed benefits that have been stipulated into his contract.
Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime and leave
pay. For seafarers like petitioner, DOLE Department Order No. 33, series
1996, provides a Standard Employment Contract of Seafarers, in which
salary is understood as the basic wage, exclusive of overtime, leave pay
and other bonuses; whereas overtime pay is compensation for all work
"performed" in excess of the regular eight hours, and holiday pay is
compensation for any work "performed" on designated rest days and
holidays.
By the foregoing definition alone, there is no basis for the automatic
inclusion of overtime and holiday pay in the computation of petitioner's
monetary award, unless there is evidence that he performed work during
those periods. As the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138
However, the payment of overtime pay and leave pay should be
disallowed in light of our ruling in Cagampan v. National Labor Relations
Commission, to wit:
The rendition of overtime work and the submission of sufficient proof that
said was actually performed are conditions to be satisfied before a
seaman could be entitled to overtime pay which should be computed on
the basis of 30% of the basic monthly salary. In short, the contract
provision guarantees the right to overtime pay but the entitlement to such
benefit must first be established.
In the same vein, the claim for the day's leave pay for the unexpired portion
of the contract is unwarranted since the same is given during the actual
service of the seamen.
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for
three months for every year of the unexpired term, whichever is less" in
the 5th paragraph of Section 10 of Republic Act No. 8042
is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004
Decision and April 1, 2005 Resolution of the Court of Appeals
are MODIFIED to the effect that petitioner is AWARDED his salaries for
the entire unexpired portion of his employment contract consisting of nine
months and 23 days computed at the rate of US$1,400.00 per month.
No costs.
SO ORDERED.
496 SUPREME COURT REPORTS ANNOTATED
AAA vs. Carbonell
G.R. No. 171465. June 8, 2007. *
AAA, petitioner, vs. HON. ANTONIO A. CARBONELL, in
**
his capacity as Presiding Judge, Branch 27, Regional Trial
Court, San Fernando City, La Union and ENGR. JAIME O.
ARZADON, respondents.
Actions; Certiorari; Appeals; A petition for review on certiorari
under Rule 45 may be considered a petition for certiorari under Rule
65 where it is alleged that the respondents abused their discretion in
their questioned actions.—A petition for review on certiorari under
_______________
*THIRD DIVISION.
**Pursuant to Section 44 of Republic Act No. 9262 (AN ACT DEFINING
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN PROVIDING FOR
PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES
THEREFOR, AND FOR OTHER PURPOSES), All records pertaining to cases of
violence against women and their children including those in the barangay shall
be confidential and all public officers and employees and public or private clinics
or hospitals shall respect the right to privacy of the victim. Whoever publishes or
causes to be published, in any format, the name, address, telephone number,
school, business address, employer, or other identifying information of a victim or
an immediate family member, without the latter’s consent shall be liable to the
contempt power of the court.
497
VOL. 524, JUNE 8, 2007 497
AAA vs. Carbonell
Rule 45 is distinct from a petition for certiorari under Rule 65
in that the former brings up for review errors of judgment while the
latter concerns errors of jurisdiction or grave abuse of discretion
amounting to lack or excess of jurisdiction. Grave abuse of
discretion is not an allowable ground under Rule 45. However, a
petition for review on certiorari under Rule 45 may be considered a
petition for certiorari under Rule 65 where it is alleged that the
respondents abused their discretion in their questioned actions, as
in the instant case. While petitioner claims to have brought the
instant action under
_______________
Any person who violates this provision shall suffer the penalty of one (1) year
imprisonment and a fine of not more than Five Hundred Thousand Pesos
(P500,000.00).
Section 63, Rule XI of the RULES AND REGULATIONS IMPLEMENTING
REPUBLIC ACT NO. 9262 also provides: During the investigation, prosecution
and trial of an offense under the Act, law enforcement officials, prosecution, judges,
court personnel and medical practitioners, as well as parties to the case, shall
recognize the right to privacy of the victim-survivor of violence. Law enforcement
officers and prosecutors shall conduct closed-door investigations and shall not
allow the media to have access to any information regarding the victim-survivor.
The adult victim, however, may choose to go public or speak with the media,
preferably with the assistance of her counsel.
The barangay officials, law enforcers, prosecutors and court personnel shall
not disclose the names and personal circumstances of the victim-survivors or
complainants or any other information tending to establish their identities to the
media or to the public or compromise her identity.
It shall be unlawful for any editor, publisher, reporter or columnist in case
of printed materials, announcer or producer in case of television or radio, director
and editor of a film in case of the movie industry, or any person utilizing try-media
or information technology to cause publicity of the name of identity of the victim-
survivor or complainant without her consent. Identities of children shall not in any
way be disclosed to the public without the conformity of the DSWS officer of the
city or province.
Any person who violates this provision shall suffer the penalty of one (1) year
imprisonment and a fine of not more than Five Hundred Thousand Pesos
(P500,000.00).
498
498 SUPREME COURT REPORTS ANNOTATED
 AAA vs. Carbonell
Rule 45, the grounds raised herein involve an alleged grave
abuse of discretion on the part of respondent Judge Carbonell.
Accordingly, the Court shall treat the same as a petition
for certiorari under Rule 65.
Courts; Hierarchy of Courts; It is well-settled that although the
Supreme Court, Court of Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such
concurrence does not give the petitioner unrestricted freedom of
choice of court forum.—We must point out the procedural error
committed by petitioner in directly filing the instant petition before
this Court instead of the Court of Appeals, thereby violating the
principle of judicial hierarchy of courts. It is well-settled that
although the Supreme Court, Court of Appeals and the Regional
Trial Courts have concurrent jurisdiction to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, such concurrence does not give the petitioner
unrestricted freedom of choice of court forum. In this case, however,
the gravity of the offense charged and the length of time that has
passed since the filing of the complaint for rape, compel us to
resolve the present controversy in order to avoid further delay.
Searches and Seizures; Warrants of Arrest; Section 2, Article
III of the Constitution does not mandatorily require the judge to
personally examine the complainant and her witnesses—instead, he
may opt to personally evaluate the report and supporting documents
submitted by the prosecutor or he may disregard the prosecutor’s
report and require the submission of supporting affidavits of
witnesses.—He claims that under Section 2, Article III of the 1987
Constitution, no warrant of arrest shall issue except upon probable
cause “to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce.” However, in the leading case of Soliven v. Makasiar,
167 SCRA 393 (1988), the Court explained that this constitutional
provision does not mandatorily require the judge to personally
examine the complainant and her witnesses. Instead, he may opt to
personally evaluate the report and supporting documents
submitted by the prosecutor or he may disregard the prosecutor’s
report and require the submission of supporting affidavits of
witnesses.
499
VOL. 524, JUNE 8, 2007 499
AAA vs. Carbonell
Same; Preliminary Investigation; There is a distinction
between the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest and the preliminary
investigation proper which ascertains whether the offender should
be held for trial or be released—the former is made by the judge
while the latter is the function of the investigating prosecutor.—It is
well to remember that there is a distinction between the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest and the preliminary investigation
proper which ascertains whether the offender should be held for
trial or be released. The determination of probable cause for
purposes of issuing the warrant of arrest is made by the judge. The
preliminary investigation proper—whether or not there is
reasonable ground to believe that the accused is guilty of the offense
charged—is the function of the investigating prosecutor.
Same; Same; While there are cases where the circumstances
may call for the judge’s personal examination of the complainant
and his witnesses, it must be emphasized that such personal
examination is not mandatory and indispensable in the
determination of probable cause for the issuance of a warrant of
arrest—the necessity arises only when there is an utter failure of the
evidence to show the existence of probable cause.—True, there are
cases where the circumstances may call for the judge’s personal
examination of the complainant and his witnesses. But it must be
emphasized that such personal examination is not mandatory and
indispensable in the determination of probable cause for the
issuance of a warrant of arrest. The necessity arises only when
there is an utter failure of the evidence to show the existence of
probable cause. Otherwise, the judge may rely on the report of the
investigating prosecutor, provided that he likewise evaluates the
documentary evidence in support thereof. Indeed, what the law
requires as personal determination on the part of the judge is that
he should not rely solely on the report of the investigating
prosecutor. In Okabe v. Gutierrez, 429 SCRA 685 (2004), we
stressed that the judge should consider not only the report of the
investigating prosecutor but also the affidavit and the documentary
evidence of the parties, the counter-affidavit of the accused and his
witnesses, as well as the transcript of stenographic notes taken
during the preliminary investigation, if any, submitted to the court
by the investigating prosecutor upon the filing of the Information.
If the report, taken together with the supporting evidence, is
sufficient to sustain a finding of probable cause, it is not compulsory
that a
500
500 SUPREME COURT REPORTS ANNOTATED
AAA vs. Carbonell
personal examination of the complainant and his witnesses be
conducted.
Same; Same; Words and Phrases; It is well-settled that a
finding of probable cause need not be based on clear and convincing
evidence beyond reasonable doubt; Probable cause is that which
engenders a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof and should be
held for trial.—After a careful examination of the records, we find
that there is sufficient evidence to establish probable cause. The
gravamen of rape is the carnal knowledge by the accused of the
private complainant under any of the circumstances provided in
Article 335 of the Revised Penal Code, as amended. Petitioner has
categorically stated that Arzadon raped her, recounting her ordeal
in detail during the preliminary investigations. Taken with the
other evidence presented before the investigating prosecutors, such
is sufficient for purposes of establishing probable cause. It is well-
settled that a finding of probable cause need not be based on clear
and convincing evidence beyond reasonable doubt. Probable cause
is that which engenders a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and
should be held for trial. It does not require that the evidence would
justify conviction.
Same; Same; Where there is ample evidence and sufficient
basis on record to support a finding of probable cause, it is
unnecessary for a judge to take the further step of examining the
complainant and her witnesses, and if he dismisses the criminal
case for alleged lack of probable cause on the ground that
complainant and her witnesses failed to take the witness stand, he
gravely abuses his discretion.—It is clear therefore that respondent
Judge Carbonell gravely abused his discretion in dismissing
Criminal Case No. 6983 for lack of probable cause on the ground
that petitioner and her witnesses failed to take the witness stand.
Considering there is ample evidence and sufficient basis on record
to support a finding of probable cause, it was unnecessary for him
to take the further step of examining the petitioner and her
witnesses. Moreover, he erred in holding that petitioner’s absences
in the scheduled hearings were indicative of a lack of interest in
prosecuting the case. In fact, the records show that she has
relentlessly pursued the same.
501
VOL. 524, JUNE 8, 2007 501
AAA vs. Carbonell
PETITION for review on certiorari of a decision of the
Regional Trial Court of San Fernando, La Union, Br. 27.
The facts are stated in the opinion of the Court.
Wilfredo R. Cortez for petitioner.
M.B. Balloguing and Associates Law Offices for private
respondent Arzadon.
YNARES-SANTIAGO, J.:
This petition for certiorari assails the December 16,
1
2005 Order of the Regional Trial Court, Branch 27, San
2
Fernando, La Union in Criminal Case No. 6983, dismissing
the rape case filed against private respondent Jaime O.
Arzadon for lack of probable cause; and its February 3,
2006 Order denying petitioner’s motion for reconsideration.
3
Petitioner worked as a secretary at the Arzadon
Automotive and Car Service Center from February 28, 2001
to August 16, 2001. On May 27, 2001 at about 6:30 p.m.,
Arzadon asked her to deliver a book to an office located at
another building but when she returned to their office, the
lights had been turned off and the gate was closed.
Nevertheless, she went inside to get her handbag.
On her way out, she saw Arzadon standing beside a parked
van holding a pipe. He told her to go near him and upon
reaching his side, he threatened her with the pipe and forced
her to lie on the pavement. He removed her pants and
underwear, and inserted his penis into her vagina. She wept
and cried out for help but to no avail because there was nobody An Information for rape was filed before the Regional Trial
8

else in the premises. Court, Branch 27, San Fernando, La Union on February 6,
Petitioner did not report the incident because Arzadon 2004, docketed as Criminal Case No. 6415. Thereafter,
threatened to kill her and her family. But when she discov- Arzadon filed a “Motion to Hold in Abeyance All Court
Proceedings Including the Issuance of a Warrant of Arrest
_______________
and to Determine Probable Cause for the Purpose of Issuing
1 Rollo, pp. 4-18. a War-
2 Id., at pp. 20-22. Penned by Judge Antonio A. Carbonell.
3 Id., at pp. 24-26. _______________
502
4 Id., at pp. 28-29.
502 SUPREME COURT REPORTS ANNOTATED 5 Id., at pp. 168-170.
AAA vs. Carbonell 6 Id., at pp. 31-35.

ered that she was pregnant as a consequence of the rape, she 7 Id., at pp. 37-38.

8 Id., at p. 40.
narrated the incident to her parents. On July 24, 2002,
503
petitioner filed a complaint for rape against Arzadon. VOL. 524, JUNE 8, 2007 503
On September 16, 2002, Assistant City Prosecutor Imelda
AAA vs. Carbonell
Cosalan issued a Resolution finding probable cause and
4

rant of Arrest.” On March 18, 2004, respondent Judge

recommending the filing of an information for rape. Arzadon
9

Antonio A. Carbonell granted the motion and directed

moved for reconsideration and during the clarificatory
petitioner and her witnesses to take the witness stand for
hearing held on October 11, 2002, petitioner testified before
determination of probable cause.
the investigating prosecutor. However, she failed to attend
Arzadon also appealed the Resolution of the panel of
the next hearing hence, the case was provisionally dismissed.
prosecutors finding probable cause before the Department of
On March 5, 2003, petitioner filed another
Justice. On July 9, 2004, then Acting Secretary of Justice
AffidavitComplaint with a comprehensive account of the
5

Merceditas Gutierrez found no probable cause and directed

alleged rape incident. The case was assigned to 2nd Assistant
the withdrawal of the Information in Criminal Case No.
Provincial Prosecutor Georgina Hidalgo. During the
6415.
preliminary investigation, petitioner appeared for
10

Upon motion for reconsideration by petitioner, however,

clarificatory questioning. On June 11, 2003, the investigating
Secretary of Justice Raul Gonzales reversed the July 9, 2004
prosecutor issued a Resolution finding that a prima facie case
6

Resolution and issued another Resolution finding that

of rape exists and recommending the filing of the information.
11

probable cause exists. Thus, a new Information for rape was

Arzadon moved for reconsideration and requested that a
12

filed against Arzadon docketed as Criminal Case No. 6983.

panel of prosecutors be constituted to review the case. Thus,
Consequently, Arzadon filed an “Urgent Motion for
a panel of prosecutors was created and after the clarificatory
Judicial Determination of Probable Cause for the Purpose of
questioning, the panel issued on October 13, 2003 a
Issuing a Warrant of Arrest.” In an Order dated August 11,
Resolution finding probable cause and denying Arzadon’s
13
7

2005, respondent Judge Carbonell granted the motion and

motion for reconsideration.
directed petitioner and her witnesses to take the witness
stand.
 Instead of taking the witness stand, petitioner filed a PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF
motion for reconsideration claiming that the documentary THE MOTION FOR RECONSIDERATION
evidence sufficiently established the existence of probable
II
cause. Pending resolution thereof, she likewise filed a
petition with this Court for the transfer of venue of Criminal
14
RESPONDENT JUDGE COMMITTED FURTHER ACTS
Case No. 6983. The case was docketed as Administrative CONSTITUTING GRAVE ABUSE OF DISCRETION
Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION
of Criminal Case No. 6983, formerly Criminal Case No. 6415, WHEN IT ORDERED THE COMPLAINANT AND WITNESSES
from the Regional Trial Court, Branch 27, San Fernando City, TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING
La Union, to any Court in Metro Manila. PROBABLE CAUSE

_______________ III
9 Id., at pp. 42-46. RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
10 Id., at pp. 149-156. DISCRETION WHEN HE REFUSED TO INHIBIT FROM
11 Id., at pp. 79-82.

12 Id., at p. 85.
FURTHER HANDLING THE CASE DESPITE WHISPERS OF
13 Id., at pp. 87-90.
DOUBT ON HIS BIAS AND PARTIALITY
14 Records, Vol. 2, pp. 69-78.

504 IV
504 SUPREME COURT REPORTS ANNOTATED
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
AAA vs. Carbonell
DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY
In a Resolution dated January 18, 2006, the Court granted
15
3,
petitioner’s request for transfer of venue. The case was raffled
to the Regional Trial Court of Manila, Branch 25, and _______________
docketed as Criminal Case No. 06-242289. However, the 15 Rollo, p. 98.
proceedings have been suspended pending the resolution of 16 Id., at p. 12.
this petition. 505
Meanwhile, on December 16, 2005, respondent Judge VOL. 524, JUNE 8, 2007 505
Carbonell issued the assailed Order dismissing Criminal Case AAA vs. Carbonell
No. 6983 for lack of probable cause. Petitioner’s motion for 2006, DENYING THE MOTION FOR RECONSIDERATION,
reconsideration was denied hence, this petition. DESPITE THE SUPREME COURT RESOLUTION OF JANUARY
Petitioner raises the following issues:16 18, 2006, GRANTING THE TRANSFER OF VENUE
Petitioner contends that the judge is not required to
I personally examine the complainant and her witnesses in
satisfying himself of the existence of probable cause for the
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
issuance of a warrant of arrest. She argues that respondent
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT GRANTED THE MOTION FOR
Judge Carbonell should have taken into consideration the
DETERMINATION OF PROBABLE CAUSE FILED BY THE documentary evidence as well as the transcript of
stenographic notes which sufficiently established the
existence of probable cause.
Arzadon claims that the petition should be dismissed
outright for being the wrong mode of appeal, it appearing that
the issues raised by petitioner properly fall under an action
for certiorari under Rule 65, and not Rule 45, of the Rules of
Court.
Respondent Judge Carbonell argues in his Comment that 17
the finding of probable cause by the investigating prosecutor
is not binding or obligatory, and that he was justified in
requiring petitioner and her witnesses to take the witness
stand in order to determine probable cause.
The issues for resolution are 1) whether the petition should
be dismissed for being the wrong mode of appeal; and 2)
whether respondent Judge Carbonell acted with grave abuse
of discretion in dismissing Criminal Case No. 6983 for lack of
probable cause.
The petition has merit.
A petition for review on certiorari under Rule 45 is distinct
from a petition for certiorari under Rule 65 in that the former
brings up for review errors of judgment while the latter
concerns errors of jurisdiction or grave abuse of discretion
amounting to lack or excess of jurisdiction. Grave abuse of
discretion is not an allowable ground under Rule 45. However,
a petition for review on certiorari under Rule 45 may be
_______________
Id., at pp. 230-234.
17
506
506 SUPREME COURT REPORTS ANNOTATED
AAA vs. Carbonell
considered a petition for certiorari under Rule 65 where it is
alleged that the respondents abused their discretion in their
questioned actions, as in the instant case. While petitioner
18
claims to have brought the instant action under Rule 45, the
grounds raised herein involve an alleged grave abuse of
discretion on the part of respondent Judge Carbonell.
Accordingly, the Court shall treat the same as a petition
for certiorari under Rule 65.
However, we must point out the procedural error
committed by petitioner in directly filing the instant petition
before this Court instead of the Court of Appeals, thereby
violating the principle of judicial hierarchy of courts. It is well-
settled that although the Supreme Court, Court of Appeals
and the Regional Trial Courts have concurrent jurisdiction to
issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence
does not give the petitioner unrestricted freedom of choice of
court forum. In this case, however, the gravity of the offense
19
charged and the length of time that has passed since the filing
of the complaint for rape, compel us to resolve the present
controversy in order to avoid further delay. 20
We thus proceed to the issue of whether respondent Judge
Carbonell acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.
We rule in the affirmative.
Respondent Judge Carbonell dismissed Criminal Case No.
6983 for lack of probable cause on the ground that petitioner
and her witnesses failed to comply with his orders to take the
witness stand. Thus—
_______________
18 People v. Court of Appeals, 438 Phil. 215, 231; 389 SCRA 461, 475
(2002); GCP-Manny Transport Services, Inc. v. Principe, G.R. No. 141484,
November 11, 2005, 474 SCRA 555, 561-562.
19 Yared v. Ilarde, 391 Phil. 722, 733; 337 SCRA 53, 61 (2000).
20 See Ouano v. PGTT International Investment Corporation, 434 Phil. 28,
35; 384 SCRA 589, 593 (2002).
507
VOL. 524, JUNE 8, 2007 507
AAA vs. Carbonell
“In RESUME therefore, as indubitably borne out by the case record
and considering that the Private Prosecutor, despite several
admonitions contumaciously nay contemptuously refused to
comply/obey this Court’s Orders of March 18, 2004, August 11, 2005
and eight (8) other similar Orders issued in open Court that
directed the complainant/witnesses to take the witness stand to be
asked probing/clarificatory questions consonant with cited
jurisprudential rulings of the Supreme Court, this Court in the
exercise of its discretion and sound judgment finds and so holds that
NO probable cause was established to warrant the issuance of an
arrest order and the further prosecution of the instant case.
Record also shows in no unclear terms that in all the scheduled
hearings of the case, the accused had always been present.
A contrario, the private complainant failed to appear during the
last four (4) consecutive settings despite due notice without giving
any explanation, which to the mind of the Court may indicate an
apparent lack of interest in the further prosecution of this case.
That failure may even be construed as a confirmation of the
Defense’s contention reflected in the case record, that the only party
interested in this case is the Private prosecutor, prodded by the
accused’s alleged hostile siblings to continue with the case.
WHEREFORE, premises considered, for utter lack of probable
cause, the instant case is hereby ordered DISMISSED.” 21
He claims that under Section 2, Article III of the 1987
Constitution, no warrant of arrest shall issue except upon
probable cause “to be determined personally by the judge after
examination under oath or affirmation of the complainant and
the witnesses he may produce.”
However, in the leading case of Soliven v. Makasiar, the 22
Court explained that this constitutional provision does not
mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to
personally evaluate the report and supporting documents
submitted by the prosecutor or he may disregard the
prosecutor’s
_______________
Rollo, p. 22.
21
G.R. Nos. L-82585, L-82827, and L-83979, November 14, 1988, 167
22
SCRA 393.
508
508 SUPREME COURT REPORTS ANNOTATED
AAA vs. Carbonell
report and require the submission of supporting affidavits of
witnesses. Thus:
“The addition of the word “personally” after the word “determined”
and the deletion of the grant of authority by the 1973 Constitution
to issue warrants to “other responsible officers as may be
authorized by law,” has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the
fiscal’s report and require the submission of supporting affidavits
of witnesses to aid him in arriving at a conclusion as to the existence
of probable cause.
Sound policy dictates this procedure, otherwise judges would by
unduly laden with the preliminary examination and investigation
of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.”23
We reiterated the above ruling in the case of Webb v. De
Leon, where we held that before issuing warrants of arrest,
24
judges merely determine the probability, not the certainty, of
guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause.
They just personally review the initial determination of the
_______________
Id., at p. 398.
23
317 Phil. 758; 247 SCRA 652 (1995).
24
509
VOL. 524, JUNE 8, 2007 509
 AAA vs. Carbonell
prosecutor finding a probable cause to see if it is supported by
substantial evidence. 25
It is well to remember that there is a distinction between
the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest and the preliminary
investigation proper which ascertains whether the offender
should be held for trial or be released. The determination of
probable cause for purposes of issuing the warrant of arrest is
made by the judge. The preliminary investigation proper—
whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged—is the function of the
investigating prosecutor. 26
True, there are cases where the circumstances may call for
the judge’s personal examination of the complainant and his
witnesses. But it must be emphasized that such personal
examination is not mandatory and indispensable in the
determination of probable cause for the issuance of a warrant
of arrest. The necessity arises only when there is an utter
failure of the evidence to show the existence of probable
cause. Otherwise, the judge may rely on the report of the
27
investigating prosecutor, provided that he likewise evaluates
the documentary evidence in support thereof.
Indeed, what the law requires as personal
determination on the part of the judge is that he should not
rely solely on the report of the investigating prosecutor.
In Okabe v. Gutierrez, we stressed that the judge should
28
consider not only the report of the investigating prosecutor
but also the affidavit and the documentary evidence of the
parties, the counter-affidavit of the accused and his witnesses,
as well as the transcript of stenographic notes taken during
the preliminary investiga-
_______________
25 Id., at p. 793; p. 680.
26 People v. Inting, G.R. No. 88919, July 25, 1990, 187 SCRA 788, 792-793.
27 Webb v. De Leon, supra note 24 at p. 794; p. 680.
G.R. No. 150185, May 27, 2004, 429 SCRA 685.
28
510
510 SUPREME COURT REPORTS ANNOTATED
AAA vs. Carbonell
tion, if any, submitted to the court by the investigating
prosecutor upon the filing of the Information. If the report,
29
taken together with the supporting evidence, is sufficient to
sustain a finding of probable cause, it is not compulsory that
a personal examination of the complainant and his witnesses
be conducted.
In this case, respondent Judge Carbonell dismissed
Criminal Case No. 6983 without taking into consideration the
June 11, 2003 Resolution of 2nd Assistant Provincial
Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution
of the panel of prosecutors, and the July 1, 2005 Resolution of
the Department of Justice, all of which sustain a finding of
probable cause against Arzadon. Moreover, he failed to
evaluate the evidence in support thereof. Respondent judge’s
finding of lack of probable cause was premised only on the
complainant’s and her witnesses’ absence during the hearing
scheduled by the respondent judge for the judicial
determination of probable cause.
Petitioner narrated in detail the alleged rape incident both
in her Sinumpaang Salaysay dated July 24, 2002 and
30
Complaint-Affidavit dated March 5, 2003. She attended
31
several clarificatory hearings that were conducted in the
instant case. The transcript of stenographic notes of the
32
hearing held on October 11, 2002 shows that she positively
identified Arzadon as her assailant, and the specific time and
place of the incident. She also claimed that she bore a child as
a result of the rape and, in support of her contentions,
presented the child and her birth certificate as evidence. In
contrast, Arzadon merely relied on the defense of alibi which
is the weakest of all defenses.
_______________
29 Id., at p. 707.
 30 Records, Vol. 1, pp. 13-16.
Id., at pp. 8-10.
31
32 Id., at pp. 81-93.
511
VOL. 524, JUNE 8, 2007 511
AAA vs. Carbonell
After a careful examination of the records, we find that there
is sufficient evidence to establish probable cause. The
gravamen of rape is the carnal knowledge by the accused of
the private complainant under any of the circumstances
provided in Article 335 of the Revised Penal Code, as
amended. Petitioner has categorically stated that Arzadon
33
raped her, recounting her ordeal in detail during the
preliminary investigations. Taken with the other evidence
presented before the investigating prosecutors, such is
sufficient for purposes of establishing probable cause. It is
well-settled that a finding of probable cause need not be based
on clear and convincing evidence beyond reasonable doubt.
Probable cause is that which engenders a well-founded belief
that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial. It does not
require that the evidence would justify conviction. 34
It is clear therefore that respondent Judge Carbonell
gravely abused his discretion in dismissing Criminal Case No.
6983 for lack of probable cause on the ground that petitioner
and her witnesses failed to take the witness stand.
Considering there is ample evidence and sufficient basis on
record to support a finding of probable cause, it was
unnecessary for him to take the further step of examining the
petitioner and her witnesses. Moreover, he erred in holding
that petitioner’s absences in the scheduled hearings were
indicative of a lack of interest in prosecuting the case. In fact,
the records show that she has relentlessly pursued the same.
Needless to say, a full-blown trial is to be preferred to ferret
out the truth. As it were, the incidents of this case have been
35
pending for almost five years without having even passed the
preliminary investigation stage. Suffice to say that the
credibility of petitioner may be tested during the trial where
the respective allegations and defenses of the complainant
and the accused are properly ventilated. It is only then that
the truth as to Arzadon’s innocence or guilt can be
determined.
WHEREFORE, the petition is GRANTED. The Orders of
the Regional Trial Court, Branch 27, San Fernando, La Union
dated December 16, 2005, and February 3, 2006 dismissing
Criminal Case No. 6983 for lack of probable cause are
REVERSED and SET ASIDE, and the Information in the said
case is hereby REINSTATED. The Regional Trial Court,
Branch 25, Manila is DIRECTED to take cognizance of the
case and let the records thereof be REMANDED to the said
court for further proceedings.
SO ORDERED.
Austria-Martinez, Chico-Nazario and Nachura, JJ.,
concur.
Petition granted, orders reversed and set aside, Information
reinstated.
Notes.—The carrying of carton boxes is a common practice
among our people, especially those coming from the rural
areas, and thus by itself does not constitute probable cause for
the peace officer to search said box. (People vs. Barros, 231
SCRA 557 [1994])
“Personal knowledge of facts” in arrests without a warrant
must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. Arrest of suspects
by officers on the sole basis of a witness’ verbal report is
violative of such suspects’ fundamental right against an
unjustified warrantless arrest. (People vs. Mahusay, 282
SCRA 80 [1997])
——o0o——

G.R. No. 185128. January 30, 2012.*
[Formerly UDK No. 13980]
RUBEN DEL CASTILLO @ BOY CASTILLO,
petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.
Criminal Procedure; Constitutional Law; Searches and
Seizures; Search Warrants; Requisites for the Issuance of a Search
Warrant.—The requisites for the issuance of a search warrant are:
(1) probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must examine, in
writing and under oath or affirmation, the complainant and the
witnesses he or she may produce; (4) the applicant and the
witnesses testify on the facts personally known to them; and (5) the
warrant specifically describes the place to be searched and the
things to be seized.
Same; Probable Cause; Words and Phrases; Defined.—
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought
to be searched. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable
cause demands more than bare suspicion; it requires less than
evidence which would justify conviction. The judge, in determining
probable cause, is to consider the totality of the circumstances made
known to him and not by a fixed and rigid formula, and must
employ a flexible, totality of the circumstances standard. The
existence depends to a large degree upon the finding or opinion of
the judge conducting the examination. This Court, therefore, is in
no position to disturb the factual findings of the judge which led to
the issuance of the search warrant. A magistrate’s determination of
probable cause for the issuance of a search warrant is paid great
deference by a reviewing court, as long as there was substantial
basis for that determination. Substantial basis means that the
questions of the examining judge brought out such facts and
circumstances as would lead a reasonably discreet and prudent
man to believe that an offense has been committed, and the objects
in connection with the offense sought to be seized are in the place
sought to be searched. A review of the records shows that in the
present case, a substantial basis exists.
_______________
* THIRD DIVISION.
431
VOL. 664, JANUARY 30, 2012 431
Del Castillo vs. People
Same; Constitutional Law; Search Warrants; The warrant
issued must particularly describe the place to be searched and
persons or things to be seized in order for it to be valid.—The
warrant issued must particularly describe the place to be searched
and persons or things to be seized in order for it to be valid. A
designation or description that points out the place to be searched
to the exclusion of all others, and on inquiry unerringly leads the
peace officers to it, satisfies the constitutional requirement of
definiteness. In the present case, Search Warrant No. 570-9-1197-
24 specifically designates or describes the residence of the
petitioner as the place to be searched. Incidentally, the items were
seized by a barangay tanod in a nipa hut, 20 meters away from the
residence of the petitioner. The confiscated items, having been
found in a place other than the one described in the search warrant,
can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner’s
constitutional guaranty against unreasonable searches and seizure.
The OSG argues that, assuming that the items seized were found
in another place not designated in the search warrant, the same
items should still be admissible as evidence because the one who
discovered them was a barangay tanodwho is a private individual,
the constitutional guaranty against unreasonable searches and
seizure being applicable only against government authorities. The
contention is devoid of merit.
Same; Same; Administrative Law; Agents of Persons in
Authority; Barangay Tanods; The Local Government Code contains
a provision which describes the function of a barangay tanod as an
agent of persons in authority.—Having been established that the
assistance of the barangay tanods was sought by the police
authorities who effected the searched warrant, the same barangay
tanods therefore acted as agents of persons in authority. Article 152
of the Revised Penal Code defines persons in authority and agents
of persons in authority as: x x x any person directly vested with
jurisdiction, whether as an individual or as a member of some court
or governmental corporation, board or commission, shall be deemed
a person in authority. A barangay captain and
a barangay chairman shall also be deemed a person in authority. A
person who, by direct provision of law or by election or by
appointment by competent authority, is charged with the
maintenance of public order and the protection and security of life
and property, such as barrio councilman, barrio policeman
and barangay leader, and any person who comes to the aid of
persons in authority, shall be deemed an agent of a person in
authority. The Local Government Code also contains a provision
which describes the function of a barangay tanod as an agent of
persons in authority.432
432 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
Criminal Law; Dangerous Drugs Act; Illegal Possession of
Shabu, Elements of.—In every prosecution for the illegal possession
of shabu, the following essential elements must be established: (a)
the accused is found in possession of a regulated drug; (b) the person
is not authorized by law or by duly constituted authorities; and (c)
the accused has knowledge that the said drug is a regulated drug.
Criminal Procedure; Constitutional Law; Searches and
Seizures; While it is not necessary that the property to be searched
or seized should be owned by the person against whom the search
warrant is issued, there must be sufficient showing that the property
is under appellant’s control or possession.—While it is not necessary
that the property to be searched or seized should be owned by the
person against whom the search warrant is issued, there must be
sufficient showing that the property is under appellant’s control or
possession. The CA, in its Decision, referred to the possession of
regulated drugs by the petitioner as a constructive one.
Constructive possession exists when the drug is under the dominion
and control of the accused or when he has the right to exercise
dominion and control over the place where it is found. The records
are void of any evidence to show that petitioner owns the nipa hut
in question nor was it established that he used the said structure
as a shop. The RTC, as well as the CA, merely presumed that
petitioner used the said structure due to the presence of electrical
materials, the petitioner being an electrician by profession.
Same; Same; Presumption of Innocence; Evidence; Proof
Beyond Reasonable Doubt; The accused, in all criminal
prosecutions, is presumed innocent of the charge laid unless the
contrary is proven beyond reasonable doubt.—In considering a
criminal case, it is critical to start with the law’s own starting
perspective on the status of the accused—in all criminal
prosecutions, he is presumed innocent of the charge laid unless the
contrary is proven beyond reasonable doubt. Proof beyond
reasonable doubt, or that quantum of proof sufficient to produce a
moral certainty that would convince and satisfy the conscience of
those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Remegio C. Dayandayan for petitioner.433
VOL. 664, JANUARY 30, 2012 433
Del Castillo vs. People
Office of the Solicitor General for respondent.
PERALTA, J.:
For this Court’s consideration is the Petition for
Review1 on Certiorari under Rule 45 of Ruben del Castillo
assailing the Decision2 dated July 31, 2006 and
Resolution3 dated December 13, 2007 of the Court of Appeals
(CA) in CA-G.R. CR No. 27819, which affirmed the Decision4
dated March 14, 2003 of the Regional Trial Court (RTC),
Branch 12, Cebu, in Criminal Case No. CBU-46291, finding
petitioner guilty beyond reasonable doubt of violation of
Section 16, Article III of Republic Act (R.A.) 6425.
The facts, as culled from the records, are the following:
Pursuant to a confidential information that petitioner was
engaged in selling shabu, police officers headed by SPO3
Bienvenido Masnayon, after conducting surveillance and test-
buy operation at the house of petitioner, secured a search
warrant from the RTC and around 3 o’clock in the afternoon
of September 13, 1997, the same police operatives went to Gil
Tudtud St., Mabolo, Cebu City to serve the search warrant to
petitioner.
Upon arrival, somebody shouted “raid,” which prompted
them to immediately disembark from the jeep they were
riding and went directly to petitioner’s house and cordoned it.
The structure of the petitioner’s residence is a two-storey
house and the petitioner was staying in the second floor.
When they went upstairs, they met petitioner’s wife and
informed her that they will implement the search warrant.
But before they can search the area, SPO3 Masnayon claimed
that he saw petitioner run towards a small structure, a nipa
hut, in front of his house. Masnayon chased him but to no
avail, be-
_______________
1 Dated August 23, 2008, Rollo, pp. 32-44.
2 Penned by Associate Justice Marlene Gonzales-Sison, with Associate
Justices Pampio A. Abarintos and Priscilla Baltazar-Padilla, concurring; id.,
at pp. 54-70.
3 Dated August 23, 2008, id., at pp. 71-72.
4 Penned by Presiding Judge Aproniano B. Taypin; id., at pp. 45-53.
434
434 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
cause he and his men were not familiar with the entrances
and exits of the place.
They all went back to the residence of the petitioner and
closely guarded the place where the subject ran for cover.
SPO3 Masnayon requested his men to get a barangay
tanod and a few minutes thereafter, his men returned with
two barangay tanods.
In the presence of the barangay tanod, Nelson Gonzalado,
and the elder sister of petitioner named Dolly del Castillo,
searched the house of petitioner including the nipa hut where
the petitioner allegedly ran for cover. His men who searched
the residence of the petitioner found nothing, but one of
the barangay tanods was able to confiscate from the nipa hut
several articles, including four (4) plastic packs containing
white crystalline substance. Consequently, the articles that
were confiscated were sent to the PNP Crime Laboratory for
examination. The contents of the four (4) heat-sealed
transparent plastic packs were subjected to laboratory
examination, the result of which proved positive for the
presence of methamphetamine hydrochloride, or shabu.
Thus, an Information was filed before the RTC against
petitioner, charging him with violation of Section 16, Article
III of R.A. 6425, as amended. The Information5 reads:
“That on or about the 13th day of September 1997, at about 3:00
p.m. in the City of Cebu, Philippines and within the jurisdiction of
this Honorable Court, the said accused, with deliberate intent, did
then and there have in his possession and control four (4) packs of
white crystalline powder, having a total weight of 0.31 gram, locally
known as “shabu,” all containing methamphetamine hydrochloride,
a regulated drug, without license or prescription from any
competent authority.
CONTRARY TO LAW.”6
During arraignment, petitioner, with the assistance of his
counsel, pleaded not guilty.7 Subsequently, trial on the merits
ensued.
_______________
5 Records, pp. 1-2.
6 Id., at p. 1.
7 Id., at p. 57.
435
VOL. 664, JANUARY 30, 2012 435
Del Castillo vs. People
To prove the earlier mentioned incident, the prosecution
presented the testimonies of SPO3 Bienvenido Masnayon,
PO2 Milo Arriola, and Forensic Analyst, Police Inspector
Mutchit Salinas.
The defense, on the other hand, presented the testimonies
of petitioner, Jesusa del Castillo, Dalisay del Castillo and
Herbert Aclan, which can be summarized as follows:
On September 13, 1997, around 3 o’clock in the afternoon,
petitioner was installing the electrical wirings and
airconditioning units of the Four Seasons Canteen and
Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was
able to finish his job around 6 o’clock in the evening, but he
was engaged by the owner of the establishment in a
conversation. He was able to go home around 8:30-9 o’clock in
the evening. It was then that he learned from his wife that
police operatives searched his house and found nothing.
According to him, the small structure, 20 meters away from
his house where they found the confiscated items, was owned
by his older brother and was used as a storage place by his
father.
After trial, the RTC found petitioner guilty beyond
reasonable of the charge against him in the Information. The
dispositive portion of the Decision reads:
“WHEREFORE, premises considered, this Court finds the
accused Ruben del Castillo “alyas Boy Castillo,” GUILTY of
violating Section 16, Article III, Republic Act No. 6425, as amended.
There being no mitigating nor aggravating circumstances proven
before this Court, and applying the Indeterminate Sentence Law,
he is sentenced to suffer the penalty of Six (6) Months and One (1)
Day as Minimum and Four (4) Years and Two (2) Months as
Maximum of Prision Correccional.
The four (4) small plastic packets of white crystalline substance
having a total weight of 0.31 gram, positive for the presence of
methamphetamine hydrochloride, are ordered confiscated and shall
be destroyed in accordance with the law.
SO ORDERED.”8
_______________
8 Id., at p. 254.
436
436 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
Aggrieved, petitioner appealed his case with the CA, but
the latter affirmed the decision of the RTC, thus:
“WHEREFORE, the challenged Decision is AFFIRMED in
toto and the appeal is DISMISSED, with costs against accused-
appellant.
SO ORDERED.”9
After the motion for reconsideration of petitioner was
denied by the CA, petitioner filed with this Court the present
petition for certiorari under Rule 45 of the Rules of Court with
the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS APPLICATION
OF THE PROVISIONS OF THE CONSTITUTION, THE RULES
OF COURT AND ESTABLISHED JURISPRUDENCE VIS-À-
VIS VALIDITY OF SEARCH WARRANT NO. 570-9-1197-24;
2. THE COURT OF APPEALS ERRED IN RULING THAT THE
FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER
ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR
STRUCTURE ARE ADMISSIBLE IN EVIDENCE AGAINST THE
PETITIONER, NOT ONLY BECAUSE THE SAID COURT
SIMPLY PRESUMED THAT IT WAS USED BY THE
PETITIONER OR THAT THE PETITIONER RAN TO IT FOR
COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS
RESIDENCE, BUT ALSO, PRESUMING THAT THE SAID NIPA
HUT OR STRUCTURE WAS INDEED USED BY THE
PETITIONER AND THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER WERE FOUND THEREAT. THE
SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE
POWDER ARE FRUITS OF THE POISONOUS TREE; and
3. THE COURT OF APPEALS ERRED IN ITS APPLICATION
OF THE ELEMENT OF “POSSESSION” AS AGAINST THE
PETITIONER, AS IT WAS IN VIOLATION OF THE
ESTABLISHED JURISPRUDENCE ON THE MATTER. HAD
THE SAID COURT PROPERLY APPLIED THE ELEMENT IN
QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE
SAME HAD NOT BEEN PROVEN.10
_______________
9 Rollo, p. 70.
10 Id., at p. 37.
437
VOL. 664, JANUARY 30, 2012 437
Del Castillo vs. People
The Office of the Solicitor General (OSG), in its Comment
dated February 10, 2009, enumerated the following counter-
arguments:
I
SEARCH WARRANT No. 570-9-11-97-24 issued by Executive
Judge Priscilla S. Agana of Branch 24, Regional Trial Court of Cebu
City is valid.
II
The four (4) packs of shabu seized inside the shop of petitioner are
admissible in evidence against him.
III
The Court of Appeals did not err in finding him guilty of illegal
possession of prohibited drugs.11
Petitioner insists that there was no probable cause to issue
the search warrant, considering that SPO1 Reynaldo
Matillano, the police officer who applied for it, had no personal
knowledge of the alleged illegal sale of drugs during a test-
buy operation conducted prior to the application of the same
search warrant. The OSG, however, maintains that the
petitioner, aside from failing to file the necessary motion to
quash the search warrant pursuant to Section 14, Rule 127 of
the Revised Rules on Criminal Procedure, did not introduce
clear and convincing evidence to show that Masnayon was
conscious of the falsity of his assertion or representation.
Anent the second argument, petitioner asserts that the
nipa hut located about 20 meters away from his house is no
longer within the “permissible area” that may be searched by
the police officers due to the distance and that the search
warrant did not include the same nipa hut as one of the places
to be searched. The OSG, on the other hand, argues that the
constitutional guaranty against unreasonable searches and
seizure is applicable only against government authorities and
not to private individuals such as the barangay tanodwho
found the folded paper containing packs of shabu inside the
nipa hut.
_______________
11 Id., at pp. 98-103.
438
438 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
As to the third argument raised, petitioner claims that the
CA erred in finding him guilty beyond reasonable doubt of
illegal possession of prohibited drugs, because he could not be
presumed to be in possession of the same just because they
were found inside the nipa hut. Nevertheless, the OSG
dismissed the argument of the petitioner, stating that, when
prohibited and regulated drugs are found in a house or other
building belonging to and occupied by a particular person, the
presumption arises that such person is in possession of such
drugs in violation of law, and the fact of finding the same is
sufficient to convict.
This Court finds no merit on the first argument of
petitioner.
The requisites for the issuance of a search warrant are: (1)
probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must
examine, in writing and under oath or affirmation, the
complainant and the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts personally
known to them; and (5) the warrant specifically describes the
place to be searched and the things to be seized.12 According to
petitioner, there was no probable cause. Probable cause for a
search warrant is defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the
objects sought in connection with the offense are in the place
sought to be searched.13 A finding of probable cause needs only
to rest on evidence showing that, more likely than not, a crime
has been committed and that it was committed by the accused.
Probable cause demands more than bare suspicion; it requires
less than evidence which would justify conviction.14 The judge,
in determining probable cause, is to consider the totality of
_______________
12 Abuan v. People, G.R. No. 168773, October 27, 2006, 505 SCRA 799,
822, citing People v. Francisco, G.R. No. 129035, August 22, 2002, 387 SCRA
569, 575.
13 Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23, 2007, 538
SCRA 474, 484, citing Columbia Pictures, Inc. v. Court of Appeals, 329 Phil.
875, 903; 261 SCRA 144, 164 (1996).
14 Id., citing Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41,
February 16, 2005, 451 SCRA 533, 550.
439
VOL. 664, JANUARY 30, 2012
Del Castillo vs. People
the circumstances made known to him and not by a fixed and
rigid formula,15 and must employ a flexible, totality of the
circumstances standard.16 The existence depends to a large
degree upon the finding or opinion of the judge conducting the
examination. This Court, therefore, is in no position to disturb
the factual findings of the judge which led to the issuance of
the search warrant. A magistrate’s determination of probable
cause for the issuance of a search warrant is paid great
deference by a reviewing court, as long as there was
substantial basis for that determination.17 Substantial basis
means that the questions of the examining judge brought out
such facts and circumstances as would lead a reasonably
discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense
sought to be seized are in the place sought to be searched.18 A
review of the records shows that in the present case, a
substantial basis exists.
With regard to the second argument of petitioner, it must
be remembered that the warrant issued must particularly
describe the place to be searched and persons or things to be
seized in order for it to be valid. A designation or description
that points out the place to be searched to the exclusion of all
others, and on inquiry unerringly leads the peace officers to
it, satisfies the constitutional requirement of definiteness.19 In
the present case, Search Warrant No. 570-9-1197-
2420 specifically designates or describes the residence of the
petitioner as the place to be searched. Incidentally, the items
were seized by a barangay tanod in a nipa hut, 20 meters
away from the residence of the petitioner. The confiscated
items, having been found in a place
_______________
15 Abuan v. People, supra note 12, citing People v. Tampis, 467 Phil. 582,
590; 407 SCRA 582, 590 (2003); Massachusetts v. Upton, 466 US 727, 104 S.Ct.
2085 (1984).
16 Id., citing US v. Canan, 48 F.3d 954 (1995).
17 People v. Estela Tuan, G.R. No. 176066, August 11, 2011, 628 SCRA
439 226.
18 Id. citing People v. Tee, 443 Phil. 521, 540; 395 SCRA 419, 437-438
(2003).
19 People v. Tee, supra.
20 Records, p. 114.
440
440 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
other than the one described in the search warrant, can be
considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of
petitioner’s constitutional guaranty against unreasonable
searches and seizure. The OSG argues that, assuming that
the items seized were found in another place not designated
in the search warrant, the same items should still be
admissible as evidence because the one who discovered them
was a barangay tanod who is a private individual, the
constitutional guaranty against unreasonable searches and
seizure being applicable only against government authorities.
The contention is devoid of merit.
It was testified to during trial by the police officers who
effected the search warrant that they asked the assistance of
the barangay tanods, thus, in the testimony of SPO3
Masnayon:
Fiscal Centino:
Q For how long did the chase take place?
A Just a very few moments.
Q After that, what did you [do] when you were not able to reach him?
A I watched his shop and then I requested my men to get a barangay tanod.
Q Were you able to get a barangay tanod?
A Yes.
Q Can you tell us what is the name of the barangay tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod [did] your driver get?
A Two.
Q What happened after that?
A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?
A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with Matillano.441
 VOL. 664, JANUARY 30, 2012 441 A No. Ruben was not in the house. But our team leader, team mate Bienvenido
Masnayon saw that Ruben ran away from his adjacent electronic shop near
Del Castillo vs. People his house, in front of his house.
Q What about the barangay tanod? Q Did you find anything during the search in the house of Ruben del Castillo?
A Together with Milo and Pogoso. A After our search in the house, we did not see anything. The house was clean.
Q When the search at the second floor of the house yielded negative Q What did you do afterwards, if any?
what did you do? A We left (sic) out of the house and proceeded to his electronic shop.
A They went downstairs because I was suspicious of his shop because Q Do you know the reason why you proceeded to his electronic shop?
he ran from his shop, so we searched his shop. A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run
Q Who were with you when you searched the shop? from that store and furthermore the door was open.
A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Q How far is the electronic shop from the house of Ruben del Castillo?
Castillo named Dolly del Castillo. A More or less, 5 to 6 meters in front of his house.
Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, xxxx
Barangay Tanod Nilo Gonzalado and the elder sister of Ruben del Q So, who entered inside the electronic shop?
Castillo were together in the shop? A The one who first entered the electronic shop is our team leader Bienvenido
A Yes. Masnayon.
Q What happened at the shop? Q You mentioned that Masnayon entered first. Do you mean to say that there
A One of the barangay tanods was able to pick up white folded paper. were other persons or other person that followed after Masnayon?
Q What [were] the contents of that white folded paper? A Then we followed suit.
A A plastic pack containing white crystalline. Q All of your police officers and the barangay tanod followed suit?
Q Was that the only item? A I led Otadoy and the barangay tanod.
A There are others like the foil, scissor. Q What about you?
Q Were you present when those persons found those tin foil and others inside A I also followed suit.443
the electric shop? VOL. 664, JANUARY 30, 2012 443
A Yes.21
The fact that no items were seized in the residence of Del Castillo vs. People
Q And did anything happen inside the shop of Ruben del Castillo?
petitioner and that the items that were actually seized were A It was the barangay tanod who saw the folded paper and I saw him
found in another structure by a barangay tanod, was open the folded paper which contained four shabu deck.
corroborated by PO2 Arriola, thus: Q How far were you when you saw the folded paper and the tanod open the
FISCAL: folded paper?
Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still A We were side by side because the shop was very small.22
recall what took place? SPO1 Pogoso also testified on the same matter, thus:
A We cordoned the area. FISCAL CENTINO:
_______________ Q And where did you conduct the search, Mr. Witness?
21 TSN, July 16, 1998, pp. 8-9. (Emphasis supplied.)
442
A At his residence, the two-storey house.
Q Among the three policemen, who were with you in conducting the search at
442 SUPREME COURT REPORTS ANNOTATED the residence of the accused?
Del Castillo vs. People A I, Bienvenido Masnayon.
Q And after you cordoned the area, did anything happen? Q And what transpired after you searched the house of Ruben del Castillo?
A We waited for the barangay tanod. A Negative, no shabu.
Q And did the barangay tanod eventually appear? Q And what happened afterwards, if any?
A Yes. And then we started our search in the presence of Ruben del Castillo’s A We went downstairs and proceeded to the small house.
wife. Q Can you please describe to this Honorable Court, what was that small house
Q What is the name of the wife of Ruben del Castillo? which you proceeded to?
A I cannot recall her name, but if I see her I can recall [her] face. A It is a nipa hut.
Q What about Ruben del Castillo, was she around when [you] conducted the Q And more or less, how far or near was it from the house of Ruben del Castillo?
search? A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
 A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.
_______________
22 TSN, February 4, 1999, pp. 4-6. (Emphasis supplied.)
444
444 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
Q And who among the team went inside?
A PO2 Milo Areola and the Barangay Tanod.23
Having been established that the assistance of
the barangay tanods was sought by the police authorities who
effected the searched warrant, the same barangay
tanods therefore acted as agents of persons in authority.
Article 152 of the Revised Penal Code defines persons in
authority and agents of persons in authority as:
“x x x any person directly vested with jurisdiction, whether as an
individual or as a member of some court or governmental
corporation, board or commission, shall be deemed a person in
authority. A barangay captain and a barangay chairman shall also
be deemed a person in authority.
A person who, by direct provision of law or by election or by
appointment by competent authority, is charged with the
maintenance of public order and the protection and
security of life and property, such as barrio councilman,
barrio policeman and barangay leader, and any person who
comes to the aid of persons in authority, shall be deemed an
agent of a person in authority.”
The Local Government Code also contains a provision
which describes the function of a barangay tanod as an agent
of persons in authority. Section 388 of the Local Government
Code reads:
“SEC. 388. Persons in Authority.—For purposes of the Revised
Penal Code, the punong barangay, sangguniang
barangay members, and members of the lupong tagapamayapa in
each barangay shall be deemed as persons in authority in their
jurisdictions, while other barangay officials and members who
may be designated by law or ordinance and charged with
the maintenance of public order, protection and security of
life and property, or the maintenance of a desirable and
balanced environment, and any barangay member who
comes to the aid of persons in authority, shall be deemed
agents of persons in authority.”
By virtue of the above provisions, the police officers, as well
as the barangay tanods were acting as agents of a person in
authority during the conduct of the search. Thus, the search
conducted was unrea-
_______________
23 TSN, May 12, 1999, pp. 3-4. (Emphasis supplied.)
445
VOL. 664, JANUARY 30, 2012 445
Del Castillo vs. People
sonable and the confiscated items are inadmissible in
evidence. Assuming ex gratia argumenti that the barangay
tanod who found the confiscated items is considered a private
individual, thus, making the same items admissible in
evidence, petitioner’s third argument that the prosecution
failed to establish constructive possession of the regulated
drugs seized, would still be meritorious.
Appellate courts will generally not disturb the factual
findings of the trial court since the latter has the unique
opportunity to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and
manner of testifying,24 unless attended with arbitrariness or
plain disregard of pertinent facts or circumstances, the factual
findings are accorded the highest degree of respect on
appeal25 as in the present case.
It must be put into emphasis that this present case is about
the violation of Section 16 of R.A. 6425. In every prosecution
for the illegal possession of shabu, the following essential
elements must be established: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized
by law or by duly constituted authorities; and (c) the accused
has knowledge that the said drug is a regulated drug.26
In People v. Tira,27 this Court explained the concept of
possession of regulated drugs, to wit:
“This crime is mala prohibita, and, as such, criminal intent is
not an essential element. However, the prosecution must prove that
the accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but
also constructive possession. Actual possession exists when the
drug is in the immediate physical possession or control of the
accused. On the other hand, constructive possession exists when the
drug is under the dominion and control of the accused or when he
has the right to exercise dominion and control over the place where
_______________
24 People v. Baygar, 376 Phil. 466, 473; 318 SCRA 358, 365 (1999).
25 People v. Matito, 468 Phil. 14, 24; 423 SCRA 617, 625 (2004).
26 Quelnan v. People, G.R. No. 166061, July 6, 2007, 526 SCRA 653, 662,
citing Abuan v. People, supra note 12, and People v. Torres, G.R. No. 170837,
September 12, 2006, 501 SCRA 591, 610.
27 G.R. No. 139615, May 28, 2004, 430 SCRA 134.
446
446 SUPREME COURT REPORTS ANNOTATED
Del Castillo vs. People
it is found. Exclusive possession or control is not necessary. The
accused cannot avoid conviction if his right to exercise control and
dominion over the place where the contraband is located, is shared
with another.”28
While it is not necessary that the property to be searched
or seized should be owned by the person against whom the
search warrant is issued, there must be sufficient showing
that the property is under appellant’s control or
possession.29 The CA, in its Decision, referred to the
possession of regulated drugs by the petitioner as a
constructive one. Constructive possession exists when the
drug is under the dominion and control of the accused or when
he has the right to exercise dominion and control over the
place where it is found.30 The records are void of any evidence
to show that petitioner owns the nipa hut in question nor was
it established that he used the said structure as a shop. The
RTC, as well as the CA, merely presumed that petitioner used
the said structure due to the presence of electrical materials,
the petitioner being an electrician by profession. The CA, in
its Decision, noted a resolution by the investigating
prosecutor, thus:
“x x x As admitted by respondent’s wife, her husband is an
electrician by occupation. As such, conclusion could be arrived at
that the structure, which housed the electrical equipments is
actually used by the respondent. Being the case, he has control of
the things found in said structure.”31
In addition, the testimonies of the witnesses for the
prosecution do not also provide proof as to the ownership of
the structure where the seized articles were found. During
their direct testimonies, they just said, without stating their
basis, that the same structure was the shop of
petitioner.32 During the direct testimony of SPO1 Pogoso, he
_______________
28 Id. at 151-152.
29 People v. Del Castillo, G.R. No. 153254, September 30, 2004, 439 SCRA
601, 613-614, citing People v. Dichoso, G.R. Nos. 101216-18, June 4, 1993, 223
SCRA 174, 191, citing Burgos v. Chief of Staff, 133 SCRA 800 (1984).
30 People v. Tira, supra note 27.
31 Rollo, p. 65.
32 TSN, July 16, 1998, pp. 7-9; TSN, February 4, 1999, pp. 5-6.
447
VOL. 664, JANUARY 30, 2012 447
Del Castillo vs. People
even outrightly concluded that the electrical shop/nipa hut
was owned by petitioner, thus:
FISCAL CENTINO:
Q Can you please describe to this Honorable Court, what was that small house
which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to
be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.33
However, during cross-examination, SPO3 Masnayon
admitted that there was an electrical shop but denied what he
said in his earlier testimony that it was owned by petitioner,
thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an electrical shop, is that
correct?
A He came out of an electrical shop. I did not say that he owns the shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
 A It is quite a big structure, because at the other side is a mahjong den and at witnesses face to face, and to have compulsory process to secure the
the other side is a structure rented by a couple.34 attendance of witnesses and production of evidence in his behalf. However,
The prosecution must prove that the petitioner had after arraignment, trial may proceed notwithstanding the absence of the
knowledge of the existence and presence of the drugs in the accused provided that he has been duly notified and his failure to appear is
unjustifiable.
place under his control and dominion and the character of the 37 People v. Villanueva, G.R. No. 131773, February 13, 2002, 376 SCRA
drugs.35 With the prosecution’s 615, 637, citing People v. Gomez, G.R. No. 101817, March 26, 1997, 270 SCRA
_______________ 432, 444.
33 TSN, May 12, 1999, pp. 3-4. ** Designated as an additional member in lieu of Associate Justice Roberto
34 TSN, July 16, 1998, p. 15. A. Abad, per Special Order No. 1178 dated January 26, 2012.
35 See People v. Tira, supra note 27. 449
448 VOL. 664, JANUARY 30, 2012 449
448 SUPREME COURT REPORTS ANNOTATED Del Castillo vs. People
Del Castillo vs. People Judgment reversed and set aside, petitioner Ruben del
failure to prove that the nipa hut was under petitioner’s Castillo acquitted.
control and dominion, there casts a reasonable doubt as to his Note.—For voluntary surrender to be appreciated, the
guilt. In considering a criminal case, it is critical to start with following requisites should be present: 1) the offender has not
the law’s own starting perspective on the status of the been actually arrested; 2) the offender surrendered himself to
accused—in all criminal prosecutions, he is presumed a person in authority or the latter’s agent; and 3) the
innocent of the charge laid unless the contrary is proven surrender was voluntary. (De Vera vs. De Vera, 584 SCRA 506
beyond reasonable doubt.36 Proof beyond reasonable doubt, or [2009]).
that quantum of proof sufficient to produce a moral certainty ——o0o——
that would convince and satisfy the conscience of those who
act in judgment, is indispensable to overcome the
constitutional presumption of innocence.37
WHEREFORE, the Decision dated July 31, 2006 of the
Court of Appeals in CA-G.R. No. 27819, which affirmed the
Decision dated March 14, 2003 of the Regional Trial Court,
Branch 12, Cebu, in Criminal Case No. CBU-46291 is hereby
REVERSED and SET ASIDE. Petitioner Ruben del Castillo is
ACQUITTED on reasonable doubt.
SO ORDERED.
Velasco, Jr. (Chairperson), Mendoza, Reyes** and Perlas-
Bernabe, JJ., concur.
_______________
36 People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194,
207, citing Article III (Bill of Rights), Section 14(2) of the 1987 Constitution
which reads: 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

G.R. No. 197788. February 29, 2012.*
RODEL LUZ y ONG, petitioner, vs. PEOPLE OF THE
PHILIPPINES,1 respondent.
Constitutional Law; Criminal Procedure; Arrests; Land
Transportation and Traffic Code (R.A. No. 4136); Under R.A. 4136,
or the Land Transportation and Traffic Code, the general procedure
for dealing with a traffic violation is not the arrest of the offender,
but the confiscation of the driver’s license of the latter.—Arrest is the
taking of a person into custody in order that he or she may be bound
to answer for the commission of an offense.It is effected by an actual
restraint of the person to be arrested or by that person’s voluntary
submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is enough
that there be an intention on the part of one of the parties to arrest
the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is
necessary. Under R.A. 4136, or the Land Transportation and Traffic
Code, the general procedure for dealing with a traffic violation is
not the arrest of the offender, but the confiscation of the driver’s
license of the latter: SECTION 29. Confiscation of Driver’s
License.—Law enforcement and peace officers of other agencies
duly deputized by the Director shall, in apprehending a driver for
any violation of this Act or any regulations issued pursuant thereto,
or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned
and issue a receipt prescribed and issued by the Bureau therefor
which shall authorize the driver to operate a motor vehicle for a
period not exceeding seventy-two hours from the time and date of
issue of said receipt. The
_______________
* SECOND DIVISION.
1 The Petition was originally captioned as “Rodel Luz y Ong v. Hon. Court of
Appeals, Hon. Presiding Judge, Regional Trial Court, Branch 21, Naga City.”
However, under Section 4, Rule 45 of the Rules of Court, the petition must state
the full name of the appealing party as the petitioner and the adverse party as
respondent, without impleading the lower courts or judges thereof either as
petitioners or respondents.
422
422 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
period so fixed in the receipt shall not be extended, and shall
become invalid thereafter. Failure of the driver to settle his case
within fifteen days from the date of apprehension will be a ground
for the suspension and/or revocation of his license.
Same; Same; Same; Same; Procedure Being Observed in
Flagging Down Vehicles During the Conduct of Checkpoints.—The
Philippine National Police (PNP) Operations Manualprovides the
following procedure for flagging down vehicles during the conduct
of checkpoints: SECTION 7. Procedure in Flagging Down or
Accosting Vehicles While in Mobile Car. This rule is a general
concept and will not apply in hot pursuit operations. The mobile car
crew shall undertake the following, when applicable: x x x m. If it
concerns traffic violations, immediately issue a Traffic Citation
Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in
prolonged, unnecessary conversation or argument with the driver
or any of the vehicle’s occupants.
Same; Same; Same; Same; Custodial Interrogation; The
roadside questioning of a motorist does not fall under custodial
interrogation, nor can it be considered a formal arrest.—
In Berkemer v. McCarty, the United States (U.S.) Supreme Court
discussed at length whether the roadside questioning of a motorist
detained pursuant to a routine traffic stop should be considered
custodial interrogation. The Court held that, such questioning does
not fall under custodial interrogation, nor can it be considered a
formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time
the procedure is conducted.
Same; Same; Same; Same; At the time a person is arrested, it
shall be the duty of the arresting officer to inform the latter of the
reason for the arrest and must show that person the warrant of
arrest, if any.—This Court has held that at the time a person is
arrested, it shall be the duty of the arresting officer to inform the
latter of the reason for the arrest and must show that person the
warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any
statement they might make could be used against them. It may also
be noted that in this case, these constitutional requirements were
complied with by the police officers only after petitioner had been
arrested for illegal possession of dangerous drugs.423
VOL. 667, FEBRUARY 29, 2012 423
Luiz vs. People
Same; Same; Same; Same; Miranda Doctrine; In Berkemer vs.
McCarty, 468 U.S. 420 (1984), the U.S. Court noted that the
Miranda warnings must also be given to a person apprehended due
to a traffic violation.—In Berkemer, the U.S. Court also noted that
the Miranda warnings must also be given to a person apprehended
due to a traffic violation: The purposes of the safeguards prescribed
by Miranda are to ensure that the police do not coerce or trick
captive suspects into confessing, to relieve the “inherently
compelling pressures” “generated by the custodial setting itself,”
“which work to undermine the individual’s will to resist,” and as
much as possible to free courts from the task of scrutinizing
individual cases to try to determine, after the fact, whether
particular confessions were voluntary. Those purposes are
implicated as much by in-custody questioning of persons suspected
of misdemeanors as they are by questioning of persons suspected of
felonies. If it were true that petitioner was already deemed
“arrested” when he was flagged down for a traffic violation and
while he was waiting for his ticket, then there would have been no
need for him to be arrested for a second time—after the police
officers allegedly discovered the drugs—as he was already in their
custody.
Same; Same; Same; Same; Warrantless Searches; Instances
When a Warrantless Search is Allowed.—The following are the
instances when a warrantless search is allowed: (i) a warrantless
search incidental to a lawful arrest; (ii) search of evidence in “plain
view”; (iii) search of a moving vehicle; (iv) consented warrantless
search; (v) customs search; (vi) a “stop and frisk” search; and (vii)
exigent and emergency circumstances. None of the above-
mentioned instances, especially a search incident to a lawful arrest,
are applicable to this case.
Same; Same; Same; Same; Same; Whether consent to the search
was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances.—Whether consent to the search
was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are
the following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the defendant;
(2) whether the defendant was in a public or a secluded location; (3)
whether the defendant objected to the search or passively looked
on; (4) the education and intelligence of the defendant; (5) the
presence
424
424 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
of coercive police procedures; (6) the defendant’s belief that no
incriminating evidence would be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took
place; and (9) the possibly vulnerable subjective state of the person
consenting. It is the State that has the burden of proving, by clear
and positive testimony, that the necessary consent was obtained,
and was freely and voluntarily given. In this case, all that was
alleged was that petitioner was alone at the police station at three
in the morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent to a
warrantless search.
Same; Same; Same; Same; Stop and Frisk; The stop and frisk
is merely a limited protective search of outer clothing for weapons.—
Neither does the search qualify under the “stop and frisk” rule.
While the rule normally applies when a police officer observes
suspicious or unusual conduct, which may lead him to believe that
a criminal act may be afoot, the stop and frisk is merely a limited
protective search of outer clothing for weapons.
Same; Same; Same; Same; Warrantless Searches; In Knowles
v. Iowa, 525 U.S. 113 (1998), the U.S. Supreme Court held that when
a police officer stops a person for speeding and correspondingly
issues a citation instead of arresting the latter, this procedure does
not authorize the officer to conduct a full search of the car.—
In Knowles v. Iowa,the U.S. Supreme Court held that when a police
officer stops a person for speeding and correspondingly issues a
citation instead of arresting the latter, this procedure does not
authorize the officer to conduct a full search of the car. The Court
therein held that there was no justification for a full-blown search
when the officer does not arrest the motorist. Instead, police officers
may only conduct minimal intrusions, such as ordering the motorist
to alight from the car or doing a patdown.
Same; Same; Same; Same; The Constitution guarantees the
right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.—The
Constitution guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches
and seizures.Any evidence obtained in violation of said right shall
be inadmissible for any purpose in any proceeding. While the power
to
425
VOL. 667, FEBRUARY 29, 2012 425
Luiz vs. People
search and seize may at times be necessary to the public
welfare, still it must be exercised and the law implemented without
contravening the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rodolfo R. Ranion for petitioner.
Office of the Solicitor General for respondent.
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45
seeking to set aside the Court of Appeals (CA) Decision in CA-
G.R. CR No. 32516 dated 18 February 20112 and Resolution
dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC),
which sustained the version of the prosecution, are as follows:
“PO2 Emmanuel L. Alteza, who was then assigned at the Sub-
Station 1 of the Naga City Police Station as a traffic enforcer,
substantially testified that on March 10, 2003 at around 3:00 o’clock
in the morning, he saw the accused, who was coming from the
direction of Panganiban Drive and going to Diversion Road, Naga
City, driving a motorcycle without a helmet; that this prompted him
to flag down the accused for violating a municipal ordinance which
requires all motorcycle drivers to wear helmet (sic) while driving
said motor vehicle; that he invited the accused to come inside their
sub-station since the place where he flagged down the accused is
almost in front
_______________
2 Penned by Associate Justice Ricardo R. Rosario and concurred in by
Associate Justices Hakim S. Abdulwahid and Samuel H. Gaerlan.
426
426 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
of the said sub-station; that while he and SPO1 Rayford Brillante
were issuing a citation ticket for violation of municipal ordinance,
he noticed that the accused was uneasy and kept on getting
something from his jacket; that he was alerted and so, he told the
accused to take out the contents of the pocket of his jacket as the
latter may have a weapon inside it; that the accused obliged and
slowly put out the contents of the pocket of his jacket which was a
nickel-like tin or metal container about two (2) to three (3) inches
in size, including two (2) cellphones, one (1) pair of scissors and one
(1) Swiss knife; that upon seeing the said container, he asked the
accused to open it; that after the accused opened the container, he
noticed a cartoon cover and something beneath it; and that upon his
instruction, the accused spilled out the contents of the container on
the table which turned out to be four (4) plastic sachets, the two (2)
of which were empty while the other two (2) contained
suspected shabu.”3
Arraigned on 2 July 2003, petitioner, assisted by counsel,
entered a plea of “Not guilty” to the charge of illegal
possession of dangerous drugs. Pretrial was terminated on 24
September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and
a forensic chemist testified for the prosecution. On the other
hand, petitioner testified for himself and raised the defense of
planting of evidence and extortion.
In its 19 February 2009 Decision,4 the RTC convicted
petitioner of illegal possession of dangerous drugs5 committed
on 10 March 2003. It found the prosecution evidence sufficient
to show that he had been lawfully arrested for a traffic
violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to
contain shabu. The RTC also found his defense of frame-up
and extor-
_______________
3 Rollo, p. 91.
4 Docketed as Criminal Case No. RTC 2003-0087; Rollo, pp. 90-102.
5 See Section 11, Republic Act No. (R.A.) 9165, or the Comprehensive
Dangerous Drugs Act of 2002.
427
VOL. 667, FEBRUARY 29, 2012 427
Luiz vs. People
tion to be weak, self-serving and unsubstantiated. The
dispositive portion of its Decision held:
“WHEREFORE, judgment is hereby rendered, finding accused
RODEL LUZ y ONG GUILTY beyond reasonable doubt for the
crime of violation of Section 11, Article II of Republic Act No. 9165
and sentencing him to suffer the indeterminate penalty of
imprisonment ranging from twelve (12) years and (1) day, as
minimum, to thirteen (13) years, as maximum, and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00).
The subject shabu is hereby confiscated for turn over to the
Philippine Drug Enforcement Agency for its proper disposition and
destruction in accordance with law.
SO ORDERED.”6
Upon review, the CA affirmed the RTC’s Decision.
On 12 September 2011, petitioner filed under Rule 45 the
instant Petition for Review on Certiorari dated 1 September
2011. In a Resolution dated 12 October 2011, this Court
required respondent to file a comment on the Petition. On 4
January 2012, the latter filed its Comment dated 3 January
2012.
Petitioner raised the following grounds in support of his
Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED
SUBJECT SHABUIS INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON
IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED
SUBJECT SPECIMEN HAS BEEN COMPROMISED.
_______________
6 Rollo, p. 101.
428
428 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN
BEYOND THE REASONABLE DOUBT (sic).7
Petitioner claims that there was no lawful search and
seizure, because there was no lawful arrest. He claims that
the finding that there was a lawful arrest was erroneous, since
he was not even issued a citation ticket or charged with
violation of the city ordinance. Even assuming there was a
valid arrest, he claims that he had never consented to the
search conducted upon him.
On the other hand, finding that petitioner had been
lawfully arrested, the RTC held thus:
“It is beyond dispute that the accused was flagged down and
apprehended in this case by Police Officers Alteza and Brillante for
violation of City Ordinance No. 98-012, an ordinance requiring the
use of crash helmet by motorcycle drivers and riders thereon in the
City of Naga and prescribing penalties for violation thereof. The
accused himself admitted that he was not wearing a helmet at the
time when he was flagged down by the said police officers, albeit he
had a helmet in his possession. Obviously, there is legal basis on
the part of the apprehending officers to flag down and arrest the
accused because the latter was actually committing a crime in their
presence, that is, a violation of City Ordinance No. 98-012. In other
words, the accused, being caught in flagrante delicto violating the
said Ordinance, he could therefore be lawfully stopped or arrested
by the apprehending officers. x x x.”8
We find the Petition to be impressed with merit, but not for
the particular reasons alleged. In criminal cases, an appeal
throws the entire case wide open for review and the reviewing
tribunal can correct errors, though unassigned in the
appealed judgment, or even reverse the trial court’s decision
_______________
7 Rollo, p. 23.
8 Id., at p. 96.
429
VOL. 667, FEBRUARY 29, 2012 429
 Luiz vs. People
based on grounds other than those that the parties raised as
errors.9
First, there was no valid arrest of petitioner. When he
was flagged down for committing a traffic violation, he was
not, ipso facto and solely for this reason, arrested.
Arrest is the taking of a person into custody in order that
he or she may be bound to answer for the commission of an
offense.10 It is effected by an actual restraint of the person to
be arrested or by that person’s voluntary submission to the
custody of the one making the arrest. Neither the application
of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is
enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the
part of the other to submit, under the belief and impression
that submission is necessary.11
Under R.A. 4136, or the Land Transportation and Traffic
Code, the general procedure for dealing with a traffic violation
is not the arrest of the offender, but the confiscation of the
driver’s license of the latter:
“SECTION 29. Confiscation of Driver’s License.—Law
enforcement and peace officers of other agencies duly deputized by
the Director shall, in apprehending a driver for any violation of this
Act or any regulations issued pursuant thereto, or of local traffic
rules and regulations not contrary to any provisions of this Act,
confiscate the license of the driver concerned and issue a receipt
prescribed and issued by the Bureau therefor which shall authorize
the driver to operate a motor vehicle for a period not exceeding
seventy-two hours from the time and date of issue of said receipt.
The period so fixed in the receipt shall not be extended, and shall
become invalid thereafter. Failure of the driver to settle his case
within fifteen days from
_______________
9 People v. Saludes, 452 Phil. 719, 728; 403 SCRA 590, 597-598 (2003).
10 RULES OF COURT, Rule 113, Sec. 1.
11 People v. Milado, 462 Phil. 411; 417 SCRA 16 (2003).
430
430 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
the date of apprehension will be a ground for the suspension and/or
revocation of his license.”
Similarly, the Philippine National Police (PNP) Operations
Manual12 provides the following procedure for flagging down
vehicles during the conduct of checkpoints:
“SECTION 7. Procedure in Flagging Down or Accosting
Vehicles While in Mobile Car. This rule is a general concept
and will not apply in hot pursuit operations. The mobile car
crew shall undertake the following, when applicable: x x x
m. If it concerns traffic violations, immediately issue a
Traffic Citation Ticket (TCT) or Traffic Violation Report
(TVR). Never indulge in prolonged, unnecessary
conversation or argument with the driver or any of the
vehicle’s occupants”;
At the time that he was waiting for PO3 Alteza to write his
citation ticket, petitioner could not be said to have been
“under arrest.” There was no intention on the part of PO3
Alteza to arrest him, deprive him of his liberty, or take him
into custody. Prior to the issuance of the ticket, the period
during which petitioner was at the police station may be
characterized merely as waiting time. In fact, as found by the
trial court, PO3 Alteza himself testified that the only reason
they went to the police sub-station was that petitioner had
been flagged down “almost in front” of that place. Hence, it
was only for the sake of convenience that they were waiting
there. There was no intention to take petitioner into custody.
In Berkemer v. McCarty,13 the United States (U.S.)
Supreme Court discussed at length whether the roadside
questioning of a motorist detained pursuant to a routine
traffic stop should be considered custodial interrogation. The
Court held that, such questioning does not fall under custodial
interrogation, nor can it be considered a formal arrest, by
virtue of the nature of the questioning, the expectations of the
mo-
_______________
12 PNPM-DO-DS-3-1 dated March 2010.
13 468 U.S. 420 (1984).
431
VOL. 667, FEBRUARY 29, 2012 431
Luiz vs. People
torist and the officer, and the length of time the procedure is
conducted. It ruled as follows:
“It must be acknowledged at the outset that a traffic stop
significantly curtails the “freedom of action” of the driver and the
passengers, if any, of the detained vehicle. Under the law of most
States, it is a crime either to ignore a policeman’s signal to stop
one’s car or, once having stopped, to drive away without permission.
xxx
However, we decline to accord talismanic power to the phrase in
the Miranda opinion emphasized by respondent. Fidelity to the
doctrine announced in Miranda requires that it be enforced strictly,
but only in those types of situations in which the concerns that
powered the decision are implicated. Thus, we must decide whether
a traffic stop exerts upon a detained person pressures that
sufficiently impair his free exercise of his privilege against self-
incrimination to require that he be warned of his constitutional
rights.
Two features of an ordinary traffic stop mitigate the danger that
a person questioned will be induced “to speak where he would not
otherwise do so freely,” Miranda v. Arizona, 384 U.S., at 467. First,
detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief. The vast majority of
roadside detentions last only a few minutes. A motorist’s
expectations, when he sees a policeman’s light flashing behind him,
are that he will be obliged to spend a short period of time answering
questions and waiting while the officer checks his license and
registration, that he may then be given a citation, but that in the
end he most likely will be allowed to continue on his way. In this
respect, questioning incident to an ordinary traffic stop is quite
different from stationhouse interrogation, which frequently is
prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the
answers they seek. See id., at 451.
Second, circumstances associated with the typical traffic
stop are not such that the motorist feels completely at
the mercy of the police. To be sure, the aura of authority
surrounding an armed, uniformed officer and the knowledge that
the officer has some discretion in deciding whether to issue a
citation, in combination, exert some pressure on the detainee to
respond to questions. But other aspects of the situation
substantially offset these forces. Perhaps most importantly, the
typical traffic stop is public, at least to some degree. x x x432
432 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
In both of these respects, the usual traffic stop is more
analogous to a so-called “Terry stop,” see Terry v. Ohio, 392 U.
S. 1 (1968), than to a formal arrest. x x x The comparatively
nonthreatening character of detentions of this sort explains the
absence of any suggestion in our opinions that Terry stops are
subject to the dictates of Miranda. The similarly noncoercive aspect
of ordinary traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not “in custody” for the
purposes of Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent
will not come to pass. It is settled that the safeguards prescribed by
Miranda become applicable as soon as a suspect’s freedom of action
is curtailed to a “degree associated with formal arrest.” California
v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). If a motorist
who has been detained pursuant to a traffic stop thereafter is
subjected to treatment that renders him “in custody” for practical
purposes, he will be entitled to the full panoply of protections
prescribed by Miranda. See Oregon v. Mathiason, 429 U.S. 492, 495
(1977) (per curiam).” (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the
motorist therein was only subjected to modest questions while
still at the scene of the traffic stop, he was not at that moment
placed under custody (such that he should have been apprised
of his Mirandarights), and neither can treatment of this sort
be fairly characterized as the functional equivalent of a formal
arrest. Similarly, neither can petitioner here be considered
“under arrest” at the time that his traffic citation was being
made.
It also appears that, according to City Ordinance No. 98-
012, which was violated by petitioner, the failure to wear a
crash helmet while riding a motorcycle is penalized by a fine
only. Under the Rules of Court, a warrant of arrest need not
be issued if the information or charge was filed for an offense
penalized by a fine only. It may be stated as a corollary that
neither can a warrantless arrest be made for such an
offense.433
VOL. 667, FEBRUARY 29, 2012 433
Luiz vs. People
This ruling does not imply that there can be no arrest for a
traffic violation. Certainly, when there is an intent on the part
of the police officer to deprive the motorist of liberty, or to take
the latter into custody, the former may be deemed to have
arrested the motorist. In this case, however, the officer’s
issuance (or intent to issue) a traffic citation ticket negates
the possibility of an arrest for the same violation.
Even if one were to work under the assumption that
petitioner was deemed “arrested” upon being flagged
down for a traffic violation and while awaiting the
issuance of his ticket, then the requirements for a valid
arrest were not complied with.
This Court has held that at the time a person is arrested,
it shall be the duty of the arresting officer to inform the latter
of the reason for the arrest and must show that person the
warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that
any statement they might make could be used against
them.14 It may also be noted that in this case, these
constitutional requirements were complied with by the police
officers only after petitioner had been arrested for illegal
possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that
the Miranda warnings must also be given to a person
apprehended due to a traffic violation:
“The purposes of the safeguards prescribed by Miranda are to
ensure that the police do not coerce or trick captive suspects into
confessing, to relieve the “inherently compelling pressures”
“generated by the custodial setting itself,” “which work to
undermine the individual’s will to resist,” and as much as possible
to free courts from the task of scrutinizing individual cases to try to
determine, after the fact, whether particular confessions were
voluntary. Those purposes are implicated as much by in-custody
questioning of per-
_______________
14 Morales, Jr. v. Enrile, 206 Phil. 466; 121 SCRA 538 (1983).
434
434 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
sons suspected of misdemeanors as they are by questioning of
persons suspected of felonies.”
If it were true that petitioner was already deemed
“arrested” when he was flagged down for a traffic violation
and while he was waiting for his ticket, then there would have
been no need for him to be arrested for a second time—after
the police officers allegedly discovered the drugs—as he was
already in their custody.
Second, there being no valid arrest, the warrantless
search that resulted from it was likewise illegal.
The following are the instances when a warrantless search
is allowed: (i) a warrantless search incidental to a lawful
arrest; (ii) search of evidence in “plain view”; (iii) search of a
moving vehicle; (iv) consented warrantless search; (v) customs
search; (vi) a “stop and frisk” search; and (vii) exigent and
emergency circumstances.15None of the above-mentioned
instances, especially a search incident to a lawful arrest, are
applicable to this case.
It must be noted that the evidence seized, although alleged
to be inadvertently discovered, was not in “plain view.” It was
actually concealed inside a metal container inside petitioner’s
pocket. Clearly, the evidence was not immediately apparent.16
Neither was there a consented warrantless search.
Consent to a search is not to be lightly inferred, but shown by
clear and convincing evidence.17 It must be voluntary in order
to validate an otherwise illegal search; that is, the consent
must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. While the
prosecution claims that petitioner acceded to the instruction
of PO3 Alteza, this
_______________
15 People v. Bolasa, 378 Phil. 1073, 1078-1079; 321 SCRA 459, 464-465
(1999).
16 See People v. Macalaba, 443 Phil. 565; 395 SCRA 461 (2003).
17 Caballes v. Court of Appeals, 424 Phil. 263; 373 SCRA 221 (2002).
435
VOL. 667, FEBRUARY 29, 2012 435
Luiz vs. People
alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely
“told” to take out the contents of his pocket.18
Whether consent to the search was in fact voluntary is a
question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the
following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the
defendant; (2) whether the defendant was in a public or a
secluded location; (3) whether the defendant objected to the
search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive
police procedures; (6) the defendant’s belief that no
incriminating evidence would be found; (7) the nature of the
police questioning; (8) the environment in which the
questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State that
has the burden of proving, by clear and positive testimony,
that the necessary consent was obtained, and was freely and
voluntarily given.19 In this case, all that was alleged was that
petitioner was alone at the police station at three in the
morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent
to a warrantless search.
Neither does the search qualify under the “stop and frisk”
rule. While the rule normally applies when a police officer
observes suspicious or unusual conduct, which may lead him
to believe that a criminal act may be afoot, the stop and frisk
is merely a limited protective search of outer clothing for
weapons.20
_______________
18 RTC Decision, Rollo, p. 91.
19 Caballes v. Court of Appeals, 424 Phil. 263; 373 SCRA 221 (2002).
20 People v. Sy Chua, 444 Phil. 757; 396 SCRA 657 (2003).
436
436 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
In Knowles v. Iowa,21 the U.S. Supreme Court held that
when a police officer stops a person for speeding and
correspondingly issues a citation instead of arresting the
latter, this procedure does not authorize the officer to conduct
a full search of the car. The Court therein held that there was
no justification for a full-blown search when the officer does
not arrest the motorist. Instead, police officers may only
conduct minimal intrusions, such as ordering the motorist to
alight from the car or doing a patdown:
“In Robinson, supra, we noted the two historical rationales for
the “search incident to arrest” exception: (1) the need to disarm the
suspect in order to take him into custody, and (2) the need to
preserve evidence for later use at trial. x x x But neither of these
underlying rationales for the search incident to arrest exception is
sufficient to justify the search in the present case.
We have recognized that the first rationale—officer safety—is
“ ‘both legitimate and weighty,’ ” x x x The threat to officer safety
from issuing a traffic citation, however, is a good deal less than in
the case of a custodial arrest. In Robinson, we stated that a
custodial arrest involves “danger to an officer” because of “the
extended exposure which follows the taking of a suspect into
custody and transporting him to the police station.” 414 U.S., at
234-235. We recognized that “[t]he danger to the police officer flows
from the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest.” Id., at 234, n. 5. A
routine traffic stop, on the other hand, is a relatively brief
encounter and “is more analogous to a so-called ‘Terry stop’
. . . than to a formal arrest.” Berkemer v. McCarty, 468 U.S. 420,
439 (1984). See also Cupp v. Murphy, 412 U.S. 291, 296 (1973)
(“Where there is no formal arrest . . . a person might well be less
hostile to the police and less likely to take conspicuous, immediate
steps to destroy incriminating evidence”).
This is not to say that the concern for officer safety is
absent in the case of a routine traffic stop. It plainly is not.
See Mimms, supra, at 110; Wilson, supra, at 413-414. But while
the concern for officer safety in this context may justify the
_______________
21 525 U.S. 113 (1998).
437
VOL. 667, FEBRUARY 29, 2012 437
Luiz vs. People
“minimal” additional intrusion of ordering a driver and
passengers out of the car, it does not by itself justify the
often considerably greater intrusion attending a full
fieldtype search. Even without the search authority Iowa urges,
officers have other, independent bases to search for weapons and
protect themselves from danger. For example, they may order out
of a vehicle both the driver, Mimms, supra, at 111, and any
passengers, Wilson, supra, at 414; perform a “patdown” of a driver
and any passengers upon reasonable suspicion that they may be
armed and dangerous, Terry v. Ohio, 392 U.S. 1 (1968); conduct a
“Terry patdown” of the passenger compartment of a vehicle upon
reasonable suspicion that an occupant is dangerous and may gain
immediate control of a weapon, Michigan v. Long, 463 U.S. 1032,
1049 (1983); and even conduct a full search of the passenger
compartment, including any containers therein, pursuant to a
custodial arrest, New York v. Belton, 453 U.S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to
search incident to arrest—the need to discover and preserve
evidence. Once Knowles was stopped for speeding and issued a
citation, all the evidence necessary to prosecute that offense had
been obtained. No further evidence of excessive speed was going to
be found either on the person of the offender or in the passenger
compartment of the car.” (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted.
While he may have failed to object to the illegality of his arrest
at the earliest opportunity, a waiver of an illegal warrantless
arrest does not, however, mean a waiver of the inadmissibility
of evidence seized during the illegal warrantless arrest.22
The Constitution guarantees the right of the people to be
secure in their persons, houses, papers and effects against
unreasonable searches and seizures.23 Any evidence obtained
in violation of said right shall be inadmissible for any purpose
in any proceeding. While the power to search and seize may
_______________
22 People v. Lapitaje, 445 Phil. 729; 397 SCRA 674 (2003).
23 1987 Const., Art. III, Sec. 2.
438
438 SUPREME COURT REPORTS ANNOTATED
Luiz vs. People
at times be necessary to the public welfare, still it must be
exercised and the law implemented without contravening the
constitutional rights of citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the
basic principles of government.24
The subject items seized during the illegal arrest are
inadmissible.25 The drugs are the very corpus delicti of the
crime of illegal possession of dangerous drugs. Thus, their
inadmissibility precludes conviction and calls for the acquittal
of the accused.26
WHEREFORE, the Petition is GRANTED. The 18
February 2011 Decision of the Court of Appeals in CA-G.R.
CR No. 32516 affirming the judgment of conviction dated 19
February 2009 of the Regional Trial Court, 5th Judicial
Region, Naga City, Branch 21, in Criminal Case No. RTC
2003-0087, is hereby REVERSED and SET ASIDE. Petitioner
Rodel Luz y Ong is hereby ACQUITTED. The bail bond posted
for his provisional liberty is CANCELLED and RELEASED.
SO ORDERED.
Carpio (Chairperson), Brion, Perez and Reyes, JJ.,
concur.
Petition granted, judgment reversed and set aside.
Petitioner Rodel Luz y Ong acquitted.
Notes.—The long standing rule in this jurisdiction is that
“reliable information” alone is not sufficient to justify a
warrantless arrest—the rule requires, in addition, that the
accused perform some overt act that would indicate that he
has
_______________
24 Valdez v. People, G.R. No. 170180, 23 November 2007, 538 SCRA 611.
25 People v. Martinez, G.R. No. 191366, 13 December 2010, 637 SCRA 791.
26 Id.
439
VOL. 667, FEBRUARY 29, 2012 439
Luiz vs. People
committed, is actually committing, or is attempting to commit
an offense. (People vs. Racho, 626 SCRA 633 [2010])
A search may be conducted by law enforcers only on the
strength of a valid search warrant; Exceptions: (1) consented
searches; (2) as an incident to a lawful arrest; (3) searches of
vessels and aircraft for violation of immigration, customs, and
drug laws; (4) searches of moving vehicles; (5) searches of
automobiles at borders or constructive borders; (6) where the
prohibited articles are in “plain view”; (7) searches of
buildings and premises to enforce fire, sanitary, and building
regulations; and (8) stop and frisk operations. (Esquillo vs.
People, 629 SCRA 370 [2010])
With respect to the public and third persons, the registered
owner of a motor vehicle is directly and primarily responsible
for the consequences of its operation regardless of who the
actual vehicle owner might be; Well-settled is the rule that the
registered owner of the vehicle is liable for quasi-delicts
resulting from its use. (FEB Leasing and Finance Corporation
vs. Baylon, 653 SCRA 22 [2011])
——o0o——
 constitutional question is brought before it by a party having the
requisite standing to challenge it. To have standing, one must
establish that he or she has suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government;
the injury is fairly traceable to the challenged action; and the injury
is likely to be redressed by a favorable action.
Same; Same; Same; Same; The rule on standing is a matter of
procedure; hence, it can be relaxed for non-traditional plaintiffs, like
G.R. No. 157870. November 3, 2008.* ordinary citizens, taxpayers and legislators when the public interest
SOCIAL JUSTICE SOCIETY (SJS), so requires, such as when the matter is of transcendental
petitioner, vs. DANGEROUS DRUGS BOARD and importance, of overarching significance to society, or of paramount
PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), public interest.—The rule on standing, however, is a matter of
respondents. procedure; hence, it can be relaxed for non-traditional plaintiffs,
G.R. No. 158633. November 3, 2008.* like ordinary citizens, taxpayers, and legislators when the public
ATTY. MANUEL J. LASERNA, JR., interest so requires, such as when the matter is of transcendental
petitioner, vs. DANGEROUS DRUGS BOARD and importance, of overarching significance to society, or of paramount
public interest. There is no doubt that Pimentel, as senator of the
PHILIPPINE DRUG ENFORCEMENT AGENCY,
Philippines and candidate for the May 10, 2004 elections, possesses
respondents.
the requisite standing since he has substantial interests in the
G.R. No. 161658. November 3, 2008.* subject matter of the petition, among other preliminary
AQUILINO Q. PIMENTEL, JR., considerations. Regarding SJS and Laserna, this Court is wont to
petitioner, vs. COMMISSION ON ELECTIONS, respondent. relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the
_______________
enforcement of Sec. 36 of RA 9165.
* EN BANC.
Constitutional Law; Statutes; It is basic that if a law or an
administrative rule violates any norm of the Constitution, that
411 issuance is null and void and has no effect.—Pimentel’s contention
VOL. 570, NOVEMBER 3, 2008 411 is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is
Social Justice Society (SJS) vs. Dangerous Drugs Board hereby declared as, unconstitutional. It is basic that if a law or an
adminis-412
Remedial Law; Actions; Power of Judicial Review; Parties;
Party-in-Interest; The power of judicial review can only be exercised
412 SUPREME COURT REPORTS ANNOTATED
in connection with a bona fide controversy which involves the statute Social Justice Society (SJS) vs. Dangerous Drugs Board
sought to be reviewed; Even with the presence of an actual case or trative rule violates any norm of the Constitution, that
controversy, the court may refuse to exercise judicial review unless issuance is null and void and has no effect. The Constitution is the
the constitutional question is brought before it by a party having the basic law to which all laws must conform; no act shall be valid if it
requisite standing to challenge it.—It is basic that the power of conflicts with the Constitution. In the discharge of their defined
judicial review can only be exercised in connection with a bona functions, the three departments of government have no choice but
fide controversy which involves the statute sought to be reviewed. to yield obedience to the commands of the Constitution. Whatever
But even with the presence of an actual case or controversy, the limits it imposes must be observed.
Court may refuse to exercise judicial review unless the
 Same; Same; Definition of the limits on legislative power in the
abstract.—Congress’ inherent legislative powers, broad as they may
be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the abstract,
the limits on legislative power in the following wise: Someone has
said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments
acting under delegated authority, the powers of each of the
departments x x x are limited and confined within the four walls of
the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but
over which it cannot leap.
Same; Same; The right of a citizen in the democratic process of
election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.—In the
same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations
to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If
Congress cannot require a candidate for senator to meet such
additional qualification, the COMELEC, to be sure, is also without
such power. The right of a citizen in the democratic process of
election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.
Same; Same; Sec. 36(g) of RA 9165, as sought to be
implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3,
Art. VI of the Constitution; Whether or not the drug-free bar set up
under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little
value if one cannot as-413
VOL. 570, NOVEMBER 3, 2008 413
Social Justice Society (SJS) vs. Dangerous Drugs Board
sume office for non-compliance with the drug-testing
requirement—Sec. 36(g) of RA 9165, as sought to be implemented
by the assailed COMELEC resolution, effectively enlarges the
qualification requirements enumerated in the Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal-drug clean, obviously as
a pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that “[n]o person
elected to any public office shall enter upon the duties of his office
until he has undergone mandatory drug test.” Viewed, therefore, in
its proper context, Sec. 36(g) of RA 9165 and the implementing
COMELEC Resolution add another qualification layer to what the
1987 Constitution, at the minimum, requires for membership in the
Senate. Whether or not the drug-free bar set up under the
challenged provision is to be hurdled before or after election is really
of no moment, as getting elected would be of little value if one
cannot assume office for non-compliance with the drug-testing
requirement.
Same; Same; Court is of the view and so holds that the
provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional.—Guided
by Vernonia and Board of Education, the Court is of the view and
so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance
with reasonable school rules and regulations and policies. To be
sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
Same; Same; A random drug testing of students in secondary
and tertiary schools is not only acceptable but may even be necessary
if the safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and
protected.—The Court can take judicial notice of the proliferation of
prohibited drugs in the country that threatens the well-being of the
people, particularly the youth and school children who usually end
up as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable
but may even be414
414 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
 necessary if the safety and interest of the student population,
doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, “[d]eterring
drug use by our Nation’s schoolchildren is as important as
enhancing efficient enforcement of the Nation’s laws against the
importation of drugs”; the necessity for the State to act is magnified
by the fact that the effects of a drug-infested school are visited not
just upon the users, but upon the entire student body and faculty.
Needless to stress, the random testing scheme provided under the
law argues against the idea that the testing aims to incriminate
unsuspecting individual students.
Same; Same; The mandatory but random drug test prescribed
by Sec. 36 of RA 9165 for officers and employees of public and private
offices is justifiable, albeit not exactly for the same reason.—Just as
in the case of secondary and tertiary level students, the mandatory
but random drug test prescribed by Sec. 36 of RA 9165 for officers
and employees of public and private offices is justifiable, albeit not
exactly for the same reason. The Court notes in this regard that
petitioner SJS, other than saying that “subjecting almost everybody
to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy,” has failed
to show how the mandatory, random, and suspicionless drug testing
under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III,
Secs. 1 and 2 of the Constitution. Petitioner Laserna’s lament is just
as simplistic, sweeping, and gratuitous and does not merit serious
consideration.
Same; Same; If RA 9165 passes the norm of reasonableness for
private employees, the more reason that it should pass the test for
civil servants, who, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency.—Taking into account the foregoing
factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the
search, and the well-defined limits set forth in the law to properly
guide authorities in the conduct of the random testing, we hold that
the challenged drug test requirement is, under the limited context
of the case, reasonable and, ergo, constitutional. Like their
counterparts in the private sector, government officials and
employees also415
VOL. 570, NOVEMBER 3, 2008 415
Social Justice Society (SJS) vs. Dangerous Drugs Board
labor under reasonable supervision and restrictions imposed
by the Civil Service law and other laws on public officers, all
enacted to promote a high standard of ethics in the public service.
And if RA 9165 passes the norm of reasonableness for private
employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency.
Same; Same; In the case of persons charged with a crime before
the prosecutor’s office, a mandatory drug testing can never be
random or suspicionless; To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for
criminal prosecution, contrary to the stated objectives of RA 9165.—
We find the situation entirely different in the case of persons
charged before the public prosecutor’s office with criminal offenses
punishable with six (6) years and one (1) day imprisonment. The
operative concepts in the mandatory drug testing are “randomness”
and “suspicionless.” In the case of persons charged with a crime
before the prosecutor’s office, a mandatory drug testing can never
be random or suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a
criminal complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their
will. The persons thus charged, by the bare fact of being haled
before the prosecutor’s office and peaceably submitting themselves
to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose
mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would
violate a persons’ right to privacy guaranteed under Sec. 2, Art. III
of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.
Same; Same; Sec. 36(f) and (g) of RA 9165 and COMELEC
Resolution No. 6486 declared unconstitutional.—WHEREFORE,
the Court resolves to GRANT the petition in G.R. No. 161658 and
declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486
as UNCONSTITUTIONAL; and to PARTIALLY GRANT the
petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and
(d) of RA416
416 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
9165 CONSTITUTIONAL, but declaring its Sec. 36(f)
UNCONSTITUTIONAL. All concerned agencies are, accordingly,
permanently enjoined from implementing Sec. 36(f) and (g) of RA
9165.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari
and Prohibition.
The facts are stated in the opinion of the Court.
Gana & Manlangit Law Office for petitioner A. Pimentel,
Jr.
Samson S. Alcantara, Rene B. Gorospe, Romeo R.
Robiso andEd Vincent S. Albano for petitioner.
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section
36 of Republic Act No. (RA) 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002, insofar as it
requires mandatory drug testing of candidates for public
office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged
before the prosecutor’s office with certain offenses, among
other personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
“SEC. 36. Authorized Drug Testing.—Authorized drug testing
shall be done by any government forensic laboratories or by any of
the drug testing laboratories accredited and monitored by the DOH
to safeguard the quality of the test results. x x x The drug testing
shall employ, among others, two (2) testing methods, the screening
test which will determine the positive result as well as the type of
drug used and the confirmatory test which will confirm a positive
screening test. x x x The following shall be subjected to undergo
drug testing:
xxxx
(c) of secondary and tertiary schools.—Students of secondary and
tertiary schools shall, pursuant to the related rules417
VOL. 570, NOVEMBER 3, 2008 417
Social Justice Society (SJS) vs. Dangerous Drugs Board
and regulations as contained in the school’s student handbook and
with notice to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public and private offices.—
Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random drug
test as contained in the company’s work rules and regulations, x x x
for purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor
Code and pertinent provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutor’s office with a
criminal offense having an imposable penalty of imprisonment of
not less than six (6) years and one (1) day shall undergo a
mandatory drug test;
(g) All candidates for public office whether appointed or elected
both in the national or local government shall undergo a mandatory
drug test.
In addition to the above stated penalties in this Section,
those found to be positive for dangerous drugs use shall be
subject to the provisions of Section 15 of this Act.”
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v.
Commission on Elections)
On December 23, 2003, the Commission on Elections
(COMELEC) issued Resolution No. 6486, prescribing the
rules and regulations on the mandatory drug testing of
candidates for public office in connection with the May 10,
2004 synchronized national and local elections. The pertinent
portions of the said resolution read as follows:
“WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing.—x x x
xxxx
(g) All candidates for public office x x x both in the national or
local government shall undergo a mandatory drug test.418
418 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
 WHEREAS, Section 1, Article XI of the 1987 Constitution
provides that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug
test, the public will know the quality of candidates they are electing
and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected
x x x.
NOW THEREFORE, The [COMELEC], pursuant to the
authority vested in it under the Constitution, Batas Pambansa Blg.
881 (Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]
SECTION 1. Coverage.—All candidates for public office,
both national and local, in the May 10, 2004 Synchronized
National and Local Elections shall undergo mandatory drug
test in government forensic laboratories or any drug testing
laboratories monitored and accredited by the Department of
Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with
their respective offices, the Comelec Offices and employees
concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the second list
shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates.—
Before the start of the campaign period, the [COMELEC] shall
prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to
comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and
file drug test certificate.—No person elected to any public office shall
enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under
Section 2 hereof the drug test certificate herein required.”
(Emphasis supplied.)
419
VOL. 570, NOVEMBER 3, 2008 419
Social Justice Society (SJS) vs. Dangerous Drugs Board
Petitioner Aquilino Q. Pimentel, Jr., a senator of the
Republic and a candidate for re-election in the May 10, 2004
elections,1 filed a Petition for Certiorari and Prohibition under
Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a qualification for
candidates for senators in addition to those already provided
for in the 1987 Constitution; and (2) to enjoin the COMELEC
from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3,
Article VI of the Constitution, which states:
“SECTION 3. No person shall be a Senator unless he is a
natural-born citizen of the Philippines, and, on the day of the
election, is at least thirty-five years of age, able to read and write,
a registered voter, and a resident of the Philippines for not less than
two years immediately preceding the day of the election.”
According to Pimentel, the Constitution only prescribes a
maximum of five (5) qualifications for one to be a candidate
for, elected to, and be a member of the Senate. He says that
both the Congress and COMELEC, by requiring, via RA 9165
and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an
additional qualification that all candidates for senator must
first be certified as drug free. He adds that there is no
provision in the Constitution authorizing the Congress or
COMELEC to expand the qualification requirements of
candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner
Social Justice Society (SJS), a registered political party, seeks
to prohibit the Dangerous Drugs Board (DDB) and the Philip-
_______________
1 Re-elected as senator in the 2004 elections.
420
420 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
pine Drug Enforcement Agency (PDEA) from enforcing
paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the
ground that they are constitutionally infirm. For one, the
provisions constitute undue delegation of legislative power
when they give unbridled discretion to schools and employers
to determine the manner of drug testing. For another, the
provisions trench in the equal protection clause inasmuch as
they can be used to harass a student or an employee deemed
undesirable. And for a third, a person’s constitutional right
against unreasonable searches is also breached by said
provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.
Dangerous Drugs Board and Philippine Drug Enforcement
Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and
taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA
9165 be struck down as unconstitutional for infringing on the
constitutional right to privacy, the right against unreasonable
search and seizure, and the right against self-incrimination,
and for being contrary to the due process and equal protection
guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at
bench and the matter of the standing of petitioners SJS and
Laserna to sue. As respondents DDB and PDEA assert, SJS
and Laserna failed to allege any incident amounting to a
violation of the constitutional rights mentioned in their
separate petitions.2
It is basic that the power of judicial review can only be
exercised in connection with a bona fide controversy which in-
_______________
2 Rollo (G.R. No. 158633), pp. 184-185.
421
VOL. 570, NOVEMBER 3, 2008 421
Social Justice Society (SJS) vs. Dangerous Drugs Board
volves the statute sought to be reviewed.3 But even with the
presence of an actual case or controversy, the Court may
refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite
standing to challenge it.4 To have standing, one must
establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of
the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action.5
The rule on standing, however, is a matter of procedure;
hence, it can be relaxed for non-traditional plaintiffs, like
ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of
transcendental importance, of overarching significance to
society, or of paramount public interest.6 There is no doubt
that Pimentel, as senator of the Philippines and candidate for
the May 10, 2004 elections, possesses the requisite standing
since he has substantial interests in the subject matter of the
petition, among other preliminary considerations. Regarding
SJS and Laserna, this Court is wont to relax the rule on locus
standi owing primarily to the transcendental importance and
the paramount public interest involved in the enforcement of
Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
_______________
3 Dumlao v. Commission on Elections, No. L-52245, January 22, 1980, 95
SCRA 392, 401.
4 Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary 939 (2003).
5 Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733,
740.
6 Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 &
127867, November 5, 1997, 281 SCRA 330, 349; De Guia v. Commission on
Elections, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
422
422 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 impose an additional qualification for candidates for
senator? Corollarily, can Congress enact a law prescribing
qualifications for candidates for senator in addition to those
laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate
the right to privacy, the right against unreasonable searches
and seizure, and the equal protection clause? Or do they
constitute undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that,
subject to the provisions on nuisance candidates, a candidate
for senator needs only to meet the qualifications laid down in
Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2)
voter registration, (3) literacy, (4) age, and (5) residency.
Beyond these stated qualification requirements, candidates
for senator need not possess any other qualification to run for
senator and be voted upon and elected as member of the
Senate. The Congress cannot validly amend or otherwise
modify these qualification standards, as it cannot disregard,
evade, or weaken the force of a constitutional mandate,7or
alter or enlarge the Constitution.
Pimentel’s contention is well-taken. Accordingly, Sec. 36(g)
of RA 9165 should be, as it is hereby declared as,
unconstitutional. It is basic that if a law or an administrative
rule violates any norm of the Constitution, that issuance is
null and void and has no effect. The Constitution is the basic
law to which all laws must conform; no act shall be valid if it
con-
_______________
7 Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.
423
VOL. 570, NOVEMBER 3, 2008 423
Social Justice Society (SJS) vs. Dangerous Drugs Board
flicts with the Constitution.8 In the discharge of their defined
functions, the three departments of government have no
choice but to yield obedience to the commands of the
Constitution. Whatever limits it imposes must be observed.9
Congress’ inherent legislative powers, broad as they may
be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the
abstract, the limits on legislative power in the following wise:
“Someone has said that the powers of the legislative department of
the Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments
acting under delegated authority, the powers of each of the
departments x x x are limited and confined within the four walls of
the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but
over which it cannot leap.”10
Thus, legislative power remains limited in the sense that it
is subject to substantive and constitutional limitations which
circumscribe both the exercise of the power itself and the
allowable subjects of legislation.11 The substantive
constitutional limitations are chiefly found in the Bill of
Rights12 and other provisions, such as Sec. 3, Art. VI of the
Constitution prescribing the qualifications of candidates for
senators.
In the same vein, the COMELEC cannot, in the guise of
enforcing and administering election laws or promulgating
rules and regulations to implement Sec. 36(g), validly impose
quali-
_______________
8 Cruz, Constitutional Law 4 (2000).
9 Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36
SCRA 228, 234.
10 50 Phil. 259, 309 (1927).
11 J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines:
A Commentary 604 (1996).
12 Id.
424
424 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
fications on candidates for senator in addition to what the
Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional qualification,
the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should
not be defeated by unwarranted impositions of requirement
not otherwise specified in the Constitution.13
Sec. 36(g) of RA 9165, as sought to be implemented by the
assailed COMELEC resolution, effectively enlarges the
qualification requirements enumerated in the Sec. 3, Art. VI
of the Constitution. As couched, said Sec. 36(g) unmistakably
requires a candidate for senator to be certified illegal-drug
clean, obviously as a pre-condition to the validity of a
certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be
proclaimed as senator-elect. The COMELEC resolution
completes the chain with the proviso that “[n]o person elected
to any public office shall enter upon the duties of his office
until he has undergone mandatory drug test.” Viewed,
therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at the
minimum, requires for membership in the Senate. Whether or
not the drug-free bar set up under the challenged provision is
to be hurdled before or after election is really of no moment,
as getting elected would be of little value if one cannot assume
office for non-compliance with the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec.
36(g) of RA 9165, that the provision does not expressly state
that non-compliance with the drug test imposition is a
disqualifying factor or would work to nullify a certificate of
candidacy. This argument may be accorded plausibility if the
drug test requirement is optional. But the particular section
_______________
13 See concurring opinion in Go v. Commission on Elections, G.R. No.
147741, May 10, 2001, 357 SCRA 739, 753.
425
VOL. 570, NOVEMBER 3, 2008 425
Social Justice Society (SJS) vs. Dangerous Drugs Board
of the law, without exception, made drug-testing on those
covered mandatory, necessarily suggesting that the obstinate
ones shall have to suffer the adverse consequences for not
adhering to the statutory command. And since the provision
deals with candidates for public office, it stands to reason that
the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office
of the candidates. Any other construal would reduce the
mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon
without meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture,
COMELEC Resolution No. 6486 is no longer enforceable, for
by its terms, it was intended to cover only the May 10, 2004
synchronized elections and the candidates running in that
electoral event. Nonetheless, to obviate repetition, the Court
deems it appropriate to review and rule, as it hereby rules, on
its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its
having infringed the constitutional provision defining the
qualification or eligibility requirements for one aspiring to
run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA
9165 for secondary and tertiary level students and public and
private employees, while mandatory, is a random and
suspicionless arrangement. The objective is to stamp out
illegal drug and safeguard in the process “the well being of
[the] citizenry, particularly the youth, from the harmful
effects of dangerous drugs.” This statutory purpose, per the
policy-declaration portion of the law, can be achieved via the
pursuit by the state of “an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs
x x x through an integrated system of planning,
implementation
426
426 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
and enforcement of anti-drug abuse policies, programs and
projects.”14 The primary legislative intent is not criminal
prosecution, as those found positive for illegal drug use as a
result of this random testing are not necessarily treated as
criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation.
Secs. 54 and 55 of RA 9165 are clear on this point:
“Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation.—A drug dependent or
any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x
apply to the Board x x x for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the
matter to the Court which shall order that the applicant be
examined for drug dependency. If the examination x x x results in
the certification that the applicant is a drug dependent, he/she shall
be ordered by the Court to undergo treatment and rehabilitation in
a Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the
Voluntary Submission Program.—A drug dependent under the
voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under
Section 15 of this Act subject to the following conditions:
x x x x”
School children, the US Supreme Court noted, are most
vulnerable to the physical, psychological, and addictive effects
of drugs. Maturing nervous systems of the young are more
critically impaired by intoxicants and are more inclined to
drug dependency. Their recovery is also at a depressingly low
rate.15
_______________
14 RA 9165, Sec. 2.
15 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.
427
VOL. 570, NOVEMBER 3, 2008 427
Social Justice Society (SJS) vs. Dangerous Drugs Board
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure16 under Sec. 2, Art.
III17 of the Constitution. But while the right to privacy has
long come into its own, this case appears to be the first time
that the validity of a state-decreed search or intrusion
through the medium of mandatory random drug testing
among students and employees is, in this jurisdiction, made
the focal point. Thus, the issue tendered in these proceedings
is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among
school children, we turn to the teachings of Vernonia School
District 47J v. Acton (Vernonia) and Board of Education of
Independent School District No. 92 of Pottawatomie County, et
al. v. Earls, et al. (Board of Education),18 both fairly pertinent
US Supreme Court-decided cases involving the
constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon
wanted to address the drug menace in their respective
institutions following the discovery of frequent drug use by
school athletes. After consultation with the parents, they
required random urinalysis drug testing for the school’s
athletes. James Acton, a high school student, was denied
participation
_______________
16 Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169;
citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22 SCRA 424, 444-445.
17 Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the person or things to be seized.
18 536 U.S. 822 (2002); cited in 2 Bernas, Constitutional Rights and Social
Demands 224-227 (2004).
428
428 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
in the football program after he refused to undertake the
urinalysis drug testing. Acton forthwith sued, claiming that
the school’s drug testing policy violated, inter alia, the Fourth
Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to the
issues raised in Vernonia, considered the following: (1) schools
stand in loco parentis over their students; (2) school children,
while not shedding their constitutional rights at the school
gate, have less privacy rights; (3) athletes have less privacy
rights than non-athletes since the former observe communal
undress before and after sports events; (4) by joining the
sports activity, the athletes voluntarily subjected themselves
to a higher degree of school supervision and regulation; (5)
requiring urine samples does not invade a student’s privacy
since a student need not undress for this kind of drug testing;
and (6) there is need for the drug testing because of the
dangerous effects of illegal drugs on the young. The US
Supreme Court held that the policy constituted reasonable
search under the Fourth20 and 14th Amendments and
declared the random drug-testing policy constitutional.
In Board of Education, the Board of Education of a school
in Tecumseh, Oklahoma required a drug test for high school
students desiring to join extra-curricular activities. Lindsay
Earls, a member of the show choir, marching band, and aca-
_______________
19 The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
20 The Fourth Amendment is almost similar to Sec. 2, Art. III of the
Constitution, except that the latter limited the determination of probable
cause to a judge after an examination under oath of the complainant and his
witnesses. Hence, pronouncements of the US Federal Supreme Court and
State Appellate Court may be considered doctrinal in this jurisdiction, unless
they are manifestly contrary to our Constitution. See Herrera, Handbook on
Arrest, Search and Seizure 8 (2003).
429
VOL. 570, NOVEMBER 3, 2008 429
Social Justice Society (SJS) vs. Dangerous Drugs Board
demic team declined to undergo a drug test and averred that
the drug-testing policy made to apply to non-athletes violated
the Fourth and 14th Amendments. As Earls argued, unlike
athletes who routinely undergo physical examinations and
undress before their peers in locker rooms, non-athletes are
entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non-athletes on
the basis of the school’s custodial responsibility and authority.
In so ruling, said court made no distinction between a non-
athlete and an athlete. It ratiocinated that schools and
teachers act in place of the parents with a similar interest and
duty of safeguarding the health of the students. And in
holding that the school could implement its random drug-
testing policy, the Court hinted that such a test was a kind of
search in which even a reasonable parent might need to
engage.
In sum, what can reasonably be deduced from the above
two cases and applied to this jurisdiction are: (1) schools and
their administrators stand in loco parentis with respect to
their students; (2) minor students have contextually fewer
rights than an adult, and are subject to the custody and
supervision of their parents, guardians, and schools; (3)
schools, acting in loco parentis, have a duty to safeguard the
health and well-being of their students and may adopt such
measures as may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose conditions on
applicants for admission that are fair, just, and non-discri-
minatory.
Guided by Vernonia and Board of Education, the Court is of
the view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of
students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a
condition for admission, compliance with reasonable school
rules and regulations and policies. To be sure, the right to
enroll is not abso-430
430 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
lute; it is subject to fair, reasonable, and equitable
requirements.
The Court can take judicial notice of the proliferation of
prohibited drugs in the country that threatens the well-being
of the people,21 particularly the youth and school children who
usually end up as victims. Accordingly, and until a more
effective method is conceptualized and put in motion, a
random drug testing of students in secondary and tertiary
schools is not only acceptable but may even be necessary if the
safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and
protected. To borrow from Vernonia, “[d]eterring drug use by
our Nation’s schoolchildren is as important as enhancing
efficient enforcement of the Nation’s laws against the
importation of drugs”; the necessity for the State to act is
magnified by the fact that the effects of a drug-infested school
are visited not just upon the users, but upon the entire
student body and faculty.22 Needless to stress, the random
testing scheme provided under the law argues against the
idea that the testing aims to incriminate unsuspecting
individual students.
Just as in the case of secondary and tertiary level students,
the mandatory but random drug test prescribed by Sec. 36 of
RA 9165 for officers and employees of public and private
offices is justifiable, albeit not exactly for the same reason.
The Court notes in this regard that petitioner SJS, other than
saying that “subjecting almost everybody to drug testing,
without probable cause, is unreasonable, an unwarranted
intrusion of the individual right to privacy,”23 has failed to
show how the mandatory, random, and suspicionless drug
testing under Sec. 36(c) and (d) of RA 9165 violates the right
to privacy and constitutes unlawful and/or unconsented
_______________
21 Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-
96.
22 Rollo (G.R. No. 158633), p. 204, respondents’ Consolidated
Memorandum.
23 Rollo (G.R. No. 157870), p. 10.
431
VOL. 570, NOVEMBER 3, 2008 431
Social Justice Society (SJS) vs. Dangerous Drugs Board
search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna’s lament is just as
simplistic, sweeping, and gratuitous and does not merit
serious consideration. Consider what he wrote without
elaboration:
“The US Supreme Court and US Circuit Courts of Appeals have
made various rulings on the constitutionality of mandatory drug
tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a
citizen’s constitutional right to privacy and right against
unreasonable search and seizure. They are quoted extensively
hereinbelow.”25
The essence of privacy is the right to be left alone.26 In context,
the right to privacy means the right to be free from
unwarranted exploitation of one’s person or from intrusion
into one’s private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities.27 And while
there has been general agreement as to the basic function of
the guarantee against unwarranted search, “translation of
the abstract prohibition against ‘unreasonable searches and
seizures’ into workable broad guidelines for the decision of
particular cases is a difficult task,” to borrow from C. Camara
v. Municipal
_______________
24 Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection
of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
person or things to be seized.
25 Rollo (G.R. No. 158633), p. 9.
26 Ople, supra note 16, at p. 153; citing Cooley on Torts, Sec. 135, Vol. 1,
4th ed., [1932].
27 62 Am. Jur. 2d, Privacy, Section 1.
432
432 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
Court.28 Authorities are agreed though that the right to
privacy yields to certain paramount rights of the public and
defers to the state’s exercise of police power.29
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
“reasonableness” is the touchstone of the validity of a
government search or intrusion.30 And whether a search at
issue hews to the reasonableness standard is judged by the
balancing of the government-mandated intrusion on the
individual’s privacy interest against the promotion of some
compelling state interest.31 In the criminal context,
reasonableness requires showing of probable cause to be
personally determined by a judge. Given that the drug-testing
policy for employees––and students for that matter––under
RA 9165 is in the nature of administrative search needing
what was referred to in Vernonia as “swift and informal
disciplinary procedures,” the probable-cause standard is not
required or even practicable. Be that as it may, the review
should focus on the reasonableness of the challenged
administrative search in question.
The first factor to consider in the matter of reasonableness
is the nature of the privacy interest upon which the drug
testing, which effects a search within the meaning of Sec. 2,
Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness
of drug testing requirement. The employees’ privacy interest
in an office is to a large extent circumscribed by the company’s
work policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and
efficiency in the workplace. Their privacy expectation in a
_______________
28 387 U.S. 523; cited in 2 Bernas, supra note 18, at p. 232.
29 62 Am. Jur. 2d, Privacy, Section 17.
 30 Vernonia & Board of Education, supra notes 15 & 18.
31 Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989);
cited in Vernonia, supra.
433
VOL. 570, NOVEMBER 3, 2008 433
Social Justice Society (SJS) vs. Dangerous Drugs Board
regulated office environment is, in fine, reduced; and a degree
of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the
intrusion authorized by the challenged law. Reduced to a
question form, is the scope of the search or intrusion clearly
set forth, or, as formulated in Ople v. Torres, is the enabling
law authorizing a search “narrowly drawn” or “narrowly
focused”?32
The poser should be answered in the affirmative. For one,
Sec. 36 of RA 9165 and its implementing rules and regulations
(IRR), as couched, contain provisions specifically directed
towards preventing a situation that would unduly embarrass
the employees or place them under a humiliating experience.
While every officer and employee in a private establishment
is under the law deemed forewarned that he or she may be a
possible subject of a drug test, nobody is really singled out in
advance for drug testing. The goal is to discourage drug use
by not telling in advance anyone when and who is to be tested.
And as may be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient by
providing that the employees concerned shall be subjected to
“random drug test as contained in the company’s work rules
and regulations x x x for purposes of reducing the risk in the
work place.”
For another, the random drug testing shall be undertaken
under conditions calculated to protect as much as possible the
employee’s privacy and dignity. As to the mechanics of the
test, the law specifies that the procedure shall employ two
testing methods, i.e., the screening test and the confirmatory
test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important
consideration lies in the fact that the test shall be conducted
by trained professionals in access-controlled laboratories
monitored by the Department of Health (DOH) to safeguard
against results
_______________
32 Supra note 16, at pp. 166 & 169.
434
434 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
tampering and to ensure an accurate chain of custody.33 In
addition, the IRR issued by the DOH provides that access to
the drug results shall be on the “need to know” basis;34 that
the “drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect
the confidentiality of the test results.”35 Notably, RA 9165 does
not oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation
of the Comprehensive Dangerous Drugs Act received as a
result of the operation of the drug testing. All told, therefore,
the intrusion into the employees’ privacy, under RA 9165, is
accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively
minimal.
To reiterate, RA 9165 was enacted as a measure to stamp
out illegal drug in the country and thus protect the well-being
of the citizens, especially the youth, from the deleterious
effects of dangerous drugs. The law intends to achieve this
through the medium, among others, of promoting and
resolutely pursuing a national drug abuse policy in the
workplace via a mandatory random drug test.36 To the Court,
the need for drug testing to at least minimize illegal drug use
is substantial enough to override the individual’s privacy
interest under the premises. The Court can consider that the
illegal
_______________
 33 Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation
of Drug Laboratories, a laboratory is required to use documented chain of
custody procedures to maintain control and custody of specimens.
34 DOH IRR Governing Licensing and Accreditation of Drug Laboratories,
Sec. 7 [10.3] provides that the original copy of the test results form shall be
given to the client/donor, copy furnished the DOH and the requesting agency.
35 Id., Sec. 7 [10.4].
36 Secs. 47 and 48 of RA 9165 charge the Department of Labor and
Employment with the duty to develop and promote a national drug prevention
program and the necessary guidelines in the work place, which shall include
a mandatory drafting and adoption of policies to achieve a drug-free
workplace.
435
VOL. 570, NOVEMBER 3, 2008 435
Social Justice Society (SJS) vs. Dangerous Drugs Board
drug menace cuts across gender, age group, and social-
economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready
market, would be an investor’s dream were it not for the
illegal and immoral components of any of such activities. The
drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no
longer assume a laid back stance with respect to this modern-
day scourge. Drug enforcement agencies perceive a
mandatory random drug test to be an effective way of
preventing and deterring drug use among employees in
private offices, the threat of detection by random testing being
higher than other modes. The Court holds that the chosen
method is a reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the
compelling state concern likely to be met by the search, and
the well-defined limits set forth in the law to properly guide
authorities in the conduct of the random testing, we hold that
the challenged drug test requirement is, under the limited
context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government
officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law
and other laws on public officers, all enacted to promote a high
standard of ethics in the public service.37 And if RA 9165
passes the norm of reasonableness for private employees, the
more reason that it should pass the test for civil servants,
who, by constitutional command, are required to be
accountable at all times to the people and to serve them with
utmost responsibility and efficiency.38
Petitioner SJS’ next posture that Sec. 36 of RA 9165 is
objectionable on the ground of undue delegation of power
hardly
_______________
37 Code of Conduct and Ethical Standards for Public Officers and
Employees, Sec. 2.
38 Constitution, Art. XI, Sec. 1.
436
436 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
commends itself for concurrence. Contrary to its position, the
provision in question is not so extensively drawn as to give
unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be
conducted. It enumerates the persons who shall undergo drug
testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student
handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the
company’s work rules. In either case, the random procedure
shall be observed, meaning that the persons to be subjected to
drug test shall be picked by chance or in an unplanned way.
And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are
established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB
to issue, in consultation with the DOH, Department of the
Interior and Local Government, Department of Education,
and Department of Labor and Employment, among other
agencies, the IRR necessary to enforce the law. In net effect
then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165.
It is, therefore, incorrect to say that schools and employers
have unchecked discretion to determine how often, under
what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet
area in the constitutional landscape.39 In the face of the
increasing complexity of the task of the government and the
increasing inability of the legislature to cope directly with the
many problems demanding its attention, resort to delegation
of power, or entrusting to administrative agencies the power
of subordinate legislation, has become imperative, as here.
_______________
39 Tatad, supra note 6, at p. 351.
437
VOL. 570, NOVEMBER 3, 2008 437
Social Justice Society (SJS) vs. Dangerous Drugs Board
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA
9165, the Court finds no valid justification for mandatory drug
testing for persons accused of crimes. In the case of students,
the constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily
from the waiver by the students of their right to privacy when
they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school
authorities. In the case of private and public employees, the
constitutional soundness of the mandatory, random, and
suspicionless drug testing proceeds from the reasonableness
of the drug test policy and requirement.
We find the situation entirely different in the case of
persons charged before the public prosecutor’s office with
criminal offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug
testing are “randomness” and “suspicionless.” In the case of
persons charged with a crime before the prosecutor’s office, a
mandatory drug testing can never be random or suspicionless.
The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal
complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact
of being haled before the prosecutor’s office and peaceably
submitting themselves to drug testing, if that be the case, do
not necessarily consent to the procedure, let alone waive their
right to privacy.40 To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a
tool for criminal prosecution, contrary to the stated objectives
of RA 9165.
_______________
40 Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing
Cooley, Const. Lim. 630 (8th ed.).
438
438 SUPREME COURT REPORTS ANNOTATED
Social Justice Society (SJS) vs. Dangerous Drugs Board
Drug testing in this case would violate a persons’ right to
privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition
in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 as UNCONSTITUTIONAL;
and to PARTIALLY GRANT the petition in G.R. Nos. 157870
and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f)
UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec.
36(f) and (g) of RA 9165. No costs.
SO ORDERED.
Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga,
Chico-Nazario, Nachura, Reyes, Leonardo-de
Castro and Brion, JJ., concur.
Petition in G.R. No. 161658 granted, Section 36(g) of RA
No. 9165 and COMELEC Resolution No. 6486 declared
unconstitutional; petition in G.R. Nos. 157870 and 158633
partially granted, Section 36(c) and (d) of R.A. No. 9165
declared constitutional while Section 36(f) unconstitutional.
Note.—The requirement of standing, which necessarily
“sharpens the presentation of issues,” relates to the
constitutional mandate that the Supreme Court settle only
actual cases or controversies. (Tolentino vs. Commission on
Elections, 420 SCRA 438 [2004])
——o0o——

G.R. No. 181881. October 18, 2011.*
BRICCIO “Ricky” A. POLLO, petitioner, vs. CHAIRPERSON
KARINA CONSTANTINO-DAVID, DIRECTOR IV
RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV
LYDIA A. CASTILLO, DIRECTOR III ENGELBERT
ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, respondents.
Constitutional Law; Bill of Rights; Right to Privacy; The right
to privacy has been accorded recognition as a facet of the right
protected by the guarantee against unreasonable search and seizure
under Section 2, Article III of the 1987 Constitution.—The right to
privacy has been accorded recognition in this jurisdiction as a facet
of the right protected by the guarantee against unreasonable search
and seizure under Section 2, Article III of the 1987
_______________
* EN BANC.
190Constitution, which provides: Sec. 2. The right of the people
to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
Right to Privacy; The Civil Service Commission (CSC) had
implemented a policy that put its employees on notice that they have
no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the
use of the computer resources using both automated or human
means.—The CSC in this case had implemented a policy that put
its employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office
computers, and that the CSC may monitor the use of the computer
resources using both automated or human means. This implies that
on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.
Same; A search by a government employer of an employee’s
office is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty of
work-related misconduct.—A search by a government employer of
an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that
the employee is guilty of work-related misconduct. Thus, in the
2004 case decided by the US Court of Appeals Eighth Circuit, it was
held that where a government agency’s computer use policy
prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency
information systems and technology, the government employee had
no legitimate expectation of privacy as to the use and contents of
his office computer, and therefore evidence found during
warrantless search of the computer was admissible in prosecution
for child pornography. In that case, the defendant employee’s
computer hard drive was first remotely examined by a computer
information technician after his supervisor received complaints
that he was inaccessible and had copied and distributed non-work-
related e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the
agency, his computer tower and floppy
191disks were taken and examined. A formal administrative
investigation ensued and later search warrants were secured by the
police department. The initial remote search of the hard drive of
petitioner’s computer, as well as the subsequent warrantless
searches was held as valid under the O’Connor ruling that a public
employer can investigate work-related misconduct so long as any
search is justified at inception and is reasonably related in scope to
the circumstances that justified it in the first place.
Civil Procedure; Appeals; Substantial Evidence; Well-settled is
the rule that the findings of fact of quasi-judicial agencies, like the
Civil Service Commission (CSC), are accorded not only respect but
even finality if such findings are supported by substantial
evidence.—Well-settled is the rule that the findings of fact of quasi-
judicial agencies, like the CSC, are accorded not only respect but
even finality if such findings are supported by substantial evidence.
Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might conceivably opine
otherwise.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ponciano R. Solosa for petitioner.
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a
government employee who was charged administratively and
eventually dismissed from the service. The employee’s
personal files stored in the computer were used by the
government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule
45 which seeks to reverse and set aside the Decision1 dated
October 11, 2007 and Resolution2 dated February 29, 2008 of
the Court of Appeals (CA). The CA dismissed the petition
for certiorari (CA-G.R. SP No. 98224) filed by petitioner
Briccio “Ricky” A. Pollo to nullify the proceedings conducted
by the Civil Service Commission (CSC) which found him
guilty of dishonesty, grave misconduct, conduct prejudicial to
the best interest of the service, and violation of Republic Act
(R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of
the CSC Regional Office No. IV and also the Officer-in-Charge
of the Public Assistance and Liaison Division (PALD) under
the “Mamamayan Muna Hindi Mamaya Na” program of the
CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned
letter-complaint addressed to respondent CSC Chairperson
Karina Con-
_______________
1 Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with
Associate Justices Mariano C. Del Castillo (now a Member of this Court) and
Arcangelita M. Romilla-Lontok concurring.
2 Id., at p. 85.
195stantino-David which was marked “Confidential” and sent
through a courier service (LBC) from a certain “Alan San
Pascual” of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC
Central Office. Following office practice in which documents
marked “Confidential” are left unopened and instead sent to
the addressee, the aforesaid letter was given directly to
Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask
from you personally if it is just alright for an employee of your
agency to be a lawyer of an accused gov’t employee having a pending
case in the CSC. I honestly think this is a violation of law and unfair
to others and your office.
I have known that a person have been lawyered by one of your
attorny in the region 4 office. He is the chief of the Mamamayan
muna hindi mamaya na division. He have been helping many who
have pending cases in the CSC. The justice in our govt system will
not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.
Concerned Govt employee3
Chairperson David immediately formed a team of four
personnel with background in information technology (IT),
and issued a memo directing them to conduct an investigation
and specifically “to back up all the files in the computers found
in the Mamamayan Muna (PALD) and Legal divisions.”4 After
some briefing, the team proceeded at once to the CSC-ROIV
office at Panay Avenue, Quezon City. Upon their arrival
thereat around 5:30 p.m., the team informed the
_______________
3 Id., at p. 306.
4 Id., at p. 305.
196officialsof the CSC-ROIV, respondents Director IV Lydia
Castillo (Director Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson David’s directive.
The backing-up of all files in the hard disk of computers at
the PALD and Legal Services Division (LSD) was witnessed
by several employees, together with Directors Castillo and
Unite who closely monitored said activity. At around 6:00
p.m., Director Unite sent text messages to petitioner and the
head of LSD, who were both out of the office at the time,
informing them of the ongoing copying of computer files in
their divisions upon orders of the CSC Chair. The text
messages received by petitioner read:
“Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs
of PALD and LSD per instruction of the Chairman. If you can make
it here now it would be better.”
“All PCs Of PALD and LSD are being backed up per memo of the
chair.”
“CO IT people arrived just now for this purpose. We were not also
informed about this.
“We can’t do anything about … it … it’s a directive from chair.”
“Memo of the chair was referring to an anonymous complaint”; “ill
send a copy of the memo via mms”5
Petitioner replied also thru text message that he was
leaving the matter to Director Unite and that he will just get
a lawyer. Another text message received by petitioner from
PALD staff also reported the presence of the team from CSC
main office: “Sir may mga taga C.O. daw sa kuarto natin.”6 At
around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the
PALD were sealed and secured for the purpose of preserving
all the files stored therein. Several diskettes containing the
back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The
contents of the diskettes were examined by the CSC’s Office
for Legal Affairs (OLA). It was
_______________
5 CA Rollo, p. 56.
6 Id.
197found that most of the files in the 17 diskettes containing
files copied from the computer assigned to and being used by
the petitioner, numbering about 40 to 42 documents, were
draft pleadings or letters7 in connection with administrative
cases in the CSC and other tribunals. On the basis of this
finding, Chairperson David issued the Show-Cause
Order8 dated January 11, 2007, requiring the petitioner, who
had gone on extended leave, to submit his explanation or
counter-affidavit within five days from notice.
Evaluating the subject documents obtained from
petitioner’s personal files, Chairperson David made the
following observations:
“Most of the foregoing files are drafts of legal pleadings or
documents that are related to or connected with administrative
cases that may broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It
is also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one
who prepared them was knowingly, deliberately and willfully
aiding and advancing interests adverse and inimical to the interest
of the CSC as the central personnel agency of the government
tasked to discipline misfeasance and malfeasance in the
government service. The number of pleadings so prepared further
demonstrates that such person is not merely engaged in an isolated
practice but pursues it with seeming regularity. It would also be the
height of naivete or credulity, and certainly against common human
experience, to believe that the person concerned had engaged in this
customary practice without any consideration, and in fact, one of
the retrieved files (item 13 above) appears to insinuate the
collection of fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the presumption that
he was the one responsible or had a hand in their drafting or
preparation since the computer of origin was within his direct
control and disposition.”9
Petitioner filed his Comment, denying that he is the person
referred to in the anonymous letter-complaint which had no
attachments to it, because he is not a lawyer and neither is he
“lawyering”
 _______________
7 Id., at pp. 21-24.
8 Id., at pp. 20-25.
9 Id., at p. 25.
198for people with cases in the CSC. He accused CSC officials
of conducting a “fishing expedition” when they unlawfully
copied and printed personal files in his computer, and
subsequently asking him to submit his comment which
violated his right against self-incrimination. He asserted that
he had protested the unlawful taking of his computer done
while he was on leave, citing the letter dated January 8, 2007
in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister,
relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as
these would violate his constitutional right to privacy and
protection against self-incrimination and warrantless search
and seizure. He pointed out that though government property,
the temporary use and ownership of the computer issued
under a Memorandum of Receipt (MR) is ceded to the
employee who may exercise all attributes of ownership,
including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to
comply with the requirements of a formal complaint under the
Uniform Rules on Administrative Cases in the Civil Service
(URACC). In view of the illegal search, the files/documents
copied from his computer without his consent is thus
inadmissible as evidence, being “fruits of a poisonous tree.”10
On February 26, 2007, the CSC issued Resolution No.
07038211finding prima facie case against the petitioner and
charging him with Dishonesty, Grave Misconduct, Conduct
Prejudicial to the Best Interest of the Service and Violation of
R.A. No. 6713 (Code of Conduct and Ethical Standards for
Public Officials and Employees). Petitioner was directed to
submit his answer under oath within five days from notice
and indicate whether he elects a formal investigation. Since
the charges fall under Section 19 of the URACC, petitioner
was likewise placed under 90 days preventive suspension
effective immediately
_______________
10 Id., at pp. 55-62.
11 Id., at pp. 26-33. Chairperson Karina Constantino-David and
Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that
a prima facie case existed against petitioner while Commissioner Cesar D.
Buenaflor dissented [see Memorandum (OCOM-C Memo No. 14, s. 2007,
CA Rollo, pp. 431-434).
199upon receipt of the resolution. Petitioner received a copy of
Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration,
to Dismiss and/or to Defer) assailing the formal charge as
without basis having proceeded from an illegal search which
is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated that he
never aided any people with pending cases at the CSC and
alleged that those files found in his computer were prepared
not by him but by certain persons whom he permitted, at one
time or another, to make use of his computer out of close
association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own
files to be kept at petitioner’s CPU and Atty. Eric N.
Estrellado, the latter being Atty. Solosa’s client who attested
that petitioner had nothing to do with the pleadings or bill for
legal fees because in truth he owed legal fees to Atty. Solosa
and not to petitioner. Petitioner contended that the case
should be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the Ombudsman
against Director Buensalida, whom petitioner believes had
instigated this administrative case. He also prayed for the
lifting of the preventive suspension imposed on him. In its
Resolution No. 07051912 dated March 19, 2007, the CSC
denied the omnibus motion. The CSC resolved to treat the
said motion as petitioner’s answer.
On March 14, 2007, petitioner filed an Urgent
Petition13 under Rule 65 of the Rules of Court, docketed as CA-
G.R. SP No. 98224, assailing both the January 11, 2007 Show-
Cause Order and Resolution No. 070382 dated February 26,
2007 as having been issued with grave abuse of discretion
amounting to excess or total absence of jurisdiction. Prior to
this, however, petitioner lodged an administrative/criminal
complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and
Lydia A.
_______________
12 CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David
and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial
of the omnibus motion while Commissioner Cesar D. Buenaflor reiterated his
dissent.
13 CA Rollo, pp. 2-19.
200Castillo (CSC-RO IV) before the Office of the Ombudsman,
and a separate complaint for disbarment against Director
Buensalida.14
On April 17, 2007, petitioner received a notice of hearing
from the CSC setting the formal investigation of the case on
April 30, 2007. On April 25, 2007, he filed in the CA an Urgent
Motion for the issuance of TRO and preliminary
injunction.15 Since he failed to attend the pre-hearing
conference scheduled on April 30, 2007, the CSC reset the
same to May 17, 2007 with warning that the failure of
petitioner and/or his counsel to appear in the said pre-hearing
conference shall entitle the prosecution to proceed with the
formal investigation ex-parte.16 Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the
investigation proceedings should be held in abeyance pending
the resolution of his petition by the CA. The CSC denied his
request and again scheduled the pre-hearing conference on
May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsel’s non-appearance.17This
prompted petitioner to file another motion in the CA, to cite
the respondents, including the hearing officer, in indirect
contempt.18
On June 12, 2007, the CSC issued Resolution No.
07113419denying petitioner’s motion to set aside the denial of
his motion to defer the proceedings and to inhibit the
designated hearing officer, Atty. Bernard G. Jimenez. The
hearing officer was directed to proceed with the investigation
proper with dispatch.
_______________
14 Id., at pp. 288-294, 321-325.
15 Id., at pp. 336-340.
16 Id., at p. 373.
17 Id., at pp. 376-378.
18 Id., at pp. 388-392.
19 Id., at pp. 457-463. Chairperson Karina Constantino-David and
Commissioner Mary Ann Z. Fernandez-Mendoza concurred in denying the
motion while Commissioner Cesar D. Buenaflor dissented stating that based
on his dissenting position, any subsequent proceedings in this case is of no
moment since the initiatory proceedings was in violation of a person’s
fundamental rights enshrined in the Bill of Rights of the Constitution. (Id., at
p. 465.)
201
In view of the absence of petitioner and his counsel, and
upon the motion of the prosecution, petitioner was deemed to
have waived his right to the formal investigation which then
proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No.
071420,20 the dispositive part of which reads:
“WHEREFORE, foregoing premises considered, the Commission
hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE SERVICE with all
its accessory penalties, namely, disqualification to hold public
office, forfeiture of retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service examinations.”21
On the paramount issue of the legality of the search
conducted on petitioner’s computer, the CSC noted the dearth
of jurisprudence relevant to the factual milieu of this case
where the government as employer invades the private files
of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible
misconduct committed by said employee and without the
latter’s consent or participation. The CSC thus turned to
relevant rulings of the United States Supreme Court, and
cited the leading case of O’Connor v. Ortega22 as authority for
the view that government agencies, in their capacity as
employers, rather than law enforcers, could validly conduct
search and seizure in the governmental workplace without
meeting the “probable cause” or warrant requirement for
search and seizure. Another ruling cited by the CSC is the
more recent case of United States v. Mark L. Simons23 which
declared that the federal agency’s computer use policy
foreclosed any inference of reasonable expectation of privacy
on the part of its em-
_______________
20 Id., at pp. 586-618. Chairperson Karina Constantino-David and
Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that
petitioner is guilty as charged while Commissioner Cesar D. Buenaflor
maintained his dissent.
21 Id., at p. 618.
22 480 U.S. 709 (1987).
23 206 F.3d 392 (4th Cir. 2000).
202ployees. Though the Court therein recognized that such
policy did not, at the same time, erode the respondent’s
legitimate expectation of privacy in the office in which the
computer was installed, still, the warrantless search of the
employee’s office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant
to an investigation of work-related misconduct provided the
search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark,
the CSC held that petitioner has no reasonable expectation of
privacy with regard to the computer he was using in the
regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert
any privacy right to a computer assigned to him. Even
assuming that there was no such administrative policy, the
CSC was of the view that the search of petitioner’s computer
successfully passed the test of reasonableness for warrantless
searches in the workplace as enunciated in the aforecited
authorities. The CSC stressed that it pursued the search in
its capacity as government employer and that it was
undertaken in connection with an investigation involving
work-related misconduct, which exempts it from the warrant
requirement under the Constitution. With the matter of
admissibility of the evidence having been resolved, the CSC
then ruled that the totality of evidence adequately supports
the charges of grave misconduct, dishonesty, conduct
prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions
justified petitioner’s dismissal from the service with all its
accessory penalties.
In his Memorandum24 filed in the CA, petitioner moved to
incorporate the above resolution dismissing him from the
service in his main petition, in lieu of the filing of an
appeal via a Rule 43petition. In a subsequent motion, he
likewise prayed for the inclusion of Resolution No.
07180025 which denied his motion for reconsideration.
_______________
24 Id., at pp. 560-585.
25 Id., at pp. 707-719. Chairperson Karina Constantino-David and
Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the
motion for reconsideration while Commissioner Cesar D. Buenaflor reit-
203
By Decision dated October 11, 2007, the CA dismissed the
petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. The CA
held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a
fact-finding investigation was conducted and the results
thereof yielded a prima facie case against him; (2) it could not
be said that in ordering the back-up of files in petitioner’s
computer and later confiscating the same, Chairperson David
had encroached on the authority of a judge in view of the CSC
computer policy declaring the computers as government
property and that employee-users thereof have no reasonable
expectation of privacy in anything they create, store, send, or
receive on the computer system; and (3) there is nothing
contemptuous in CSC’s act of proceeding with the formal
investigation as there was no restraining order or injunction
issued by the CA.
 His motion for reconsideration having been denied by the
CA, petitioner brought this appeal arguing that—
I BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED
AND COMMITTED SERIOUS IRREGULARITY AND BLATANT
ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT ANONYMOUS
COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY
PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO
THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND
COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO
UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM
NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED
_______________
erated his dissent under his “Addendum to the Dissenting Position Under
OCOM-C Memo No. 14, S. 2007”. (Id., at p. 720.)
204SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID
AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING
THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE
MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND
ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND
COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF
FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED
WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN
HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING
THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED
UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY
ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID
AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO
CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL
EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION
NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION
07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE
LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE
ANCILLARY PRAYER FOR TRO.26
Squarely raised by the petitioner is the legality of the
search conducted on his office computer and the copying of his
personal files without his knowledge and consent, alleged as
a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unrea-
_______________
26 Rollo, p. 19.
205sonable search and seizure under Section 2, Article III of
the 1987 Constitution,27 which provides:
“Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.”
The constitutional guarantee is not a prohibition of all
searches and seizures but only of “unreasonable” searches and
seizures.28 But to fully understand this concept and
application for the purpose of resolving the issue at hand, it is
essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court
declared in People v. Marti:29
“Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
“The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things
to be seized.” (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth
Amendment to the United States Constitution. As such, the Court
may turn to the pronounce-
_______________
27 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870,
158633 and 161658, November 3, 2008, 570 SCRA 410, 427, citing Ople v.
Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169.
28 Joaquin Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 2003 ed., p. 162.
29 G.R. No. 81561, January 18, 1991, 193 SCRA 57.
206ments of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in
jurisdiction.”30
In the 1967 case of Katz v. United States,31 the US Supreme
Court held that the act of FBI agents in electronically
recording a conversation made by petitioner in an enclosed
public telephone booth violated his right to privacy and
constituted a “search and seizure.” Because the petitioner had
a reasonable expectation of privacy in using the enclosed
booth to make a personal telephone call, the protection of the
Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the
existence of privacy right under prior decisions involved a
two-fold requirement: first, that a person has exhibited an
actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as
reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable
expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth
Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even
as the latter or their guests could enter the office. The Court
thus “recognized that employees may have a reasonable
expectation of privacy against intrusions by police.”
That the Fourth Amendment equally applies to a
government workplace was addressed in the 1987 case
of O’Connor v. Ortega34where a physician, Dr. Magno Ortega,
who was employed by a state hospital, claimed a violation of
his Fourth Amendment rights when hospital officials
investigating charges of mismanagement of the psychiatric
residency program, sexual harassment of female hospital
employees and other irregularities involving his private
patients under the state medical aid program, searched his
office and seized personal items from his desk and filing
cabinets. In that case, the
_______________
30 Id., at p. 63.
31 389 U.S. 437 (1967).
this 32 Id.
33 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968).
34 Supra note 22.
207Court categorically declared that “[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the
government instead of a private employer.”35 A plurality of
four Justices concurred that the correct analysis has two
steps: first, because “some government offices may be so open
to fellow employees or the public that no expectation of
privacy is reasonable”, a court must consider “[t]he
operational realities of the workplace” in order to determine
whether an employee’s Fourth Amendment rights are
implicated; and next, where an employee has a legitimate
privacy expectation, an employer’s intrusion on that
expectation “for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, should
be judged by the standard of reasonableness under all the
circumstances.”36
On the matter of government employees’ reasonable
expectations of privacy in their workplace, O’Connor teaches:
“x x x Public employees’ expectations of privacy in their offices,
desks, and file cabinets, like similar expectations of employees in
the private sector, may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. x x x The
employee’s expectation of privacy must be assessed in the context
of the employment relation. An office is seldom a private enclave
free from entry by supervisors, other employees, and business and
personal invitees. Instead, in many cases offices are continually
entered by fellow employees and other visitors during the workday
for conferences, consultations, and other work-related visits.
Simply put, it is the nature of government offices that others—such
as fellow employees, supervisors, consensual visitors, and the
general public—may have frequent access to an individual’s office.
We agree with JUSTICE SCALIA that “[c]onstitutional protection
against unreasonable searches by the government does not
disappear merely because the government has the right to make
reasonable intrusions in its capacity as employer,” x x x but some
government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable. x x
x Given the great variety of work environments in the public
sector, the question of whether an employee has
_______________
35 Id., at p. 717.
36 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.
208a reasonable expectation of privacy must be addressed
on a case-by-case basis.”37(Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the
US Supreme Court declared that Dr. Ortega’s Fourth
Amendment rights are implicated only if the conduct of the
hospital officials infringed “an expectation of privacy that
society is prepared to consider as reasonable.” Given the
undisputed evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees, kept
personal correspondence and other private items in his own
office while those work-related files (on physicians in
residency training) were stored outside his office, and there
being no evidence that the hospital had established any
reasonable regulation or policy discouraging employees from
storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create
any expectation of privacy where it would not otherwise exist),
the Court concluded that Dr. Ortega has a reasonable
expectation of privacy at least in his desk and file cabinets.38
Proceeding to the next inquiry as to whether the search
conducted by hospital officials was reasonable,
the O’Connor plurality decision discussed the following
principles:
“Having determined that Dr. Ortega had a reasonable
expectation of privacy in his office, the Court of Appeals simply
concluded without discussion that the “search…was not a
reasonable search under the fourth amendment.” x x x “[t]o hold
that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards
governing such searches…[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must
determine the appropriate standard of reasonableness applicable to
the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires “balanc[ing] the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” x x x In the case of
searches conducted by a public employer, we must balance
the invasion of the
_______________
37 Supra note 22 at pp. 717-718.
38 Id., at pp. 718-719.
209employees’ legitimate expectations of privacy against the
government’s need for supervision, control, and the
efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever
the employer wished to enter an employee’s office, desk, or file
cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant
requirement would conflict with the “common-sense realization
that government offices could not function if every employment
decision became a constitutional matter.” x x x
xxxx
The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers
were required to have probable cause before they entered an
employee’s desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable
cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-
related reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public employers for
the purpose of securing state property. x x x To ensure the efficient
and proper operation of the agency, therefore, public employers
must be given wide latitude to enter employee offices for work-
related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant
to an investigation of work-related employee misconduct. Even
when employers conduct an investigation, they have an interest
substantially different from “the normal need for law enforcement.”
x x x Public employers have an interest in ensuring that their
agencies operate in an effective and efficient manner, and the work
of these agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related misfeasance
of its employees. Indeed, in many cases, public employees are
entrusted with tre-
210mendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public
interest can be severe. In contrast to law enforcement officials,
therefore, public employers are not enforcers of the criminal law;
instead, public employers have a direct and overriding interest in
ensuring that the work of the agency is conducted in a proper and
efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would
impose intolerable burdens on public employers. The delay
in correcting the employee misconduct caused by the need
for probable cause rather than reasonable suspicion will be
translated into tangible and often irreparable damage to the
agency’s work, and ultimately to the public interest. x x x
xxxx
In sum, we conclude that the “special needs, beyond the
normal need for law enforcement make the…probable-cause
requirement impracticable,” x x x for legitimate, work-
related noninvestigatory intrusions as well as
investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation
of the workplace, nor authorize arbitrary intrusions upon the
privacy of public employees. We hold, therefore, that public
employer intrusions on the constitutionally protected
privacy interests of government employees for
noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the
circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable:
“Determining the reasonableness of any search involves a
twofold inquiry: first, one must consider ‘whether the…action
was justified at its inception,’ x x x; second, one must
determine whether the search as actually conducted ‘was
reasonably related in scope to the circumstances which
justified the interference in the first place,’” x x x
Ordinarily, a search of an employee’s office by a
supervisor will be “justified at its inception” when there are
reasonable grounds for suspecting that the search will turn
up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a
needed file. x x x The search will be permissible in its scope
when “the measures adopted are reasonably related to the
objectives of the search
211and not excessively intrusive in light of …the nature of
the [misconduct].” x x x”39 (Citations omitted; emphasis
supplied.)
Since the District Court granted summary judgment
without a hearing on the factual dispute as to the character of
the search and neither was there any finding made as to the
scope of the search that was undertaken, the case was
remanded to said court for the determination of the
justification for the search and seizure, and evaluation of the
reasonableness of both the inception of the search and its
scope.
In O’Connor the Court recognized that “special needs”
authorize warrantless searches involving public employees for
work-related reasons. The Court thus laid down a balancing
test under which government interests are weighed against
the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the
warrant requirement, which are related to law
enforcement.40 O’Connor was applied in subsequent cases
raising issues on employees’ privacy rights in the workplace.
One of these cases involved a government employer’s search
of an office computer, United States v. Mark L.
Simons41 where the defendant Simons, an employee of a
division of the Central Intelligence Agency (CIA), was
convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which
he did not share with anyone, and a computer with Internet
access. The agency had instituted a policy on computer use
stating that employees were to use the Internet for official
government business only and that accessing unlawful
material was specifically prohibited. The policy also stated
that users shall understand that the agency will periodically
audit, inspect, and/or monitor the user’s Internet access as
deemed appropriate. CIA agents instructed its contractor for
the management of the agency’s computer network, upon
initial discovery of prohibited internet activity originating
from Simons’ computer, to conduct a
_______________
39 Id., at pp. 719, 722-725.
40 Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.
41 Supra note 23.
212remote monitoring and examination of Simons’ computer.
After confirming that Simons had indeed downloaded pictures
that were pornographic in nature, all the files on the hard
drive of Simon’s computer were copied from a remote work
station. Days later, the contractor’s representative finally
entered Simon’s office, removed the original hard drive on
Simon’s computer, replaced it with a copy, and gave the
original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons’ office in the evening
when Simons was not around. The search team copied the
contents of Simons’ computer; computer diskettes found in
Simons’ desk drawer; computer files stored on the zip drive or
on zip drive diskettes; videotapes; and various documents,
including personal correspondence. At his trial, Simons
moved to suppress these evidence, arguing that the searches
of his office and computer violated his Fourth Amendment
rights. After a hearing, the district court denied the motion
and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court
ruled that the searches of Simons’ computer and office did not
violate his Fourth Amendment rights and the first search
warrant was valid. It held that the search remains valid under
the O’Connor exception to the warrant requirement because
evidence of the crime was discovered in the course of an
otherwise proper administrative inspection. Simons’ violation
of the agency’s Internet policy happened also to be a violation
of criminal law; this does not mean that said employer lost the
capacity and interests of an employer. The warrantless entry
into Simons’ office was reasonable under the Fourth
Amendment standard announced in O’Connor because at the
inception of the search, the employer had “reasonable grounds
for suspecting” that the hard drive would yield evidence of
misconduct, as the employer was already aware that Simons
had misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was
reasonably related to the objective of the search, and the
search was not excessively intrusive. Thus, while Simons had
a reasonable expectation of privacy in his office, he did not
have such legitimate expectation of privacy with regard to the
files in his computer.213
“x x x To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. x x
x And, in order to prove a legitimate expectation of privacy, Simons
must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons’ computer
did not violate his Fourth Amendment rights because, in light of
the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we
conclude that Simons’ Fourth Amendment rights were not violated
by FBIS’ retrieval of Simons’ hard drive from his office.
Simons did not have a legitimate expectation of privacy
with regard to the record or fruits of his Internet use in light
of the FBIS Internet policy. The policy clearly stated that
FBIS would “audit, inspect, and/or monitor” employees’ use
of the Internet, including all file transfers, all websites
visited, and all e-mail messages, “as deemed
appropriate.”x x x This policy placed employees on notice that
they could not reasonably expect that their Internet activity would
be private. Therefore, regardless of whether Simons subjectively
believed that the files he transferred from the Internet were
private, such a belief was not objectively reasonable after FBIS
notified him that it would be overseeing his Internet use. x x x
Accordingly, FBIS’ actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate
the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate
expectation of privacy in his office. x x x Here, Simons has
shown that he had an office that he did not share. As noted above,
the operational realities of Simons’ workplace may have diminished
his legitimate privacy expectations. However, there is no evidence
in the record of any workplace practices, procedures, or regulations
that had such an effect. We therefore conclude that, on this
record, Simons possessed a legitimate expectation of privacy
in his office.
xxxx
In the final analysis, this case involves an employee’s supervisor
entering the employee’s government office and retrieving a piece of
government
214equipment in which the employee had absolutely no expectation
of privacy—equipment that the employer knew contained evidence
of crimes committed by the employee in the employee’s office. This
situation may be contrasted with one in which the criminal acts of
a government employee were unrelated to his employment. Here,
there was a conjunction of the conduct that violated the employer’s
policy and the conduct that violated the criminal law. We consider
that FBIS’ intrusion into Simons’ office to retrieve the hard drive is
one in which a reasonable employer might engage. x x x”42 (Citations
omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous
Drugs Board43 which involved the constitutionality of a
provision in R.A. No. 9165 requiring mandatory drug testing
of candidates for public office, students of secondary and
tertiary schools, officers and employees of public and private
offices, and persons charged before the prosecutor’s office with
certain offenses, have also recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.
“The first factor to consider in the matter of reasonableness is
the nature of the privacy interest upon which the drug testing,
which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing
requirement. The employees’ privacy interest in an office is
to a large extent circumscribed by the company’s work
policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a
regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld.” (Emphasis
supplied.)
Applying the analysis and principles announced
in O’Connor and Simons to the case at bar, we now address
the following questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer files?; and (2)
Was the search authorized by the CSC
_______________
42 Id.
43 Supra note 27 at pp. 432-433.
215Chair, the copying of the contents of the hard drive on
petitioner’s computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to
consider include “(1) the employee’s relationship to the item
seized; (2) whether the item was in the immediate control of
the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item.”
These factors are relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we consider the two
questions together.44 Thus, where the employee used a
password on his computer, did not share his office with co-
workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items
located therein must comply with the Fourth Amendment.45
We answer the first in the negative. Petitioner failed to
prove that he had an actual (subjective) expectation of privacy
either in his office or government-issued computer which
contained his personal files. Petitioner did not allege that he
had a separate enclosed office which he did not share with
anyone, or that his office was always locked and not open to
other employees or visitors. Neither did he allege that he used
passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits
that being in the public assistance office of the CSC-ROIV, he
normally would have visitors in his office like friends,
associates and even unknown people, whom he even allowed
to use his computer which to him seemed a trivial request. He
described his office as “full of people, his friends, unknown
people” and that in the past 22 years he had been discharging
his functions at the PALD, he is “personally assisting
incoming clients, receiving documents, drafting cases on
appeals, in charge of accomplishment report, Mamamayan
Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself
alone, that in fact he stays in the
_______________
44 U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.), April 3, 2007,
citing United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998).
45 U.S. v. Ziegler, 474 F.3d 1184 C.A.9 (Mont.), January 30, 2007.
216office as a paying customer.”46 Under this scenario, it can
hardly be deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of
allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is
negated by the presence of policy regulating the use of office
computers, as in Simons.
Office Memorandum No. 10, S. 2002 “Computer Use Policy
(CUP)” explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission
and may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the
performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any
given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall
not have an expectation of privacy in anything they create, store, send, or
receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall select
and assign Users to handle the confidential examination data and
processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy
in anything they create, store, send, or receive on the computer through the
Internet or any other computer network. Users understand that the CSC
may use human or automated means to monitor the use of
its Computer Resources.
 6. Non-exclusivity of Computer Resources. A computer resource is not a
personal property or for the exclusive use of a User to whom
_______________
46 CA Rollo, pp. 42, 61.
217a memorandum of receipt (MR) has been issued. It can be shared or operated
by other users. However, he is accountable therefor and must insure its
care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding
their passwords for access to the computer system. Individual passwords
shall not be printed, stored online, or given to others. Users shall be
responsible for all transactions made using their passwords. No User may
access the computer system with another User’s password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the
computer system or to encode particular files or messages does not imply
that Users have an expectation of privacy in the material they create or
receive on the computer system. The Civil Service Commission has global
passwords that permit access to all materials stored on its networked
computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall
authorize the application of the said global passwords.
x x x x”47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its
employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office
computers, and that the CSC may monitor the use of the
computer resources using both automated or human means.
This implies that on-the-spot inspections may be done to
ensure that the computer resources were used only for such
legitimate business purposes.
One of the factors stated in O’Connor which are relevant in
determining whether an employee’s expectation of privacy in
the workplace is reasonable is the existence of a workplace
privacy policy.48 In one case, the US Court of Appeals Eighth
Circuit held that a state
_______________
47 Id., at pp. 440-443.
48 Biby v. Board of Regents, of the University of Nebraska at Lincoln, 419
F.3d 845 C.A.8 (Neb), August 22, 2005.
218university employee has not shown that he had a
reasonable expectation of privacy in his computer files where
the university’s computer policy, the computer user is
informed not to expect privacy if the university has a
legitimate reason to conduct a search. The user is specifically
told that computer files, including e-mail, can be searched
when the university is responding to a discovery request in
the course of litigation. Petitioner employee thus cannot claim
a violation of Fourth Amendment rights when university
officials conducted a warrantless search of his computer for
work-related materials.49
As to the second point of inquiry on the reasonableness of
the search conducted on petitioner’s computer, we answer in
the affirmative.
The search of petitioner’s computer files was conducted in
connection with investigation of work-related misconduct
prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya
Na division is supposedly “lawyering” for individuals with
pending cases in the CSC. Chairperson David stated in her
sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text
messages from unknown sources adverting to certain anomalies in Civil
Service Commission Regional Office IV (CSCRO IV) such as, staff working
in another government agency, “selling” cases and aiding parties with
pending cases, all done during office hours and involved the use of
government properties;
9. That said text messages were not investigated for lack of any verifiable leads
and details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed
the persons and divisions involved in the alleged irregularities happening
in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening
in CSCRO IV and its effect on the integrity of the Commission, I decided to
form a team of Central Office staff to
_______________
49 Id.
219back up the files in the computers of the Public Assistance and Liaison
Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employee’s office
is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is
guilty of work-related misconduct.51 Thus, in the 2004 case
decided by the US Court of Appeals Eighth Circuit, it was held
that where a government agency’s computer use policy
prohibited electronic messages with pornographic content and
in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency
information systems and technology, the government
employee had no legitimate expectation of privacy as to the
use and contents of his office computer, and therefore
evidence found during warrantless search of the computer
was admissible in prosecution for child pornography. In that
case, the defendant employee’s computer hard drive was first
remotely examined by a computer information technician
after his supervisor received complaints that he was
inaccessible and had copied and distributed non-work-related
e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of
the agency, his computer tower and floppy disks were taken
and examined. A formal administrative investigation ensued
and later search warrants were secured by the police
department. The initial remote search of the hard drive of
petitioner’s computer, as well as the subsequent warrantless
searches was held as valid under the O’Connor ruling that a
public employer can investigate work-related misconduct so
long as any search is justified at inception and is reasonably
related in scope to the circumstances that justified it in the
first place.52
Under the facts obtaining, the search conducted on
petitioner’s computer was justified at its inception and scope.
We quote with
_______________
50 CA Rollo, p. 639.
51 U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.
52 Id.
220approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established
by O’Connor:
“Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind of the
Commission that the search of Pollo’s computer has successfully
passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American
authorities. It bears emphasis that the Commission pursued
the search in its capacity as a government employer and
that it was undertaken in connection with an investigation
involving a work-related misconduct, one of the circumstances
exempted from the warrant requirement. At the inception of the
search, a complaint was received recounting that a certain division
chief in the CSCRO No. IV was “lawyering” for parties having
pending cases with the said regional office or in the
Commission. The nature of the imputation was serious, as it
was grievously disturbing. If, indeed, a CSC employee was
found to be furtively engaged in the practice of “lawyering” for
parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering
repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency,
and in the process, render it less effective in fulfilling its mandate
as an impartial and objective dispenser of administrative justice. It
is settled that a court or an administrative tribunal must not only
be actually impartial but must be seen to be so, otherwise the
general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the
Commission had to act fast, if only to arrest or limit any possible
adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving
the computer resources in the concerned regional office. That it
was the computers that were subjected to the search was
justified since these furnished the easiest means for an
employee to encode and store documents. Indeed, the
computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral
nature of computer files, that is, they could easily be
destroyed at a click of a button, necessitated drastic and
immediate action. Pointedly, to impose the need to comply with
the probable cause requirement would invariably defeat the
purpose of the wok-related investigation.
 Worthy to mention, too, is the fact that the Commission effected basis of an anonymous letter alleging that he was consuming
the warrantless search in an open and transparent manner. his working hours filing and attending to personal cases,
Officials and some using office supplies, equipment and utilities. The OCA
221employees of the regional office, who happened to be in the
conducted a spot investigation aided by NBI agents. The team
vicinity, were on hand to observe the process until its completion.
was able
In addition, the respondent himself was duly notified, through text _______________
messaging, of the search and the concomitant retrieval of files from 53 CA Rollo, pp. 611-612.
his computer. 54 A.M. Nos. P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA
All in all, the Commission is convinced that the warrantless 361.
search done on computer assigned to Pollo was not, in any way, 222to access Atty. Morales’ personal computer and print two
vitiated with unconstitutionality. It was a reasonable exercise of the documents stored in its hard drive, which turned out to be two
managerial prerogative of the Commission as an employer aimed at pleadings, one filed in the CA and another in the RTC of
ensuring its operational effectiveness and efficiency by going after Manila, both in the name of another lawyer. Atty. Morales’
the work-related misfeasance of its employees. Consequently, the computer was seized and taken in custody of the OCA but was
evidence derived from the questioned search are deemed
later ordered released on his motion, but with order to the
admissible.”53
MISO to first retrieve the files stored therein. The OCA
Petitioner’s claim of violation of his constitutional right to
disagreed with the report of the Investigating Judge that
privacy must necessarily fail. His other argument invoking
there was no evidence to support the charge against Atty.
the privacy of communication and correspondence under
Morales as no one from the OCC personnel who were
Section 3(1), Article III of the 1987 Constitution is also
interviewed would give a categorical and positive statement
untenable considering the recognition accorded to certain
affirming the charges against Atty. Morales, along with other
legitimate intrusions into the privacy of employees in the
court personnel also charged in the same case. The OCA
government workplace under the aforecited authorities. We
recommended that Atty. Morales should be found guilty of
likewise find no merit in his contention
gross misconduct. The Court En Banc held that while Atty.
that O’Connor and Simons are not relevant because the
Morales may have fallen short of the exacting standards
present case does not involve a criminal offense like child
required of every court employee, the Court cannot use the
pornography. As already mentioned, the search of petitioner’s
evidence obtained from his personal computer against him for
computer was justified there being reasonable ground for
it violated his constitutional right against unreasonable
suspecting that the files stored therein would yield
searches and seizures. The Court found no evidence to support
incriminating evidence relevant to the investigation being
the claim of OCA that they were able to obtain the subject
conducted by CSC as government employer of such
pleadings with the consent of Atty. Morales, as in fact the
misconduct subject of the anonymous complaint. This
latter immediately filed an administrative case against the
situation clearly falls under the exception to the warrantless
persons who conducted the spot investigation, questioning the
requirement in administrative searches defined in O’Connor.
validity of the investigation and specifically invoking his
The Court is not unaware of our decision in Anonymous
constitutional right against unreasonable search and seizure.
Letter-Complaint against Atty. Miguel Morales, Clerk of
And as there is no other evidence, apart from the pleadings,
Court, Metropolitan Trial Court of Manila54 involving a
retrieved from the unduly confiscated personal computer of
branch clerk (Atty. Morales) who was investigated on the
Atty. Morales, to hold him administratively liable, the Court
had no choice but to dismiss the charges against him for
insufficiency of evidence.
The above case is to be distinguished from the case at bar
because, unlike the former which involved
a personal computer of a court employee, the computer from
which the personal files of herein petitioner were retrieved is
a government-issued computer, hence government property
the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item
seized (office computer) and other relevant factors and
circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007
on Computer Use Policy, failed
223to establish that petitioner had a reasonable expectation
of privacy in the office computer assigned to him.
Having determined that the personal files copied from the
office computer of petitioner are admissible in the
administrative case against him, we now proceed to the issue
of whether the CSC was correct in finding the petitioner guilty
of the charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-
judicial agencies, like the CSC, are accorded not only respect
but even finality if such findings are supported by substantial
evidence. Substantial evidence is such amount of relevant
evidence which a reasonable mind might accept as adequate
to support a conclusion, even if other equally reasonable
minds might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a
substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn
affidavits and testimonies of the witnesses it presented during
the formal investigation. According to the CSC, these
documents were confirmed to be similar or exactly the same
content-wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the
Commission Proper. There were also substantially similar
copies of those pleadings filed with the CA and duly furnished
the Commission. Further, the CSC found the explanation
given by petitioner, to the effect that those files retrieved from
his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle,
as implausible and doubtful under the circumstances. We hold
that the CSC’s factual finding regarding the authorship of the
subject pleadings and misuse of the office computer is well-
supported by the evidence on record, thus:
_______________
55 Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA
210, 230, citing Rosario v. Victory Ricemill, G.R. No. 147572, February 19,
2003, 397 SCRA 760, 766 and Bagong Bayan Corp., Realty Investors and
Developers v. National Labor Relations Commission, G.R. No. 61272,
September 29, 1989, 178 SCRA 107.
224
“It is also striking to note that some of these documents were in
the nature of pleadings responding to the orders, decisions or
resolutions of these offices or directly in opposition to them such as
a petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and
willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission.
Worse, the appearance in one of the retrieved documents the
phrase, “Eric N. Estr[e]llado, Epal kulang ang bayad mo,”lends
plausibility to an inference that the preparation or drafting of the
legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the
same for the money—a “legal mercenary” selling or purveying his
expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved
from the computer of Pollo raises the presumption that he
was the author thereof. This is because he had a control of
the said computer. More significantly, one of the witnesses,
Margarita Reyes, categorically testified seeing a written copy of one
of the pleadings found in the case records lying on the table of the
respondent. This was the Petition for Review in the case of
Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own
employer.
To deflect any culpability, Pollo would, however, want the
Commission to believe that the documents were the personal files
of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a
sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes,
who testified that during her entire stay in the PALD, she never
saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity
with Pollo and would have known if Atty. Solosa, whom she
personally knows, was using the computer in question. Further,
Atty. Solosa himself was never presented during the formal
investigation to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight and credence.
The same is true with the other supporting affidavits, which Pollo
submitted.
At any rate, even admitting for a moment the said contention of
the respondent, it evinces the fact that he was unlawfully
authorizing private persons to use the computer assigned to him for
official purpose, not only once but several times gauging by the
number of pleadings, for ends not in conformity with the interests
of the Commission. He was, in effect, acting as
225a principal by indispensable cooperation…Or at the very least,
he should be responsible for serious misconduct for repeatedly
allowing CSC resources, that is, the computer and the electricity, to
be utilized for purposes other than what they were officially
intended.
Further, the Commission cannot lend credence to the posturing
of the appellant that the line appearing in one of the documents,
“Eric N. Estrellado, Epal kulang ang bayad mo,” was a private joke
between the person alluded to therein, Eric N. Estrellado, and his
counsel, Atty. Solosa, and not indicative of anything more sinister.
The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer
assigned to the respondent, unless he had something to do with it?”56
Petitioner assails the CA in not ruling that the CSC should
not have entertained an anonymous complaint since Section
8 of CSC Resolution No. 99-1936 (URACC) requires a verified
complaint:
Rule II – Disciplinary Cases
SEC. 8. Complaint.—A complaint against a civil service
official or employee shall not be given due course unless it is in
writing and subscribed and sworn to by the complainant.
However, in cases initiated by the proper disciplining
authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is
obvious truth or merit to the allegation therein or supported
by documentary or direct evidence, in which case the person
complained of may be required to comment.
x x x x”
We need not belabor this point raised by petitioner. The
administrative complaint is deemed to have been initiated by
the CSC itself when Chairperson David, after a spot
inspection and search of the files stored in the hard drive of
computers in the two divisions adverted to in the anonymous
letter—as part of the disciplining authority’s own fact-finding
investigation and information-gathering—found a prima
facie case against the petitioner who was then directed to file
_______________
56 CA Rollo, pp. 616-617.
226his comment. As this Court held in Civil Service
Commission v. Court of Appeals57—
“Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of
E.O. No. 292 and Section 8, Rule II of Uniform Rules on
Administrative Cases in the Civil Service, a complaint may be
initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the
disciplining authority for Dumlao, filed the complaint, jurisdiction
over Dumlao was validly acquired.” (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10,
S. 2002 (CUP), the same deserves scant consideration. The
alleged infirmity due to the said memorandum order having
been issued solely by the CSC Chair and not the Commission
as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by
Chairperson David in her Reply to the Addendum to
Commissioner Buenaflor’s previous memo expressing his
dissent to the actions and disposition of the Commission in
this case. According to Chairperson David, said memorandum
order was in fact exhaustively discussed, provision by
provision in the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at the time saw
no need to issue a Resolution for the purpose and further
because the CUP being for internal use of the Commission,
the practice had been to issue a memorandum
order.58 Moreover, being an administrative rule that is merely
internal in nature, or which regulates only the personnel of
the CSC and not the public, the CUP need not be published
prior to its effectivity.59
In fine, no error or grave abuse of discretion was committed
by the CA in affirming the CSC’s ruling that petitioner is
guilty of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service, and violation of R.A. No. 6713.
The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its
accessory penalties, pursuant to existing rules and
regulations.
WHEREFORE, the petition for review on certiorari is
DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in
CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.

Note.—While it is doctrinal that the right against

unreasonable searches and seizures is a personal right which
may be waived expressly or impliedly, a waiver by implication
cannot be presumed. (Silahis International Hotel, Inc. vs.
Soluta, 482 SCRA 660 [2006])
——o0o——

G.R. No. 190710. June 6, 2011.*
JESSE U. LUCAS, petitioner, vs. JESUS S. LUCAS,
respondent.
Actions; Pleadings, Practice and Procedure; An order denying
a motion to dismiss is an interlocutory order which neither
terminates nor finally disposes of a case, as it leaves something to be
done by the court before the case is finally decided on the merits—as
such, the general rule is that the denial of a motion to dismiss cannot
be questioned in a special civil action for certiorari, which is a
remedy designed to correct errors of jurisdiction and not errors of
judgment.—Primarily, we emphasize that the assailed Orders of
the trial court were orders denying respondent’s motion to dismiss
the petition for illegitimate filiation. An order denying a motion to
dismiss is an interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be done by the
court before the case is finally decided on the merits. As such, the
general rule is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari, which is a remedy
designed to correct errors of jurisdiction and not errors of judgment.
Neither can a denial of a motion to dismiss be the subject of an
appeal unless and until a final judgment or order is rendered. In a
number of cases, the court has granted the extraordinary remedy
of certiorari on the denial of the motion to dismiss but only when it
has been tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction. In the present case, we discern no grave
abuse of discretion on the part of the trial court in denying the
motion to dismiss.
Same; Jurisdiction; A petition directed against the “thing” itself
or the res, which concerns the status of a person, like a petition for
adoption, annulment of marriage, or correction of entries in the birth
certificate, is an action in rem.—An action in personam is lodged
against a person based on personal liability; an action in rem is
directed against the thing itself instead of the person; while an
action quasi in rem names a person as defendant, but its object is
to subject that person’s interest in a property to a corresponding
lien or obligation. A petition directed against the “thing” itself or
the res, which concerns the status of a person, like a petition for
adoption, annulment of marriage, or correction of entries in the
birth certificate, is an action in rem. In an action in personam,
jurisdiction over the person of the defendant is necessary for the
court to validly try and decide the case. In a proceeding in
rem or quasi in rem, jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction on the court, provided that
the latter has jurisdiction over the res. Jurisdiction over the res is
acquired either (a) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law, or (b)
as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective.
Same; Same; Filiation; Due Process; A petition to establish
illegitimate filiation is an action in rem—by the simple filing of the
petition to establish illegitimate filiation before the Regional Trial
Court (RTC), which undoubtedly had jurisdiction over the subject
matter of the petition, the latter thereby acquired jurisdiction over
the case; If at all, service of summons or notice is made to the
defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process
requirements.—The herein petition to establish illegitimate
filiation is an action in rem. By the simple filing of the petition to
establish illegitimate filiation before the RTC, which undoubtedly
had jurisdiction over the subject matter of the petition, the latter
thereby acquired jurisdiction over the case. An in rem proceeding is
validated essentially through publication. Publication is notice to
the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any
sort to the right sought to be established. Through publication, all
interested parties are deemed notified of the petition. If at all,
service of summons or notice is made to the defendant, it is not for
the purpose of vesting the court with jurisdiction, but merely for
satisfying the due process requirements. This is but proper in order
to afford the person concerned the opportunity to protect his
interest if he so chooses. Hence, failure to serve summons will not
deprive the court of its jurisdiction to try and decide the case. In
such a case, the lack of summons may be excused where it is
determined that the adverse party had, in fact, the opportunity to
file his opposition, as in this case. We find that the due process
requirement with respect to respondent has been satisfied,
considering that he has participated in the proceedings in this case
and he has the opportunity to file his opposition to the petition to
establish filiation.
Same; Same; Same; A proceeding is adversarial where the
party seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it.—To address
respondent’s contention that the petition should have been
adversarial in form, we further hold that the herein petition to
establish filiation was sufficient in form. It was indeed adversarial
in nature despite its caption which lacked the name of a defendant,
the failure to implead respondent as defendant, and the non-service
of summons upon respondent. A proceeding is adversarial where
the party seeking relief has given legal warning to the other party
and afforded the latter an opportunity to contest it. In this
petition—classified as an action in rem—the notice requirement for
an adversarial proceeding was likewise satisfied by the publication
of the petition and the giving of notice to the Solicitor General, as
directed by the trial court.
Same; Same; Pleadings, Practice and Procedure; Cause of
Action; Elements; A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action inadequate.—
The petition to establish filiation is sufficient in substance. It
satisfies Section 1, Rule 8 of the Rules of Court, which requires the
complaint to contain a plain, concise, and direct statement of the
ultimate facts upon which the plaintiff bases his claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action inadequate. A complaint states a cause of
action when it contains the following elements: (1) the legal right of
plaintiff, (2) the correlative obligation of the defendant, and (3) the
act or omission of the defendant in violation of said legal right.
Same; Same; Same; Paternity; Evidence; A party is confronted
by the so-called procedural aspects in a paternity case during trial,
when the parties have presented their respective evidence—they are
matters of evidence that cannot be determined at this initial stage of
the proceedings; A prima facie case is built by a party’s evidence and
not by mere allegations in the initiatory pleading.—The statement
in Herrera v. Alba, 460 SCRA 197 (2005), that there are four
significant procedural aspects in a traditional paternity case which
parties have to face has been widely misunderstood and misapplied
in this case. A party is confronted by these so-called procedural
aspects during trial, when the parties have presented their
respective evidence. They are matters of evidence that cannot be
determined at this initial stage of the proceedings, when only the
petition to establish filiation has been filed. The CA’s observation
that petitioner failed to establish a prima facie case—the first
procedural aspect in a paternity case—is therefore misplaced.
A prima faciecase is built by a party’s evidence and not by mere
allegations in the initiatory pleading. Clearly then, it was also not
the opportune time to discuss the lack of a prima facie case vis-à-
vis the motion for DNA testing since no evidence has, as yet, been
presented by petitioner. More essentially, it is premature to discuss
whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been issued by
the trial court. In fact, the latter has just set the said case for
hearing.
Same; Same; Same; Deoxyribonucleic Acid (DNA) Testing;
Paternity; Searches and Seizures; In some foreign states, a court
order for blood testing is considered a “search,” which, under their
Constitutions (as in ours), must be preceded by a finding of
probable cause in order to be valid, hence, the requirement of a
prima facie case, or reasonable possibility, was imposed in civil
actions as a counterpart of a finding of probable cause; The same
condition precedent should be applied in our jurisdiction to protect
the putative father from mere harassment suits—thus, during the
hearing on the motion for Deoxyribonucleic Acid (DNA) testing, the
petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.—In some states, to warrant the
issuance of the DNA testing order, there must be a show cause
hearing wherein the applicant must first present sufficient
evidence to establish a prima facie case or a reasonable possibility
of paternity or “good cause” for the holding of the test. In these
states, a court order for blood testing is considered a “search,”
which, under their Constitutions (as in ours), must be preceded by
a finding of probable cause in order to be valid. Hence, the
requirement of a prima facie case, or reasonable possibility, was
imposed in civil actions as a counterpart of a finding of probable
cause. The Supreme Court of Louisiana eloquently explained—
Although a paternity action is civil, not criminal, the constitutional
prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under
the particular factual circumstances of the case must be made
before a court may order a compulsory blood test. Courts in various
jurisdictions have differed regarding the kind of procedures which
are required, but those jurisdictions have almost universally found
that a preliminary showing must be made before a court can
constitutionally order compulsory blood testing in paternity cases.
We agree, and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As
explained hereafter, in cases in which paternity is contested and a
party to the action refuses to voluntarily undergo a blood test, a
show cause hearing must be held in which the court can determine
whether there is sufficient evidence to establish a prima facie case
which warrants issuance of a court order for blood testing. The same
condition precedent should be applied in our jurisdiction to protect
the putative father from mere harassment suits. Thus, during the
hearing on the motion for DNA testing, the petitioner must
present prima facie evidence or establish a reasonable possibility of
paternity.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Cruz, Neria & Carpio Law Offices for petitioner.
Punzalan, Lising & Punsalan for respondent.
Ramirez, Lazaro and Associates Law Office co-counsel for
respondent.
NACHURA, J.:
Is a prima facie showing necessary before a court can issue
a DNA testing order? In this petition for review
on certiorari, we address this question to guide the Bench and
the Bar in dealing with a relatively new evidentiary tool.
Assailed in this petition are the Court of Appeals (CA)
Decision1 dated September 25, 2009 and Resolution dated
December 17, 2009.
The antecedents of the case are, as follows:
On July 26, 2007, petitioner, Jesse U. Lucas, filed a
Petition to Establish Illegitimate Filiation (with Motion for
the Submission of Parties to DNA Testing)2 before the
Regional Trial Court (RTC), Branch 72, Valenzuela City.
Petitioner narrated that, sometime in 1967, his mother, Elsie
Uy (Elsie), migrated to Manila from Davao and stayed with a
certain “Ate Belen (Belen)” who worked in a prominent
nightspot in Manila. Elsie would oftentimes accompany Belen
to work. On one occasion, Elsie got acquainted with
respondent, Jesus S. Lucas, at Belen’s workplace, and an
intimate relationship developed between the two. Elsie
eventually got pregnant and, on March 11, 1969, she gave
birth to petitioner, Jesse U. Lucas. The name of petitioner’s
father was not stated in petitioner’s certificate of live birth.
However, Elsie later on told petitioner that his father is
respondent. On August 1, 1969, petitioner was baptized at
San Isidro Parish, Taft Avenue, Pasay City. Respondent
allegedly extended financial support to Elsie and petitioner
for a period of about two years. When the relationship of Elsie
and respondent ended, Elsie refused to accept respondent’s
offer of support and decided to raise petitioner on her own.
While petitioner was growing up, Elsie made several attempts
to introduce petitioner to respondent, but all attempts were in
vain.
Attached to the petition were the following: (a) petitioner’s
certificate of live birth; (b) petitioner’s baptismal certificate;
(c) petitioner’s college diploma, showing that he graduated
from Saint Louis University in Baguio City with a degree in
Psychology; (d) his Certificate of Graduation from the same
school; (e) Certificate of Recognition from the University of the
Philippines, College of Music; and (f) clippings of several
articles from different newspapers about petitioner, as a
musical prodigy.
 Respondent was not served with a copy of the petition.
Nonetheless, respondent learned of the petition to establish
filiation. His counsel therefore went to the trial court on
August 29, 2007 and obtained a copy of the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try
and Hear the Case. Hence, on September 3, 2007, the RTC,
finding the petition to be sufficient in form and substance,
issued the Order3setting the case for hearing and urging
anyone who has any objection to the petition to file his
opposition. The court also directed that the Order be
published once a week for three consecutive weeks in any
newspaper of general circulation in the Philippines, and that
the Solicitor General be furnished with copies of the Order
and the petition in order that he may appear and represent
the State in the case.
On September 4, 2007, unaware of the issuance of the
September 3, 2007 Order, respondent filed a Special
Appearance and Comment. He manifested inter alia that: (1)
he did not receive the summons and a copy of the petition; (2)
the petition was adversarial in nature and therefore summons
should be served on him as respondent; (3) should the court
agree that summons was required, he was waiving service of
summons and making a voluntary appearance; and (4) notice
by publication of the petition and the hearing was improper
because of the confidentiality of the subject matter.4
On September 14, 2007, respondent also filed a
Manifestation and Comment on Petitioner’s Very Urgent
Motion to Try and Hear the Case. Respondent reiterated that
the petition for recognition is adversarial in nature; hence, he
should be served with summons.
After learning of the September 3, 2007 Order, respondent
filed a motion for reconsideration.5 Respondent averred that
the petition was not in due form and substance because
petitioner could not have personally known the matters that
were alleged therein. He argued that DNA testing cannot be
had on the basis of a mere allegation pointing to respondent
as petitioner’s father. Moreover, jurisprudence is still
unsettled on the acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondent’s motion
for reconsideration, issued an Order6 dismissing the case. The
court remarked that, based on the case of Herrera v.
Alba,7 there are four significant procedural aspects of a
traditional paternity action which the parties have to face:
a prima facie case, affirmative defenses, presumption of
legitimacy, and physical resemblance between the putative
father and the child. The court opined that petitioner must
first establish these four procedural aspects before he can
present evidence of paternity and filiation, which may include
incriminating acts or scientific evidence like blood group test
and DNA test results. The court observed that the petition did
not show that these procedural aspects were present.
Petitioner failed to establish a prima facie case considering
that (a) his mother did not personally declare that she had
sexual relations with respondent, and petitioner’s statement
as to what his mother told him about his father was clearly
hearsay; (b) the certificate of live birth was not signed by
respondent; and (c) although petitioner used the surname of
respondent, there was no allegation that he was treated as the
child of respondent by the latter or his family. The court
opined that, having failed to establish a prima facie case,
respondent had no obligation to present any affirmative
defenses. The dispositive portion of the said Order therefore
reads:
“WHEREFORE, for failure of the petitioner to establish
compliance with the four procedural aspects of a traditional
paternity action in his petition, his motion for the submission of
parties to DNA testing to establish paternity and filiation is hereby
denied. This case is DISMISSED without prejudice.
SO ORDERED.”8
Petitioner seasonably filed a motion for reconsideration to
the Order dated July 30, 2008, which the RTC resolved in his
favor. Thus, on October 20, 2008, it issued the Order9 setting
aside the court’s previous order, thus:
 “WHEREFORE, in view of the foregoing, the Order dated July
30, 2008 is hereby reconsidered and set aside.
Let the Petition (with Motion for the Submission of Parties to
DNA Testing) be set for hearing on January 22, 2009 at 8:30 in
the morning.
xxxx
SO ORDERED.”10
This time, the RTC held that the ruling on the grounds
relied upon by petitioner for filing the petition is premature
considering that a full-blown trial has not yet taken place. The
court stressed that the petition was sufficient in form and
substance. It was verified, it included a certification against
forum shopping, and it contained a plain, concise, and direct
statement of the ultimate facts on which petitioner relies on
for his claim, in accordance with Section 1, Rule 8 of the Rules
of Court. The court remarked that the allegation that the
statements in the petition were not of petitioner’s personal
knowledge is a matter of evidence. The court also dismissed
respondent’s arguments that there is no basis for the taking
of DNA test, and that jurisprudence is still unsettled on the
acceptability of DNA evidence. It noted that the new Rule on
DNA Evidence11allows the conduct of DNA testing, whether at
the court’s instance or upon application of any person who has
legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order
dated October 20, 2008 and for Dismissal of
Petition,12 reiterating that (a) the petition was not in due form
and substance as no defendant was named in the title, and all
the basic allegations were hearsay; and (b) there was
no prima facie case, which made the petition susceptible to
dismissal.The RTC denied the motion in the Order dated
January 19, 2009, and rescheduled the hearing.13
Aggrieved, respondent filed a petition for certiorari with
the CA, questioning the Orders dated October 20, 2008 and
January 19, 2009.
On September 25, 2009, the CA decided the petition
for certiorari in favor of respondent, thus:
“WHEREFORE, the instant petition for certiorari is hereby
GRANTED for being meritorious. The assailed Orders dated
October 20, 2008 and January 19, 2009 both issued by the Regional
Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case
No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the case
docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.”14
The CA held that the RTC did not acquire jurisdiction over
the person of respondent, as no summons had been served on
him. Respondent’s special appearance could not be considered
as voluntary appearance because it was filed only for the
purpose of questioning the jurisdiction of the court over
respondent. Although respondent likewise questioned the
court’s jurisdiction over the subject matter of the petition, the
same is not equivalent to a waiver of his right to object to the
jurisdiction of the court over his person.
The CA remarked that petitioner filed the petition to
establish illegitimate filiation, specifically seeking a DNA
testing order to abbreviate the proceedings. It noted that
petitioner failed to show that the four significant procedural
aspects of a traditional paternity action had been met. The CA
further held that a DNA testing should not be allowed when
the petitioner has failed to establish a prima facie case, thus:
“While the tenor [of Section 4, Rule on DNA Evidence] appears to
be absolute, the rule could not really have been intended to trample
on the substantive rights of the parties. It could have not meant to
be an instrument to promote disorder, harassment, or extortion. It
could have not been intended to legalize unwarranted expedition to
fish for evidence. Such will be the situation in this particular case
if a court may at any time order the taking of a DNA test. If the
DNA test in compulsory recognition cases is immediately available
to the petitioner/complainant without requiring first the
presentation of corroborative proof, then a dire and absurd rule
would result. Such will encourage and promote harassment and
extortion.
xxxx
At the risk of being repetitious, the Court would like to stress
that it sees the danger of allowing an absolute DNA testing to a
compulsory recognition test even if the plaintiff/petitioner failed to
establish prima facie proof. x x x If at anytime, motu proprio and
without pre-conditions, the court can indeed order the taking of
DNA test in compulsory recognition cases, then the prominent and
well-to-do members of our society will be easy prey for opportunists
and extortionists. For no cause at all, or even for [sic] casual sexual
indiscretions in their younger years could be used as a means to
harass them. Unscrupulous women, unsure of the paternity of their
children may just be taking the chances-just in case-by pointing to
a sexual partner in a long past one-time encounter. Indeed an
absolute and unconditional taking of DNA test for compulsory
recognition case opens wide the opportunities for extortionist to
prey on victims who have no stomach for scandal.”15
Petitioner moved for reconsideration. On December 17,
2009, the CA denied the motion for lack of merit.16
In this petition for review on certiorari, petitioner raises
the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER
THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME
WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT RULED THAT JURISDICTION WAS NOT
ACQUIRED OVER THE PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT FAILED TO REALIZE THAT THE
RESPONDENT HAD ALREADY SUBMITTED
VOLUNTARILY TO THE JURISDICTION OF THE
COURT A QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A
PLEADING, RATHER THAN ITS BODY, IS
CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT ORDERED THE DISMISSAL OF THE PETITION BY REASON
OF THE MOTION (FILED BY THE PETITIONER BEFORE THE
COURT A QUO) FOR THE CONDUCT OF DNA TESTING.
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED
WHEN IT ESSENTIALLY RULED THAT DNA TESTING
CAN ONLY BE ORDERED AFTER THE PETITIONER
ESTABLISHES PRIMA FACIE PROOF OF FILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH
ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS.
ALBA, ESPECIALLY AS REGARDS THE ‘FOUR SIGNIFICANT
PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY
ACTION.’17
Petitioner contends that respondent never raised as issue
in his petition for certiorari the court’s lack of jurisdiction over
his person. Hence, the CA had no legal basis to discuss the
same, because issues not raised are deemed waived or
abandoned. At any rate, respondent had already voluntarily
submitted to the jurisdiction of the trial court by his filing of
several motions asking for affirmative relief, such as the (a)
Motion for Reconsideration of the Order dated September 3,
2007; (b) Ex Parte Motion to Resolve Motion for
Reconsideration of the Order dated November 6, 2007; and (c)
Motion for Reconsideration of the Order dated October 20,
2008 and for Dismissal of Petition. Petitioner points out that
respondent even expressly admitted that he has waived his
right to summons in his Manifestation and Comment on
Petitioner’s Very Urgent Motion to Try and Hear the Case.
Hence, the issue is already moot and academic.
Petitioner argues that the case was adversarial in nature.
Although the caption of the petition does not state
respondent’s name, the body of the petition clearly indicates
his name and his known address. He maintains that the body
of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing
should not be a reason for the dismissal of the petition since
it is not a legal ground for the dismissal of cases. If the CA
entertained any doubt as to the propriety of DNA testing, it
should have simply denied the motion.18 Petitioner points out
that Section 4 of the Rule on DNA Evidence does not require
that there must be a prior proof of filiation before DNA testing
can be ordered. He adds that the CA erroneously relied on the
four significant procedural aspects of a paternity case, as
enunciated in Herrera v. Alba.19 Petitioner avers that these
procedural aspects are not applicable at this point of the
proceedings because they are matters of evidence that should
be taken up during the trial.20
In his Comment, respondent supports the CA’s ruling on
most issues raised in the petition for certiorari and merely
reiterates his previous arguments. However, on the issue of
lack of jurisdiction, respondent counters that, contrary to
petitioner’s assertion, he raised the issue before the CA in
relation to his claim that the petition was not in due form and
substance. Respondent denies that he waived his right to the
service of summons. He insists that the alleged waiver and
voluntary appearance was conditional upon a finding by the
court that summons is indeed required. He avers that the
assertion of affirmative defenses, aside from lack of
jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction over
such person.
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the
trial court were orders denying respondent’s motion to
dismiss the petition for illegitimate filiation. An order denying
a motion to dismiss is an interlocutory order which neither
terminates nor finally disposes of a case, as it leaves
something to be done by the court before the case is finally
decided on the merits. As such, the general rule is that the
denial of a motion to dismiss cannot be questioned in a special
civil action for certiorari, which is a remedy designed to
correct errors of jurisdiction and not errors of judgment.
Neither can a denial of a motion to dismiss be the subject of
an appeal unless and until a final judgment or order is
rendered. In a number of cases, the court has granted the
extraordinary remedy of certiorari on the denial of the motion
to dismiss but only when it has been tainted with grave abuse
of discretion amounting to lack or excess of jurisdiction.21 In
the present case, we discern no grave abuse of discretion on
the part of the trial court in denying the motion to dismiss.
The grounds for dismissal relied upon by respondent were
(a) the court’s lack of jurisdiction over his person due to the
absence of summons, and (b) defect in the form and substance
of the petition to establish illegitimate filiation, which is
equivalent to failure to state a cause of action.
We need not belabor the issues on whether lack of
jurisdiction was raised before the CA, whether the court
acquired jurisdiction over the person of respondent, or
whether respondent waived his right to the service of
summons. We find that the primordial issue here is actually
whether it was necessary, in the first place, to serve summons
on respondent for the court to acquire jurisdiction over the
case. In other words, was the service of summons
jurisdictional? The answer to this question depends on the
nature of petitioner’s action, that is, whether it is an action in
personam, in rem, or quasi in rem.
An action in personam is lodged against a person based on
personal liability; an action in rem is directed against the
thing itself instead of the person; while an action quasi in
rem names a person as defendant, but its object is to subject
that person’s interest in a property to a corresponding lien or
obligation. A petition directed against the “thing” itself or
the res, which concerns the status of a person, like a petition
for adoption, annulment of marriage, or correction of entries
in the birth certificate, is an action in rem.22
In an action in personam, jurisdiction over the person of
the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that
the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property
under legal process, whereby it is brought into actual custody
of the law, or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective.23
The herein petition to establish illegitimate filiation is an
action in rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had
jurisdiction over the subject matter of the petition, the latter
thereby acquired jurisdiction over the case. An in
rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding
has for its object to bar indefinitely all who might be minded
to make an objection of any sort to the right sought to be
established.24 Through publication, all interested parties are
deemed notified of the petition.
If at all, service of summons or notice is made to the
defendant, it is not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process
requirements.25 This is but proper in order to afford the person
concerned the opportunity to protect his interest if he so
chooses.26 Hence, failure to serve summons will not deprive
the court of its jurisdiction to try and decide the case. In such
a case, the lack of summons may be excused where it is
determined that the adverse party had, in fact, the
opportunity to file his opposition, as in this case. We find that
the due process requirement with respect to respondent has
been satisfied, considering that he has participated in the
proceedings in this case and he has the opportunity to file his
opposition to the petition to establish filiation.
To address respondent’s contention that the petition
should have been adversarial in form, we further hold that the
herein petition to establish filiation was sufficient in form. It
was indeed adversarial in nature despite its caption which
lacked the name of a defendant, the failure to implead
respondent as defendant, and the non-service of summons
upon respondent. A proceeding is adversarial where the party
seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it.27 In this
petition—classified as an action in rem—the notice
requirement for an adversarial proceeding was likewise
satisfied by the publication of the petition and the giving of
notice to the Solicitor General, as directed by the trial court.
The petition to establish filiation is sufficient in substance.
It satisfies Section 1, Rule 8 of the Rules of Court, which
requires the complaint to contain a plain, concise, and direct
statement of the ultimate facts upon which the plaintiff bases
his claim. A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action
inadequate.28 A complaint states a cause of action when it
contains the following elements: (1) the legal right of plaintiff,
(2) the correlative obligation of the defendant, and (3) the act
or omission of the defendant in violation of said legal right.29
The petition sufficiently states the ultimate facts relied
upon by petitioner to establish his filiation to respondent.
Respondent, however, contends that the allegations in the
petition were hearsay as they were not of petitioner’s personal
knowledge. Such matter is clearly a matter of evidence that
cannot be determined at this point but only during the trial
when petitioner presents his evidence.
In a motion to dismiss a complaint based on lack of cause
of action, the question submitted to the court for
determination is the sufficiency of the allegations made in the
complaint to constitute a cause of action and not whether
those allegations of fact are true, for said motion must
hypothetically admit the truth of the facts alleged in the
complaint.30 The inquiry is confined to the four corners of the
complaint, and no other.31 The test of the sufficiency of the
facts alleged in the complaint is whether or not, admitting the
facts alleged, the court could render a valid judgment upon
the same in accordance with the prayer of the complaint.32
If the allegations of the complaint are sufficient in form and
substance but their veracity and correctness are assailed, it is
incumbent upon the court to deny the motion to dismiss and
require the defendant to answer and go to trial to prove his
defense. The veracity of the assertions of the parties can be
ascertained at the trial of the case on the merits.33
The statement in Herrera v. Alba34 that there are four
significant procedural aspects in a traditional paternity case
which parties have to face has been widely misunderstood and
misapplied in this case. A party is confronted by these so-
called procedural aspects during trial, when the parties have
presented their respective evidence. They are matters of
evidence that cannot be determined at this initial stage of the
proceedings, when only the petition to establish filiation has
been filed. The CA’s observation that petitioner failed to
establish a prima facie case—the first procedural aspect in a
paternity case—is therefore misplaced. A prima facie case is
built by a party’s evidence and not by mere allegations in the
initiatory pleading.
Clearly then, it was also not the opportune time to discuss
the lack of a prima facie case vis-à-vis the motion for DNA
testing since no evidence has, as yet, been presented by
petitioner. More essentially, it is premature to discuss
whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been issued
by the trial court. In fact, the latter has just set the said case
for hearing.
At any rate, the CA’s view that it would be dangerous to
allow a DNA testing without corroborative proof is well taken
and deserves the Court’s attention. In light of this
observation, we find that there is a need to supplement the
Rule on DNA Evidence to aid the courts in resolving motions
for DNA testing order, particularly in paternity and other
filiation cases. We, thus, address the question of whether
a prima facie showing is necessary before a court can issue a
DNA testing order.
The Rule on DNA Evidence was enacted to guide the Bench
and the Bar for the introduction and use of DNA evidence in
the judicial system. It provides the “prescribed parameters on
the requisite elements for reliability and validity (i.e., the
proper procedures, protocols, necessary laboratory
reports, etc.), the possible sources of error, the available
objections to the admission of DNA test results as evidence as
well as the probative value of DNA evidence.” It seeks “to
ensure that the evidence gathered, using various methods of
DNA analysis, is utilized effectively and properly, [and] shall
not be misused and/or abused and, more importantly, shall
continue to ensure that DNA analysis serves justice and
protects, rather than prejudice the public.”35
Not surprisingly, Section 4 of the Rule on DNA Evidence
merely provides for conditions that are aimed to safeguard the
accuracy and integrity of the DNA testing. Section 4 states:
“SEC. 4. Application for DNA Testing Order.—The
appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the
matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a
showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected
to the type of DNA testing now requested; or (ii) was
previously subjected to DNA testing, but the results may
require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case; and
(e) The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy or
integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need
of a prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is
commenced.”
This does not mean, however, that a DNA testing order will
be issued as a matter of right if, during the hearing, the said
conditions are established.
 In some states, to warrant the issuance of the DNA testing
order, there must be a show cause hearing wherein the
applicant must first present sufficient evidence to establish
a prima facie case or a reasonable possibility of paternity or
“good cause” for the holding of the test.36 In these states, a
court order for blood testing is considered a “search,” which,
under their Constitutions (as in ours), must be preceded by a
finding of probable cause in order to be valid. Hence, the
requirement of a prima facie case, or reasonable possibility,
was imposed in civil actions as a counterpart of a finding of
probable cause. The Supreme Court of Louisiana eloquently
explained —
“Although a paternity action is civil, not criminal, the constitutional
prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under
the particular factual circumstances of the case must be made
before a court may order a compulsory blood test. Courts in various
jurisdictions have differed regarding the kind of procedures which
are required, but those jurisdictions have almost universally found
that a preliminary showing must be made before a court can
constitutionally order compulsory blood testing in paternity cases.
We agree, and find that, as a preliminary matter, before the court
may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As
explained hereafter, in cases in which paternity is contested and a
party to the action refuses to voluntarily undergo a blood test, a
show cause hearing must be held in which the court can determine
whether there is sufficient evidence to establish a prima facie case
which warrants issuance of a court order for blood testing.”37
The same condition precedent should be applied in our
jurisdiction to protect the putative father from mere
harassment suits. Thus, during the hearing on the motion for
DNA testing, the petitioner must present prima
facie evidence or establish a reasonable possibility of
paternity.
Notwithstanding these, it should be stressed that the
issuance of a DNA testing order remains discretionary upon
the court. The court may, for example, consider whether there
is absolute necessity for the DNA testing. If there is already
preponderance of evidence to establish paternity and the DNA
test result would only be corroborative, the court may, in its
discretion, disallow a DNA testing.
WHEREFORE, premises considered, the petition is
GRANTED. The Court of Appeals Decision dated September
25, 2009 and Resolution dated December 17, 2009 are
REVERSED and SET ASIDE. The Orders dated October 20,
2008 and January 19, 2009 of the Regional Trial Court of
Valenzuela City are AFFIRMED.
SO ORDERED.
Carpio (Chairperson), Peralta, Abad and Mendoza, JJ.,
concur.
Petition granted, judgment and resolution reversed and set
aside.
Notes.—Lack of knowledge of the existence of DNA testing
speaks of negligence, either on the part of the client, or on the
part of his counsel. (In Re: The Writ of Habeas Corpus for
Reynaldo de Villa, 442 SCRA 706 [2004])
For too long, illegitimate children have been marginalized
by fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a
much needed equalizer for such ostracized and abandoned
progeny. DNA testing is a valid means of determining
paternity. (Agustin vs. Court of Appeals, 460 SCRA 315
[2005])
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