A. Due Process

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196425 July 24, 2012
PROSPERO A. PICHAY, JR., Petitioner,
vs.
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS
INVESTIGATIVE AND ADJUDICATORY DIVISION, HON. PAQUITO N. OCHOA,
JR., in his capacity as Executive Secretary, and HON. CESAR V. PURISIMA, in his
capacity as Secretary of Finance, and as an ex-officio member of the Monetary
Board, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
This is a Petition for Certiorari and Prohibition with a prayer for the issuance of a temporary
restraining order, seeking to declare as unconstitutional Executive Order No. 13, entitled,
"Abolishing the Presidential Anti-Graft Commission and Transferring Its Investigative,
Adjudicatory and Recommendatory Functions to the Office Of The Deputy Executive Secretary
For Legal Affairs, Office of the President",1 and to permanently prohibit respondents from
administratively proceeding against petitioner on the strength of the assailed executive order.
The Facts
On April 16, 2001, then President Gloria Macapagal-Arroyo issued Executive Order No. 12
(E.O. 12) creating the Presidential Anti-Graft Commission (PAGC) and vesting it with the power
to investigate or hear administrative cases or complaints for possible graft and corruption, among
others, against presidential appointees and to submit its report and recommendations to the
President. Pertinent portions of E.O. 12 provide:
Section 4. Jurisdiction, Powers and Functions. –
(a) x x x x x x x x x
(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear
administrative cases or complaints against all presidential appointees in the government and any
of its agencies or instrumentalities xxx
x x x x x x x x x
x x x x x x x x x
Section 8. Submission of Report and Recommendations. – After completing its investigation or
hearing, the Commission en banc shall submit its report and recommendations to the President.
The report and recommendations shall state, among others, the factual findings and legal
conclusions, as well as the penalty recommend (sic) to be imposed or such other action that may
be taken."
On November 15, 2010, President Benigno Simeon Aquino III issued Executive Order No. 13
(E.O. 13), abolishing the PAGC and transferring its functions to the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA), more particularly to its newly-established
Investigative and Adjudicatory Division (IAD). The full text of the assailed executive order
reads:
EXECUTIVE ORDER NO. 13
ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING
ITS INVESTIGATIVE, ADJUDICATORY AND RECOMMENDATORY FUNCTIONS TO
THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS,
OFFICE OF THE PRESIDENT
WHEREAS, this administration has a continuing mandate and advocacy to fight and eradicate
corruption in the different departments, bureaus, offices and other government agencies and
instrumentalities;
WHEREAS, the government adopted a policy of streamlining the government bureaucracy to
promote economy and efficiency in government;
WHEREAS, Section VII of the 1987 Philippine Constitution provides that the President shall
have control of all the executive departments, bureaus and offices;
WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order 292 (Administrative
Code of 1987) provides for the continuing authority of the President to reorganize the
administrative structure of the Office of the President;
WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing Authority to the President
of the Philippines to Reorganize the National Government), as amended by PD 1722, provides
that the President of the Philippines shall have continuing authority to reorganize the
administrative structure of the National Government and may, at his discretion, create, abolish,
group, consolidate, merge or integrate entities, agencies, instrumentalities and units of the
National Government, as well as, expand, amend, change or otherwise modify their powers,
functions and authorities;
WHEREAS, Section 78 of the General Provisions of Republic Act No. 9970 (General
Appropriations Act of 2010) authorizes the President of the Philippines to direct changes in the
organizational units or key positions in any department or agency;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of
the powers vested in me by law, do hereby order the following:
SECTION 1. Declaration of Policy. It is the policy of the government to fight and eradicate graft
and corruption in the different departments, bureaus, offices and other government agencies and
instrumentalities.
The government adopted a policy of streamlining the government bureaucracy to promote
economy and efficiency in the government.
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of
the President (OP) to directly investigate graft and corrupt cases of Presidential appointees in the
Executive Department including heads of government-owned and controlled corporations, the
Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions and
other powers and functions inherent or incidental thereto, transferred to the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA), OP in accordance with the provisions of this
Executive Order.
SECTION 3. Restructuring of the Office of the Deputy Executive Secretary for Legal Affairs,
OP. In addition to the Legal and Legislative Divisions of the ODESLA, the Investigative and
Adjudicatory Division shall be created.
The newly created Investigative and Adjudicatory Division shall perform powers, functions and
duties mentioned in Section 2 hereof, of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority
to the President, thru the Executive Secretary, for approval, adoption or modification of the
report and recommendations of the Investigative and Adjudicatory Division of ODESLA.
SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC. The personnel who
may be affected by the abolition of the PAGC shall be allowed to avail of the benefits provided
under existing laws if applicable. The Department of Budget and Management (DBM) is hereby
ordered to release the necessary funds for the benefits of the employees.
SECTION 5. Winding Up of the Operation and Disposition of the Functions, Positions,
Personnel, Assets and Liabilities of PAGC. The winding up of the operations of PAGC including
the final disposition or transfer of their functions, positions, personnel, assets and liabilities as
may be necessary, shall be in accordance with the applicable provision(s) of the Rules and
Regulations Implementing EO 72 (Rationalizing the Agencies Under or Attached to the Office of
the President) dated March 15, 2002. The winding up shall be implemented not later than 31
December 2010.
The Office of the Executive Secretary, with the assistance of the Department of Budget and
Management, shall ensure the smooth and efficient implementation of the dispositive actions and
winding-up of the activities of PAGC.
SECTION 6. Repealing Clause. All executive orders, rules, regulations and other issuances or
parts thereof, which are inconsistent with the provisions of this Executive Order, are hereby
revoked or modified accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect immediately after its publication
in a newspaper of general circulation.
On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed before the IAD-
ODESLA a complaint affidavit2 for grave misconduct against petitioner Prospero A. Pichay, Jr.,
Chairman of the Board of Trustees of the Local Water Utilities Administration (LWUA), as well
as the incumbent members of the LWUA Board of Trustees, namely, Renato Velasco, Susana
Dumlao Vargas, Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which arose from the
purchase by the LWUA of Four Hundred Forty-Five Thousand Three Hundred Seventy Seven
(445,377) shares of stock of Express Savings Bank, Inc.
On April 14, 2011, petitioner received an Order3 signed by Executive Secretary Paquito N.
Ochoa, Jr. requiring him and his co-respondents to submit their respective written explanations
under oath. In compliance therewith, petitioner filed a Motion to Dismiss Ex Abundante Ad
Cautelam manifesting that a case involving the same transaction and charge of grave misconduct
entitled, "Rustico B. Tutol, et al. v. Prospero Pichay, et al.", and docketed as OMB-C-A-10-
0426-I, is already pending before the Office of the Ombudsman.
Now alleging that no other plain, speedy and adequate remedy is available to him in the ordinary
course of law, petitioner has resorted to the instant petition for certiorari and prohibition upon the
following grounds:
I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO CREATE A PUBLIC OFFICE.
II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO APPROPRIATE FUNDS.
III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF CONGRESS TO
DELEGATE QUASI-JUDICIAL POWERS TO ADMINISTRATIVE AGENCIES.
IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON THE POWERS OF
THE OMBUDSMAN.
V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE GUARANTEE OF DUE
PROCESS.
VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL PROTECTION
CLAUSE.
Our Ruling
In assailing the constitutionality of E.O. 13, petitioner asseverates that the President is not
authorized under any existing law to create the Investigative and Adjudicatory Division, Office
of the Deputy Executive Secretary for Legal Affairs (IAD-ODESLA) and that by creating a new,
additional and distinct office tasked with quasi-judicial functions, the President has not only
usurped the powers of congress to create a public office, appropriate funds and delegate quasi-
judicial functions to administrative agencies but has also encroached upon the powers of the
Ombudsman. Petitioner avers that the unconstitutionality of E.O. 13 is also evident when
weighed against the due process requirement and equal protection clause under the 1987
Constitution.
The contentions are unavailing.
The President has Continuing Authority to Reorganize the Executive Department under E.O.
292.
Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as the Administrative Code
of 1987, vests in the President the continuing authority to reorganize the offices under him in
order to achieve simplicity, economy and efficiency. E.O. 292 sanctions the following actions
undertaken for such purpose:
(1)Restructure the internal organization of the Office of the President Proper, including the
immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff
Support System, by abolishing, consolidating, or merging units thereof or transferring functions
from one unit to another;
(2)Transfer any function under the Office of the President to any other Department or Agency as
well as transfer functions to the Office of the President from other Departments and Agencies;
and
(3)Transfer any agency under the Office of the President to any other Department or Agency as
well as transfer agencies to the Office of the President from other departments or agencies.4
In the case of Buklod ng Kawaning EIIB v. Zamora5 the Court affirmed that the President's
authority to carry out a reorganization in any branch or agency of the executive department is an
express grant by the legislature by virtue of E.O. 292, thus:
But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the
President, subject to the policy of the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. (Emphasis supplied)
And in Domingo v. Zamora,6 the Court gave the rationale behind the President's continuing
authority in this wise:
The law grants the President this power in recognition of the recurring need of every President to
reorganize his office "to achieve simplicity, economy and efficiency." The Office of the
President is the nerve center of the Executive Branch. To remain effective and efficient, the
Office of the President must be capable of being shaped and reshaped by the President in the
manner he deems fit to carry out his directives and policies. After all, the Office of the President
is the command post of the President. (Emphasis supplied)
Clearly, the abolition of the PAGC and the transfer of its functions to a division specially created
within the ODESLA is properly within the prerogative of the President under his continuing
"delegated legislative authority to reorganize" his own office pursuant to E.O. 292.
Generally, this authority to implement organizational changes is limited to transferring either an
office or a function from the Office of the President to another Department or Agency, and the
other way around.7
Only Section 31(1) gives the President a virtual freehand in dealing with the internal structure of
the Office of the President Proper by allowing him to take actions as extreme as abolition,
consolidation or merger of units, apart from the less drastic move of transferring functions and
offices from one unit to another. Again, in Domingo v. Zamora8 the Court noted:
However, the President's power to reorganize the Office of the President under Section 31 (2)
and (3) of EO 292 should be distinguished from his power to reorganize the Office of the
President Proper. Under Section 31 (1) of EO 292, the President can reorganize the Office of the
President Proper by abolishing, consolidating or merging units, or by transferring functions from
one unit to another. In contrast, under Section 31 (2) and (3) of EO 292, the President's power to
reorganize offices outside the Office of the President Proper but still within the Office of the
President is limited to merely transferring functions or agencies from the Office of the President
to Departments or Agencies, and vice versa.
The distinction between the allowable organizational actions under Section 31(1) on the one
hand and Section 31 (2) and (3) on the other is crucial not only as it affects employees' tenurial
security but also insofar as it touches upon the validity of the reorganization, that is, whether the
executive actions undertaken fall within the limitations prescribed under E.O. 292. When the
PAGC was created under E.O. 12, it was composed of a Chairman and two (2) Commissioners
who held the ranks of Presidential Assistant II and I, respectively,9 and was placed directly
"under the Office of the President."10 On the other hand, the ODESLA, to which the functions of
the PAGC have now been transferred, is an office within the Office of the President
Proper.11 Since both of these offices belong to the Office of the President Proper, the
reorganization by way of abolishing the PAGC and transferring its functions to the ODESLA is
allowable under Section 31 (1) of E.O. 292.
Petitioner, however, goes on to assert that the President went beyond the authority granted by
E.O. 292 for him to reorganize the executive department since his issuance of E.O. 13 did not
merely involve the abolition of an office but the creation of one as well. He argues that nowhere
in the legal definition laid down by the Court in several cases does a reorganization include the
act of creating an office.
The contention is misplaced.
The Reorganization Did not Entail the Creation of a New, Separate and Distinct Office.
The abolition of the PAGC did not require the creation of a new, additional and distinct office as
the duties and functions that pertained to the defunct anti-graft body were simply transferred to
the ODESLA, which is an existing office within the Office of the President Proper. The
reorganization required no more than a mere alteration of the administrative structure of the
ODESLA through the establishment of a third division – the Investigative and Adjudicatory
Division – through which ODESLA could take on the additional functions it has been tasked to
discharge under E.O. 13. In Canonizado v. Aguirre,12 We ruled that –
Reorganization takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between them.
It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions.
The Reorganization was Pursued in Good Faith.
A valid reorganization must not only be exercised through legitimate authority but must also be
pursued in good faith. A reorganization is said to be carried out in good faith if it is done for
purposes of economy and efficiency.13 It appears in this case that the streamlining of functions
within the Office of the President Proper was pursued with such purposes in mind.
In its Whereas clauses, E.O. 13 cites as bases for the reorganization the policy dictates of
eradicating corruption in the government and promoting economy and efficiency in the
bureaucracy. Indeed, the economical effects of the reorganization is shown by the fact that while
Congress had initially appropriated P22 Million for the PAGC's operation in the 2010 annual
budget,14 no separate or added funding of such a considerable amount was ever required after the
transfer of the PAGC functions to the IAD-ODESLA.
Apparently, the budgetary requirements that the IAD-ODESLA needed to discharge its functions
and maintain its personnel would be sourced from the following year's appropriation for the
President's Offices under the General Appropriations Act of 2011.15 Petitioner asseverates,
however, that since Congress did not indicate the manner by which the appropriation for the
Office of the President was to be distributed, taking therefrom the operational funds of the IAD-
ODESLA would amount to an illegal appropriation by the President. The contention is without
legal basis.
There is no usurpation of the legislative power to appropriate public funds.
In the chief executive dwell the powers to run government. Placed upon him is the power to
recommend the budget necessary for the operation of the Government,16 which implies that he
has the necessary authority to evaluate and determine the structure that each government agency
in the executive department would need to operate in the most economical and efficient
manner.17 Hence, the express recognition under Section 78 of R.A. 9970 or the General
Appropriations Act of 2010 of the President’s authority to "direct changes in the organizational
units or key positions in any department or agency." The aforecited provision, often and
consistently included in the general appropriations laws, recognizes the extent of the President’s
power to reorganize the executive offices and agencies under him, which is, "even to the extent
of modifying and realigning appropriations for that purpose."18
And to further enable the President to run the affairs of the executive department, he is likewise
given constitutional authority to augment any item in the General Appropriations Law using the
savings in other items of the appropriation for his office.19 In fact, he is explicitly allowed by law
to transfer any fund appropriated for the different departments, bureaus, offices and agencies of
the Executive Department which is included in the General Appropriations Act, to any program,
project or activity of any department, bureau or office included in the General Appropriations
Act or approved after its enactment.20
Thus, while there may be no specific amount earmarked for the IAD-ODESLA from the total
amount appropriated by Congress in the annual budget for the Office of the President, the
necessary funds for the IAD-ODESLA may be properly sourced from the President's own office
budget without committing any illegal appropriation. After all, there is no usurpation of the
legislature's power to appropriate funds when the President simply allocates the existing funds
previously appropriated by Congress for his office.
The IAD-ODESLA is a fact-finding and recommendatory body not vested with quasi-judicial
powers.
Petitioner next avers that the IAD-ODESLA was illegally vested with judicial power which is
reserved to the Judicial Department and, by way of exception through an express grant by the
legislature, to administrative agencies. He points out that the name Investigative and
Adjudicatory Division is proof itself that the IAD-ODESLA wields quasi-judicial power.
The argument is tenuous. As the OSG aptly explained in its Comment,21 while the term
"adjudicatory" appears part of its appellation, the IAD-ODESLA cannot try and resolve cases, its
authority being limited to the conduct of investigations, preparation of reports and submission of
recommendations. E.O. 13 explicitly states that the IAD-ODESLA shall "perform powers,
functions and duties xxx, of PAGC."22
Under E.O. 12, the PAGC was given the authority to "investigate or hear administrative cases or
complaints against all presidential appointees in the government"23 and to "submit its report and
recommendations to the President."24 The IAD-ODESLA is a fact-finding and recommendatory
body to the President, not having the power to settle controversies and adjudicate cases. As the
Court ruled in Cariño v. Commission on Human Rights,25 and later reiterated in Biraogo v. The
Philippine Truth Commission:26
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of
justice, or even a quasi-judicial agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions in a controversy must be
accompanied by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and definitively, subject to
such appeals or modes of review as may be provided by law.
The President's authority to issue E.O. 13 and constitute the IAD-ODESLA as his fact-finding
investigator cannot be doubted. After all, as Chief Executive, he is granted full control over the
Executive Department to ensure the enforcement of the laws. Section 17, Article VII of the
Constitution provides:
Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
The obligation to see to it that laws are faithfully executed necessitates the corresponding power
in the President to conduct investigations into the conduct of officials and employees in the
executive department.27
The IAD-ODESLA does not encroach upon the powers and duties of the Ombudsman.
Contrary to petitioner's contention, the IAD-ODESLA did not encroach upon the Ombudsman's
primary jurisdiction when it took cognizance of the complaint affidavit filed against him
notwithstanding the earlier filing of criminal and administrative cases involving the same charges
and allegations before the Office of the Ombudsman. The primary jurisdiction of the
Ombudsman to investigate and prosecute cases refers to criminal cases cognizable by the
Sandiganbayan and not to administrative cases. It is only in the exercise of its primary
jurisdiction that the Ombudsman may, at any time, take over the investigation being conducted
by another investigatory agency. Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of
1989, empowers the Ombudsman to –
(1)Investigate and prosecute on its own or on complaint by any person, any act or omission of
any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage,
from any investigatory agency of government, the investigation of such cases. (Emphasis
supplied)
Since the case filed before the IAD-ODESLA is an administrative disciplinary case for grave
misconduct, petitioner may not invoke the primary jurisdiction of the Ombudsman to prevent the
IAD-ODESLA from proceeding with its investigation. In any event, the Ombudsman's authority
to investigate both elective and appointive officials in the government, extensive as it may be, is
by no means exclusive. It is shared with other similarly authorized government agencies.28
While the Ombudsman's function goes into the determination of the existence of probable cause
and the adjudication of the merits of a criminal accusation, the investigative authority of the
IAD- ODESLA is limited to that of a fact-finding investigator whose determinations and
recommendations remain so until acted upon by the President. As such, it commits no usurpation
of the Ombudsman's constitutional duties.
Executive Order No. 13 Does Not Violate Petitioner's Right to Due Process and the Equal
Protection of the Laws.
Petitioner goes on to assail E.O. 13 as violative of the equal protection clause pointing to the
arbitrariness of limiting the IAD-ODESLA's investigation only to presidential appointees
occupying upper-level positions in the government. The equal protection of the laws is a
guaranty against any form of undue favoritism or hostility from the government.29 It is embraced
under the due process concept and simply requires that, in the application of the law, "all persons
or things similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed."30 The equal protection clause, however, is not absolute but subject to reasonable
classification so that aggrupations bearing substantial distinctions may be treated differently
from each other. This we ruled in Farinas v. Executive Secretary,31 wherein we further stated that
–
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which
it is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction between those
who fall within such class and those who do not. (Emphasis supplied)
Presidential appointees come under the direct disciplining authority of the President. This
proceeds from the well settled principle that, in the absence of a contrary law, the power to
remove or to discipline is lodged in the same authority on which the power to appoint is
vested.32 Having the power to remove and/or discipline presidential appointees, the President has
the corollary authority to investigate such public officials and look into their conduct in
office.33 Petitioner is a presidential appointee occupying the high-level position of Chairman of
the LWUA. Necessarily, he comes under the disciplinary jurisdiction of the President, who is
well within his right to order an investigation into matters that require his informed decision.
There are substantial distinctions that set apart presidential appointees occupying upper-level
positions in government from non-presidential appointees and those that occupy the lower
positions in government. In Salumbides v. Office of the Ombudsman,34 we had ruled extensively
on the substantial distinctions that exist between elective and appointive public officials, thus:
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people.1âwphi1 It involves the choice or selection of candidates to public office by
popular vote. Considering that elected officials are put in office by their constituents for a
definite term, x x x complete deference is accorded to the will of the electorate that they be
served by such officials until the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned. (Emphasis supplied)
Also, contrary to petitioner's assertions, his right to due process was not violated when the IAD-
ODESLA took cognizance of the administrative complaint against him since he was given
sufficient opportunity to oppose the formal complaint filed by Secretary Purisima. In
administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum requirements of
due process, which simply means having the opportunity to explain one’s side. Hence, as long as
petitioner was given the opportunity to explain his side and present evidence, the requirements of
due process are satisfactorily complied with because what the law abhors is an absolute lack of
opportunity to be heard. The records show that petitioner was issued an Order requiring him to
submit his written explanation under oath with respect to the charge of grave misconduct filed
against him. His own failure to submit his explanation despite notice defeats his subsequent
claim of denial of due process.
Finally, petitioner doubts that the IAD-ODESLA can lawfully perform its duties as an impartial
tribunal, contending that both the IAD-ODESLA and respondent Secretary Purisima are
connected to the President. The mere suspicion of partiality will not suffice to invalidate the
actions of the IAD-ODESLA. Mere allegation is not equivalent to proof. Bias and partiality
cannot be presumed.38 Petitioner must present substantial proof to show that the lAD-ODES LA
had unjustifiably sided against him in the conduct of the investigation. No such evidence has
been presented as to defeat the presumption of regularity m the performance of the fact-finding
investigator's duties. The assertion, therefore, deserves scant consideration.
Every law has in its favor the presumption of constitutionality, and to justify its nullification,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and
argumentative one.39 Petitioner has failed to discharge the burden of proving the illegality of E.O.
13, which IS indubitably a valid exercise of the President's continuing authority to reorganize the
Office of the President.
WHEREFORE, premises considered, the petition IS hereby DISMISSED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
PRESBITERO J. VELASCO, JR. (On official leave)

Associate Justice TERESITA J. LEONARDO-DE
CASTRO*
Associate Justice
(On leave) (On official business)

ARTURO D. BRION** DIOSDADO M. PERALTA***
Associate Justice Associate Justice
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

(On leave)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA****
Associate Justice
Associate Justice
MARIA LOURDES P.A. SERENO BIENVENIDO L. REYES

CERTIFICATION
I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
SUPREME COURT
Manila
EN BANC
G.R. Nos. 212140-41 January 21, 2015
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the
Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D.
BALIGOD, Respondents.
DECISION
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-
affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or crossexamine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining
order and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman
(Ombudsman), Field Investigation Office (FIO) of the Ombudsman, National Bureau of
Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively, respondents),
from conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-13-0397 until the
present Petition has been resolved with finality; and (2) this Court’s declaration that petitioner
Senator Jinggoy Ejercito Estrada (Sen. Estrada)was denied due process of law, and that the Order
of the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-
C-C-13-0397 subsequent to and affected by the issuance of the challenged 27 March 2014 Order
are void.
OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v.
Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under
Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office,
Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for
Plunder as defined underRA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-
Graft and Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in
OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that
criminal proceedings for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada.
Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in
OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that
criminal proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of
RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit in
OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits
between 9 December 2013 and 14 March 2014.5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in
OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or
additional witnesses for the Complainants.6
Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the
evidence submitted by the complainant which he may not have been furnished’ (Section 3[b],
Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c],
Rule II of the Rules of Procedure of the Office of the Ombudsman)."7
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The
pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b],
Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office
of the Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all the filings of the
respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaintshall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause …
x x x x x x x x x
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure
of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on
April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the
complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant may
file reply affidavits within ten (10) days after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen.
Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office
complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents
attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November
2013.
It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents
in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and
controverting evidence to the complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based on whatever
rights he believes [that] he is entitled to or those that may be derived from the phrase "due
process of law." Thus, this Office cannot grant his motion to be furnished with copies of all the
filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has
been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED.
He is nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such
pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a
Joint Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with
one count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada
filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April
2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges against
him. Without filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014 Order
denying his Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and
sought to annul and set aside the 27 March 2014 Order.
THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED
27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no appeal
or any other plain, speedy, and adequate remedy in the ordinary course of law, except through
this Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ
of preliminary injunction to restrain public respondents from conducting further proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment
declaring that (a) he has been denied due process of law, and as a consequence thereof, (b) the
Order dated 27 March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397 subsequent to and affected bythe issuance of the 27 March 2014 Order, are void.12
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-
0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan,
Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and
directing him to comment thereon within a non-extendible period of five days fromreceipt of the
order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished
copies of counter-affidavits of his co-respondents deprived him of his right to procedural due
process, and he has filed the present Petition before thisCourt. The Ombudsman denied Sen.
Estrada’s motion to suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for
reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3
June 2014.
As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen.
Estrada had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying,
among other motions filed by the other respondents, Sen. Estrada’s motion for reconsideration
dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March
2014 and before the promulgation of the assailed Joint Resolution, this Office thereafter
reevaluated the request and granted it byOrder dated 7 May 2014 granting his request. Copies of
the requested counter-affidavits were appended to the copy of the Order dated 7 May 2014
transmitted to Senator Estrada through counsel.
This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named co-respondents’ claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents),
through the Officeof the Solicitor General, filed their Comment to the present Petition. The
public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION
AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated
that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada
should have either filed a motion for reconsideration of the 27 March 2014 Order or incorporated
the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution.
There was also no violation of Sen. Estrada’s right to due process because there is no rule which
mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions of
his corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada
insisted that he was denied due process. Although Sen. Estrada received copies of the counter-
affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of
Tuason’s counter-affidavits, heclaimed that he was not given the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;
e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO
Complaint);
f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the
Petition isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because
there is a recurring violation of his right to due process. Sen. Estrada also insists that there is no
forum shopping as the present Petition arose from an incident in the main proceeding, and that he
has no other plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a temporary restraining order and/or writ of
preliminary injunction to restrain public respondents from conducting further proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397.
This Court’s Ruling
Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of
Sen. Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not
violate Sen. Estrada’s constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies
of the counter-affidavits of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as
well as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the
Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation
Section 3. Procedure. — The preliminary investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the
establish probable cause. They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at
his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits
copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party ora witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be terminated
within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial. Section 4. Resolution of
investigating prosecutor and its review.— If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall immediately inform
the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without
the prior written authority or approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by
himself, file the information against the respondent, or direct any other assistant prosecutor or
state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule
II: Procedure in Criminal Cases
Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A.
3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the
Revised Penal Code, and for such other offenses committed by public officers and employees in
relation to office.
Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be
conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary investigations; or
5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section
3, Rule 112 of the Rules of Court, subject to the following provisions:
complaints.
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant may
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondent desires any matter in the complainant’s
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.
e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having
been served, does not comply therewith, the complaint shall be deemed submitted for resolution
on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the opportunity to be present but
without the right to examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the investigating officer or a
party shall be reduced into writing and served on the witness concerned who shall be required to
answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of
the proper Deputy Ombudsman in all other cases.
xxxx
Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally
approved by the Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or
reinvestigation of anapproved order or resolution shall be allowed, the same to be filed within
fifteen (15) days from notice thereof with the Office of the Ombudsman, or the proper deputy
ombudsman as the case may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the resolution
subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or
rule which states that it is a compulsory requirement of due process in a preliminary
investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-
respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor
Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen.
Estrada’s claim. What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits
and documents at the time the order to submit the counter-affidavit is issued to the respondent.
This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the
Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have
been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-
affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the
complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No
grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27
March 2014 Order which denied Sen. Estrada’s Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman
provides that a respondent "shall have access to the evidence on record," this provision should be
construed in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal
Procedure. First, Section 4(a) states that "theinvestigating officer shall require the complainant or
supporting witnesses to execute affidavits to substantiate the complaint." The "supporting
witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a
copy of the affidavits and all other supporting documents, directing the respondent" tosubmit his
counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in
Section
4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant
and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the
same Rule II that a respondent shall have "access to the evidence on record" does not stand
alone, but should be read in relation to the provisions of Section 4(a and b) of the same Rule II
requiring the investigating officer to furnish the respondent with the "affidavits and other
supporting documents" submitted by "the complainant or supporting witnesses." Thus, a
respondent’s "access to evidence on record" in Section 4(c), Rule II of the Ombudsman’s Rules
of Procedure refers to the affidavits and supporting documents of "the complainant or supporting
witnesses" in Section 4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he
respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense." A respondent’s right to examine
refers only to "the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of
the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits
executed by the corespondents should be furnished to a respondent. Justice Velasco’s dissent
relies on the ruling in Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case,
in which a different set of rules of procedure and standards apply. Sen. Estrada’s Petition, in
contrast, involves the preliminary investigation stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the Rules of
Procedure of the Office of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the
Rules of Court apply in a suppletory character or by analogy.16
In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who
were both employees of the Land Transportation Office. Peñaloza submitted his counter-
affidavit, as well as those of his two witnesses. Reyes adopted his counter-affidavit in another
case before the Ombudsman as it involved the same parties and the same incident. None of the
parties appeared during the preliminary conference. Peñaloza waived his right to a formal
investigation and was willing to submit the case for resolution based on the evidence on record.
Peñaloza also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes
guilty of grave misconduct and dismissed him from the service. On the other hand, Peñaloza was
found guilty of simple misconduct and penalized with suspension from office without pay for six
months. This Court agreed with the Court of Appeals’ finding that Reyes’ right to due process
was indeed violated. This Court remanded the records of the case to the Ombudsman, for two
reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when
the evidence was not substantial, and (2) there was disregard of Reyes’ right to due process
because he was not furnished a copy of the counter-affidavits of Peñaloza and of Peñaloza’s
three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits happened in
the administrative proceedings on the merits, which resulted in Reyes’ dismissal from the
service. In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the purpose of
determining whether an information should be filed, and does not prevent Sen. Estrada from
requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial.
We should remember to consider the differences in adjudicating cases, particularly an
administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on
whether the cases to which they are meant to apply are criminal, civil or administrative in
character. In criminal actions, proof beyond reasonable doubt is required for conviction;in civil
actions and proceedings, preponderance of evidence, as support for a judgment; and in
administrative cases, substantial evidence, as basis for adjudication. In criminal and civil actions,
application of the Rules of Court is called for, with more or less strictness. In administrative
proceedings, however, the technical rules of pleadingand procedure, and of evidence, are not
strictly adhered to; they generally apply only suppletorily; indeed, in agrarian disputes
application of the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and "probable cause merely implies probability of guilt and
should be determined in a summary manner. A preliminary investigation is not a part of the trial
and it is only in a trial where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence."18 Thus, the rights of
a respondent in a preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well founded belief that a crime cognizable by
the Regional Trial Court has been committed and that the respondent is probably guilty thereof,
and should be held for trial. The quantum of evidence now required in preliminary investigation
is such evidence sufficient to "engender a well founded belief" as tothe fact of the commission of
a crime and the respondent's probable guilt thereof. A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of
such evidence only as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof. We are in accord with the state prosecutor’s
findings in the case at bar that there exists prima facie evidence of petitioner’s involvement in the
commission of the crime, it being sufficiently supported by the evidence presented and the facts
obtaining therein.
Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and
Hanopol are inadmissible as to him since he was not granted the opportunity of cross-
examination.
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-
affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine. Thus, even if
petitioner was not given the opportunity to cross-examine Galarion and Hanopol atthe time they
were presented to testify during the separate trial of the case against Galarion and Roxas, he
cannot assert any legal right to cross-examine them at the preliminary investigation precisely
because such right was never available to him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court during the trial proper and not in the
preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction
and control over the conduct of a preliminary investigation. If by its very nature a preliminary
investigation could be waived by the accused, we find no compelling justification for a strict
application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the
Rules of Court, the record of the preliminary investigation does not form part of the record of the
case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and the trial court
can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to
compel the presentation of Galarion and Hanopol for purposes of cross-examination.19 (Emphasis
supplied)
Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the
Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x
[A]dmissions made by Peñaloza in his sworn statement are binding only on him. Res inter alios
act a alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or
omission of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen.
Estrada’s co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-
039720 mentioned the testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan,
their testimonies were merely corroborative of the testimonies of complainants’ witnesses
Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in isolation from the
testimonies of complainants’ witnesses.
Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada
to establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-
13-0313 and OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it
examined the evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada
on 23 June 2014.
We likewise take exception to Justice Brion’s assertion that "the due process standards that at the
very least should be considered in the conduct of a preliminary investigation are those that this
Court first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put,
the Ang Tibay guidelines for administrative cases do not apply to preliminary investigations in
criminal cases. An application of the Ang Tibay guidelines to preliminary investigations will
have absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character."22 These requirements are "fundamental and
essential" because without these, there isno due process as mandated by the Constitution. These
"fundamental and essential requirements" cannot be taken away by legislation because theyare
part of constitutional due process. These "fundamental and essential requirements" are:
(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x x.
(2) Not only must the party be given an opportunity to present his case and adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x.
(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its decision.
A decision with absolutely nothing to support it is a nullity, x x x."
(4) Not only must there be some evidence to support a finding or conclusion, but the evidence
must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in
sucha manner that the parties to the proceeding can know the various issues involved, and the
reasons for the decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang
Tibay failed to explicitly state was, prescinding from the general principles governing due
process, the requirement of an impartial tribunalwhich, needless to say, dictates that one called
upon to resolve a dispute may not sit as judge and jury simultaneously, neither may he review his
decision on appeal."25 The GSIS clarification affirms the non applicability of the Ang Tibay
guidelines to preliminary investigations in criminal cases: The investigating officer, which is the
role that the Office of the Ombudsman plays in the investigation and prosecution of government
personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The
purpose of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own factfinding investigation, is to determine probable cause for filing an
information, and not to make a final adjudication of the rights and obligations of the parties
under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.
The purpose in determining probable cause is to make sure that the courts are not clogged with
weak cases that will only be dismissed, as well as to spare a person from the travails of a
needless prosecution.26 The Ombudsman and the prosecution service under the control and
supervision of the Secretary of the Department of Justice are inherently the fact-finder,
investigator, hearing officer, judge and jury of the respondent in preliminary investigations.
Obviously, this procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there
is nothing unconstitutional with this procedure because this is merely an Executive function, a
part of the law enforcement process leading to trial in court where the requirements mandated in
Ang Tibay, as amplified in GSIS, will apply. This has been the procedure under the 1935, 1973
and 1987 Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations are in
gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when
he filed his Request, is not yet an accused person, and hence cannot demand the full exercise of
the rights of an accused person:
A finding of probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and was committed by the suspects. Probable cause need not be based
on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well
put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it
requires "less than evidence which would justify . . . conviction." A finding of probable cause
merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable
cause, wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the
NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be determined
in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where
an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that
the "rights conferred upon accused persons to participate in preliminary investigations
concerning themselves depend upon the provisions of law by which such rights are specifically
secured, rather than upon the phrase ‘due process of law’." This reiterates Justice Jose P.
Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that "the right to a preliminary
investigation is statutory, not constitutional." In short, the rights of a respondent ina preliminary
investigation are merely statutory rights, not constitutional due process rights. An investigation
to determine probable cause for the filing of an information does not initiate a criminal action so
as to trigger into operation Section 14(2), Article III of the Constitution.30 It is the filing of a
complaint or information in court that initiates a criminal action.31
The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in
GSIS, are granted by the Constitution; hence, these rights cannot be taken away by
merelegislation. On the other hand, as repeatedly reiterated by this Court, the right to a
preliminary investigation is merely a statutory right,32 not part of the "fundamental and essential
requirements" of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a
preliminary investigation can be taken away by legislation. The constitutional right of an accused
to confront the witnesses against him does not apply in preliminary investigations; nor will the
absence of a preliminary investigation be an infringement of his right to confront the witnesses
against him.33 A preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial.34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to
"substantial evidence," while the establishment of probable cause needs "only more than ‘bare
suspicion,’ or ‘less than evidence which would justify . . . conviction’." In the United States,
from where we borrowed the concept of probable cause,35 the prevailing definition of probable
cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities.These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act. The standard of
proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief of
guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267
U. S. at 161. And this "means less than evidence which would justify condemnation" or
conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United
States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than bare
suspicion: Probable cause exists where "the facts and circumstances within their [the officers’]
knowledge and of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that" an offense has been or is
being committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair
leeway for enforcing the law in the community’s protection. Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room must
be allowed for some mistakes on their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is
a practical, non technical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’
whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where
probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is
required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a
commitment order, if the accused has already been arrested, shall be issued and that there is a
necessity of placing the respondent under immediate custody in order not to frustrate the ends of
justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued,
and only upon probable cause in connection with one specific offense 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 things to
be seized which may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc.
v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that more likely
than not, a crime has been committed and there is enough reason to believe that it was committed
by the accused. It need not be based on clear and convincing evidence of guilt, neither on
evidence establishing absolute certainty of guilt. What is merely required is "probability of
guilt." Its determination, too, does not call for the application of rules or standards of proof that a
judgment of conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of constitutes
the very offense charged.
It is also important to stress that the determination of probable cause does not depend on the
validity or merits of a party’s accusation or defense or on the admissibility or veracity of
testimonies presented. As previously discussed, these matters are better ventilated during the trial
proper of the case. As held in Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances as would excite
the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that
the person charged was guilty of the crime for which he was prosecuted. x x x. The term does not
mean "actual or positive cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. (Bold facing and
italicization supplied)
Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not
depend on the validity or merits of a party’s accusation or defense or on the admissibility or
veracity of testimonies presented" correctly recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long
as the person making the hearsay statement is credible. In United States v. Ventresca,38 the
United States Supreme Court held:
While a warrant may issue only upon a finding of "probable cause," this Court has long held that
"the term ‘probable cause’ . . . means less than evidence which would justify condemnation,"
Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may
rest upon evidence which is not legally competent in a criminal trial. Draper v. United States,
358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173,
"There is a large difference between the two things tobe proved (guilt and probable cause), as
well as between the tribunals which determine them, and therefore a like difference in the quanta
and modes of proof required to establish them." Thus, hearsay may be the basis for issuance of
the warrant "so long as there . . . [is] a substantial basis for crediting the hearsay." Jones v.
United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal observations of the affiant,"
so long as the magistrate is "informed of some of the underlying circumstances" supporting the
affiant’s conclusions and his belief that any informant involved "whose identity need not be
disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at 378 U.S.
114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in
a preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest
entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining probable
cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an
accused and the right to a preliminary investigation. To treat them the same will lead toabsurd
and disastrous consequences.
All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in
GSIS. Preliminary investigations are conducted by prosecutors, who are the same officials who
will determine probable cause and prosecute the cases in court. The prosecutor is hardly the
impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be necessary if Ang Tibay, as
amplified in GSIS, were to be applied. This will require a new legislation. In the meantime, all
pending criminal cases in all courts will have to be remanded for reinvestigation, to proceed only
when a new law is in place. To require Ang Tibay, as amplified in GSIS, to apply to preliminary
investigation will necessarily change the concept of preliminary investigation as we know it now.
Applying the constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary
investigation will necessarily require the application of the rights of an accused in Section 14(2),
Article III of the 1987 Constitution. This means that the respondent can demand an actual
hearing and the right to cross-examine the witnesses against him, rights which are not afforded at
present toa respondent in a preliminary investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending
preliminary investigations but even to those convicted by final judgment and already serving
their sentences. The rule is well-settled that a judicial decision applies retroactively if it has a
beneficial effect on a person convicted by final judgment even if he is already serving his
sentence, provided that he is not a habitual criminal.39 This Court retains its control over a case
"until the full satisfaction of the final judgment conformably with established legal
processes."40 Applying Ang Tibay, as amplified in GSIS, to preliminary investigations will result
in thousands of prisoners, convicted by final judgment, being set free from prison.
Second. Sen. Estrada’s present Petition for Certiorari is premature.
Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave
abuse of its discretion preceding the finding of a probable cause to indict him." Restated bluntly,
Justice Velasco’s dissent would like this Court to conclude that the mere filing of the present
Petition for Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should
have, by itself, voided all proceedings related to the present case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s
Request, the Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date
that Sen. Estrada filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-
13-0313 and OMB-C-C-13-0397 that furnishedSen. Estrada with the counter-affidavits of Ruby
Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria
Buenaventura, and AlexisSevidal, and directed him to comment within a non-extendible period
of five days from receipt of said Order. Sen. Estrada did not file any comment, as noted in the 4
June 2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion
for Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict
Sen. Estrada and his corespondents with one count of plunder and 11 counts of violation of
Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that
"[t]his Office, in fact, held in abeyance the disposition of motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named respondents’ claims."
We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much
less a motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen.
Estrada immediately proceeded to file this Petition for Certiorari before this Court. Sen.
Estrada’s resort to a petitionfor certiorari before this Court stands in stark contrast to his filing of
his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution finding
probable cause. The present Petition for Certiorari is premature.
A motion for reconsideration allows the public respondent an opportunity to correct its factual
and legal errors. Sen. Estrada, however, failed to present a compelling reason that the present
Petition falls under the exceptions41 to the general rule that the filing of a motion for
reconsideration is required prior to the filing of a petition for certiorari. This Court has reiterated
in numerous decisions that a motion for reconsideration is mandatory before the filing of a
petition for certiorari.42
Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the
present Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize
that, despite the variance in the quanta of evidence required, a uniform observance of the
singular concept of due process is indispensable in all proceedings."
As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join
him in his dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman
(Ruivivar),43 wherein we stated that "[t]he law can no longer help one who had been given ample
opportunity to be heard but who did not take full advantage of the proffered chance."
The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman.
The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy
in the course of her official functions and imposed on her the penalty of reprimand. Petitioner
filed a motion for reconsideration of the decision on the ground that she was not furnished copies
of the affidavits of the private respondent’s witnesses. The Ombudsman subsequently ordered
that petitioner be furnished with copies of the counter-affidavits of private respondent’s
witnesses, and that petitioner should "file, within ten (10) days from receipt of this Order, such
pleading which she may deem fit under the circumstances." Petitioner received copies of the
affidavits, and simply filed a manifestation where she maintained that her receipt of the affidavits
did not alter the deprivation of her right to due process or cure the irregularity in the
Ombudsman’s decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe
Ombudsman rendered a decision against her. We disposed of petitioner’s deprivation of due
process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to
exhaust all the administrative remedies available to her before the Ombudsman. This ruling is
legallycorrect as exhaustion of administrative remedies is a requisite for the filing of a petition
for certiorari. Other than this legal significance, however, the ruling necessarily carries the direct
and immediate implication that the petitioner has been granted the opportunity to be heard and
has refused to avail of this opportunity; hence, she cannot claim denial of due process. In the
words of the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut
the affidavits submitted by private respondent. . . and had a speedy and adequate administrative
remedy but she failed to avail thereof for reasons only known to her."
For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and
related principles. The "exhaustion" principle applies when the ruling court or tribunal is not
given the opportunity tore-examine its findings and conclusions because of an available
opportunity that a party seeking recourse against the court or the tribunal’s ruling omitted to take.
Under the concept of "due process," on the other hand, a violation occurs when a court or
tribunal rules against a party without giving him orher the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while due process
is considered from the point of view of the litigating party against whom a ruling was made. The
commonality they share is in the same"opportunity" that underlies both. In the context of the
present case, the available opportunity to consider and appreciate the petitioner’s counter-
statement offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at the
Ombudsman level. At the same time, the petitioner – who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondent’s witnesses – was not denied and cannot
now claim denial of due process because she did not take advantage of the opportunity opened to
her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due process
grounds (i.e., for the private respondent’s failure to furnish her copies of the affidavits of
witnesses) and on questions relating to the appreciation of the evidence on record. The
Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly furnishing
her with copies of the private respondent’s witnesses, together with the "directive to file, within
ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances."
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to
file a "Manifestation" where she took the position that "The order of the Ombudsman dated 17
January 2003 supplying her with the affidavits of the complainant does not cure the 04
November 2002 order," and on this basis prayed that the Ombudsman’s decision "be
reconsidered and the complaint dismissed for lack of merit."
For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration
dated 27 January 2003 and prayed for the denial of the petitioner’s motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the Ombudsman
fully discussed in this Order the due process significance of the petitioner’s failure to adequately
respond to the belatedly-furnished affidavits. The Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by this Office with copies of the
affidavits, which she claims she has not received. Furthermore, the respondent has been given
the opportunity to present her side relative thereto, however, she chose not to submit
countervailing evidence orargument. The respondent, therefore (sic), cannot claim denial of due
process for purposes of assailing the Decision issued in the present case. On this score, the
Supreme Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot feign
denial of due process where he had the opportunity to present his side". This becomes all the
more important since, as correctly pointed out by the complainant, the decision issued in the
present case is deemed final and unappealable pursuant to Section 27 of Republic Act 6770, and
Section 7, Rule III of Administrative Order No. 07. Despite the clear provisions of the law and
the rules, the respondent herein was given the opportunity not normally accorded, to present her
side, but she opted not to do so which is evidently fatal to her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one,
not only for her failure to exhaust her available administrative remedy, but also on due process
grounds. The law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance.45
Ruivivar applies with even greater force to the present Petition because here the affidavits of
Sen. Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June
2014 Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a
decision.
Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this
Court ruled that "the inordinate delay in terminating the preliminary investigation and filing the
information [by the Tanodbayan] in the present case is violative of the constitutionally
guaranteed right of the petitioner to due process and to a speedy disposition of the cases against
him."48 The Tanod bayan took almost three years to terminate the preliminary investigation,
despite Presidential Decree No. 911’s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where the
petitioners were merely asked to comment and were not asked to file counter-affidavits as isthe
proper procedure in a preliminary investigation. Moreover, in Duterte, the Ombudsman took four
years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen.
Estrada’s present Petition for Certiorari is premature for lack of filing of a motion for
reconsideration before the Ombudsman. When the Ombudsman gave Sen. Estrada copies of the
counter-affidavits and even waited for the lapse of the given period for the filing of his comment,
Sen. Estrada failed to avail of the opportunity to be heard due to his own fault. Thus, Sen.
Estrada’s failure cannot in any way be construed as violation of due process by the Ombudsman,
much less of grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses
not to.
Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be
summarily dismissed.
In his verification and certification of non-forum shopping in the present petition filed on 7 May
2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in
OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in
the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However,
in this Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint
Order denying his Request, and that such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section
4 of the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various
pieces of evidence which Senator Estrada was not furnished with – hence, depriving him of the
opportunity to controvert the same – were heavily considered by the Ombudsman in finding
probable cause to charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings," pursuant to the right of a respondent "to examine the evidence submitted by the
complainant which he may not have been furnished" (Section 3[b], Rule 112 of the Rules of
Court), and to "have access to the evidence on record" (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the
law’s vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an
Order dated 27 March 2014, unceremoniously denied the request on the ground that "there is no
provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the
filings by the other parties x x x x." (Order dated 27 March 2013, p. 3)
As such, Senator Estrada was not properly apprised of the evidence offered against him, which
were eventually made the bases of the Ombudsman’s finding of probable cause.50
The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint
Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the
Ombudsman the violation of his right to due process, the same issue he is raising in this petition.
In the verification and certification of non-forum shopping attached to his petition docketed as
G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the pendency of the present
petition, as well as those before the Sandiganbayan for the determination of the existence of
probable cause. In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the
Ombudsman’s 27 March 2014 Joint Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable
cause, which he maintains is without legal or factual basis, but also thatsuch finding of probable
cause was premised on evidence not disclosed tohim, including those subject of his Request to be
Furnished with Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –
i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;
ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;
iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;
iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;
v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and
vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles
in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none
of which were ever furnished Sen. Estrada prior to the issuance of the challenged Joint
Resolution, despite written request.
xxxx
II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT
RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04
JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily
limited the filing of Sen. Estrada’s comment to the voluminous documents comprisingthe
documents it furnished Sen. Estrada to a "non-extendible" period offive (5) days, making it
virtually impossible for Sen. Estrada to adequately study the charges leveled against him and
intelligently respond to them. The Joint Order also failed to disclose the existence of other
counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause
was the "sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7
April 2014 is obviously false.
Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014
Joint Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution,
Sen. Estrada did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held
in abeyance the disposition of the motions for reconsideration in this proceeding in light of its
grant to [Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to
formally respond to the abovenamed co-respondent’s claims."
Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited tothe fulfillment of the requisites of litis
pendentia.52 To determine whether a party violated the rule against forum shopping, the most
important factor to ask is whether the elements of litis pendentia are present, or whether a final
judgment in one case will amount to res judicatain another.53 Undergirding the principle of litis
pendentia is the theory that a party isnot allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This theory is founded on the public policy
that the same matter should not be the subject of controversy in court more than once in order
that possible conflicting judgments may be avoided, for the sake of the stability in the rights and
status of persons.54
x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that
– in the usual course and because of its nature and purpose – is not covered by the rule on forum
shopping. The exception from the forum shopping rule, however, is true only where a petition for
certiorari is properly or regularly invoked in the usual course; the exception does not apply when
the relief sought, through a petition for certiorari, is still pending with or has as yet to be decided
by the respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion
for reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the
present case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised
Rules of Court which provides that the availability of a remedy in the ordinary course of law
precludes the filing of a petition for certiorari; under this rule, the petition’s dismissal is the
necessary consequence if recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting
rulings, or at the very least, to complicated situations, between the RTC and the Court of
Appeals. An extreme possible result is for the appellate court to confirm that the RTC decision is
meritorious, yet the RTC may at the same time reconsider its ruling and recall its order of
dismissal. In this eventuality, the result is the affirmation of the decision that the court a quo has
backtracked on. Other permutations depending on the rulings of the two courts and the timing of
these rulings are possible. In every case, our justice system suffers as this kind of sharp practice
opens the system to the possibility of manipulation; to uncertainties when conflict of rulings
arise; and at least to vexation for complications other than conflict of rulings. Thus, it matters not
that ultimately the Court of Appeals may completely agree with the RTC; what the rule on forum
shopping addresses are the possibility and the actuality of its harmful effects on our judicial
system.55
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due
process by the Ombudsman even as his Motion for Reconsideration raising the very same issue
remained pending with the Ombudsman. This is plain and simple forum shopping, warranting
outright dismissal of this Petition.
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits
and documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of
Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the
Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the
Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish
the respondent with copies of the affidavits of the complainant and affidavits of his supporting
witnesses. Neither of these Rules require the investigating officer to furnish the respondent with
copies of the affidavits of his co-respondents. The right of the respondent is only "to examine the
evidence submitted by the complainant," as expressly stated in Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure. This Court has unequivocally ruled in Paderanga that
"Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without
the right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the
Ombudsman’s Rule of Procedure, read together, only require the investigating officer to furnish
the respondent with copies of the affidavits of the complainant and his supporting
witnesses.1âwphi1 There is no law or rule requiring the investigating officer to furnish the
respondent with copies of the affidavits of his co-respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named,
as well as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order,
the Ombudsman even held in abeyancethe disposition of the motions for reconsideration because
the Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to
formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied
with the existing Rules on preliminary investigation and even accommodated Sen. Estrada
beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of
discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of
grave abuse of discretion on the part of the Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are
not applicable to preliminary investigations which are creations of statutory law giving rise to
mere statutory rights. A law can abolish preliminary investigations without running afoul with
the constitutional requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS.
The present procedures for preliminary investigations do not comply, and were never intended to
comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with
finality rights and obligations of parties, while administrative investigations governed by Ang
Tibay, as amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial
evidencefor a decision against the respondent in the administrative case.In preliminary
investigations, only likelihood or probability of guiltis required. To apply Ang Tibay,as
amplified in GSIS,to preliminary investigations will change the quantum of evidence required to
establish probable cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer
must be impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time.
In preliminary investigations, the same public officer may be the investigator and hearing officer
at the same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now
declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential
requirements in preliminary investigations will render all past and present preliminary
investigations invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the country. No
preliminary investigation can proceeduntil a new law designates a public officer, outside of the
prosecution service, to determine probable cause. Moreover, those serving sentences by final
judgment would have to be released from prison because their conviction violated constitutional
due process. Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order
in OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition. He
should have filed a Motion for R econsideration, in the same manner that he filed a Motion for
Reconsideration of the 15 May 2014 Order denying his motion to suspend proceedings. The
unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law against the acts of the
public respondent.56 The plain, speedy and adequate remedy expressly provided by law is a
Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's
failure to file a Motion for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding probable
cause. While his Motion for Reconsideration of the 28 March 2014 Joint Resolution was
pending, Sen. Estrada did not wait for the resolution of the Ombudsman and instead proceeded to
file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014 and
specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's
present Petition for Certiorari is not only premature, it also constitutes forum shopping.
WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice
TERESITA J. LEONARDO-DE
PRESBITERO J. VELASCO, JR.
CASTRO
Associate Justice
Associate Justice
ARTURO D. BRION* DIOSDADO M. PERALTA

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDDOZA BIENVENIDO L. REYES

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

FRANCIS H. JARDELEZA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
Chief Justice

SUPREME COURT
Manila
EN BANC
G.R. No. 213181 August 19, 2014
FRANCIS H. JARDELEZA Petitioner,
vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR
COUNCIL AND EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.
DECISION
MENDOZA, J.:
Once again, the Couii is faced with a controversy involving the acts of an independent body,
which is considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not
the first time that the Court is called upon to settle legal questions surrounding the JBC's exercise
of its constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty
of the JBC to recommend prospective nominees for the position of Chief Justice vis-à-vis the
appointing power of the President, the period within which the same may be exercised, and the
ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court
provided an extensive discourse on constitutional intent as to the JBC’s composition and
membership.
This time, however, the selection and nomination process actually undertaken by the JBC is
being challenged for being constitutionally infirm. The heart of the debate lies not only on the
very soundness and validity of the application of JBC rules but also the extent of its discretionary
power. More significantly, this case of first impression impugns the end-result of its acts - the
shortlistfrom which the President appoints a deserving addition to the Highest Tribunal of the
land.
To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief
Justice herself, was being impleaded as party respondent.
The Facts
The present case finds its genesis from the compulsory retirement of Associate Justice Roberto
Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in
accordance with its rules,3 the JBC announced the opening for application or recommendation
for the said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of
the Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor
General of the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was
included in the names of candidates, as well as in the schedule of public interviews. On May 29,
2014, Jardeleza was interviewed by the JBC.
It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received
telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member,
Aurora Santiago Lagman (Justice Lagman), who informed him that during the meetings held on
June 5 and 16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno
(Chief Justice Sereno),manifested that she would be invoking Section 2, Rule 10 of JBC-
0094 against him. Jardeleza was then directed to "make himself available" before the JBC on
June 30, 2014, during which he would be informed of the objections to his integrity.
Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the
exercise of itsconstitutional power of supervision over the JBC, issue an order: 1) directing the
JBC to give him at least five (5) working days written notice of any hearing of the JBC to which
he would be summoned; and the said notice to contain the sworn specifications of the charges
against him by his oppositors, the sworn statements of supporting witnesses, if any, and copies of
documents in support of the charges; and notice and sworn statements shall be made part of the
public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in public, under the same conditions
that attend the publicinterviews held for all applicants; 3) directing the JBC to reset the hearing
scheduled on June 30, 2014 to another date; and 4) directing the JBC to disallow Chief Justice
Sereno from participating in the voting on June 30,2014 or at any adjournment thereof where
such vote would be taken for the nominees for the position vacated by Associate Justice Abad.
During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice
Antonio T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a
classified legal memorandum (legal memorandum) that would clarify the objection to Jardeleza’s
integrity as posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno
questioned Jardeleza’s ability to discharge the duties of his office as shown in a confidential
legal memorandum over his handling of an international arbitration case for the government.
Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice
Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio
appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno,
characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at
around 2:00o’clock in the afternoon.
Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself
against the integrity issues raised against him. He answered that he would defend himself
provided that due process would be observed. Jardeleza specifically demanded that Chief Justice
Sereno execute a sworn statement specifying her objectionsand that he be afforded the right to
cross-examine her in a public hearing. He requested that the same directive should also be
imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr.
also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter.
Jardeleza, however, refused as he would not be lulled intowaiving his rights. Jardeleza then put
into record a written statement6 expressing his views on the situation and requested the JBC to
defer its meeting considering that the Court en banc would meet the next day to act on his
pending letter-petition. At this juncture, Jardeleza was excused.
Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment
of the proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to
be included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees
which included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6)
votes, Maria Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with four (4)
votes.7
As mentioned in the petition, a newspaper article was later published in the online portal of the
Philippine Daily Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that
there were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee
could not be included because of the invocation of Rule 10, Section 2 of the JBC rules.
In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal
of the JBC list of nominees to the Office of the President, "without prejudice to any remedy
available in law and the rules that petitioner may still wish to pursue."8 The said resolution was
accompanied by an extensive Dissenting Opinion penned by Associate Justice Arturo D.
Brion,9 expressing his respectful disagreement as to the position taken by the majority.
The Petition
Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy
in law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the
Rules of Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to
compel the JBC to include him in the list ofnominees for Supreme Court Associate Justice
viceAssociate Justice Abad, on the grounds that the JBC and Chief Justice Sereno acted in grave
abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite having
garnered a sufficient number of votes to qualify for the position.
Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition
and its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day
after the controversial JBC meeting. By the time that his letter-petition was scheduled for
deliberation by the Court en bancon July 8, 2014, the disputedshortlist had already been
transmitted to the Office of the President. He attributedthis belated action on his letter-petition to
Chief Justice Sereno, whose action on such matters, especially those impressed withurgency, was
discretionary.
An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention
hinges on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his
constitutional right to due process; and 2) the JBC’s erroneous application, if not direct violation,
of its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his
constitutional rights tothe acts of Chief Justice Sereno in raising objections against his integrity
and the manner by which the JBC addressed this challenge to his application, resulting in his
arbitrary exclusion from the list of nominees.
Jardeleza’s Position
For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardeleza’s arguments, as follows:
A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events
leading up to and during the vote on the shortlist last June 30, 2014. When accusations against
his integrity were made twice, ex parte, by Chief Justice Sereno, without informing him of the
nature and cause thereof and without affording him an opportunity to be heard, Jardeleza was
deprived of his right to due process. In turn, the JBC violated his right to due process when he
was simply ordered to make himself available on the June 30, 2014 meeting and was told that the
objections to his integrity would be made known to him on the same day. Apart from mere
verbal notice (by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009
against his application and not on the accusations against him per se, he was deprived of an
opportunity to mount a proper defense against it. Not only did the JBC fail to ventilate questions
on his integrity during his public interview, he was also divested of his rights as an applicant
under Sections 3 and 4, Rule 4, JBC-009, to wit:
Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on
the ground of his moral fitness and, at its discretion, the Council may receive the testimony of
the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall
be allowed to cross-examine the oppositor and to offer countervailing evidence.
Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be
given due course, unless there appears on its face a probable cause sufficient to engender belief
that the allegations may be true. In the latter case, the Council may direct a discreet investigation
or require the applicant to comment thereon in writing or during the interview.
His lack of knowledge as to the identity of his accusers (except for yet again, the
verbalinformation conveyed to him that Associate Justice Carpio testified against him) and as to
the nature of the very accusations against him caused him to suffer from the arbitrary action by
the JBC and Chief Justice Sereno. The latter gravely abused her discretion when she acted as
prosecutor, witness and judge,thereby violating the very essence of fair play and the Constitution
itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief
Justice to assume these roles, nor does it dispense with the need to honor petitioner’s right to due
process."10
B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of
nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2,
Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to
an applicant’s integrity. Here, the lone objector constituted a part of the membership of the body
set to vote. The lone objector could be completely capable oftaking hostage the entire voting
process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of
the rule would allow a situation where all thata member has to do to veto other votes, including
majority votes, would be to object to the qualification of a candidate, without need for factual
basis.
C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to
include Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a
nomination for appointment to a judicial position requires the affirmative vote of at least a
majority of all members of the JBC. The JBC cannot disregard its own rules. Considering that
Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is that a majority of
the members of the JBC found him to be qualified for the position of Associate Justice.
D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s
constitutional power to appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed
the President’s choices. Simply put, the President would be constrained to choose from among
four (4) nominees, when five (5) applicants rightfully qualified for the position. This limits the
President to appoint a member of the Court from a list generated through a process tainted with
patent constitutional violations and disregard for rules of justice and fair play. Until these
constitutional infirmities are remedied, the petitioner has the right to prevent the appointment of
an Associate Justice viceAssociate Justice Abad.
Comment of the JBC
On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked
proceduraland substantive bases that would warrant favorable action by the Court. For the JBC,
certiorariis only available against a tribunal, a board or an officer exercising judicial or
quasijudicial functions.11 The JBC, in its exercise of its mandate to recommend appointees to the
Judiciary, does not exercise any of these functions. In a pending case,12 Jardeleza himself, as one
of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in
the implementation of its policies.
In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a
discretionary act. For it to prosper, a petition for mandamus must, among other things, show that
the petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no legal
right to be included in the list of nominees for judicial vacancies. Possession of the constitutional
and statutory qualifications for appointment to the Judiciary may not be used to legally demand
that one’s name be included in the list of candidates for a judicial vacancy. One’s inclusion in the
shortlist is strictly within the discretion of the JBC.
Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process.
The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and
informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to
a question on his integrity based on the way he handled a very important case for the
government. Jardeleza and Justice Lagman spoke briefly about the case and his general
explanation on how he handled the same. Secretary De Lima likewise informed him about the
content of the impending objection against his application. On these occasions, Jardeleza agreed
to explain himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light on
the allegations against him,as he chose to deliver a statement, which, in essence, requested that
his accuser and her witnesses file sworn statements so that he would know of the allegations
against him, that he be allowed to cross-examine the witnesses;and that the procedure be done on
record and in public.
In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member
of the JBC on the issues raised against him prior to the voting process. His request for a sworn
statement and opportunity to cross-examine is not supported by a demandable right. The JBC is
not a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are
notconcerned with the determination of his guilt or innocence of the accusations against him.
Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the
word "may." Even the conduct of a hearing to determine the veracity of an opposition is
discretionary on the JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of
an allegation or opposition, the JBC would not call a hearing in order to avoid undue delay of the
selection process. Each member of the JBC relies on his or her own appreciation of the
circumstances and qualifications of applicants.
The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant
is included in the shortlist when he or she obtains an affirmative vote of at least a majority of all
the members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked because an
applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief Justice
Sereno invoked the saidprovision, Jardeleza needed the affirmative vote of all the JBC members
tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was
not counted. Even then, he needed the votes of the five(5) remaining members. He only got four
(4) affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B.
Daway, who gotfour (4) affirmative votes, was included in the shortlist because his integrity was
not challenged. As to him, the "majority rule" was considered applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General.
Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court
were signed in his official capacity. In effect, he sued the respondents to pursue a purely private
interest while retaining the office of the Solicitor General. By suing the very parties he was
tasked by law to defend, Jardeleza knowingly placed himself in a situation where his personal
interests collided against his public duties, in clear violation of the Code of Professional
Responsibility and Code of Professional Ethics. Moreover, the respondents are all public
officials being sued in their official capacity. By retaining his title as Solicitor General, and suing
in the said capacity, Jardeleza filed a suit against his own clients, being the legal defender of the
government and its officers. This runs contrary to the fiduciary relationship sharedby a lawyer
and his client.
In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the
constitutional period within which a vacancy in the Court must be filled. As things now stand,
the President has until August 20, 2014 to exercise his appointment power which cannot be
restrained by a TRO or an injunctive suit.
Comment of the Executive Secretary
In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the
possible unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa
higher voting threshold in cases where the integrity of an applicant is challenged. It is his
position that the subject JBC rule impairs the body’s collegial character, which essentially
operates on the basis of majority rule. The application of Section 2, Rule 10 of JBC-009 gives
rise to a situation where all that a member needs to do, in order to disqualify an applicant who
may well have already obtained a majority vote, is to object to his integrity. In effect, a member
who invokes the said provision is given a veto powerthat undermines the equal and full
participation of the other members in the nomination process. A lone objector may then override
the will ofthe majority, rendering illusory, the collegial nature of the JBC and the very purpose
for which it was created— to shield the appointment process from political maneuvering.
Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not allow an
applicant any meaningful opportunity to refute the challenges to his integrity. While other
provisions of the JBC rules provide mechanisms enabling an applicant to comment on an
opposition filed against him, the subject rule does not afford the same opportunity. In this case,
Jardeleza’s allegations as to the events which transpired on June 30, 2014 obviously show that he
was neither informed ofthe accusations against him nor given the chance to muster a defense
thereto.
The Executive Secretary then offered a supposition: granting that the subject provision is held to
be constitutional, the "unanimity rule" would only be operative when the objector is not a
member of the JBC. It is only in this scenario where the voting ofthe body would not be rendered
inconsequential. In the event that a JBC member raised the objection, what should have been
applied is the general rule of a majority vote, where any JBC member retains their respective
reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of
the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the
President.
Other pleadings
On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its
Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely
ten minutes prior to the closing of business, the Court received the Supplemental Comment-
Reply of the JBC, this time with the attached minutes of the proceedings that led to the filing of
the petition,and a detailed "Statementof the Chief Justice on the Integrity
Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s
original Comment, as it was filed prior to the filing of the Supplemental Comment-Reply.
At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-
intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the
President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the
position of the JBC.14
The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP
Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a
complaint for disbarment against Jardeleza primarily for violations of the Code of Professional
Responsibility for representing conflicting interests.15
Both motions for intervention weredenied considering that time was of the essence and their
motions were merely reiterative of the positions of the JBC and were perceived to be dilatory.
The complaint for disbarment, however, was re-docketed as a separate administrative case.
The Issues
Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the
resolution of one issue would necessarily affect the conclusion as to the others, the Court opts to
narrow down the questions to the very source of the discord - the correct application of Section
2, Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise
the unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of
its application. It is only from the comment of the Executive Secretary where the possible
unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach
dictatesthat the Court must confront the source of the bleeding from which the gaping wound
presented to the Court suffers.
The issues for resolution are:
I.
WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE
DUECOURSE TO THE SUBJECT PETITION FOR CERTIORARI AND MANDAMUS
(WITH APPLICATION FOR A TEMPORARY RESTRAINING ORDER).
II
WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS
OR CHALLENGES ON INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10
OF JBC-009.
II.
WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE
OF JBC PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN
APPLICATION IS RAISED.
III.
WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE
SHORTLIST OF NOMINEES SUBMITTED TO THE PRESIDENT.
The Court’s Ruling
I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case
A - The Court’s Power of Supervision over the JBC
Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court
was given supervisory authority over it. Section 8 reads:
Section 8.
A Judicial and Bar Council is hereby created under the supervision of the Supreme
Courtcomposed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private
sector. [Emphasis supplied]
As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is
the power of oversight, or the authority to see that subordinate officers perform their duties.It
ensures that the laws and the rules governing the conduct of a government entity are observed
and complied with. Supervising officials see to it that rules are followed, but they themselves do
not lay down such rules, nor do they have the discretion to modify or replace them. If the rules
are not observed, they may order the work done or redone, but only to conform to such rules.
They may not prescribe their own manner of execution of the act. They have no discretion on
this matter except to see to it that the rules are followed.16
Based on this, the supervisory authority of the Court over the JBC covers the overseeing of
compliance with its rules. In this case, Jardeleza’s principal allegations in his petition merit the
exercise of this supervisory authority.
B- Availability of the Remedy of Mandamus
The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to
compel the performance, when refused, of a ministerial duty, but not to compel the performance
of a discretionary duty. Mandamuswill not issue to control or review the exercise of discretion of
a public officer where the law imposes upon said public officer the right and duty to exercise his
judgment in reference to any matter in which he is required to act. It is his judgment that is to be
exercised and not that of the court.17 There is no question that the JBC’s duty to nominate is
discretionary and it may not becompelled to do something.
C- Availability of the Remedy of Certiorari
Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial
or quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a
tribunal exercising judicial or quasi-judicial function. "Judicial functions are exercised by a body
or officer clothed with authority to determine what the law is and what the legal rights of the
parties are with respect to the matter in controversy. Quasijudicial function is a term that applies
to the action or discretion of public administrative officers or bodies given the authority to
investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from
them as a basis for their official action using discretion of a judicial nature."18 It asserts that in the
performance of its function of recommending appointees for the judiciary, the JBC does not
exercise judicial or quasijudicial functions. Hence, the resort tosuch remedy to question its
actions is improper.
In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it
was negated by the invocation of the "unanimity rule" on integrity in violation of his right to due
process guaranteed not only by the Constitution but by the Council’s own rules. For said reason,
the Court is of the position that it can exercise the expanded judicial power of review vestedupon
it by the 1987 Constitution. Thus:
Article VIII.
Section 1. The judicial power is 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.
It has been judicially settled that a petition for certiorari is a proper remedy to question the act of
any branch or instrumentality of the government on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch orinstrumentality of the government,
even if the latter does not exercise judicial, quasi-judicial or ministerial functions.19
In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find
passivity as an alternative. The impassemust be overcome.
II – Substantial Issues
Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged
The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional
declaration that"[a] member of the judiciary must be a person of proven competence, integrity,
probity, and independence." To ensure the fulfillment of these standards in every member of the
Judiciary, the JBC has been tasked toscreen aspiring judges and justices, among others, making
certain that the nominees submitted to the President are all qualified and suitably best for
appointment. In this way, the appointing process itself is shieldedfrom the possibility of
extending judicial appointment to the undeserving and mediocre and, more importantly, to the
ineligible or disqualified.
In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses"
of JBC-009, that qualifications such as "competence, integrity, probity and independence are not
easily determinable as they are developed and nurtured through the years." Additionally, "it is
not possible or advisable to lay down iron-clad rules to determine the fitness of those who aspire
to become a Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic situation,
there is a need "to promote stability and uniformity in JBC’s guiding precepts and principles." A
set of uniform criteria had to be established in the ascertainment of "whether one meets the
minimum constitutional qualifications and possesses qualities of mind and heart expected of
him" and his office. Likewise for the sake oftransparency of its proceedings, the JBC had put
these criteria in writing, now in the form of JBC-009. True enough, guidelines have been set
inthe determination of competence,"20 "probity and independence,"21 "soundness of physical and
mental condition,22 and "integrity."23
As disclosed by the guidelines and lists of recognized evidence of qualification laid down in
JBC-009, "integrity" is closely related to, or if not, approximately equated to an applicant’s good
reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and
ethical standards. That is why proof of an applicant’s reputation may be shown in certifications
or testimonials from reputable government officials and non-governmental organizations and
clearances from the courts, National Bureau of Investigation, and the police, among others. In
fact, the JBC may even conduct a discreet background check and receive feedback from the
public on the integrity, reputation and character of the applicant, the merits of which shall be
verifiedand checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity
is the quality of person’s character."24
The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in
imposing the "unanimity rule," contemplate a doubt on the moral character of an applicant?
Section 2, Rule 10 of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case
where the integrity of an applicant who is not otherwise disqualified for nomination is raised or
challenged, the affirmative vote of all the Members of the Council must be obtained for the
favorable consideration of his nomination.
A simple reading of the above provision undoubtedly elicits the rule that a higher voting
requirement is absolute in cases where the integrity of an applicant is questioned. Simply put,
when an integrity question arises, the voting requirement for his or her inclusion as a nominee to
a judicial post becomes "unanimous" instead of the "majority vote" required in the preceding
section.25 Considering that JBC-009 employs the term "integrity" as an essential qualification for
appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the
unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity"
as used in the rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009
envisions only a situation where an applicant’s moral fitness is challenged. It follows then that
the "unanimity rule" only comes into operation when the moral character of a person is put in
issue. It finds no application where the question is essentially unrelated to an applicant’s moral
uprightness.
Examining the "questions of integrity" made against Jardeleza
The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to
Jardeleza’s case.
The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that
during the June 30, 2014 meeting, not only the question on his actuations in the handling of a
case was called for explanation by the Chief Justice, but two other grounds as well tending to
show his lack of integrity: a supposed extra-marital affair in the past and alleged acts of insider
trading.26
Against this factual backdrop, the Court notes that the initial or original invocation of Section 2,
Rule 10 of JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office"
as shown in a legal memorandum related to Jardeleza’s manner of representing the government
in a legal dispute. The records bear that the "unanimity rule" was initially invoked by Chief
Justice Sereno during the JBC meeting held on June 5, 2014, where she expressed her position
that Jardeleza did not possess the integrity required tobe a member of the Court.27 In the same
meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen
manner of framing the government’s position in a case and how this could have been detrimental
to the national interest.
In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s
integrity were couched in general terms. The particulars thereof were only supplied to the Court
in the JBC’s Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand
to make the accusations against him public. At the outset, the JBC declined to raise the fine
points of the integrity question in its original Comment due to its significant bearing on the
country’s foreign relations and national security. At any rate, the Court restrains itself from
delving into the details thereof in this disposition. The confidential nature of the document cited
therein, which requires the observance of utmost prudence, preclude a discussion that may
possibly affect the country’s position in a pending dispute.
Be that as it may, the Court has to resolve the standing questions: Does the original invocation of
Section 2, Rule 10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a
specific legal strategy in the handling of a case bring forth a relevant and logical challenge
against his moral character? Does the "unanimity rule" apply in cases where the main point of
contention is the professional judgment sans charges or implications of immoral or corrupt
behavior?
The Court answers these questions in the negative.
While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not
borne out ofa mere variance of legal opinion but by an "act of disloyalty" committed by
Jardeleza in the handling of a case, the fact remains that the basis for her invocation of the rule
was the "disagreement" in legal strategy as expressed by a group of international lawyers. The
approach taken by Jardeleza in that case was opposed to that preferred by the legal team. For said
reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule" on
integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No
connection was established linking his choice of a legal strategy to a treacherous intent to
trounce upon the country’s interests or to betray the Constitution.
Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction
among members of the legal community. A lawyer has complete discretion on whatlegal strategy
to employ in a case entrusted to him28 provided that he lives up tohis duty to serve his client with
competence and diligence, and that he exert his best efforts to protect the interests of his client
within the bounds of the law. Consonantly, a lawyer is not an insurer of victory for clients he
represents. An infallible grasp of legal principles and technique by a lawyer is a utopian ideal.
Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal
mind remains a legal tactic acceptable to some and deplorable to others. It has no direct bearing
on his moral choices.
As shown in the minutes, the other JBC members expressed their reservations on whether the
ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under
Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat
there was no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been
a collective idea by the legal team which initially sought a different manner of presenting the
country’s arguments, and there was no showing either of a corrupt purpose on his part.30 Even
Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by
extraneous promises.31 Besides, the President, who has the final say on the conduct of the
country’s advocacy in the case, has given no signs that Jardeleza’s action constituted disloyalty
or a betrayal of the country’s trust and interest. While this point does notentail that only the
President may challenge Jardeleza’s doubtful integrity, itis commonsensical to assume that he is
in the best position to suspect a treacherous agenda. The records are bereft of any information
that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly prayed
for Jardeleza’s inclusion in the disputed shortlist.
The Court notes the zeal shown by the Chief Justice regarding international cases, given her
participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination
of Jardeleza’s professional background, while commendable, have not produced a patent
demonstration of a connection betweenthe act complained of and his integrity as a person.
Nonetheless, the Court cannot consider her invocation of Section 2, Rule 10 of JBC-009 as
conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009,
there must be a showing that the act complained of is, at the least, linked to the moral character
of the person and not to his judgment as a professional. What this disposition perceives,
therefore, is the inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its
invocation.
As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-
marital affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting
of the JBC. As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of
these issues had its origin from newspaper reports that the Chief Justice might raise issues of
"immorality" against Jardeleza.32 The Chief Justice then deduced that the "immorality" issue
referred to by the media might have been the incidents that could have transpired when Jardeleza
was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC
had the duty to "take every possible step to verify the qualification of the applicants," it might as
well be clarified.33
Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of
JBC-009? The Court nods in assent. These are valid issues.
This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which
centered onJardeleza’s stance on the tactical approach in pursuing the case for the government,
the claims of an illicit relationship and acts of insider trading bear a candid relation to his moral
character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in extra-
marital affairs was considered as a disgraceful stain on one’s ethical and moral principles. The
bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed to
adhere to the exacting standards of morality and decency which every member of the Judiciary is
expected to observe. In fact, even relationships which have never gone physical or intimate could
still be subject to charges of immorality, when a lawyer, who is married, admits to having a
relationship which was more than professional, more than acquaintanceship, more than
friendly.35 As the Court has held: Immorality has not been confined to sexual matters, but
includes conduct inconsistentwith rectitude, or indicative of corruption, indecency, depravity and
dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to
opinions of respectable members of the communityand an inconsiderate attitude toward good
order and public welfare.36 Moral character is not a subjective term but one that corresponds to
objective reality.37 To have a good moral character, a person must have the personal
characteristic ofbeing good. It is not enough that he or she has a good reputation, that is, the
opinion generally entertained about a person or the estimate in which he or she is held by the
public in the place where she is known.38 Hence, lawyers are at all times subject to the watchful
public eye and community approbation.39
The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s
values, self-control and on the whole, sense of honor, not only because it is a bold disregard of
the sanctity of marriage and of the law, but because it erodes the public’s confidence in the
Judiciary. This is no longer a matter of an honest lapse in judgment but a dissolute exhibition of
disrespect toward sacredvows taken before God and the law.
On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40 Manipulative devices and deceptive practices, including insider trading, throw a
monkey wrench right into the heart of the securities industry. Whensomeone trades inthe market
with unfair advantage in the form of highly valuable secret inside information, all other
participants are defrauded. All of the mechanisms become worthless. Given enough of stock
marketscandals coupled with the related loss of faith in the market, such abuses could presage a
severe drain of capital. And investors would eventuallyfeel more secure with their money
invested elsewhere.41 In its barest essence, insider trading involves the trading of securities based
on knowledge of material information not disclosed to the public at the time. Clearly, an
allegation of insider trading involves the propensity of a person toengage in fraudulent activities
that may speak of his moral character.
These two issues can be properly categorized as "questions on integrity" under Section 2, Rule
10 of JBC-009. They fall within the ambit of "questions on integrity." Hence, the "unanimity
rule" may come into operation as the subject provision is worded.
The Availability of Due Process in the
Proceedings of the JBC
In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the
accusations against him in writing; 2] he was not furnished the basis of the accusations, that is, "a
very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding
his request for an opportunity to defend himself, the JBC considered his refusal to explain,
during the June 30, 2014 meeting, as a waiver of his right to answer the unspecified allegations;
4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3
and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which
provides for a 10-day period from the publication of the list of candidates within which any
complaint or opposition against a candidate may be filed with the JBC Secretary; 6] Section 2 of
JBC-010 requires complaints and oppositions to be in writing and under oath, copies of which
shall be furnished the candidate in order for him to file his comment within five (5) days from
receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and sequential
series of steps in securing a candidate’s right to due process.
The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing
in the fulfillment of its duty to recommend. The JBC, as a body, is not required by law to hold
hearings on the qualifications of the nominees. The process by which an objection is made based
on Section 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not
aim to determine guilt or innocence akin to a criminal or administrative offense but toascertain
the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the
proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the
application of rules of procedure which are, at the most, discretionary or optional. Finally,
Jardeleza refused to shed light on the objections against him. During the June 30, 2014 meeting,
he did not address the issues, but instead chose totread on his view that the Chief Justice had
unjustifiably become his accuser, prosecutor and judge.
The crux of the issue is on the availability of the right to due process in JBC proceedings. After a
tedious review of the parties’ respective arguments, the Court concludes that the right to due
process is available and thereby demandable asa matter of right.
The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they
are distinct from criminal proceedings where the finding of guilt or innocence of the accused is
sine qua non. The JBC’s constitutional duty to recommend qualified nominees to the President
cannot be compared to the duty of the courts of law to determine the commission of an offense
and ascribe the same to an accused, consistent with established rules on evidence. Even the
quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.
The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s
access tothe rights afforded under the due process clause is discretionary on the part of the JBC.
While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify the conclusion that due process is not
demandable.
In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he
presents proof of his scholastic records, work experience and laudable citations. His goal is to
establish that he is qualified for the office applied for. The JBC then takes every possible step to
verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for
nomination. It ascertains the factors which entitle an applicant to become a part of the roster
from which the President appoints.
The fact that a proceeding is sui generisand is impressed with discretion, however, does not
automatically denigrate an applicant’s entitlement to due process. It is well-established in
jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are neither
purely civil nor purely criminal; they involve investigations by the Court into the conduct of one
of its officers, not the trial of an action or a suit.44 Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an
officer of the Court with the end in view of preserving the purity of the legal profession and the
proper and honest administration of justice by purging the profession of members who, by their
misconduct, have proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can be no occasion
to speak of a complainant or a prosecutor.45 On the whole, disciplinary proceedings are actually
aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the
rights and privileges that membership in the legal profession evoke.
Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is
availing. The Court subscribes to the view that in cases where an objection to an applicant’s
qualifications is raised, the observance of due process neither negates nor renders illusory the
fulfillment of the duty of JBC torecommend. This holding is not an encroachment on its
discretion in the nomination process. Actually, its adherence to the precepts of due process
supports and enriches the exercise of its discretion. When an applicant, who vehemently denies
the truth of the objections, is afforded the chance to protest, the JBC is presented with a clearer
understanding of the situation it faces, thereby guarding the body from making an unsound and
capriciousassessment of information brought before it. The JBC is not expected to strictly apply
the rules of evidence in its assessment of an objection against an applicant. Just the same, to hear
the side of the person challenged complies with the dictates of fairness for the only test that an
exercise of discretion must surmount is that of soundness.
A more pragmatic take on the matter of due process in JBC proceedings also compels the Court
to examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-
010. The former provides the following provisions pertinent to this case:
SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the
applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable
conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall
submit to the Council certifications or testimonials thereof from reputable government officials
and non-governmental organizations, and clearances from the courts, National Bureau of
Investigation, police, and from such other agencies as the Council may require.
SECTION 2. Background check. - The Council mayorder a discreet background check on the
integrity, reputation and character of the applicant, and receive feedback thereon from the public,
which it shall check or verify to validate the merits thereof.
SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant
on groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.
SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not
begiven due course, unless there appears on its face a probable cause sufficient to engender
belief that the allegations may be true. In the latter case, the Council may either direct a discreet
investigation or require the applicant to comment thereon in writing or during the interview.
[Emphases Supplied]
While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court
to hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to
Further Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and
Bar Council," JBC-010 recognizes the needfor transparency and public awareness of JBC
proceedings. In pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates
meet prima facie the qualifications for the positionunder consideration. For this purpose, it shall
prepare a long list of candidates who prima facieappear to have all the qualifications.
The Secretary of the Council shall then cause to be published in two (2) newspapers of general
circulation a notice of the long list of candidates in alphabetical order.
The notice shall inform the public that any complaint or opposition against a candidate may be
filed with the Secretary within ten (10) days thereof.
SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible
copies, together with its supporting annexes. It shall strictly relate to the qualifications of the
candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the
Judicial and Bar Council, as well as resolutions or regulations promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition
against him. The candidate shall have five (5) days from receipt thereof within which to file his
comment to the complaint or opposition, if he so desires.
SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session
to consider the qualification of the long list of candidates and the complaint or opposition against
them, if any. The Council may, on its own, conduct a discreet investigation of the background of
the candidates.
On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the
shorter list of candidates whom it desires to interview for its further consideration.
SECTION 4.The Secretary of the Council shall again cause to be published the dates of the
interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall
likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.
The candidates, as well as their oppositors, shall be separately notified of the dateand place of the
interview.
SECTION 5.The interviews shall be conducted in public. During the interview, only the
members ofthe Council can ask questions to the candidate. Among other things, the candidate
can be made to explain the complaint or opposition against him.
SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive
session for the final deliberation on the short list of candidates which shall be sent to the Office
of the President as a basis for the exercise of the Presidential power of appointment. [Emphases
supplied]
Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10
of JBC-009 are merely directory in nature as can be gleaned from the use of the word "may."
Thus, the conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the
part of the JBC. Even the conduct of a hearing to determine the veracity of an opposition is
discretionary for there are ways, besides a hearing, to ascertain the truth or falsity of allegations.
Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a hearing
when an objection to an applicant’s integrity is raised and that it may resort to other means to
accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the
JBC, in its discretion, receives a testimony of an oppositor in a hearing, due notice shall be given
to the applicant and that shall be allowed to cross-examine the oppositor."47 Again, the Court
neither intends to strip the JBC of its discretion to recommend nominees nor proposes thatthe
JBC conduct a full-blown trial when objections to an application are submitted. Still, it is
unsound to say that, all together, the observance of due process is a part of JBC’s discretion
when an opposition to an application is made of record. While it may so rely on "other means"
such as character clearances, testimonials, and discreet investigation to aid it in forming a
judgment of an applicant’s qualifications, the Court cannot accept a situation where JBC is given
a full rein on the application of a fundamental right whenever a person’s integrity is put to
question. In such cases, an attack on the person of the applicant necessitates his right to explain
himself.
The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of
JBC-010 unmistakably projects the JBC’s deference to the grave import of the right of the
applicant to be informed and corollary thereto, the right to be heard. The provisions of JBC-010,
per se, provide that: any complaint or opposition against a candidate may be filed with the
Secretary within ten (10) days thereof; the complaint or opposition shall be in writing, under oath
and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a copy of
the complaint or opposition against him; the candidate shall have five (5) days from receipt
thereof within which to file his comment to the complaint or opposition, if he so desires; and the
candidate can be made to explain the complaint or opposition against him.
The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs
the mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due
process. While JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords
an applicant, who faces "any complaint or opposition," the right to answer the accusations
against him. This constitutes the minimum requirements of due process.
Application to Jardeleza’s Case
Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza
was deprived of his right to due process in the events leading up to, and during, the vote on the
shortlist last June 30, 2014.
The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to
answer the allegations against him. It underscores the fact that Jardeleza was asked to attend the
June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said
meeting, Chief Justice Sereno informed him that in connection with his candidacy for the
position of Associate Justice of the Supreme Court, the Council would like to propound
questions on the following issues raised against him: 1] his actuations in handling an
international arbitration case not compatible with public interest;48 2] reports on his extra-marital
affair in SMC; and 3] alleged insider trading which led to the "show cause" order from the
Philippine Stock Exchange.49
As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want
to be "lulled into waiving his rights." Instead, he manifested that his statement be put on record
and informed the Council of the then pendency of his letter-petition with the Court en banc.
When Chief Justice Sereno informed Jardeleza that the Council would want to hear from him on
the three (3) issues against him,Jardeleza reasoned out that this was precisely the issue. He found
it irregular that he was not being given the opportunity to be heard per the JBC rules.He asserted
that a candidate must be given the opportunity to respond to the charges against him. He urged
the Chief Justice to step down from her pedestal and translate the objections in writing. Towards
the end of the meeting, the Chief Justice said that both Jardeleza’s written and oral statements
would be made part of the record. After Jardeleza was excused from the conference, Justice
Lagman suggested that the voting be deferred, but the Chief Justice ruled that the Council had
already completed the process required for the voting to proceed.
After careful calibration of the case, the Court has reached the determination that the application
of the "unanimity rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.
As threshed out beforehand, due process, as a constitutional precept, does not always and in all
situations require a trial-type proceeding. Due process is satisfied when a person is notified of the
charge against him and given an opportunity to explain or defend himself.50 Even as Jardeleza
was verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him and was
later asked to explain himself during the meeting, these circumstances still cannot expunge an
immense perplexity that lingers in the mind of the Court. What is to become of the procedure
laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as
its wording provides, any complaint or opposition against a candidate may be filed with the
Secretary withinten (10) days from the publication of the notice and a list of candidates. Surely,
this notice is all the more conspicuous to JBC members. Granting ex argumenti, that the 10-day
period51 is only applicable to the public, excluding the JBC members themselves, this does not
discount the fact that the invocation of the first ground in the June 5, 2014 meeting would have
raised procedural issues. To be fair, several members of the Council expressed their concern and
desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then.
It was only during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza,
by telephone, to a meeting that would be held on the same day when a resource person would
shed light on the matter.
Assuming again that the classified nature of the ground impelled the Council to resort to oral
notice instead of furnishing Jardeleza a written opposition, why did the JBC not take into account
its authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered
to "take every possible step to verify the qualification of the applicants?" It would not be amiss to
state, at this point, that the confidential legal memorandum used in the invocation ofthe
"unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to
assume is his knowledge of the privileged nature thereof and the consequences of its
indiscriminate release to the public. Had he been privately informed of the allegations against
him based on the document and had he been ordered to respond thereto in the same manner,
Jardeleza’s right to be informed and to explain himself would have been satisfied.
What precisely set off the protest of lack of due process was the circumstance of requiring
Jardeleza to appear before the Council and to instantaneously provide those who are willing to
listen an intelligent defense. Was he given the opportunity to do so? The answer is yes, in the
context of his physical presence during the meeting. Was he given a reasonable chance to muster
a defense? No, because he was merely asked to appear in a meeting where he would be, right
then and there, subjected to an inquiry. It would all be too well to remember that the allegations
of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014
meeting. While the said issues became the object of the JBC discussion on June 16, 2014,
Jardeleza was not given the idea that he should prepare to affirm or deny his past behavior. These
circumstances preclude the very idea of due process in which the right to explain oneself is
given, not to ensnare by surprise, but toprovide the person a reasonable opportunity and
sufficient time to intelligently muster his response. Otherwise, the occasion becomes anidle and
futile exercise.
Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to
be informed of the charges against him and his right to answer the same with vigorouscontention
and active participation in the proceedings which would ultimately decide his aspiration to
become a magistrate of this Court.
Consequences
To write finisto this controversy and in view of the realistic and practical fruition of the Court’s
findings, the Court now declares its position on whether or not Jardeleza may be included in the
shortlist, just in time when the period to appoint a member of the Court is about to end.
The conclusion of the Court is hinged on the following pivotal points:
1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to
Jardeleza’s legal strategy in handling a case for the government.
2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the
contemplation of a "question on integrity" and would have warranted the application of the
"unanimity rule," he was notafforded due process in its application.
3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full
discretion on its power to recommend nomineesto the President. The sui generischaracter of JBC
proceedings, however, is not a blanket authority to disregard the due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was
neither formally informed of the questions on his integrity nor was provided a reasonable
opportunity to prepare his defense.
With the foregoing, the Court is compelled to rule that Jardeleza should have been included in
the shortlist submitted to the President for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but
from the violation by the JBC of its own rules of procedure and the basic tenets of due process.
By no means does the Court intend to strike down the "unanimity rule" as it reflects the JBC’s
policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a
blind eye on the palpable defects in its implementation and the ensuing treatment that Jardeleza
received before the Council. True, Jardeleza has no vested right to a nomination, but this does
not prescind from the fact that the JBC failed to observe the minimum requirements of due
process.
In criminal and administrative cases, the violation of a party’s right to due process raises a
serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial
of the fundamental right of due process is apparent, a decision rendered in disregard of that right
is void for lack of jurisdiction.52 This rule may well be applied to the current situation for an
opposing view submits to an undue relaxation of the Bill of Rights. To this, the Court shall not
concede. Asthe branch of government tasked to guarantee that the protection of due process is
available to an individual in proper cases, the Court finds the subject shortlist as tainted with a
vice that it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009
must be deemed to have never come into operation in light of its erroneous application on the
original ground against Jardeleza’s integrity. At the risk of being repetitive, the Court upholds
the JBC’s discretion in the selection of nominees, but its application of the "unanimity rule" must
be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza.
Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound is
that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the
position of Associate Justice and this grants him a rightful spot in the shortlist submitted to the
President. Need to Revisit JBC’s
Internal Rules
In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court
is of the view that the rules leave much to be desired and should be reviewed and revised. It
appears that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be
misused or abused resulting in the deprivation of an applicant’s right to due process.
Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the
collective will of a majority. This should be clarified. Any assertion by a member aftervoting
seems to be unfair because it effectively gives him or her a veto power over the collective votes
of the other members in view of the unanimous requirement. While an oppositor-member can
recuse himself orherself, still the probability of annulling the majority vote ofthe Council is quite
high.
Second, integrity as a ground has not been defined. While the initial impression is that it refers to
the moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the
minutes of the JBC meetings n this case reflect the lack of consensus among the members as to
its precise definition. Not having been defined or described, it is vague, nebulous and confusing.
It must be distinctly specified and delineated.
Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be
invoked only by an outsider as construed by the respondent Executive Secretary or also by a
member?
Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type,
they must meet the minimum requirements of due process. As always, an applicant should be
given a reasonable opportunity and time to be heard on the charges against him or her, if there
are any.
At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its
function. It need not be stressed that the rules to be adopted should be fair, reasonable,
unambiguous and consistent with the minimum requirements of due process.
One final note.
The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his
appointment as a member of the Court.1âwphi1 In deference to the Constitution and his wisdom
in the exercise of his appointing power, the President remains the ultimate judge of a candidate's
worthiness.
WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor
General Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President
for consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A.
Abad.
The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules
relevant to the observance of due process in its proceedings, particularly JBC-009 and JBC-010,
subject to the approval of the Court.
This Decision is immediately EXECUTORY. Immediately notify the Office of the President of
this Decision.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
(No part)
MARIA LOURDES P. A. SERENO*
Chief Justice
I join the Dissent of J. Leonen.

(No part)
ANTONIO T. CARPIO*
Associate Justice
Associate Justice
Acting Chairperson
Please see my separate Opinion

concurring with the Ponencia of Justice
Mendoza And the separate opinion of Pls. See: Separate Concurring Opinion
Justice Brion ARTURO D. BRION
TERESITA J. LEONARDO-DE Associate Justice
CASTRO
Associate Justice
See separate opinion In corporating I also join the separate opinion of J, De

explanation of vote Castro & J. Brion
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
(On official leave)
MARIANO C. DEL CASTILLO
MARTIN S. VILLARAMA, JR.**
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ BIENVENIDO L. REYES

I dissent. See separate opinion

I join the dissent of J. Leonen
MARVIC MARIO VICTOR F.
ESTELA M. PERLAS-BERNABE
LEONEN
Associate Justice
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the ooinion of the Court.
Acting Chairperson
THIRD DIVISION
G.R. Nos. 201398-99, October 03, 2018
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. AVON PRODUCTS
MANUFACTURING, INC., Respondent.
G.R. Nos. 201418-19, October 3, 2018
AVON PRODUCTS MANUFACTURING, INC., Petitioner, v. THE COMMISSIONER OF

THE INTERNAL REVENUE, Respondent.
DECISION
LEONEN, J.:
Tax assessments issued in violation of the due process rights of a taxpayer are null and void.
While the government has an interest in the swift collection of taxes, the Bureau of Internal
Revenue and its officers and agents cannot be overreaching in their efforts, but must perform
their duties in accordance with law, with their own rules of procedure, and always with regard to
the basic tenets of due process.
The 1997 National Internal Revenue Code, also known as the Tax Code, and revenue regulations
allow a taxpayer to file a reply or otherwise to submit comments or arguments with supporting
documents at each stage in the assessment process. Due process requires the Bureau of Internal
Revenue to consider the defenses and evidence submitted by the taxpayer and to render a
decision based on these submissions. Failure to adhere to these requirements constitutes a denial
of due process and taints the administrative proceedings with invalidity.
These consolidated cases assail the Court of Tax Appeals En Banc November 9, 2011
Decision1 and April 10, 2012 Resolution2 in CTA EB Case Nos. 661 and 663. The assailed
Decision denied the respective Petitions for Review by the Commissioner of Internal Revenue
(Commissioner)3 and of Avon Products Manufacturing, Inc. (Avon),4 and affirmed the Court of
Tax Appeals Special First Division May 13, 2010 Decision.5 The assailed Resolution denied the
Commissioner's Motion for Reconsideration6 and Avon's Motion for Partial Reconsideration.7
Avon filed its Value Added Tax (VAT) Returns and Monthly Remittance Returns of Income Tax
Withheld for the taxable year 1999 on the following dates:
Return Date Filed
3rd Quarter VAT Return October 25, 1999
4th Quarter VAT Return January 25, 2000
Monthly Remittance
Return of Income Expanded Compensation
Taxes Withheld
January February 25, 1999 February 25, 1999
February March 25, 1999 March 25, 1999
March April 26, 1999 April 26, 1999
April May 25, 1999 May 25, 1999
May June 25, 1999 June 25, 1999
June July 26, 1999 July 26, 1999
July August 25, 1999 August 25, 1999
August September 27, 1999 September 27, 1999
September October 25, 1999 October 25, 1999

October November 25, 1999 November 25, 1999
November December 27, 1999 December 27, 1999
December January 25, 2000 January 25, 20008
Avon signed two (2) Waivers of the Defense of Prescription dated October 14, 2002 and
December 27, 2002,9 which expired on January 14, 2003 and April 14, 2003, respectively.10
On July 14, 2004, Avon was served a Collection Letter11 dated July 9, 2004. It was required to
pay P80,246,459.1512 broken down as follows:
KIND OF COMPROMIS TOTAL

YEAR BASIC TAX INTEREST
TAX E AMOUNT
Income Tax 1999 22,012,984.19 13,207,790.51 25,000.00 35,245,774.70
Excise Tax 1999 913,514.87 658,675.57 73,200.00 1,645,390.44
VAT 1999 20,286,033.82 13,254,677.47 50,000.00 33,590,711.29
Withholding
Tax
on 1999 4,702,116.38 3,040,229.28 45,000.00 7,787,345.66
Compensatio
n
Expanded
Withholding 1999 1,187,610.88 764,626.18 25,000.00 1,977,237.06
Tax
TOTAL P49,102,260.14 P30,925,999.01 P218,200.00 P80,246,459.1513
These deficiency assessments were the same deficiency taxes covered by the Preliminary
Assessment Notice14 dated November 29, 2002, received by Avon on December 23, 2002.15
On February 14, 2003, Avon filed a letter dated February 13, 2003 protesting against the
Preliminary Assessment Notice.16
Without ruling on Avon's protest, the Commissioner prepared the Formal Letter of Demand17 and
Final Assessment Notices,18 all dated February 28, 2003, received by Avon on April 11, 2003.
Except for the amount of interest, the Final Assessment Notices were the same as the Preliminary
Assessment Notice.19
In a letter20 dated and filed on May 9, 2003, Avon protested the Final Assessment Notices. Avon
resubmitted its protest to the Preliminary Assessment Notice and adopted the same as its protest
to the Final Assessment Notices.21
A conference was allegedly held on June 26, 2003 where Avon informed the revenue officers
that all the documents necessary to support its defenses had already been submitted. Another
meeting was held on August 4, 2003, where it showed the original General Ledger Book as
previously directed by the revenue officers. During these meetings, the revenue officers allegedly
expressed that they would cancel the assessments resulting from the alleged discrepancy in sales
if Avon would pay part of the assessments.22
Thus, on January 30, 2004, Avon paid the following portions of the Final Assessment Notices:
a) Disallowed taxes and licenses/Fringe Benefit Tax adjustment P153,559.37; and
b) Withholding Tax on Compensation - Late Remittance - P32,829.2823
However, in a Memorandum dated May 27, 2004, the Bureau of Internal Revenue's officers
recommended the enforcement and collection of the assessments on the sole justification that
Avon failed to submit supporting documents within the 60-day period as required under Section
228 of the Tax Code.24
The Large Taxpayers Collection and Enforcement Division thereafter served Avon with the
Collection Letter dated July 9, 2004.25 Avon asserted that even the items already paid on January
30, 2004 were still included in the deficiency tax assessments covered by this Collection Letter.26
In a letter27 to the Deputy Commissioner for Large Taxpayers Service dated and filed on July 27,
2004, Avon requested the reconsideration and withdrawal of the Collection Letter. It argued that
it was devoid of legal and factual basis, and was premature as the Commissioner of Internal
Revenue had not yet acted on its protest against the Final Assessment Notices.28
The Commissioner did not act on Avon's request for reconsideration. Thus, Avon was
constrained to treat the Collection Letter as denial of its protest.29
On August 13, 2004, Avon filed a Petition for Review before the Court of Tax Appeals.30 On
August 24, 2004, it filed an Urgent Motion for Suspension of Collection of Tax.31
On May 13, 2010, the Court of Tax Appeals Special First Division rendered its
Decision,32 partially granting Avon's Petition for Review insofar as it ordered the cancellation of
the Final Demand and Final Assessment Notices for deficiency excise tax, VAT, withholding tax
on compensation, and expanded withholding tax. However, it ordered Avon to pay deficiency
income tax in the amount of P357,345.88 including 20% deficiency interest on the total amount
due pursuant to Section 249, paragraphs (b) and (c)(3) of the Tax Code. The Court of Tax
Appeals Special First Division also made the following pronouncements:33
a) There was no deprivation of due process in the issuance by the CIR of the assessment for
deficiency income tax, deficiency excise tax, deficiency VAT, deficiency final withholding tax
on compensation and deficiency expanded withholding tax against AVON for the latter was
afforded an opportunity to explain and present its evidence;
b) The Waivers of the Statute of Limitations executed by AVON are invalid and ineffective as
the CIR failed to provide [AVON] a copy of the accepted Waivers, as required under Revenue
Memorandum Order No. 20-90. Hence, the assessment of AVON's deficiency VAT, deficiency
expanded withholding tax and deficiency withholding tax on compensation is considered to have
prescribed;
c) AVON's failure to submit the relevant documents in support of its protest did not make the
assessment final and executory;
d) As to assessment on AVON's deficiency Income Tax,
(1) there was no undeclared sales/income in the amount of P62,911,619.58 per ITR for the
taxable year 1999;
(2) AVON's liability for disallowed taxes and licenses and December 1998 Fringe Benefit Tax
payment adjustment in the amount of P152,632.10 and P927.27, respectively, or a total of
P153,559.37 is extinguished in view of the payment made;
(3) The discrepancy between Ending Inventories reflected in Balance Sheet and Cost of Sales
represents variance/adjustments on standard cost to actual cost allocated to ending
inventories and not under-declaration as alleged by CIR;
(4) AVON's claimed tax credits in the amount of P203,645.89 was disallowed as the same was
unsupported by withholding tax certificates as required under Section 2.58.3 (B) of Revenue
Regulations No. 2-98. However, the amount of P140,505.28 was upheld as a proper
deduction from its 1999 income tax due; and
e) As to assessment on AVON's deficiency excise tax, the same is deemed cancelled and
withdrawn in view of its Application for Abatement over its deficiency excise tax assessment for
the year 1999 and its corresponding payment.34
The dispositive portion of the Court of Tax Appeals Special First Division May 13, 2010
Decision read:
WHEREFORE, the Petition for Review is hereby PARTIALLY GRANTED. Accordingly,
respondent is ORDERED TO CANCEL/WITHDRAW the Final Demand and Final Assessment
Notices: (1) Assessment No. LTAID-ET-99-00011 for deficiency Excise Tax, (2) Assessment
No. LTAID-II-VAT-99-00017 for deficiency Value Added Tax, (3) Assessment No. LTAID-II-
WTC-9900002 for deficiency Withholding Tax on Compensation Under Withholding and Later
Remittance, and (4) Assessment No. LTAID-EWT-99-00010 for deficiency Expanded
Withholding Tax.
However, petitioner is ORDERED TO PAY respondent the deficiency Income Tax under
Assessment No. LTAID-II-IT-99-00018 in the amount of P357,345.88 for taxable year 1999.
In addition, petitioner is liable to pay: i) a deficiency interest on the deficiency basic income tax
due of P100,761.01 at the rate of 20% per annum from January 31, 2004 until fully paid pursuant
to Section 249(B) of the 1997 NIRC and ii) a delinquency interest on the total amount due
(inclusive of the deficiency interest) at the rate of 20% per annum from July 24, 2004 until fully
paid pursuant to Section 249(C)(3) of the 1997 NIRC.
SO ORDERED.35
The parties' Motions for Partial Reconsideration were denied in the July 12, 2010
Resolution.36 Both parties filed their respective Petitions for Review before the Court of Tax
Appeals En Banc.37
In its assailed November 9, 2011 Decision,38 the Court of Tax Appeals En Banc denied the
respective Petitions of the Commissioner and Avon, and affirmed the Court of Tax Appeals
Special First Division May 13, 2010 Decision. It held that the Waivers of the Defense of
Prescription were defective, thereby rendering the assessment of Avon's deficiency VAT,
expanded withholding tax, and withholding tax on compensation to have prescribed.39 It further
ruled that contrary to the Commissioner's argument, the requirement under Revenue
Memorandum Order No. 20-90 to furnish the taxpayer with copies of the accepted waivers was
not merely formal in nature, and non-compliance with it rendered the Waivers of the Defense of
Prescription invalid and ineffective.40
On the issue of jurisdiction, the Court of Tax Appeals En Banc held that under Section 228 of the
Tax Code, the taxpayer has two (2) options in case of inaction of the Commissioner on disputed
assessments. The first option is to file a petition with the Court of Tax Appeals within 30 days
from the lapse of the 180-day period for the Commissioner to decide. The second option is to
await the final decision of the Commissioner and appeal this decision within 30 days from its
receipt. Here, Avon opted for the second remedy by filing its petition on July 14, 2004, within 30
days from receipt of the July 9, 2004 Collection Letter, which also served as the final decision
denying its protest. Hence, the Court of Tax Appeals En Banc ruled that it had jurisdiction over
the case.41
The Court of Tax Appeals En Banc further affirmed the Court of Tax Appeals Special First
Division's factual findings with regard to the cancellation of deficiency tax assessments42 and
disallowance of Avon's claimed tax credits.43
Finally, the Court of Tax Appeals En Banc rejected Avon's contention regarding denial of due
process. It held that Avon was accorded by the Commissioner a reasonable opportunity to
explain and present evidence.44 Moreover, the Commissioner's failure to appreciate Avon's
supporting documents and arguments did not ipso facto amount to denial of due process absent
any proof of irregularity in the performance of duties.45
In its April 10, 2012 Resolution,46 the Court of Tax Appeals En Banc denied the Commissioner's
Motion for Reconsideration and Avon's Motion for Partial Reconsideration. It held that the
"RCBC case,"47 cited by the Commissioner, was not on all fours with, and therefore not
applicable as stare decisis in this case. Instead, the ruling in CIR v. Kudos Metal
Corporation,48 precluding the Bureau of Internal Revenue from invoking the doctrine of estoppel
to cover its failure to comply with the procedures in the execution of a waiver, would apply.49
Hence, the present Petitions via Rule 45 were filed before this Court.
In her Petition,50 docketed as G.R. Nos. 201398-99, the Commissioner asserts that Avon is
estopped from assailing the validity of the Waivers of the Defense of Prescription as it has paid
the other assessments that these waivers covered. It also avers that Avon's right to appeal its
protest before the Court of Tax Appeals has prescribed and that the assessments have attained
finality. Finally, it states that Avon is liable for the deficiency assessments.51
Avon, in its separate Petition,52 docketed as G.R. Nos. 201418-19, argues that the assessments
are void ab initio due to the failure of the Commissioner to observe due process.53 It maintains
that from the start up to the end of the administrative process, the Commissioner ignored all of its
protests and submissions.54
The Petitions were consolidated on July 4, 2012.55 The Commissioner and Avon subsequently
submitted their respective Memoranda56 in compliance with this Court's June 5, 2013
Resolution.57
The issues for this Court's resolution are:
First, whether or not the Commissioner of Internal Revenue failed to observe administrative due
process, and consequently, whether or not the assessments are void;
Second, whether or not Avon Products Manufacturing, Inc., by paying the other tax assessments
covered by the Waivers of the Defense of Prescription, is estopped from assailing their validity;
Third, whether or not Avon Products Manufacturing, Inc.'s right to appeal its protest before the
Court of Tax Appeals has already prescribed; and whether or not the assessments against it for
deficiency income tax, excise tax, value-added tax, withholding tax on compensation, and
expanded withholding tax have already attained finality; and
Finally, whether or not Avon Products Manufacturing, Inc. is liable for deficiency income tax,
excise tax, value-added tax, withholding tax on compensation, and expanded withholding tax for
the taxable year 1999.
I.A
Avon asserts that the deficiency tax assessments are void because they were made without due
process58 and were not based on actual facts but on the erroneous presumptions of the
Commissioner.59
It submits that a fundamental part of administrative due process is the administrative body's due
consideration and evaluation of all the evidence submitted by the affected party. With regard to
tax assessment and collection, Section 228 of the Tax Code and Revenue Regulations No. 12-99
prescribe compliance with due process requirements through all the four (4) stages of the
assessment process, from the preliminary findings up to the Commissioner's decision on the
disputed assessment.60
Avon claims that from the start up to the end of the administrative process, the Commissioner
ignored all of its protests and submissions to contest the deficiency tax assessments.61 The
Commissioner issued identical Preliminary Assessment Notice, Final Assessment Notices, and
Collection Letters without considering Avon's submissions or its partial payment of the
assessments. Avon asserts that it was not accorded a real opportunity to be heard, making all of
the assessments null and void.62
Avon's arguments are well-taken.
The Bureau of Internal Revenue is the primary agency tasked to assess and collect proper taxes,
and to administer and enforce the Tax Code.63 To perform its functions of tax assessment and
collection properly, it is given ample powers under the Tax Code, such as the power to examine
tax returns and books of accounts,64 to issue a subpoena,65 and to assess based on best evidence
obtainable,66 among others. However, these powers must "be exercised reasonably and [under]
the prescribed procedure."67 The Commissioner and revenue officers must strictly comply with
the requirements of the law, with the Bureau of Internal Revenue's own rules,68 and with due
regard to taxpayers' constitutional rights.
The Commissioner exercises administrative adjudicatory power or quasi-judicial function in
adjudicating the rights and liabilities of persons under the Tax Code.
Quasi-judicial power has been described as:
Quasi-judicial or administrative adjudicatory power on the other hand is the power of the
administrative agency to adjudicate the rights of persons before it. It is the power to hear and
determine questions of fact to which the legislative policy is to apply and to decide in
accordance with the standards laid down by the law itself in enforcing and administering the
same law. The administrative body exercises its quasi-judicial power when it performs in a
judicial manner an act which is essentially of an executive or administrative nature, where the
power to act in such manner is incidental to or reasonably necessary for the performance of
the executive or administrative duty entrusted to it.69 (Emphasis supplied, citations omitted)
In carrying out these quasi-judicial functions, the Commissioner is required to "investigate facts
or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from
them as basis for their official action and exercise of discretion in a judicial nature."70 Tax
investigation and assessment necessarily demand the observance of due process because they
affect the proprietary rights of specific persons.
This Court has stressed the importance of due process in administrative proceedings:
The principle of due process furnishes a standard to which governmental action should conform
in order to impress it with the stamp of validity. Fidelity to such standard must of necessity be
the overriding concern of government agencies exercising quasi-judicial functions. Although a
speedy administration of action implies a speedy trial, speed is not the chief objective of a trial.
Respect for the rights of all parties and the requirements of procedural due process equally apply
in proceedings before administrative agencies with quasi-judicial perspective in administrative
decision making and for maintaining the vision which led to the creation of the administrative
office.71
In Ang Tibay v. The Court of Industrial Relations,72 this Court observed that although quasi-
judicial agencies "may be said to be free from the rigidity of certain procedural requirements[, it]
does not mean that it can, in justiciable cases coming before it, entirely ignore or disregard the
fundamental and essential requirements of due process in trials and investigations of an
administrative character."73 It then enumerated the fundamental requirements of due process that
must be respected in administrative proceedings:
(1) The party interested or affected must be able to present his or her own case and submit
evidence in support of it.

(2) The administrative tribunal or body must consider the evidence presented.

(3) There must be evidence supporting the tribunal's decision.

(4) The evidence must be substantial or "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."74

(5) The administrative tribunal's decision must be rendered on the evidence presented, or at least
contained in the record and disclosed to the parties affected.

(6) The administrative tribunal's decision must be based on the deciding authority's own
independent consideration of the law and facts governing the case.

(7) The administrative tribunal's decision is rendered in a manner that the parties may
know the various issues involved and the reasons for the decision.75
Mendoza v. Comelec76 explained that the first requirement is the party's substantive right at
the hearing stage of the proceedings, which, in essence, is the opportunity to explain one's side
or to seek a reconsideration of the adverse action or ruling.
It was emphasized, however, that the mere filing of a motion for reconsideration does not always
result in curing the due process defect,77 "especially if the motion was filed precisely to raise the
issue of violation of the right to due process and the lack of opportunity to be heard on the merits
remained."78
The second to the sixth requirements refer to the party's "inviolable rights applicable at
the deliberative stage."79 The decision-maker must consider the totality of the evidence
presented as he or she decides the case.80
The last requirement relating to the form and substance of the decision is the decision-maker's
'"duty to give reason' to enable the affected person to understand how the rule of fairness has
been administered in his [or her] case, to expose the reason to public scrutiny and criticism, and
to ensure that the decision will be thought through by the decision-maker."81
The Ang Tibay safeguards were subsequently "simplified into four basic rights,"82 as follows:
(a) [T]he right to notice, be it actual or constructive, of the institution of the proceedings that
may affect a person's legal right; (b) reasonable opportunity to appear and defend his rights and
to introduce witnesses and relevant evidence in his favor; (c) a tribunal so constituted as to give
him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and (d)
a finding or decision by that tribunal supported by substantial evidence presented at the hearing
or at least ascertained in the records or disclosed to the parties.83 (Emphasis supplied)
Saunar v. Ermita84 expounded on Ang Tibay by emphasizing that while administrative bodies
enjoy a certain procedural leniency, they are nevertheless obligated to inform themselves of all
facts material and relevant to the case, and to render a decision based on an accurate appreciation
of facts. In this regard, this Court held that Ang Tibay did not necessarily do away with the
conduct of hearing and a party may invoke its right to a hearing to thresh out substantial factual
issues, thus:
A closer perusal of past jurisprudence shows that the Court did not intend to trivialize the
conduct of a formal hearing but merely afforded latitude to administrative bodies especially in
cases where a party fails to invoke the right to hearing or is given the opportunity but opts not to
avail of it. In the landmark case of Ang Tibay, the Court explained that administrative bodies are
free from a strict application of technical rules of procedure and are given sufficient leeway. In
the said case, however, nothing was said that the freedom included the setting aside of a hearing
but merely to allow matters which would ordinarily be incompetent or inadmissible in the usual
judicial proceedings.
In fact, the seminal words of Ang Tibay manifest a desire for administrative bodies to exhaust all
possible means to ensure that the decision rendered be based on the accurate appreciation of
facts. The Court reminded that administrative bodies have the active duty to use the authorized
legal methods of securing evidence and informing itself of facts material and relevant to the
controversy. As such, it would be more in keeping with administrative due process that the
conduct of a hearing be the general rule rather than the exception.
....
To reiterate, due process is a malleable concept anchored on fairness and equity. The due process
requirement before administrative bodies are not as strict compared to judicial tribunals in that it
suffices that a party is given a reasonable opportunity to be heard. Nevertheless, such
"reasonable opportunity" should not be confined to the mere submission of position papers
and/or affidavits and the parties must be given the opportunity to examine the witnesses against
them. The right to a hearing is a right which may be invoked by the parties to thresh out
substantial factual issues. It becomes even more imperative when the rules itself of the
administrative body provides for one. While the absence of a formal hearing does not necessarily
result in the deprivation of due process, it should be acceptable only when the party does not
invoke the said right or waives the same. 85 (Emphasis supplied)
In Saunar, this Court held that the petitioner in that case was denied due process when he was
not notified of the clarificatory hearings conducted by the Presidential Anti-Graft Commission.
Under the Presidential Anti-Graft Commission's Rules, in the event that a clarificatory hearing
was determined to be necessary, the Presidential Anti-Graft Commission must notify the parties
of the clarificatory hearings. Further, "the parties shall be afforded the opportunity to be present
in the hearings without the right to examine witnesses. They, however, may ask questions and
elicit answers from the opposing party coursed through the [Presidential Anti-Graft
Commission]."86 This Court held that the petitioner in Saunar was not treated fairly in the
proceedings before the Presidential Anti-Graft Commission because he was deprived of the
opportunity to be present in the clarificatory hearings and was denied the chance to propound
questions through the Presidential Anti-Graft Commission against the opposing parties.
"[A] fair and reasonable opportunity to explain one's side"87 is one aspect of due process.
Another aspect is the due consideration given by the decision-maker to the arguments and
evidence submitted by the affected party.
Baguio Country Club Corp. v. National Labor Relations Commission88 precisely involved the
question of the denial of due process for failure of the labor tribunals to consider the evidence
presented by the employer. The labor tribunals unanimously denied the employer's application
for clearance to terminate the services of an employee on the ground of insufficient evidence to
show a just cause for the employee's dismissal, and ordered the reinstatement of the employee
with backwages.
This Court held that "[t]he summary procedures used by the [labor tribunals] were too summary
to satisfy the requirements of justice and fair play."89 It noted the irregular procedures adopted by
the Labor Arbiter. First, "[he] allowed a last minute position paper of [the] respondent ... to be
filed and without requiring a copy to be served upon the Baguio Country Club and without
affording the latter an opportunity to refute or rebut the contents of the paper, [and] forthwith
decided the case."90 Second, "the petitioner specifically stressed to the arbiter that it was
'adopting the investigations which were enclosed with the application to terminate, which are
now parts of the record of the Ministry of Labor, as part and parcel of this position paper."'91 But
the Labor Arbiter, instead of calling for the complete records of the conciliation proceedings,
"denied the application for clearance on the ground that all that was before it was a position
paper with mere quotations about an investigation conducted . . ."92 This Court held that the
affirmance by the Commission of the decision of the Labor Arbiter was a denial of the
elementary principle of fair play.
[I]t was a denial of elementary principles of fair play for the Commission not to have ordered the
elevation of the entire records of the case with the affidavits earlier submitted as part of the
position paper but completely ignored by the labor arbiter. Or at the very least, the case should
have been remanded to the labor arbiter consonant with the requirements of administrative due
process.
The ever increasing scope of administrative jurisdiction and the statutory grant of expansive
powers in the exercise of discretion by administrative agencies illustrate our nation's faith in the
administrative process as an efficient and effective mode of public control over sensitive areas of
private activity. Because of the specific constitutional mandates on social justice and protection
to labor, and the fact that major labor management controversies are highly intricate and
complex, the legislature and executive have reposed uncommon reliance upon what they believe
is the expertise, the rational and efficient modes of ascertaining facts, and the unbiased and
discerning adjudicative techniques of the Ministry of Labor and Employment and its
instrumentalities.
....
The instant petition is a timely reminder to labor arbiters and all who wield quasi-judicial power
to ever bear in mind that evidence is the means, sanctioned by rules, of ascertaining in a judicial
or quasi-judicial proceeding, the truth respecting a matter of fact ... The object of evidence is to
establish the truth by the use of perceptive and reasoning faculties . . . The statutory grant of
power to use summary procedures should heighten a concern for due process, for judicial
perspectives in administrative decision making, and for maintaining the visions which led to the
creation of the administrative office.93
In Alliance for the Family Foundation, Philippines, Inc. v. Garin,94 this Court held that the Food
and Drug Administration failed to observe the basic requirements of due process when it did not
act on or address the oppositions submitted by petitioner Alliance for the Family Foundation,
Philippines, Inc., but proceeded with the registration, recertification, and distribution of the
questioned contraceptive drugs and devices. It ruled that petitioner was not afforded the genuine
opportunity to be heard.
Administrative due process is anchored on fairness and equity in procedure.95 It is satisfied if the
party is properly notified of the charge against it and is given a fair and reasonable opportunity to
explain or defend itself.96 Moreover, it demands that the party's defenses be considered by the
administrative body in making its conclusions,97 and that the party be sufficiently informed of the
reasons for its conclusions.
I.B
Section 228 of the Tax Code, as implemented by Revenue Regulations No. 12-99, provides
certain procedures to ensure that the right of the taxpayer to procedural due process is observed
in tax assessments, thus:
Section 228. Protesting of Assessment. — When the Commissioner or his duly authorized
representative finds that proper taxes should be assessed, he shall first notify the taxpayer of his
findings: Provided, however, That a preassessment notice shall not be required in the following
cases:
(a) When the finding for any deficiency tax is the result of mathematical error in the computation
of the tax as appearing on the face of the return; or
(b) When a discrepancy has been determined between the tax withheld and the amount actually
remitted by the withholding agent; or
(c) When a taxpayer who opted to claim a refund or tax credit of excess creditable withholding
tax for a taxable period was determined to have carried over and automatically applied the same
amount claimed against the estimated tax liabilities for the taxable quarter or quarters of the
succeeding taxable year; or
(d) When the excise tax due on excisable articles has not been paid; or
(e) When an article locally purchased or imported by an exempt person, such as, but not limited
to, vehicles, capital equipment, machineries and spare parts, has been sold, traded or transferred
to non-exempt persons.
The taxpayers shall be informed in writing of the law and the facts on which the assessment
is made; otherwise, the assessment shall be void.
Within a period to be prescribed by implementing rules and regulations, the taxpayer shall be
required to respond to said notice. If the taxpayer fails to respond, the Commissioner or his duly
authorized representative shall issue an assessment based on his findings.
Such assessment may be protested administratively by filing a request for reconsideration or
reinvestigation within thirty (30) days from receipt of the assessment in such form and manner as
may be prescribed by implementing rules and regulations. Within sixty (60) days from filing of
the protest, all relevant supporting documents shall have been submitted; otherwise, the
assessment shall become final.
If the protest is denied in whole or in part, or is not acted upon within one hundred eighty (180)
days from submission of documents, the taxpayer adversely affected by the decision or inaction
may appeal to the Court of Tax Appeals within thirty (30) days from receipt of the said decision,
or from the lapse of the one hundred eighty (180)-day period; otherwise, the decision shall
become final, executory and demandable.
Section 3 of Revenue Regulations No. 12-9998 prescribes the due process requirement for the
four (4) stages of the assessment process:
Section 3. Due Process Requirement in the Issuance of a Deficiency Tax Assessment. —
3.1 Mode of procedures in the issuance of a deficiency tax assessment:
3.1.1 Notice for informal conference. — The Revenue Officer who audited the taxpayer's records
shall, among others, state in his report whether or not the taxpayer agrees with his findings that
the taxpayer is liable for deficiency tax or taxes. If the taxpayer is not amenable, based on the
said Officer's submitted report of investigation, the taxpayer shall be informed, in writing, by
the Revenue District Office or by the Special Investigation Division, as the case may be (in the
case Revenue Regional Offices) or by the Chief of Division concerned (in the case of the BIR
National Office) of the discrepancy or discrepancies in the taxpayer's payment of his
internal revenue taxes, for the purpose of "Informal Conference,” in order to afford the
taxpayer with an opportunity to present his side of the case. If the taxpayer fails to respond
within fifteen (15) days from date of receipt of the notice for informal conference, he shall
be considered in default, in which case, the Revenue District Officer or the Chief of the Special
Investigation Division of the Revenue Regional Office, or the Chief of Division in the National
Office, as the case may be, shall endorse the case with the least possible delay to the Assessment
Division of the Revenue Regional Office or to the Commissioner or his duly authorized
representative, as the case may be, for appropriate review and issuance of a deficiency tax
assessment, if warranted.
3.1.2 Preliminary Assessment Notice (PAN). — If after review and evaluation by the
Assessment Division or by the Commissioner or his duly authorized representative, as the case
may be, it is determined that there exists sufficient basis to assess the taxpayer for any deficiency
tax or taxes, the said Office shall issue to the taxpayer, at least by registered mail, a
Preliminary Assessment Notice (PAN) for the proposed assessment, showing in detail, the
facts and the law, rules and regulations, or jurisprudence on which the proposed
assessment is based . . . If the taxpayer fails to respond within fifteen (15) days from date of
receipt of the PAN, he shall be considered in default, in which case, a formal letter of demand
and assessment notice shall be caused to be issued by the said Office, calling for payment of the
taxpayer's deficiency tax liability, inclusive of the applicable penalties.
....
3.1.4 Formal Letter of Demand and Assessment Notice. —The formal letter of demand and
assessment notice shall be issued by the Commissioner or his duly authorized
representative. The letter of demand calling for payment of the taxpayer's deficiency tax or
taxes shall state the facts, the law, rules and regulations, or jurisprudence on which the
assessment is based, otherwise, the formal letter of demand and assessment notice shall be
void . . .
3.1.5 Disputed Assessment. — The taxpayer or his duly authorized representative may
protest administratively against the aforesaid formal letter of demand and assessment
notice within thirty (30) days from date of receipt thereof....
....
The taxpayer shall submit the required documents in support of his protest within sixty (60) days
from date of filing of his letter of protest, otherwise, the assessment shall become final,
executory and demandable. The phrase "submit the required documents" includes submission or
presentation of the pertinent documents for scrutiny and evaluation by the Revenue Officer
conducting the audit. The said Revenue Officer shall state this fact in his report of investigation.
If the taxpayer fails to file a valid protest against the formal letter of demand and assessment
notice within thirty (30) days from date of receipt thereof, the assessment shall become final,
executory and demandable.
....
3.1.6 Administrative Decision on a Disputed Assessment. — The decision of the Commissioner
or his duly authorized representative shall (a) state the facts, the applicable law, rules and
regulations, or jurisprudence on which such decision is based, otherwise, the decision shall
be void . . . in which case, the same shall not be considered a decision on a disputed
assessment; and (b) that the same is his final decision. (Emphasis supplied)
The importance of providing the taxpayer with adequate written notice of his or her tax liability
is undeniable. Under Section 228, it is explicitly required that the taxpayer be informed in
writing of the law and of the facts on which the assessment is made; otherwise, the assessment
shall be void. Section 3.1.2 of Revenue Regulations No. 12-99 requires the Preliminary
Assessment Notice to show in detail the facts and law, rules and regulations, or jurisprudence on
which the proposed assessment is based. Further, Section 3.1.4 requires that the Final Letter of
Demand must state the facts and law on which it is based; otherwise, the Final Letter of Demand
and Final Assessment Notices themselves shall be void. Finally, Section 3.1.6 specifically
requires that the decision of the Commissioner or of his or her duly authorized representative on
a disputed assessment shall state the facts and law, rules and regulations, or jurisprudence on
which the decision is based. Failure to do so would invalidate the Final Decision on Disputed
Assessment.
"The use of the word 'shall' in Section 228 of the [National Internal Revenue Code] and in
[Revenue Regulations] No. 12-99 indicates that the requirement of informing the taxpayer of the
legal and factual bases of the assessment and the decision made against him [or her] is
mandatory."99 This is an essential requirement of due process and applies to the Preliminary
Assessment Notice, Final Letter of Demand with the Final Assessment Notices, and the Final
Decision on Disputed Assessment.
On the other hand, the taxpayer is explicitly given the opportunity to explain or present his or her
side throughout the process, from tax investigation through tax assessment. Under Section 3.1.1
of Revenue Regulations No. 12-99, the taxpayer is given 15 days from receipt of the Notice for
Informal Conference to respond; otherwise, he or she will be considered in default and the case
will be referred to the Assessment Division for appropriate review and issuance of deficiency tax
assessment, if warranted. Again, under Section 228 of the Tax Code and Section 3.1.2 of
Revenue Regulations No. 12-99, the taxpayer is required to respond within 15 days from receipt
of the Preliminary Assessment Notice; otherwise, he or she will be considered in default and the
Final Letter of Demand and Final Assessment Notices will be issued. After receipt of the Final
Letter of Demand and Final Assessment Notices, the taxpayer is given 30 days to file a protest,
and subsequently, to appeal his or her protest to the Court of Tax Appeals.
Avon asserts feigned compliance by the Bureau of Internal Revenue officials and agents of their
duties under the law and revenue regulation.100 It adds that the administrative proceeding
conducted by the Bureau of Internal Revenue was "a farce," an idle ritual tantamount to a denial
of its right to be heard.101 It specifies the Bureau of Internal Revenue's inaction throughout the
proceedings as follows:
First, during the informal conference, Avon orally rebutted and submitted a written
Reply102 dated November 26, 2002, with attached supporting documents, to the summary of audit
findings of the Bureau of Internal Revenue. Revenue Examiner Enrico Z. Gesmundo
(Gesmundo), on cross-examination, admitted receiving its Reply with the appended documents
and that this Reply should be the basis of the Preliminary Assessment Notice.103
However, the Commissioner issued the Preliminary Assessment Notice dated November 29,
2002, which simply reiterated the rebutted audit findings.104 The alleged under-declared sales
was increased by more than 300% based on the alleged sales discrepancy in the Third Quarter
VAT Return vis á vis Financial Statement, without justifiable reason and despite clean opinion of
Avon's external auditor on its financial statements.105
Second, in its protest letter to the Preliminary Assessment Notice, Avon explained the error in
the presentation of export sales in the Third Quarter VAT Return. That is, instead of presenting
the total sales for the third quarter alone, the presentation was a cumulative or year-to-date sales
presentation. Avon appended copies of the Third Quarter VAT Return and the General Ledger
Pages of Export Sales to its protest letter to prove the cumulative presentation of its sales. The
Bureau of Internal Revenue Examiners accepted their explanation during their meeting.106
However, within just two (2) weeks from receipt of Avon's protest letter, the Commissioner
issued the Final Letter of Demand and Final Assessment Notices, reiterating the findings stated
in the Preliminary Assessment Notice.107 The Bureau of Internal Revenue chose to ignore Avon's
explanations and refused to cancel the assessments unless Avon would agree to pay the other
deficiency assessments.108
Third, since the Final Assessment Notices merely reiterated the findings in the Preliminary
Assessment Notice, Avon resubmitted its protest letter and supporting documents. During the
conference with the revenue officers on August 4, 2003, Avon explained that it had already
submitted all the reconciliation, schedules, and other supporting documents. It also submitted
additional documents as directed by the revenue officers on June 26, 2003,109 and presented the
original General Ledger Book for 1999 for comparison by the Bureau of Internal Revenue's
officers with the copies previously submitted. Again, Avon explained the alleged sales
discrepancy to the revenue officers, who were convinced that there was no under declaration of
sales, and that the sales discrepancy between the Annual Income Tax Return and Quarterly VAT
Return was merely due to erroneous presentation of sales in the Third Quarter VAT Return.110
By this time, hoping that the Commissioner would cancel the deficiency income and VAT
assessments arising from the alleged sales discrepancy, Avon informed the Bureau of Internal
Revenue examiners that it would make a partial payment of the assessments, which it did.111
Fourth, however, the Commissioner issued the Collection Letter112 dated July 9, 2004 without
deciding on the protest letter to the Final Assessment Notices. Once again, she failed to even
comment on the arguments raised or address the documents submitted by Avon. Even the
amounts supposedly paid by Avon were not deducted from the amount demanded in the
Collection Letter. To justify its issuance, the Commissioner falsely alleged Avon of failing to
submit its supporting documents. 113
Fifth, Avon filed a request for withdrawal of the Collection Letter, but it was likewise ignored.114
Finally, the documents which reveal the events after the filing of the protest to the Final
Assessment Notices on May 9, 2004 were missing from the Bureau of Internal Revenue
Records.115 These were (a) the handwritten Minutes of the Bureau of Internal Revenue/Taxpayer
Conference on June 26, 2003; (b) Avon's letter116 dated August 1, 2003, with supporting
documents, received by Revenue Officer Gesmundo on August 4, 2003, showing Avon's
submission of the documents required by the Revenue Officers during the June 26, 2003
meeting; and (c) the two (2) Bureau of Internal Revenue Tax Payment Confirmations dated
January 30, 2004, and Payment Forms called Bureau of Internal Revenue Form No. 0605.117
Avon further submits that the presumption of correctness of the assessments cannot apply in the
face of compelling proof that they were issued without due process. It adds that "[h]ad the
administrative process been conducted with fairness and in accordance with the prescribed
procedure, [it] need not have incurred [filing fees and other litigation expenses to defend against
a bloated deficiency tax assessment]."118
Against these claims of Avon, the Commissioner did not submit any refutation either in her
Comment119 or Memorandum,120 and even in her pleadings before the Court of Tax Appeals.
Instead, she could only give out a perfunctory resistance that "tax assessments . . . are presumed
correct and made in good faith."121
The Court of Tax Appeals ruled that the difference in the appreciation by the Commissioner of
Avon's supporting documents, which led to the deficiency tax assessments, was not violative of
due process. While the Commissioner has the duty to receive the taxpayer's clarifications and
explanations, she does not have the duty to accept them on face value.122
This Court disagrees.
The facts demonstrate that Avon was deprived of due process. It was not fully apprised of the
legal and factual bases of the assessments issued against it. The Details of
Discrepancy123 attached to the Preliminary Assessment Notice, as well as the Formal Letter of
Demand with the Final Assessment Notices, did not even comment or address the defenses and
documents submitted by Avon. Thus, Avon was left unaware on how the Commissioner or her
authorized representatives appreciated the explanations or defenses raised in connection with the
assessments. There was clear inaction of the Commissioner at every stage of the proceedings.
First, despite Avon's submission of its Reply, together with supporting documents, to the revenue
examiners' initial audit findings, and its explanation during the informal conference,124 the
Preliminary Assessment Notice was issued. The Preliminary Assessment Notice reiterated the
same audit findings, except for the alleged under-declared sales which ballooned in amount from
P15,700,000.00 to P62,900,000.00,125 without any discussion or explanation on the merits of
Avon's explanations.
Upon receipt of the Preliminary Assessment Notice, Avon submitted its protest letter and
supporting documents,126 and even met with revenue examiners to explain. Nonetheless, the
Bureau of Internal Revenue issued the Final Letter of Demand and Final Assessment Notices,
merely reiterating the assessments in the Preliminary Assessment Notice. There was no comment
whatsoever on the matters raised by Avon, or discussion of the Bureau of Internal Revenue's
findings in a manner that Avon may know the various issues involved and the reasons for the
assessments.
Under the Bureau of Internal Revenue's own procedures, the taxpayer is required to respond to
the Notice of Informal Conference and to the Preliminary Assessment Notice within 15 days
from receipt. Despite Avon's timely submission of a Reply to the Notice of Informal Conference
and protest to the Preliminary Assessment Notice, together with supporting documents, the
Commissioner and her agents violated their own procedures by refusing to answer or even
acknowledge the submitted Reply and protest.
The Notice of Informal Conference and the Preliminary Assessment Notice are a part of due
process.127 They give both the taxpayer and the Commissioner the opportunity to settle the case
at the earliest possible time without the need for the issuance of a Final Assessment Notice.
However, this purpose is not served in this case because of the Bureau of Internal Revenue's
inaction or failure to consider Avon's explanations.
Upon receipt of the Final Assessment Notices, Avon resubmitted its protest and submitted
additional documents required by the revenue examiners, including the original General Ledger
for 1999. As testified by Avon's Finance Director, Mildred C. Emlano, the Bureau of Internal
Revenue examiners were convinced with Avon's explanation during the meeting on August 4,
2003, particularly, that there was no underdeclaration of sales.128 Still, the Commissioner merely
issued a Collection Letter dated July 9, 2004, demanding from Avon the payment of the same
deficiency tax assessments with a warning that should it fail to do so within the required period,
summary administrative remedies would be instituted without further notice.129 This Collection
Letter was based on the May 27, 2004 Memorandum of the Revenue Officers stating that
"[Avon] failed to submit supporting documents within 60-day period."130 This inaction on the
part of the Bureau of Internal Revenue and its agents could hardly be considered substantial
compliance of what is mandated by Section 228 of the Tax Code and the Revenue Regulation
No. 12-99.
It is true that the Commissioner is not obliged to accept the taxpayer's explanations, as explained
by the Court of Tax Appeals.131 However, when he or she rejects these explanations, he or she
must give some reason for doing so. He or she must give the particular facts upon which his or
her conclusions are based, and those facts must appear in the record.
Indeed, the Commissioner's inaction and omission to give due consideration to the arguments
and evidence submitted before her by Avon are deplorable transgressions of Avon's right to due
process.132 The right to be heard, which includes the right to present evidence, is meaningless if
the Commissioner can simply ignore the evidence without reason.
In Edwards v. McCoy:133
The object of a hearing is as much to have evidence considered as it is to present it. The right to
adduce evidence, without the corresponding duty on the part of the board to consider it, is vain.
Such right is conspicuously futile if the person or persons to whom the evidence is presented can
thrust it aside without notice or consideration.134
In Ang Tibay, this Court similarly ruled that "[n]ot only must the party be given an opportunity to
present his case and to adduce evidence tending to establish the rights which he asserts but the
tribunal must consider the evidence presented."135
Furthermore, in Mendoza v. Commission on Elections,136 this Court explained:
[T]he last requirement, relating to the form and substance of the decision of a quasi-judicial
body, further complements the hearing and decision-making due process rights and is similar in
substance to the constitutional requirement that a decision of a court must state distinctly the
facts and the law upon which it is based. As a component of the rule of fairness that underlies
due process, this is the "duty to give reason" to enable the affected person to understand
how the rule of fairness has been administered in his case, to expose the reason to public
scrutiny and criticism, and to ensure that the decision will be thought through by the
decision-maker.137 (Emphasis supplied, citation omitted)
In Villa v. Lazaro,138 this Court held that Anita Villa (Villa) was denied due process when the
then Human Settlement Regulatory Commission ignored her submission, not once but thrice, of
the official documents certifying to her compliance with the pertinent locational, zoning, and
land use requirements, and plans for the construction of her funeral parlor. It imposed on Villa a
fine of P10,000.00 and required her to cease operations on the spurious premise that she had
failed to submit the required documents. This Court found the Commissioner's failure or refusal
to even acknowledge the documents submitted by Villa indefensible. It further held that the
defects in the administrative proceedings "translate to a denial of due process against which the
defense of failure to take timely appeal will not avail."139
Similarly, in this case, despite Avon's submission of its explanations and pieces of evidence to
the assessments, the Commissioner failed to acknowledge these submissions and instead issued
identical Preliminary Assessment Notice, Final Letter of Demand with the Final Assessment
Notices, and Collection Letter, the latter being premised on Avon's alleged failure to submit
supporting documents to its protest. Had the Commissioner performed her functions properly
and considered the explanations and pieces of evidence submitted by Avon, this case could have
been settled at the earliest possible time. For instance, all the evidence needed to settle the issue
on under-declared sales, which constituted the bulk of the deficiency tax assessments, have been
submitted to the Bureau of Internal Revenue. Indeed, from these same submissions, the Court of
Tax Appeals concluded that there was no under-declaration of sales. As aptly pointed out by
Avon, "The [Commissioner could not] feign simple mistake or misappreciation of the
evidence . . . because [the issue was] plain and simple."140
Moreover, the Court of Tax Appeals erroneously applied the "presumption of regularity" in
sustaining the Commissioner's assessments.
The presumption that official duty has been regularly performed is a disputable presumption
under Rule 131, Section 3(m) of the Rules of Court. As a disputable presumption —
[I]t may be accepted and acted on where there is no other evidence to uphold the contention for
which it stands, or one which may be overcome by other evidence ...
The presumption of regularity of official acts may be rebutted by affirmative evidence of
irregularity or failure to perform a duty.141 (Citation omitted)
In Sevilla v. Cardenas,142 this Court refused to apply the "presumption of regularity" when it
noted that there was documentary and testimonial evidence that the civil registrar did not
exert utmost efforts before certifying that no marriage license was issued in favor of one of the
parties.
This Court also refused to apply the presumption of regularity in Bank of the Philippine Islands
v. Evangelista,143 where the process server failed to show that he followed the required
procedures:
We cannot sustain petitioner's argument, which is anchored on the presumption of regularity in
the process server's performance of duty. The Court already had occasion to rule that
"[c]ertainly, it was never intended that the presumption of regularity in the performance of
official duty will be applied even in cases where there is no showing of substantial compliance
with the requirements of the rules of procedure." Such presumption does not apply where it is
patent that the sheriff's or server's return is defective. Under this circumstance, respondents are
not duty-bound to adduce further evidence to overcome the presumption, which no longer
holds.144 (Citations omitted)
Here, contrary to the ruling of the Court of Appeals, the presumption of regularity in the
performance of the Commissioner's official duties cannot stand in the face of positive evidence
of irregularity or failure to perform a duty.
I.C
The Commissioner's total disregard of due process rendered the identical Preliminary
Assessment Notice, Final Assessment Notices, and Collection Letter null and void, and of no
force and effect.
This Court has, in several cases, declared void any assessment that failed to strictly comply with
the due process requirements set forth in Section 228 of the Tax Code and Revenue Regulation
No. 12-99.
In Commissioner of Internal Revenue v. Metro Star Superama, Inc.,145 this Court held that failure
to send a Preliminary Assessment Notice stating the facts and the law on which the assessment
was made as required by Section 228 of the Tax Code rendered the assessment made by the
Commissioner as void. This Court explained:
Indeed, Section 228 of the Tax Code clearly requires that the taxpayer must first be informed that
he is liable for deficiency taxes through the sending of a PAN. He must be informed of the facts
and the law upon which the assessment is made. The law imposes a substantive, not merely a
formal, requirement. To proceed heedlessly with tax collection without first establishing a valid
assessment is evidently violative of the cardinal principle in administrative investigations — that
taxpayers should be able to present their case and adduce supporting evidence.146 (Citation
omitted)
In Commissioner of Internal Revenue v. Reyes,147 this Court ruled as void an assessment for
deficiency estate tax issued by the Commissioner for failure to inform the taxpayer of the law
and the facts on which the assessment was made, in violation of Section 228 of the Tax Code.
In Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue,148 this Court
ruled, among others, that the taxpayer was deprived of due process when the Commissioner
failed to issue a notice of informal conference and a Preliminary Assessment Notice as required
by Revenue Regulation No. 12-99, in relation to Section 228 of the Tax Code. Hence, the
assessment was void.
Compliance with strict procedural requirements must be followed in the collection of taxes as
emphasized in Commissioner of Internal Revenue v. Algue, Inc.:149
Taxes are the lifeblood of the government and so should be collected without unnecessary
hindrance. On the other hand, such collection should be made in accordance with law as any
arbitrariness will negate the very reason for government itself. It is therefore necessary to
reconcile the apparently conflicting interests of the authorities and the taxpayers so that the real
purpose of taxation, which is the promotion of the common good, may be achieved.
....
It is said that taxes are what we pay for civilized society. Without taxes, the government would
be paralyzed for lack of the motive power to activate and operate it. Hence, despite the natural
reluctance to surrender part of one's hard-earned income to the taxing authorities, every person
who is able to must contribute his share in the running of the government. The government for its
part, is expected to respond in the form of tangible and intangible benefits intended to improve
the lives of the people and enhance their moral and material values. This symbiotic relationship
is the rationale of taxation and should dispel the erroneous notion that it is an arbitrary method of
exaction by those in the seat of power.
But even as we concede the inevitability and indispensability of taxation, it is a requirement
in all democratic regimes that it be exercised reasonably and in accordance with the
prescribed procedure. If it is not, then the taxpayer has a right to complain and the courts
will then come to his succor. For all the awesome power of the tax collector, he may still be
stopped in his tracks if the taxpayer can demonstrate ... that the law has not been
observed.150 (Emphasis supplied)
In this case, Avon was able to amply demonstrate the Commissioner's disregard of the due
process standards raised in Ang Tibay and subsequent cases, and of the Commissioner's own
rules of procedure. Her disregard of the standards and rules renders the deficiency tax
assessments null and void. This Court, nonetheless, proceeds to discuss the points raised by the
Commissioner pertaining to estoppel and prescription.
II
As a general rule, petitioner has three (3) years from the filing of the return to assess taxpayers.
Section 203 of the Tax Code provides:
Section 203. Period of Limitation Upon Assessment and Collection. — Except as provided in
Section 222, internal revenue taxes shall be assessed within three (3) years after the last day
prescribed by law for the filing of the return, and no proceeding in court without assessment for
the collection of such taxes shall be begun after the expiration of such period: Provided, That in a
case where a return is filed beyond the period prescribed by law, the three (3)-year period shall
be counted from the day the return was filed. For purposes of this Section, a return filed before
the last day prescribed by law for the filing thereof shall be considered as filed on such last day.
An exception to the rule of prescription is found m Section 222, paragraphs (b) and (d) of the
same Code, viz:
Section 222. Exceptions as to Period of Limitation of Assessment and Collection of Taxes. —
....
(b) If before the expiration of the time prescribed in Section 203 for the assessment of the tax,
both the Commissioner and the taxpayer have agreed in writing to its assessment after such time,
the tax may be assessed within the period agreed upon. The period so agreed upon may be
extended by subsequent written agreement made before the expiration of the period previously
agreed upon.
....
(d) Any internal revenue tax, which has been assessed within the period agreed upon as provided
in paragraph (b) hereinabove, may be collected by distraint or levy or by a proceeding in court
within the period agreed upon in writing before the expiration of the five (5)-year period. The
period so agreed upon may be extended by subsequent written agreements made before the
expiration of the period previously agreed upon.
Thus, the period to assess and collect taxes may be extended upon the Commissioner and the
taxpayer's written agreement, executed before the expiration of the three (3)-year period.
In this case, two (2) waivers were supposedly executed by the parties extending the prescriptive
periods for assessment of income tax, VAT, and expanded and final withholding taxes to January
14, 2003, and then to April 14, 2003.151
The Court of Tax Appeals, both the Special First Division and En Banc, declared the two (2)
Waivers of the Defense of Prescription defective and void, for the Commissioner's failure to
furnish signed copies of the Waivers to Avon, in violation of the requirements provided in
Revenue Memorandum Order No. 20-90.152
Indeed, a Waiver of the Defense of Prescription is a bilateral agreement between a taxpayer and
the Bureau of Internal Revenue to extend the period of assessment and collection to a certain
date. "The requirement to furnish the taxpayer with a copy of the waiver is not only to give
notice of the existence of the document but of the acceptance by the [Bureau of Internal
Revenue] and the perfection of the agreement."153
However, the Commissioner in this case contends that Avon is estopped from assailing the
validity of the Waivers of the Defense of Prescription that it executed when it paid portions of
the disputed assessments.154 The Commissioner invokes the ruling in Rizal Commercial Banking
Corporation v. Commissioner of Internal Revenue,155 which allegedly must be applied as stare
decisis.156
The Commissioner's contention is untenable.
Rizal Commercial Banking Corporation is not on all fours with this case. The estoppel upheld in
that case arose from the benefit obtained by the taxpayer from its execution of the waiver, in the
form of a drastic reduction of the deficiency taxes, and the taxpayer's payment of a portion of the
reduced tax assessment. In that case, this Court explained that Rizal Commercial Banking
Corporation's partial payment of the revised assessments effectively belied its insistence that the
waivers were invalid and the assessments were issued beyond the prescriptive period. Thus:
Estoppel is clearly applicable to the case at bench. RCBC, through its partial payment of the
revised assessments issued within the extended period as provided for in the questioned waivers,
impliedly admitted the validity of those waivers. Had petitioner truly believed that the waivers
were invalid and that the assessments were issued beyond the prescriptive period, then it should
not have paid the reduced amount of taxes in the revised assessment. RCBC's subsequent action
effectively belies its insistence that the waivers are invalid. The records show that on December
6, 2000, upon receipt of the revised assessment, RCBC immediately made payment on the
uncontested taxes. Thus, RCBC is estopped from questioning the validity of the waivers. To hold
otherwise and allow a party to gainsay its own act or deny rights which it had previously
recognized would run counter to the principle of equity which this institution holds
dear.157 (Citation omitted)
Here, Avon claimed that it did not receive any benefit from the waivers.158 On the contrary, there
was even a drastic increase in the assessed deficiency taxes when the Commissioner increased
the alleged sales discrepancy from P15,700,000.00 in the preliminary findings to P62,900,000.00
in the Preliminary Assessment Notice and Final Assessment Notices. Furthermore, Avon was
compelled to pay a portion of the deficiency assessments "in compliance with the Revenue
Officer's condition in the hope of cancelling the assessments on the non-existent sales
discrepancy."159 Under these circumstances, Avon's payment of an insignificant portion of the
assessment cannot be deemed an admission or recognition of the validity of the waivers.
On the other hand, the Court of Tax Appeals' reliance on the general rule enunciated
in Commissioner of Internal Revenue v. Kudos Metal Corporation160 is proper. In that case, this
Court ruled that the Bureau of Internal Revenue could not hide behind the doctrine of estoppel to
cover its failure to comply with its own procedures. "[A] waiver of the statute of limitations [is] a
derogation of the taxpayer's right to security against prolonged and unscrupulous investigations
[and thus, it] must be carefully and strictly construed."161
III
The Commissioner of Internal Revenue in this case asserts that since Avon filed its protest on
May 9, 2003, it only had 30 days from November 5, 2003, i.e., the end of the 180 days, or until
December 5, 2003 within which to appeal to the Court of Tax Appeals. As Avon only filed its
appeal on August 13, 2004, its right to appeal has prescribed.162
Avon counters that it acted in good faith and in accordance with Rule 4, Section 3 of the Revised
Rules of the Court of Tax Appeals and jurisprudence when it opted to wait for the decision of the
Commissioner and appeal it within the 30-day period.163 "The Collection Letter, albeit void,
constitutes a constructive denial of Avon's protest and is the final decision of the [Commissioner]
for purposes of counting the reglementary 30-day period to appeal[.]"164 Since Avon received the
Collection Letter on July 14, 2004, its Petition for Review was timely filed on August 13,
2004.165 At any rate, Avon argues that the issue on the timeliness of its appeal was raised by the
Commissioner only in its Motion for Reconsideration of the Court of Tax Appeals En Banc
November 9, 2011 Decision, and a belated consideration of this matter would violate its right to
due process and fair play.166
The issue on whether Avon's Petition for Review before the Court of Tax Appeals was time-
barred requires the interpretation and application of Section 228 of the Tax Code, viz:
Section 228. Protesting of Assessment. —
....
Such assessment may be protested administratively by filing a request for reconsideration or
reinvestigation within thirty (30) days from receipt of the assessment in such form and manner as
may be prescribed by implementing rules and regulations. Within sixty (60) days from filing of
the protest, all relevant supporting documents shall have been submitted; otherwise, the
assessment shall become final.
If the protest is denied in whole or in part, or is not acted upon within one hundred eighty
(180) days from submission of documents, the taxpayer adversely affected by the decision or
inaction may appeal to the Court of Tax Appeals within thirty (30) days from receipt of the
said decision, or from the lapse of the one hundred eighty (180)-day period; otherwise,
the decision shall become final, executory and demandable. (Emphasis supplied)
Section 228 of the Tax Code amended Section 229167 of the Old Tax Code168 by adding, among
others, the 180-day rule. This new provision presumably avoids the situation in the past when a
taxpayer would be held hostage by the Commissioner's inaction on his or her protest. Under the
Old Tax Code, in conjunction with Section 11 of Republic Act No. 1125, only the decision or
ruling of the Commissioner on a disputed assessment is appealable to the Court of Tax Appeals.
Consequently, the taxpayer then had to wait for the Commissioner's action on his or her protest,
which more often was long-delayed.169 With the amendment introduced by Republic Act No.
8424, the taxpayer may now immediately appeal to the Court of Tax Appeals in case of inaction
of the Commissioner for 180 days from submission of supporting documents.
Republic Act No. 9282, or the new Court of Tax Appeals Law, which took effect on April 23,
2004, amended Republic Act No. 1125 and included a provision complementing Section 228 of
the Tax Code, as follows:
Section 7. Jurisdiction. — The CTA shall exercise:
(a) Exclusive appellate jurisdiction to review by appeal, as herein provided:
....
(2) Inaction by the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation
thereto, or other matters arising under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue, where the National Internal Revenue Code
provides a specific period of action, in which case the inaction shall be deemed a denial[.]
(Emphasis supplied)
Under Section 7(a)(2) above, it is expressly provided that the "inaction" of the Commissioner on
his or her failure to decide a disputed assessment within 180 days is "deemed a denial" of the
protest.
In Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue,170 this Court,
by way of an obiter, ruled as follows:
In case the Commissioner failed to act on the disputed assessment within the 180-day period
from the date of submission of documents, a taxpayer can either: 1) file a petition for review with
the Court of Tax Appeals within 30 days after the expiration of the 180-day period; or 2) await
the final decision of the Commissioner on the disputed assessment and appeal such final decision
to the Court of Tax Appeals within 30 days after receipt of a copy of such decision. However,
these options are mutually exclusive, and resort to one bars the application of the other.171
In Rizal Commercial Banking Corporation, the Commissioner failed to act on the disputed
assessment within 180 days from date of submission of documents. Thus, Rizal Commercial
Banking Corporation opted to file a Petition for Review before the Court of Tax Appeals.
Unfortunately, it was filed more than 30 days following the lapse of the 180-day period.
Consequently, it was dismissed by the Court of Tax Appeals for late filing. Rizal Commercial
Banking Corporation did not file a Motion for Reconsideration or make an appeal; hence, the
disputed assessment became final and executory.
Subsequently, Rizal Commercial Banking Corporation filed a petition for relief from judgment
on the ground of excusable negligence, but this was denied by the Court of Tax Appeals for lack
of merit. This Court affirmed the Court of Tax Appeals. It further held that even if the negligence
of Rizal Commercial Banking Corporation's counsel was excusable and the petition for relief
from judgment would be granted, it would not fare any better because its action for cancellation
of assessments had already prescribed since its Petition was filed beyond the 180+30-day period
stated in Section 228.
Rizal Commercial Banking Corporation then filed a Motion for Reconsideration. Denying the
motion, this Court held that it could not anymore "claim that the disputed assessment is not yet
final as it remained unacted upon by the Commissioner; that it can still await the final decision of
the Commissioner and thereafter appeal the same to the Court of Tax Appeals."172 Since it had
availed of the first option by filing a petition for review because of the Commissioner's inaction,
although late, it could no longer resort to the second option.
Rizal Commercial Banking Corporation referred to Rule 4, Section 3(a)(2) of the 2005 Revised
Rules of the Court of Tax Appeals, or the 2005 Court of Tax Appeals Rules, which provides:
Section 3. Cases Within the Jurisdiction of the Court in Divisions. — The Court in Divisions
shall exercise:
(a) Exclusive original or

appellate jurisdiction
to review by appeal
the following:
....
(2) Inaction by the Commissioner of Internal Revenue in cases

involving disputed assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relation thereto, or other matters
arising under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue, where the National
Internal Revenue Code or other applicable law provides a specific
period for action: Provided, that in case of disputed assessments, the
inaction of the Commissioner of Internal Revenue within the one
hundred eighty day-period under Section 228 of the National Internal
Revenue Code shall be deemed a denial for purposes of allowing the
taxpayer to appeal his case to the Court and does not necessarily
constitute a formal decision of the Commissioner of Internal Revenue
on the tax case; Provided, further, that should the taxpayer opt to
await the final decision of the Commissioner of Internal Revenue on
the disputed assessments beyond the one hundred eighty day-period
abovementioned, the taxpayer may appeal such final decision to the
Court under Section 3(a), Rule 8 of these Rules; and Provided, still
further, that in the case of claims for refund of taxes erroneously or
illegally collected, the taxpayer must file a petition for review with
the Court prior to the expiration of the two-year period under Section
229 of the National Internal Revenue Code[.] (Emphasis supplied)
In Lascona Land Co., Inc. v. Commissioner of Internal Revenue,173 this Court reaffirmed Rizal
Commercial Banking Corporation, viz:
In arguing that the assessment became final and executory by the sole reason that petitioner
failed to appeal the inaction of the Commissioner within 30 days after the 180-day reglementary
period, respondent, in effect, limited the remedy of Lascona, as a taxpayer, under Section 228 of
the NIRC to just one, that is — to appeal the inaction of the Commissioner on its protested
assessment after the lapse of the 180-day period. This is incorrect.
....
[W]hen the law provided for the remedy to appeal the inaction of the CIR, it did not intend to
limit it to a single remedy of filing of an appeal after the lapse of the 180-day prescribed period.
Precisely, when a taxpayer protested an assessment, he naturally expects the CIR to decide either
positively or negatively. A taxpayer cannot be prejudiced if he chooses to wait for the final
decision of the CIR on the protested assessment. More so, because the law and jurisprudence
have always contemplated a scenario where the CIR will decide on the protested assessment.174
This Court, nonetheless, stressed that these two (2) options of the taxpayer, i.e., to (1) file a
petition for review before the Court of Tax Appeals within 30 days after the expiration of the
180-day period; or (2) to await the final decision of the Commissioner on the disputed
assessment and appeal this final decision to the Court of Tax Appeals within 30 days from
receipt of it, "are mutually exclusive and resort to one bars the application of the other." 175
Rule 4, Section 3(a)(2) of the 2005 Court of Tax Appeals Rules clarifies Section 7(a)(2) of
Republic Act No. 9282 by stating that the "deemed a denial'' rule is only for the "purposes of
allowing the taxpayer to appeal" in case of inaction of the Commissioner and "does not
necessarily constitute a formal decision of the Commissioner." Furthermore, the same provision
clarifies that the taxpayer may choose to wait for the final decision of the Commissioner even
beyond the 180-day period, and appeal from it.
The 2005 Court of Tax Appeals Rules were approved by the Court En Banc on November 22,
2005, in A.M. No. 05-11-07-CTA, pursuant to its constitutional rule-making authority.176 Under
Article VIII, Section 5, paragraph 5 of the 1987 Constitution:
Section 5. The Supreme Court shall have the following powers:
....
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphases supplied)
In Metro Construction, Inc. v. Chatham Properties, Inc.,177 this Court held:

There is no controversy on the principle that the right to appeal is statutory. However, the mode
or manner by which this right may be exercised is a question of procedure which may be altered
and modified provided that vested rights are not impaired. The Supreme Court is bestowed by
the Constitution with the power and prerogative, inter alia, to promulgate rules concerning
pleadings, practice and procedure in all courts, as well as to review rules of procedure of special
courts and quasi-judicial bodies, which, however, shall remain in force until disapproved by the
Supreme Court. This power is constitutionally enshrined to enhance the independence of the
Supreme Court.178 (Citation omitted)
Carpio-Morales v. Court of Appeals179 elucidated that while Congress has the authority to
establish the lower courts, including the Court of Tax Appeals, and to define, prescribe, and
apportion their jurisdiction, the authority to promulgate rules of procedure is exclusive to this
Court:
A court's exercise of the jurisdiction it has acquired over a particular case conforms to the
limits and parameters of the rules of procedure duly promulgated by this Court. In other
words, procedure is the framework within which judicial power is exercised. In Manila Railroad
Co. v. Attorney-General, the Court elucidated that "[t]he power or authority of the court over the
subject matter existed and was fixed before procedure in a given cause began. Procedure does
not alter or change that power or authority; it simply directs the manner in which it shall
be fully and justly exercised. To be sure, in certain cases, if that power is not exercised in
conformity with the provisions of the procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. This does not mean that it loses jurisdiction of the subject
matter."
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. (Emphasis in the original, citations omitted)180
Section 228 of the Tax Code and Section 7 of Republic Act No. 9282 should be read in
conjunction with Rule 4, Section 3(a)(2) of the 2005 Court of Tax Appeals Rules. In other
words, the taxpayer has the option to either elevate the case to the Court of Tax Appeals if the
Commissioner does not act on his or her protest, or to wait for the Commissioner to decide on his
or her protest before he or she elevates the case to the Court of Tax Appeals. This construction is
reasonable considering that Section 228 states that the decision of the Commissioner not
appealed by the taxpayer becomes final, executory, and demandable.
IV
In this case, Avon opted to wait for the final decision of the Commissioner on its protest filed on
May 9, 2003.
This Court holds that the Collection Letter dated July 9, 2004 constitutes the final decision of the
Commissioner that is appealable to the Court of Tax Appeals.181 The Collection Letter dated July
9, 2004 demanded from Avon the payment of the deficiency tax assessments with a warning that
should it fail to do so within the required period, summary administrative remedies would be
instituted without further notice.182 The Collection Letter was purportedly based on the May 27,
2004 Memorandum of the Revenue Officers stating that Avon "failed to submit supporting
documents within 60-day period."183 This Collection Letter demonstrated a character of finality
such that there can be no doubt that the Commissioner had already made a conclusion to deny
Avon's request and she had the clear resolve to collect the subject taxes.
Avon received the Collection Letter on July 14, 2004. Hence, Avon's appeal to the Court of Tax
Appeals filed on August 13, 2004 was not time-barred.
In any case, even if this Court were to disregard the Collection Letter as a final decision of the
Commissioner on Avon's protest, the Collection Letter constitutes an act of the Commissioner on
"other matters" arising under the National Internal Revenue Code, which, pursuant to Philippine
Journalists, Inc. v. CIR,184 may be the subject of an appropriate appeal before the Court of Tax
Appeals.
On a final note, the Commissioner is reminded of her duty enunciated in Section 3.1.6 of
Revenue Regulations No. 12-99 to render a final decision on disputed assessment. Section 228 of
the Tax Code requires taxpayers to exhaust administrative remedies by filing a request for
reconsideration or reinvestigation within 30 days from receipt of the assessment. Exhaustion of
administrative remedies is required prior to resort to the Court of Tax Appeals precisely to give
the Commissioner the opportunity to "re-examine its findings and conclusions"185 and to decide
the Issues raised within her competence.186
Paat v. Court of Appeals187 wrote:
This Court in a long line of cases has consistently held that before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of all the means of
administrative processes afforded him. Hence, if a remedy within the administrative machinery
can still be resorted to by giving the administrative officer concerned every opportunity to decide
on a matter that comes within his jurisdiction then such remedy should be exhausted first before
court's judicial power can be sought. The premature invocation of court's intervention is fatal to
one's cause of action. Accordingly, absent any finding of waiver or estoppel the case is
susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of
administrative remedies was not without its practical and legal reasons, for one thing,
availment of administrative remedy entails lesser expenses and provides for a speedier
disposition of controversies. It is no less true to state that the courts of justice for reasons of
comity and convenience will shy away from a dispute until the system of administrative
redress has been completed and complied with so as to give the administrative agency
concerned every opportunity to correct its error and to dispose of the case.188 (Emphasis
supplied, citations omitted)
Taxpayers cannot be left in quandary by the Commissioner's inaction on the protested
assessment. It is imperative that the taxpayers are informed of the Commissioner's action for
them to take proper recourse to the Court of Tax Appeals at the opportune time.189 Furthermore,
this Court had time and again expressed the dictum that "the Commissioner should always
indicate to the taxpayer in clear and unequivocal language what constitutes his [or her] final
determination of the disputed assessment. That procedure is demanded by the pressing need for
fair play, regularity and orderliness in administrative action."190
While indeed the government has an interest in the swift collection of taxes, its assessment and
collection should be exercised justly and fairly, and always in strict adherence to the
requirements of the law and of the Bureau of Internal Revenue's own rules.
WHEREFORE, the Petition of the Commissioner of Internal Revenue in G.R. Nos. 201398-99
is DENIED. The Petition of Avon Products Manufacturing, Inc. in G.R. Nos. 201418-19
is GRANTED. The remaining deficiency Income Tax under Assessment No. LTAID-II-IT-99-
00018 in the amount of P357,345.88 for taxable year 1999, including increments, is hereby
declared NULL and VOID and is CANCELLED.
SO ORDERED.
Peralta (Chairperson), A. Reyes, Jr., and J. Reyes, Jr., JJ., concur.
Gesmundo, J., on official leave.
December 17, 2018

NOTICE OF JUDGMENT
Sirs / Mesdames:
Please take notice that on October 3, 2018 a Decision, copy attached hereto, was rendered by the
Supreme Court in the above-entitled cases, the original of which was received by this Office on
December 17, 2018 at 10:18 a.m.
Very truly yours,

(SGD.) WILFREDO V. LAPITAN
Division Clerk of Court
THIRD DIVISION
G.R. Nos. 235937-40, July 23, 2018
JOHANNE EDWARD B. LABAY, Petitioner, v. SANDIGANBAYAN, THIRD DIVISION,
AND PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
VELASCO JR., J.:
The Case
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court from the
Resolutions dated July 10, 20171 and October 19, 20172 of the Sandiganbayan, Third Division in
Criminal Case Nos. SB-17-CRM-0642 to 0643 and Criminal Case Nos. SB-17-CRM-0644 to
0645. The first assailed resolution denied petitioner's motion for reinvestigation, among others,
while the second assailed motion denied petitioner's motion for partial reconsideration of the first
assailed resolution.
The Facts
The case arose from the complaint dated May 11, 2015 filed by the Field Investigation Office I
(FIO I) of the Office of the Ombudsman against petitioner Johanne Edward B. Labay (Petitioner
Labay) for his participation in the alleged anomalous utilization of the Priority Development
Assistance Fund (PDAF) of former Representative of the 1st District of Davao del Sur, Marc
Douglas C. Cagas IV (Rep. Cagas IV). The complaint was for violation of Article 217
(Malversation of Public Funds or Property), Article 171 (Falsification of Public Documents),
paragraphs (1), (2), (4), and (7), Article 217 in relation to Article 171 (Malversation thru
Falsification of Public Documents), all of the Revised Penal Code (RPC), as well as Section 3,
paragraphs (a) and (e) of Republic Act (R.A.) No. 3019, as amended. The case was docketed as
OMB-C-C-15-0152.3
The complaint alleged that Rep. Cagas IV, in conspiracy with other public officials and private
individuals such as petitioner Labay, through the Technology Resource Center (TRC), sought the
release and transfer of his PDAF in the total amount of Php6,000,000.00 to Farmer-business
Development Corporation (FDC), which was led by its then president, herein petitioner Labay.
However, upon field verification conducted by the FIO I, it appears that the livelihood projects
funded by Rep. Cagas IV's PDAF were never implemented and were considered to be "ghost
projects."4
In a Joint Order dated September 1, 2015, the Ombudsman directed respondents to file their
respective counter-affidavits.5 Several respondents filed their respective counter-affidavits.
However, copies of this Order could not be served on petitioner Labay.6
According to the Ombudsman, it exerted diligent efforts to serve copies of the September 1,
2015 Joint Order on petitioner Labay through his office and at his last known address. However,
the copies were returned unserved because he was no longer employed in that office and he was
unknown at the given residential address. As such, the Ombudsman proceeded with the
preliminary investigation without any counter-affidavit or participation from petitioner Labay.7
In a Resolution dated May 10, 2016,8 the Ombudsman found probable cause to indict Rep. Cagas
IV and his co-respondents, including petitioner Labay, for conspiracy in the commission of two
counts of Violation of Section 3(e) of RA 3019, one count of Malversation of Public Funds, and
one count of Malversation thru Falsification.
Petitioner alleges that it was unknown to him that preliminary investigations for the charges
against him were being conducted by the Ombudsman. According to him, it was only sometime
in October 2016 that he learned of the cases when his daughter, Atty. Jo Blanca P.B. Labay,
came across the press releases of the Ombudsman wherein petitioner was mentioned as among
those who are facing charges.9
On October 3, 2016, Atty. Labay, on behalf of her father, attempted to secure information on the
cases from the Central Records of the Ombudsman, but she was advised to submit a written
request. Accordingly, Atty. Labay sent the Ombudsman a letter dated October 4, 2016 in
compliance with the said directive.10
In a letter dated October 10, 2016, the Ombudsman replied to Atty. Labay's request and served
on her copies of its May 10, 2016 Resolution. At the same time, the Ombudsman directed Atty.
Labay to file a motion for reconsideration of the said Resolution within five days from receipt
thereof.11
Accordingly, petitioner, through Atty. Labay, filed an Omnibus Motion for Reinvestigation and
Deferment of Filing of Information with Request for Copies of Complaint-Affidavit and
Supporting Documents dated November 16, 2016.12 In said Omnibus Motion, petitioner prayed
that the Ombudsman conduct a reinvestigation on his alleged participation in the crimes charged
and take into consideration his answer and counter-evidence which he would present. He pointed
out that he had neither been notified that a complaint had been filed against him nor was
furnished a copy of the same. Thus, he argued that he was not afforded an opportunity to present
his defense and to participate during the preliminary investigation. More importantly, petitioner
prayed that he be furnished copies of the complaint-affidavit and other supporting documents
and that he be given time to gather his evidence and submit his answer to the complaint. At the
same time, he prayed for the deferment of the filing of any charges against him arising out of the
May 10, 2016 Resolution pending the reinvestigation of the case.13
In its Order dated November 25, 2016,14 the Ombudsman denied petitioner Labay's Omnibus
Motion, ruling thus:
This Office had exerted diligent efforts to serve on Labay copies of the 1 September 2015 Order
directing him to submit his counter-affidavit and the 10 May 2016 Resolution finding him
probably guilty of the charges. The same were sent to his office and at his last known address
and were returned unserved because he was no longer employed in that office, or was unknown
at the given address. There was sufficient compliance with due process.
The filing by Labay of the Omnibus Motion for Reinvestigation on 16 November 2016 cured
whatever defect in the observance of due process. Denial of due process cannot he success. fully
invoked by a party who has had the opportunity to be heard on his motion for reconsideration.
WHEREFORE, this Office, through the undersigned, DENIES respondents Marc Douglas C.

Cagas IV's Motion for Reconsideration dated 10 August 2016; Maria Rosalinda M.
Lacsamana's Motion for Reconsideration dated 08 August 2016; Consuela Lilian R.
Espiritu's Motion for Reconsideration dated 10 August 2016; Marivic V. Jover's Motion for
Reconsideration dated 13 September 2016; and Johanne Edward B. Labay's Motion for
Reinvestigation and Deferment of Filing of Information with Request for Copies of Complaint-
Affidavits and Supporting Documents dated 16 November 2016.
All indictments against them, as originally embodied in the Resolution dated 10 May
2016, STAND.
SO ORDERED.15 (Emphasis in the original)

Dissatisfied with this ruling, petitioner Labay filed an Omnibus Motion for Reconsideration (of
the Order dated 25 November 2016) and Deferment of Filing of Information with Reiterative
Request for Copies of Complaint-Affidavit and Supporting Documents dated January 30,
2017.16 Petitioner essentially reiterated his arguments in his first omnibus motion, but added that
the filing of the said omnibus motion did not cure the defects in the Ombudsman's failure to
observe due process.17
The Ombudsman treated this second Omnibus Motion as a second motion for reconsideration
and denied the same for lack of merit in its Order dated February 1, 2017.18
On March 24, 2017, the Ombudsman filed four (4) Informations before the Sandiganbayan
against petitioner Labay and his co-accused.19
It was only on March 28, 2017, four days after the Informations had already been filed with the
Sandiganbayan, that petitioner Labay was furnished a copy of the Complaint-Affidavit and its
supporting evidence.20
On April 4, 2017, petitioner Labay received copies of the Informations filed by the Ombudsman
with the Sandiganbayan. Immediately thereafter, on April 5, 2017, petitioner Labay filed an
Extremely Urgent Motion of even date, arguing that he is entitled to a reinvestigation of the case
to prevent injustice against him brought about by the wrongful filing of charges without
affording him his right to a complete preliminary investigation.21
Ruling of the Sandiganbayan
In the assailed Resolution dated July 10, 2017, the Sandiganbayan denied petitioner's motion, the
dispositive portion of which reads:
WHEREFORE, the Court -

(1) DECLARES the existence of probable cause in these cases. Accordingly, let warrants of
arrest be issued against all the accused except for accused Marc Douglas Chan Cagas IV who
had already posted bail;
(2) NOTES the Urgent Motion for Judicial Determination of Probable Cause With Entry of
Appearance dated April 4, 2017, filed by accused Marc Douglas Chan Cagas IV; and
the Motion To Set Aside No Bail Recommendation in Crim Case No. SB-17-CRM-0644 for
Malversation Through Falsification and To Fix the Amount of Bail in Crim Case No. SB-17-
CRM-0644 for Malversation Through Falsification filed by accused Johanne Edward B.
Labay; and
(3) DENIES the Motion For Reinvestigation and To Defer the Issuance of Warrants of

Arrest filed by accused Johanne Edward B. Labay for lack of merit.
SO ORDERED.22
Aggrieved, petitioner filed a Motion for Partial Reconsideration23 dated August 3, 2017.
However, this was denied for lack of merit and for being pro forma in the second assailed
Resolution dated October 19, 2017.24
Hence, this Petition for Certiorari.

The Petition
In the present petition, petitioner prays for the (1) issuance of a temporary restraining order
and/or writ of injunction; (2) nullification and setting aside of the assailed Resolutions; (3)
remand of the case to the Office of the Ombudsman for a reinvestigation of petitioner; and (4)
suspension of the criminal proceedings with respect to petitioner Labay, pending the resolution
of the reinvestigation before the Office of the Ombudsman.
Petitioner argues that the Sandiganbayan committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it denied him the constitutional right to due process by denying his
prayer for a reinvestigation. Essentially, petitioner argues that he was not accorded a reasonable
opportunity to be heard since he could not have effectively and intelligently moved for the
reconsideration of the Ombudsman's May 10, 2016 Resolution due to the latter's failure to
furnish him with a copy of the complaint affidavit and its attachments upon which the resolution
was based.
In a Resolution25 dated March 21, 2018, this Court required respondent to file its Comment on
the Petition and at the same time issued a temporary restraining order enjoining respondent
Sandiganbayan to suspend the criminal proceedings against petitioner Labay.
On April 2, 2018, the People of the Philippines represented by the Office of the Ombudsman,
through its counsel, the Office of the Special Prosecutor (OSP), filed an Entry of Appearance
with Comment and Motion to Dissolve the Temporary Restraining Order Issued on 21 March
2018.26 It claimed that the Sandiganbayan did not act with grave abuse of discretion in denying
petitioner Labay's Motion for Partial Reconsideration. It argued that there was no violation of his
constitutional right to due process
considering that he was given the opportunity to present countervailing evidence through the
Ombudsman's effort to issue subpoenas at his last known addresses, especially since the
government substantially complied with the requirements of the law in doing so.27
Aside from the effort exerted in issuing subpoenas, the OSP contended that petitioner Labay was
eventually informed of the nature of the accusations against him when he was furnished a copy
of the Ombudsman's May 10, 2016 Resolution, in response to which he was able to file an
omnibus motion. It further maintains that petitioner Labay had the opportunity to refute the
charges against him and present any countervailing evidence he may have, but faults him for
hiding on technicalities and insisting that he was denied due process without presenting any
evidence to support his claim of having a valid and meritorious defense. In other words, the OSP
asserted that petitioner Labay was afforded due process when he filed two motions seeking
reinvestigation and reconsideration of the Ombudsman's rulings.28
From the arguments presented by the parties, the Court is now faced with the issue of whether
the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying petitioner Labay's motion for reinvestigation and ruling that he was not
deprived of due process.
The Court's Ruling
The petition is meritorious.
After a judicious review of the records of the case, the Court finds that petitioner's constitutional
right to due process was violated when he was not furnished a copy of the complaint affidavit
and its attachments during the preliminary investigation.
Section 1, Article III of the 1987 Constitution guarantees the right of every person to due process
before they are deprived of their life, liberty, or property. Due process in criminal prosecutions is
further emphasized under Section 14, Article III which provides that no person shall be held to
answer for a criminal offense without due process of law. The same provision also states that the
accused shall be presumed innocent until the contrary is proved and shall enjoy the right to be
informed of the nature and cause of the accusation against him.
Criminal due process requires that the procedure established by law or the rules be followed to
assure that the State makes no mistake in taking the life or liberty except that of the guilty. All
the necessary measures must be taken to guarantee procedural due process throughout all stages
of a criminal prosecution-from the inception of custodial investigation until rendition of
judgment.29
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof, and should be held for trial.30
The right to have a preliminary investigation conducted before being bound over to trial for a
criminal offense and be formally at risk of incarceration or some other penalty is not a mere
formal or technical right. It is a substantive right since the accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense, and the right to
an opportunity to avoid a painful process is a valuable right.31 It is meant to secure the innocent
against hasty, malicious and oppressive prosecution and to protect him from an open and public
accusation of a crime, from the trouble, expenses and anxiety of a public trial. It is also intended
to protect the state from having to conduct useless and expensive trials. Indeed, to deny a
person's claim to a preliminary investigation would be to deprive him the full measure of his
right to due process.32
Administrative Order (A.O.) No. 07 otherwise known as the Rules of Procedure of the Office of
the Ombudsman (Ombudsman Rules of Procedure) lays down the procedure to be followed in
handling preliminary investigations of criminal complaints brought before the Ombudsman for
offenses in violation of R.A. 3019, as amended, R.A. 1379 as amended, R.A. 6713, Title VII,
Chapter II, Section 2 of the Revised Penal Code, and for such other offenses committed by
public officers and employees in relation to their office.33 It provides:
Section 3. Preliminary investigation; who may conduct. Preliminary Investigation may be
conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary investigations or
5) Lawyers in the government service, so designated by the Ombudsman.
Section 4. Procedure - The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section
3, Rule 112 of the Rules of Court, subject to the following provisions:
complaints.
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant may
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondents desire any matter in the complainant's
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or having
been served, does not comply therewith, the complaint shall be deemed submitted for resolution
on the basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the opportunity to be present but
without the right to examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the investigating officer or a
party shall be reduced into writing and served on the witness concerned who shall be required to
answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of
the proper Deputy Ombudsman in all other cases.
Section 3, Rule 112 of the Revised Rules of Criminal Procedure also provides similar guidelines
in the conduct of preliminary investigation, to wit:
Section 3. Procedure. - The preliminary investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the
establish probable cause. They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at
his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of there questing party.
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits
copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without th. right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be terminated
within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial. (3a)
It is clear from the foregoing that an accused in a criminal case has the right to be informed of
the charges against him,34 to submit a counter affidavit, and to have access to and examine all
other evidence submitted by the complainant.35
In the case before Us, a complaint was filed by the FIO I of the Office of the Ombudsman
against petitioner Labay for representing the Farmerbusjness Development Corporation (FDC) in
the alleged anomalous utilization of the PDAF of Rep. Cagas IV.36 The Ombudsman directed
those charged to file their respective counter-affidavits,37 but copies of this Order could not be
served on petitioner Labay.38 It appears that the Ombudsman attempted to serve copies of the
September 1, 2015 Joint Order on petitioner Labay at his office at the National Anti-Poverty
Commission (NAPC) and at his last known residence. However, the copies were returned
unserved because he was no longer employed in that office and he was unknown at the given
residential address. As such, the Ombudsman proceeded with the preliminary investigation
without any counter-affidavit or participation from petitioner Labay.39
Thereafter, the Ombudsman found probable cause to indict petitioner and his co-respondents for
conspiracy in the commission of two counts of Violation of Section 3(e) of RA 3019, one count
of Malversation of Public Funds, and one count of Malversation thru Falsification.
Upon learning from press releases of the Ombudsman about the criminal charges against
him,40 petitioner Labay, through his daughter, Atty. Labay, attempted to secure information on
the cases from the Central Records of the Ombudsman. Upon being advised to submit a written
request, Atty. Labay sent the Ombudsman a letter dated October 4, 2016 in compliance with the
said directive.41 In response to Atty. Labay's letter request, the Ombudsman replied to Atty.
Labay's request through a letter dated October 10, 2016 and served on her copies of its May 10,
2016 Resolution. In the letter, the Ombudsman directed Atty. Labay to file a motion for
reconsideration of the said Resolution within five days from receipt thereof.42
Petitioner filed an Omnibus Motion for Reinvestigation and Deferment of Filing of Information
with Request for Copies of Complaint-Affidavit and Supporting Documents dated November 16,
2016,43 praying, among others, that a reinvestigation be conducted on his behalf, asserting that he
was not afforded an opportunity to present his defense and to participate during the preliminary
investigation since he had neither been notified that a complaint had been filed against him nor
was furnished a copy of the same. Petitioner also prayed that he be furnished copies of the
complaint-affidavit and other supporting documents and that he be given time to gather his
evidence and submit his answer to the complaint.44 However, the Ombudsman denied petitioner
Labay's Omnibus Motion, ruling that his right to due process had not been violated since he had
the opportunity to be heard when he filed the Omnibus Motion.45
Aggrieved, petitioner Labay filed another Omnibus Motion essentially reiterating his arguments
in his first omnibus motion, but additionally argued that the filing of the first omnibus motion did
not cure the defects in the Ombudsman's failure to observe due process when it failed to serve on
him copies of the complaint affidavit.46 The Ombudsman treated this second Omnibus Motion as
a second motion for reconsideration and denied the same for lack of merit in its Order dated
February 1, 2017.47
Thereafter, on March 24, 2017, the Ombudsman filed four (4) Informations before the
Sandiganbayan against petitioner Labay and his co-accused.48 It was only on March 28, 2017 that
petitioner Labay was furnished a copy of the Complaint-Affidavit and its supporting evidence.49
Upon receiving copies of the Informations filed by the Ombudsman, petitioner Labay
immediately filed an Extremely Urgent Motion with the Sandiganbayan arguing that he is
entitled to a reinvestigation of the case to prevent injustice against him brought about by the
wrongful filing of charges without affording him his right to a complete preliminary
investigation.50
The Sandiganbayan, however, sustained the Ombudsman's position in the assailed Resolution
dated July 10, 2017, ruling that petitioner's right to due process was not violated since he was
afforded reasonable opportunity to address the charges against him when he filed two motions
with the Ombudsman. The Sandiganbayan ruled, thus:
The Court finds accused Labay's motion for reinvestigation bereft of merit.
The essence of due process is that a party is afforded a reasonable opportunity to be heard in
support of his case. What the law abhors and prohibits is the absolute absence of the opportunity
to be heard. When the party seeking due process was in fact given several opportunities to be
heard and to air his side, but it was by his own fault or choice that he squandered these chances,
then his cry for due process must fail.
Admittedly, there is no showing that accused Labay was served a copy of the order requiring
him to file his counter-affidavit. The record shows, however, that on October 4, 2016, accused
Labay wrote the Office of the Ombudsman requesting information on case numbers and titles of
the cases it referred to in its press release where his name appears. In reply to the said letter, the
Office of the Ombudsman confirmed that accused Labay is a respondent in two (2) cases and
furnished him copies of the Resolutions dated May 10, 2016 and June 3, 2016. It also reminded
accused Labay that he has five (5) days from notice within which to file a motion for
reconsideration.
Thus, on November 16, 2016, accused Labay filed a Motion for Reinvestigation and Deferment
of Filing of Information with Request for Copies of Complaint-Affidavits and Supporting
Documents assailing the Office of the Ombudsman's Resolution dated May 10, 2016, finding
probably cause to indict him. The said motion was denied by the Office of the Ombudsman in its
Order dated November 25, 2016 upon the following ratiocination:
xxxx
Thereafter, accused Labay filed an Omnibus Motion for Reconsideration and Deferment of
Filing of Information assailing the above order. In denying the said motion, the Office of the
Ombudsman pointed out that while accused Labay asserted that he did not commit the crimes
imputed to him and that he did not participate in any conspiracy in the commission of the crimes,
he prayed that the Office of the Ombudsman conduct a reinvestigation, furnish him a copy of the
complaint, allow him to gather evidence and submit counter-affidavit. Further, the Office of the
Ombudsman held that when accused Labay filed his second motion, he already exhausted his
remedy under Section 7(a), Rule II of the Rules of Procedure of the Office of the Ombudsman
which allows the filing of only one (1) motion for reconsideration or reinvestigation.
The above circumstances unerringly show that accused Labay was accorded due process by
filing two (2) motions before the Office of the Ombudsman.
We disagree.
There is no dispute that the Ombudsman was unable to serve copies of the complaint or of its
September 1, 2015 Joint Order on petitioner Labay prior to or even during the preliminary
investigation of the case. This was never denied by the OSP in its Comment, stating thus:
20. By Joint Order dated 01 September 2015, the Office of the Ombudsman directed therein
respondents (including Labay) to file their respective counter-affidavits.
21. Despite earnest efforts, copies of the Joint Order could not be served in the last known or
given addresses of Cunanan, Semillano, Carrasco, Reyes, and herein petitioner Labay, after
they have been noted to be unknown in said addresses, or had moved out and left no forwarding
address.51 (emphasis in the original)
As pointed out by petitioner, the Ombudsman only tried to effect service of the order to file his
counter affidavit on petitioner on one instance, albeit to two different addresses. However, this
service failed since petitioner was no longer employed at his former office at NAPC, as
confirmed by the letter sent by the NAPC Secretary and Lead Convenor, and since he was no
longer residing at the residential address where the order was sent.
In its Comment, the OSP seeks refuge in paragraph (e), Section 4 of the Ombudsman Rules of
Procedure which provides that in cases where the respondents cannot be served with the order to
file their counter-affidavit, or having been served but does not comply therewith, the complaint
shall be deemed submitted for resolution on the basis of the evidence on the record.
While the Ombudsman was correct in resolving the complaint based on the evidence presented in
accordance with Paragraph (e), Section 4 of the Ombudsman Rules of Procedure, the situation,
however, effectively changed when petitioner made himself available to the Ombudsman when
he requested access to the case records. The Ombudsman had a clear opportunity to furnish
petitioner with copies of the complaint affidavit and its supporting documents. Instead, it merely
decided to furnish petitioner with a copy of its May 10, 2016 Resolution.
Even assuming that the Ombudsman was merely complying with Atty. Labay's request for
information when it responded with the case titles and docket numbers of the cases pending
against petitioner Labay, it should have exercised its duty to inform petitioner of the charges
filed against him by furnishing him copies of the complaint affidavit and its supporting
documents. Or at the very least, it should have directed and allowed petitioner to access these
records at its office. This, however, was not done by the Ombudsman.
We also cannot subscribe to the Sandiganbayan's justification that petitioner was afforded
reasonable opportunity to address the charges against him since he was able to file a motion for
reinvestigation with the Ombudsman. By the mere fact that petitioner was not yet even furnished
a copy of the complaint affidavit at the time he received the Ombudsman's May 10, 2016
Resolution, it is clear that he could not effectively and sufficiently address the allegations against
him. Petitioner Labay should not be blamed for being unable to raise any substantive defense in
either the omnibus motions he filed with the Ombudsman since he had not even seen any of the
allegations filed against by the FIO. More importantly, he could not have been expected to seek
appropriate evidence to support his defense when he was not even given any access to the
documents submitted by the FIO in support of its complaint.
In fact, the violation of petitioner's constitutional right to due process is made even more evident
when the Ombudsman unceremoniously denied his request to be furnished copies of the
complaint affidavit and its supporting documents in the first omnibus motion that he filed, and
reiterated in his second omnibus motion. In both orders denying the two omnibus motions, the
Ombudsman seemingly ignored petitioner's requests and effectively denied petitioner of his right
to secure copies of the complaint affidavit. This should not be tolerated.
Unfortunately, the Sandiganbayan committed grave abuse of discretion when it failed to grant
petitioner Labay's Extremely Urgent Omnibus Motion despite the glaring violations committed
by the Ombudsman. The Sandiganbayan should have recognized these patent violations and
ordered the remand of the case to the Ombudsman for the conduct of a proper preliminary
investigation with respect to petitioner Labay's participation in the crimes charged. Instead, it
chose to turn a blind eye towards the injustice committed against petitioner.
Time and again, the Court has held that suppression of evidence, regardless of its nature, is
enough to violate the due process rights of the accused.52 In the present case, it was not only the
prosecution's evidence which was withheld from petitioner. In denying petitioner Labay's
multiple requests for copies of the complaint affidavit, the Ombudsman deprived him of his right
to sufficiently and reasonably know the charges and accusations against him. This is a patent
violation of his constitutional right to due process.
In Duterte v. Sandiganbayan,53 this Court ordered the dismissal of the criminal case against the
accused when they were not sufficiently apprised of the charges against them during preliminary
investigation, thus:
We have judiciously studied the case records and we find that the preliminary investigation of
the charges against petitioners has been conducted not in the manner laid down in Administrative
Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were merely
directed to submit a point-by-point comment under oath on the allegations in Civil Case No.
20,550-91 and SAR No. 91-05. The said order was not accompanied by a single affidavit of any
person charging petitioners of any offense as required by law. They were just required to
comment upon the allegations in Civil Case No. 20,550-91 of the Regional Trial Court of Davao
City which had earlier been dismissed and on the COA Special Audit Report. Petitioners had no
inkling that they were being subjected to a preliminary investigation as in fact there was no
indication in the order that a preliminary investigation was being conducted. If Graft Investigator
Manriquez had intended merely to adopt the allegations of the plaintiffs in the civil case or the
Special Audit Report (whose recommendation for the cancellation of the contract in question had
been complied with) as his basis for criminal prosecution, then the procedure was plainly
anomalous and highly irregular. As a consequence, petitioners constitutional right to due process
was violated. (citations omitted)
While the Duterte case is not on all fours with the case before Us, We find that the Ombudsman's
failure to furnish petitioner Labay with copies of the complaint affidavit and its supporting
documents despite the latter's numerous attempts and requests to secure the same is more severe
as it gravely endangers petitioner's right to liberty through no fault of his own. Undeniably,
petitioner Labay's receipt of the May 10, 2016 Resolution is not equivalent to receipt of the
complaint affidavit and its supporting documents.
The OSP's assertion in its comment that petitioner deliberately evaded the Ombudsman's
attempts to serve its orders on him is purely hypothetical and is not supported by any concrete
proof. There is also no merit in the OSP's position that it was incumbent on petitioner Labay to
justify his whereabouts during the time that the Ombudsman was attempting service of the
subpoena on him since no law or regulation requires an accused in a preliminary investigation to
submit himself to the Ombudsman or at the very least update the latter of his latest address. The
burden should not be placed on the accused since it is the State which has the responsibility to
use its resources for the proper implementation of the law. To rule otherwise would effectively
curtail the constitutionally protected rights of the people to be secure with their life, liberty and
property.
WHEREFORE, the petition is GRANTED. The Resolutions dated July 10, 2017 and October
19, 2017 issued by the Sandiganbayan, Third Division in Criminal Case Nos. SB-17-CRM-0642
to 0643 and Criminal Case Nos. SB-17-CRM-0644 to 0645 are hereby ANNULLED and SET
ASIDE. The Office of the Special Prosecutor is ORDERED to file motions to withdraw
Information in the aforedescribed criminal cases.
SO ORDERED.
Bersamin, Martires, and Gesmundo, JJ., concur.

Leonen, J., see dissenting opinion.
August 15, 2018
NOTICE OF JUDGMENT
Sirs / Mesdames:
Please take notice that on July 23, 2018 a Decision, copy attached hereto, was rendered by the
Supreme Court in the above-entitled case, the original of which was received by this Office on
August 15, 2018 at 10:20 a.m.
Very truly yours,
(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court

SUPREME COURT
Manila
EN BANC
G.R. No. 211362 February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the Philippine Military Academy,
represented by his father RENATO P. CUDIA, who also acts on his own behalf, and
BERTENI CATALUNA CAUSING, Petitioners,
vs.
THE SUPERINTENDENT OF THE PHILIPPINE MILITARY ACADEMY (PMA), THE
HONOR COMMITTEE (HC) OF 2014 OF THE PMA and HC MEMBERS, and the
CADET REVIEW AND APPEALS BOARD (CRAB), Respondents.
x-----------------------x
FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS ALDRIN JEFF P. CUDIA, and
on her own behalf, Petitioner-Intervenor.
DECISION
PERALTA, J.:
The true test of a cadet's character as a leader rests on his personal commitment to uphold what is
morally and ethically righteous at the most critical and trying times, and at the most challenging
circumstances. When a cadet must face a dilemma between what is true and right as against his
security, well-being, pleasures and comfort, or dignity, what is at stake is his honor and those
that [define] his values. A man of an honorable character does not think twice and chooses the
fore. This is the essence of and. the Spirit of the Honor Code - it is championing truth and
righteousness even if it may mean the surrender of one's basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation ceremonies of the Philippine Military Academy
(PMA), petitioners Renato P. Cudia, acting for himself and in behalf of his son, Cadet First Class
Aldrin Jeff P. Cudia (Cadet JCL Cudia), and Berteni Catalufta Causing filed this petition for
certiorari, prohibition, and mandamus with application for extremely urgent temporary
restraining order (TRO).2
In a Resolution dated March 1 7, 2014, the Court denied the prayer for TRO and instead,
required respondents to file their comment on the petition.3
On March 25, 2014, Filipina P. Cudia, acting for herself and in behalf of her son Cadet 1 CL
Cudia, filed a motion for leave to intervene, attaching thereto the petition-in-intervention.4 Per
Resolution dated March 31, 2014, the Court granted the motion and resolved to await
respondents' comment on the petition.5
A manifestation was then filed by petitioners on April 3, 2014, recommending the admission of
the petition-in-intervention and adopting it as an integral part of their petition.6 On May 20,
2014, petitioner-intervenor filed a manifestation with motion for leave to admit the Final
Investigation Report of the Commission on Human Rights (CHR) dated April 25, 2014.7 The
Report8 was relative to CHR-CAR Case No. 2014-0029 filed by the spouses Renato and Filipina
Cudia (Spouses Cudia), for themselves and in behalf of their son, against the PMA Honor
Committee (HC) members and Major Vladimir P. Gracilla (Maj. Gracilla)9 for violation of
Cadet lCL Cudia's rights to due process, education, and privacy of communication.
Subsequently, on June 3, 2014, petitioners filed a motion for leave to adopt the submission of the
CHR Report.10 The manifestation was granted and the motion was noted by the Court in its
Resolution dated July 7, 2014.
After filing three motions for extension of time,11 respondents filed their Consolidated
Comment12 on June 19, 2014. In a motion, petitioner-intervenor filed a Reply, which was later
adopted by petitioners.13 Submitted as Annex "A" of the Reply was a copy of the CHR
Resolution dated May 22, 2014 regarding CHR-CAR Case No. 2014-0029.14 We noted and
granted the same on August 11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with motion to submit the case for early
resolution,15 which the Court noted in a Resolution dated August 11, 2014 and October 3, 2014.16
The Facts
Cadet 1 CL Cudia was a member of Siklab Diwa Class of 2014 of the PMA, the country's
premiere military academy located at Fort Gregorio del Pilar in Baguio City. He belonged to the
"A" Company and was the Deputy Baron of his class. As claimed by petitioners and petitioner-
intervenor (hereinafter collectively called "petitioners," unless otherwise indicated), he was
supposed to graduate with honors as the class salutatorian, receive the Philippine Navy Saber as
the top Navy cadet graduate, and be commissioned as an ensign of the Philippine Navy.
On November 14, 2013, the combined classes of the Navy and Air Force 1 CL cadets had a
lesson examination (LE) on Operations Research (OR432) under Dr. Maria Monica C. Costales
(Dr. Costales) at the PMAFI Room. Per published schedule from the Headquarters Academic
Group, the 4th period class in OR432 was from 1 :30-3:00 p.m. (1330H-1500H), while the 5th
period class in ENG412 was from 3:05-4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the 5th period class issued a
Delinquency Report (DR) against Cadet 1 CL Cudia because he was "[/]ate for two (2) minutes
in his Eng 412 class x x x. "17 Cadets 1 CL Narciso, Arcangel, Miranda, Pontillas, Diaz, Otila,
and Dela Cruz were also reported late for five minutes.18
On December 4, 2013, the DRs reached the Department of Tactical Officers. They were logged
and transmitted to the Company Tactical Officers ( CTO) for explanation of the concerned
cadets. Two days later, Cadet lCL Cudia received his DR.
In his Explanation of Report dated December 8, 2013, Cadet lCL Cudia reasoned out that: "I
came directly from OR432 Class. We were dismissed a bit late by our instructor Sir."19
On December 19, 2013, Major Rommel Dennis Hindang (Maj. Hindang), the CTO of Cadet 1
CL Cudia, meted out to him the penalty of 11 demerits and 13 touring hours. Immediately, Cadet
lCL Cudia clarified with Maj. Hindang his alleged violation. The latter told him that the basis of
the punishment was the result of his conversation with Dr. Costales, who responded that she
never dismissed her class late, and the protocol to dismiss the class 10-15 minutes earlier than
scheduled. When he expressed his intention to appeal and seek reconsideration of the
punishment, he was · advised to put the request in writing. Hence, that same day, Cadet 1 CL
Cudia addressed his Request for Reconsideration of Meted Punishment to Maj. Benjamin L.
Leander, Senior Tactical Officer (STO), asserting:
I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H
and our 5th period class, which is ENG412, started 1500H also. Immediately after 4t period
class, I went to my next class without any intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give his comments on the request of Cadet
1 CL Cudia and to indicate if there were other cadets belonging to the same section who were
also late.
On December 28, 2013, Maj. Hindang submitted his reply to Maj. Leander pointing out that,
based on his investigation, the 4th period class was not dismissed late. As a result, Maj. Leander
sustained the penalty imposed. Petitioners alleged that Cadet 1 CL Cudia came to know of the
denial of his request only on January 24, 2014 upon inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet lCL Cudia was informed that Maj. Hindang
reported him to the HC21 for violation of the Honor Code. The Honor Report stated:
Lying that is giving statement that perverts the truth in his written appeal, stating that his 4th
period class ended at l 500H that made him late in the succeeding class.22
Upon asking the HC Chairman, Cadet 1 CL Mike Anthony P. Mogol (Cadet 1 CL Mogol), as to
what Maj. Hindang meant in his Report, Cadet lCL Cudia learned that it was based on Maj.
Hindang's conversations with their instructors and classmates as well as his statement in the
request for reconsideration to Maj. Leander. He then verbally applied for and was granted an
extension of time to answer the charge against him because Dr. Costales, who could shed light
on the matter, was on emergency leave.
On January 13, 2014, Dr. Costales sent text messages to Cadet lCL Cudia, conveying:
Gud pm cdt cudia. Mam belandres gave me bkground na. She told me its a report dated
november. When maj hindang ask me, no time referens. (04:25:11 P.M.)
All the while I thot he was refering to dismisal during last day last december. Whc i told, i wud
presume they wil finish early bee its grp work. (04:29:21 P.M.)23
The next day, Cadets lCL Cudia and Arcangel approached Dr. Costales, who reaffirmed that she
and Maj. Hindang were not in the same time reference when the latter asked her.
Later, Cadet 1 CL Cudia submitted his letter of explanation on the Honor Report. He averred:
Sir, We had an LE that day (14 November 2013) in OR432 class. When the first bell rang
(1455), I stood up, reviewed my paper and submitted it to my instructor, Ms. Costales. After
which, I and Cadet lcl Arcangel asked for some query with regards (sic) to the deductions of our
previous LE. Our instructor gladly answered our question. She then told me that she will give the
copy of our section grade, so I waited at the hallway outside the ACAD5 office, and then she
came out of the room and gave me a copy of the grades. Cadet Arcangel, Cadet Narciso and I
immediately went to our 5ti period class which is ENG412.
With these statements, I would like to clarify the following:
1. How could this be lying?
2. What is wrong with the side of Maj. Hindang (why did he come up to that honor report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my case be reopened and carefully
reviewed for I did not violate the honor code/system, I can answer NO to both questions (Did I
intend to deceive? Did I intend to take undue advantage?) and for the following reasons:
1. The honor report of Maj. Hindang was already settled and finalized given the fact that no face-
to-face personal conversation with Ms. Costales was conducted to clarify what and when exactly
was the issue at hand.
2. Statements of the respondents support my explanation.
3. My explanation to my appeal to my DR (Request for reconsideration of meted punishment)
further supports my explanation in my delinquency report.
4. My understanding of the duration of the "CLASS" covers not just a lecture in a typical
classroom instruction but includes every transaction and communication a teacher does with her
students, especially that in our case some cadets asked for queries, and I am given instruction by
which (sic) were directly related to our CLASS. Her transaction and communication with our
other classmates may have already ended but ours extended for a little bit.
I agree and consider that because Cadet CUDIA is under my instruction to wait, and the other
cadets still have business with me, it is reasonable enough for him to say that "Our class was
dismissed a bit late" (dealing with matter of seconds or a minute particularly 45 seconds to 1
minute and 30 seconds)
And with concern to (sic) OR432 class, I can say it ended on time (1500H).
(signed)
M COSTALES
w/ attached certification
5. I was transparent and honest in explaining the 2-minute delay and did not attempt to conceal
anything that happened or I did.
6. Furthermore, CPT DULA WAN PA, the Tactical Officer of Hawk Company[,] and I had a
conversation with regards (sic) to the same matter for which he can give important points of my
case.
7. Cadet lcl DIAZ "D" Co can also stand as a witness that I waited for Ms. Costales. 24
On January 15, 2014, the HC constituted a team to conduct a preliminary investigation on the
reported honor violation of Cadet 1 CL Cudia. The Foxtrot Company was designated as the
investigating team and was composed of Cadet 1 CL Hasigan as Presiding Officer, and Cadets 1
CL Mogol, lCL Raguindin, 2CL Gumilab, 2CL Saldua, 3CL Espejo, and 3CL Poncardas as
members.25 Soon after, the team submitted its Preliminary Investigation Report recommending
that the case be formalized.
The formal investigation against Cadet 1 CL Cu di a then ensued. The Presiding Officer was
Cadet 1 CL Rhona K. Salvacion, while the nine (9) voting members were Cadets lCL Jairus 0.
Fantin, lCL Bryan Sonny S. Arlegui, 1 CL Kim Adrian R. Martal, 1 CL J eanelyn P. Cabrido, 1
CL ShuAydan G. Ayada, 1 CL Dalton John G. Lagura, 2CL Renato A. Carifio, Jr., 2CL Arwi C.
Martinez, and 2CL Niko Angelo C. Tarayao.26 Acting as recorders tasked to document the entire
proceedings were 4CL Jennifer A. Cuarteron and 3CL Leoncio Nico A. de Jesus 11.27 Those who
observed the trial were Cadets 1 CL Balmeo, Dag-uman, Hasigan, Raguindin, Paulino, Arcangel,
and Narciso; Cadets 2CL Jocson and Saldua, Jr.; and Cadet 3CL Umaguing.28
The first formal hearing started late evening of January 20, 2014 and lasted until early morning
the next day. Cadet lCL Cudia was informed of the charge against him, as to which he pleaded
"Not Guilty." Among those who testified were Cadet 1 CL Cudia, Maj. Hindang, and Cadets 1
CL Arcangel and Narciso. On the second night of the hearing held on January 21, 2014, Cadet 1
CL Cudia again appeared and was called to the witness stand along with Cadets Brit and
Barrawed. Dr. Costales also testified under oath via phone on a loudspeaker. Deliberation among
the HC voting members followed. After that, the ballot sheets were distributed. The members
cast their votes through secret balloting and submitted their accomplished ballot sheets together
with their written justification. The result was 8-1 in favor of a guilty verdict. Cadet lCL Dalton
John G. Lagura (Cadet lCL Lagura) was the lone dissenter. Allegedly, upon the order ofHC
Chairman Cadet 1 CL Mogol, the Presiding Officer and voting members went inside a chamber
adjoining the court room for further deliberation. After several minutes, they went out and the
Presiding Officer announced the 9-0 guilty verdict. Cadet 1 CL Cudia, who already served nine
(9) touring hours, was then informed of the unanimous votes finding him guilty of violating the
Honor Code. He was immediately placed in the PMA Holding Center until the resolution of his
appeal.
On January 24, 2014, Cadet ICL Cudia filed a written appeal addressed to the HC Chairman, the
full text of which stated:
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for "Late for two (2) minutes in Eng412 class", my explanation on
this delinquency report when I received it, is that "Our class was dismissed a (little) bit late and I
came directly from 4th period class ... etc". Knowing the fact that in my delinquency report, it is
stated that ENG412 classes started 1500H and I am late for two minutes, it is logical enough for I
(sic) to interpret it as "I came 1502H during that class". This is the explanation that came into my
mind that time. (I just cannot recall the exact words I used in explaining that delinquency report,
but what I want to say is that I have no intention to be late). In my statements, I convey my
message as "since I was not the only one left in that class, and the instructor is with us, I used the
term "CLASS", I used the word "DISMISSED" because I was under instruction (to wait for her
to give the section grade) by the instructor, Ms. Costales. The other cadets (lCL MIRANDA, lCL
ARCANGEL) still have queries and business with her that made me decide to use the word
"CLASS", while the others who don't have queries and business with her (ex: lCL NARCISO
and 1 CL DIAZ) were also around.
Note:
The four named cadets were also reported late.
Reference: Para 171. 0. (Leaving the Classroom Prior to Dismissal Time)(Sec XVII, CCAFPR
s2008)
It is stated in this reference that "Cadets shall not linger in the place of instruction after the
section has been dismissed. EXCEPT when told or allowed to do so by the instructor or by any
competent authority for official purposes. "
The instruction by Ms. Costales was given to me before the two bells rang (indicating the end of
class hour, 1500H). I waited for her for about 45 seconds to 1 minute and 30 seconds, that made
me to decide to write "a little bit late" in my explanation. Truly, the class ENDED 1500H but due
to official purpose (instruction by Ms. Costales to wait) and the conflict in academic schedule (to
which I am not in control of the circumstances, 4th PD class 1330H-1500H and 5th PD class
1500H-1 600H), and since Ms. Costales, my other classmates, and I were there, I used the word
"CLASS".
19 December 2013
I was informed that my delinquency report was awarded, 11 Demerits and 13 Touring hours. Not
because I don't want to serve punishment, but because I know I did nothing wrong, I obeyed
instruction, and believing that my reason is justifiable and valid, that is why I approached our
tactical officer, MAJ HINDANG PAF, to clarify and ask why it was awarded that day.
In our conversation, he said that he had a phone call to my instructor and he even added that they
have a protocol to dismiss the class, 15 minutes or 10 minutes before 1500H. I explained:
Sir, I strongly believe that I am not in control of the circumstances, our 4th period class ended
1500H and our 5th period class, which is ENG412, started 1500H also. Immediately after 4th
period class, I went to my next class without any intention of being late Sir.
These statements are supplementary to my explanation in my delinquency report, in here, I
specified the conflict in the schedule and again, I have no intention to be late. After explaining it
further with these statements, my tactical officer said that since I was reported in a written form,
I should make an appeal in a written form. Thinking that he already understood what I want to
say, I immediately made an appeal that day stating the words that I used in having conversation
with him.29
Attached to the written appeal was a Certification dated January 24, 2014, wherein Dr. Costales
attested:
1. That Cadet MIRANDA, ARCANGEL, [and] NARCISO was (sic) with Cadet CUDIA in
making query about their latest grades in OR432 and/or results of UEl outside the ACADS
office. The following facts may explain their queries on 14 November 2013:
a. That I held my class in the PMAFI room instead of room 104.
b. That OR432 releases grades every Wednesday and cadets are informed during Thursday,
either in class or posted grades in the bulletin board (grades released was [sic J based on the
previous LEs: latest LE before UE was Decision Trees).
c. That UE papers were already checked but not yet recorded due to (sic) other cadets have not
taken the UE. Cadets were allowed to verify scores but not to look at the papers.
d. Last 23 January 2014, Captain Dulawan clarified if indeed Cadet NARCISO and
ARCANGEL verified grades. The two cadets said that they verified something with me after the
OR432 class and they were with Cadet CUD IA. That the statements of the three (3) cadets are
all the same and consistent, thus[,] I honor that as true.
2. As to the aspect of dismissing late, I could not really account for the specific time that I
dismissed the class. To this date, I [cannot] really recall an account that is more than two (2)
months earlier. According to my records, there was a lecture followed by an LE during (sic) on
14 November 2013. To determine the time of my dismissal, maybe it can be verified with the
other members of class I was handling on that said date.30
Respondents contend that the HC denied the appeal the same day, January · 24, as it found no
reason to conduct a re-trial based on the arguments and evidence presented.31 Petitioners,
however, claim that the written appeal was not acted upon until the filing of the petition-in-
intervention.32
From January 25 to February 7, 2014, respondents allege that the Headquarters Tactics Group
(HTG) conducted an informal review to check the findings of the HC. During the course of the
investigation, Prof. Berong was said to have confirmed with the Officer-in-Charge of the HC that
classes started as scheduled (i.e., 3:05 p.m. or 1505H), and that Cadet lCL Barrawed, the acting
class marcher of ENG412, verified before the Commandant, Assistant Commandant, and STO
that the class started not earlier than scheduled.
Meantime, on February 4, 2014, the OIC of the HC forwarded the Formal Investigation Report to
the Staff Judge Advocate (SJA) for review. The next day, the SJA found the report to be legally
in order.
On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez), the Commandant of Cadets,
affirmed the HC findings and recommended to Vice Admiral Edgar Abogado, then PMA
Superintendent, the separation from the PMA of Cadet lCL Cudia for violation of the First Tenet
of the Honor Code (Lying, pursuant to Sec. VII.12.b of the CCAFPR S-2008). On the same date,
Special Orders No. 26 was issued by the PMA Headquarters placing Cadet 1 CL Cudia on
indefinite leave of absence without pay and allowances effective February 10, 2014 pending
approval of his separation by the AFPGHQ, barring him from future appointment and/or
admission as cadet, and not permitting him to qualify for any entrance requirements to the
PMA. 33
Two days later, Vice Admiral Abogado approved the recommendation to dismiss Cadet 1 CL
Cudia.
On February 13, 2014, Cadet lCL Cudia submitted a letter to the Office of the Commandant of
Cadets requesting for reinstatement by the PMA of his status as a cadet.34
Four days passed, Annavee P. Cudia (Annavee ), the sister of Cadet 1 CL Cudia, posted his
plight in her Face book account. The day after, the Spouses Cudia gave a letter to Major General
Oscar Lopez (Maj. Gen. Lopez), the new PMA Superintendent, asking to recognize the 8-1
voting of the HC.35 Copies of which were furnished to the AFP Chief of Staff and other
concerned military officials. Subsequently, Maj. Gen. Lopez was directed to review Cadet lCL
Cudia's case. The latter, in turn, referred the matter to the Cadet Review and Appeals Board
(CRAB).
On February 19, 2014, Cadet lCL Cudia made his personal appeal letter to Maj. Gen. Lopez. On
even date, the AFP Chief of Staff ordered a reinvestigation following the viral Facebook post of
Annavee demanding the intervention of the military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1 was issued directing all PMA
cadets to ostracize Cadet 1 CL Cudia by not talking to him and by separating him from all
activities/functions of the cadets. It is said that any violation shall be a "Class 1" offense entailing
45 demerits, 90 hours touring, and 90 hours confinement. Cadet 1 CL Cudia was not given a
copy of the order and learned about it only from the media.36 According to an alleged news
report, PMA Spokesperson Major Agnes Lynette Flores (Maj. Flores) confirmed the HC order to
ostracize Cadet 1 CL Cudia. Among his offenses were: breach of confidentiality by putting
documents in the social media, violation of the PMA Honor Code, lack of initiative to resign,
and smearing the name of the PMA.37
On February 24, 2014, Cadet 1CL Cudia requested the CRAB for additional time, until March 4,
2014, to file an appeal on the ground that his intended witnesses are in on-the-job training
( OJT).38 As additional evidence to support his appeal, he also requested for copies of the
Minutes of the HC proceedings, relevant documents pertaining to the case, and video footages
and recordings of the HC hearings.
The next day, Cadet 1 CL Cudia and his family engaged the services of the Public Attorney's
Office (PAO) in Baguio City.
The CRAB conducted a review of the case based on the following: (a) letter of appeal of the
Spouses Cudia dated February 18, 2014; (b) directive from the AFP-GHQ to reinvestigate the
case; and ( c) guidance from Maj. Gen. Lopez.
On February 26, 2014, Brigadier General Andre M. Costales, Jr. (Brig. Gen. Costales, Jr.), the
CRAB Chairman, informed Cadet lCL Cudia that, pending approval of the latter's request for
extension, the CRAB would continue to review the case and submit its recommendations based
on whatever evidence and testimonies received, and that it could not favorably consider his
request for copies of the HC minutes, relevant documents, and video footages and recordings of
the HC hearings since it was neither the appropriate nor the authorized body to take action
thereon.39 Subsequently, upon verbal advice, Cadet 1 CL Cudia wrote a letter to Maj. Gen. Lopez
reiterating his request.40
Two days after, the Spouses Cudia filed a letter-complaint before the CHR-Cordillera
Administrative Region (CAR) Office against the HC members and Maj. Gracilla for alleged
violation of the human rights of Cadet lCL Cudia, particularly his rights to due process,
education, and privacy of communication.41
On March 4, 2014, Cadet 1 CL Cudia, through the PAO, moved for additional time, until March
19, 2014, to file his appeal and submit evidence. PAO also wrote a letter to AFP Chief of Staff
General Emmanuel T. Bautista (Gen. Bautista) seeking for immediate directive to the PMA to
expeditiously and favorably act on Cadet 1CL Cudia's requests.42
Exactly a week prior to the commencement exercises of Siklab Diwa Class, the following events
transpired:
On March 10, 2014, Annavee sought the assistance of PAO Chief Public Attorney Persida V.
Rueda-Acosta.43 On the other hand, the CRAB submitted a report to the AFP-GHQ upholding
the dismissal of Cadet 1 CL Cudia.44
On March 11, 2014, PAO received a letter from Maj. Gen. Lopez stating the denial of Cadet 1CL
Cudia's requests for extension of time to file an Appeal Memorandum in view of the ample time
already given, and to be furnished with a copy of relevant documents because of confidentiality
and presumption of regularity of the HC proceedings.45 Cadet 1CL Cudia, through PAO, then
filed an Appeal Memorandum46 before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to President Benigno Simeon C. Aquino III
(Pres. Aquino), who is the Commander-in-Chief of the AFP, attaching thereto the Appeal
Memorandum.47 On the same day, Special Orders No. 48 was issued by the PMA constituting a
Fact-Finding Board/Investigation Body composed of the CRAB members and PMA senior
officers to conduct a deliberate investigation pertaining to Cadet 1CL Cudia's Appeal
Memorandum.48 The focus of the inquiry was not just to find out whether the appeal has merit or
may be considered but also to investigate possible involvement of other cadets and members of
the command related to the incident and to establish specific violation of policy or regulations
that had been violated by other cadets and members of the HC.49
On March 13, 2014, the Cudia family and the Chief Public Attorney had a dialogue with Maj.
Gen. Lopez. On March 14, 2014, the CHR-CAR came out with its preliminary findings, which
recommended the following:
a. For the PMA and the Honor Committee to respect and uphold the 8 Guilty - 1 Not guilty vote;
b. For the PMA and the Honor Committee to officially pronounce Cdt Cudia as Not Guilty of the
charge filed against him before the Honor Committee;
c. For the PMA to restore Cadet Cudia's rights and entitlements as a full-fledge graduating cadet
and allow him to graduate on Sunday, 16 March 2014;
d. For the PMA to fully cooperate with the CHR in the investigation of Cudia's Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had a meeting with Pres. Aquino and
Department of National Defense (DND) Secretary Voltaire T. Gazmin. The President
recommended that they put in writing their appeal, requests, and other concerns. According to
respondents, the parties agreed that Cadet 1 CL Cudia would not join the graduation but it was
without prejudice to the result of the appeal, which was elevated to the AFP Chief of Staff. The
President then tasked Gen. Bautista to handle the reinvestigation of the case, with Maj. Gen.
Oscar Lopez supervising the group conducting the review.
Four days after Siklab Diwa Class' graduation day, petitioner Renato S. Cudia received a letter
dated March 11, 2014 from the Office of the AFP Adjutant General and signed by Brig. Gen.
Ronald N. Albano for the AFP Chief of Staff, affirming the CRAB' s denial of Cadet 1 CL
Cudia' s appeal. It held:
After review, The Judge Advocate General, APP finds that the action of the PMA CRAB in
denying the appeal for reinvestigation is legally in order. There was enough evidence to sustain
the finding of guilt and the proprietary (sic) of the punishment imposed. Also, your son was
afforded sufficient time to file his appeal from the date he was informed of the final verdict on
January 21, 2014, when the decision of the Honor Committee was read to him in person, until the
time the PMA CRAB conducted its review on the case. Moreover, the continued stay of your son
at the Academy was voluntary. As such, he remained subject to the Academy's policy regarding
visitation. Further, there was no violation of his right to due process considering that the
procedure undertaken by the Honor Committee and PMA CRAB was consistent with existing
policy. Thus, the previous finding and recommendation of the Honor Committee finding your
son, subject Cadet guilty of "Lying" and recommending his separation from the Academy is
sustained.
In view of the foregoing, this Headquarters resolved to deny your appeal for lack of
merit.51 Thereafter, the Fact-Finding Board/Investigating Body issued its Final Investigation
Report on March 23, 2014 denying Cadet 1 CL Cudia's appeal.52 Subsequently, on April 28,
2014, the special investigation board tasked to probe the case submitted its final report to the
President.53 Pursuant to the administrative appeals process, the DND issued a Memorandum
dated May 23, 2014, directing the Office of AFP Chief of Staff to submit the complete records of
the case for purposes of DND review and recommendation for disposition by the President.54
Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution with respect to CHR-CAR
Case No. 2014-0029, concluding and recommending as follows:
WHEREFORE, PREMISES CONSIDERED, the Commission on Human Rights-CAR Office
finds PROBABLE CAUSE FOR HUMAN RIGHTS VIOLATIONS against the officers and
members of the PMA Honor Committee and .. certain PMA officials, specifically for violations
of the rights of CADET ALDRIN JEFF P. CUDIA to dignity, due process, education,
privacy/privacy of communication, and good life.
IN VIEW OF THE FOREGOING, the CHR-CAR Office RESOLVED to indorse to competent
authorities for their immediate appropriate action on the following recommendations:
1. The Philippine Military Academy must set aside the "9-Guilty, 0-Not Guilty" verdict against
Cadet Aldrin Jeff P. Cudia, for being null and void; to uphold and respect the "8-Guilty, 1-Not
Guilty" voting result and make an official pronouncement of NOT GUILTY in favor of Cadet
Cudia;
2. The PMA, the AFP Chief of Staff, and the President in whose hands rest the ends of justice
and fate of Cadet Cudia, to:
2.1 officially proclaim Cadet Cudia a graduate and alumnus of the Philippine Military Academy;
2.2 issue to Cadet Cudia the corresponding Diploma for the degree of Bachelors of Science; and
2.3 Issue to Cadet Cudia the corresponding official transcript 'of his academic records for his BS
degree, without conditions therein as to his status as a PMA cadet.
3. The Public Attorneys' Office to provide legal services to Cadet Cudia in pursuing
administrative, criminal and civil suits against the officers and members of the Honor Committee
named hereunder, for violation of the Honor Code and System and the Procedure in Formal
Investigation, dishonesty, violation of the secrecy of the ballot, tampering the true result of the
voting, perjury, intentional omission in the Minutes of substantive part of the formal trial
proceedings which are prejudicial to the interest of justice and Cadet Cudia's fundamental rights
to dignity, non-discrimination and due process, which led to the infringement of his right to
education and even transgressing his right to a good life.
3.1 Cdt lCL MIKE ANTHONY MOGUL, now 2nd Lt. of the AFP
3.2 Cdt lCL RHONA K. SALVACION, now 2nd Lt. of the AFP
3.3 Cdt 2CL ARWI C. MARTINEZ
3.4 Cdt 2CL RENATO A. CARINO, JR.
3.5 Cdt 2CL NIKOANGELOC. TARAYAO
3.6 Cdt lCL JEANEL YN P. CABRIDO, now 2nd Lt. of the AFP
3.7 Cdt lCL KIM ADRIAN R. MARTAL, now 2nd Lt. of the AFP
3.8 Cdt lCL JAIRUS 0. FANTIN, now 2nd Lt. of the AFP
3.9 Cdt lCL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of the AFP
3.10 Cdt lCL DALTON JOHN G. LAGURA, now 2nd Lt. of the AFP
3.11 Cdt 1 CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of the AFP
3.12 Cdt 4CL JENNIFER A. CUARTERON (recorder)
3.13 Cdt 3CL LEONCIO NICO A. DE JESUS II (record)
4. The Office of the AFP Chief of Staff and the PMA competent authorities should investigate
and file appropriate charges against Maj. VLADIMIR P. GRACILLA, for violation of the right
to privacy of Cadet Cudia and/or failure, as intelligence officer, to ensure the protection of the
right to privacy of Cudia who was then billeted at the PMA Holding Center;
5. The Office of the AFP Chief of Staff and PMA competent authorities should investigate Maj.
DENNIS ROMMEL HINDANG for his failure and ineptness to exercise his responsibility as a
competent Tactical Officer and a good father of his cadets, in this case, to Cadet Cudia; for
failure to respect exhaustion of administrative remedies;
6. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philppines,
the PMA Superintendent, to immediately cause the comprehensive review of all rules of
procedures, regulations, policies, including the so-called practices in the implementation of the
Honor Code; and, thereafter, adopt new policies, rules of procedures and relevant regulations
which are human-rights based and consistent with the Constitution and other applicable laws;
7. The Congress of the Philippines to consider the enactment of a law defining and penalizing
ostracism and discrimination, which is apparently being practiced in the PMA, as a criminal
offense in this jurisdiction;
8. His Excellency The President of the Philippines to certify as priority, the passage of an anti-
ostracism and/or anti-discrimination law; and
9. Finally, for the AFP Chief of Staff and the PMA authorities to ensure respect and protection of
the rights of those who testified for the cause of justice and truth as well as human rights of
Cadet Cudia.
RESOLVED FURTHER, to monitor the actions by the competent authorities on the foregoing
CHR recommendations.
Let copy of this resolution be served by personal service or by substituted service to the
complainants (the spouses Renato and Filipina Cudia; and Aldrin Jeff P. Cudia), and all the
respondents. Also, to the PMA Superintendent, the AFP Chief of Staff, the Secretary of National
Defense, His Excellency The President of the Philippines, The Public Attorneys' Office.
SO RESOLVED.55
On June 11, 2014, the Office of the President sustained the findings of the AFP Chief of Staff
and the CRAB. The letter, which was addressed to the Spouses Cudia and signed by Executive
Secretary Paquito N. Ochoa, Jr., stated in whole:
This refers to your letters to the President dated 12 March 2014 and 26 March 2014 appealing for
a reconsideration of the decision of the Philippine Military Academy (PMA) Honor Committee
on the case of your son, Cadet 1 CL Aldrin Jeff Cudia.
After carefully studying the records of the case of Cadet Cudia, the decision of the Chief of Staff
of the Armed Forces of the Philippines (AFP), and the Honor Code System of the AFP Cadet
Corps, this Office has found no substantial basis to disturb the findings of the AFP and the PMA
Cadet Review Appeals Board (CRAB). There is no competent evidence to support the claim that
the decision of the Honor Committee members was initially at 8 "Guilty" votes and 1 "Not
Guilty" vote. The lone affidavit of an officer, based on his purported conversation with one
Honor Committee member, lacks personal knowledge on the deliberations of the said Committee
and is hearsay at best.
Similarly, the initial recommendations of the Commission on Human Rights cannot be adopted
as basis that Cadet Cudia's due process rights were violated. Apart from being explicitly
preliminary in nature, such recommendations are anchored on a finding that there was an 8-1
vote which, as discussed above, is not supported by competent evidence.
In the evaluation of Cadet Cudia's case, this Office has been guided by the precept that military
law is regarded to be in a class of its own, "applicable only to military personnel because the
military constitutes an armed organization requiring a system of discipline separate from that of
civilians" (Gonzales v. Abaya, G.R. No. 164007, 10 August 2005 citing Calley v. Callaway, 519
F. 2d 184 [1975] and Orloff v. Willoughby, 345 US 83 [1953]). Thus, this Office regarded the
findings of the AFP Chief, particularly his conclusion that there was nothing irregular in the
proceedings that ensued, as carrying great weight.
Accordingly, please be informed that the President has sustained the findings of the AFP Chief
and the PMA CRAB.56
The Issues
To petitioners, the issues for resolution are:
I.
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND
THE CADET REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING CADET FIRST CLASS ALDRIN JEFF P. CUDIA FROM
THE ACADEMY IN UTTER DISREGARD OF HIS RIGHT TO DUE PROCESS
CONSIDERING THAT:
A. Despite repeated requests for relevant documents regarding his case, Cadet First Class Aldrin
Jeff Cudia was deprived of his right to have access to evidence which would have proven his
defense, would have totally belied the charge against him, and more importantly, would have
shown the irregularity in the Honor Committee's hearing and rendition of decision
B. Cadet First Class Aldrin Jeff Cudia was vaguely informed of the decisions arrived at by the
Honor Committee, the Cadet Review and Appeals Board and the Philippine Military Academy
C. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy have afforded Cadet First Class Aldrin Jeff Cudia nothing but a sham trial
D. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy violated their own rules and principles as embodied in the Honor Code
E. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy, in deciding Cadet First Class Aldrin Jeff Cudia's case, grossly and in bad faith,
misapplied the Honor Code so as to defy the 1987 Constitution, notwithstanding the
unquestionable fact that the former should yield to the latter.
II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND
THE CADET REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN HOLDING THAT CADET FIRST CLASS ALDRIN JEFF P. CUDIA LIED,
THEREBY VIOLATING THE HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING INVESTIGATION INDEPENDENTLY
CONDUCTED BY THE COMMISSION ON HUMAN RIGHTS IS OF SUCH GREAT
WEIGHT AND PERSUASIVE NATURE THAT THIS HONORABLE COURT MAY
HONOR, UPHOLD AND RESPECT57
On the other hand, in support of their prayer to dismiss the petition, respondents presented the
issues below:
PROCEDURAL GROUNDS
I.
THE MANDAMUS PETITION PRAYING THAT CADET CUDIA BE INCLUDED IN THE
LIST OF GRADUATES OF SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO
TAKE PART IN THE COMMENCEMENT EXERCISES HAS ALREADY BEEN
RENDERED MOOT.
II.
THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY FACTUAL WHICH ARE
BEYOND THE SCOPE OF A PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS.
III.
MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS TO GRANT THE RELIEFS
PRAYED FOR. IV. IT IS PREMATURE TO INVOKE JUDICIAL REDRESS PENDING THE
DECISION OF THE PRESIDENT ON CADET CUDIA'S APPEAL.
V.
WITH UTMOST DUE RESPECT, THE HONORABLE COURT MUST EXERCISE
CAREFUL RESTRAINT AND REFRAIN FROM UNDULY OR PREMATURELY
INTERFERING WITH LEGITIMATE MILITARY MATTERS.
SUBSTANTIVE GROUNDS
VI.
CADET CUDIA HAS NECESSARILY AND VOLUNTARILY RELINQUISHED CERTAIN
CIVIL LIBERTIES BY VIRTUE OF HIS ENTRY INTO THE PMA.
VII.
THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH AUTHORIZES IT TO IMPOSE
DISCIPLINARY MEASURES AND PUNISHMENT AS IT DEEMS FIT AND CONSISTENT
WITH THE PECULIAR NEEDS OF THE ACADEMY.
VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL DUE PROCESS.
The PMA has regulatory authority to administratively terminate cadets despite the absence of
statutory authority.
Violation of the Honor Code warrants the administrative dismissal of a guilty cadet.
Cadet Cudia violated the first tenet of the Honor Code by providing untruthful statements in the
explanation for his tardiness.
The higher authorities of the PMA did not blindly adopt the findings of the Honor Committee.
The procedural safeguards in a student disciplinary case were properly accorded to Cadet Cudia.
The subtle evolution in the voting process of the Honor Committee, by incorporating executive
session/chambering, was adopted to further strengthen the voting procedure of the Honor
Committee. Cadet Lagura voluntarily changed his vote without any pressure from the other
voting members of the Honor Committee.
Ostracism is not a sanctioned practice of the PMA.
The findings of the Commission on Human Rights are not binding on the Honorable Court, and
are, at best, recommendatory.
Cadet Cudia was not effectively deprived of his future when he was dismissed from the PMA.58
The Ruling of the Court
PROCEDURAL GROUNDS
Propriety of a petition for mandamus
Respondents argue that the mandamus aspect of the petition praying that Cadet 1 CL Cudia be
included in the list of graduating cadets and for him to take part in the commencement exercises
was already rendered moot and academic when the graduation ceremonies of the PMA Siklab
Diwa Class took place on March 16, 2014. Also, a petition for mandamus is improper since it
does not lie to compel the performance of a discretionary duty. Invoking Garcia v. The Faculty
Admission Committee, Loyola School of Theology,59 respondents assert that a mandamus
petition could not be availed of to compel an academic institution to allow a student to continue
studying therein because it is merely a privilege and not a right. In this case, there is a clear
failure on petitioners' part to establish that the PMA has the, ministerial duty to include Cadet 1
CL Cudia in the list, much less award him with academic honors and commission him to the
Philippine Navy. Similar to the case of University of San Agustin, Inc. v. Court of Appeals,60 it is
submitted that the PMA may rightfully exercise its discretionary power on who may be admitted
to study pursuant to its academic freedom.
In response, petitioners contend that while the plea to allow Cadet 1 CL Cudia to participate in
the PMA 2014 commencement exercises could no longer be had, the Court may still grant the
other reliefs prayed for. They add that Garcia enunciated that a respondent can be ordered to act
in a particular manner when there is a violation of a constitutional right, and that the certiorari
aspect of the petition must still be considered because it is within the province of the Court to
determine whether a branch of the government or any of its officials has acted without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess thereof.
We agree that a petition for mandamus is improper.
Under Section 3, Rule 65 of the Rules of Civil Procedure, a petition for mandamus may be filed
when any tribunal, corporation, board, officer, or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office, trust, or station. It
may also be filed when any tribunal, corporation, board, officer, or person unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled.
For mandamus to lie, the act sought to be enjoined must be a ministerial act or duty. An act is
ministerial if the act should be performed "[under] a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without regard to or the exercise of [the tribunal
or corporation's] own judgment upon the propriety or impropriety of the act done." The tribunal,
corporation, board, officer, or person must have no choice but to perform the act specifically
enjoined by law. This is opposed to a discretionary act whereby the officer has the choice to
decide how or when to perform the duty.61
In this case, petitioners pray for, among others: Also, after due notice and hearing, it is prayed of
the Court to issue a Writ of Mandamus to:
1. direct the PMA to include Cadet Cudia in the list of graduates of Siklab Diwa Class of 2014 of
the PMA, including inclusion in the yearbook;
2. direct the PMA to allow Cadet Cudia to take part in the commencement exercises if he
completed all the requirements for his baccalaureate degree;
3. direct the PMA to award unto Cadet Cudia the academic honors he deserves, and the
commission as a new Philippine Navy ensign;
4. direct the Honor Committee to submit to the CRAB of the PMA all its records of the
proceedings taken against Cadet Cudia, including the video footage and audio recordings of the
deliberations and voting, for the purpose of allowing the CRAB to conduct intelligent review of
the case of Cadet Cudia;
5. direct the PMA's CRAB to conduct a review de nova of all the records without requiring
Cadet Cudia to submit new evidence if it was physically impossible to do so;
6. direct the PMA's CRAB to take into account the certification signed by Dr. Costales, the new
evidence consisting of the affidavit of a military officer declaring under oath that the cadet who
voted "not guilty" revealed to this officer that this cadet was coerced into changing his vote, and
other new evidence if there is any;
7. direct the PMA's CRAB to give Cadet Cudia the right to a counsel who is allowed to
participate actively in the proceedings as well as in the cross-examinations during the exercise of
the right to confront witnesses against him; and
8. direct the Honor Committee in case of remand of the case by the CRAB to allow Cadet Cudia
a representation of a counsel.62
Similarly, petitioner-intervenor seeks for the following reliefs:
A. xxx
B. a Writ of Mandamus be issued commanding:
a.) The PMA, Honor Committee, and CRAB to respect and uphold the 8 Guilty -1 Not Guilty
vote;
b.) The PMA, Honor Committee, and CRAB to officially pronounce Cadet Cudia as Not Guilty
of the charge filed against him before the Honor Committee;
c.) The PMA to restore Cadet Cudia's rights and entitlements as a full-fledged graduating cadet,
including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1 CL Cudia in the list of graduates of Siklab
Diwa Class of 2014 and to allow him to take part in the commencement exercises, the same was
rendered moot and academic when the graduation ceremonies pushed through on March 16,
2014 without including Cadet 1 CL Cudia in the roll of graduates.
With respect to the prayer directing the PMA to restore Cadet 1 CL Cudia's rights and
entitlements as a full-fledged graduating cadet, including his diploma, awards, and commission
as a new Philippine Navy ensign, the same cannot be granted in a petition for mandamus on the
basis of academic freedom, which We shall discuss in more detail below. Suffice it to say at this
point that these matters are within the ambit of or encompassed by the right of academic
freedom; therefore, beyond the province of the Court to decide.64 The powers to confer degrees at
the PMA, grant awards, and commission officers in the military service are discretionary acts on
the part of the President as the AFP Commander-in-Chief. Borrowing the words of Garcia:
There are standards that must be met. There are policies to be pursued. Discretion appears to be
of the essence. In terms of Hohfeld's terminology, what a student in the position of petitioner
possesses is a privilege rather than a right. She [in this case, Cadet 1 CL Cudia] cannot therefore
satisfy the prime and indispensable requisite of a mandamus proceeding.65
Certainly, mandamus is never issued in doubtful cases. It cannot be availed against an official or
government agency whose duty requires the exercise of discretion or judgment.66 For a writ to
issue, petitioners should have a clear legal right to the thing demanded, and there should be an
imperative duty on the part of respondents to perform the act sought to be mandated.67
The same reasons can be said as regards the other reliefs being sought by petitioners, which
pertain to the HC and the CRAB proceedings. In the absence of a clear and unmistakable
provision of a law, a mandamus petition does not lie to require anyone to a specific course of
conduct or to control or review the exercise of discretion; it will not issue to compel an official to
do anything which is not his duty to do or which is his duty not to do or give to the applicant
anything to which he is not entitled by law.68
The foregoing notwithstanding, the resolution of the case must proceed since, as argued by
petitioners, the Court is empowered to settle via petition for certiorari whether there is grave
abuse of discretion on the part of respondents in dismissing Cadet 1 CL Cudia from the PMA.
Factual nature of the issues
According to respondents, the petition raises issues that actually require the Court to make
findings of fact because it sets forth several factual disputes which include, among others: the
tardiness of Cadet 1 CL Cudia in , his ENG412 class and his explanation thereto, the
circumstances that transpired in the investigation of his Honor Code violation, the proceedings
before the HC, and the allegation that Cadet 1 CL Lagura was forced to change his vote during
the executive session/"chambering."
In opposition, petitioners claim that the instant controversy presents legal issues. Rather than
determining which between the two conflicting versions of the parties is true, the case allegedly
centers on the application, appreciation, and interpretation of a person's rights to due process, to
education, and to property; the interpretation of the PMA Honor Code and Honor System; and
the conclusion on whether Cadet 1 CL Cudia's explanation constitutes lying. Even if the instant
case involves questions of fact, petitioners still hold that the Court is empowered to settle mixed
questions of fact and law. Petitioners are correct.
There is a question of law when the issue does not call for an examination of the probative value
of evidence presented, the truth or falsehood of facts being admitted and the doubt concerns the
correct application of law and jurisprudence on the matter. On the other hand, there is a question
of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts. When
there is no dispute as to fact, the question of whether or not the conclusion drawn therefrom is
correct is a question of law.69 The petition does not exclusively present factual matters for the
Court to decide. As pointed out, the all-encompassing issue of more importance is the
determination of whether a PMA cadet has rights to due process, to education, and to property in
the context of the Honor Code and the Honor System, and, if in the affirmative, the extent or
limit thereof. Notably, even respondents themselves raise substantive grounds that We have to
resolve. In support of their contention that the Court must exercise careful restraint and should
refrain from unduly or prematurely interfering in legitimate military matters, they argue that
Cadet 1 CL Cudia has necessarily and voluntarily relinquished certain civil liberties by virtue of
his entry into the PMA, and that the Academy enjoys academic freedom authorizing the
imposition of disciplinary measures and punishment as it deems fit and consistent with the
peculiar needs of the PMA. These issues, aside from being purely legal being purely legal
questions, are of first impression; hence, the Court must not hesitate to make a categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline jurisdiction over the petition pending President
Aquino’s resolution of Cadet 1 CL Cudia' appeal. They say that there is an obvious non-
exhaustion of the full administrative process. While Cadet 1 CL Cudia underwent the review
procedures of his guilty verdict at the Academy level - the determination by the SJA of whether
the HC acted according to the established procedures of the Honor System, the assessment by the
Commandant of Cadets of the procedural and legal correctness of the guilty verdict, the
evaluation of the PMA Superintendent to warrant the administrative separation of the guilty
cadet, and the appellate review proceedings before the CRAB - he still appealed to the President,
who has the utmost latitude in making decisions affecting the military. It is contended that the
President's power over the persons and actions of the members of the armed forces is recognized
in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga70 and in Section 3171 of Commonwealth Act (CA.) No.
1 (also known as "The National Defense Act''). As such, the President could still overturn the
decision of the PMA. In respondents' view, the filing of this petition while the case is pending
resolution of the President is an irresponsible defiance, if not a personal affront. For them,
comity dictates that courts of justice should shy away from a dispute until the system of
administrative redress has been completed.
From the unfolding of events, petitioners, however, consider that President Aquino effectively
denied the appeal of Cadet 1 CL Cudia. They claim that his family exerted insurmountable
efforts to seek reconsideration of the HC recommendation from the APP officials and the
President, but was in vain. The circumstances prior to, during, and after the PMA 2014
graduation rites, which was attended by President Aquino after he talked to Cadet lCL Cudia's
family the night before, foreclose the possibility that the challenged findings would still be
overturned. In any case, petitioners insist that the· rule on exhaustion of administrative remedies
is not absolute based on the Corsiga v. Defensor72 and Verceles v. BLR-DOLE73 rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted. The rationale behind the doctrine of
exhaustion of administrative remedies is that "courts, for reasons of law, comity, and
convenience, should not entertain suits unless the available administrative remedies have first
been resorted to and the proper authorities, who are competent to act upon the matter complained
of, have been given the appropriate opportunity to act and correct their alleged errors, if any,
committed in the administrative forum."74 In the U.S. case of Ringgold v. United States,75 which
was cited by respondents, it was specifically held that in a typical case involving a decision by
military authorities, the plaintiff must exhaust his remedies within the military before appealing
to the court, the doctrine being designed both to preserve the balance between military and
civilian authorities and to conserve judicial resources.
Nonetheless, there are exceptions to the rule. In this jurisdiction, a party may directly resort to
judicial remedies if any of the following is present:
1. when there is a violation of due process;
2. when the issue involved is purely a legal question;
3. when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
4. when there is estoppel on the part of the administrative agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary whose acts as an alter ego of the President bear
the implied and assumed approval of the latter;
7. when to require exhaustion of administrative remedies would be unreasonable;
8. when it would amount to a nullification of a claim;
9. when the subject matter is a private land in land case proceedings;
10. when the rule does not provide a plain, speedy and adequate remedy; and
11. when there are circumstances indicating the urgency of judicial intervention.76
Petitioners essentially raise the lack of due process in the dismissal of Cadet 1 CL Cudia from
the PMA. Thus, it may be a ground to give due course to the petition despite the non-exhaustion
of administrative remedies. Yet more significant is the fact that during the pendency of this case,
particularly on June 11, 2014, the Office of the President finally issued its ruling, which
sustained the findings of the AFP Chief and the CRAB. Hence, the occurrence of this
supervening event bars any objection to the petition based on failure to exhaust administrative
remedies.
Court's interference within military affairs
Respondents cite the U.S. cases of Bois v. Marsh77 and Schlesinger v. Councilman78 to support
their contention that judicial intervention would pose substantial threat to military discipline and
that there should be a deferential review of military statutes and regulations since political
branches have particular expertise and competence in assessing military needs. Likewise, in
Orloff v. Willoughby79 and Parker v. Levy,80 it was allegedly opined by the U.S. Supreme Court
that the military constitutes a specialized community governed by a separate discipline from that
of the civilian. According to respondents, the U.S. courts' respect to the military recognizes that
constitutional rights may apply differently in the military context than in civilian society as a
whole. Such military deference is exercised either by refusing to apply due process and equal
protection doctrines in military cases or applying them but with leniency.
In respondents' view, although Philippine courts have the power of judicial review in cases
attended with grave abuse of discretion amounting to lack or excess of jurisdiction, policy
considerations call for the widest latitude of deference to military affairs. Such respect is
exercised by the court where the issues to be resolved entail a substantial consideration of
legitimate governmental interest. They suppose that allowing Cadet 1 CL Cudia's case to prosper
will set an institutionally dangerous precedent, opening a Pandora's box of other challenges
against the specialized system of discipline of the PMA. They state that with the PMA's mandate
to train cadets for permanent commission in the AFP, its disciplinary rules and procedure
necessarily must impose h different standard of conduct compared with civilian institutions.
Petitioners, on the other hand, consider that this Court is part of the State's check-and-balance
machinery, specifically mandated by Article VIII of the 1987 Constitution to ensure that no
branch of the government or any of its officials acts without or in excess of jurisdiction or with
grave abuse of, discretion amounting to lack or excess of jurisdiction. They assert that judicial
non-interference in military affairs is not deemed as absolute even in the U.S. They cite
Schlesinger and Parker, which were invoked by respondents, as well as Burns v. Wilson81 and
Harmon v. Brucker,82 wherein the U.S. Supreme Court reviewed the proceedings of military
tribunals on account of issues posed concerning due process and violations of constitutional
rights. Also, in Magno v. De Villa83 decided by this Court, petitioners note that We, in fact,
exercised the judicial power to determine whether the APP and the members of the court martial
acted with grave abuse o.f discretion in their military investigation.
Petitioners' contentions are tenable.
Admittedly, the Constitution entrusts the political branches of the government, not the courts,
with superintendence and control over the military because the courts generally lack the
competence and expertise necessary to evaluate military decisions and they are ill-equipped to
determine the impact upon discipline that any particular intrusion upon military authority might
have.84 Nevertheless, for the sake of brevity, We rule that the facts as well as the legal issues in
the U.S. cases cited by respondents are not on all fours with the case of Cadet 1 CL Cudia.
Instead, what applies is the 1975 U.S. case of Andrews v. Knowlton,85 which similarly involved
cadets who were separated from the United States Military Academy due to Honor Code
violations. Following Wasson v. Trowbridge86 and Hagopian v. Knowlton,87 Andrews re-
affirmed the power of the district courts to review procedures used at the service academies in
the separation or dismissal of cadets and midshipmen. While it recognized the "constitutional
permissibility of the military to set and enforce uncommonly high standards of conduct and
ethics," it said that the courts "have expanded at an accelerated pace the scope of judicial access
for review of military determinations." Later, in Kolesa v. Lehman,88 it was opined that it has
been well settled that federal courts have jurisdiction "where there is a substantial claim that
prescribed military procedures violates one's constitutional rights." By 1983, the U.S. Congress
eventually made major revisions to the Uniform Code of Military Justice (UCMJ) by expressly
providing, among others; for a direct review by the U.S. Supreme Court of decisions by the
military's highest appellate authority.89
Even without referring to U.S. cases, the position of petitioners is still formidable. In this
jurisdiction, Section 1 Article VIII of the 1987 Constitution expanded the scope of judicial power
by mandating that the duty of the courts of justice includes not only "to settle actual
controversies involving rights which are legally demandable and enforceable" but also "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" even if the latter
does not exercise judicial, quasi-judicial or ministerial functions.90 Grave abuse of discretion
implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction or where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, which must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation
of law.91
The proceedings of the Cadet Honor Committee can, for purposes of the Due Process Clause, be
considered a governmental activity. As ruled in Andrews:
The relationship between the Cadet Honor Committee and the separation process at the Academy
has been sufficiently formalized, and is sufficiently interdependent, so as to bring that
committee's activities within the definition of governmental activity for the purposes of our
review. While the Academy has long had the informal practice of referring all alleged violations
to the Cadet Honor Committee, the relationship between that committee and the separation
process has to a degree been formalized. x x x
Regardless of whether the relationship be deemed formal or informal, the Honor Committee
under its own procedures provides that a single "not guilty" vote by a member ends the matter,
while a "guilty" finding confronts a cadet with the hard choice of either resigning or electing to
go before a Board of Officers. An adverse finding there results not only in formal separation
from the Academy but also in a damaging record that will follow the cadet through life.
Accordingly, we conclude that the Cadet Honor Committee, acting not unlike a grand jury, is
clearly part of the process whereby a cadet can ultimately be adjudged to have violated the Cadet
Honor Code and be separated from the Academy. Therefore, the effect of the committee's
procedures and determinations on the separation process is sufficiently intertwined with the
formal governmental activity which may follow as to bring it properly under judicial review92
No one is above the law, including the military. In fact, the present Constitution declares it as a
matter of principle that civilian authority is, at all times, supreme over the military.93 Consistent
with the republican system of checks and balances, the Court has been entrusted, expressly or by
necessary implication, with both the duty and the obligation of determining, in appropriate cases,
the validity of any assailed legislative or executive action.94
SUBSTANTIVE GROUNDS
Cadet's relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable to a cadet is not the same as that of a
civilian because the former' s rights have already been recalibrated to best serve the military
purpose and necessity. They claim that both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De
Villa95 recognized that, to a certain degree, individual rights of persons in the military service
may be curtailed by the rules of military discipline in order to ensure its effectiveness in fulfilling
the duties required to be discharged under the law. Respondents remind that, as a military student
aspiring to a commissioned post in the military service, Cadet 1 CL Cudia voluntarily gave up
certain civil and political rights which the rest of the civilian population enjoys. The deliberate
surrender of certain freedoms on his part is embodied in the cadets' Honor Code Handbook. It is
noted that at the beginning of their academic life in the PMA, Cadet 1 CL Cudia, along with the
rest of Cadet Corps, took an oath and undertaking to stand by the Honor Code and the Honor
System.
To say that a PMA cadet surrenders his fundamental human rights, including the right to due
process, is, for petitioners, contrary to the provisions of Section 3, Article II of the 1987
Constitution,96 Executive Order (E.O.) No. 17897 (as amended by E.O. No. 100598), AFP Code of
Ethics, Oath of Cadet Corps to the Honor Code and the Honor System, military professionalism,
and, in general, military culture. They maintain that the HC, the CRAB, and the PMA, grossly
and in bad faith misapplied the Honor Code and the Honor System in deciding Cadet lCL
Cudia's case considering that these should not be implemented at the expense of human rights,
due process, and fair play. Further, under the doctrine of constitutional supremacy, they can
never overpower or defy the 1987 Constitution since the former should yield to the latter.
Petitioners stress that the statement that "a cadet can be compelled to surrender some civil rights
and liberties in order for the Code and System to be implemented" simply pertains to what cadets
have to sacrifice in order to prove that they are men or women of integrity and honor, such as the
right to entertain vices and the right to freely choose what they want to say or do. In the context
of disciplinary investigation, it does not contemplate a surrender of the right to due process but,
at most, refers to the cadets' rights to privacy and to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be prepared to subordinate his private interests
for the proper functioning of the educational institution he attends to, one that is with a greater
degree than a student at a civilian public school.99 In fact, the Honor Code and Honor System
Handbook of the PMA expresses that, "[as] a training environment, the Cadet Corps is a society
which has its own norms. Each member binds himself to what is good for him, his subordinates,
and his peers. To be part of the Cadet Corps requires the surrender of some basic rights and
liberties for the good of the group."100
It is clear, however, from the teachings of Wasson and Hagopian, which were adopted by
Andrews, that a cadet facing dismissal from the military academy for misconduct has
constitutionally protected private interests (life, liberty, or property); hence, disciplinary
proceedings conducted within the bounds of procedural due process is a must.101 For that reason,
the PMA is not immune from the strictures of due process. Where a person's good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, the
minimal requirements of the due process clause must be satisfied.102 Likewise, the cadet faces far
more severe sanctions of being expelled from a course of college instruction which he or she has
pursued with a view to becoming a career officer and of probably
being forever denied that career.103
The cases of Gudani and Kapunan, Jr. are inapplicable as they do not specifically pertain to
dismissal proceedings of a cadet in a military academy due to honor violation. In Gudani, the
Court denied the petition that sought to annul the directive from then President Gloria
Macapagal-Arroyo, which' enjoined petitioners from testifying before the Congress without her
consent. We ruled that petitioners may be subjected to military discipline for their defiance of a
direct order of the AFP Chief of Staff. On the other hand, in Kapunan, Jr., this Court upheld the
restriction imposed on petitioner since the conditions for his "house arrest" (particularly, that he
may not issue any press statements or give any press conference during the period of his
detention) are justified by the requirements of military discipline. In these two cases, the
constitutional rights to information, transparency in matters of public concern, and to free speech
- not to due process clause - were restricted to better serve the greater military purpose.
Academic freedom of the PMA
Petitioners posit that there is no law providing that a guilty finding by the HC may be used by the
PMA to dismiss or recommend the dismissal of a cadet from the PMA. They argue that Honor
Code violation is not among those listed as justifications for the attrition of cadets considering
that the Honor Code and the Honor System do not state that a guilty cadet is automatically
terminated or dismissed from service. To them, the Honor Code and Honor System are
"gentleman's agreement" that cannot take precedence over public interest - in the defense of the
nation and in view of the taxpayer's money spent for each cadet. Petitioners contend that, based
on the Civil Code, all written or verbal agreements are null and void if they violate the law, good
morals, good customs, public policy, and public safety.
In opposition, respondents claim that the PMA may impose disciplinary measures and
punishment as it deems fit and consistent with the peculiar needs of the Academy. Even without
express provision of a law, the PMA has regulatory authority to administratively dismiss erring
cadets since it is deemed reasonably written into C.A. No. 1. Moreover, although said law grants
to the President the authority of terminating a cadet's appointment, such power may be delegated
to the PMA Superintendent, who may exercise direct supervision and control over the cadets.
Respondents likewise contend that, as an academic institution, the PMA has the inherent right to
promulgate reasonable norms, rules and regulations that it may deem necessary for the
maintenance of school discipline, which is specifically mandated by Section 3 (2),104 Article XIV
of the 1987 Constitution. As the premiere military educational institution of the AFP in
accordance with Section 30,105 Article III of C.A. No. 1 and Sections 58 and 59,106 Chapter 9,
Subtitle II, Title VIII, Book IV of E.O. No. 292 ("Administrative Code of 1987"), the PMA is an
institution that enjoys academic freedom guaranteed by Section 5 (2),107 Article XIV of the 1987
Constitution. In Miriam College Foundation, Inc. v. Court of Appeals,108 it was held that
concomitant with such freedom is the right and duty to instill and impose discipline upon its
students. Also, consistent with lsabelo, Jr. v. Perpetual Help College of Rizal, Inc.109 and Ateneo
de Manila University v. Capulong,110 the PMA has the freedom on who to admit (and,
conversely, to expel) given the high degree of discipline and honor expected from its students
who are to form part of the AFP.
For respondents, Cadet 1 CL Cudia cannot, therefore, belatedly assail the Honor Code as basis of
the HC' s decision to recommend his dismissal from the PMA. When he enlisted for enrolment
and studied in the PMA for four years, he knew or should have been fully aware of the standards
of discipline imposed on all cadets and the corresponding penalty for failing to abide by these
standards.
In their Reply, petitioners counter that, as shown in lsabelo, Jr. and Ateneo, academic freedom is
not absolute and cannot be exercised in blatant disregard of the right to due process and the 1987
Constitution. Although schools have the prerogative to choose what to teach, how to teach, and
who to teach, the same does not go so far as to deprive a student of the right to graduate when
there is clear evidence that he is entitled to the same since, in such a case, the right to graduate
becomes a vested right which takes precedence over the limited and restricted right of the
educational institution.
While both parties have valid points to consider, the arguments of respondents are more in line
with the facts of this case. We have ruled that the school-student relationship is contractual in
nature. Once admitted, a student's enrolment is not only semestral in duration but for the entire
period he or she is expected to complete it.111 An institution of learning has an obligation to
afford its students a fair opportunity to complete the course they seek to pursue.112 Such contract
is imbued with public interest because of the high priority given by the Constitution to education
and the grant to the State of supervisory and regulatory powers over a educational institutions.113
The school-student relationship has also been held as reciprocal. "[It] has consequences
appurtenant to and inherent in all contracts of such kind -it gives rise to bilateral or reciprocal
rights and obligations. The school undertakes to provide students with education sufficient to
enable them to pursue higher education or a profession. On the other hand, the students agree to
abide by the academic requirements of the school and to observe its rules and regulations."114
Academic freedom or, to be precise, the institutional autonomy of universities and institutions of
higher learning,115 has been enshrined in our Constitutions of 1935, 1973, and 1987.116 In Garcia,
this Court espoused the concurring opinion of U.S. Supreme Court Justice Felix Frankfurter in
Sweezy v. New Hampshire,117 which enumerated "the four essential freedoms" of a university:
To determine for itself on academic grounds (1) who may teach, (2) what may be taught, (3) how
it shall be taught, and (4) who may be admitted to study.118 An educational institution has the
power to adopt and enforce such rules as may be deemed expedient for its government, this
being incident to the very object of incorporation, and indispensable to the successful
management of the college.119 It can decide for itself its aims and objectives and how best to
attain them, free from outside coercion or interference except when there is an overriding public
welfare which would call for some restraint.120 Indeed, "academic freedom has never been meant
to be an unabridged license. It is a privilege that assumes a correlative duty to exercise it
responsibly. An equally telling precept is a long recognized mandate, so well expressed in
Article 19 of the Civil Code, that every 'person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe honesty and good
faith."'121
The schools' power to instill discipline in their students is subsumed in their academic freedom
and that "the establishment of rules governing university-student relations, particularly those
pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient
operation of the institution, but to its very survival."122 As a Bohemian proverb puts it: "A school
without discipline is like a mill without water." Insofar as the water turns the mill, so does the
school's disciplinary power assure its right to survive and continue operating.123 In this regard,
the Court has always recognized the right of schools to impose disciplinary sanctions, which
includes the power to dismiss or expel, on students who violate disciplinary rules.124 In Miriam
College Foundation, Inc. v. Court of Appeals,125 this Court elucidated:
The right of the school to discipline its students is at once apparent in the third freedom, i.e.,
"how it shall be taught." A school certainly cannot function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational institution requires rules and
regulations necessary for the maintenance of an orderly educational program and the creation of
an educational environment conducive to learning. Such rules and regulations are equally
necessary for the protection of the students, faculty, and property.
Moreover, the school has an interest in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling discipline, the school teaches
discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom
"what to teach." Incidentally, the school not only has the right but the duty to develop discipline
in its students. The Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the historical development
of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values,
develop moral character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational efficiency.
In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its
responsibility to help its students "grow and develop into mature, responsible, effective and
worthy citizens of the community."
Finally, nowhere in the above formulation is the right to discipline more evident than in "who
may be admitted to study." If a school has the freedom to determine whom to admit, logic
dictates that it also has the right to determine whom to exclude or expel, as well as upon whom to
impose lesser sanctions such as suspension and the withholding of graduation privileges.126
The power of the school to impose disciplinary measures extends even after graduation for any
act done by the student prior thereto. In University of the Phils. Board of Regents v. Court of
Appeals,127 We upheld the university's withdrawal of a doctorate degree already conferred on a
student who was found to have committed intellectual dishonesty in her dissertation. Thus:
Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all
institutions of higher learning." This is nothing new. The 1935 Constitution and the 1973
Constitution likewise provided for the academic freedom or, more precisely, for the institutional
autonomy of universities and institutions of higher learning. As pointed out by this Court in
Garcia v. Faculty Admission Committee, Loyola School of Theology, it is a freedom granted to
"institutions of higher learning" which is thus given "a wide sphere of authority certainly
extending to the choice of students." If such institution of higher learning can decide who can
and who cannot study in it, it certainly can also determine on whom it can confer the honor and
distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained through fraud, a
university has the right to revoke or withdraw the honor or distinction it has thus conferred. This
freedom of a university does not terminate upon the "graduation" of a student, .as the Court of
Appeals held. For it is precisely the "graduation" of such a student that is in question. It is
noteworthy that the investigation of private respondent's case began before her graduation. If she
was able to join the graduation ceremonies on April 24, 1993, it was because of too many
investigations conducted before the Board of Regents finally decided she should not have been
allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the
constitutional grant of academic freedom, to quote again from Garcia v. Faculty Admission
Committee, Loyola School of Theology, "is not to be construed in a niggardly manner or in a
grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest governing body of the University of
the Philippines. It has the power to confer degrees upon the recommendation of the University
Council. It follows that if the conferment of a degree is founded on error or fraud, the Board of
Regents is also empowered, subject to the observance of due process, to withdraw what it has
granted without violating a student's rights. An institution of higher learning cannot be powerless
if it discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be
more objectionable than bestowing a university's highest academic degree upon an individual
who has obtained the same through fraud or deceit. The pursuit of academic excellence is the
university's concern. It should be empowered, as an act of self-defense, to take measures to
protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their education, the USC as an
educational institution is also entitled to pursue its academic freedom and in the process has the
concomitant right to see to it that this freedom is not jeopardized.128
It must be borne in mind that schools are established, not merely to develop the intellect and
skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or
flowering if you will, of the total man.129 Essentially, education must ultimately be religious, i.e.,
one which inculcates duty and reverence.130 Under the rubric of "right to education," students
have a concomitant duty to learn under the rules laid down by the school.131 Every citizen has a
right to select a profession or, course of study, subject to fair, reasonable, and equitable
admission and academic requirements.132 The PMA is not different. As the primary training and
educational institution of the AFP, it certainly has the right to invoke academic freedom in the
enforcement of its internal rules and regulations, which are the Honor Code and the Honor
System in particular.
The Honor Code is a set of basic and fundamental ethical and moral principle. It is the minimum
standard for cadet behavior and serves as the guiding spirit behind each cadet's action. It is the
cadet's responsibility to maintain the highest standard of honor. Throughout a cadet's stay in the
PMA, he or she is absolutely bound thereto. It binds as well the members of the Cadet Corps
from its alumni or the member of the so-called "Long Gray Line."
Likewise, the Honor Code constitutes the foundation for the cadets' character development. It
defines the desirable values they must possess to remain part of the Corps; it develops the
atmosphere of trust so essential in a military organization; and it makes them professional
military soldiers.133 As it is for character building, it should not only be kept within the society of
cadets. It is best adopted by the Cadet Corps with the end view of applying it outside as an
officer of the AFP and as a product of the PMA.134
The Honor Code and System could be justified as the primary means of achieving the cadets'
character development and as ways by which the Academy has chosen to identify those who are
deficient in conduct.135 Upon the Code rests the ethical standards of the Cadet Corps and it is also
an institutional goal, ensuring that graduates have strong character, unimpeachable integrity, and
moral standards of the highest order.136 To emphasize, the Academy's disciplinary system as a
whole is characterized as "correctional and educational in nature rather than being legalistic and
punitive." Its purpose is to teach the cadets "to be prepared to accept full responsibility for all
that they do or fail to do and to place loyalty to the service above self-interest or loyalty to
friends or associates. "137 Procedural safeguards in a student disciplinary case
Respondents stress that Guzman v. National University138 is more appropriate in determining the
minimum standards for the imposition of disciplinary sanctions in academic institutions.
Similarly, with the guideposts set in Andrews, they believe that Cadet 1 CL Cudia was accorded
due process.
On the other hand, petitioners argue that the HC, the CRAB and the PMA fell short in observing
the important safeguards laid down in Ang Tibay v. CIR139 and Non v. Judge Dames II,140 which
set the minimum standards to satisfy the demands of procedural due process in the imposition of
disciplinary sanctions. For them, Guzman did not entirely do away with the due process
requirements outlined in Ang Tibay as the Court merely stated that the minimum requirements in
the Guzman case are more apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already settled the issue as it held that although both
Ang Tibay and Guzman essentially deal with the requirements of due process, the latter case is
more apropos since it specifically deals with the minimum standards to be satisfied in the
imposition of disciplinary sanctions in academic institutions. That Guzman is the authority on the
procedural rights of students in disciplinary cases was reaffirmed by the Court in the fairly recent
case of Go v. Colegio De San Juan De Letran.142
In Guzman, the Court held that there are minimum standards which must be met to satisfy the
demands of procedural due process, to wit:
(1) the students must be informed in writing of the nature and cause of any accusation against
them; (2) they shall have the right to answer the charges against them, with the assistance of
counsel, if desired; (3) they shall be informed of the evidence against them; ( 4) they shall have
the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered
by the investigating committee or official designated by the school authorities to hear and decide
the case.143
We have been consistent in reminding that due process in disciplinary cases involving students
does not entail proceedings and hearings similar to those prescribed for actions and proceedings
in courts of justice;144 that the proceedings may be summary;145 that cross-examination is not an
essential part of the investigation or hearing;146 and that the required proof in a student
disciplinary action, which is an administrative case, is neither proof beyond reasonable doubt nor
preponderance of evidence but only substantial evidence or "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."147
What is crucial is that official action must meet minimum standards of fairness to the individual,
which generally encompass the right of adequate notice and a meaningful opportunity to be
heard.148 As held in De La Salle University, Inc. v. Court of Appeals:149
Notice and hearing is the bulwark of administrative due process, the right to which is among the
primary rights that must be respected even in administrative proceedings. The essence of due
process is simply an opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling
complained of. So long as the party is given the opportunity to advocate her cause or defend her
interest in due course, it cannot be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances, essential to due process - it is
enough that the parties are given a fair and reasonable opportunity to explain their respective
sides of the controversy and to present supporting evidence on which a fair decision can be
based. "To be heard" does not only mean presentation of testimonial evidence in court - one may
also be heard through pleadings and where the opportunity to be heard through pleadings is
accorded, there is no denial of due process.150
The PMA Honor Code explicitly recognizes that an administrative proceeding conducted to
investigate a cadet's honor violation need not be clothed with the attributes of a judicial
proceeding. It articulates that – The Spirit of the Honor Code guides the Corps in identifying and
assessing misconduct. While cadets are interested in legal precedents in cases involving Honor
violations, those who hold the Spirit of the Honor Code dare not look into these precedents for
loopholes to justify questionable acts and they are not to interpret the system to their own
advantage.
The Spirit of the Honor Code is a way for the cadets to internalize Honor in a substantive way.
Technical and procedural misgivings of the legal systems may avert the true essence of imparting
the Spirit of the Code for the reason that it can be used to make unlawful attempt to get into the
truth of matters especially when a cadet can be compelled to surrender some civil rights and
liberties in order for the Code and System to be implemented. By virtue of being a cadet, a
member of the CCAFP becomes a subject of the Honor Code and System. Cadet's actions are
bound by the existing norms that are logically applied through the Code and System in order to
realize the Academy's mission to produce leaders of character - men of integrity and honor.151
One of the fundamental principles of the Honor System also states:
2. The Honor System correlates with legal procedures of the state's Justice System but it does not
demean its Spirit by reducing the Code to a systematic list of externally observed rules. Where
misinterpretations and loopholes arise through legalism and its technicalities, the objective of
building the character of the cadets becomes futile. While, generally, Public Law penalizes only
the faulty acts, the Honor System tries to examine both the action and the intention.152
Like in other institutions of higher learning, there is aversion towards undue judicialization of an
administrative hearing in the military academy. It has been said that the mission of the military is
unique in the sense that its primary business is to fight or be ready to fight wars should the
occasion arise, and that over-proceduralizing military determinations necessarily gives soldiers
less time to accomplish this task.153 Extensive cadet investigations and complex due process
hearing could sacrifice simplicity, practicality, and timeliness. Investigations that last for several
days or weeks, sessions that become increasingly involved with legal and procedural' points, and
legal motions and evidentiary objections that are irrelevant and inconsequential tend to disrupt,
delay, and confuse the dismissal proceedings and make them unmanageable. Excessive delays
cannot be tolerated since it is unfair to the accused, to his or her fellow cadets, to the Academy,
and, generally, to the Armed Forces. A good balance should, therefore, be struck to achieve
fairness, thoroughness, and efficiency.154 Considering that the case of Cadet 1 CL Cudia is one of
first impression in the sense that this Court has not previously dealt with the particular issue of a
dismissed cadet's right to due process, it is necessary for Us to refer to U.S. jurisprudence for
some guidance. Notably, our armed forces have been patterned after the U.S. Army and the U.S.
military code produced a salutary effect in the military justice system of the
Philippines.155 Hence, pertinent case laws interpreting the U.S. military code and practices have
persuasive, if not the same, effect in this jurisdiction.
We begin by stating that U.S. courts have uniformly viewed that "due process" is a flexible
concept, requiring consideration in each case of a variety of circumstances and calling for such
procedural protections as the particular situation demands.156 Hagopian opined:
In approaching the question of what process is due before governmental action adversely
affecting private interests may properly be taken, it must be recognized that due process is not a
rigid formula or simple rule of thumb to be applied undeviatingly to any given set of facts. On
the contrary, it is a flexible concept which depends upon the balancing of various factors,
including the nature of the private right or interest that is threatened, the extent to which the
proceeding is adversarial in character, the severity and consequences of any action that might be
taken, the burden that would be imposed by requiring use of all or part of the full panoply of
trial-type procedures, and the existence of other overriding interests, such as the necessity for
prompt action in the conduct of crucial military operations. The full context must therefore be
considered in each case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined the minimum standards of due process
required in the dismissal of a cadet. Thus:
[W]hen the government affects the private interests of individuals, it may not proceed arbitrarily
but must observe due process of law. x x x Nevertheless, the flexibility which is inherent in the
concept of due process of law precludes the dogmatic application of specific rules developed in
one context to entirely distinct forms of government action. "For, though 'due process of law'
generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and
a trial according to some settled course of judicial proceedings, * * * yet, this is not universally
true." x x x Thus, to determine in any given case what procedures due process requires, the court
must carefully determine and balance the nature of the private interest affected and of the
government interest involved, taking account of history and the precise circumstances
surrounding the case at hand.
While the government must always have a legitimate concern with the subject matter before it
may validly affect private interests, in particularly vital and sensitive areas of government
concern such as national security and military affairs, the private interest must yield to a greater
degree to the governmental. x x x Few decisions properly rest so exclusively within the
discretion of the appropriate government officials than the selection, training, discipline and
dismissal of the future officers of the military and Merchant Marine. Instilling and maintaining
discipline and morale in these young men who will be required to bear weighty responsibility in
the face of adversity -- at times extreme -- is a matter of substantial national importance scarcely
within the competence of the judiciary. And it cannot be doubted that because of these factors
historically the military has been permitted greater freedom to fashion its disciplinary procedures
than the civilian authorities.
We conclude, therefore, that due process only requires for the dismissal of a Cadet from the
Merchant Marine Academy that he be given a fair hearing at which he is apprised of the charges
against him and permitted a defense. x x x For the guidance of the parties x x x the rudiments of
a fair hearing in broad outline are plain. The Cadet must be apprised of the specific charges
against him. He must be given an adequate opportunity to present his defense both from the point
of view of time and the use of witnesses and other evidence. We do not suggest, however, that
the Cadet must be given this opportunity both when demerits are awarded and when dismissal is
considered. The hearing may be procedurally informal and need not be adversarial.158 (Emphasis
supplied)
In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are equally controlling in
cases where cadets were separated from the military academy for violation of the Honor Code.
Following the two previous cases, it was ruled that in order to be proper and immune from
constitutional infirmity, a cadet who is sought to be dismissed or separated from the academy
must be afforded a hearing, be apprised of the specific charges against him, and be given an
adequate opportunity to present his or her defense both from the point of view of time and the
use of witnesses and other evidence.159 Conspicuously, these vital conditions are not too far from
what We have already set in Guzman and the subsequent rulings in Alcuaz v. Philippine School
of Business Administration160 and De La Salle University, Inc. v. Court of Appeals.161
In this case, the investigation of Cadet 1 CL Cudia' s Honor Code violation followed the
prescribed procedure and existing practices in the PMA. He was notified of the Honor Report
from Maj. Hindang. He was then given the opportunity to explain the report against him. He was
informed about his options and the entire process that the case would undergo. The preliminary
investigation immediately followed after he replied and submitted a written explanation. Upon
its completion, the investigating team submitted a written report together with its
recommendation to the HC Chairman. The HC thereafter reviewed the findings and
recommendations. When the honor case was submitted for formal investigation, a new team was
assigned to conduct the hearing. During the formal investigation/hearing, he was informed of the
charge against him and given the right to enter his plea. He had the chance to explain his side,
confront the witnesses against him, and present evidence in his behalf. After a thorough
discussion of the HC voting members, he was found to have violated the ' Honor Code.
Thereafter, the guilty verdict underwent the review process at the Academy level - from the OIC
of the HC, to the SJA, to the Commandant of Cadets, and to the PMA Superintendent. A separate
investigation was also conducted by the HTG. Then, upon the directive of the AFP-GHQ to
reinvestigate the case, a review was conducted by the CRAB. Further, a Fact-Finding
Board/Investigation Body composed of the CRAB members and the PMA senior officers was
constituted to conduct a deliberate investigation of the case. Finally, he had the opportunity to
appeal to the President. Sadly for him, all had issued unfavorable rulings.
It is well settled that by reason of their special knowledge and expertise gained from the handling
of specific matters falling under their respective jurisdictions, the factual findings of
administrative tribunals are ordinarily accorded respect if not finality by the Court, unless such
findings are not supported by evidence or vitiated by fraud, imposition or collusion; where the
procedure which led to the findings is irregular; when palpable errors are committed; or when a
grave abuse of discretion, arbitrariness, or capriciousness is manifest.162 In the case of Cadet 1
CL Cudia, We find no reason to deviate from the general rule. The grounds therefor are
discussed below seriatim:
As to the right to be represented by a counsel –
For petitioners, respondents must be compelled to give Cadet 1 CL Cudia the right to be
represented by a counsel who could actively participate in the proceedings like in the cross-
examination of the witnesses against him before the CRAB or HC, if remanded. This is because
while the CRAB allowed him to be represented by a PAO lawyer, the counsel was only made an
observer without any right to intervene and demand respect of Cadet 1 CL Cudia's
rights.163 According to them, he was not sufficiently given the opportunity to seek a counsel and
was not even asked if he would like to have one. He was only properly represented when it was
already nearing graduation day after his family sought the assistance of the PAO. Petitioners
assert that Guzman is specific in stating that the erring student has the right to answer the charges
against him or her with the assistance of counsel, if desired.
On the other hand, respondents cited Lumiqued v. Exevea164 and Nera v. The Auditor
General165 in asserting that the right to a counsel is not imperative in administrative
investigations or non-criminal proceedings. Also, based on Cadet lCL Cudia's academic
standing, he is said to be obviously not untutored to fully understand his rights and express
himself. Moreover, the confidentiality of the HC proceedings worked against his right to be
represented by a counsel. In any event, respondents claim that Cadet 1 CL Cudia was not
precluded from seeking a counsel's advice in preparing his defense prior to the HC hearing.
Essentially, petitioners claim .. that Cadet lCL Cudia is guaranteed the right to have his counsel
not just in assisting him in the preparation for the investigative hearing before the HC and the
CRAB but in participating fully in said hearings. The Court disagrees.
Consistent with Lumiqued and Nera, there is nothing in the 1987 Constitution stating that a party
in a non-litigation proceeding is entitled to be represented by counsel. The assistance of a lawyer,
while desirable, is not indispensable. Further, in Remolona v. Civil Service Commission,166 the
Court held that "a party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's capacity to represent himself, and
no duty rests on such body to furnish the person being investigated with counsel." Hence, the
administrative body is under no duty to provide the person with counsel because assistance of
counsel is not an absolute requirement.
More in point is the opinion in Wasson, which We adopt. Thus:
The requirement of counsel as an ingredient of fairness is a function of all of the other aspects of
the hearing. Where the proceeding is non-criminal in nature, where the hearing is investigative
and not adversarial and the government does not proceed through counsel, where the individual
concerned is mature and educated, where his knowledge of the events x x x should enable him to
develop the facts adequately through available sources, and where the other aspects of the
hearing taken as a whole are fair, due process does not require representation by counsel.167
To note, U.S. courts, in general, have declined to recognize a right to representation by counsel,
as a function of due process, in military academy disciplinary proceedings.168 This rule is
principally motivated by the policy of "treading lightly on the military domain, with scrupulous
regard for the power and authority of the military establishment to govern its own affairs within
the broad confines of constitutional due process" and the courts' views that disciplinary
proceedings are not judicial in nature and should be kept informal, and that literate and educated
cadets should be able to defend themselves.169 In Hagopian, it was ruled that the importance of
informality in the proceeding militates against a requirement that the cadet be accorded the right
to representation by counsel before the Academic Board and that unlike the welfare recipient
who lacks the training and education needed to understand his rights and express himself, the
cadet should be capable of doing so.170 In the subsequent case of Wimmer v. Lehman,171 the issue
was not access to counsel but the opportunity to have counsel, instead of oneself, examine and
cross-examine witnesses, make objections, and argue the case during the hearing. Disposing of
the case, the U.S. Court of Appeals for the Fourth Circuit was not persuaded by the argument
that an individual of a midshipman's presumed intelligence, selected because he is expected to be
able to care for himself and others, often under difficult circumstances, and who has full
awareness of what he is facing, with counsel's advice, was deprived of due process by being
required to present his defense in person at an investigatory hearing.
In the case before Us, while the records are bereft of evidence that Cadet 1 CL Cudia was given
the option or was able to seek legal advice prior to and/or during the HC hearing, it is indubitable
that he was assisted by a counsel, a PAO lawyer to be exact, when the CRAB reviewed and
reinvestigated the case. The requirement of due process is already satisfied since, at the very
least, the counsel aided him in the drafting and filing of the Appeal Memorandum and even acted
as an observer who had no right to actively participate in the proceedings (such as conducting the
cross-examination). Moreover, not to be missed out are the facts that the offense committed by
Cadet 1 CL Cudia is not criminal in nature; that the hearings before the HC and the CRAB were
investigative and not adversarial; and that Cadet lCL Cudia's excellent-academic standing puts
him in the best position to look after his own vested interest in the Academy.
As to the confidentiality of records of the proceedings –
Petitioners allege that when Maj. Gen. Lopez denied in his March 11, 2014 letter Cadet lCL
Cudia's request for documents, footages, and recordings relevant to the HC hearings, the vital
evidence negating the regularity of the HC trial and supporting his defense have been surely
overlooked by the CRAB in its case review. Indeed, for them, the answers on whether Cadet 1
CL Cudia was deprived of due process and whether he lied could easily be unearthed from the
video and other records of the HC investigation. Respondents did not deny their existence but
they refused to present them for the parties and the Court to peruse. In particular, they note that
the Minutes of the HC dated January 21, 2014 and the HC Formal Investigation Report dated
January 20, 2014 were considered by the CRAB but were not furnished to petitioners and the
Court; hence, there is no way to confirm the truth of the alleged statements therein. In their view,
failure to furnish these documents could only mean that it would be adverse if produced pursuant
to Section 3 (e), Rule 131 of the Rules of Court.172
For lack of legal basis on PMA' s claim of confidentiality of records, petitioners contend that it is
the ministerial duty of the HC to submit to the CRAB, for the conduct of intelligent review of the
case, all its records of the proceedings, including video footages of the deliberations and voting.
They likewise argue that PMA' s refusal to release relevant documents to Cadet 1 CL Cudia
under the guise of confidentiality reveals another misapplication of the Honor Code, which
merely provides: "A cadet who becomes part of any investigation is subject to the existing
regulations pertaining to rules of confidentiality and, therefore, must abide to the creed of
secrecy. Nothing shall be disclosed without proper guidance from those with authority" (IV. The
Honor System, Honor Committee, Cadet Observer). This provision, they say, does not deprive
Cadet 1 CL Cudia of his right to obtain copies and examine relevant documents pertaining to his
case.
Basically, petitioners want Us to assume that the documents, footages, and recordings relevant to
the HC hearings are favorable to Cadet 1 CL Cudia's cause, and, consequently, to rule that
respondents' refusal to produce and have them examined is tantamount to the denial of his right
to procedural due process. They are mistaken.
In this case, petitioners have not particularly identified any documents, witness testimony, or oral
or written presentation of facts submitted at the hearing that would support Cadet 1 CL Cudia's
defense. The Court may require that an administrative record be supplemented, but only "where
there is a 'strong showing or bad faith or improper behavior' on the part of the agency,"173 both of
which are not present here. Petitioners have not specifically indicated the nature of the concealed
evidence, if any, and the reason for withholding it. What they did was simply supposing that
Cadet 1 CL Cudia's guilty verdict would be overturned with the production and examination of
such documents, footages, and recordings. As will be further shown in the discussions below, the
requested matters, even if denied, would not relieve Cadet 1 CL Cudia's predicament. If at all,
such denial was a harmless procedural error since he was not seriously prejudiced thereby.
As to the ostracism in the PMA –
To petitioners, the CRAB considered only biased testimonies and evidence because Special
Order No. 1 issued on February 21, 2014, which directed the ostracism of Cadet 1 CL Cudia, left
him without any opportunity, to secure statements of his own witnesses. He could not have
access to or approach the cadets who were present during the trial and who saw the 8-1 voting
result. It is argued that the Order directing Cadet 1 CL Cudia's ostracism is of doubtful legal
validity because the Honor Code unequivocally announced: "x x x But by wholeheartedly
dismissing the cruel method of ostracizing Honor Code violators, PMA will not have to resort to
other humiliating means and shall only have the option to make known among its alumni the
names of those who have not sincerely felt remorse for violating the Honor Code."
On their part, respondents assert that neither the petition nor the petition-in-intervention attached
a full text copy of the alleged Special Order No. 1. In any case, attributing its issuance to PMA is
improper and misplaced because of petitioners' admission that ostracism has been absolutely
dismissed as an Academy-sanctioned activity consistent with the trend in International
Humanitarian Law that the PMA has included in its curriculum. Assuming that said Order was
issued, respondents contend that it purely originated from the cadets themselves, the sole purpose
of which was to give a strong voice to the Cadet Corps by declaring that they did not tolerate
Cadet 1 CL Cudia's honor violation and breach of confindentiality of the HC proceedings.
More importantly, respondents add that it is highly improbable and unlikely that Cadet 1 CL
Cudia was ostracized by his fellow cadets. They manifest that as early as January 22, 2014, he
was already transferred to the Holding Center. The practice of billeting an accused cadet at the
Holding Center is provided for in the Honor Code Handbook. Although within the PMA
compound, the Holding Center is off-limits to cadets who do not have any business to conduct
therein. The cadets could not also ostracize him during mess times since Cadet 1 CL Cudia opted
to take his meals at the Holding Center. The circumstances obtaining when Special Order No. 1
was issued clearly foreclose the possibility that he was ostracized in common areas accessible to
other cadets. He remained in the Holding Center until March 16, 2014 when he voluntarily left
the PMA. Contrary to his claim, guests were also free to visit him in the Holding Center.
However, petitioners swear that Cadet 1 CL Cudia suffered from ostracism in the PMA. The
practice was somehow recognized by respondents in their Consolidated Comment and by PMA
Spokesperson Maj. Flores in a news report. The CHR likewise confirmed the same in its
Resolution dated May 22, 2014. For them, it does not matter where the ostracism order
originated from because the PMA appeared to sanction it even if it came from the cadets
themselves. There was a tacit approval of an illegal act. If not, those cadets responsible for
ostracism would have been charged by the PMA officials. Finally, it is claimed that Cadet 1 CL
Cudia did not choose to take his meals at the Holding Center as he was not allowed to leave the
place. Petitioners opine that placing the accused cadet in the Holding Center is inconsistent with
his or her presumed innocence and certainly gives the implication of ostracism.
We agree with respondents. Neither the petition nor the petition-inintervention attached a full
text copy or even a pertinent portion of the alleged Special Order No. 1, which authorized the
ostracism of Cadet 1 CL Cudia. Being hearsay, its existence and contents are of doubtful
veracity. Hence, a definite ruling on the matter can never be granted in this case.
The Court cannot close its eyes though on what appears to be an admission of Cadet 1 CL Mogol
during the CHR hearing that, upon consultation with the entire class, the baron, and the Cadet
Conduct Policy Board, they issued an ostracism order against Cadet 1 CL Cudia.174 While not
something new in a military academy,175 ostracism's continued existence in the modem times
should no longer be countenanced. There are those who argue that the "silence" is a punishment
resulting in the loss of private interests, primarily that of reputation, and that such penalty may
render illusory the possibility of vindication by the reviewing body once found guilty by the
HC.176 Furthermore, in Our mind, ostracism practically denies the accused cadet's protected
rights to present witnesses or evidence in his or her behalf and to be presumed innocent until
finally proven otherwise in a proper proceeding.
As to Cadet 1 CL Cudia's stay in the Holding Center, the Court upholds the same. The Honor
Code and Honor System Handbook provides that, in case a cadet has been found guilty by the
HC of violating the Honor Code and has opted not to resign, he or she may stay and wait for the
disposition of the case. In such event, the cadet is not on full-duty status and shall be billeted at
the HTG Holding Center.177 Similarly, in the U.S., the purpose of "Boarders Ward" is to quarter
those cadets who are undergoing separation actions. Permitted to attend classes, the cadet is
sequestered , therein until final disposition of the case. In Andrews, it was opined that the
segregation of cadets in the Ward was a proper exercise of the discretionary authority of
Academy officials. It relied on the traditional doctrine that "with respect to decisions made by
Army authorities, 'orderly government requires us to tread lightly on the military domain, with
scrupulous regard for the power and authority of the military establishment to govern its own
affairs within the broad confines of constitutional due process.'" Also, in Birdwell v.
Schlesinger,178 the "administrative segregation" was held to be a reasonable exercise of military
discipline and could not be considered an invasion of the rights to freedom of speech and
freedom of association.
Late and vague decisions –
It is claimed that Cadet 1 CL Cudia was kept in the dark as to the charge against him and the
decisions arrived at by the HC, the CRAB, and the PMA. No written decision was furnished to
him, and if any, the information was unjustly belated and the justifications for the decisions were
vague. He had to constantly seek clarification and queries just to be apprised of what he was
confronted with.
Petitioners relate that upon being informed of the "guilty" verdict, Cadet 1 CL Cudia
immediately inquired as to the grounds therefor, but Cadet 1 CL Mogol answered that it is
confidential since he would still appeal the same. By March 11, 2014, Maj. Gen. Lopez informed
Cadet 1 CL Cudia that the CRAB already forwarded their recommendation for his dismissal to
the General Headquarters sometime in February-March 2014. Even then, he received no
decision/recommendation on his case, verbally or in writing. The PMA commencement exercises
pushed through with no written decision from the CRAB or the PMA on his appeal. The letter
from the Office of the Adjutant General of the AFP was suspiciously delayed when the Cudia
family received the same only on March 20, 2014. Moreover, it fell short in laying down with
specificity the factual and legal bases used by the CRAB and even by the Office of the Adjutant
General. There remains no proof that the CRAB and the PMA considered the evidence presented
by Cadet 1 CL Cudia, it being uncertain as to what evidence was weighed by the CRAB, whether
the same is substantial, and whether the new evidence submitted by him was ever taken into
account.
In refutation, respondents allege the existence of PMA's· practice of orally declaring the HC
finding, not putting it in a written document so as to protect the integrity of the erring cadet and
guard the confidentiality of the HC proceedings pursuant to the Honor System. Further, they aver
that a copy of the report of the CRAB, dated March 10, 2014, was not furnished to Cadet 1 CL
Cudia because it was his parents who filed the appeal, hence, were the ones who were given a
copy thereof.
Petitioners' contentions have no leg to stand on. While there is a constitutional mandate stating
that "[no] decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based,"179 such provision does not apply in Cadet 1
CL Cudia's case. Neither Guzman nor Andrews require a specific form and content of a decision
issued in disciplinary proceedings. The Honor Code and Honor System Handbook also has no
written rule on the matter. Even if the provision applies, nowhere does it demand that a point-by-
point consideration and resolution of the issues raised by the parties are necessary.180 What
counts is that, albeit furnished to him late, Cadet 1 CL Cudia was informed of how it was
decided, with an explanation of the factual and legal reasons that led to the conclusions of the
reviewing body, assuring that it went through the processes of legal reasoning. He was not left in
the dark as to how it was reached and he knows exactly the reasons why he lost, and is able to
pinpoint the possible errors for review.
As to the blind adoption of the HC findings –
Petitioners assert that, conformably with Sections 30 and 31 of C.A. No. 1, only President
Aquino as the Commander-in-Chief has the power to appoint and remove a cadet for a
valid/legal cause. The law gives no authority to the HC as the sole body to determine the guilt or
innocence of a cadet. It also does not empower the PMA to adopt the guilty findings of the HC as
a basis for recommending the cadet's dismissal. In the case of Cadet 1 CL Cudia, it is claimed
that the PMA blindly followed the HC's finding of guilt in terminating his military service.
Further, it is the ministerial duty of the CRAB to conduct a review de nova of all records without
requiring Cadet 1 CL Cudia to submit new evidence if it is physically impossible for him to do
so. In their minds, respondents cannot claim that the CRAB and the PMA thoroughly reviewed
the HC recommendation and heard Cadet lCL Cudia's side. As clearly stated in the letter from
the Office of the AFP Adjutant General, "[in] its report dated March 10, 2014, PMA CRAB
sustained the findings and recommendations of the Honor Committee x x x It also resolved the
appeal filed by the subject Cadet." However, the Final Investigation Report of the CRAB was
dated March 23, 2014. While such report states that a report was submitted to the AFP General
Headquarters on March 10, 2014 and that it was only on March 12, 2014 that it was designated
as a Fact-Finding Board/Investigating Body, it is unusual that the CRAB would do the same
things twice. This raised a valid and well-grounded suspicion that the CRAB never undertook an
in-depth investigation/review the first time it came out with its report, and the Final Investigation
Report was drafted merely as an afterthought when the lack of written decision was pointed out
by petitioners so as to remedy the apparent lack of due process during the CRAB investigation
and review.
Despite the arguments, respondents assure that there was a proper assessment of the procedural
and legal correctness of the guilty verdict against Cadet 1 CL Cudia. They assert that the higher
authorities of the PMA did not merely rely on the findings of the HC, noting that there was also a
separate investigation conducted by the HTG from January 25 to February 7, 2014. Likewise,
contrary to the contention of petitioners that the CRAB continued with the review of the case
despite the absence of necessary documents, the CRAB conducted its own review of the case and
even conducted another investigation by constituting the Fact-Finding Board/Investigating Body.
For respondents, petitioners failed to discharge the burden of proof in showing bad faith on the
part of the PMA. In the absence of evidence to the contrary and considering further that
petitioners' allegations are merely self-serving and baseless, good faith on the part of the PMA' s
higher authorities is presumed and should, therefore, prevail.
We agree with respondents.
The Honor Committee, acting on behalf of the Cadet Corps, has a limited role of investigating
and determining whether or not the alleged offender has actually violated the Honor Code.181 It is
given the responsibility of administering the Honor Code and, in case of breach, its task is
entirely investigative, examining in the first instance a suspected violation. As a means of
encouraging self-discipline, without ceding to it any authority to make final adjudications, the
Academy has assigned it the function of identifying suspected violators.182 Contrary to
petitioners' assertion, the HC does not have the authority to order the separation of a cadet from
the Academy. The results of its proceedings are purely recommendatory and have no binding
effect. The HC determination is somewhat like an indictment, an allegation, which, in Cadet 1
CL Cudia's case, the PMA-CRAB investigated de novo.183 In the U.S., it was even opined that
due process safeguards do not actually apply at the Honor Committee level because it is only a
"charging body whose decisions had no effect other than to initiate de nova proceedings before a
Board of Officers."184
Granting, for argument's sake, that the HC is covered by the due process clause and that
irregularities in its proceedings were in fact committed, still, We cannot rule for petitioners. It is
not required that procedural due process be afforded at every stage of developing disciplinary
action. What is required is that an adequate hearing be held before the final act of dismissing a
cadet from the military academy.185 In the case of Cadet 1 CL Cudia, the OIC of HC, the SJA, the
Commandant of Cadets, and the PMA Superintendent reviewed the HC findings. A separate
investigation was also conducted by the HTG. Then, upon the directive of the AFP-GHQ to
reinvestigate the case, a review was conducted by the CRAB. Finally, a Fact-Finding
Board/Investigating Body composed of the CRAB members and the PMA senior officers was
constituted to conduct a deliberate investigation of the case. The Board/Body actually held
hearings on March 12, 13, 14 and 20, 2014. Instead of commendation, petitioners find it
"unusual" that the CRAB would do the same things twice and suspect that it never undertook an
in-depth investigation/review the first time it came out with its report. Such assertion is mere
conjecture that deserves scant consideration.
As to the dismissal proceedings as sham trial –
According to petitioners, the proceedings before the HC were a sham. The people behind Cadet
ICL Cudia's charge, investigation, and conviction were actually the ones who had the intent to
deceive and who took advantage of the situation. Cadet 1 CL Raguindin, who was a senior HC
member and was the second in rank to Cadet 1 CL Cudia in the Navy cadet 1 CL, was part of the
team which conducted the preliminary investigation. Also, Cadet I CL Mogol, the HC Chairman,
previously charged Cadet 1 CL Cudia with honor violation allegedly for cheating (particularly,
conniving with and tutoring his fellow cadets on a difficult topic by giving solutions to a retake
exam) but the charge was dismissed for lack of merit. Even if he was a non-voting member, he
was in a position of influence and authority. Thus, it would be a futile exercise for Cadet 1 CL
Cudia to resort to the procedure for the removal of HC members.186
Further, no sufficient prior notice of the scheduled CRAB hearing was given to Cadet I CL
Cudia, his family, or his PAO counsel. During one of her visits to him in the Holding Center,
petitioner-intervenor was advised to convince his son to resign and immediately leave the PMA.
Brig. Gen. Costales, who later became the CRAB Head, also categorically uttered to Annavee:
"Your brother, he lied!" The CRAB conferences were merely used to formalize his dismissal and
the PMA never really intended to hear his side. For petitioners, these are manifestations of
PMA's clear resolve to dismiss him no matter what.
For their part, respondents contend that the CllR's allegation that Maj. Hindang acted in obvious
bad faith and that he failed to discharge his duty to be a good father of cadets when he "paved the
road to [Cadet 1 CL Cudia's] sham trial by the Honor Committee" is an unfounded accusation.
They note that when Maj. Hindang was given the DR of Cadet 1 CL Cudia, he revoked the
penalty awarded because of his explanation. However, all revocations of awarded penalties are
subject to the review of the STO. Therefore, it was at the instance of Maj. Leander and the
established procedure followed at the PMA that Maj. Hindang was prompted to investigate the
circumstances surrounding Cadet 1 CL Cudia's tardiness. Respondents add that bad faith cannot
likewise be imputed against Maj. Hindang by referring to the actions taken by Maj. Jekyll
Dulawan, the CTO of Cadets 1 CL Narciso and Arcangel who also arrived late for their next
class. Unlike the other cadets, Cadet 1 CL Cudia did not admit his being late and effectively
evaded responsibility by ascribing his tardiness to Dr. Costales.
As to the CHR' s finding that Cadet 1 CL Mogol was likewise "in bad faith and determined to
destroy [Cadet 1 CL] Cudia, for reasons of his own" because the former previously reported the
latter for an honor violation in November 2013, respondents argue that the bias ascribed against
him is groundless as there is failure to note that Cadet 1 CL Mogol was a non-voting member of
the HC. Further, he cannot be faulted for reporting a possible honor violation since he is the HC
Chairman and nothing less is expected of him. Respondents emphasize that the representatives of
the HC are elected from each company, while the HC Chairman is elected by secret ballot from
the incoming first class representatives. Thus, if Cadet 1 CL Cu'dia believed that there was bias
against him, he should have resorted to the procedure for the removal of HC members provided
for in the Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-motive on the part of the PMA to
prevent Cadet 1 CL Cudia from graduating because the Academy does not stand to gain anything
from his dismissal. On the contrary, in view of his academic standing, the separation militates
against PMA' s mission to produce outstanding, honorable, and exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed. Absent some showing of actual bias,
petitioners' allegations do not hold water. The mere imputation of ill-motive without proof is
speculative at best. Kolesa teaches us that to sustain the challenge, specific evidence must be
presented to overcome
a presumption of honesty and integrity in those serving as adjudicators; and it must convince
that, under a realistic appraisal of psychological tendencies and human weaknesses, conferring
investigative and adjudicative powers on the same individual poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee of due process is to be
implemented.187
Although a CTO like Maj. Hindang must decide whether demerits are to be awarded, he is not an
adversary of the cadet but an educator who shares an identity of interest with the cadet, whom he
counsels from time to time as a future leader.188 When the occasion calls for it, cadets may be
questioned as to the accuracy or completeness of a submitted work. A particular point or issue
may be clarified. In this case, the question asked of Cadet 1 CL Cudia concerning his being late
in class is proper, since there is evidence indicating that a breach of regulation may have
occurred and there is reasonable cause to believe that he was involved in the breach of
regulations.189
For lack of actual proof of bad faith or ill-motive, the Court shall rely on the non-toleration
clause of the Honor Code, i.e., "We do not tolerate those who violate the Code." Cadets are
reminded that they are charged with a tremendous duty far more superior to their personal
feeling or friendship.190 They must learn to help others by guiding them to accept the truth and do
what is right, rather than tolerating actions against truth and justice.191 Likewise, cadets are
presumed to be characteristically honorable; they cannot overlook or arbitrarily ignore the
dishonorable action of their peers, seniors, or subordinates.192 These are what Cadet 1 CL Mogol
exactly did, although he was later proven to have erred in his accusation. Note that even the
Honor Code and Honor System Handbook recognizes that interpretation of one's honor is
generally subjective.193
Moreover, assuming, for the sake of argument, that Cadets 1 CL' Raguindin and Mogol as well
as Brig. Gen. Costales have an axe to grind against Cadet 1 CL Cudia and were bent on causing,
no matter what, the latter's downfall, their nefarious conduct would still be insignificant. This is
so since the HC (both the preliminary and formal investigation), the CRAB, and the Fact-Finding
Board/Investigating Body are collegial bodies. Hence, the claim that the proceedings/hearings
conducted were merely a farce because the three personalities participated therein is tantamount
to implying the existence of a conspiracy, distrusting the competence, independence, and
integrity of the other members who constituted the majority. Again, in the absence of specifics
and substantial evidence, the Court cannot easily give credence to this baseless insinuation.
As to the HC executive session/chambering –
Petitioners narrate that there was an irregular administrative hearing in the case of Cadet 1 CL
Cudia because two voting rounds took place. After the result of the secret balloting, Cadet 1 CL
Mogol ordered the voting members to go to a room without the cadet recorders. Therein, the lone
dissenter, Cadet lCL Lagura, was asked to explain his "not guilty" vote. Pressured to change his
vote, he was made to cast a new one finding Cadet 1 CL Cudia guilty. The original ballot was
discarded and replaced. There was no record of the change in vote from 8-1 to 9-0 that was
mentioned in the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed on March 6, 2014 was submitted by
petitioners since he purportedly recalled Cadet 1 CL Lagura telling him that he was pressured to
change his "not guilty" vote after the voting members were "chambered." In the sworn statement,
Commander Tabuada said:
1. That after CDT lCL CUDIA [was] convicted for honor violation, I [cannot] remember exactly
the date but sometime in the morning of 23rd or 24th of January 2014, I was in my office filling
up forms for the renewal of my passport, CDT 1CL LAGURA entered and had business with my
staff;
2. When he was about to leave I called him. "Lags, halika muna dito," and he approached me and
I let him sit down on the chair in front of my table. I told and asked him, "Talagang nadali si
Cudia ah ... ano ha ang nangyari? Mag-Tagalog or mag-Bisaya ka." He replied, "Talagang NOT
GUILTY ang vote ko sa kanya sir", and I asked him, "Oh, bakit naging guilty di ha pag may
isang nag NOT GUILTY, abswelto na? He replied "Chinamber ako sir, bale pinapa-justify kung
bakit NOT GUILTY vote ko, at na-pressure din ako sir kaya binago ko, sir." So, I told him,
"Sayang sya, matalino at mabait pa naman" and he replied "oo nga sir". After that conversation, I
let him go.194
It is claimed that the HC gravely abused its discretion when it committed voting manipulation
since, under the rules, it is required to have a unanimous nine (9) votes finding an accused cadet
guilty. There is nothing in the procedure that permits the HC Chairman to order the
"chambering" of a member who voted contrary to the majority and subjects him or her to
reconsider in order to reflect a unanimous vote. Neither is there an order from the Chief of Staff
or the President sanctioning the HC procedure or approving any change therein pursuant to
Sections 30 and 31 of C.A. No. 1. The HC, the CRAB, and the PMA violated their own rules and
principles as embodied in the Honor Code. Being a clear deviation from the established
procedures, the second deliberation should be considered null and void.
Petitioners further contend that the requirement of unanimous vote involves a substantive right
which cannot be unceremoniously changed without a corresponding amendment/revision in the
Honor Code and Honor System Handbook. In their view, "chambering" totally defeats the
purpose of voting by secret ballot as it glaringly destroys the very essence and philosophy behind
the provisions of the Honor System, which is to ensure that the voting member is free to vote
what is in his or her heart and mind and that no one can pressure or persuade another to change
his or her vote. They suggest that if one voting member acquits an accused cadet who is
obviously guilty of the offense, the solution is to remove him or her from the HC through the
vote of non-confidence as provided for in the Honor Code.195 Anent the above arguments,
respondents contend that a distinction must be made between the concepts of the Honor Code
and the Honor System. According to them, the former sets the standard for a cadet's, minimum
ethical and moral behavior and does not change, while the latter is a set of rules for the conduct
of the observance and implementation of the· Honor Code and may undergo necessary
adjustments as may be warranted by the incumbent members of the HC in order to be more
responsive to the moral training and character development of the cadets. The HC may provide
guidelines when the Honor System can be used to supplement regulations. This being so, the
voting process is continuously subject to change.
Respondents note that, historically, a non-unanimous guilty verdict automatically acquits a cadet
from the charge of Honor violation. The voting members only write either "guilty" or "not
guilty" in the voting sheets without stating their name or their justification. However, this
situation drew criticisms since there were instances where a reported cadet already admitted his
honor violation but was acquitted due to the lone vote of a sympathetic voting member.
In the case of Cadet 1 CL Cudia, the HC adopted an existing practice that should the voting
result in 7-2 or 8-1 the HC would automatically sanction a jury type of discussion called
"executive session" or "chambering," which is intended to elicit the explanation and insights of
the voting member/s. This prevents the tyranny of the minority or lone dissenter from prevailing
over the manifest proof of guilt. The assailed voting practice has been adopted and widely
accepted by the PMA Siklab Diwa Class of 2014 since their first year in the Academy. The
allegations of conspiracy and sham trial are, therefore, negated by the fact that such practice was
in place and applied to all cases of honor violations, not solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to change vote rests solely on the personal
conviction of the dissenter/s, without any compulsion from the other voting members. There can
also be no pressuring to change one's vote to speak of since a vote may only be considered as
final when the Presiding Officer has affixed his signature.
To debunk Commander Tabuada's statements, respondents raise the argument that the Fact-
Finding Board/Investigating Body summoned Cadet 1 CL Lagura for inquiry. Aside from his
oral testimony made under oath, he submitted to the Board/Body an affidavit explaining that:
11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to
ask permission if it is possible not to attend the Navy duty for the reason that I will be attending
our baseball game outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the
Office, CDR JUNJIE B T ABU ADA PN, our Head Department Naval Warfare Officer, called
my attention. I approached him and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari?" At first, I was hesitant to answer because of the confidentiality of the Honor
Committee proceedings. He again said: "Wag kang mag-alala, atin, atin lang ito, alam ko naman
na bawal magsabi." Then I answered: "Ako yung isang not guilty Sir. Kaya [yung] Presiding
Officer nagsabi na pumunta muna kami sa Chamber. Nung nasa chamber kami, nagsalita [yung]
mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang boto nila Guilty. Nung pakinggan
ko, eh naliwanagan ako. Pinalitan ko yung boto ko from Not Guilty to Guilty Sir." He replied:
"Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa naman at
matalino."196
Cadet 1 CL Lagura restated the above in the Counter-Affidavit executed on March 12, 2014,
which he submitted before the CHR wherein he attested to the following:
3. I was chosen to be a voting member of the Honor Committee for Honor Code violation
committed by Cadet Cudia, for "lying". As a voting member, we are the one who assess or
investigate the case whether the reported Cadet is Guilty for his actions or not.
4. I was the only one who INITIALLY voted "NOT GUILTY" among the nine (9) voting
members of the Honor Committee in the case of Cdt Cudia for Lying.
5. I initially voted "NOT GUILTY" for the reason that after the proceedings and before the
presiding Officer told the members to vote, I was confused of the case of Cadet Cudia. I have
gathered some facts from the investigation to make my decision but for me it is not yet enough to
give my verdict of guilty to Cdt Cudia so I decided to vote "NOT GUILTY" with a reservation in
my mind that we will still be discussing our verdicts if we will arrive at 8-1 or 7-2. Thus, I can
still change my vote if I may be enlightened with the other's justifications.
6. After the votes were collected, the Presiding Officer told us that the vote is 8 for guilty and 1
for not guilty. By way of practice and as I predicted, we were told to go inside the anteroom for
executive meeting and to discuss our respective justifications. I have been a member for two (2)
years and the voting committee will always go for executive meeting whenever it will meet 8-1
or 7-2 votes.
7. I listened to them and they listened to me, then I saw things that enlightened my confusions
that time. I gave a thumbs-up sign and asked for another sheet of voting paper. I then changed
my vote from "NOT GUILTY" to "GUILTY" and the voting members of the Honor Committee
came up with the final vote of nine (9) votes for guilty and zero (0) votes for not guilty.
9. Cdt Cudia was called inside the courtroom and told that the verdict was GUILTY of LYING.
After that, all persons inside the courtroom went back to barracks.
10. Right after I changed to sleeping uniform, I was approached by Cdt Jocson and Cdt Cudia,
inquiring and said: "Bakit ka naman nagpalit ng boto? ., I answered: "Nasa process yan, may
mali talaga sa rason mo." They also asked who were inside the Chamber and I mentioned only
Cdt Arlegui and Cdt Mogol. That was the last time that Cdt Cudia and Cdt Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to
asked (sic) permission if it is possible not to attend the Navy duty for the reason that I will be
attending our baseball game outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the
Office, CDR JUNJIE B TABUADA PN, our Head Department Naval Warfare Officer, called my
attention. I approached him and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari?" At first, I was hesitant to answer because of the confidentiality of the Honor
Committee proceedings. He again said: "Wag kang mag-alala, atin, atin lang ito, alam ko naman
na bawal magsabi. " Then I answered: "Ako yung isang not guilty Sir. Kaya [yung} Presiding
Officer nagsabi na pumunta muna kami sa Chamher. Nung nasa chamber kami, nagsalita [yung]
mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang boto nila Guilty. Nung pakinggan
ko, eh naliwanagan aka. Pinalitan ko yung boto ko from Not Guilty to Guilty Sir. " He replied:
"Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa naman at matalino.
"197
Still not to be outdone, petitioners argue that the very fact that Cadet 1 CL Lagura, as the lone
dissenter, was made to explain in the presence of other HC members, who were in disagreement
with him, gives a semblance of intimidation, force, or pressure. For them, the records of the HC
proceedings, which were not presented assuming they actually exist, could have been the best
way to ensure that he was free to express his views, reject the opinion of the majority, and stick
to his decision. Also, it was pointed out that Cadet 1 CL Lagura failed to clearly explain in his
affidavit why he initially found Cadet 1 CL Cudia "not guilty" and what made him change his
mind. His use of general statements like he "was confused of the case " and "saw things that
enlightened my confusions " could hardly suffice to establish why he changed his vote. Finally,
petitioners note the admission of ·Cadet 1 CL Lagura during the CHR investigation that he was
the only one who was given another ballot sheet while in the chamber and that he accomplished
it in the barracks which he only submitted the following day. However, as the CHR found, the
announcement of the 9-0 vote was done immediately after the HC came out from the chamber
and before Cadet 1 CL Lagura submitted his accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor Code tersely provides:
After a thorough discussion and deliberation, the presiding member of the Board will call for the
members to vote whether the accused is GUILTY or NOT GUILTY. A unanimous vote (9 votes)
of GUILTY decides that a cadet is found guilty of violating the Honor Code.198
From the above-quoted provision, it readily appears that the HC practice of conducting
"executive session" or "chambering" is not at all prohibited. The HC is given leeway on the
voting procedures in' actual cases taking into account the exigency of the times. What is
important is that, in the end, there must be a unanimous nine votes in order to hold a cadet guilty
of violating the Honor Code.
Granting, for argument's sake, that the HC violated its written procedure,199 We still rule that
there is nothing inherently wrong with the practice of "chambering" considering that the presence
of intimidation or force cannot automatically be inferred therefrom. The essence of secret
balloting and the freedom to vote based on what is in the heart and mind of the voting member is
not necessarily diluted by the fact that a second/final voting was conducted. As explained by
Cadet 1CL Mogol before the CRAB:
13. x x x [The] dissenting voter would have to explain his side and insights regarding the case at
hand. The other members, on the other hand, would be given the chance to explain their votes as
well as their insights to the dissenting voter. The decision to change the vote of the dissenting
voter rests solely on his personal conviction. Thus, if he [or she] opted not to change his/her vote
despite the discussion, his [or her] vote is accorded respect by the Honor Committee.200
It is elementary that intimidation or force is never presumed. Mere allegation is definitely not
evidence.1âwphi1 It must be substantiated and proved because a person is presumed to be
innocent of a crime or wrong and that official duty has been regularly performed.201
The oral and written statements of Cadet 1 CL Lagura should settle the issue. Before the Fact-
Finding Board/Investigating Body and the CHR, he consistently denied that he was pressured by
the other voting members of the HC. His representation must be accepted as it is regardless of
whether he has satisfactorily elaborated his decision to change his vote. Being the one who was
"chambered," he is more credible to clarify the issue. In case of doubt, We have to rely on the
faith that Cadet 1 CL Lagura observed the Honor Code, which clearly states that every cadet
must be his or her own Final' Authority in honor; that he or she should not let other cadets dictate
on him or her their sense of honor.202 Moreover, the Code implies that any person can have
confidence that a cadet and any graduate of the PMA will be fair and just in dealing with him;
that his actions, words and ways are sincere and true.203
As to the other alleged "irregularities" committed such as not putting on record the initial/first
voting and Cadet 1CL Lagura's bringing of his ballot sheet to and accomplishing it in the
barracks, the Court shall no longer dwell on the same for being harmless procedural errors that
do not materially affect the validity of the HC proceedings.
Cadet 1 CL Cudia 's alleged untruthful statements
Petitioners insist that Cadet 1 CL Cudia did not lie. According to them, there is no clear time
reference as to when was the actual dismissal or what was the exact time of dismissal - whether it
should be the dismissal inside the room or the dismissal after the section grade was given by Dr.
Costales -in the minds of Cadet 1 CL Cudia, Maj. Hindang, and the HC investigators and voting
members. They claim that during long examinations, the time of dismissal was usually five
minutes before the class was set to end and the protocol of dismissing the class 15 minutes
earlier was not observed. When Maj. Hindang stated in accusatory language that Cadet 1 CL
Cudia perverted the truth by stating that OR432 class ended at 1500H, he did not state what was
the true time of dismissal. He did not mention whether the truth he was relying on was 5 or 15
minutes before the scheduled end of class.
It is also averred that Cadet 1 CL Cudia's only business was to ask Dr. Costales a query such that
his business was already finished as soon as she gave an answer. However, a new business was
initiated by Dr. Costales, which is, Cadet 1 CL Cudia must stay and wait for the section grade. At
that point in time, he was no longer in control of the circumstances. Petitioners claim that Dr.
Costales never categorically stated that Cadet lCL Cudia was lying. She recognized the
confusion. Her text messages to him clarified his alleged violation. Also, the CHR noted during
its investigation that she could not exactly recall what happened in her class on November 14,
2013.
Furthermore, petitioners reasoned out that when respondents stated that ENG412 class started at
3:05 p.m., it proves that Cadet 1 CL Cudia was obviously not late. If, as indicated in his
Delinquency Report, he was late two (2) minutes in his 1500-1600H class in ENG 412, he must
have arrived 3:02 p.m. Respondents, however, claim that the class started at 3:05 p.m. Thus,
Cadet 1 CL Cudia was not late.
Relative to his explanation to the delinquency report, petitioners were of the view that what
appears to have caused confusion in the minds of respondents is just a matter of semantics; that
the entire incident was a product of inaccuracy, not lying. It is malicious for them to insinuate
that Cadet 1 CL Cudia purposely used incorrect language to hide the truth. Citing Merriam
Webster's Dictionary, petitioners argue that "dismiss" means to permit or cause to leave, while
"class" refers to a body of students meeting regularly to study the same subject. According to
them, these two words do not have definite and precise meanings but are generic terms. Other
than the words "class" and "dismiss" used by Cadet 1 CL Cudia, which may actually be used in
their generic sense, there is nothing deceiving about what he said. Thus, the answer he chose
might be wrong or not correct, but it is not false or not true.
For petitioners, Cadet lCL Cudia's explanations are evidently truthful and with no intent to
deceive or mislead. He did not manipulate any fact and was truthful of his explanation. His ..
statements were clear and unambiguous but were given a narrow-minded interpretation. Even the
Honor Code acknowledges that "[e]xperience demonstrates that human communication is
imperfect at best, and some actions are often misinterpreted."
Lastly, petitioners contend that Cadet 1 CL Cudia's transcript of records reflects not only his
outstanding academic performance but proves his good conduct during his four-year stay in the
Academy. He has above-average grades in Conduct, with grades ranging from 96 to 100 in
Conduct I to XI. His propensity to lie is, therefore, far from the truth.
On the other hand, respondents were equally adamant to contend that Cadet 1 CL Cudia was
obviously quibbling, which, in the military parlance, is tantamount to lying. He fell short in
telling a simple truth. He lied by making untruthful statements in his written explanation.
Respondents want Us to consider the following:
First, their OR432 class was not dismissed late. During the formal investigation, Dr. Costales
testified that a class is dismissed as long as the instructor is not there and the bell has rung. In
cases of lesson examinations (LE), cadets are dismissed from the time they have answered their
respective LEs. Here, as Cadet Cudia stated in his Request for Reconsideration of Meted
Punishment, "We had an LE that day (14 November 2013) in OR432 class. When the first bell
rang (1455), I stood up, reviewed my paper and submitted it to my instructor, Ms. Costales. xxx"
Clearly, at the time Cadet Cudia submitted his papers, he was already considered dismissed.
Thus, he cannot claim that his [OR432] class ended at 3:00 in the afternoon (1500H) or "a bit
late."
Second, Cadet Cudia was in control of the circumstances leading to his tardiness. After
submitting his paper, Cadet Cudia is free to leave and attend his next class. However, he initiated
a conversation with Dr. Costales regarding their grades. He was not under instruction by Dr.
Costales to stay beyond the period of her class.
Furthermore, during the investigation of the Fact-Finding Board/Investigating Body, Dr.
Costales clarified her statements in her written explanation. She explained that the "instruction to
wait" is a response to Cadet Cudia' s request and that it was not her initiated instruction. Clearly,
there was no directive from Dr. Costales for Cadet Cudia and the other cadets to stay. On the
contrary, it was them who wanted to meet with the instructor. Third, contrary to Cadet Cudia's
explanation, his subsequent class, ENG412, did not exactly start at 3:00 in the afternoon
(1500H). In the informal review conducted by the HTG to check the findings of the HC,
Professor Berong confirmed that her English class started as scheduled (3:05 in the afternoon, or
1505H) and not earlier. Cadet 1 CL Barrawed, the acting class marcher of ENG412 also testified
that their class started as scheduled (3 :05 in the afternoon, or 1505) and not earlier.204
Respondents were unimpressed with the excuse that Cadet 1 CL Cudia had no intention to
mislead or deceive but merely used wrong and unfitting words in his explanations. For them,
considering his academic standing, it is highly improbable that he used incorrect language to
justify his mistake. Respondents' arguments are tenable.
The issue of whether Cadet 1 CL Cudia committed lying is an issue of fact. Unfortunately for
petitioners, the Court, not being a trier of facts, cannot pass upon factual matters as it is not duty-
bound to analyze and weigh again the evidence considered in the proceedings below. Moreover,
We reiterate the long standing rule that factual findings of administrative tribunals are ordinarily
accorded respect if not finality by the Court. In this case, as shown in the previous discussions,
there is no evidence that the findings of the investigating and reviewing bodies below are not
supported by evidence or vitiated by fraud, imposition or collusion; that the procedure which led
to the findings is irregular; that palpable errors were committed; or that a grave abuse of
discretion, arbitrariness, or capriciousness is manifest. With respect to the core issue of whether
lying is present in this case, all investigating and reviewing bodies are in consonance in holding
that Cadet 1 CL Cudia in truth and in fact lied.
For purposes of emphasis though, We shall supplement some points.
As succinctly worded, the Honor Code of the Cadet Corps Armed Forces of the Philippines
(CCAFP) states: "We, the Cadets, do not lie, cheat, steal, nor tolerate among us those who do. "
The First Tenet of the Honor-Code is "We do not lie. " Cadets violate the Honor Code by lying if
they make an oral or written statement which is contrary to what is true or use doubtful
information with the intent to deceive or mislead.205 It is expected that every cadet's word is
accepted without challenge on its truthfulness; that it is true without qualification; and that the
cadets must answer directly, completely and truthfully even though the answer may result in
punitive action under the CCPB and CCAFPR.206
To refresh, in his Explanation of Report dated December 8, 2013, Cadet 1 CL Cudia justified
that: "I came directly from OR432 Class. We were dismissed a bit late by our instructor Sir."
Subsequently, in his Request for Reconsideration of Meted Punishment to Maj. Leander, he
reasoned out as follows:
I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H
and our 5th period class, which is ENG412, started 1500H also. Immediately after 4t period
class, I went to my next class without any intention of being late Sir.207
In this case, the Court agrees with respondents that Cadet 1 CL Cudia committed quibbling;
hence, he lied in violation of the Honor Code.
Following an Honor Reference Handbook, the term "Quibbling" has been defined in one U.S.
case as follows:
A person can easily create a false impression in the mind of his listener by cleverly wording what
he says, omitting relevant facts, or telling a partial truth. When he knowingly does so with the
intent to deceive or mislead, he is quibbling. Because it is an intentional deception, quibbling is a
form of lying.208
The above definition can be applied in the instant case. Here, instead of directly and completely
telling the cause of his being late in the ENG412 class of Prof. Berong, Cadet 1 CL Cudia chose
to omit relevant facts, thereby, telling a half-truth.
The two elements that must be presented for a cadet to have committed an honor violation are:
1. The act and/or omission, and
2. The intent pertinent to it.
Intent does not only refer to the intent to violate the Honor Code, but intent to commit or omit
the act itself.209
The basic questions a cadet must always seek to answer unequivocally are:
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is doing the honorable thing.210
Intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred
from the facts, and therefore, can only be proved by unguarded expressions, conduct and
circumstances generally.211 In this case, Cadet 1 CL Cudia's intent to deceive is manifested from
the very act of capitalizing on the use of the words "dismiss" and "class." The truth of the matter
is that the ordinary usage of these two terms, in the context of an educational institution, does not
correspond to what Cadet 1 CL Cudia is trying to make it appear. In that sense, the words are not
generic and have definite and precise meaning.
By no stretch of the imagination can Cadets 1 CL Cudia, Miranda, Arcangel, and Narciso already
constitute a "class." The Court cannot agree that such term includes "every transaction and
communication a teacher does with her students." Clearly, it does not take too much intelligence
to conclude that Cadet 1 CL Cudia should have been accurate by pinpointing who were with him
when he was late in the next class. His deceptive explanation is made more obvious when
compared with what Cadets 1 CL Archangel and Narciso wrote in their DR explanation, which
was: "We approached our instructor after our class."212
Further, it is unimportant whether the time of dismissal on November 14, 2013 was five or
fifteen minutes ahead of the scheduled end of class. Worth noting is that even Dr. Costales, who
stood as a witness for Cadet 1 CL Cudia, consistently admitted before the HC, the Fact-Finding
Board/Investigating Body, and the CHR that he was already dismissed when he passed his LE
paper.213 During the hearing of the Board/Body, she also declared that she merely responded to
his request to see the results of the UE 1 and that she had reservations on the phrases "under my
instruction" and "dismissed a bit late" used in his letter of explanation to the HC. In addition, Dr.
Costales manifested her view before the CHR that the act of Cadet 1 CL Cudia of inquiring
about his grade outside their classroom after he submitted his LE paper is not part of the class
time because the consultation, being cadet-initiated, is voluntary.214 Assuming, for the sake of
argument, that a new business was initiated by Dr. Costales when Cadet 1 CL Cudia was asked
to stay and wait for the section grade, still, this does not acquit him. Given such situation, a
responsible cadet who is fully aware of the time constraint has the last say, that is, to politely
decline the invitation and immediately go to the next class. This was not done by Cadet 1 CL
Cudia. Thus, it cannot be said that he already lost control over the circumstances.
It is apparent, therefore, that Cadet 1 CL Cudia cunningly chose words which led to confusion in
the minds of respondents and eventually commenced the HC inquiry. His case is not just a matter
of semantics and a product of plain and simple inaccuracy. There is manipulation of facts and
presentation of untruthful explanation constitutive of Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1 CL Cudia .. While his Transcript of
Records (TOR) may reflect not only his outstanding academic performance but his excellent
grade in subjects on Conduct during his four-year stay in the PMA,215 it does not necessarily
follow that he is innocent of the offense charged. It is enough to say that "evidence that one did
or did not do a certain thing at one time is not admissible to prove that he did or did not do the
same or similar thing at another time."216 While the TOR may be received to prove his identity or
habit as an exceptional PMA student, it does not show his specific intent, plan, or scheme as
cadet accused of committing a specific Honor Code violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code warrants separation of the guilty cadet from
the cadet corps. Under the Cadet Corps Armed Forces of the Philippines Regulation (CCAFPR),
a violation of the Cadet Honor Code is considered Grave (Class 1) delinquency which merits a
recommendation for a cadet's dismissal from the PMA Superintendent. The same is likewise
clear from the Honor Code and Honor System Handbook. Cadet 1 CL Cudia is, therefore,
presumed to know that the Honor Code does not accommodate a gradation or degree of offenses.
There is no difference between a little lie and a huge falsehood. Respondents emphasize that the
Honor Code has always been considered as an absolute yardstick against which cadets have
measured themselves ever since the PMA began and that the Honor Code and System seek to
assure that only those who are able to meet the high standards of integrity and honor are
produced by the PMA. As held in Andrews, it is constitutionally permissible for the military "to
set and enforce uncommonly high standards of conduct and ethics. " Thus, in violating the Honor
Code, Cadet 1 CL Cudia forfeits his privilege to graduate from the PMA.
On their part, petitioners concede that if it is proven that a cadet breached the Honor Code, the
offense warrants his or her dismissal since such a policy may be the only means to maintain and
uphold the spirit of integrity in the military.217 They maintain though that in Cadet 1 CL Cudia's
case there is no need to distinguish between a "little lie" and a "huge falsehood" since he did not
lie at all. Absent any intent to deceive and to take undue advantage, the penalty imposed on him
is considered as unjust and cruel. Under the circumstances obtaining in this case, the penalty of
dismissal is not commensurate to the fact that he is a graduating cadet with honors and what he
allegedly committed does not amount to an academic deficiency or an intentional and flagrant
violation of the PMA non-academic rules and regulations. Citing Non, petitioners argue that the
penalty imposed must be proportionate to the offense. Further, lsabelo, Jr. is squarely applicable
to the facts of the case. Cadet 1 CL Cudia was deprived of his right to education, the only means
by which he may have a secure life and future.
Considering Our finding that Cadet 1 CL Cudia in truth and in fact lied and his acceptance that
violation of the Honor Code warrants the ultimate penalty of dismissal from the PMA, there is
actually no more dispute to resolve. Indeed, the sanction is clearly set forth and Cadet 1 CL
Cudia, by contract, risked this when he entered the Academy.218 We adopt the ruling in
Andrews219 wherein it was held that, while the penalty is severe, it is nevertheless reasonable and
not arbitrary, and, therefore, not in violation of due process. It quoted the disposition of the
district court, thus:
The fact that a cadet will be separated from the Academy upon a finding that he has violated the
Honor Code is known to all cadets even prior to the beginning of their careers there. The finding
of a Code violation by hypothesis includes a finding of scienter on the part of the offender. While
separation is admittedly a drastic and tragic consequence of a cadet's transgression, it is not an
unconstitutionally arbitrary one, but rather a reasonable albeit severe method of preventing men
who have suffered ethical lapses from becoming career officers. That a policy of admonitions or
lesser penalties for single violations might be more compassionate --or even more effective in
achieving the intended result --is quite immaterial to the question of whether the harsher penalty
violates due process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the CHR's recommendations. The CHR,
they note, is a constitutional body mandated by the 1987 Constitution to investigate all forms of
human rights violations involving civil and political rights, and to conduct investigative
monitoring of economic, social, and cultural rights, particularly of vulnerable sectors of society.
Further, it was contended that the results of CHR's investigation and recommendations are so
persuasive that this Court, on several occasions like in the cases of Cruz v. Sec. of Environment
& Natural Resources221 and Ang Ladlad LGBT Party v. Commission on Elections,222 gave its
findings serious consideration. It is not, therefore, too late for the Court to hear what an
independent and unbiased fact-finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v. Commission on Human Rights223 ruled that
the CHR is merely a recommendatory body that is not empowered to arrive at a conclusive
determination of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR are merely recommendatory and,
therefore, not binding to this Court. The reason is that the CHR's constitutional mandate extends
only to the investigation of all forms of human rights violations involving civil and political
rights.224 As held in Cariño v. Commission on Human Rights225 and a number of subsequent
cases,226 the CHR is only a fact-finding body, not a court of justice or a quasi-judicial agency. It
is not empowered to adjudicate claims on the merits or settle actual case or controversies. The
power to investigate is not the same as adjudication:
The most that may be conceded to the Commission in the way of adjudicative power is that it
may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact-finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such, the faculty of receiving evidence
and making factual conclusions in a controversy must be accompanied by the authority of
applying the law to those factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such appeals or modes of review
as may be provided by law. This function, to repeat, the Commission does not have.
xxxx
[i]t cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-
judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the
technical sense, these terms have well understood and quite distinct meanings.
"Investigate, "commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely:
inquire into systematically: "to search or inquire into: x x x to subject to an official probe x x x:
to conduct an official inquiry;" The purpose of investigation, of course, is to discover, to find
out, to learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by application of the law
to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care
and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal
inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d
Adm L Sec. 257; xx x an inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights
and duties of the parties to a court case) on the merits of issues raised: xx to pass judgment on:
settle judicially: x x x act as judge." And "adjudge" means "to decide or rule upon as a judge or
with judicial or quasi-judicial powers: xx to award or grant judicially in a case of controversy x x
x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority.1âwphi1 To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To
pass on judicially, to decide, settle or decree, or to sentence or condemn. xx Implies a judicial
determination of a fact, and the entry of a judgment. "226
All told, petitioners are not entitled to moral and exemplary damages in accordance with Articles
19, 2217, 2219 and 2229 of the Civil Code. The dismissal of Cadet 1 CL Cudia from the PMA
did not effectively deprive him of a future. Cliche though it may sound, being a PMA graduate is
not the "be-all and end-all" of his existence. A cadet separated from the PMA may still continue
to pursue military or civilian career elsewhere without suffering the stigma attached to his or her
dismissal. For one, as suggested by respondents, DND-AFP Circular No. 13, dated July 15,
1991, on the enlistment and reenlistment in the APP Regular Force, provides under Section 14
(b) thereof that priority shall be given to, among others, the ex-PMA or PAFFFS cadets.227 If the
positions open does not appeal to his interest for being way below the rank he could have
achieved as a PMA graduate, Cadet 1 CL Cudia could still practice other equally noble
profession or calling that is best suited to his credentials, competence, and potential. Definitely,
nobody can deprive him of that choice.
WHEREFORE, the Petition is DENIED. The dismissal of Cadet First Class Aldrin Jeff P. Cudia
from the Philippine Military Academy is hereby AFFIRMED. No costs.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
MARIA LOURDES P.A. SERENO ANTONIO T. CARPIO

Chief Justice Associate Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
Associate Justice
On leave
LUCAS P. BERSAMIN
ARTURO D. BRION*
Associate Justice
Associate Justice
MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

No Part
MARVIC M.V.F. LEONEN
FRANCIS H. JARDELEZA**
Associate Justice
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.
Chief Justice
CERTIFIED TRUE COPY
ENRIQUETA ESGUERRA-VIDAL
Clerk of Court
OCC-En Banc
Supreme Court
EN BANC
G.R. No. 238467, February 12, 2019
MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND ODON S.
BANDIOLA, Petitioners, v. RODRIGO R. DUTERTE, PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY;
AND EDUARDO M. AÑO, [SECRETARY] OF THE DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT, Respondents.
DECISION
DEL CASTILLO, J.:
Paradise is a place of bliss, felicity, and delight.1 For Filipinos and foreign nationals alike,
Boracay - a small island in Malay, Aklan, with its palm-fringed, pristine white sand beaches,
azure waters, coral reefs, rare seashells,2 and a lot more to offer,3 - is indeed a piece of paradise.
Unsurprisingly, Boracay is one of the country's prime tourist destinations. However, this island-
paradise has been disrespected, abused, degraded, over-used, and taken advantage of by both
locals and tourists. Hence, the government gave Boracay its much-needed respite and
rehabilitation. However, the process by which the rehabilitation was to be implemented did not
sit well with petitioners, hence, the present petition.
The Case
Before this Court is a Petition for Prohibition and Mandamus with Application for Temporary
Restraining Order, Preliminary Injunction, and/or Status Quo Ante Order filed by petitioners
Mark Anthony V. Zabal (Zabal), Thiting Estoso Jacosalem (Jacosalem), and Odon S. Bandiola
(Bandiola) against respondents President Rodrigo R. Duterte (President Duterte), Executive
Secretary Salvador C. Medialdea, and Secretary Eduardo M. Año of the Department of Interior
and Local Government (DILG).
The Parties
Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of the petition,
were earning a living from the tourist activities therein. Zabal claims to build sandcastles for
tourists while Jacosalem drives for tourists and workers in the island. While not a resident,
Bandiola, for his part, claims to occasionally visit Boracay for business and pleasure. The three
base their locus standi on direct injury and also from the transcendental importance
doctrine.4 Respondents, on the other hand, are being sued in their capacity as officials of the
government.
The Facts
Claiming that Boracay has become a cesspool, President Duterte first made public his plan to
shut it down during a business forum held in Davao sometime February 2018.5 This was
followed by several speeches and news releases stating that he would place Boracay under a state
of calamity. True to his words, President Duterte ordered the shutting down of the island in a
cabinet meeting held on April 4, 2018. This was confirmed by then Presidential Spokesperson
Harry L. Roque, Jr. in a press briefing the following day wherein he formally announced that the
total closure of Boracay would be for a maximum period of six months starting April 26, 2018.6
Following this pronouncement, petitioners contend that around 630 police and military personnel
were readily deployed to Boracay including personnel for crowd dispersal management.7 They
also allege that the DILG had already released guidelines for the closure.8
Petitioners claim that ever since the news of Boracay's closure came about, fewer tourists had
been engaging the services of Zabal and Jacosalem such that their earnings were barely enough
to feed their families. They fear that if the closure pushes through, they would suffer grave and
irreparable damage. Hence, despite the fact that the government was then yet to release a formal
issuance on the matter,9 petitioners filed the petition on April 25, 2018 praying that:
(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING ORDER (TRO) and/or a
WRIT OF PRELIMINARY PROHIBITORY INJUNCTION be immediately issued
RESTRAINING and/or ENJOINING the respondents, and all persons acting under their
command, order, and responsibility from enforcing a closure of Boracay Island or from
banning the petitioners, tourists, and non-residents therefrom, and a WRIT OF
PRELIMINARY MANDATORY INJUNCTION directing the respondents, and all persons
acting under their command, order, and responsibility to ALLOW all of the said persons to
enter and/or leave Boracay Island unimpeded;
(b) In the alternative, if the respondents enforce the closure after the instant petition is filed, that
a STATUS QUO ANTE Order be issued restoring and maintaining the condition prior to
such closure;
(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING and/or

ENJOINING the respondents, and all persons acting under their command, order, and
responsibility from enforcing a closure of Boracay Island or from banning the petitioners,
tourists, and non-residents therefrom, and further DECLARING the closure of Boracay
Island or the ban against petitioners, tourists, and non-residents therefrom to be
UNCONSTITUTIONAL.
Other reliefs just and equitable under the premises are similarly prayed for.10
On May 18, 2018, petitioners filed a Supplemental Petition11 stating that the day following the
filing of their original petition or on April 26, 2018, President Duterte issued Proclamation No.
47512 formally declaring a state of calamity in Boracay and ordering its closure for six months
from April 26, 2018 to October 25, 2018. The closure was implemented on even date. Thus, in
addition to what they prayed for in their original petition, petitioners implore the Court to declare
as unconstitutional Proclamation No. 475 insofar as it orders the closure of Boracay and ban of
tourists and nonresidents therefrom.13
In the Resolutions dated April 26, 201814 and June 5, 2018,15 the Court required respondents to
file their Comment on the Petition and the Supplemental Petition, respectively. Respondents filed
their Consolidated Comment16 on July 30, 2018 while petitioners filed their Reply17 thereto on
October 12, 2018.
On October 26, 2018, Boracay was reopened to tourism.
Petitioners' Arguments
Petitioners state that a petition for prohibition is the appropriate remedy to raise constitutional
issues and to review and/or prohibit or nullify, when proper, acts of legislative and executive
officials. An action for mandamus, on the other hand, lies against a respondent who unlawfully
excludes another from the enjoyment of an entitled right or office. Justifying their resort to
prohibition and mandamus, petitioners assert that (1) this case presents constitutional issues, i.e.,
whether President Duterte acted within the scope of the powers granted him by the Constitution
in ordering the closure of Boracay and, whether the measures implemented infringe upon the
constitutional rights to travel and to due process of petitioners as well as of tourists and non-
residents of the island; and, (2) President Duterte exercised a power legislative in nature, thus
unlawfully excluding the legislative department from the assertion of such power.
As to the substantive aspect, petitioners argue that Proclamation No. 475 is an invalid exercise of
legislative powers. They posit that its issuance is in truth a law-making exercise since the
proclamation imposed a restriction on the right to travel and therefore substantially altered the
relationship between the State and its people by increasing the former's power over the latter.
Simply stated, petitioners posit that Proclamation No. 475 partakes of a law the issuance of
which is not vested in the President. As such, Proclamation No. 475 must be struck down for
being the product of an invalid exercise of legislative power.
Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for infringing on the
constitutional rights to travel and to due process.
Petitioners point out that although Section 6, Article III of the Constitution explicitly allows the
impairment of the right to travel, two conditions, however, must concur to wit: (1) there is a law
restricting the said right, and (2) the restriction is based on national security, public safety or
public health. For petitioners, neither of these conditions have been complied with. For one,
Proclamation No. 475 does not refer to any specific law restricting the right to travel. Second, it
has not been shown that the presence of tourists in the island poses any threat or danger to
national security, public safety or public health.
As to the right to due process, petitioners aver that the same covers property rights and these
include the right to work and earn a living. Since the government, through Proclamation No. 475,
restricted the entry of tourists and non-residents into the island, petitioners claim that they, as
well as all others who work, do business, or earn a living in the island, were deprived of the
source of their livelihood as a result thereof. Their right to work and earn a living was curtailed
by the proclamation. Moreover, while Proclamation No. 475 cites various violations of
environmental laws in the island, these, for the petitioners, do not justify disregard of the rights
of thousands of law-abiding people. They contend that environmental laws provide for specific
penalties intended only for violators. Verily, to make those innocent of environmental
transgressions suffer the consequences of the Boracay closure is tantamount to violating their
right to due process.
Petitioners likewise argue that the closure of Boracay could not be anchored on police power.
For one, police power must be exercised not by the executive but by legislative bodies through
the creation of statutes and ordinances that aim to promote the health, moral, peace, education,
safety, and general welfare of the people. For another, the measure is unreasonably unnecessary
and unduly oppressive.
In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly impinges upon
the local autonomy of affected Local Government Units (LGUs) since it orders the said LGUs to
implement the closure of Boracay and the ban of tourists and non-residents therefrom. While
petitioners acknowledge the President's power of supervision over LGUs, they nevertheless point
out that he does not wield the power of control over them. As such, President Duterte can only
call the attention of the LGUs concerned with regard to rules not being followed, which is the
true essence of supervision, but he cannot lay down the rules himself as this already constitutes
control.
Finally, petitioners state that this case does not simply revolve on the need to rehabilitate
Boracay, but rather, on the extent of executive power and the manner by which it was wielded by
President Duterte. To them, necessity does not justify the President's abuse of power.
Respondents' Arguments
At the outset, respondents assert that President Duterte must be dropped as party-respondent in
this case because he is immune from suit. They also argue that the petition should be dismissed
outright for lack of basis. According to respondents, prohibition is a preventive remedy to
restrain future action. Here, President Duterte had already issued Proclamation No. 475 and in
fact, the rehabilitation of the island was then already ongoing. These, according to respondents,
have rendered improper the issuance of a writ of prohibition considering that as a rule,
prohibition does not lie to restrain an act that is already fait accompli. Neither
is mandamus proper. Section 3, Rule 65 of the Rules of Court provides that a mandamus petition
may be resorted to when any tribunal, corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station. Respondents argue that mandamus will not lie in this case because they were not
neglectful of their duty to protect the environment; on the contrary, they conscientiously
performed what they were supposed to do by ordering the closure of Boracay to give way to its
rehabilitation. Thus, to them, mandamus is obviously inappropriate.
At any rate, respondents contend that there is no real justiciable controversy in this case. They
see no clash between the right of the State to preserve and protect its natural resources and the
right of petitioners to earn a living. Proclamation No. 475 does not prohibit anyone from being
gainfully employed.
Respondents moreover maintain that the petition is in the nature of a Strategic Lawsuit Against
Public Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or the Rules of Procedure for
Environmental Cases, or a legal action filed to harass, vex, exert undue pressure or stifle any
legal recourse that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of environmental
rights. Respondents thus assert that the petition must be dismissed since it was filed for the said
sole purpose.
With regard to the substantive aspect, respondents contend that the issuance of Proclamation No.
475 is a valid exercise of delegated legislative power, it being anchored on Section 16 of
Republic Act (RA) No. 10121, otherwise known as the Philippine Disaster Risk Reduction and
Management Act of 2010, or the authority given to the President to declare a state of
calamity, viz.:
SECTION 16. Declaration of State of Calamity. - The National Council shall recommend to the
President of the Philippines the declaration of a cluster of barangays, municipalities, cities,
provinces, and regions under a state of calamity, and the lifting thereof, based on the criteria set
by the National Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.
xxxx
They likewise contend that Proclamation No. 475 was issued pursuant to the President's
executive power under Section 1, Article VII of the Constitution. As generally defined, executive
power is the power to enforce and administer laws. It is the power of implementing the laws and
enforcing their due observance. And in order to effectively discharge the enforcement and
administration of the laws, the President is granted administrative power over bureaus and
offices, which includes the power of control. The power of control, in turn, refers to the authority
to direct the performance of a duty, restrain the commission of acts, review, approve, reverse or
modify acts and decisions of subordinate officials or units, and prescribe standards, guidelines,
plans and programs. Respondents allege that President Duterte's issuance of Proclamation No.
475 was precipitated by his approval of the recommendation of the National Disaster Risk
Reduction and Management Council (NDRRMC) to place Boracay under a state of calamity. By
giving his imprimatur, it is clear that the President merely exercised his power of control over
the executive branch.
In any case, respondents assert that the President has residual powers which are implied from the
grant of executive power and which are necessary for him to comply with his duties under the
Constitution as held in the case of Marcos v. Manglapus.18
In sum, respondents emphasize that the issuance of Proclamation No. 475 is within the ambit of
the powers of the President, not contrary to the doctrine of separation of powers, and in
accordance with the mechanism laid out by the Constitution.
Further, respondents dispute petitioners' allegation that Proclamation No. 475 infringes upon the
rights to travel and to due process. They emphasize that the right to travel is not an absolute
right. It may be impaired or restricted in the interest of national security, public safety, or public
health. In fact, there are already several existing laws which serve as statutory limitations to the
right to travel.
Anent the alleged violation of the right to due process, respondents challenge petitioners' claim
that they were deprived of their livelihood without due process. Respondents call attention to the
fact that Zabal as sandcastle maker and Jacosalem as driver are freelancers and thus belong to the
informal economy sector. This means that their source of livelihood is never guaranteed and is
susceptible to changes in regulations and the over-all business climate. In any case, petitioners'
contentions must yield to the State's exercise of police power. As held in Ermita-Malate Hotel &
Motel Operators Association, Inc. v. The Hon. City Mayor of Manila,19 the mere fact that some
individuals in the community may be deprived of their present business or of a particular mode
of living cannot prevent the exercise of the police power of the State. Indeed, to respondents,
private interests should yield to the reasonable prerogatives of the State for the public good and
welfare, which precisely are the primary objectives of the government measure herein questioned
Lastly, respondents insist that Proclamation No. 475 does not unduly transgress upon the local
autonomy of the LGUs concerned. Under RA 10121, it is actually the Local Disaster Risk
Reduction Management Council concerned which, subject to several criteria, is tasked to take the
lead in preparing for, responding to, and recovering from the effects of any disaster when a state
of calamity is declared. In any case, the devolution of powers upon LGUs pursuant to the
constitutional mandate of ensuring their autonomy does not mean that the State can no longer
interfere in their affairs. This is especially true in this case since Boracay's environmental
disaster cannot be treated as a localized problem that can be resolved by the concerned LGUs
only. The magnitude and gravity of the problem require the intervention and assistance of
different national government agencies in coordination with the concerned LGUs.
As a final point, respondents aver that the bottom line of petitioners' lengthy discourse and
constitutional posturing is their intention to re-open Boracay to tourists and non-residents for the
then remainder of the duration of the closure and thus perpetuate and further aggravate the
island's environmental degradation. Respondents posit that this is unacceptable since Boracay
cannot be sacrificed for the sake of profit and personal convenience of the few.
Our Ruling
First, we discuss the procedural issues.
President Duterte is dropped as respondent in this case
As correctly pointed out by respondents, President Duterte must be dropped as respondent in this
case. The Court's pronouncement in Professor David v. President Macapagal-Arroyo20 on the
non-suability of an incumbent President cannot be any clearer, viz.:
x x x Settled is the doctrine that the President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government.21
Accordingly, President Duterte is dropped as respondent in this case.
Propriety of Prohibition and Mandamus
Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as follows:
SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or in
excess of jurisdiction, and there is no appeal or any other 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 commanding the
respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.
xxxx
"Indeed, prohibition is a preventive remedy seeking that a judgment be rendered directing the
defendant to desist from continuing with the commission of an act perceived to be illegal. As a
rule, the proper function of a writ of prohibition is to prevent the performance of an act which is
about to be done. It is not intended to provide a remedy for acts already accomplished."22
Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:
SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent.
xxxx
"As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer,
or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting
from an office, trust, or station."23
It is upon the above-discussed contexts of prohibition and mandamus that respondents base their
contention of improper recourse. Respondents maintain that prohibition is not proper in this case
because the closure of Boracay is already a fait accompli. Neither is mandamus appropriate since
there is no neglect of duty on their part as they were precisely performing their duty to protect
the environment when the closure was ordered.
Suffice it to state, however, that the use of prohibition and mandamus is not merely confined to
Rule 65. These extraordinary remedies may be invoked when constitutional violations or issues
are raised. As the Court stated in Spouses Imbong v. Hon. Ochoa, Jr.:24
As far back as Tañada v. Angara, the Court has unequivocally declared
that certiorari, prohibition and mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials, as there is no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC, Aldaba v. COMELEC,
Magallona v. Ermita, and countless others. In Tañada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. 'The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld.' Once a 'controversy as to the application or interpretation of
constitutional provision is raised before this Court, as in the instant case, it becomes a legal issue
which the Court is bound by constitutional mandate to decide. x x x25 (Citations omitted;
emphasis supplied)
It must be stressed, though, that resort to prohibition and mandamus on the basis of alleged
constitutional violations is not without limitations. After all, this Court does not have
unrestrained authority to rule on just about any and every claim of constitutional violation.26 The
petition must be subjected to the four exacting requisites for the exercise of the power of judicial
review, viz.: (a) there must be an actual case or controversy; (b) the 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.27 Hence, it is
not enough that this petition mounts a constitutional challenge against Proclamation No. 475. It
is likewise necessary that it meets the aforementioned requisites before the Court sustains the
propriety of the recourse.
Existence of Requisites for Judicial Review
In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,28 an actual case or controversy was
characterized as a "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.
The power does not extend to hypothetical questions since any attempt at abstraction could only
lead to dialectics and barren legal question and to sterile conclusions unrelated to actualities."29
The existence of an actual controversy in this case is evident. President Duterte issued
Proclamation No. 475 on April 26, 2018 and, pursuant thereto, Boracay was temporarily closed
the same day. Entry of non-residents and tourists to the island was not allowed until October 25,
2018. Certainly, the implementation of the proclamation has rendered legitimate the concern of
petitioners that constitutional rights may have possibly been breached by this governmental
measure. It bears to state that when coupled with sufficient facts, "reasonable certainty of the
occurrence of a perceived threat to any constitutional interest suffices to provide a basis for
mounting a constitutional challenge".30 And while it may be argued that the reopening of
Boracay has seemingly rendered moot and academic questions relating to the ban of tourists and
non-residents into the island, abstention from judicial review is precluded by such possibility of
constitutional violation and also by the exceptional character of the situation, the paramount
public interest involved, and the fact that the case is capable of repetition.31
As to legal standing, petitioners assert that they were directly injured since their right to travel
and, their right to work and earn a living which thrives solely on tourist arrivals, were affected by
the closure. They likewise want to convince the Court that the issues here are of transcendental
importance since according to them, the resolution of the same will have far-reaching
consequences upon all persons living and working in Boracay; upon the Province of Aklan
which is heavily reliant on the island's tourism industry; and upon the whole country considering
that fundamental constitutional rights were allegedly breached.
"Legal standing or locus standi is a party's personal and substantial interest in a case such that he
has sustained or will sustain direct injury as a result of the governmental act being challenged. It
calls for more than just a generalized grievance. The term 'interest' means a material interest, an
interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest."32 There must be a present substantial interest and not a
mere expectancy or a future, contingent, subordinate, or consequential interest.33
In Galicto v. Aquino III,34 the therein petitioner, Jelbert B. Galicto (Galicto) questioned the
constitutionality of Executive Order No. 7 (EO7) issued by President Benigno Simeon C. Aquino
III, which ordered, among others, a moratorium on the increases in the salaries and other forms
of compensation of all government-owned-and-controlled corporations (GOCCs) and
government financial institutions. The Court held that Galicto, an employee of the GOCC
Philhealth, has no legal standing to assail EO7 for his failure to demonstrate that he has a
personal stake or material interest in the outcome of the case. His interest, if any, was speculative
and based on a mere expectancy. Future increases in his salaries and other benefits were
contingent events or expectancies to which he has no vested rights. Hence, he possessed no locus
standi to question the curtailment thereof.
Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver. The nature of their
livelihood is one wherein earnings are not guaranteed. As correctly pointed out by respondents,
their earnings are not fixed and may vary depending on the business climate in that while they
can earn much on peak seasons, it is also possible for them not to earn anything on lean seasons,
especially when the rainy days set in. Zabal and Jacosalem could not have been oblivious to this
kind of situation, they having been in the practice of their trade for a considerable length of time.
Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere projected earnings
which are in no way guaranteed, and are sheer expectancies characterized as contingent,
subordinate, or consequential interest, just like in Galicto. Concomitantly, an assertion of direct
injury on the basis of loss of income does not clothe Zabal and Jacosalem with legal standing.
As to Bandiola, the petition is bereft of any allegation as to his substantial interest in the case and
as to how he sustained direct injury as a result of the issuance of Proclamation No. 475. While
the allegation that he is a non-resident who occasionally goes to Boracay for business and
pleasure may suggest that he is claiming direct injury on the premise that his right to travel was
affected by the proclamation, the petition fails to expressly provide specifics as to how. "It has
been held that a party who assails the constitutionality of a statute must have a direct and
personal interest. [He] must show not only that the law or any governmental act is invalid, but
also that [he] sustained or is in immediate danger of sustaining some direct injury as a result of
its enforcement, and not merely that [he] suffers thereby in some indefinite way. [He] must show
that [he] has been or is about to be denied some right or privilege to which [he] is lawfully
entitled or that [he] is about to be subjected to some burdens or penalties by reason of the statute
or act complained of."35 Indeed, the petition utterly fails to demonstrate that Bandiola possesses
the requisite legal standing to sue.
Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to proceed to
its ultimate conclusion due to its transcendental importance. After all, the rule on locus standi is
a mere procedural technicality, which the Court, in a long line of cases involving subjects of
transcendental importance, has waived or relaxed, thus allowing non-traditional plaintiffs such as
concerned citizens, taxpayers, voters and legislators to sue in cases of public interest, albeit they
may not have been personally injured by a government act.36 More importantly, the matters
raised in this case, involved on one hand, possible violations of the Constitution and, on the
other, the need to rehabilitate the country's prime tourist destination. Undeniably, these matters
affect public interests and therefore are of transcendental importance to the people. In addition,
the situation calls for review because as stated, it is capable of repetition, the Court taking
judicial notice of the many other places in our country that are suffering from similar
environmental degradation.
As to the two other requirements, their existence is indubitable. It will be recalled that even
before a formal issuance on the closure of Boracay was made by the government, petitioners
already brought the question of the constitutionality of the then intended closure to this Court.
And, a day after Proclamation No. 475 was issued, they filed a supplemental petition impugning
its constitutionality. Clearly, the filing of the petition and the supplemental petition signals the
earliest opportunity that the constitutionality of the subject government measure could be raised.
There can also be no denying that the very lis mota of this case is the constitutionality of
Proclamation No. 475.
Defense of SLAPP
Suffice it to state that while this case touches on the environmental issues in Boracay, the
ultimate issue for resolution is the constitutionality of Proclamation No. 475. The procedure in
the treatment of a defense of SLAPP provided for under Rule 6 of the Rules of Procedure for
Environmental Cases should not, therefore, be made to apply.
Now as to the substantive issues.
We first quote in full Proclamation No. 475.
PROCLAMATION No. 475
DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-
MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY,
AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION
WHEREAS, Section 15, Article II of the 1987 Constitution states that the State shall protect and
promote the right to health of the people and instill health consciousness among them;
WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is the policy of the
State to protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature;
WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the State shall protect
the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic
zone;
WHEREAS, an Inter-Agency Task Force, composed of the Department of Environment and
Natural Resources (DENR), the [DILG] and the Department of Tourism (DOT), was established
to evaluate the environmental state of the Island of Boracay, and investigate possible violations
of existing environmental and health laws, rules and regulations;
WHEREAS, the investigations and validation undertaken revealed that:
a. There is a high concentration of fecal coliform in the Bolabog beaches located in the
eastern side of Boracay Island due to insufficient sewer lines and illegal discharge of
untreated waste water into the beach, with daily tests conducted from 6 to 10 March 2018
revealing consistent failure in compliance with acceptable water standards, with an
average result of 18,000 most probable number (MPN)/100ml, exceeding the standard
level of 400 MPN/100ml;
b. Most commercial establishments and residences are not connected to the sewerage
infrastructure of Boracay Island, and waste products are not being disposed through the
proper sewerage infrastructures in violation of environmental law, rules, and regulations;
c. Only 14 out of 51 establishments near the shores of Boracay Island are compliant with
the provision of Republic Act (RA) No. 9275 or the Philippine Clean Water Act of 2004;
d. Dirty water results in the degradation of the coral reefs and coral cover of Boracay Island,
which declined by approximately 70.5% from 1988 to 2011, with the highest decrease
taking place between 2008 and 2011 during a period of increased tourist arrivals
(approximately 38.4%);
e. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per day, while
the hauling capacity of the local government is only 30 tons per day, hence, leaving
approximately 85 tons of waste in the Island daily;
f. The natural habitats of Puka shells, nesting grounds of marine turtles, and roosting
grounds of flying foxes or fruit bats have been damaged and/or destroyed; and
g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to illegal
encroachment of structures, including 937 identified illegal structures constructed on
forestlands and wetlands, as well as 102 illegal structures constructed on areas already
classified as easements, and the disappearance of the wetlands, which acts as natural
catchments, enhances flooding in the area;
WHEREAS, the findings of the Department of Science and Technology (DOST) reveal that
beach erosion is prevalent in Boracay Island, particularly along the West Beach, where as much
as 40 meters of erosion has taken place in the past 20 years from 1993 to 2003, due to storms,
extraction of sand along the beach to construct properties and structures along the foreshore, and
discharge of waste water near the shore causing degradation of coral reefs and seagrass meadows
that supply the beach with sediments and serve as buffer to wave action;
WHEREAS, the DOST also reports that based on the 2010-2015 Coastal Ecosystem
Conservation and Adaptive Management Study of the Japan International Cooperation Agency,
direct discharge of waste water near the shore has resulted in the frequent algal bloom and coral
deterioration, which may reduce the source of sand and cause erosion;
WHEREAS, the data from the Region VI - Western Visayas Regional Disaster Risk Reduction
and Management Council shows that the number of tourists in the island in a day amounts to
18,082, and the tourist arrival increased by more than 160% from 2012 to 2017;
WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and waste management
system, and environmental violations of establishments aggravate the environmental degradation
and destroy the ecological balance of the Island of Boracay, resulting in major damage to
property and natural resources, as well as the disruption of the normal way of life of the people
therein;
WHEREAS, it is necessary to implement urgent measures to address the abovementioned
human-induced hazards, to protect and promote the health and well-being of its residents,
workers and tourists, and to rehabilitate the Island in order to ensure the sustainability of the area
and prevent further degradation of its rich ecosystem;
WHEREAS, RA No. 9275 provides that the DENR shall designate water bodies, or portions
thereof, where specific pollutants from either natural or man-made source have already exceeded
water quality guidelines as non-attainment areas for the exceeded pollutants and shall prepare
and implement a program that will not allow new sources of exceeded water pollutant in non-
attainment areas without a corresponding reduction in discharges from existing sources;
WHEREAS, RA No. 9275 also mandates the DENR, in coordination with other concerned
agencies and the private sectors, to take such measures as may be necessary to upgrade the
quality of such water in non-attainment areas to meet the standards under which it has been
classified, and the local government units to prepare and implement contingency plans and other
measures including relocation, whenever necessary, for the protection of health and welfare of
the residents within potentially affected areas;
WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay into 377.68
hectares of reserved forest land for protection purposes and 628.96 hectares of agricultural land
as alienable and disposable land;
WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent jurisprudence,
whereby all lands not privately owned belong to the State, the entire island of Boracay is state-
owned, except for lands already covered by existing valid titles;
WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction and
Management Act of 2010, the National Disaster Risk Reduction and Management Council has
recommended the declaration of a State of Calamity in the Island of Boracay and the temporary
closure of the Island as a tourist destination to ensure public safety and public health, and to
assist the government in its expeditious rehabilitation, as well as in addressing the evolving
socio-economic needs of affected communities;
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue
of the powers vested in me by the Constitution and existing laws, do hereby declare a State of
Calamity in the barangays of Balabag, Manoc-Manoc and Yapak (Island of Boracay) in the
Municipality of Malay, Aklan. In this regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or until 25 October 2018, is hereby ordered
subject to applicable laws, rules, regulations and jurisprudence.
Concerned government agencies shall, as may be necessary or appropriate, undertake the
remedial measures during a State of Calamity as provided in RA No. 10121 and other applicable
laws, rules and regulations, such as control of the prices of basic goods and commodities for the
affected areas, employment of negotiated procurement and utilization of appropriate funds,
including the National Disaster Risk Reduction and Management Fund, for relief and
rehabilitation efforts in the area. All departments and other concerned government agencies are
also hereby directed to coordinate with, and provide or augment the basic services and facilities
of affected local government units, if necessary.
The State of Calamity in the Island of Boracay shall remain in force and effect until lifted by the
President, notwithstanding the lapse of the six-month closure period.
All departments, agencies and offices, including government-owned or controlled corporations
and affected local government units are hereby directed to implement and execute the
abovementioned closure and the appropriate rehabilitation works, in accordance with pertinent
operational plans and directives, including the Boracay Action Plan.
The Philippine National Police, Philippine Coast Guard and other law enforcement agencies,
with the support of the Armed Forces of the Philippines, are hereby directed to act with restraint
and within the bounds of the law in the strict implementation of the closure of the Island and
ensuring peace and order in the area.
The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist will be
allowed entry to the island of Boracay until such time that the closure has been lifted by the
President.
All tourists, residents and establishment owners in the area are also urged to act within the
bounds of the law and to comply with the directives herein provided for the rehabilitation and
restoration of the ecological balance of the Island which will be for the benefit of all concerned.
It must be noted at the outset that petitioners failed to present and establish the factual bases of
their arguments because they went directly to this Court. In ruling on the substantive issues in
this case, the Court is, thus, constrained to rely on, and uphold the factual bases, which prompted
the issuance of the challenged proclamation, as asserted by respondents. Besides, executive
determinations, such as said factual bases, are generally final on this Court.37
The Court observes that the meat of petitioners' constitutional challenge on Proclamation No.
475 is the right to travel.
Clearly then, the one crucial question that needs to be preliminarily answered is - does
Proclamation No. 475 constitute an impairment on the right to travel?
The Court answers in the negative.
Proclamation No. 475 does not pose an actual impairment on the right to travel
Petitioners claim that Proclamation No. 475 impairs the right to travel based on the following
provisions:
destination for six (6) months starting 26 April 2018, or until 25 October 2018, is hereby
ordered subject to applicable laws, rules, regulations and jurisprudence.
xxxx
allowed entry to the island of Boracay until such time that the closure has been lifted by the
President.
xxxx
The activities proposed to be undertaken to rehabilitate Boracay involved inspection, testing,
demolition, relocation, and construction. These could not have been implemented freely and
smoothly with tourists coming in and out of the island not only because of the possible disruption
that they may cause to the works being undertaken, but primarily because their safety and
convenience might be compromised. Also, the contaminated waters in the island were not just
confined to a small manageable area. The excessive water pollutants were all over Bolabog
beach and the numerous illegal drainpipes connected to and discharging wastewater over it
originate from different parts of the island. Indeed, the activities occasioned by the necessary
digging of these pipes and the isolation of the contaminated beach waters to give way to
treatment could not be done in the presence of tourists. Aside from the dangers that these
contaminated waters pose, hotels, inns, and other accommodations may not be available as they
would all be inspected and checked to determine their compliance with environmental laws.
Moreover, it bears to state that a piece-meal closure of portions of the island would not suffice
since as mentioned, illegal drainpipes extend to the beach from various parts of Boracay. Also,
most areas in the island needed major structural rectifications because of numerous resorts and
tourism facilities which lie along easement areas, illegally reclaimed wetlands, and of forested
areas that were illegally cleared for construction purposes. Hence, the need to close the island in
its entirety and ban tourists therefrom.
In fine, this case does not actually involve the right to travel in its essential sense contrary to
what petitioners want to portray. Any bearing that Proclamation No. 475 may have on the right
to travel is merely corollary to the closure of Boracay and the ban of tourists and non-residents
therefrom which were necessary incidents of the island's rehabilitation. There is certainly no
showing that Proclamation No. 475 deliberately meant to impair the right to travel. The
questioned proclamation is clearly focused on its purpose of rehabilitating Boracay and any
intention to directly restrict the right cannot, in any manner, be deduced from its import. This is
contrary to the import of several laws recognized as constituting an impairment on the right to
travel which directly impose restriction on the right, viz.:
[1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the right
travel of an individual charged with the crime of terrorism even though such person is out on
bail.
[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of,
or withdraw, a passport of a Filipino citizen.
[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the provisions thereof,
the Bureau of Immigration, in order to manage migration and curb trafficking in persons, issued
Memorandum Order Radjr No. 2011-011, allowing its Travel Control and Enforcement Unit to
'offload passengers with fraudulent travel documents, doubtful purpose of travel, including
possible victims of human trafficking' from our ports.
[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended by
R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment
Administration (POEA) may refuse to issue deployment permit[s] to a specific country that
effectively prevents our migrant workers to enter such country.
[5] The Act on Violence Against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
[6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee's right to travel 'to protect the Filipino
child from abuse, exploitation, trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the child.'38
In Philippine Association of Service Exporters, Inc. v. Hon. Drilon,39 the Court held that the
consequence on the right to travel of the deployment ban implemented by virtue of Department
Order No. 1, Series of 1998 of the Department of Labor and Employment does not impair the
right.
Also significant to note is that the closure of Boracay was only temporary considering the
categorical pronouncement that it was only for a definite period of six months.
Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not direct but merely
consequential; and, the same is only for a reasonably short period of time or merely temporary.
In this light, a discussion on whether President Duterte exercised a power legislative in nature
loses its significance. Since Proclamation No. 475 does not actually impose a restriction on the
right to travel, its issuance did not result to any substantial alteration of the relationship between
the State and the people. The proclamation is therefore not a law and conversely, the President
did not usurp the law-making power of the legislature.
For obvious reason, there is likewise no more need to determine the existence in this case of the
requirements for a valid impairment of the right to travel.
Even if it is otherwise, Proclamation No. 475 must be upheld for being in the nature of a valid
police power measure
Police power, amongst the three fundamental and inherent powers of the state, is the most
pervasive and comprehensive.40 "It has been defined as the 'state authority to enact legislation
that may interfere with personal liberty or property in order to promote general welfare."41 "As
defined, it consists of (1) imposition or restraint upon liberty or property, (2) in order to foster
the common good. It is not capable of exact definition but has been purposely, veiled in general
terms to underscore its all-comprehensive embrace."42 The police power "finds no specific
Constitutional grant for the plain reason that it does not owe its origin to the Charter"43 since "it
is inborn in the very fact of statehood and sovereignty."44 It is said to be the "inherent and
plenary power of the State which enables it to prohibit all things hurtful to the comfort, safety,
and welfare of the society."45 Thus, police power constitutes an implied limitation on the Bill of
Rights.46 After all, "the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. 'Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one's will.' It is subject to the far more overriding demands and
requirements of the greater number."47
"Expansive and extensive as its reach may be, police power is not a force without limits."48 "It
has to be exercised within bounds – lawful ends through lawful means, i.e., that the interests of
the public generally, as distinguished from that of a particular class, require its exercise, and that
the means employed are reasonably necessary for the accomplishment of the purpose while not
being unduly oppressive upon individuals."49
That the assailed governmental measure in this case is within the scope of police power cannot
be disputed. Verily, the statutes50 from which the said measure draws authority and the
constitutional provisions51 which serve as its framework are primarily concerned with the
environment and health, safety, and well-being of the people, the promotion and securing of
which are clearly legitimate objectives of governmental efforts and regulations. The motivating
factor in the issuance of Proclamation No. 475 is without a doubt the interest of the public in
general. The only question now is whether the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
The pressing need to implement urgent measures to rehabilitate Boracay is beyond cavil from the
factual milieu that precipitated the President's issuance of Proclamation No. 475. This necessity
is even made more critical and insistent by what the Court said in Oposa v. Hon. Factoran,
Jr.52 in regard the rights to a balanced and healthful ecology and to health, which rights are
likewise integral concerns in this case. Oposa warned that unless the rights to a balanced and
healthful ecology and to health are given continuing importance and the State assumes its solemn
obligation to preserve and protect them, the time will come that nothing will be left not only for
this generation but for the generations to come as well.53 It further taught that the right to a
balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment.54
Against the foregoing backdrop, we now pose this question: Was the temporary closure of
Boracay as a tourist destination for six months reasonably necessary under the
circumstances? The answer is in the affirmative.
As earlier noted, one of the root causes of the problems that beset Boracay was tourist influx.
Tourist arrivals in the island were clearly far more than Boracay could handle. As early as 2007,
the DENR had already determined this as the major cause of the catastrophic depletion of the
island's biodiversity.55 Also part of the equation is the lack of commitment to effectively enforce
pertinent environmental laws. Unfortunately, direct action on these matters has been so elusive
that the situation reached a critical level. Hence, by then, only bold and sweeping steps were
required by the situation.
Certainly, the closure of Boracay, albeit temporarily, gave the island its much needed breather,
and likewise afforded the government the necessary leeway in its rehabilitation program. Note
that apart from review, evaluation and amendment of relevant policies, the bulk of the
rehabilitation activities involved inspection, testing, demolition, relocation, and construction.
These works could not have easily been done with tourists present. The rehabilitation works in
the first place were not simple, superficial or mere cosmetic but rather quite complicated, major,
and permanent in character as they were intended to serve as long-term solutions to the
problem.56 Also, time is of the essence. Every precious moment lost is to the detriment of
Boracay's environment and of the health and well-being of the people thereat. Hence, any
unnecessary distraction or disruption is most unwelcome. Moreover, as part of the rehabilitation
efforts, operations of establishments in Boracay had to be halted in the course thereof since
majority, if not all of them, need to comply with environmental and regulatory requirements in
order to align themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was undergoing necessary
rehabilitation would therefore be pointless as no establishment would cater to their
accommodation and other needs. Besides, it could not be said that Boracay, at the time of the
issuance of the questioned proclamation, was in such a physical state that would meet its purpose
of being a tourist destination. For one, its beach waters could not be said to be totally safe for
swimming. In any case, the closure, to emphasize, was only for a definite period of six
months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the Court, this period
constitutes a reasonable time frame, if not to complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the temporary closure of Boracay, although
unprecedented and radical as it may seem, was reasonably necessary and not unduly oppressive
under the circumstances. It was the most practical and realistic means of ensuring that
rehabilitation works in the island are started and carried out in the most efficacious and
expeditious way. Absent a clear showing of grave abuse of discretion, unreasonableness,
arbitrariness or oppressiveness, the Court will not disturb the executive determination that the
closure of Boracay was necessitated by the foregoing circumstances. As earlier noted, petitioners
totally failed to counter the factual bases of, and justification for the challenged executive action.
Undoubtedly, Proclamation No. 475 is a valid police power measure. To repeat, police power
constitutes an implied limitation to the Bill of Rights, and that even liberty itself, the greatest of
all rights, is subject to the far more overriding demands and requirements of the greater number.
For the above reasons, petitioners' constitutional challenge on Proclamation No. 475 anchored on
their perceived impairment of the right to travel must fail.
Petitioners have no vested rights on their sources of income as to be entitled to due process
Petitioners argue that Proclamation No. 475 impinges on their constitutional right to due process
since they were deprived of the corollary right to work and earn a living by reason of the
issuance thereof.
Concededly, "[a] profession, trade or calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right to work and the right to make a
living because these rights are property rights, the arbitrary and unwarranted deprivation of
which normally constitutes an actionable wrong."57 Under this premise, petitioners claim that
they were deprived of due process when their right to work and earn a living was taken away
from them when Boracay was ordered closed as a tourist destination. It must be stressed, though,
that "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."58 Otherwise, 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, government measures implemented pursuant to the said state power would
be stymied or invalidated.59
In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have already
acquired vested rights to their sources of income in Boracay. As heretofore mentioned, they are
part of the informal sector of the economy where earnings are not guaranteed. In Southern Luzon
Drug Corporation v. Department of Social Welfare and Development,60 the Court elucidated on
vested rights, as follows:
x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively, they are depicted as
follows:
Rights which have so completely and definitely accrued to or settled in a person that they are not
subject to be defeated or cancelled by the act of any other private person, and which it is right
and equitable that the government should recognize and protect, as being lawful in themselves,
and settled according to the then current rules of law, and of which the individual could not be
deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than
by the established methods of procedure and for the public welfare. x x x A right is not 'vested'
unless it is more than a mere expectancy based on the anticipated continuance of present laws; it
must be an established interest in property, not open to doubt. x x x To be vested in its accurate
legal sense, a right must be complete and consummated, and one of which the person to whom it
belongs cannot be divested without his consent. x x x61
Here, Zabal and Jacosalem's asserted right to whatever they may earn from tourist arrivals in
Boracay is merely an inchoate right or one that has not fully developed and therefore cannot be
claimed as one's own. An inchoate right is a mere expectation, which may or may not come into
fruition. "It is contingent as it only comes 'into existence on an event or condition which may not
happen or be performed until some other event may prevent their vesting."'62 Clearly, said
petitioners' earnings are contingent in that, even assuming tourists are still allowed in the island,
they will still earn nothing if no one avails of their services. Certainly, they do not possess any
vested right on their sources of income, and under this context, their claim of lack of due process
collapses. To stress, only rights which have completely and definitely accrued and settled are
entitled protection under the due process clause.
Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to work and earn
a living. They are free to work and practice their trade elsewhere. That they were not able to do
so in Boracay, at least for the duration of its closure, is a necessary consequence of the police
power measure to close and rehabilitate the island.
Also clearly untenable is petitioners' claim that they were being made to suffer the consequences
of the environmental transgressions of others. It must be stressed that the temporary closure of
Boracay as a tourist destination and the consequent ban of tourists into the island were not meant
to serve as penalty to violators of environmental laws. The temporary closure does not erase the
environmental violations committed; hence, the liabilities of the violators remain and only they
alone shall suffer the same. The temporary inconvenience that petitioners or other persons may
have experienced or are experiencing is but the consequence of the police measure intended to
attain a much higher purpose, that is, to protect the environment, the health of the people, and the
general welfare. Indeed, any and all persons may be burdened by measures intended for the
common good or to serve some important governmental interest.63
No intrusion into the autonomy of the concerned LGUs
The alleged intrusion of the President into the autonomy of the LGUs concerned is likewise too
trivial to merit this Court's consideration. Contrary to petitioners' argument, RA 10121
recognizes and even puts a premium on the role of the LGUs in disaster risk reduction and
management as shown by the fact that a number of the legislative policies set out in the subject
statute recognize and aim to strengthen the powers decentralized to LGUs.64 This role is echoed
in the questioned proclamation.
The fact that other government agencies are involved in the rehabilitation works does not create
the inference that the powers and functions of the LGUs are being encroached upon. The
respective roles of each government agency are particularly defined and enumerated in Executive
Order No. 5365 and all are in accordance with their respective mandates. Also, the situation in
Boracay can in no wise be characterized or labelled as a mere local issue as to leave its
rehabilitation to local actors. Boracay is a prime tourist destination which caters to both local and
foreign tourists. Any issue thereat has corresponding effects, direct or otherwise, at a national
level. This, for one, reasonably takes the issues therein from a level that concerns only the local
officials. At any rate, notice must be taken of the fact that even if the concerned LGUs have long
been fully aware of the problems afflicting Boracay, they failed to effectively remedy it. Yet still,
in recognition of their mandated roles and involvement in the rehabilitation of Boracay,
Proclamation No. 475 directed “[a]ll departments, agencies and offices, including government-
owned or controlled corporations and affected local government units x x x to implement and
execute x x x the closure [of Boracay] and the appropriate rehabilitation works, in accordance
with pertinent operational plans and directives, including the Boracay Action Plan. "
As a final note, the Court in Metropolitan Manila Development Authority v. Concerned
Residents of Manila Bay,66 called out the concerned government agencies for their cavalier
attitude towards solving environmental destruction despite hard evidence and clear signs of
climate crisis. It equated the failure to put environmental protection on a plane of high national
priority to the then lacking level of bureaucratic efficiency and commitment. Hence, the Court
therein took it upon itself to put the heads of concerned department-agencies and the bureaus and
offices under them on continuing notice and to enjoin them to perform their mandates and duties
towards the clean-up and/or restoration of Manila Bay, through a "continuing mandamus." It
likewise took the occasion to state, viz.:
In the light of the ongoing environmental degradation, the Court wishes to emphasize the
extreme necessity for all concerned executive departments and agencies to immediately act and
discharge their respective official duties and obligations. Indeed, time is of the essence; hence,
there is a need to set timetables for the performance and completion of the tasks, some of them as
defined for them by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground and as a historical landmark
cannot be over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former
splendor and bring back the plants and sea life that once thrived in its blue waters. But the tasks
ahead, daunting as they may be, could only be accomplished if those mandated, with the help
and cooperation of all civic-minded individuals, would put their minds to these tasks and take
responsibility. This means that the State, through [the concerned department-agencies], has to
take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. [The concerned department-
agencies] must transcend their limitations, real or imaginary, and buckle down to work before the
problem at hand becomes unmanageable. Thus, we must reiterate that different government
agencies and instrumentalities cannot shirk from their mandates; they must perform their basic
functions in cleaning up and rehabilitating the Manila Bay. x x x67
There is an obvious similarity in Metropolitan Manila Development Authority and in the present
case in that both involve the restoration of key areas in the country which were once glowing
with radiance and vitality but are now in shambles due to abuses and exploitation. What sets
these two cases apart is that in the former, those mandated to act still needed to be enjoined in
order to act. In this case, the bold and urgent action demanded by the Court in Metropolitan
Manila Development Authority is now in the roll out. Still, the voice of cynicism, naysayers, and
procrastinators heard during times of inaction can still be heard during this time of full action –
demonstrating a classic case of "damn if you do, damn if you don't". Thus, in order for the now
staunch commitment to save the environment not to fade, it behooves upon the courts to be extra
cautious in invalidating government measures meant towards addressing environmental
degradation. Absent any clear showing of constitutional infirmity, arbitrariness or grave abuse of
discretion, these measures must be upheld and even lauded and promoted. After all, not much
time is left for us to remedy the present environmental situation. To borrow from Oposa, unless
the State undertakes its solemn obligation to preserve the rights to a balanced and healthful
ecology and advance the health of the people, "the day would not be too far when all else would
be lost not only for the present generation, but also for those to come – generations which stand
to inherit nothing but parched earth incapable of sustaining life."68
All told, the Court sustains the constitutionality and validity of Proclamation No. 475.
WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.
SO ORDERED.
Bersamin (C.J.), Peralta, A. Reyes, Jr., Gesmundo, J. Reyes, Jr., Hernando, and Carandang, JJ.,
concur.
Carpio and Perlas-Bernabe, JJ., see separate concurring opinions.
Leonen, J., dissent. See separate opinion.
Jardeleza, J., see concurring and dissenting opinion.
Caguioa, J., dissent. See dissenting opinion.

NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on February 12, 2019 a Decision, copy attached herewith, was rendered
by the Supreme Court in the above-entitled case, the original of which was received by this
Office on February 22, 2019 at 1:15 p.m.
Very truly yours,

(SGD.) EDGAR O. ARICHETA
Clerk of Court
Endnotes:
1
https://www.merriam-webster.com/dictionary/paradise; last visited on January 28, 2019.
2
Malay, Our Home...Your Destination, http://aklan.gov.ph/tourism/malay/; last visited on
January 28, 2019.
3
The Department of Tourism's feature on Boracay posted in its website cites that aside from
being a tropical heaven, Boracay also boasts of diverse culinary fare, water fun activities, beach
combing, nightlife, bat caves, and its Kar-Tir Seashell museum;
see http://www.experiencephilippines.org/tourism/destinationstourism/boracay-department-of-
tourism/, last visited on January 28, 2019.
4
Rollo, p. 5.
5
Duterte wants to close 'cesspool' Boracay, http://www.pna.gov.ph/articles/1024807; last visited
on January 28, 2019.
6
Palace: Duterte approves 6-month total closure of
Boracay, https://pcoo.gov.ph/news_releases/palaceduterte-approves-6-month-total-closure-of-
boracay/; last visited on January 28, 2019.
7
Rollo, p. 9.
8
The guidelines allegedly provide as follows:
1. No going beyond Jetty Port. Identified tourists will not be allowed into the island and
will be stopped at the Jetty Port in Malay, Aklan.
2. No ID, no entry. Residents/workers/resort owners will be allowed entry into the island
subject to the presentation of identification cards specifying a residence in Boracay. All
government-issued IDs will be recognized. Non-government IDs are acceptable as long
as they are accompanied by a barangay certification of residency.
3. Swimming for locals only. Generally, swimming shall not be allowed anywhere on the
island. However, residents may be allowed to swim only at Angol Beach in station 3
from 6 am to 5 pm.
4. One condition for entry. No visitors of Boracay residents shall be allowed entry, except
under emergency situations, and with the clearance of the security committee composed
of DILG representative, police, and local government officials.
5. Journalists need permission to cover. Media will be allowed entry subject to prior
approval from the Department of Tourism, with a definite duration and limited
movement.
6. No floating structures. No floating structures shall be allowed up to 15 kilometers from
the shoreline.
7. Foreign residents to be checked. The Bureau of Immigration will revalidate the papers
of foreigners who have found a home in Boracay.
8. One entry, one exit point. There will only be one transportation point to Boracay Island.
Authorities have yet to decide where.
9
Rollo, p. 11.
10
Id. at 28-29.
11
Id. at 62-102.
12
Id. at 103-106.
13
Id. at 96.
14
Id. at 54-55.
15
Id. at 111-112.
16
Id. at 141-201.
17
Id. at 235-287.
18
258 Phil. 479 (1989).
19
128 Phil. 473 (1967).
20
522 Phil. 705 (2006).
21
Id. at 763-764.
22
Vivas v. The Monetary Board of the Bangko Sentral ng Pilipinas, 716 Phil. 132, 145 (2013).
23
Uy Kiao Eng v. Lee, 624 Phil. 200, 206-207 (2010).
24
732 Phil. 1 (2014).
25
Id. at 121-122.
26
Id. at 122.
27
Id.
28
465 Phil 860 (2004).
29
Id. at 889-890.
30
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 481
(2010).
31
Funa v. Acting Secretary Agra, 704 Phil. 205, 219-220 (2013).
32
Jumamil v. Café, 507 Phil. 455, 465 (2005).
33
Galicto v. H.E. President Aquino III, 683 Phil 141, 171 (2012).
34
Id.
35
Anak Mindanao Party-List Group v. Executive Secretary Ermita, 558 Phil. 338, 351 (2007).
36
Funa v. Chairman Villar, 686 Phil. 571, 585 (2012).
37
Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 401 (1988).
38
Leave Division, Office of the Administrative Services (OAS)-Office of the Court Administrator
(OCA) v. Heusdens, 678 Phil. 328, 339-340 (2011).
39
Supra note 37.
40
Gorospe, Rene, B., Constitutional Law, Notes and Readings on the Bill of Rights, Citizenship
and Suffrage, Volume I (2006), p. 9.
41
Id., citing Edu v. Ericta, 146 Phil. 469 (1970).
42
Id.
43
Philippine Association of Service Exporters, Inc. v. Hon. Drilon, supra note 37 at 398.
44
Id.
45
Id. at 399.
46
Id.
47
Id.
48
Gorospe, Rene, B., Constitutional Law, Notes and Readings on the Bill of Rights, Citizenship
and Suffrage, Volume I (2006), p. 12.
49
Id.
50
RA 10121 and RA 9275 or The Philippine Clean Water Act
51
CONSTITUTION, Article II, Sections 15 and 16 and Article XII, Section 2.
52
296 Phil. 694 (1993).
53
Id. at 713.
54
Id.
55
Rollo, p. 145.
56
See Executive Order No. 53, CREATING A BORACAY INTER-AGENCY TASK FORCE,
PROVIDING FOR ITS POWERS AND FUNCTIONS AND THOSE OF THE MEMBER-
AGENCIES THEREOF, AND OTHER MEASURES TO REVERSE THE DEGRADATION OF
BORACAY ISLAND, id. at 202-207.
57
JMM Promotion and Management, Inc. v. Court of Appeals, 329 Phil. 87, 99-100 (1996).
58
Carlos Superdrug Corporation v. Department of Social Welfare and Development, 553 Phil.
120, 132 (2007).
59
Id.
60
G.R. No. 199669, April 25, 2017, 824 SCRA 164.
61
Id. at 211.
62
Id. at 212.
63
Manila Memorial Park, Inc. v. Secretary of the Department of Social Welfare and
Development, 722 Phil. 538, 590 (2013).
64
Relevant legislative polices of RA 10121 state, viz.:
SECTION 2. Declaration of Policy. - It shall be the policy of the State to:
xxxx
(e) Develop, promote, and implement a comprehensive National Disaster Risk Reduction and
Management Plan (NDRRMP) that aims to strengthen the capacity of the national government
and the local government units (LGUs), together with partner stakeholders, to build the disaster
resilience of communities, and to institutionalize arrangements and measures for reducing
disaster risks, including projected climate risks, and enhancing disaster preparedness and
response capabilities at all levels;
xxxx
(k) Recognize the local risk patterns across the country and strengthen the capacity of
LGUs for disaster risk reduction and management through decentralized powers, responsibilities,
and resources at the regional and local levels; [and]
(l) Recognize and strengthen the capacities of LGUs and communities in mitigating and
preparing for, responding to, and recovering from the impact of disasters;
xxxx
65
Supra note 56.
66
595 Phil. 305 (2008).
67
Id. at 346-347.
68
Oposa v. Hon. Factoran, Jr., supra note 52 at 713.
SEPARATE CONCURRING OPINION

CARPIO, J.:
This case involves the constitutionality of Proclamation No. 475,1 declaring a state of calamity in
Barangays Balabag, Manoc-Manoc and Yapak in 1,032-hectare Boracay Island and ordering the
temporary closure of the island as a tourist destination for six months, starting 26 April 2018
until 25 October 2018.
I vote to dismiss the petition.
Proclamation No. 475 was issued because of the environmental degradation and destruction of
the ecological balance of Boracay Island, which was aggravated by the continuing rise of tourist
arrivals.2 Under Section 43 of Presidential Decree No. 1586,4 the President may declare certain
areas in the country as environmentally critical. To pave the way for the rehabilitation of
Boracay Island and prevent further degradation of its rich ecosystem, the proclamation ordered
the temporary closure of the island as a tourist destination for six months5 during which period
the government would undertake massive road, drainage, and sewerage construction, as well as
require all establishments to comply with the Clean Water Act, Clean Air Act, Code on
Sanitation of the Philippines, Ecological Solid Waste Management Act of 2000, and other
relevant laws. However, local residents of Boracay Island were not prohibited from entering
or leaving the island during the rehabilitation period as the prohibition applied only to
travelers and tourists.
The rehabilitation of Boracay Island resulted in the closure of almost all of the hotels because of
non-compliance with the Clean Water Act, Clean Air Act, National Building Code of the
Philippines, Code on Sanitation of the Philippines, Ecological Solid Waste Management Act of
2000, and the Environmental Compliance Certificate requirement.6 The Department of Tourism
suspended the accreditation of hotels and resorts in Boracay Island for six months to stop the
disposal of wastewater into the seas.7 Some establishments have also built illegal structures on
Boracay's wetlands and forestlands which had to be dismantled.8 Furthermore, some companies
were operating without Environmental Compliance Certificate (ECC), in violation of
Presidential Decree No. 1586 which established the Environmental Impact Statement System.9
Swimming in the waters of Boracay Island was generally not allowed during the six-month
rehabilitation period.10 The illegal discharge of untreated wastewater into the sea and the
insufficient sewerage system caused the high concentration of fecal coliform in some of the
beaches in Boracay Island.11 The extremely high level of coliform bacteria which reached 47,460
mpn (most probable number) per 100 ml.12 of water sample was alarming considering that the
safe level for swimming and other activities is just 1,000 mpn/100ml. of water sample.13 Thus,
the ban on swimming imposed by the government was justified and necessary considering the
high coliform level in the waters of Boracay Island, which was clearly unsafe for swimming and
posed serious health and sanitation hazards.14
Many roads were closed for rehabilitation, widening, and construction, including the main road
network which is the primary access to many establishments in the island.15 Not only were the
roads widened, sewage pipes were also laid to prevent sewage from flowing into the beach
waters, and drainage pipes were installed to prevent clogged waterways which caused flooding
before the closure.16 As such, traveling around Boracay Island was severely restricted even for
the local residents. Under Section 1 of Commonwealth Act No. 548,17 "[national] roads may be
temporarily closed to any or all classes of traffic by the Director of Public Works or his duly
authorized representative whenever the condition of the road or the traffic thereon makes such
action necessary or advisable in the public interest, or for a specified period, with the approval of
the Secretary of Public Works and Communications."
The rehabilitation of Boracay Island as a consequence of Proclamation No. 475, declaring a state
of calamity in Boracay Island, resulted in: (1) the closure of majority of the hotels and other
business establishments for non-compliance with environmental laws; (2) the closure of many
roads for repair, widening, and installation of drainage pipes; and (3) the ban on swimming in the
beaches of Boracay Island due to the unsafe level of coliform bacteria.
Given such a situation in Boracay Island, the invocation on behalf of non-residents of Boracay
Island of the right to travel, which includes the right to move freely within the country,18 is
misplaced. First, the valid closure of roads severely restricted movement around the island.
Second, the closure of hotels and establishments pending investigation and accreditation left
tourists and non-locals with no accommodations. Third, the valid ban on swimming in Boracay
beaches for sanitary and health considerations made unavailable the main tourist attraction of
Boracay Island.
Clearly, the condition of Boracay Island during the six-month rehabilitation period justified the
prohibition on travelers and tourists from entering Boracay Island because of the physical
impediment to traveling around the island resulting from the massive road, sewerage and
drainage construction, the lack of accommodations, and the ban on swimming and other water
recreational activities. Thus, Proclamation No. 475 is a valid exercise of various existing laws,
that is, Presidential Decree No. 1586, Commonwealth Act No. 548, Clean Water Act of 2004
(Republic Act No. 9275), Clean Air Act of 1999 (Republic Act No. 8749), National Building
Code of the Philippines (Republic Act No. 6541), Ecological Solid Waste Management Act of
2000 (Republic Act No. 9003), and the Code on Sanitation of the Philippines (Presidential
Decree No. 856). These are laws pursuant to the police power of the state. There is no claim that
these laws are unconstitutional. The President, in the exercise of his control over the Executive
branch of government,19 can directly exercise the functions of subordinate officials tasked to
implement these laws.
Accordingly, I vote to DISMISS the petition.
Endnotes:
1
AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST
DESTINATION.
2
The WHEREAS clauses of Proclamation No. 475 cites the result of the evaluation and
investigation of the Inter-Agency Task Force composed of the DENR, DILG, and DOT, which
revealed, among others, (1) high concentration of fecal coliform in some of the beaches in
Boracay; (2) insufficient sewer and waste management system resulting in improper disposal of
waste products, including discharge of waste water near the shores; (3) 937 illegal structures
constructed on forestlands and wetlands, as well as 102 illegal structures on areas classified as
easements.
3
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. – The
President of the Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects, undertakings or
areas in the country as environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President or his duly authorized
representative. For the proper management of said critical project or area, the President may by
his proclamation reorganize such government offices, agencies, institutions, corporations or
instrumentalities including the re-alignment of government personnel, and their specific
functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper
land or water use pattern for said critical project(s) or area(s); (b) establish ambient
environmental quality standards; (c) develop a program of environmental enhancement or
protective measures against calamitous factors such as earthquake, floods, water erosion and
others, and (d) perform such other functions as may be directed by the President from time to
time.
4
ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM INCLUDING
OTHER ENVIRONMENTAL MANAGEMENT RELATED MEASURES AND FOR OTHER
PURPOSES.
5
https://news.abs-cbn.com/specials/the-boracay-project (visited 9 November 2018);
https://news.abs-cbn.com/news/05/10/18/duterte-creates-boracay-inter-agency-rehab-task-force
(visited 9 November 2018);
http://www.officialgazette.gov.ph/downloads/2018/05may/20180508-EO-53-RRD-2.pdf (visited
9 November 2018).
6
"The Environmental Management Bureau (EMB)-6 has issued 478 notices of violations to
establishments in Boracay Island for violating environmental laws."
https://pia.gov.ph/news/articles/1010563 (visited 12 November 2018); http://visayas.
politics.com.ph/ang-dami-nga-denr-issues-478-violation-notices-to-boracaybusinesses/ (visited
12 November 2018); https://businessmirror.com.ph/new-denr-list-revealsmore-boracay-
businesses-violated-environment-laws/ (visited 12 November 2018).
7
https://news.abs-cbn.com/news/02/26/18/tourism-dept-to-suspend-accreditation-of-non-
compliantboracay-hotels (visited 9 November 2018).
8
http://cnnphilippines.com/news/2018/03/02/senate-boracay-probe.html (visited 9 November
2018).
9
https://businessmirror.com.ph/new-denr-list-reveals-more-boracay-businesses-violated-
environment-laws/ (visited 12 November 2018).
10
https://www.rappler.com/nation/200719-no-total-swimming-fishing-ban-boracay-residents
(visited 16 November 2018).
11
https://www.bworldonline.com/denr-to-fast-track-approvals-for-boracay-sewage-treatment-
plants/ (visited 12 November 2018); https://businessmirror.com.ph/water-from-boracay-hidden-
pipesfound-positive-for-coliform-bacteria/ (visited 12 November 2018).
12
https://newsinfo.inquirer.net/979944/environmental-issues-have-been-hounding-boracay-for-
20-years (visited 16 November 2018).
https://www.philstar.com/headlines/2015/02/21/1426419/government-raises-concern-over-high-
bacteria-levels-boracay-water (visited 16 November 2018).
13
Section 6.2.1 of the Implementing Rules and Regulations of Chapter VIII - "Public Swimming
or Bathing Places" of the Code on Sanitation of the Philippines states:
6.2 Natural Bathing Places
6.2.1 The quality of water for natural bodies of water used for swimming, bathing, or other
contact recreation purposes shall be within the standard set by the Department of Environment
and Natural Resources.
a. Inland Waters. - For inland water, total coliform shall not exceed 1,000 MPN per 100 ml of
water sample, fecal coliform shall not exceed 200 MPN per 100 ml of water sample, and a pH
range of 6.5-8.5.
b. Marine and Estuarine Waters. - For marine water, total coliform shall not exceed 1,000 MPN
per 100 ml of water sample, fecal coliform shall not exceed 200 MPN per 100 ml of water
sample, and a pH range of 6.0-8.5.
14
Section 5.2.1 of the Implementing Rules and Regulations of Chapter VIII - "Public Swimming
or Bathing Places" of the Code on Sanitation of the Philippines states:
5.2 Safety Precautions at Public Natural Bathing Places
5.2.1 No public bathing place shall be maintained on a natural body of water that has been
determined and declared by the Department of Health or the local health office to be unsafe for
bathing or may pose to be a menace to health of the bathers.
15
https://businessmirror.com.ph/dpwh-fast-tracks-completion-of-boracay-islands-road-
infrastructure/ (visited 9 November 2018); https://www.rappler.com/nation/210011-photo-
boracay-to-open-warzone-like-roads (visited 12 November 2018).
16
https://news.mb.com.ph/2018/09/25/dpwh-speeds-up-completion-of-boracay-main-road/
(visited 12 November 2018); https://news.abs-
cbn.com/focus/multimedia/slideshow/08/16/18/this-is-howboracay-looks-like-then-and-now
(visited 12 November 2018).
17
AN ACT TO REGULATE AND CONTROL THE USE AND TRAFFIC ON NATIONAL
ROADS AS WELL AS CONSTRUCTIONS ALONG THE SAME, PRESCRIBING
PENALTIES FOR THE VIOLATION THEREOF.
18
Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442, 8
August 2017, 835 SCRA 350, citing Marcos v. Manglapus, 258 Phil. 479, 497-498 (1989).
19
Section 17, Article VII, 1987 Constitution.

SEPARATE CONCURRING OPINION
PERLAS-BERNABE, J.:
I concur.
Among other points, I agree with the ponencia that "this case does not actually involve the right
to travel in its essential sense contrary to what petitioners want to portray."1 In my view, there
can be no violation of the right to travel because, in the first place, Proclamation No. 4752 is not
an issuance that substantively regulates such right.
To expound, the right to travel has been regarded as integral to personal liberty,3 which
Blackstone defines as "freedom from restraint of the person."4 The guarantee of free movement
may be historically traced5 to the Magna Carta of 1215 which assured the liberty for anyone,
except those imprisoned, outlawed, and the natives of an enemy country, safe and secure entry to
and exit from England. It likewise assured merchants, that they may enter, leave, stay, and move
about England "unharmed and without fear."6 Much later, or in 1948, the Universal Declaration
of Human Rights (UDHR) recognized everyone's right to freedom of movement within the
borders of each state, as well as the one's right to leave and return to his country.7 The guarantee
was likewise incorporated in the 1966 International Covenant on Civil and Political
Rights,8 which the Philippines signed in the same year.9 This guarantee was incorporated in our
fundamental law in the 1973 Constitution,10 and now appears in the 1987 Constitution.11
An examination of local cases wherein the right to travel was involved will support the premise
that the right to travel – if one were to understand the same in its proper sense – ought to pertain
to government regulations that directly affect the individual's freedom of locomotion or
movement. For instance, in Samahan ng mga Progresibong Kabataan v. Quezon City,12 the
minors' exercise of travel rights was restricted by the curfew ordinances. In several cases,13 the
accused in a criminal case, especially those released on bail, were held to be validly prevented
from departing from the Philippines. In Philippine Association of Service Exporters, Inc. v.
Drilon,14 the deployment ban was imposed on female domestic overseas workers. Further, during
medical emergencies, a person may be isolated or quarantined to prevent the spread of
communicable diseases.15
Even the statutes recognized as validly impairing the right to travel have, for its proper object, a
palpably direct restraint on a person's freedom of movement, viz.: (1) in the Human Security
Act,16 the 1aw restricts the right to travel of an individual charged with the crime of terrorism
even though such person is out on bail; (2) in the Philippine Passport Act of 1996,17 the Secretary
of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use
of, or withdraw, a passport of a Filipino citizen; (3) in the Anti-Trafficking in Persons Act of
2003,18 the Bureau of Immigration, in order to manage migration and curb trafficking in persons,
issued Memorandum Order RADJR No. 2011-011,19 allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose of
travel, including possible victims of human trafficking" from the Philippine ports; and (4) in the
Inter-Country Adoption Act of 1995,20 the Inter-Country Adoption Board may issue rules
restrictive of an adoptee's right to travel "to protect the Filipino child from abuse, exploitation,
trafficking, and/or sale or any other practice in connection with adoption which is harmful,
detrimental, or prejudicial to the child."21
In all these instances, the restrictions on the right to travel were imposed on a person or group
of persons,22 seemingly attaching unto them some form of "ball and chain" to limit their
movement. Clearly, this is not the situation presented in this case. While the closure of
Boracay pursuant to Proclamation No. 475 prohibited the entry of tourists and non-residents
thereto, these people still remained free to move about in other parts of the country without
arbitrary restraint. Thus, whatever effect such regulation may have on a person's ability to travel
to such a specific place is merely incidental in nature and accordingly, is conceptually remote
from the right's proper sense. To my mind, Proclamation No. 475 is more akin to government
regulations that amount to the "cordoning-off" of areas ravaged by flood, fire, or other
calamities, where access by people thereto may indeed be prohibited pursuant to considerations
of safety and general welfare based on circumstantial exigencies. Thus, as the right to travel is
not the correct vantage point to resolve this case, there is no need to determine whether or not an
explicit statutory enactment exists to justify the impairment of said right as required under
Section 6, Article III of the 1987 Constitution.23
Lest it be misunderstood, the extrication of this case from a "right to travel analysis" does not
necessarily mean that the President is, by his sole accord, both authorized and justified in
issuing Proclamation No. 475.
Fundamentally speaking, the President is the Chief of the Executive Department whose main
task is to faithfully execute the laws. In its simple sense, his duty is not to make law, but rather,
implement the law. Proclamation No. 475 is not law, but rather, an executive issuance which
derives statutory imprimatur from existing laws and hence, has the "force and effect" of law. As
its titular heading denotes, Proclamation No. 475 is a declaration of a state of calamity in
the barangays of Balabag, Manoc-Manoc, and Yapak (Island of Boracay) in the Municipality of
Malay, Aldan. In order to address the situation declared thereunder, it was necessary for the
Executive to effect "expeditious rehabilitation," and to implement this objective, the President
had to direct the area's temporary closure.
To be sure, insofar as this case is concerned, the power of the President to declare a state of
calamity over a particular locality may be sourced from the Administrative Code of 198724 in
relation to the Philippine Disaster Risk Reduction and Management Act of 2010.25 Based on
these laws, the President, pursuant to the recommendation of the National Disaster Risk
Reduction and Management Council (NDRRMC), is authorized to "declare a state of
calamity26 in areas extensively damaged," as well as to approve "proposals to restore normalcy in
the affected areas."27 On this basis, the NDRRMC recommended to the President not only the
declaration of a state of calamity in Boracay but also, as a means to restore normalcy therein, the
"temporary closure of the Island as a tourist destination" for the purpose of assisting the
government in the "expeditious rehabilitation" of the same.28 Thus, as an off-shoot of the
declaration of a state of calamity, and acting upon the recommendation of the NDRRMC, the
President found it necessary to decree the temporary closure of the affected areas if only to
ensure the Island's proper rehabilitation.
While it appears that the above-cited statutes do not spell out in "black and-white" the President's
power to temporarily close-off an area, it is my opinion that a logical complement to the
Executive's power to faithfully execute the laws is the authority to perform all necessary and
incidental acts that are reasonably germane to the statutory objective that the President is, after
all, tasked to execute. What comes to mind is the doctrine of necessary implication which evokes
that "[e]very statute is understood, by implication, to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or
jurisdiction which it grants, including all such collateral and subsidiary consequences as may be
fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of
power, right or privilege is deemed to include all incidental power, right or privilege."29 This
principle, in its general sense, holds true in this case. By and large, I find it unreasonable that a
President who declares a state of calamity, and who has been further prompted by a specialized
government agency created for disaster operations pursuant to existing laws to effect a viable
plan of action is nonetheless impotent to pursue the necessary steps to effect a viable plan of
action. Surely, the President must be given reasonable leeway to address calamitous situations,
else he be reduced to a mere mouthpiece of doom.
At this juncture, it is apt to state that Proclamation No. 475 explicitly recognizes in its "whereas
clauses" the State's constitutional duty to protect and advance the rights to health and to a
balanced and healthful ecology,30 which duty has been translated in numerous legislative
enactments, such as the Philippine Clean Water Act of 2004,31 and as mentioned, the Philippine
Disaster Risk Reduction and Management Act of 2010, as well as the Administrative Code of
1987. The Philippine Clean Water Act of 2004 authorizes the Department of Environment and
Natural Resources (DENR) to undertake emergency clean-up operations32 to counter water
pollution. As earlier mentioned, the Philippine Disaster Risk Reduction and Management Act of
2010 empowers the NDRRMC to recommend the declaration of a state of calamity in areas
extensively damaged by either natural or human-induced hazards such as environment
degradation, as well as proposals to restore normalcy in the affected areas, such as
through rehabilitation33 or the rebuilding of damaged infrastructures. Further, the
Administrative Code of 1987 grants the DENR the power to "exercise supervision and control
over [alienable public lands],"34 such as Boracay, and the Department of Interior and Local
Government the authority to implement programs "to meet national or local emergencies arising
from natural or man-made disasters,"35 such as environmental destruction.
Ultimately, the agglomeration of the above-stated laws reveals that the Executive Department
has sufficient statutory authority to clean up the Island. Since the Constitution vests all executive
power in the President, and on this score, grants him the power of control over all executive
departments, he can, within the bounds of law, integrate and take on the above-stated functions,
and in the exercise of which, issue a directive to implement an environmental rehabilitation
program as recommended by the relevant state agency. At the risk of sounding repetitive, the
temporary closure of the Island to tourists was necessary to effectively execute Boracay's
rehabilitation program pursuant to a declaration of a state of calamity. Therefore, the President
had sufficient authority from both the Constitution and statutes to issue Proclamation No. 475.
That being said, and as a point of clarification, I find it unnecessary to situate such authority in
his unstated residual powers.36
Having discussed the President's authority, the final question to be traversed is whether or not
there was ample justification for the issuance of Proclamation No. 475.
As previously mentioned, this case should not be assessed against the parameters of the right to
travel. As Proclamation No. 475 constitutes a restriction not against a person's freedom of
movement, but rather, a "place based" regulation, I deem it appropriate to instead examine the
issuance's validity under the lens of petitioners' right to property under Section 1, Article III of
the 1987 Constitution. After all, this approach specifically corresponds to petitioners' line of
argumentation. In particular, as found in the petition, petitioners Mark Anthony V. Zabal (Zabal)
and Thiting Estoso Jacosalem (Jacosalem) assail the validity of Proclamation No. 475 on the
ground that it violated their right as persons earning a living in the Boracay Island. As alleged,
Zabal earns a living by making sandcastles while Jacosalem works as a driver for
tourists.37 Accordingly, they submit that the exclusion of tourists from the Island drastically
affected their trade or livelihood.38
Under the auspices of Section 1, Article III of the 1987 Constitution, protected property includes
the right to work and the right to earn a living.39 The purpose of the due process guaranty is "to
prevent arbitrary governmental encroachment against the life, liberty, and property of
individuals."40 While the right to property is sheltered by due process provision, it is by no means
absolute as it must yield to the general welfare.41 Thus, the State may deprive persons of property
rights provided that the means employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals.42
In this case, although the exclusion of tourists from the Island drastically affected the trade or
livelihood of those reliant on them, including petitioners, I submit that the government had
a legitimate State interest in rehabilitating the affected localities of Boracay given the Island's
current critical state. Findings of various government agencies in the Island reveal its precarious
environmental condition, to wit: (a) high concentration of fecal coliform due to improper sewage
infrastructure and sewer waste management system; (b) dirty water resulting in the degradation
of coral reefs and coral cover; (c) improper solid waste management; (d) destruction of natural
habitats in the island; (e) beach erosion caused by illegal extraction of sand along the beach; (f)
illegal structures along the foreshore; and (g) unauthorized discharge of untreated waste water
near the shore.43 Notably, these environmental problems were found to have been aggravated by
"tourist influx."44
To effectively remedy the Island's environmental woes, "expeditious rehabilitation" thereof
became crucial, and in line therewith, the entry of tourists became necessary to suspend. As aptly
rationalized in the ponencia:
Certainly, the closure of Boracay, albeit temporarily, gave the island its much needed breather,
and likewise afforded the government the necessary leeway in its rehabilitation program. Note
that apart from review, evaluation and amendment of relevant policies, the bulk of the
rehabilitation activities involved inspection, testing, demolition, relocation, and
construction. These works could not have easily been done with tourists present. The
rehabilitation works in the first place were not simple, superficial or mere cosmetic but
rather quite complicated, major, and permanent in character as they were intended to
serve as long term solutions to the problem. x x x Moreover, as part of the rehabilitation
efforts, operations of establishments in Boracay had to be halted in the course thereof since
majority, if not all of them, need to comply with environmental and regulatory requirements in
order to align themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was undergoing necessary
rehabilitation would therefore be pointless as no establishment would cater to their
accommodation and other needs. Besides, it could not be said that Boracay, at the time of the
issuance of the questioned proclamation, was in such a physical state that would meet its purpose
of being a tourist destination. For one, its beach waters could not be said to be totally safe for
swimming. x x x Indeed, the temporary closure of Boracay, although unprecedented and radical
as it may seem, was reasonably necessary and not unduly oppressive under the circumstances. It
was the most practical and realistic means of ensuring that rehabilitation works in the
island are started and carried out in the most efficacious and expeditious way.45 (Emphases
supplied)
Moreover, the limited six (6)-month period shows that the closure was not unduly oppressive
upon individuals, and was put in place only to implement the desired State objective. Therefore,
all things considered, Proclamation No. 475 cannot be said to have been issued with grave abuse
of discretion, and as such, remains constitutional.
Accordingly, I vote to DISMISS the petition.
Endnotes:
1
Ponencia, p. 20.
2
Entitled "DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG,
MANOC-MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF
MALAY, AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST
DESTINATION," signed on April 26, 2018.
3
See McAdam, Jane "An Intellectual History of Freedom of Movement in International Law:
The Right to Leave as a Personal Liberty." Melbourne Journal of International Law, Vol. 12
(2011), p. 6.
4
Shattuck, Charles E. "The True Meaning of the Term 'Liberty' in Those Clauses in the Federal
and State Constitutions Which Protect 'Life, Liberty, and Property." Harvard Law Review, Vol.
4, No.8 (1891), p. 377; citing William Blackstone, "Absolute Right of Individuals"; emphasis
supplied. < www.jstor.org/stable/1322046 > (visited February 12, 2019).
5
See Gould, William B. "Right to Travel and National Security," 1961 Wash. U. L. Q. 334
(1961). < http://openscholarship.wustl.edu/law_lawreview/vol1961/iss4/2 > (visited February 12,
2019).
6
See English translation of the Magna Carta of 1215 < https://www.bl.uk/magna-
carta/articles/magna carta-english-translation > (visited February 12, 2019).
7
Adopted on December 10, 1948. <
https://www.ohchr.org/EN/UDHR/Documents/UDHRTranslations/eng.pdf. > (visited February
12, 2019). Article 13 of the UDHR provides:
Article 13.
1. Everyone has the right to freedom of movement and residence within the borders of each
State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
8
Adopted and opened for signature, ratification and accession by General Assembly resolution
2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article
49. < https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > (February 12, 2019).
Article 12, Part III of the 1966 International Covenant on Civil and Political Rights states:
Article 12.
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
9
The Philippines signed on December 19. 1966. <
https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280004bf5&clang=_en >
(February 12, 2019).
10
Section 5, Article IV of the 1973 CONSTITUTION provides:
Section 5. The liberty of abode and of travel shall not be impaired except upon lawful order of
the court, or when necessary in the interest of national security, public safety, or public health.
11
See Section 6, Article III of the 1987 CONSTITUTION.
12
G.R. No. 225442, August 8, 2017, 835 SCRA 350.
13
See Manotoc, Jr. v. Court of Appeals, 226 Phil. 75 ( 1986), Silverio v. Court of Appeals, 273
Phil. 128 (1991). In Marcos v. Sandiganbayan (317 Phil. 149, 167 [1995]), the Court stated that
"a person's right to travel is subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice." See also Lee v. The State (474 S.E.2d 281 [1996]), wherein
the Court of Appeals of Georgia held that an arrest restrains a person's liberty to come and go as
he pleases.
14
See 246 Phil. 393 (1988).
15
See Internal Health Regulations of the World Health Organization, 3rd Edition (2005), pp. 23-
24 < https://apps.who.int/iris/bitstream/handle/10665/246107/9789241580496-
eng.pdf;jsessionid=7B5FCF4B030035B953CDCDEE7F92D6EC?sequence=1 > (February 12,
2019).
16
Republic Act No. (RA) 9372, entitled "AN ACT TO SECURE THE STATE AND PROTECT
OUR PEOPLE FROM TERRORISM," approved on March 6, 2007.
17
RA 8239, approved on November 22, 1996.
18
RA 9208, entitled "AN ACT TO INSTITUTE POLICIES TO ELIMINATE TRAFFICKING
IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE
NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT
OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS, AND
FOR OTHER PURPOSES," approved on May 26, 2003.
19
Entitled "STRENGTHENING THE TRAVEL CONTROL AND ENFORCEMENT UNIT
(TCEU) UNDER AIRPORT OPERATIONS DIVISION (AOD) AND DEFINING THE
DUTIES AND FUNCTIONS THEREOF" dated June 30, 2011.
20
RA 8043, entitled "AN ACT ESTABLISHING THE RULES TO GOVERN INTER-
COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES,"
approved on June 7, 1995.
21
See Leave Division, Office of Administrative Services, Office of the Court Administrator v.
Heusdens, 678 Phil. 328, 339-340 (2011 ).
22
See also the United Nations Convention relating to the Status of Refugees, adopted in 1951
and entered into force on 22 April 1954, which stresses refugees' freedom of movement, to wit:
Article 26
Freedom of Movement
Each Contracting State shall accord to refugees lawfully in its territory the right to choose their
place of residence to move freely within its territory, subject to any regulations applicable to
aliens generally in the same circumstances.
23
See Genuino v. De Lima (G.R. Nos. 197930, 199034, and 199046, April 17, 2018) in relation
to Section 6, Article III of the 1987 Constitution.
24
Executive Order No. 292, entitled "INSTITUTING THE ADMINISTRATIVE CODE OF
1987" (August 3, 1988). The President's ordinance power is explicitly stated in Section 4,
Chapter 2, Title I, Book III of the Administrative Code of 1987, to wit:
Section 4. Proclamations. – Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order. (Underscoring supplied)
25
RA 10121, entitled "AN ACT STRENGTHENING THE PHILIPPINE DISASTER RISK
REDUCTION AND MANAGEMENT SYSTEM, PROVIDING FOR THE NATIONAL
DISASTER RISK REDUCTION AND MANAGEMENT FRAMEWORK AND
INSTITUTIONALIZING THE NATIONAL DISASTER RISK REDUCTION AND
MANAGEMENT PLAN, APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES," May 27, 2010.
26
Section 2 (II) of RA10121 defines "State of Calamity" as "a condition involving mass
casualty and/or major damages to property, disruption of means of livelihoods, roads and normal
way of life of people in the affected areas as a result of the occurrence of natural or human-
induced hazard."
27
See Section 6 (c) of RA 10121 which states:
Section 6. Powers and Functions of the NDRRMC. x x x
xxxx
(c) x x x recommend to the President the declaration of a state of calamity in areas extensively
damaged; and submit proposals to restore normalcy in the affected areas, to include calamity
fund allocation[.] (Emphasis and underscoring supplied)
28
The last whereas clause of Proclamation No. 475 reads:
WHEREAS, pursuant to [RA 10121] x x x, the [NDRRMC] has recommended the declaration of
a State of Calamity in the Island of Boracay and the temporary closure of the Island as a tourist
destination to ensure public safety and public health, and to assist the government in its
expeditious rehabilitation, as well as in addressing the evolving socioeconomic needs of the
affected communities[.] (Underscoring supplied)
29
See Robustum Agricultural Corporation v. Department of Agrarian Reform and Land Bank of
the Philippines, G.R. No. 221484, November 19, 2018.
30
In Oposa v. Factoran, Jr. (G.R. No. 101083, July 30, 1993, 224 SCRA 792, 804-805), the
Court held that "[w]hile the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind." The Court also exclaimed that the right to a
balanced and healthful ecology "unites with the right to health."
31
RA 9275, entitled "AN ACT PROVIDING FOR A COMPREHENSIVE WATER QUALITY
MANAGEMENT AND FOR OTHER PURPOSES," approved on March 22, 2004.
32
Section 16, Article 3 of RA 9275 reads:
Section 16. Clean-Up Operations. – x x x Provided. That in the event emergency clean-up
operations are necessary x x x the Department, in coordination with other government agencies
concerned, shall conduct containment, removal and clean-up operations. x x x. (Emphasis
supplied)
33
Section 3 (ee) of RA 10121 defines "Rehabilitation" as "measures that ensure the ability of
affected communities/areas to restore their normal level of functioning by rebuilding livelihood
and damaged infrastructures and increasing the communities' organizational capacity."
34
See Section 4 (4), Chapter I, Title XIV, Book IV of the Administrative Code of 1987.
35
See Section 3 (5), Chapter I, Title XII, Book IV of the Administrative Code of 1987.
36
In response to the discussions in Justice Alfredo Benjamin S. Caguioa's Dissenting Opinion,
pp. 17-27.
37
See Petition, p. 3.
38
See id. at 20 and 22.
39
See Senior Associate Justice Antonio T. Carpio's Separate Concurring Opinion in Serrano v.
Gallant Maritime Services, Inc., 601 Phil. 245, 307 (2009).
40
White Light Corporation v. City of Manila, 596 Phil. 444, 461 (2009).
41
See Carlos Superdrug Corporation v. Department of Social Welfare and Development, 553
Phil. 120, 132 (2007).
42
In Social Justice Society v. Atienza, Jr. (568 Phil. 658, 702 [ 2008]), the Court held that the
State "may be considered as having properly exercised [its] 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 a lawful method." (Emphasis supplied)
43
See 4th -7th whereas clauses of Proclamation No. 475.
44
See 8th and 9th whereas clauses of Proclamation No. 475.
45
Ponencia, pp. 23-24.
DISSENTING OPINION
We can save ourselves, but only if we let go of the myth of dominance and mastery and learn to

work with nature.

Naomi Klein

The primary threat to nature and people today comes from centralizing and monopolizing
power and control. Not until diversity is made the logic of production will there be a chance for

sustainability, justice and peace. Cultivating and conserving diversity is no luxury in our times:
it is a survival imperative.

Vandana Shiva
LEONEN, J.:
With respect to my esteemed colleagues, I dissent.
Proclamation No. 475, s. 2018 (or the Proclamation) is unconstitutional, as it is an impermissible
exercise of police power.
It violates the right to life and liberty properly invoked by petitioners without due process of law.
The Proclamation imposes a closure and a deprivation of the livelihood of those who have not
been shown to have caused the high levels of fecal coliform and other human made incursions
into Boracay's ecology which invited President Rodrigo Duterte's drastic actions. The specific
actions and programs to be undertaken during the closure of the entire island, so as to properly
advise the residents, workers, and others interested, are not clearly stated. The six (6)-month
duration of the closure is arbitrary. The state of calamity will persist even after the closure
expires. The lifting of the declaration of the state of calamity is not preceded by any discernible
standard. The Department of the Interior and Local Government "Guidelines" (DILG Guidelines)
for the closure were issued prior to the promulgation of the Proclamation. It is inconsistent with
the latter, containing provisions with serious constitutional implications.
The Proclamation is unduly vague. It is unconstitutionally broad.
Proclamation No. 475 is contrary to the very statutes it allegedly implements, Republic Acts No.
101211 and 9275.2 The ecological problem in Boracay is not the calamity envisioned in Republic
Act No. 10121 or the Philippine Disaster Risk Reduction and Management Act of 2010. By
exercising control rather than merely supervision, the Presidential exercise violates the
constitutionally protected principle of local autonomy. Contrary to the Majority's view, such
infringement is neither incidental nor marginal.
Assuming that a state of calamity was properly declared, the Proclamation upends the framework
of locally-led remediation and rehabilitation efforts mandated by the statutes. By declaring that
only the President can lift the declaration, the Proclamation violates Republic Act No. 10121.
Human induced ecological disasters need to be addressed deliberately, systematically,
structurally and with all institutions of government actively engaging public participation. There
are laws already in place that could have been properly enforced. The right intentions however
must always be accompanied by the right and legal means. The Majority's tolerance for the
dramatic and drastic actions of the Chief Executive violates the rule of law and undermines
constitutional democracy.
Considering the many calamities our society has to face, upholding the framework contained in
Proclamation No. 475 invites a regime that is borderline authoritarian.
I
The Petition raises questions relating to petitioners' right to travel and right to due process. I join
Associate Justice Alfredo Benjamin Caguioa's view that the right to travel has been violated
especially in light of the most recent unanimous decision of this Court in Genuino v De
Lima.3 Fundamentally, however, I vote to grant the Petition on due process grounds.
The basic rights asserted by petitioners are acknowledged in Article III, Section 1 of the
Constitution:
SECTION 1. No person shall be deprived of life, liberty or property without due process of
law[.]
The due process clause is written as a proscription.4 It implies a sphere of individual autonomy
that is constitutionally protected. As early as 1890, in the seminal work of Louis D. Brandeis and
Samuel Warren, this sphere was referred to as the "right to be left alone" from interference by the
State. Reviewing its evolution in common law:
That the individual shall have full protection in person and in property is a principle as old as the
common law; but it has been found necessary from time to time to define anew the exact nature
and extent of such protection. Political, social and economic changes entail the recognition of
new rights, and the common law, in its eternal youth, grows to meet the demands of society.
Thus, in very early times, the law gave a remedy only for physical interference with life and
property, for trespasses vi et armis. Then the "right to life" served only to protect the subject
from battery in its various forms; liberty meant freedom from actual restraint; and the right to
property secured to the individual his lands and his cattle. Later, there came a recognition of
man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights
broadened; and now the right to life has come to mean the right to enjoy life,—the right to be let
alone; the right to liberty secures the exercise of extensive civil privileges; and the term
"property" has grown to comprise every form of possession—intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily
injury was extended to prohibit mere attempts to do such injury; that is, the putting another in
fear of such injury. From the action of battery grew that of assault. Much later there came a
qualified protection of the individual against offensive noises and odors, against dust and smoke
and excessive vibration. The law of nuisance was developed. So regard for human emotions soon
extended the scope of personal immunity beyond the body of the individual. His reputation, the
standing among his fellow-men, was considered, and the law of slander and libel arose. Man's
family relations became a part of the legal conception of his life, and the alienation of a wife's
affections was held remediable. Occasionally the law halted,—as in its refusal to recognize the
intrusion by seduction upon the honor of the family. But even here the demands of society were
met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing
damages for injury to the parents' feelings, an adequate remedy was oridinarily afforded. Similar
to the expansion of the right to life was the growth of the legal conception of property. From
corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide
realm of intangible property, in the products and processes of the mind, as works of literature and
art, goodwill, trade secrets, and trademarks.
This development of the law was inevitable.5 (Citations omitted)
The structure of the due process clause and the primordial value it conceals do not limit
protection of life only to one's corporeal existence.6 Liberty is more than just physical restraint.
Even property can be incorporeal.7
In Secretary of National Defense et al. v. Manalo et al.:8
While the right to life under Article III, Section 1 guarantees essentially the right to be alive—
upon which the enjoyment of all other rights is preconditioned—the right to security of person is
a guarantee of the secure quality of this life, viz.: "The life to which each person has a right is not
a life lived in fear that his person and property may be unreasonably violated by a powerful ruler.
Rather, it is a life lived with the assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of security in life and property . . .
pervades the whole history of man. It touches every aspect of man's existence." In a broad sense,
the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the
enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of
those things which are necessary to the enjoyment of life according to the nature, temperament
and lawful desires of the individual.9 (Citations omitted)
City of Manila v. Laguio, Jr.10 reiterated the broad conception of the right to life and liberty:
[T]he right to exist and the right to be free from arbitrary restraint or servitude. The term cannot
be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed
to embrace the right of man to enjoy the faculties with which he has been endowed by his
Creator, subject only to such restraint as are necessary for the common welfare.11 (Emphasis
supplied, citation omitted)
The rights to life and liberty are inextricably woven. Life is nothing without liberties. Without a
full life, the fullest of liberties protected by our constitutional order will not happen. Again,
in City of Manila:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for
a free people, there can be no doubt that the meaning of "liberty" must be broad
indeed.12 (Emphasis supplied)
Thereafter:
These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by
the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of
existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood where they formed under compulsion of the
State. 13
Likewise, in my Concurring Opinion in Spark v Quezon City:14
Speaking of life and its protection does not merely entail ensuring biological subsistence. It is not
just a proscription against killing. Likewise, speaking of liberty and its protection does not
merely involve a lack of physical restraint. The objects of the constitutional protection of due
process are better understood dynamically and from a frame of consummate human dignity.
They are likewise better understood integrally, operating in a synergistic frame that serves to
secure a person's integrity.
"Life, liberty and property" is akin to the United Nations' formulation of "life, liberty, and
security of person" and the American formulation of "life, liberty and the pursuit of happiness."
As the Declaration of Independence postulates, they are "unalienable rights" for which
"[g]overnments are instituted among men" in order that they may be secured. Securing them
denotes pursuing and obtaining them, as much as it denotes preserving them. The formulation is,
thus, an aspirational declaration, not merely operating on factual givens but enabling the pursuit
of ideals.
"Life," then, is more appropriately understood as the fullness of human potential: not merely
organic, physiological existence, but consummate self-actualization, enabled and effected not
only by freedom from bodily restraint but by facilitating an empowering existence. "Life and
liberty," placed in the context of a constitutional aspiration, it then becomes the duty of the
government to facilitate this empowering existence. This is not an inventively novel
understanding but one that has been at the bedrock of our social and political conceptions. As
Justice George Malcolm, speaking for this Court in 1919, articulated:
Civil liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to
liberty guaranteed by the Constitution includes the right to exist and the right to be free from
arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy
the faculties with which he has been endowed by his Creator, subject only to such restraints as
are necessary for the common welfare. As enunciated in a long array of authorities including
epoch-making decisions of the United States Supreme Court, liberty includes the right of the
citizen to be free to use his faculties in lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any avocation, and for that purpose, to enter into all
contracts which may be proper, necessary, and essential to his carrying out these purposes to a
successful conclusion. The chief elements of the guaranty are the right to contract, the right to
choose one's employment, the right to labor, and the right of locomotion.
It is in this sense that the constitutional listing of the objects of due process protection admits
amorphous bounds. The constitutional protection of life and liberty encompasses a penumbra of
cognate rights that is not fixed but evolves — expanding liberty — alongside the
contemporaneous reality in which the Constitution operates. People v. Hernandez illustrated how
the right to liberty is multi-faceted and is not limited to its initial formulation in the due process
clause:
[T]he preservation of liberty is such a major preoccupation of our political system that, not
satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of
Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12),
(13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of
freedom.15 (Citations omitted)
Petitioners assert that due process covers the right to livelihood, to work and earn a living.16 The
pleadings were brought by a sandcastle builder, a driver, and a non-resident. The first two (2) are
informal workers who have no economic resources other than their ability to provide their
services. The last petitioner is a citizen claiming his right, as a Filipino, to enjoy the natural
beauty of his country—his right to travel.
The majority unfortunately canisters this right as falling under the right to property. The
argument is that since petitioners have no vested rights on their sources of income, they are not
entitled to due process. Even if tourists were still allowed in the island, they earn nothing if no
one avails of their services. Thus, since petitioners' earnings are contingent and merely inchoate,
the right to property does not yet exist.
I disagree.
The right invoked is not merely the right to property. The right to livelihood falls within the
spectrum of the almost inviolable right to life and liberty. The ability to answer a calling, evolve,
and create a better version of oneself, in the process of serving others, is a quintessential part of
one's life. The right to life is not a mere corporeal existence, but includes one's choice of
occupation. This is as important as to those who belong to the informal sector. It is an aspect of
social justice that their right to be able to earn a livelihood should be protected by our
Constitution.
In the hierarchy of rights, the right to life and the right to liberty sit higher than the right to
property. This is also the import of Article II, Section 11 of the Constitution which provides:
SECTION 11. The State values the dignity of every human person and guarantees full respect for
human rights.
We recognize the primacy of human rights over property rights because these rights are "delicate
and vulnerable[.]" They are so precious in our society, such that the threat of sanctions may deter
their exercise almost as strongly as the actual application of sanctions. They "need breathing
space to survive"; thus, government regulation is allowable only with "narrow specificity."17
In contrast, property rights may be readily qualified as evidenced by the many rules and laws that
have been enacted on property ownership and possession. Article XII, Section 6 of the
Constitution qualifies the right to property:
SECTION 6. The use of property bears as social function, and all economic agents shall
contribute to the common good. Individuals and private groups, including corporations,
cooperatives, and similar collective organizations, shall have the right to own, establish, and
operate economic enterprises, subject to the duty of the State to promote distributive justice and
to intervene when the common good so demands.
As early as in Ermita-Malate Hotel and Motel Operators Association v. City of Manila,18 this
Court already emphasized that if the liberty involved were "freedom of the mind or the person,
the standard for the validity of governmental acts is much more rigorous and exacting, but where
the liberty curtailed affects at the most rights of property, the permissible scope of regulatory
measures is wider."19
We are not confronted with a situation where the government simply regulates one's occupation.
Here, the shutdown contemplated in Proclamation No. 475 is complete. The total deprivation of
their right to exercise their occupation was curtailed.
For those who have a very regular and lucrative source of income, a period of six (6) months
may not be a long time. However, to those within the informal sector, losing their jobs even for a
day can spell disaster not only for themselves, but also for their families. Not only do they have
legal standing to challenge the Proclamation, but they also do so invoking one (1) of the most
primordial of our fundamental rights.
The Proclamation deprives them of their livelihood not for a day, for a week, or for even a
month, but for six (6) months. The Proclamation itself— or any law that is purportedly meant to
have authorized the issuance of such proclamation—does not provide a credible means of
compensation for them. It does not mention any remedial measures for those whose rights will be
affected. It is not only police power that exists. Fundamental rights vested by the Constitution
could only be considered collateral damage undeserving of any form of redress.
Parenthetically, even if the characterization of their plea belongs to the right to
property, Southern Luzon Drug Corporation v. Department of Social Welfare and
Development,20 is not on point.
In Southern Luzon Drug Corporation, we dealt with the question as to whether the shift in tax
treatment of the 20% discount given to senior citizens and persons with disability was a valid
exercise of police power. The case did not involve the livelihood of individuals; rather, it
involved the profits of an ongoing business. Furthermore, the businesses affected by the senior
citizen's discount were not suspended. The case only concerned itself on the proper way of
computing their taxes for incomes they have not yet received.
There is a fundamental difference in treatment between a business and human labor under our
Constitution. Human labor is given more protection. This is found in Article XIII, Section 3 of
the Constitution:
SECTION 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
Here, what happened was not a mere regulation of a business. It was a closure of an entire island
that ceased to make any of the means to a livelihood known to them possible.
It is unfortunate that the Majority made judicial findings accepting the government's argument
that petitioners were free to move and practice their profession elsewhere.21 This was without
basis.
Not all informal workers are mobile simply because not all of them have financial resources to
move from one (1) place to another. Not all of them have multiple skills that would allow them
the flexibility to be employed in another line of work immediately when their current consistent
source of income stops. Precisely, they become part of the informal sector because through their
circumstances, they have been unable to evolve to more marketable skills. To nonchalantly
assume that they can find other jobs should not be an acceptable judicial approach, as that may
trivialize the rights they assert. It is an unfortunate—though perhaps unintended—display of our
lack of compassion for the plight of petitioners.
Certainly, this is not the judicial approach sanctioned by our Constitution. Article II, Sections 9
and 10 of the Constitution call attention to sensitivity to social justice, thus:
SECTION 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising standard of living, and an
improved quality of life for all.
SECTION 10. The State shall promote social justice in all phases of national development.
Together, these constitutional provisions provide that social justice cannot be achieved through
an overgeneralized understanding of labor. The informal sector, represented by petitioners, does
not have the same mobility of other workers who have more skills. They do not also have the
same mobility as the businesses that filed the petition in Southern Luzon Drug Corporation.22
Undoubtedly, here, the total negation of petitioners' opportunity to do their livelihood was a
deprivation of their right to life and liberty. Definitely, they had standing to sue.
II
The breadth of the constitutional protection of life and liberty may continue to evolve with
contemporary realities. However, the textual basis in the Constitution is fixed: any intrusion must
be with due process of law.
Jurisprudence evolved three (3) levels of due process analysis.
In Ermita Malate Hotel and Motel Operators Association,23 where the validity of an ordinance
was upheld, this Court reasoned that the ordinance was a police power measure aimed at
safeguarding public morals, and thus, is immune from imputation of nullity:
To hold otherwise would be to unduly restrict and narrow the scope of police power which has
been properly characterized as the most essential, insistent and the least limitable of powers,
extending as it does "to all the great public needs." It would be, to paraphrase another leading
decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be
deprived of its competence to promote public health, public morals, public safety and the general
welfare. Negatively put, police power is "that inherent and plenary power in the State which
enables it to prohibit all that is hurtful to the comfort, safety, and welfare of
society."24 (Emphasis supplied)
In that case, the Court viewed due process as merely requiring that the challenged action "must
not outrun the bounds of reasons and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly has it been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play."25
Decades later, in City of Manila,26 an ordinance that prohibited persons and corporations from
contracting and engaging in any business providing certain forms of amusement, entertainment,
services, and facilities, where women were used as tools in entertainment, was struck down as
unconstitutional because it affected the moral welfare of the community. This Court clearly
defined the test of a valid ordinance:
[I]t must not only be within the corporate powers of the local government unit to enact and must
be passed 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.27
Only a few years later, in White Light Corporation v. City of Manila,28 this Court elaborated:
The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right". Consequently, two standards of judicial
review were established: strict scrutiny for laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating classifications based on gender and legitimacy. Immediate
scrutiny was adopted by the U.S. Supreme Court in Craig, after the Court declined to do so
in Reed v. Reed. While the test may have first been articulated in equal protection analysis, it has
in the United States since been applied in all substantive due process cases as well.
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.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation
of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its
earlier applications to equal protection. The United States Supreme Court has expanded the
scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and
interstate travel.29 (Citations omitted)
Recently, in Fernando, et al. v. St. Scholastica's College, et al.,30 we again discussed the three (3)
levels of tests employed when there is a breach of a fundamental right.
In Spark v. Quezon City,31 I reviewed in a Concurring Opinion the extent of the three (3) modes
of due process review:
An appraisal of due process and equal protection challenges against government regulation must
admit that the gravity of interests invoked by the government and the personal liberties or
classification affected are not uniform. Hence, the three (3) levels of analysis that demand careful
calibration: the rational basis test, intermediate review, and strict scrutiny. Each level is typified
by the dual considerations of: first, the interest invoked by the government; and second, the
means employed to achieve that interest.
The rational basis test requires only that there be a legitimate government interest and that there
is a reasonable connection between it and the means employed to achieve it.
Intermediate review requires an important government interest. Here, it would suffice if
government is able to demonstrate substantial connection between its interest and the means it
employs. In accordance with White Light, "the availability of less restrictive measures [must
have been] considered." This demands a conscientious effort at devising the least restrictive
means for attaining its avowed interest. It is enough that the means employed is conceptually the
least restrictive mechanism that the government may apply.
Strict scrutiny applies when what is at stake are fundamental freedoms or what is involved are
suspect classifications. It requires that there be a compelling state interest and that the means
employed to effect it are narrowly-tailored, actually — not only conceptually — being the least
restrictive means for effecting the invoked interest. Here, it does not suffice that the government
contemplated on the means available to it. Rather, it must show an active effort at demonstrating
the inefficacy of all possible alternatives. Here, it is required to not only explore all possible
avenues but to even debunk the viability of alternatives so as to ensure that its chosen course of
action is the sole effective means. To the extent practicable, this must be supported by sound data
gathering mechanisms.
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas further explained:
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.
Cases involving strict scrutiny innately favor the preservation of fundamental rights and the non-
discrimination of protected classes. Thus, in these cases, the burden falls upon the government to
prove that it was impelled by a compelling state interest and that there is actually no other less
restrictive mechanism for realizing the interest that it invokes:
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, and
the burden befalls upon the State to prove the same.32 (Emphasis in the original, citations
omitted)
The Constitution mandates more sensitivity towards several classes and identities found within
our society. Social justice at all levels of governances is an overarching state policy. This
envisions a dynamic social order that will ensure prosperity and "free the people from
poverty"33 through policies which "provide adequate social services, promote full employment, a
rising standard of living, and an improved quality of life for all."34 Our fundamental law "values
the dignity of every human person and guarantees full respect for human rights."35 Women, the
youth, indigenous peoples, farmers and farmworkers, labor in general enjoy significant
protection.
These provisions are not merely sardonic normative ornaments. Those who find themselves at
the margins of society—through the operation of an oppressive political economy, or the
stereotypes of contemporary culture, or as residues of our colonial past—deserve more judicial
sensitivity. With respect to the due process clause, it means that when the everyday livelihood of
those found within our informal sector are affected, an invocation of their fundamental right at
least deserves a stricter judicial scrutiny. Unfortunately, the Majority Opinion failed to do so.
III
Even with the lowest level of scrutiny—the reasonability of the means to achieve a legitimate
purpose test—the Proclamation should have failed judicial review for three (3) basic reasons.
First, the coercive remedial measures contained in the Proclamation was so broad as to affect
those who are innocent bystanders or those who are compliant with the law. Second, the
Proclamation is vague and contradicts at least the DILG Guidelines and existing statutes;
namely, our Civil Code and Republic Act No. 9275. Third, the Proclamation is not justified and
is contradictory to Republic Act No. 10121.
This Court has, on many occasions struck down executive actions when it tends to unreasonably
affect the rights of innocent third parties, who should not have been otherwise subjected to
coercive measures.
White Light Corporation,36 dealt with an ordinance that prohibited wash-up rates within the
territory of the local government unit. It appeared that its intentions were to deprive the use of
hotels and motels from commercial sex workers and those engaged in illicit affairs.
This Court, however, without going into the legitimacy of the objective of the measure, still
nullified the ordinance. Other individuals, such as spouses or travelers or others who simply need
a place to nap or shower, would also likely benefit from the short periods of accommodation that
would charge the wash-up rates. This Court declared that "individual rights may be adversely
affected only to the extent that may be required by the legitimate demands of public interest or
public welfare."37
Proclamation No. 475 acknowledges that innocent parties and those who are compliant with
existing laws will be affected. In its preambular clauses the government acknowledges:
WHEREAS, the investigations and validation undertaken revealed that:
....
b. Most commercial establishments and residences are not connected to the sewerage
infrastructure of Boracay Island, and waste products are not being disposed through the
proper sewerage infrastructures in violation of environmental law, rules, and regulations;

c. Only 14 out of 51 establishments near the shores of Boracay Island are compliant with the
provisions of Republic Act (RA) No. 9275 or the Philippine Clean Water Act of 2004;
...
.

e. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per day, while the
hauling capacity of the local government is only 30 tons per day, hence leaving
approximately 85 tons of waste in the Island daily;
...
.

g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to illegal encroachment
of structures, including 937 identified illegal structures constructed on forestlands and
wetlands, as well as 102 illegal structures on areas already classified as easements, and the
disappearance of the wetlands, which act as natural catchments, enhances flooding in the
area[.]38
There are commercial establishments and residential areas connected to the sewage
infrastructure. There are at least 14 establishments who comply with Republic Act No. 9275 or
the Philippine Clean Water Act of 2004. There are wetlands that are not affected by illegal
structures. There are residents and commercial establishments whose garbage are collected
properly. More importantly, petitioners are not shown to have contributed to the formation of
fecal coliform in the targeted beaches of Boracay.
Similar to the situation in White Light Corporation,39 the coercive remedial measures are too
broad that it affects those who may not be responsible for the evil sought to be addressed.
IV
Secondly, the Proclamation does not pass due process scrutiny because it is vague that it does not
adequately provide notice to all those affected as to what the Chief Executive, through his
various departments, intend to do and how the rights of those encompassed within its broad
sweep will be affected. Worse, the deployment of a massive contingent of law enforcers and the
curtailment of freedom of the press may have served to stifle questions as to the specific contours
of the actions of government to address the ecological situation in the island.
We review the chronological context of the government's actions as contained in the pleadings.
Apparently, the closure was effected even before the Proclamation was promulgated through
DILG Guidelines.
Sometime in February last year, President Duterte, in one of his speeches, described Boracay as a
"cesspool" and ordered the Department of Environment and Natural Resources to clean up the
island.40 On March 6, 2018, he announced that he would be placing Boracay under a state of
calamity. He warned the courts not to interfere or issue Temporary Restraining Orders and
threatened to charge the local officials of Boracay with sedition if they were to resist.41
On April 4, 2018, during a cabinet meeting, he approved the total closure of the island for six (6)
months, beginning April 26, 2018. The day after, Spokesperson Harry L. Roque confirmed the
rumors that Boracay was indeed being closed on the basis of police power.42
On their websites, publications Rappler and ABS-CBN reported that the Department of Interior
and Local Government issued guidelines for the closure,43 and that 630 police and military
personnel have been deployed on the island.44
The DILG Guidelines provide:
1. No going beyond Jetty Port. Identified tourists will not be allowed into the island and
will be stopped at the Jetty Port in Malay, Aklan.
2. No ID, no entry. Residents/workers/resort owners will be allowed entry into the island
subject to the presentation of identification cards specifying a residence in Boracay. All
government-issued IDs will be recognized. Non-government IDs are acceptable as long
as they are accompanied by a barangay certification of residency.
3. Swimming for locals only. Generally, swimming shall not be allowed anywhere on the
island. However, residents may be allowed to swim only at Angol Beach in station 3
from 6 am to 5pm.
4. One condition for entry. No visitors of Boracay residents shall be allowed entry, except
under emergency situations, and with the clearance of the security committee composed
of DILG representative, police, and local government officials.
5. Journalists need permission to cover. Media will be allowed entry subject to prior
approval from the Department of Tourism, with a definite duration and limited
movement.
6. No floating structures. No floating structures shall be allowed up to 15 kilometers from
the shoreline.
7. Foreign residents to be checked. The Bureau of Immigration will revalidate the papers
of foreigners who have found a home in Boracay.
8. One entry, one exit point. There will only be one transportation point to Boracay Island.
Authorities have yet to decide where.45 (Emphasis in the original)
On April 24, 2018, petitioners came to this Court. They are a sandcastle builder, a driver and a
non-resident who visits the island.
Two (2) days later, President Duterte issued Proclamation No. 475 and the shutdown of the
entire island commenced.
After being able to access the Proclamation, Petitioners filed a Supplemental Petition on May 10,
2018.
The DILG Guidelines are rudimentary and merely provide who may enter the island and how
they are to do so. On the other hand, the Proclamation provides for the implementation of
"urgent measures," the designation by Department of Environment and Natural Resources of
water bodies where specific pollutants have exceeded the water quality levels, and powers to
take "measures" to improve the water quality.
The DILG Guidelines, as reported, mention "identified tourists", limit swimming only to
"residents" to areas which are free from malevolent bacteria. It does not allow swimming for
workers of establishments or the members of law enforcement contingent sent to the island. It
also curtails visitation of residents. The DILG Guidelines also require media to register without
any guidance as to the basis for allowing or rejecting coverage, seriously raising issues regarding
whether freedom of expression and/or the press has been abridged.
While none of the provisions in the DILG Guidelines are contained specifically in Proclamation
No. 475, the latter does not specifically repeal the former.
The programs and activities that the Proclamation puts into effect are unclear. There are no
provisions to alleviate those whose rights will be affected and the remedies that will be available
to those aggrieved. More than any reasonable piece of legislation, it only seems to grant
amorphous powers to the President.
The Proclamation provides:
ordered, subject to applicable laws, rules, regulations and jurisprudence.
also hereby directed to coordinate with and provide or augment the basic services and facilities
President, notwithstanding the lapse of the six-month closure period.
All departments, agencies and offices, including government-owned or controlled corporations
The Philippine National Police, the Philippine Coast Guard and other law enforcement agencies,
with the support of the Armed Forces of the Philippines, are hereby directed to act with restraint
and within the bounds of the law in the strict implementation of the closure of the Island and
ensuring peace and order in the area.
allowed entry to the Island of Boracay until such time that the closure has been lifted by the
President.
restoration of the ecological balance of the Island which will be for the benefit of all
concerned.46 (Emphasis in the original)
The enacting clause declares a temporary closure of the island for six (6) months yet the third
clause provides that the state of calamity is open ended and without a time limit. Nothing in the
Proclamation justifies the period of six (6) months for the closure. The second paragraph after
the enacting clause also suggests that the temporary closure may be extended because the state of
calamity is indefinite. Thus:
President, notwithstanding the lapse of the six-month closure period.47
The first paragraph after the enacting clause mentions general remedial measures to be done by
the Executive. All government agencies are mandated to assist in the yet to be publicly declared
programs and activities during the closure.
The third paragraph after the enacting clause only refers to "the appropriate rehabilitation works,
in accordance with pertinent operational plans and directives, including the Boracay Action
Plan." None of these plans however were attached to the proclamation and none were presented
here by the Office of the Solicitor General on behalf of the government.
The fourth paragraph after the enacting clause refers to a policy of restraint for law enforcement
agencies. The fifth paragraph after the enacting clause refers to the ban for tourists to sojourn
into the island without providing for the reasons why all tourists shall be banned. It also does not
contain the standard for restrictions, if any, for tourism should the island be partially opened.
The sixth paragraph after the enacting clause is addressed to the residents and owners to comply
with the directives for the rehabilitation of the island. Those aggrieved are not provided with a
procedure for raising their claims to their livelihood and properties. There is no process to
address any objections to the hidden projects or activities that are not mentioned in the
Proclamation.
Proclamation No. 475 is eerily similar to the vagueness of the Martial Law Proclamation in the
recent case of Lagman v Medialdea.48 We recall our discussion on void-for-vagueness:
The doctrine of void for vagueness is a ground for invalidating a statute or a governmental
regulation for being vague. The doctrine requires that a statute be sufficiently explicit as to
inform those who are subject to it what conduct on their part will render them liable to its
penalties. In Southern Hemisphere v. Anti-Terrorism Council:
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.
In People of the Philippines v. Piedra, the Court explained that the rationale behind the doctrine
is to give a person of ordinary intelligence a fair notice that his or her contemplated conduct is
forbidden by the statute or the regulation. Thus, a statute must be declared void and
unconstitutional when it is so indefinite that it encourages arbitrary and erratic arrests and
convictions.
In Estrada v. Sandiganbayan, the Court limited the application of the doctrine in cases where the
statute is "utterly vague on its face, i.e. that which cannot be clarified by a saving clause or
construction." Thus, when a statute or act lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ in its application, the doctrine may be
invoked:
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient
notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-
for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute establishing a criminal offense
must define the offense with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving
clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects — it violates due process
for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which nonetheless specify
a standard though defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper construction, while
no challenge may be mounted as against the second whenever directed against such activities.
With more reason, the doctrine cannot be invoked where the assailed statute is clear and free
from ambiguity, as in this case.
In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council, the Court clarified
that the void for vagueness doctrine may only be invoked in as-applied cases. The Court
explained:
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." It stressed that "statutes
found vague as a matter of due process typically are invalidated only 'as applied' to a particular
defendant."
However, in Disini v. Secretary of Justice, the Court extended the application of the doctrine
even to facial challenges, ruling that "when a penal statute encroaches upon the freedom of
speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable." Thus, by
this pronouncement the void for vagueness doctrine may also now be invoked in facial
challenges as long as what it involved is freedom of speech.
On the other hand, the void for overbreadth doctrine applies when the statute or the act "offends
the constitutional principle 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."
In Adiong v. Commission on Elections, the Court applied the doctrine in relation to the Due
Process Clause of the Constitution. Thus, in Adiong, the Commission on Elections issued a
Resolution prohibiting the posting of decals and stickers not more than eight and one-half (8 ½)
inches in width and fourteen (14) inches in length in any place, including mobile places whether
public or private except in areas designated by the COMELEC. The Court characterized the
regulation as void for being "so broad," thus:
Verily, the restriction as to where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this case is a privately-owned vehicle.
In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights provides "that no person shall be deprived of
his property without due process of law."
Property is more than the mere thing which a person owns, it includes the right to acquire, use,
and dispose of it; and the Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The Constitution protects these essential attributes of
property. . . Property consists of the free use, enjoyment, and disposal of a person's acquisitions
without control or diminution save by the law of the land.
In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council, the Court held that
the application of the overbreadth doctrine is limited only to free speech cases due to the
rationale of a facial challenge. The Court explained:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a
statute cannot be properly analyzed for being substantially overbroad if the court confines itself
only to facts as applied to the litigants.
The Court ruled that as regards the application of the overbreadth doctrine, it is limited only to "a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to
free speech cases."
The Court's pronouncements in Disini v. Secretary of Justice is also premised on the same tenor.
Thus, it held:
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold
water since the specific conducts proscribed do not intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion
of personal identifying data of another. There is no fundamental right to acquire another's
personal data.
....
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to
the constitutionality of a statute even if he claims no violation of his own rights under the
assailed statute where it involves free speech on grounds of overbreadth or vagueness of the
statute. The rationale for this exception is to counter the "chilling effect" on protected speech that
comes from statutes violating free speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may simply restrain himself from speaking
in order to avoid being charged of a crime. The overbroad or vague law thus chills him into
silence.
It is true that in his Dissenting Opinion in Estrada v. Sandiganbayan, Justice V.V. Mendoza
expressed the view that "the overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the validity of penal statutes."
However, the Court already clarified in Southern Hemisphere Engagement Network, Inc., v.
Anti-Terrorism Council, that the primary criterion in the application of the doctrine is not
whether the case is a freedom of speech case, but rather, whether the case involves an as-applied
or a facial challenge. The Court clarified:
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.
....
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.
The Court then concluded that due to the rationale of a facial challenge, the overbreadth doctrine
is applicable only to free speech cases. Thus:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a
statute cannot be properly analyzed for being substantially overbroad if the court confines itself
only to facts as applied to the litigants.
....
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,
observed that the US Supreme Court has not recognized an overbreadth doctrine outside the
limited context of the First Amendment, and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.
In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against
a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks
on overly broad statutes are justified by the "transcendent value to all society of constitutionally
protected expression."
As regards the application of the void for vagueness doctrine, the Court held that vagueness
challenges must be examined in light of the specific facts of the case and not with regard to the
statute's facial validity. Notably, the case need not be a freedom of speech case as the Court cited
previous cases where the doctrine was applied:
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.
From these pronouncements, it is clear that what is relevant in the application of the void-for-
vagueness doctrine is not whether it is a freedom of speech case, but rather whether it violates
the Due Process Clause of the Constitution for failure to accord persons a fair notice of which
conduct to avoid; and whether it leaves law enforcers unbridled discretion in carrying out their
functions.49 (Emphasis in the original, citations omitted)
V
The inability of the Proclamation to provide fair notice and "whether it leaves law enforcers
unbridled discretion in carrying out their function"50 is readily demonstrated by the contradiction
in the provisions of the Proclamation with existing laws.
The Civil Code acknowledges the concept of nuisance, thus:
ARTICLE 694. A nuisance is any act, omission, establishment, business, condition of property,
or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body of
water; or
(5) Hinders or impairs the use of property.
ARTICLE 695. Nuisance is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal. A private nuisance is one that is not
included in the foregoing definition.
The responsibility to abate a nuisance lies with the owner or possessor of a property:
ARTICLE 696. Every successive owner or possessor of property who fails or refuses to abate a
nuisance in that property started by a former owner or possessor is liable therefor in the same
manner as the one who created it.
ARTICLE 697. The abatement of a nuisance does not preclude the right of any person injured to
recover damages for its past existence.51
Being a public nuisance, the remedy for the discharge of coliform within private properties or
properties possessed by private persons are:
ARTICLE 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.52
Abatement of a public nuisance is provided, thus:
ARTICLE 698. Lapse of time cannot legalize any nuisance, whether public or private.
ARTICLE 700. The district health officer shall take care that one or all of the remedies against a
public nuisance are availed of.
ARTICLE 701. If a civil action is brought by reason of the maintenance of a public nuisance,
such action shall be commenced by the city or municipal mayor.
ARTICLE 702. The district health officer shall determine whether or not abatement, without
judicial proceedings, is the best remedy against a public nuisance.
ARTICLE 703. A private person may file an action on account of a public nuisance, if it is
specially injurious to himself.
ARTICLE 704. Any private person may abate a public nuisance which is specially injurious to
him by removing, or if necessary, by destroying the thing which constitutes the same, without
committing a breach of the peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with the assistance
of the local police; and
(4) That the value of the destruction does not exceed three thousand pesos.53
Nothing in the Proclamation relates to or is in accordance with these statutory procedures and
standards of the Civil Code.
Significantly, the Proclamation also contravenes Republic Act No. 9275 or the Philippine Clean
Water Act of 2004.
Section 6 of the Philippine Clean Water Act of 2004 provides a systematic procedure for the
management of water bodies which are heavily polluted or referred to as "non-attainment areas.''
Thus:
SECTION 6. Management of Non-attainment Areas. — The Department shall designate water
bodies, or portions thereof, where specific pollutants from either natural or man-made source
have already exceeded water quality guidelines as non-attainment areas for the exceeded
pollutants. It shall prepare and implement a program that will not allow new sources of exceeded
water pollutant in non-attainment areas without a corresponding reduction in discharges from
existing sources: Provided, That if the pollutant is naturally occurring, e.g. naturally high boron
and other elements in geothermal areas, discharge of such pollutant may be allowed: Provided,
further, That the effluent concentration of discharge shall not exceed the naturally occurring
level of such pollutant in the area: Provided, finally, That the effluent concentration and volume
of discharge shall not adversely affect water supply, public health and ecological protection.
The Department shall, in coordination with NWRB, Department of Health (DOH), Department
of Agriculture (DA), governing board and other concerned government agencies and private
sectors shall take such measures as may be necessary to upgrade the quality of such water in
non attainment areas to meet the standards under which it has been classified.
Upgrading of water quality shall likewise include undertakings which shall improve the water
quality of a water body to a classification that will meet its projected or potential use.
The LGUs shall prepare and implement contingency plans and other measures including
relocation, whenever necessary, for the protection of health and welfare of the residents within
potentially affected areas.
Complementing these procedures to identify heavily polluted waters, and therefore considered
non-attainment areas, are the enforcement mechanisms in the law. Should clean-up of the waters
become necessary, Section 16 of Republic Act No. 9275 will apply, thus:
SECTION 16. Clean-Up Operations. — Notwithstanding the provisions of Sections 15 and 26
hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable
and prevailing standards shall be responsible to contain, remove and clean-up any pollution
incident at his own expense to the extent that the same water bodies have been rendered unfit for
utilization and beneficial use: Provided, That in the event emergency clean-up operations are
necessary and the polluter fails to immediately undertake the same, the Department, in
coordination with other government agencies concerned, shall conduct containment, removal and
clean-up operations. Expenses incurred in said operations shall be reimbursed by the persons
found to have caused such pollution upon proper administrative determination in accordance
with this Act. Reimbursements of the cost incurred shall be made to the Water Quality
Management Fund or to such other funds where said disbursements were sourced.
This applies to the containment, removal, and clean-up operations for the body of water that is
polluted. To prevent further discharge from a private source, Section 27 of Republic Act No.
9275 prohibits:
SECTION 27. Prohibited Acts. — The following acts are hereby prohibited:
a) Discharging, depositing or causing to be deposited material of any kind directly or indirectly

into the water bodies or along the margins of any surface water, where, the same shall be
liable to be washed into such surface water, either by tide action or by storm, floods or
otherwise, which could cause water pollution or impede natural flow in the water body;
...
.

e) Unauthorized transport or dumping into sea waters of sewage sludge or solid waste as
defined under Republic Act No. 9003;
...
.

g) Operate facilities that discharge or allow to seep, willfully or through gross negligence,
prohibited chemicals, substances or pollutants listed under Republic Act No. 6969, into water
bodies or wherein the same shall be liable to be washed into such surface, ground, coastal,
and marine water;

h) Undertaking activities or development and expansion of projects, or operating

wastewater/sewerage facilities in violation of Presidential Decree No. 1586 and its
implementing rules and regulations;

i) Discharging regulated water pollutants without the valid required discharge permit pursuant
to this Act or after the permit was revoked or any violation of any condition therein;

j) Noncompliance of the LGU with the Water Quality Framework and Management Area
Action Plan. In such a case, sanctions shall be imposed on the local government officials
concerned;

k) Refusal to allow entry, inspection and monitoring by the Department in accordance with this
Act;

l) Refusal to allow access by the Department to relevant reports and records in accordance with
this Act;

m) Refusal or failure to submit reports whenever required by the Department in accordance with
this Act;
...
.

o) Directly using booster pumps in the distribution system or tampering with the water supply
in such a way as to alter or impair the water quality.
Section 28 of the same law provides further enforcement mechanisms:

SECTION 28. Fines, Damages and Penalties. — Unless otherwise provided herein, any person
who commits any of the prohibited acts provided in the immediately preceding section or
violates any of the provision of this Act or its implementing rules and regulations, shall be fined
by the Secretary, upon the recommendation of the PAB in the amount of not less than Ten
thousand pesos (P10,000.00) nor more than Two hundred thousand pesos (P200,000.00) for
every day of violation. The fines herein prescribed shall be increased by ten percent (10%) every
two (2) years to compensate for inflation and to maintain the deterrent function of such
fines: Provided, That the Secretary, upon recommendation of the PAB may order the closure,
suspension of development or construction, or cessation of operations or, where appropriate
disconnection of water supply, until such time that proper environmental safeguards are put in
place and/or compliance with this Act or its rules and regulations are undertaken. This
paragraph shall be without prejudice to the issuance of an ex parte order for such closure,
suspension of development or construction, or cessation of operations during the pendency of
the case.
Failure to undertake clean-up operations, willfully, or through gross negligence, shall be
punished by imprisonment of not less than two (2) years and not more than four (4) years and a
fine not less than Fifty thousand pesos (P50,000.00) and not more than One hundred thousand
pesos (P100,000.00) per day for each day of violation. Such failure or refusal which results in
serious injury or loss of life and/or irreversible water contamination of surface, ground, coastal
and marine water shall be punished with imprisonment of not less than six (6) years and one (1)
day and not more than twelve (12) years, and a fine of Five hundred thousand pesos
(P500,000.00) per day for each day during which the omission and/or contamination continues.
In case of gross violation of this Act, the PAB shall issue a resolution recommending that the
proper government agencies tile criminal charges against the violators. (Emphasis supplied)
The Department of Environment and Natural Resources is only authorized by the Clean Water
Act to order closures of operations when recommended by the Pollution Adjudicatory Board, or
when the latter files an ex parte order before a court.
It is the Pollution Adjudicatory Board, not the President or the Department of Environment and
Natural Resources, that has specific jurisdiction over the Clean Water Act:54
RULE III
Jurisdiction and Authority of the Board
SECTION 1. JURISDICTION OF THE BOARD
....
B. Specific Jurisdiction. — Notwithstanding the general jurisdiction of the Board over
adjudication of pollution cases, and all matters related thereto, the Board has specific
jurisdiction, over the following cases:
....
2. Clean Water Act (RA 9275)
The PAB has the exclusive and original jurisdiction with respect to adjudication of pollution
cases based on exceedance of the DENR Effluent Standards and other acts defined as prohibited
under Section 27 of R.A. 9275. (Emphasis supplied)
Should it be necessary, the issuance of Cease and Desist Orders are provided in the Pollution
Adjudication Board Resolution No. 001-10 or the Revised Rules of Procedure of the Pollution
Adjudicatory Board, thus:
RULE X
Orders, Resolutions and Decisions
SECTION 1. Cease and Desist Order. — Whenever the Board finds prima facie evidence that
the emission or discharge of pollutants constitutes an immediate threat to life, public health,
safety or welfare, or to animal or plant life, or exceeds the allowable DENR Standards, it may
issue or recommend to the DENR Secretary an ex-parte order directing the discontinuance of the
same or the temporary suspension or cessation of operation of the establishment or person
generating such pollutants, without need of a prior public hearing.
The Cease and Desist Order (CDO) shall be immediately executory and shall remain in force and
effect until modified or lifted by the Board or the DENR Secretary.
The Board or the DENR Secretary may also direct the Regional Office to revoke, suspend or
modify any permit to operate a pollution control facility or any clearance whenever such is
necessary to prevent or abate the pollution.
SECTION 2. Cease and Desist Order against Whom Issued. — A CDO shall be issued against
the respondent for the purpose of directing it to immediately stop or refrain from doing or
conducting an act, or continuing a particular activity or course of action in violation of
environmental laws, such as, but not limited to, the operation of a particular machine, equipment,
process or activity, or doing a particular act expressly prohibited by law.
....
SECTION 4. Board Action on Interim Cease and Desist Order. — Where an interim CDO
effective for seven (7) days has been issued by the Regional Director, the Board shall issue a
Cease and Desist Order or recommend to the Secretary the issuance of a CDO, pursuant to the
provisions of the applicable law.
SECTION 5. Remedy of Respondent. — The respondent may contest the order by filing with the
Board a motion to lift the CDO, with proof of service of copies thereof on the Regional Office
and the parties concerned.
The Board shall direct the Regional Office which has jurisdiction over the case and the parties
concerned to file their comment to the motion within five (5) days from receipt thereof, copy-
furnished the respondent. Thereafter, the motion shall be set for hearing or calendared for the
Board's deliberation. The filing of such motion shall not stay the enforcement and execution of
the CDO.
SECTION 6. Implementation of Cease and Desist Order. — The Regional Director or his duly
authorized representative, in coordination with the Regional Executive Director (RED) shall
implement or cause the implementation of the Cease and Desist Order no later than seventy-two
(72) hours from receipt thereof. He shall submit to the Board a report within forty-eight (48)
hours after the completion of the implementation, stating therein the actions taken. Should the
Cease and Desist Order be implemented beyond seventy-two (72) hours or cannot be
implemented, the Regional Director shall submit a written report to the Board stating therein the
causes of delay or failure to execute the same.
The implementing team shall be designated by the Regional Director.
In the implementation of Cease and Desist Orders, the Regional Director shall observe the
following guidelines:
1. Upon issuance or receipt of the CDO by the Board, the EMB Regional Director or his duly
authorized representative shall inform the local government unit (province/municipality/city)
concerned regarding the implementation thereof by furnishing it with copies of the Orders
received from the Board;
2. Upon arrival at the respondent's premises, the implementing team shall present proper
identification as well as its mission Order duly signed by the EMB Regional Director;
3. The head of the implementing team shall serve the CDO on the Managing Head and the
Pollution Control Officer, or in their absence to any person in charge, by thoroughly explaining
to them the contents thereof;
4. The team shall proceed with the execution of the CDO by padlocking and sealing the source
responsible for generating the effluent or emission, and thereafter requesting the Managing Head
and the Pollution Control Officer to affix their signatures to the duplicate copy of the CDO as
proof of service;
5. Should there be refusal on the part of the respondent to have the CDO implemented, the head
of the implementing team shall report such incident to the EMB Regional Director, without
prejudice to such respondent being declared in contempt and other criminal liability under
relevant laws;
6. The Regional Director, whenever it is deemed necessary, may seek the assistance of the Local
Government Units (LGUs) and/or Philippine National Police (PNP) through its PNP Regional
Director. The written communication shall state the urgency of having the CDO implemented
within the seventy-two (72) hour period as prescribed in the existing Rules;
7. The LGUs and/or the PNP together with the same implementing team may break into
respondent's premises for the purpose of implementing the CDO in accordance with number four
(4) above; and
8. Upon serving of the CDO, the Regional Office shall document the same by taking of
photographs and/or videos and thereafter advising respondent that removing or breaking the
padlocks and seals constitutes is a criminal offense punishable by existing environmental laws,
rules and regulations without prejudice to such respondent being declared in contempt and other
liability under relevant laws.
SECTION 7. Show Cause Order. — Instead of issuing a CDO, the Board may opt to direct
respondent to Show Cause why no CDO should be issued against it, subject to these criteria:
1. The results of a series of effluent samplings shows a marked decrease in the values of the
relevant parameters; or
2. The values of the relevant parameters are not far from the DENR Standards.
These statutory framework and mechanisms are absent in the Proclamation.
Recalling the enabling clause of the Proclamation:
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of
the powers vested in me by the Constitution and existing laws, do hereby declare a State of
ordered, subject to applicable laws, rules, regulations and jurisprudence.
also hereby directed to coordinate with and provide or augment the basic services and facilities
....
All departments, agencies and offices, including governmentowned or controlled corporations
....
allowed entry to the Island of Boracay until such time that the closure has been lifted by the
President.
restoration of the ecological balance of the Island which will be for the benefit of all concerned.
The Proclamation makes two (2) basic and broad sets of directives to all agencies.
The first set relates to prices of basic goods, employment of procurement, and disbursement of
funds, and for relief and rehabilitation. This is contained in the first paragraph after the enabling
clause, thus:
All departments and other concerned government agencies are also hereby directed to coordinate
with and provide or augment the basic services and facilities of affected local government units,
if any.
The second set of directives relate to "appropriate rehabilitation works" where the primacy of
"pertinent action plans and directives," including a "Boracay Action Plan," not appended to the
Proclamation, is mentioned. Thus:
All departments, agencies and offices, including government owned or controlled corporations
The Proclamation completely negates the framework of enforcement and implementation of
Republic Act No. 9275.
The form of the Presidential action contributes to its vagueness.
Executive Order No. 292 or the Administrative Code makes a clear distinction between an
Executive Order and a Proclamation, thus:
SECTION 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.
....
SECTION 4. Proclamations. — Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order.
The Presidential action is in the form of a Proclamation, which appears to state a "status or
condition," namely a "state of calamity," intending to signal the operation of Republic Act No.
10121 or Republic Act No. 9275.55 However, as demonstrated, the provisions of the
Proclamation amends the framework and implementation of the Civil Code and the Clean Water
Act.
VI
Thirdly, the Proclamation transgresses due process of law in that it is not based on Republic Act
No. 10121.
The majority finds that Proclamation No. 475 is in the nature of a valid police power measure. It
defined police power as the "state authority to enact legislation that may interfere with personal
liberty or property in order to promote general welfare."56 Police power does not need to be
supported by the Constitution since "it is inborn in the very fact of statehood and sovereignty."57
A valid exercise of police power by the President requires that it be exercised within the
framework of both the Constitution and statutes.
In David v. Arroyo,58 this Court invalidated Presidential Decree No. 1017 insofar as the president
is granted authority to promulgate "decrees." Legislative power is vested solely in the legislature.
Our Constitution provides:
Article VI
The Legislative Department
SECTION 1. The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved to the people by
the provision on initiative and referendum.
To determine whether there is a valid delegation of legislative power, it must pass the
completeness test and the sufficient standard test. The first test requires that the law must be
complete in all its terms and conditions when it leaves the legislature, so much so that when it
reaches the delegate, the only thing left is to enforce the law. The second test requires adequate
guidelines in law to provide the boundaries of the delegate's authority.59
These tests ensure that the delegate does not step into the shoes of the legislature and exercise
legislative power.60 In Belgica v. Ochoa,61 this Court reminded the parties that "the powers of the
government must be divided to avoid concentration of these powers in any one branch, the
division, it is hoped, would avoid any single branch from lording its power over the other
branches of the citizenry."62
The majority, accepting the premise of respondents, cites Republic Act No. 1012163 as statutory
basis for the validity of Proclamation No. 475. Such reliance is erroneous.
Republic Act No. 1 0121 defines state of calamity as:
SECTION 3. Definition of Terms. — For purposes of this Act, the following shall refer to:
....
(ll) "State of Calamity"—a condition involving mass casualty and/or major damages to property,
disruption of means of livelihoods, roads and normal way of life of people in the affected
areas as a result of the occurrence of natural or human-induced hazard. (Emphasis supplied)
Not all man-made intrusions and pollution into our environment justify as severe an intervention
as the "state of calamity envisioned in Republic Act 10121. The environmental disaster must (a)
be of such gravity, (b) its cause so known that (c) the response required under that law IS
necessary.
The imminence of mass casualty or major damage to property or disruption of the means of
livelihoods and the normal life of the people must be demonstrated. Any action of human beings
may cause the unintended consequences of affecting whole communities. The profligate use of
plastics is affecting our oceans and endangering our fish stock. The pervasiveness of livestock
and the demand for meat may be causing the release of inordinate amounts of carbon and
methane causing climate change. The release of anthropogenic gases and other human activities
causing climate change have resulted in scientists warning that the "sixth mass extinction event"
for our planet may be underway.64
Yet, not all of this evolving disasters—as the disaster involving fecal coliform in the beaches of
Boracay—would be the state of calamity envisioned by Republic Act No. 10121. Rather, the
problem of coliform formation may be due to many other factors that should be addressed by our
building codes, sanitation codes, and other environmental laws. Each of these laws provide the
means of redress as well as the process of weeding out the source of the disasters. Furthermore,
in situations where the violations are rampant, the government may also want to invoke our anti-
corruption laws to weed out the causes at its roots.
The nature of the calamity envisioned by Republic Act No. 10121 can be further discerned not
only from the nature of the acts prohibited. Section 19 of the law provides:
SECTION 19. Prohibited Acts. — Any person, group or corporation who commits any of the
following prohibited acts shall be held liable and be subjected to the penalties as prescribed in
Section 20 of this Act:
(a) Dereliction of duties which leads to

destruction, loss of lives, critical damage
of facilities and misuse of funds;

(b) Preventing the entry and distribution of

relief goods in disasterstricken areas,
including appropriate technology, tools,
equipment, accessories, disaster
teams/experts;

(c) Buying, for consumption or resale, from

disaster relief agencies any relief goods,
equipment or other aid commodities which
are intended for distribution to disaster
affected communities;

(d) Buying, for consumption or resale, from

the recipient disaster affected persons any
relief goods, equipment or other aid
commodities received by them;

(e) Selling of relief goods, equipment or other

aid commodities which are intended for
distribution to disaster victims;

(f) Forcibly seizing relief goods, equipment or

other aid commodities intended for or
consigned to a specific group of victims or
relief agency;

(g) Diverting or misdelivery of relief goods,

equipment or other aid commodities to
persons other than the rightful recipient or
consignee;

(h) Accepting, possessing, using or disposing

relief goods, equipment or other aid
commodities not intended for nor
consigned to him/her;

(i) Misrepresenting the source of relief goods,

equipment or other aid commodities by:

(1) Either covering, replacing or defacing the labels

of the containers to make it appear that the
goods, equipment or other aid commodities
came from another agency or persons;

(2) Repacking the goods, equipment or other aid

commodities into containers with different
markings to make it appear that the goods, came
from another agency or persons or was released
upon the instance of a particular agency or
persons;

(3) Making false verbal claim that the goods,

equipment or other aid commodity in its
untampered original containers actually came
from another agency or persons or was released
upon the instance of a particular agency or
persons;

(j) Substituting or replacing relief goods,

equipment or other aid commodities with
the same items or inferior/cheaper quality;

(k) Illegal solicitations by persons or

organizations representing others as
defined in the standards and guidelines set
by the NDRRMC;

(l) Deliberate use of false or inflated data in

support of the request for funding, relief
goods, equipment or other aid
commodities for emergency assistance or
livelihood projects; and

(m) Tampering with or stealing hazard

monitoring and disaster preparedness
equipment and paraphernalia.
The nature of the contingency for the state of calamity envisioned in Republic Act No. 10121 is
such that casualties have actually been suffered and property actually damaged. This may take
the form of typhoons, tsunamis, or earthquakes where government's relief is needed. It does not
include human induced ecological disasters like the formation of fecal coliform on our beaches,
which requires a more systematic, deliberate, structural, and institutional approach.
VII
The express and implied powers contained in the Proclamation exceeds that which is granted by
Republic Act No. 10121.
Section 17 of that law contains a listing of the competences that may be exercised during states
of calamities:
SECTION 17. Remedial Measures. — The declaration of a state of calamity shall make
mandatory the immediate undertaking of the following remedial measures by the member-
agencies concerned as defined in this Act:
(a) Imposition of price ceiling on basic necessities and prime commodities by the President upon
the recommendation of the implementing agency as provided for under Republic Act No.
7581, otherwise known as the "Price Act", or the National Price Coordinating Council;

(b) Monitoring, prevention and control by the Local Price Coordination Council of
overpricing/profiteering and hoarding of prime commodities, medicines and petroleum
products;

(c) Programming/reprogramming of funds for the repair and safety upgrading of public
infrastructures and facilities; and

(d) Granting of no-interest loans by government financing or lending institutions to the most
affected section of the population through their cooperatives or people's organizations.
The law expands the power of the executive branch during emergencies. In passing Republic Act
No. 10121, the legislature did not contemplate allowing the President to exercise any and all
powers amounting to a suspension of existing legislation. Precisely, Republic Act No. 10121 is
the legislation that limits that expansion of executive powers during that emergency.
The acknowledgement of the possible abuse of the executive's power to declare a state of
calamity and to exercise powers not contemplated in the law is seen with two (2) salient features
of the law. First, the declaration of a state of calamity may not be done without a
recommendation. Section 16 provides:
SECTION 16. Declaration of State of Calamity. — The National Council shall recommend to the
The declaration and lifting of the state of calamity may also be issued by the local sanggunian,
upon the recommendation of the LDRRMC, based on the results of the damage assessment and
needs analysis.
Second, the limited powers granted in Section 17 of Republic Act No. 10121 is also implied in
other provisions, which guard against the possibility for abuse. The law contains both active
Congressional Oversight as well as a sunset provision:
SECTION 26. Congressional Oversight Committee. — There is hereby created a Congressional
Oversight Committee to monitor and oversee the implementation of the provisions of this Act.
The Committee shall be composed of six (6) members from the Senate and six (6) members from
the House of Representatives with the Chairpersons of the Committees on National Defense and
Security of both the Senate and the House of Representatives as joint Chairpersons of this
Committee. The five (5) other members from each Chamber are to be designated by the Senate
President and the Speaker of the House of Representatives, respectively. The minority shall be
entitled to pro rata representation but shall have at least two (2) representatives from each
Chamber.
SECTION 27. Sunset Review. — Within five (5) years after the effectivity of this Act, or as the
need arises, the Congressional Oversight Committee shall conduct a sunset review. For purposes
of this Act, the term "sunset review" shall mean a systematic evaluation by the Congressional
Oversight Committee of the accomplishments and impact of this Act, as well as the performance
and organizational structure of its implementing agencies, for purposes of determining remedial
legislation.
The provisions in statutes should not be read in isolation from the purpose of the legislation and
in light of its other provisions. The grant of power given to the president when a state of calamity
is declared should thus be read in a limited fashion. Expressio unius est exclusio alterius.
Definitely, a total closure of an entire island is not contemplated in the law invoked by
Proclamation No. 475.
VIII
More disturbingly, the Proclamation's violations of specific provisions contained in Republic Act
No. 10121 patently shows that the latter cannot be the statutory basis for the exercise of
executive power.
The period of the state of calamity provided in Proclamation No. 475 contravenes Republic Act
No. 10121. In the Proclamation, it is made dependent exclusively on the President.
Proclamation No. 475 provides:
President, notwithstanding the lapse of the six-month closure period. (Emphasis supplied)
However, in Republic Act No. 10121, the period is conditioned on several factors. Thus:
SECTION 16. Declaration of State of Calamity. — The National Council shall recommend to the
needs analysis. (Emphasis supplied)
Executive issuances cannot amend statutes under which they are issued. It is clear in
Proclamation No. 475 that it only grants the President the power to lift the state of calamity. The
power of the President to lift the state of calamity is not qualified in the Proclamation, and
neither is there a standard. Likewise, it does not mention any other authority that can lift the state
of calamity. Incidentally, there is also no standard for the six (6)-month closure of the island.
However, Republic Act No. 10121, under which the Proclamation claims authority, allows the
Municipal Sanggunian, upon the recommendation of its Local Disaster Risk Reduction and
Management Council, to lift the state of calamity based on a "damage assessment and needs
analysis."65
The Proclamation and the law are clearly contradictory.
IX
Moreover, the Proclamation transgresses both the Constitution's grant and the statutory
elaboration of local autonomy.
The majority admits the intrusion of the President into the autonomy of the local government
units, but finds it too trivial to warrant any consideration from this Court.66
I cannot agree.
Article X, Section 2 of the Constitution grants local autonomy to all territorial and political
subdivisions. Section 4 of the same article provides that the president's power over local
government units is merely of general supervision and excludes control:
ARTICLE X
Local Government
General Provisions
SECTION 2. The territorial and political subdivisions shall enjoy local autonomy.
....
SECTION 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their component
units are within the scope of their prescribed powers and functions.
In issuing Proclamation No. 475, the President exercised control over the local government units.
The Proclamation orders affected local government units to implement and execute the closure.
This is definitely a measure of control, not mere supervision.
The distinction between supervision and control of local government units is settled in
jurisprudence.
In Pimentel v. Aguirre,67 this Court clarified the connection between supervision and control. The
Constitution provides a president only with the power of supervision and not control over local
government units. This power enables him or her to see to it that local government officials
perform tasks within the bounds of law. He or she may not impair or infringe upon the power
given to local government units by law.
This Court differentiated the powers of control and supervision in Drilon v. Lim.68 The power of
control is the power to lay rules in the performance of an act. This power includes the ability to
order the act done and redone, while supervisory power only necessitates that rules are followed.
Under the power of supervision, there is no discretion to alter the rules. In short, supervisory
power entails that rules are observed and nothing more.
In Taule v. Santos 69 we ruled that the Chief Executive's power over local governments was
merely that of checking whether the officials were performing their duties within the bounds of
law.
In Province of Batangas v. Romulo,70 then President Joseph Ejercito Estrada (President Estrada)
issued Executive Order No. 48 entitled, "Establishing a Program for Devolution Adjustment and
Equalization." The program was established to facilitate the process of enhancing the capacities
of local government units in the discharge of the functions and services devolved to them by the
national government agencies concerned under the Local Government Code.
The Oversight Committee under Executive Secretary Ronaldo Zamora passed resolutions, which
were approved by President Estrada on October 6, 1999. The guidelines formulated by the
Oversight Committee required local government units to identify the projects eligible for funding
under the Local Government Service Equalization Fund, and submit them to the Department of
Interior and Local Government for appraisal. Then, the Oversight Committee serves notice to the
Department of Budget and Management for the subsequent release of the funds.
This Court struck down the resolutions as infringing on the fiscal autonomy of local government
units as provided in the Constitution:
Article II
Declaration of Principles and State Policies
....
SECTION 25. The State shall ensure the autonomy of local governments.
An entire article of the Constitution has been devoted to guaranteeing and promoting the
autonomy of local government units. Article X, Section 2 of the Constitution reiterates the State
policy in this wise:
SECTION 2. The territorial and political subdivisions shall enjoy local autonomy.
Consistent with the principle of local autonomy, the Constitution confines the President's power
over local government units to that of general supervision. This provision has been interpreted to
exclude the power of control. The distinction between the two (2) powers was enunciated
in Drilon v. Lim:
An officer in control lays down the rules in the doing of an act. If they are not followed, he may,
in his discretion, order the act undone or re-done by his subordinate or he may even decide to do
it himself. Supervision does not cover such authority. The supervisor or superintendent merely
sees to it that the rules are followed, but he himself does not lay down such rules, nor does he
have the discretion to modify or replace them. If the rules are not observed, he may order the
work done or re-done but only to conform to the prescribed rules. He may not prescribe his own
manner for doing the act. He has no judgment on this matter except to see to it that the rules are
followed.71
The Local Government Code of 1991 was enacted to flesh out the mandate of the Constitution.
The State policy on local autonomy is amplified in Section 2, thus:
SECTION 2. Declaration of Policy. — (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the State
shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization shall proceed
from the National Government to the local government units.
In National Liga ng mga Barangay v. Paredes,72 the Department of Interior and Local
Government was appointed as interim caretaker to administer and manage the affairs of the Liga
ng mga Barangay in giving remedy to alleged violations made by its incumbent officer in the
conduct of their elections. It issued memorandum circulars that alter, modify, nullify, or set aside
the actions of the Liga ng mga Barangay.
This Court ruled:
These acts of the DILG went beyond the sphere of general supervision and constituted direct
interference with the political affairs, not only of the Liga, but more importantly, of the barangay
as an institution. The election of Liga officers is part of the Liga's internal organization, for
which the latter has already provided guidelines. In succession, the DILG assumed stewardship
and jurisdiction over the Liga affairs, issued supplemental guidelines for the election, and
nullified the effects of the Liga-conducted elections. Clearly, what the DILG wielded was the
power of control which even the President does not have.
Furthermore, the DILG assumed control when it appointed respondent Rayos as president of
the Liga-Caloocan Chapter prior to the newly scheduled general Liga elections, although
petitioner David's term had not yet expired. The DILG substituted its choice, who was Rayos,
over the choice of majority of the punong barangay of Caloocan, who was the incumbent
President, petitioner David. The latter was elected and had in fact been sitting as an ex-
officio member of the sangguniang panlungsod in accordance with the Liga Constitution and By-
Laws. Yet, the DILG extended the appointment to respondent Rayos although it was aware that
the position was the subject of a quo warranto proceeding instituted by Rayos himself, thereby
preempting the outcome of that case. It was bad enough that the DILG assumed the power of
control, it was worse when it made use of the power with evident bias and partiality.
As the entity exercising supervision over the Liga ng mga Barangay, the DILG's authority over
the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules
itself, nor does it have the discretion to modify or replace them. In this particular case, the most
that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct
of the elections to determine if they committed any violation of the Liga's Constitution and By-
laws and its implementing rules. If the National Liga Board and its officers had violated Liga
rules, the DILG should have ordered the Liga to conduct another election in accordance with
the Liga's own rules, but not in obeisance to DILG dictated guidelines. Neither had the DILG the
authority to remove the incumbent officers of the Liga and replace them, even temporarily, with
unelected Liga officers.
Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief
Executive or his alter ego.73
Supervisory power has been defined as "the power of mere oversight over an inferior body; it
does not include any restraining authority over such body."74
The relationship between the President and local governments is a constitutional matter.
Constitutional relationships are never trivial nor should it be trivialized.
X
Significantly, the Proclamation is even contrary to the law that it alleges to implement. It totally
misunderstands the statutory approach for disaster risk and reduction management. Section 2 of
Republic Act No. 10121 provides:
SECTION 2. Declaration of Policy. — It shall be the policy of the State to:
(a) Uphold the people's constitutional rights to life and property by addressing the root causes of
vulnerabilities to disasters, strengthening the country's institutional capacity for disaster risk
reduction and management and building the resilience of local communities to disasters
including climate change impacts;

(b) Adhere to and adopt the universal norms, principles, and standards of humanitarian
assistance and the global effort on risk reduction as concrete expression of the country's
commitment to overcome human sufferings due to recurring disasters;

(c) Incorporate internationally accepted principles of disaster risk management in the creation
and implementation of national, regional and local sustainable development and poverty
reduction strategies, policies, plans and budgets;

(d) Adopt a disaster risk reduction and management approach that is holistic, comprehensive,
integrated, and proactive in lessening the socioeconomic and environmental impacts of
disasters including climate change, and promote the involvement and participation of all
sectors and all stakeholders concerned, at all levels, especially the local community;

(e) Develop, promote, and implement a comprehensive National Disaster Risk Reduction and
Management Plan (NDRRMP) that aims to strengthen the capacity of the national
government and the local government units (LGUs), together with partner stakeholders, to
build the disaster resilience of communities, and to institutionalize arrangements and
measures for reducing disaster risks, including projected climate risks, and enhancing
disaster preparedness and response capabilities at all levels;

(f) Adopt and implement a coherent, comprehensive, integrated, efficient and responsive
disaster risk reduction program incorporated in the development plan at various levels of
government adhering to the principles of good governance such as transparency and
accountability within the context of poverty alleviation and environmental protection;

(g) Mainstream disaster risk reduction and climate change in development processes such as
policy formulation, socioeconomic development planning, budgeting, and governance,
particularly in the areas of environment, agriculture, water, energy, health, education,
poverty reduction, land-use and urban planning, and public infrastructure and housing,
among others;

(h) Institutionalize the policies, structures, coordination mechanisms and programs with
continuing budget appropriation on disaster risk reduction from national down to local levels
towards building a disaster-resilient nation and communities;

(i) Mainstream disaster risk reduction into the peace process and conflict resolution approaches
in order to minimize loss of lives and damage to property, and ensure that communities in
conflict zones can immediately go back to their normal lives during periods of intermittent
conflicts;

(j) Ensure that disaster risk reduction and climate change measures are gender responsive,
sensitive to indigenous knowledge systems, and respectful of human rights;

(k) Recognize the local risk patterns across the country and strengthen the capacity of LGUs for
disaster risk reduction and management through decentralized powers, responsibilities, and
resources at the regional and local levels;

preparing for, responding to, and recovering from the impact of disaster's;

(m) Engage the participation of civil society organizations (CSOs), the private sector and
volunteers in the government's disaster risk reduction programs towards complementation of
resources and effective delivery of services to the citizenry;

(n) Develop and strengthen the capacities of vulnerable and marginalized groups to mitigate,
prepare for, respond to, and recover from the effects of disasters;

(o) Enhance and implement a program where humanitarian aid workers, communities, health
professionals, government aid agencies, donors, and the media are educated and trained on
how they can actively support breastfeeding before and during a disaster and/or an
emergency; and
(p) Provide maximum care, assistance and services to individuals and families affected by
disaster, implement emergency rehabilitation projects to lessen the impact of disaster, and
facilitate resumption of normal social and economic activities.
The President cannot take over what has been statutorily granted to local governments units. To
allow him to do so would be to violate his oath of office under Article VII, Section 5 of the
Constitution.75
Republic Act No. 10121 itself creates a whole structure to address preparation and management
of the kinds of disasters envisioned in that law. Thus:
SECTION 6. Powers and Functions of the NDRRMC. — The National Council, being
empowered with policy-making, coordination, integration, supervision, monitoring and
evaluation functions, shall have the following responsibilities:
(a) Develop a NDRRMF which shall provide for a comprehensive, all-hazards, multi-sectoral,
inter-agency and community-based approach to disaster risk reduction and management. The
Framework shall serve as the principal guide to disaster risk reduction and management
efforts in the country and shall be reviewed on a five (5)-year interval, or as may be deemed
necessary, in order to ensure its relevance to the times;

(b) Ensure that the NDRRMP is consistent with the NDRRMF;

(c) Advise the President on the status of disaster preparedness, prevention, mitigation, response
and rehabilitation operations being undertaken by the government, CSOs, private sector, and
volunteers; recommend to the President the declaration of a state of calamity in areas
extensively damaged; and submit proposals to restore normalcy in the affected areas, to
include calamity fund allocation;

(d) Ensure a multi-stakeholder participation in the development, updating, and sharing of a

Disaster Risk Reduction and Management Information System and Geographic Information
System-based national risk map as policy, planning and decision-making tools;

(e) Establish a national early warning and emergency alert system to provide accurate and
timely advice to national or local emergency response organizations and to the general
public through diverse mass media to include digital and analog broadcast, cable, satellite
television and radio, wireless communications, and landline communications;

(f) Develop appropriate risk transfer mechanisms that shall guarantee social and economic
protection and increase resiliency in the face of disaster;

(g) Monitor the development and enforcement by agencies and organizations of the various
laws, guidelines, codes or technical standards required by this Act;

(h) Manage and mobilize resources for disaster risk reduction and management including the
National Disaster Risk Reduction and Management Fund;

(i) Monitor and provide the necessary guidelines and procedures on the Local Disaster Risk
Reduction and Management Fund (LDRRMF) releases as well as utilization, accounting and
auditing thereof;

(j) Develop assessment tools on the existing and potential hazards and risks brought about by
climate change to vulnerable areas and ecosystems in coordination with the Climate Change
Commission;

(k) Develop vertical and horizontal coordination mechanisms for a more coherent
implementation of disaster risk reduction and management policies and programs by sectoral
agencies and LGUs;

(l) Formulate a national institutional capability building program for disaster risk reduction and
management to address the specific weaknesses of various government agencies and LGUs,
based on the results of a biennial baseline assessment and studies;

(m) Formulate, hannonize, and translate into policies a national agenda for research and
technology development on disaster risk reduction and management;

(n) In coordination with the Climate Change Commission, formulate and implement a
framework for climate change adaptation and disaster risk reduction and management from
which all policies, programs, and projects shall be based;

(o) Constitute a technical management group composed of representatives of the
abovementioned departments, offices, and organizations, that shall coordinate and meet as
often as necessary to effectively manage and sustain national efforts on disaster risk
reduction and management;

(p) Task the OCD to conduct periodic assessment and performance monitoring of the member-
agencies of the NDRRMC, and the Regional Disaster Risk Reduction and Management
Councils (RDRRMCs), as defined in the NDRRMP; and

(q) Coordinate or oversee the implementation of the country's obligations with disaster
management treaties to which it is a party and see to it that the country's disaster
management treaty obligations be incorporated in its disaster risk reduction and management
frameworks, policies, plans, programs and projects.
SECTION 7. Authority of the NDRRMC Chairperson. — The Chairperson of the NDRRMC

may call upon other instrumentalities or entities of the government and nongovernment and civic
organizations for assistance in terms of the use of their facilities and resources for the protection
and preservation of life and properties in the whole range of disaster risk reduction and
management. This authority includes the power to call on the reserve force as defined in
Republic Act No. 7077 to assist in relief and rescue during disasters or calamities.
SECTION 8. The Office of Civil Defense. — The Office of Civil Defense (OCD) shall have the
primary mission of administering a comprehensive national civil defense and disaster risk
reduction and management program by providing leadership in the continuous development of
strategic and systematic approaches as well as measures to reduce the vulnerabilities and risks to
hazards and manage the consequences of disasters.
The Administrator of the OCD shall also serve as Executive Director of the National Council
and, as such, shall have the same duties and privileges of a department undersecretary. All
appointees shall be universally acknowledged experts in the field of disaster preparedness and
management and of proven honesty and integrity. The National Council shall utilize the services
and facilities of the OCD as the secretariat of the National Council.
SECTION 9. Powers and Functions of the OCD. — The OCD shall have the following powers
and functions:
(a) Advise the National Council on matters relating to disaster risk reduction and management
consistent with the policies and scope as defined in this Act;

(b) Formulate and implement the NDRRMP and ensure that the physical framework, social,
economic and environmental plans of communities, cities, municipalities and provinces are
consistent with such plan. The National Council shall approve then DRRMP;

(c) Identify, assess and prioritize hazards and risks in consultation with key stakeholders;

(d) Develop and ensure the implementation of national standards in carrying out disaster risk
reduction programs including preparedness, mitigation, prevention, response and
rehabilitation works, from data collection and analysis, planning, implementation,
monitoring and evaluation;

(e) Review and evaluate the Local Disaster Risk Reduction and Management Plans
(LDRRMPs) to facilitate the integration of disaster risk reduction measures into the local
Comprehensive Development Plan (CDP) and Comprehensive Land-Use Plan (CLUP);

(f) Ensure that the LGUs, through the Local Disaster Risk Reduction and Management Offices
(LDRRMOs) are properly informed and adhere to the national standards and programs;

(g) Formulate standard operating procedures for the deployment of rapid assessment teams,
information sharing among different government agencies, and coordination before and after
disasters at all levels;

(h) Establish standard operating procedures on the communication system among provincial,
city, municipal, and barangay disaster risk reduction and management councils, for purposes
of warning and alerting them and for gathering information on disaster areas before, during
and after disasters;

(i) Establish Disaster Risk Reduction and Management Training Institutes in such suitable
location as may be deemed appropriate to train public and private individuals, both local and
national, in such subject as disaster risk reduction and management among others. The
Institute shall consolidate and prepare training materials and publications of disaster risk
reduction and management books and manuals to assist disaster risk reduction and
management workers in the planning and implementation of this program and projects.

The Institute shall conduct research programs to upgrade knowledge and skills and
document best practices on disaster risk reduction and management.

The Institute is also mandated to conduct periodic awareness and education programs to
accommodate new elective officials and members of the LDRRMCs;

(j) Ensure that all disaster risk reduction programs, projects and activities requiring regional and
international support shall be in accordance with duly established national policies and
aligned with international agreements;

(k) Ensure that government agencies and LGUs give top priority and take adequate and
appropriate measures in disaster risk reduction and management;

(l) Create an enabling environment for substantial and sustainable participation of CSOs,
private groups, volunteers and communities, and recognize their contributions in the
government's disaster risk reduction efforts;

(m) Conduct early recovery and post-disaster needs assessment institutionalizing gender analysis
as part of it;

(n) Establish an operating facility to be known as the National Disaster Risk Reduction and
Management Operations Center (NDRRMOC) that shall be operated and staffed on a
twenty-four (24) hour basis;

(o) Prepare the criteria and procedure for the enlistment of accredited community disaster
volunteers (ACDVs). It shall include a manual of operations for the volunteers which shall
be developed by the OCD in consultation with various stakeholders;

(p) Provide advice and technical assistance and assist in mobilizing necessary resources to
increase the overall capacity of LGUs, specifically the low income and in high-risk areas;

(q) Create the necessary offices to perform its mandate as provided under this Act; and

(r) Perform such other functions as may be necessary for effective operations and
implementation of this Act.
SECTION 10. Disaster Risk Reduction and Management Organization at the Regional Level. —
The current Regional Disaster Coordinating Councils shall henceforth be known as the Regional
Disaster Risk Reduction and Management Councils (RDRRMCs) which shall coordinate,
integrate, supervise, and evaluate the activities of the LDRRMCs. The RDRRMC shall be
responsible in ensuring disaster sensitive regional development plans, and in case of emergencies
shall convene the different regional line agencies and concerned institutions and authorities.
The RDRRMCs shall establish an operating facility to be known as the Regional Disaster Risk
Reduction and Management Operations Center (RDRRMOC) whenever necessary.
The civil defense officers of the OCD who are or may be designated as Regional Directors of the
OCD shall serve as chairpersons of the RDRRMCs. Its Vice Chairpersons shall be the Regional
Directors of the DSWD, the DILG, the DOST, and the NEDA. In the case of the Autonomous
Region in Muslim Mindanao (ARMM), the Regional Governor shall be the RDRRMC
Chairperson. The existing regional offices of the OCD shall serve as secretariat of the
RDRRMCs. The RDRRMCs shall be composed of the executives of regional offices and field
stations at the regional level of the government agencies.
SECTION 11. Organization at the Local Government Level. — The existing Provincial, City,
and Municipal Disaster Coordinating Councils shall henceforth be known as the Provincial, City,
and Municipal Disaster Risk Reduction and Management Councils. The Barangay Disaster
Coordinating Councils shall cease to exist and its powers and functions shall henceforth be
assumed by the existing Barangay Development Councils (BDCs) which shall serve as the
LDRRMCs in every barangay.
(a) Composition: The LDRRMC

shall be composed of, but not
limited to, the following:
(1) The Local Chief Executives, Chairperson;

(2) The Local Planning and Development Officer, member;
(3) The Head of the LDRRMO, member;
(4) The Head of the Local Social Welfare and Development

Office, member;
(5) The Head of the Local Health Office, member;
(6) The Head of the Local Agriculture Office, member;
(7) The Head of the Gender and Development Office, member;
(8) The Head of the Local Engineering Office, member;
(9) The Head of the Local Veterinary Office, member;
(10) The Head of the Local Budget Office, member;
(11) The Division Head/Superintendent of Schools of the DepED,

member;
(12) The highest-ranking officer of the Armed Forces of the

Philippines (AFP) assigned in the area, member;
(13) The Provincial Director/City/Municipal Chief of the

Philippine National Police (PNP), member;
(14) The Provincial Director/City/Municipal Fire Marshall of the

Bureau of Fire Protection (BFP), member;
(15) The President of the Association of Barangay Captains

(ABC), member;
(16) The Philippine National Red Cross (PNRC), member;
(17) Four (4) accredited CSOs, members; and
(18) (1) private sector representative, member.

(b) The LDRRMCs shall have

the following functions:

(1) Approve, monitor and evaluate the implementation of the
LDRRMPs and regularly review and test the plan consistent
with other national and local planning programs;

(2) Ensure the integration of disaster risk reduction and climate

change adaptation into local development plans, programs and
budgets as a strategy in sustainable development and poverty
reduction;

(3) Recommend the implementation of forced or preemptive

evacuation of local residents, if necessary; and

(4) Convene the local council once every three (3) months or as
necessary.
SECTION 12. Local Disaster Risk Reduction and Management Office (LDRRMO). — (a) There
shall be established an LDRRMO in every province, city and municipality, and a Barangay
Disaster Risk Reduction and Management Committee (BDRRMC) in every barangay which
shall be responsible for setting the direction, development, implementation and coordination of
disaster risk management programs within their territorial jurisdiction.
(b) The LDRRMO shall be under the

office of the governor, city or
municipal mayor, and the punong
barangay in case of the BDRRMC.
The LDRRMOs shall be initially
organized and composed of a
DRRMO to be assisted by three (3)
staff responsible for: (1)
administration and training; (2)
research and planning; and (3)
operations and warning. The
LDRRMOs and the BDRRMCs
shall organize, train and directly
supervise the local emergency
response teams and the ACDVs.

(c) The provincial, city and municipal
DRRMOs or BDRRMCs shall
perform the following functions
with impartiality given the
emerging challenges brought by
disasters of our times:

(1) Design, program, and coordinate disaster risk reduction

and management activities consistent with the National
Council's standards and guidelines;

(2) Facilitate and support risk assessments and contingency

planning activities at the local level;

(3) Consolidate local disaster risk information which

includes natural hazards, vulnerabilities, and climate
change risks, and maintain a local risk map;

(4) Organize and conduct training, orientation, and

knowledge management activities on disaster risk
reduction and management at the local level;

(5) Operate a multi-hazard early warning system, linked to

disaster risk reduction to provide accurate and timely
advice to national or local emergency response
organizations and to the general public, through diverse
mass media, particularly radio, landline
communications, and technologies for communication
within rural communities;

(6) Formulate and implement a comprehensive and

integrated LDRRMP in accordance with the national,
regional and provincial framework, and policies on
disaster risk reduction in close coordination with the
local development councils (LDCs);

(7) Prepare and submit to the local sanggunian through the

LDRRMC and the LDC the annual LDRRMO Plan and
budget, the proposed programming of the LDRRMF,
other dedicated disaster risk reduction and management
resources, and other regular funding source/s and
budgetary support of the LDRRMO/BDRRMC;

(8) Conduct continuous disaster monitoring and mobilize

instrumentalities and entities of the LGUs, CSOs,
private groups and organized volunteers, to utilize their
facilities and resources for the protection and
preservation of life and properties during emergencies
in accordance with existing policies and procedures;

(9) Identify, assess and manage the hazards, vulnerabilities

and risks that may occur in their locality;

(10) Disseminate information and raise public awareness

about those hazards, vulnerabilities and risks, their
nature, effects, early warning signs and counter-
measures;

(11) Identify and implement cost-effective risk reduction

measures/strategies;

(12) Maintain a database of human resource, equipment,

directories, and location of critical infrastructures and
their capacities such as hospitals and evacuation centers;

(13) Develop, strengthen and operationalize mechanisms for
partnership or networking with the private sector,
CSOs, and volunteer groups;

(14) Take all necessary steps on a continuing basis to

maintain, provide, or arrange the provision of, or to
otherwise make available, suitably-trained and
competent personnel for effective civil defense and
disaster risk reduction and management in its area;

(15) Organize, train, equip and supervise the local

emergency response teams and the ACDVs, ensuring
that humanitarian aid workers are equipped with basic
skills to assist mothers to breastfeed;

(16) Respond to and manage the adverse effects of

emergencies and carry out recovery activities in the
affected area, ensuring that there is an efficient
mechanism for immediate delivery of food, shelter and
medical supplies for women and children, endeavor to
create a special place where internally-displaced
mothers can find help with breastfeeding, feed and care
for their babies and give support to each other;

(17) Within its area, promote and raise public awareness of

and compliance with this Act and legislative provisions
relevant to the purpose of this Act;

(18) Serve as the secretariat and executive arm of the

LDRRMC;

(19) Coordinate other disaster risk reduction and

management activities;

(20) Establish linkage/network with other LGUs for disaster

risk reduction and emergency response purposes;

(21) Recommend through the LDRRMC the enactment of

local ordinances consistent with the requirements of this
Act;

(22) Implement policies, approved plans and programs of the

LDRRMC consistent with the policies and guidelines
laid down in this Act;

(23) Establish a Provincial/City/Municipal/Barangay

Disaster Risk Reduction and Management Operations
Center;

(24) Prepare and submit, through the LDRRMC and the

LDC, the report on the utilization of the LDRRMF and
other dedicated disaster risk reduction and management
resources to the local Commission on Audit (COA),
copy furnished the regional director of the OCD and the
Local Government Operations Officer of the DILG; and

(25) Act on other matters that may be authorized by the

LDRRMC.
(d) The BDRRMC shall be a regular

committee of the existing BDC and
shall be subject thereto. The
punong barangay shall facilitate
and ensure the participation of at
least two (2) CSO representatives
from existing and active
community-based people's
organizations representing the most
vulnerable and marginalized groups
in the barangay.
The Proclamation, even as it claims to be based on this law, inexplicably undermines this
structure.
The law tasks the local government units to lead in meeting disasters. Thus, in Section 2 of
Republic Act No. 10121:
preparing for, responding to, and recovering from the impact of disaster's;

(m) Engage the participation of civil society organizations (CSOs), the private sector and
volunteers in the government's disaster risk reduction programs towards complementation of
resources and effective delivery of services to the citizenry;

(n) Develop and strengthen the capacities of vulnerable and marginalized groups to mitigate,
prepare for, respond to, and recover from the effects of disasters;
Furthermore, in Section 15:

SECTION 15. Coordination During Emergencies. — The LDRRMCs shall take the lead in
preparing for, responding to, and recovering from the effects of any disaster based on the
following criteria:
(a) The BDC, if a barangay is affected;
(b) The city/municipal DRRMCs, if two (2) or more barangays are affected;
(c) The provincial DRRMC, if two (2) or more cities/municipalities are affected;
(d) The regional DRRMC, if two (2) or more provinces are affected; an
(e) The NDRRMC, if two (2) or more regions are affected.
The NDRRMC and intermediary LDRRMCs shall always act as support to LGUs which have
the primary responsibility as first disaster responders. Private sector and civil society groups
shall work in accordance with the coordination mechanism and policies set by the NDRRMC and
concerned LDRRMCs. (Emphasis supplied)
Even if we assume that the Proclamation was a valid exercise of police power, only the
Municipality of Malay, Aldan has been directly affected by the calamity. This means that,
statutorily, the Municipality's Local Disaster Risk Reduction and Management Council should
take charge. Yet, the Proclamation reduces the local government unit into a minor player in the
rehabilitation of the island.
Being contrary to the very law it alleges to be its framework, Proclamation No. 475 is not a valid
exercise of police power.
XI
The situation in Boracay is not the only ecological disaster that we face as a nation. The majority
creates a dangerous precedent.
For instance, climate change is an urgent and serious calamity faced by the entire world. Our
climate is changing faster now than at any point in history.76 We have been experiencing a
tremendous increase in carbon dioxide in the air, melting icecaps, a consequent rise in sea levels,
frigid cold, and extreme heat. Scientists have attributed this to human activity. The rapid rise in
our temperatures only started in 1880, during the second industrial revolution, and most of the
warming occurred in the last 35 years.
Scientists at the Intergovernmental Panel on Climate Change are urging the world to keep global
warming to a maximum of 1.5 degrees Celsius (1.5 °C) for the next 12 years. We are currently
one degree Celsius (1 °C) warmer than preindustrial levels. This change is the reason for the
hurricanes in the United States, drought in Cape Town, and forest fires in the Arctic. Half a
degree more than the 1.5 °C target will worsen droughts, floods, and extreme weather conditions.
Coral reefs may disappear completely. Polar ice caps will melt, causing our sea levels to
rise.77 Heat waves will be more intense. Cold spells will be a lot worse; consequently, plant,
insect, and animal species will disappear, and human lives will suffer.78 Countries such as ours
without financial and other resources at our disposal will suffer more.
We need to address this situation perhaps more urgently than the fecal coliform formation in our
tourist areas.
Yet, these urgent anthropogenic crises cannot be solved by indulging our impatience. Rather,
solutions will require both better governance and democratic participation.
Instead of relying on the beguiling pragmatism of a strongman, we should, now more than ever,
have the humility to harness our abilities as humans to consult, deliberate, and act together. We
should be aware that short-term solutions, which produce short-term effects, may mask the true
problems and abuse those who live in our society's margins.
The growth of fecal coliform may be arrested with a drastic and draconian clean-up. Clearly,
without addressing its true causes, the ecological remedy will be temporary. The costs may be
too high if such temporary relief is purchased with the suspension of the rights of those affected
—especially the informal and marginal workers on the island—with a legal precedent that does
not take the long view. That is why our environmental laws are permanent statutes, and states of
calamity are only temporary and declared under very limiting conditions.
Many of our tourist areas may have become what economists call as open access areas. These
areas are subject to what Garett Hardin, an American ecologist and philosopher, more than four
(4) decades ago called the "tragedy of the commons."79 In this situation, businesses, residents,
and tourists cannot see beyond the short-term enjoyment of the resource while well aware of the
degradation that others will cause. The solution to such a tragedy is a more accountable
enforcement of the rules for the enjoyment of the environment and the evolution of a stronger
community. To assure the existence of a true common property regime, everyone involved must
do what is expected of them.
The legitimation of the closure of Boracay through the Proclamation at issue here easily opens
the slippery slope for ecological authoritarianism.
Boracay, originally home to the Ati, was discovered as a pristine island. It attracted migrants,
allowed them to establish abodes, and claim ownership. Then, a catena of administrations
promoted it as a tourist attraction, compelling its residents to adjust their lives accordingly.
Businesses flourished without an understanding of Boracay's ecology's carrying capacity.
Worse, unscrupulous individuals created profits purchased through illicit collusion with those
who should have regulated where they built, how they built, how they dealt with their sewage,
where they would get their water. Boracay was destroyed by the shortsightedness of some of the
public officials in charge and the unbelievable ignorance of the establishments that profited from
what should have been the sustainability of their ecology.
Boracay is victim to the callousness driven by short-term profits and insatiable greed. It is
increasingly vulnerable because of the growing absence of a genuine community on the island.
This Court should assure those who are affected that it will offer a genuine reflection of the
constitutional order, under which it seeks to find pragmatic yet longer lasting solutions to our
problems. This Court is the forum where we can assure an ordinary sandcastle builder, a driver,
or an informal worker on the island that we all can be an active part of the solution, as envisioned
by our democracy.
I regret that the liberality of the majority in not seeing the constitutional and statutory violations
of the Proclamation, and the actions it spawned, will undermine this constitutional order.
Authoritarian solutions based on fear are ironically weak. We still are a constitutional order that
will become stronger with a democracy participated in by enlightened citizens. Ours is not, and
should never be, a legal order ruled by diktat.
For these reasons, I dissent.
ACCORDINGLY, I vote to GRANT the Petition.
Endnotes:
1
Rep. Act No. 10121 (2010), Philippine Disaster Risk Reduction and Management Act of 2010.
2
Rep. Act No. 9275 (2004), Philippine Clean Water Act of 2004.
3
G.R. No. 197930, April 17, 2018, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2018/april2018/197930.pdf > [Per J. Reyes, Jr., En Banc].
4
See J. Leonen, Separate Concurring Opinion in Subido Pagente Certeza and Mendoza Law
Offices v. Court of Appeals et al., 802 Phil. 314 (2016) [Per J. Perez, En Banc].
5
Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REv 193-195
(1890). See also Irwin R. Kramer, The Birth of Privacy Law: A Century Since Warren &
Brandeis, 39 CATH. U.L. REV. 703 (1990).
6
Secretary of National Defense, et al. v. Manalo, et al., 589 Phil. 1 (2008) [Per Puno C.J., En
Banc]. >See also J. Leonen, Separate Opinion in International Service for the Acquisition of
Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), 774 Phil. 508 (2015)
[Per J. Villarama, Jr. En Banc].
7
See CIVIL CODE, arts. 415 (10), 417, 519, 520, 521, 613, 721, and 722.
8
Secretary of National Defense, et al. v. Manalo, et al., 589 Phil. 1 (2008) [Per Puno C.J., En
Banc].
9
Id. at 50.
10
495 Phil. 289 (2005) [Per J. Tinga, En Banc].
11
Id. at 316-317.
12
Id. at 317 citing Roth v. Board of Regents, 408 U.S. 572 (1972).
13
Id. citing Lawrence v. Texas, 539 U.S. 558 (2003).
14
G.R. No. 225442, August 8, 2017, 835 SCRA 350 [Per J. Perlas-Bernabe, En Banc].
15
See J. Leonen, Concurring Opinion in Samahan ng mga Progresibong Kabataan (SPARK) et
al., v. Quezon City et al., G.R. No. 225442, August 8, 2017, 835 SCRA 350, 445-447 [Per J.
Perlas-Bernabe, En Banc].
16
Rollo, p. 22.
17
Philippine Blooming Employees Organization v. Philippine Blooming Mills, 151-A Phil. 656,
676 (1973) [Per J. Makasiar, En Banc].
18
127 Phil. 306 (1967) [Per J. Fernando, En Banc].
19
Id. at 324.
20
G.R. No. 199669, April 25, 2017, 824 SCRA 164 [Per J. Reyes, En Banc].
21
Ponencia, p. 24.
22
G.R. No. 199669, April 25, 2017, 824 SCRA 164 [Per J. Reyes, En Banc].
23
127 Phil. 306 (1967) [Per J. Fernando, En Banc].
24
Id. at 316.
25
Id. at 319.
26
27
Id. at 307-308.
28
29
Id. at 462-463.
30
706 Phil. 138 (2013) [Per J. Mendoza, En Banc].
31
G.R. No. 225442, August 8, 2017, 835 SCRA 350 [Per J. Perlas-Bernabe, En Banc].
32
See J. Leonen, Concurring Opinion in Samahan ng mg Progresibong Kabataan (SPARK) et
al., v. Quezon City et al., G.R. No. 225442 835 SCRA 350, 451-453 (2017) [Per J. Perlas-
Bernabe, En Banc].
33
CONST. Art. II, sec. 9.
34
35
36
596 Phil. 444 2009 [Per J. Tinga, En Banc].
37
Id. at 469.
38
Proc. No. 475 (2018), Whereas clauses.
39
40
Duterte slams Boracay as 'cesspool,' threatens to shut down island, ABS-CBN NEWS,
February 10, 2018, < https://news.abs-cbn.com/news/02/10/18/duterte-slams-boracay-as-
cesspool-threatens-to-shut down-island > (last accessed February 14, 2019).
41
Pia Ranada, Duterte to declare state of calamity in Boracay, warns courts not to interfere,
RAPPLER, March 6, 2018, < https://www.rappler.com/nation/197573-duterte-boracay-state-
calamity-courts interfere> (last accessed February 14, 2019).
42
Nestor Corrales, Duterte approves 6-month closure of Boracay, starting April 26,
INQUIRER.NET, April 4, 2018, < https://newsinfo.inquirer.net/980185/boracay-closure-
rodrigo-duterte > (last accessed February 14, 2019).
43
See Rambo Talabong, LIST: New Boracay rules during 6-month closure, RAPPLER, April 12,
2018, < https://www.rappler.com/nation/200122-list-new-rules-boracay-closure > (last accessed
February 14, 2019); see also Dharel Placido, No visitors, no tourists: DILG releases Boracay
rules during 6-month closure, ABS-CBN NEWS, April 17, 2018, < https://news.abs-
cbn.com/news/04/17118/no-visitors-notourists-dilg-releases-boracay-rules-during-6-month-
closure > (last accessed February 14, 2019).
44
Boy Ryan Zabal, Police deployed in Boracay enough to stop crimes, lootings - PNP,
RAPPLER, May 1, 2018, < https://www.rappler.com/nation/201475-police-boracay-enough-
stop-crimes-looting > (last accessed February 14, 2019).
45
Rambo Talabong, LIST: New Boracay rules during 6-month closure, RAPPLER, April 12,
2018, < https://www.rappler.com/nation/200122-list-new-rules-boracay-c1osure > (last accessed
February 14, 2019); see also Dharel Placido, No visitors, no tourists: DILG releases Boracay
rules during 6-month closure, ABS-CBN NEWS, April 17, 2018, < https://news.abs-
cbn.com/news/04/17/18/no-visitors-no tourists-dilg-releases-boracay-rules-during-6-month-
closure > (last accessed February 14, 2019).
46
Proc. No. 475 (2018).
47
Proc. No. 475 (2018).
48
G.R. Nos. 231658, 231771 & 231774, July 4, 2017 [Per J. Del Castillo, En Banc].
49
J. Leonen, Dissenting Opinion in Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, 829
SCRA 1, 531-538 [Per J. Del Castillo, En Banc].
50
Id.
51
CIVIL CODE, arts. 696 and 697.
52
CIVIL CODE, art. 699.
53
CIVIL CODE, arts. 698, 700, 701, 702, 703 and 704.
54
PAB Reso. No. 001-10 (June 29, 2010), Rule I, sec. 2 and Rule III, sec. 1 (B) (2), Revised
Rules of the Pollution Adjudicatory Board on Pleading, Practice and Procedure in Pollution
Cases.
55
See Proc. No. 475.
56
Ponencia, p. 21. citing Edu v. Ericta, 146 Phil. 469 (1970) [Per J. Fernando, En Banc].
57
Id. citing Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 398
(1988) [Per J. Sarmiento, En Banc].
58
522 Phil. 705 (2006) [Per J. Sandoval-Guitierrez, En Banc].
59
Eastern Shipping Lines v. POEA et al., 248 Phil. 762, 772 (1988) [Per J. Cruz, First Divison].
60
Id.
61
721 Phil. 416 (2013) [Per J. Pelas-Bernabe, En Banc].
62
Id. at 534.
63
An Act Strengthening the Philippine Disaster Risk Reduction and Management System,
Providing for the National Disaster Risk Reduction and Management Framework and
Institutionalizing the National Disaster Risk Reduction and Management Plan, Appropriating
Funds Therefor and for Other Purposes.
64
Damian, Carrington, Earth's sixth mass extinction event under way, scientists warn, THE
GUARDIAN, July 10, 2017, available at <
https://www.theguardian.com/environment/2017/jul/10/earths-sixth-mass-extinction-event-
already-underway-scientists-warn?CMP=share_btn_tw > (last visited on February 12, 2019).
65
Rep. Act No. 10121 (2010), sec. 16.
66
Ponencia, p. 26.
67
391 Phil. 84 (2000) [Per J. Panganiban, En Banc].
68
305 Phil. 146 (1994) [J. Cruz, En Banc].
69
277 Phil. 584 (1991) [J. Gancayco, En Banc].
70
473 Phil. 806 (2004) [Per J. Callejo Sr., En Banc].
71
Id. at 152.
72
73
Id. at 358-359.
74
Taule v. Santos, 277 Phil. 584, 598 (1991) [J. Gancayco, En Banc].
75
CONST., art. VII, Sec. 5 provides: Before they enter on the execution of their office, the
President, the Vice-President, or the acting President shall take the following oath or affirmation:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service of
the Nation. So help me God. (In case of affirmation, last sentence will be omitted.)
76
Understand Climate Change, available at < https://www.globalchange.gov/climate-change >
(last visited on February 12, 2019).
77
Jonathan Watts, We have 12 years to limit climate change catastrophe, warns UN, THE
GUARDIAN, available at < https://www.theguardian.com/environment/2018/oct/08/global-
warming-must-not-exceed-15c-warns-landmark-un-report > (last visited on February 12, 2019).
78
Global Climate Change, available at < https://climate.nasa.gov/ > (last visited on February 12,
2019).
79
Garett Hardin, The Tragedy of the Commons, 162 Science 1243-1248 (1968), available at <
http://pages.mtu.edu/~asmayer/rural_sustain/governance/Hardin%201968.pdf > (last visited on
February 12, 2019).
CONCURRING AND DISSENTING OPINION
JARDELEZA, J.:
The following are the basic facts of the case:
On April 26, 2018, President Rodrigo R. Duterte issued Proclamation No. 475 declaring a state
of calamity in the Island of Boracay in Malay, Aklan, and ordered the closure of the island as a
tourist destination for six months, or until October 25, 2018. Petitioners Mark Anthony Zabal
(Zabal), Thiting Estoso Jacosalem (Jacosalem), and Odon S. Bandiola (Bandiola) filed this
special civil action for prohibition and mandamus (with application for temporary restraining
order, preliminary injunction and/or status quo ante order) seeking to, among others, enjoin the
implementation of Proclamation No. 475 and compel public respondents to allow the entry of
both tourists and residents into Boracay Island.
Before going into the substance of the issues raised in the petition, I note that petitioners sought
direct recourse with this Court on the ground, among others, that "[t]here are no factual issues
raised in this case, only questions of law x x x."1 Indeed, this Court exercises original jurisdiction
over petitions for prohibition and mandamus concurrently with the Court of Appeals (CA) and
the Regional Trial Courts (RTCs).2 The doctrine of hierarchy of courts, however, dictates that
such actions first be filed before the trial courts. Save for the specific instance provided under the
Constitution,3 this Court is not a trier of facts.4 Its original jurisdiction cannot be invoked to
resolve issues which are inextricably connected with underlying questions of fact.
This Court is a court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the Constitution.5 Direct recourse to this Court may, as
petitioners correctly suggest, be allowed only to resolve questions which do not require the
prior adjudication of factual issues. It is thus on this basis that I will examine and resolve
the present petition.
Petitioners challenge the legality of Proclamation No. 4756 insofar as it ordered the closure of
Boracay Island on the following grounds: (1) it is an invalid exercise by the President of
legislative power; (2) it violates the right to travel insofar as it seeks to restrict the entry of
tourists and non-residents into the island; (3) it operates to deprive persons working in the island
of their means of livelihood without due process of law; and (4) it violates the principle of local
autonomy insofar as affected local government units are ordered to implement the closure.7
My examination of the issues raised and arguments offered by petitioners shows that, of the four
principal issues raised against the constitutionality of Proclamation No. 475, only the first issue
poses a question the complete resolution of which does not involve underlying questions of fact.
On the other hand, and as I shall later demonstrate, the three remaining issues involve underlying
questions of fact which cannot be resolved by this Court at the first instance.
I
Petitioners claim that Proclamation No. 475 is an invalid exercise by the President of legislative
power.8 According to petitioners, access to Boracay can be validly restricted (as part of the right
to travel) only through the exercise of police power, that is, by law. They maintain that no such
law exists; thus, the President, by restricting and altogether prohibiting entry to Boracay Island,
has arrogated unto himself legislative powers rightfully belonging to the Congress.9
The primary legal question therefore is whether there is a law which allows for a restriction on
the right to travel to Boracay. If the Court finds that there is none, then this litigation should end
with the grant of the petition. If, however, the Court finds that such a law exists, it must then
determine whether there was a valid delegation to the President of the power to restrict travel.
I find that the President has the authority, under Republic Act No. (RA) 10121,10 to issue the
challenged Proclamation as an exercise of his power of subordinate legislation.
First, the text of the Proclamation clearly counts RA 10121 among its legal bases for the
temporary closure of Boracay Island. I quote:
WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction and
Management Act of 2010, the National Disaster Risk Reduction and Management Council has
recommended the declaration of a State of Calamity in the Island of Boracay and the
temporary closure of the Island as a tourist destination to ensure public safety and public
health, and to assist the government in its expeditious rehabilitation, as well as in addressing the
evolving socio-economic needs of affected communities;
x x x x11
Second, RA 10121 allows for a restriction on the right to travel under certain circumstances.
The expressed legislative intention in RA 10121 was "for the development of policies and plans
and the implementation of actions and measures pertaining to all aspects of disaster risk
reduction and management."12 Disaster risk reduction and management was, in turn, defined
under Section 3(o) as follows:
(o) "Disaster Risk Reduction and Management" - the systematic process of using
administrative directives, organizations, and operational skills and capacities to implement
strategies, policies and improved coping capacities in order to lessen the adverse impacts of
hazards and the possibility of disaster. Prospective disaster risk reduction and management
refers to risk reduction and management activities that address and seek to avoid the
development of new or increased disaster risks, especially if risk reduction policies are not put in
place.13
Disaster risk reduction and management measures can run the gamut from disaster prevention to
disaster mitigation, disaster preparedness, and disaster response, all of which are also defined
under RA 10121 as follows:
Sec. 3. Definition of Terms. - For purposes of this Act, the following shall refer to:
xxxx
(h) "Disaster" - a serious disruption of the functioning of a community or a society involving
widespread human, material, economic or environmental losses and impacts, which exceeds
the ability of the affected community or society to cope using its own resources. Disasters are
often described as a result of the combination of: the exposure to a hazard; the conditions of
vulnerability that are present: and insufficient capacity or measures to reduce or cope with the
potential negative consequences. Disaster impacts may include loss of life, injury, disease and
other negative effects on human, physical, mental and social well-being, together with damage to
property, destruction of assets, loss of services, social and economic disruption
and environmental degradation.
(i) "Disaster Mitigation" - the lessening or limitation of the adverse impacts of hazards and
related disasters. Mitigation measures encompass engineering techniques and hazard-resistant
construction as well as improved environmental policies and public awareness.
(j) "Disaster Preparedness" - the knowledge and capacities developed by governments,
professional response and recovery organizations, communities and individuals to effectively
anticipate, respond to, and recover from, the impacts of likely, imminent or current hazard
events or conditions. Preparedness action is carried out within the context of disaster risk
reduction and management and aims to build the capacities needed to efficiently manage all
types of emergencies and achieve orderly transitions from response to sustained
recovery. Preparedness is based on a sound analysis of disaster risk and good linkages with
early warning systems, and includes such activities as contingency planning, stockpiling of
equipment and supplies, the development of arrangements for
coordination, evacuation and public information, and associated training and field
exercises. These must be supported by formal institutional, legal and budgetary capacities.
(k) "Disaster Prevention" - the outright avoidance of adverse impacts of hazards and related
disasters. It expresses the concept and intention to completely avoid potential adverse impacts
through action taken in advance such as construction of dams or embankments that eliminate
flood risks, land-use regulations that do not permit any settlement in high-risk zones, and
seismic engineering designs that ensure the survival and function of a critical building in any
likely earthquake.
(l) "Disaster Response" - the provision of emergency services and public assistance during or
immediately after a disaster in order to save lives, reduce health impacts, ensure public
safety and meet the basic subsistence needs of the people affected. Disaster response is
predominantly focused on immediate and short-term needs and is sometimes called "disaster
relief."
x x x x14
Thus, within the range of disaster risk reduction and management measures can be found forced
or preemptive evacuation and prohibitions against settlement in high-risk zones, both of
which necessarily implicate some restriction on a person's liberty of movement to ensure public
safety.
Third, in obvious recognition of its inability to "cope directly with the myriad
problems"15 attending the matter, the Congress created administrative agencies, such as the
National Disaster Risk Reduction and Management Council (NDRRMC) and the Local Disaster
Risk Reduction and Management Councils (LDRRMCs), to help implement the legislative
policy of disaster risk reduction and management under RA 10121.
Under the law, the NDRRMC, for example, was tasked to, among others, develop a national
disaster risk reduction and management framework (NDRRMF), which shall serve as "the
principal guide to disaster risk reduction and management efforts in the country,"16advise the
President on the status of disaster preparedness, recommend the declaration (and lifting) by the
President of a state of calamity in certain areas, and submit proposals to restore normalcy in
affected areas.17 Under Section 25, it was also expressly tasked to come up with "the necessary
rules and regulations for the effective implementation of [the] Act."
These, to me, are evidence of a general grant of quasi-legislative power, or the power of
subordinate legislation, in favor of the implementing agencies. With this power, administrative
bodies may implement the broad policies laid down in a statute by "filling in" the details which
the Congress may not have the opportunity or competence to provide.18 In Abakada Guro Party
List v. Purisima,19 this Court explained:
Congress has two options when enacting legislation to define national policy within the broad
horizons of its legislative competence. It can itself formulate the details or it can assign to the
executive branch the responsibility for making necessary managerial decisions in conformity
with those standards. In the latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. Thus, what is left for the executive branch
or the concerned administrative agency when it formulates rules and regulations implementing
the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the
law into actual operation (contingent rule-making).20 (Citations omitted.)
This results in delegated legislation21 which, to be valid, should not only be germane to the
objects and purposes of the law; it must also conform to (and not contradict) the standards
prescribed by the law.22
Pursuant to the broad authority given to them, the NDRRMC and the President, following
standards provided under the law, thus sought to fill in the details on how the provisions of RA
10121 may be enforced, including, but not limited to, identification of: the conditions that must
exist before a state of calamity can be declared; the effects of a declaration of a state of
calamity;23 the length of time the state of calamity will be enforced; the formulation and
implementation of evacuation plans, including the guidelines on when, where, how, and who will
be evacuated; the agency who will implement the evacuation plan; and other details.
Fourth, Proclamation No. 475 is a valid exercise of the power of subordinate legislation.
Here, after consideration of the conditions existing in the Island of Boracay,24 the President, upon
recommendation of the NDRRMC, decided to place the island under a State of Calamity.25 This
is a power expressly lodged in the President under Section 16, which reads:
Sec. 16. Declaration of State of Calamity. - The National Council shall recommend to the
needs analysis.
As set forth in Proclamation No. 475 itself, the conditions in the island were such that it became
"necessary to implement urgent measures to address x x x human-induced hazards, to protect and
promote the health and well-being of its residents, workers and tourists, and to rehabilitate the
Island in order to ensure the sustainability of the area and prevent further degradation of its rich
ecosystem."26 I thus find that the avowed purpose of the Proclamation, which is "to ensure public
safety and public health, and to assist the government in its expeditious rehabilitation," is
unarguably germane to the object and purpose of RA 10121, which is disaster risk reduction and
management.
In The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas Employment
Administration,27 this Court, speaking through former Chief Justice Hilario Davide, Jr., noted
that the following have been held sufficient standards for purposes of subordinate legislation:
"public welfare," "necessary in the interest of law and order," "public interest," "justice and
equity," "public convenience and welfare," "justice and equity and substantial merits of the
case," "simplicity, economy and efficiency," and "national interest."28 I find that the challenged
action of the President conforms with the standards under RA 10121, which include public
safety, public health, and disaster mitigation, among others.
Fifth, in carrying RA 10121 into effect, the implementing agencies have consistently interpreted
their power to "evacuate"29 to necessarily include the power to restrict entry into a particular
place.30 This is evident in the alarm measures and systems of a number of government
instrumentalities.
In the case of impending or actual volcanic eruptions, the Philippine Institute of Volcanology
and Seismology (PHIVOLCS) has established alert levels in its monitoring of active volcanoes
in the country. Each level has its own set of criteria and recommended course of action to be
taken, including prohibiting entry into and expanding the danger zones.31 Likewise, depending on
the declared alert level, the NDRRMC, through its local counterparts, enforces forced
evacuations and prohibits entry and farming in localities found within the danger zones.32
In cases of tropical cyclones or typhoons, the Philippine Atmospheric, Geophysical and
Astronomical Services Administration (PAGASA) uses public storm warning signals to describe
the existing meteorological condition and impact of the winds. Each signal also indicates the
precautionary measures which must be undertaken and what the affected areas must do. For
public storm warning signals 3 and 4, evacuation and cancellation of all travel and outdoor
activities are advised.33
Similarly, to mitigate the effects of flooding during heavy rains, Marikina City employs a three-
stage alarm level system for the Marikina River, based on the depth of water in the river below
the Sto. Niño Bridge:
 Alarm Level 1 (1 minute continuous airing), when the water is 15 meters above sea level,
means "prepare."
 Alarm Level 2 (2 minutes intermittent airing), when the water is 16 meters above sea
level, means "evacuate."
 Alarm Level 3 (5 minute continuous airing), when the water is 18 meters above sea level,
means "forced evacuation."34
When the river's water level rises, the local Disaster Risk Reduction and Management office uses
a siren to alert surrounding communities of the current alarm level.35
This contemporaneous construction by the NDRRMC, the different LDRRMCs, and local
government units, as well as the other agencies tasked to implement the provisions of RA 10121,
of their powers ordinarily controls the construction of the courts:
The rationale for this rule relates not only to the emergence of the multifarious needs of a
modern or modernizing society and the establishment of diverse administrative agencies for
addressing and satisfying those needs; it also relates to the accumulation of experience and
growth of specialized capabilities by the administrative agency charged with implementing a
particular statute. In Asturias Sugar Central, Inc. v. Commissioner of Customs, the Court stressed
that executive officials are presumed to have familiarized themselves with all the considerations
pertinent to the meaning and purpose of the law, and to have formed an independent,
conscientious and competent expert opinion thereon. The courts give much weight to the
government agency or officials charged with the implementation of the law, their competence,
expertness, experience and informed judgment, and the fact that they frequently are drafters of
the law they interpret.36
Sixth, administrative regulations and policies enacted by administrative bodies to interpret the
law which they are entrusted to enforce have the force of law and enjoy a presumption of
regularity.
In Español v. Chairman, Philippine Veterans Administration,37 this Court held that the Philippine
Veterans Administration's (PVA) policy—which withheld the payment of pension to
beneficiaries of veterans who are already receiving pension from United States (U.S.) Veterans
Administration—has in its favor a presumption of validity. Thus, the Court ruled that it was only
when this administrative policy was declared invalid can petitioner be said to have a cause of
action to compel the PVA to pay her monthly pension.38
In Rizal Empire Insurance Group v. NLRC,39 petitioner's appeal was dismissed for failure to
follow the "no extension policy" set forth under the Rules of the National Labor Relations
Commission. According to the Court, it is an elementary rule in administrative law that
administrative regulations and policies, enacted by administrative bodies to interpret the law
which they are entrusted to enforce, have the force of law and are entitled to great respect.40
More recently, in the case of Alfonso v. Land Bank of the Philippines,41 this Court held that the
formulas for the computation of just compensation, being an administrative regulation issued by
the Department of Agrarian Reform pursuant to its rule-making and subordinate legislation
power, have the force and effect of law. "Unless declared invalid in a case where its validity is
directly put in issue, courts must consider their use and application.”42
Even in the U.S., the government agency's own reading of a statute which it is charged with
administering is given deference. In Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.,43 the U.S. Supreme Court employed a two-step test in determining what standard of review
should be applied in assessing the government agency's interpretation and gave deference to the
latter's interpretation:
When a court reviews an agency's construction of the statute which it administers, it is
confronted with two questions. First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress. If, however, the court determines Congress has not directly addressed the
precise question at issue, the court does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute.44
Finally, since the law's enactment in 2010, there has been no attempt on the part of Congress to
correct or reverse the consistent contemporaneous construction of the law by the different
agencies implementing RA 10121. This is especially noteworthy considering the existence of a
Congressional Oversight Committee, composed of members from both its Houses, which was
created precisely to "monitor and oversee the implementation of [RA 10121]"45 and evaluate,
among others, the performance of the law's implementing agencies.46 That this Committee has
not taken steps to correct, revise, or repeal the agencies' contemporaneous construction of RA
10121's provisions further buttresses the view that the construction given by the different
administrative agencies conforms to the standards and the interpretation intended by the
Legislature.
In sum, I find that the President has the authority, under RA 10121, to issue the challenged
Proclamation as a valid exercise of his power of subordinate legislation. With this, I vote to
DISMISS the petition. The Court should decline to resolve the remaining questions raised in the
petition as, and which I shall hereafter discuss, they unavoidably involve questions of fact which
this Court cannot entertain and resolve.
II
Petitioners' next two remaining arguments revolve around Proclamation No. 475's alleged
violation of their fundamental rights to travel and due process of law. While petitioners claim
that these arguments pose questions of law, I find that they actually raise and involve underlying
questions of fact.
A
Indeed, the rights to travel and due process of law are rights explicitly guaranteed under the Bill
of Rights. These rights, while fundamental, are not absolute.
Section 6, Article III of the Constitution itself provides for three instances when the right to
travel may be validly impaired:
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.47
Even prior to the Constitution, this Court, in the 1919 case of Rubi v. Provincial Board of
Mindoro,48 has held that there is no absolute freedom of locomotion. The right of the individual
is necessarily subject to reasonable restraint for the common good, in the interest of the public
health or public order and safety. In Leave Division, Office of Administrative Services-Office of
the Court Administrator (OCA) v. Heusdens,49 which involved an administrative case against a
court employee for failure to secure authority to travel abroad in violation of OCA Circular No.
49-2003, the Court took occasion to identify the various constitutional, statutory, and inherent
limitations regulating the right to travel.
This was reiterated in Genuino v. De Lima,50 where this Court invalidated Department of Justice
Circular No. 41—which purported to restrict the right to travel through the issuance of hold
departure and watchlist orders—for lack of legal basis.51
In the United States, the U.S. Supreme Court, in the case of Zemel v. Rusk,52 identified
circumstances which may justify the restriction on the right to travel: (1) areas ravaged by flood,
fire, or pestilence can be quarantined when it can be demonstrated that unlimited travel to the
area would directly and materially interfere with the safety and welfare of the area or the Nation
as a whole; and (2) weightiest considerations of national security. Likewise, the case
of Alexander v. City of Gretna53 emphasized that compelling safety and welfare reasons, the
preservation of order and safety, and health concerns can serve to justify an intrusion on the
fundamental right to interstate travel. In State v. Wright54 and later, in Sim v. State Parks &
Recreation,55 the Washington Supreme Court upheld the State Parks & Recreation Commission's
authority, at reasonable times, at reasonable places, and for reasonable reasons, consistent with
public safety and recreational activities, to temporarily close ocean beach highways to motor
vehicular traffic.
Similarly, the right of a person to his labor is deemed to be property within the meaning of
constitutional guarantees, that is, he cannot be deprived of his means of livelihood, a property
right, without due process of law.56 Nevertheless, this property right, not unlike the right to
travel, is not absolute. It may be restrained or burdened, through the exercise of police power, to
secure the general comfort, health, and prosperity of the State.57 To justify such interference, two
requisites must concur: (a) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State; and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly oppressive
upon individuals. In other words, the proper exercise of the police power requires the
concurrence of a lawful subject and a lawful method.58
B
Having established that the rights to travel and due process are not absolute, as they can in fact
be validly subject to restrictions under certain specified circumstances, it seems to me that
petitioners' issues against Proclamation No. 475 respecting their rights to travel and due process
hinge not so much on whether said Proclamation imposes a restriction, but whether the
restrictions it imposed are reasonable.59 Specifically, petitioners argue that: the ordered closure
of Boracay Island is an extreme measure;60 it is overly broad, oppressive, unreasonable, and
arbitrary; and that there are more less restrictive and more narrowly drawn measures which the
government can employ to protect the State's interest.61
What is "reasonable," however, is not subject to exact definition or scientific formulation. There
is no all-embracing test of reasonableness;62 its determination rests upon human judgment
as applied to the facts and circumstances of each particular case.63
In this case, the following factual circumstances were considered, which led to the issuance of
Proclamation No. 475:
a. High concentration of fecal coliform due to insufficient sewer lines and illegal discharge
of untreated waste water into the beach, with daily tests revealing consistent failure in
compliance with acceptable water standards, with an average result of 18,000 most
probable number (MPN)/100 ml, exceeding the standard level of 400 MPN/100 ml;
b. Failure of most commercial establishments and residences to connect to the sewerage
infrastructure of Boracay Island;
c. Improper waste disposal, in violation of environmental laws, rules, and regulations;
d. Majority (14 out of 51) of the establishments near the shore are not compliant with the
Philippine Clean Water Act of 2004;
e. Degradation of the coral reefs and coral cover of Boracay Island as a consequence of
continued exposure to dirty water caused by increased tourist arrivals;
f. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per day, while
the hauling capacity of the local government is only 30 tons per day;
g. The natural habitats of Puka shells, nesting grounds of marine turtles, and roosting
grounds of flying foxes or fruit bats have been damaged and/or destroyed;
h. Only four out of nine wetlands in Boracay Island remain due to illegal encroachment of
structures;
i. Beach erosion is prevalent in Boracay Island due to storms, extraction of sand along the
beach to construct properties and structures along the foreshore, and discharge of waste
water near the shore, causing degradation of coral reefs and seagrass meadows;
j. Direct discharge of waste water near the shore has resulted in frequent algal bloom and
coral deterioration; and
k. The continuous rise of tourist arrivals, the insufficient sewer and waste management
system, and environmental violations of establishments aggravate the environmental
degradation and destroy the ecological balance of the Island of Boracay, resulting in
major damage to property and natural resources, as well as the disruption of the normal
way of life of the people therein.
After due consideration of the above, the President, upon the NDRRMC's recommendation,
declared a State of Calamity in the Island of Boracay and ordered its closure as a tourist
destination for a period of six months. Petitioners take issue with the reasonableness of the
measures taken and seek to take the President and the implementing agencies to task on this
account. Arriving at a conclusion regarding the propriety and reasonableness of the above
measures, however, will necessarily require examining the factual circumstances which formed
the premise for Proclamation No. 475's issuance.
Permit me to illustrate, using some of Proclamation No. 475's factual considerations.
On the high concentration of fecal coliform in the water: To prove unreasonableness, petitioners
may present evidence to prove that closure, if at all, for a shorter period of time (less than six
months) is needed for the water coliform level to return to acceptable standards. Evidence may
also be presented to show that closure of the island as a tourist destination is not even necessary
to address the insufficiency of sewer lines and illegal discharge of untreated waste water into the
beach.
On the non-connection of the commercial establishments and residences to the island's sewerage
infrastructure: To prove unreasonableness, petitioners may present evidence to show that closure
of the island is not even necessary to connect all establishments to the existing sewerage
infrastructure. Even assuming that some closure is necessary, petitioners may present evidence to
show that connection may be done on a one-barangay-at-a-time basis (instead of simultaneously
closing off all three barangays), and for a period shorter than six months.
On the establishments' non-compliance with the Philippine Clean Water Act: To prove
unreasonableness, petitioners may present evidence that the simple issuance of notices of
violation would be sufficient to compel establishments to comply with the requirements of the
Act.
On the degradation of the coral reefs and coral cover in the island because of dirty water: To
prove unreasonableness, petitioners may present evidence to show that the local government is
unable to meet the waste generation rate in the island; that there is no rational relation between
the environmental issues (such as the destruction of the natural habitats of the various animals,
existence of illegal encroachments, beach erosion, and other conditions existing in the island)
and the purported closure of the island to tourists for six months.
The foregoing, however, involve questions of fact which cannot be entertained by this Court.
Questions of fact indispensable to the disposition of a case, as in this case, are cognizable by the
trial courts; petitioners should thus have filed the petition before them. Failure to do so, in fact, is
sufficient to warrant the Court's dismissal of the case.64
For similar reasons, I find that the Court should also decline to resolve the fourth issue raised by
petitioners, that is, whether Proclamation No. 475 violates the principle of local autonomy
insofar as it orders local government units to implement the closure. Similar with
the ponencia's finding, I find that, contrary to petitioners' arguments, the text of RA 10121
actually recognizes and even empowers the local government unit in disaster risk reduction and
management.65 I also hasten to add that whether or not Proclamation No. 475 did, in fact, cause
an actual intrusion into an affected local government unit's powers is still largely a question of
fact. In fact, even assuming that petitioners are able to show such intrusion, again it seems to me
that their issue against such would involve a question into the reasonableness of the same under
the circumstances. This issue, as already shown, still involves the resolution of underlying issues
of fact. For example, petitioners would have to present evidence to show, among others, that the
local government unit concerned had recommended a less drastic course of action to address the
situation than those taken under the Proclamation, and that this recommendation was not
considered and/or actually overruled by the President and/or NDRRMC.
Petitioners cite White Light Corporation v. City of Manila,66Lucena Grand Central Terminal,
Inc. v. JAC Liner, Inc.,67 and Metropolitan Manila Development Authority v. Viron
Transportation, Co, Inc.68 to demonstrate how this Court has stricken down measures which have
been shown to be unreasonable and/or not the least restrictive means to pursue a particular
government interest. To my mind, however, none of the foregoing cases are useful to further
petitioners' cause. Rather than justify direct resort pursuant to this Court's original jurisdiction
over certain cases, the foregoing cases all the more highlight the necessity of following the
hierarchy of courts.
In White Light Corporation, the validity of Manila City Ordinance No. 7774, entitled "An
Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate
Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments
in the City of Manila," was challenged on the ground that it violated sacred constitutional rights
to liberty, due process, and equal protection of law.
In Lucena Grand Central Terminal, Inc., the constitutionality of City Ordinance Nos. 1631 and
1778—which granted a franchise to petitioner and regulated entrance into the city, respectively
—was challenged on the ground that they constituted an invalid exercise of police power, an
undue taking of private property, and a violation of the constitutional prohibition against
monopolies.
In Metropolitan Manila Development Authority (MMDA), petitioners therein questioned the
MMDA's authority to order the closure of provincial bus terminals along Epifanio de los Santos
Avenue and major thoroughfares of Metro Manila.
It appears to escape petitioners' notice that while the above cases did involve constitutional
challenges, none involved a direct recourse to this Court. The challenges were initially filed
before the RTC, who had the first opportunity to evaluate and resolve the same, after the parties
were able to thresh out the factual issues, enter into stipulations, or agree on the conduct of
proceedings. By so doing, by the time the cases reached this Court, only questions of law
remained to be settled.69 This, to my mind, results in a more judicious use of the Court's limited
time and resources. A strict observance of the rule on hierarchy of courts would save the Court
from having to resolve factual questions (which, in the first place, it is ill-equipped to do, much
less in the first instance) and enable it to focus on the more fundamental tasks assigned to it
under the Constitution.
C
It is beyond dispute that the rights to travel and to due process of law are fundamental.70 This is
significant because, traditionally, liberty interests are protected only against arbitrary government
interference, that is, a claim to a liberty interest may fail upon a showing by the government of a
rational basis to believe that its interference advances a legitimate legislative objective.71 Where,
however, a liberty interest has been accorded an "elevated" fundamental right status, the
government is subject to a higher burden of proof to justify intrusions into these interests,
namely, the requirements of strict scrutiny in equal protection cases72 and that of compelling state
interest in due process cases.73
In his Concurring Opinion in Estrada v. Sandiganbayan,74 Justice Vicente Mendoza wrote:
Petitioner cites the dictum in Ople v. Torres that "when the integrity of a fundamental right is at
stake, this Court will give the challenged law, administrative order, rule or regulation stricter
scrutiny" and that "It will not do for authorities to invoke the presumption of regularity in the
performance of official duties." As will presently be shown, "strict scrutiny," as used in that
decision, is not the same thing as the "strict scrutiny" urged by petitioner. Much less did this
Court rule that because of the need to give "stricter scrutiny" to laws abridging
fundamental freedoms, it will not give such laws the presumption of validity.75
Similarly, mere invocation of a fundamental right, or an alleged restriction thereof, would not
operate to excuse a pleader from proving his case. Lest petitioners forget, Proclamation No. 475,
issued by the President pursuant to his power of subordinate legislation under RA 10121, enjoys
the presumption of constitutionality and legality. To overcome this, facts
establishing invalidity must be proven through the presentation of evidence. In Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,76 citing O'Gorman &
Young v. Hartford Fire Insurance Co.,77 this Court stressed:
It admits of no doubt therefore that there being a presumption of validity the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its [face,] which
is not the case here. The principle has been nowhere better expressed than in the leading case
of O'Gorman & Young v. Hartford Fire Insurance Co., where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus:
The statute here questioned deals with a subject clearly within the scope of the police power. We
are asked to declare it void on the ground that the [specific] method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of
fact may condition the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of record for
overthrowing the statute.
No such factual foundation being laid in the present case, the lower court deciding the
matter on the pleadings and the stipulation of [facts], the presumption of validity must
prevail and the judgment against the ordinance set aside.78
Thus, and until it is set aside with finality in an appropriate case by a competent
court,79 Proclamation No. 475 has the force and effect of law and must be enforced accordingly.
The burden of proving its unconstitutionality rests on the party assailing the governmental
regulations and administrative issuances.80
More importantly, the doctrine of hierarchy of courts requires that factual questions first be
submitted to trial courts who are more properly equipped to receive evidence on, and ultimately
resolve, issues of fact. Where, as in this case, the resolution of the issue on constitutionality
requires the determination and evaluation of extant factual circumstances, this Court should
decline to exercise its original jurisdiction and, instead, reserve judgment until such time that the
question is properly brought before it on appeal.
For all the foregoing reasons, I vote to DISMISS the petition.
Endnotes:
1
Rollo, p. 6.
2
CONSTITUTION, Art. VIII, Sec. 5(1): and Sections 9(1) and 21(1) of Batas Pambansa Bilang
129, otherwise known as The Judiciary Reorganization Act of 1980.
3
Third paragraph, Sec. 18, Art. VII of the Constitution provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ [of habeas corpus] or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
4
Sec. 2, Rule 3 of the Internal Rules of the Supreme Court (A.M. No. 10-4-20-SC). See Mafinco
Trading Corporation v. Ople, G.R. No. L-37790, March 25, 1976, 70 SCRA 139, 161.
5
Vergara, Sr. v. Suelto, G.R. No. L-74766, December 21, 1987, 156 SCRA 753, 766.
6
I find that petitioners have legal standing to file the present suit. In Agan, Jr. v. Philippine
International Air Terminals Co., Inc. (G.R. Nos. 155001, 155547, & 155661, May 5, 2003, 402
SCRA 612), an interest to protect oneself from financial prejudice and loss of source of income
has been held sufficient to confer petitioners therein with legal standing to challenge the
contracts of Philippine International Air Terminals Co., Inc. Here, Zabal and Jacosalem have
shown that with the closure of Boracay Island, they are also in imminent danger of losing their
sources of income, as sandcastle maker and tourist driver, respectively, operating in the said
island.
Similarly, and consistent with this Court's ruling in Samahan Ng Mga Progresibong Kabataan
(SPARK) v. Quezon City (G.R. No. 225442, August 8, 2017), I find that petitioner Bandiola also
has legal standing to raise the issue affecting the right to travel insofar as he has alleged that he is
a non-resident who will no longer be allowed entry to Boracay Island beginning April 26, 2018.
7
Rollo, pp. 4, 58.
8
Id. at 14-17, 58.
9
Id. at 20, 75-76, 78.
10
Otherwise known as the Philippine Disaster Risk Reduction and Management Act of 2010.
11
Emphasis and underscoring supplied.
12
Sec. 4 of RA 10121. Emphasis supplied.
13
14
15
Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, October 18, 1988, 166 SCRA 533,
544.
16
Sec. 6(a) of RA 10121.
17
Sections 6(c) and 16 of RA 10121.
18
The Conference of Maritime Manning Agencies, Inc. v. Philippine Overseas Employment
Administration, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 674, citing Eastern Shipping
Lines, Inc. v. POEA, supra.
19
G.R. No. 166715, August 14, 2008, 562 SCRA 251. On filling in the details, see Holy Spirit
Homeowners Association, Inc. v. Defensor, G.R. No. 163980, August 3, 2006, 497 SCRA 581,
600. On ascertaining facts, see Irene R. Cortes, Philippine Administrative Law: Cases and
Materials, Revised 2nd edition, 1984, p. 117, citing Panama Refining Co. v. Ryan, 293 U.S. 388
(1935), Cruz v. Youngberg, 56 Phil. 234 ( 1931), and Lovina v. Moreno, G.R. No. 17821,
November 29, 1963, 9 SCRA 557.
20
Id. at 288.
21
Bellosillo, J., Separate Opinion, Commissioner of Internal Revenue v. Court of Appeals, G.R.
No. 119761, August 29, 1996, 261 SCRA 236, 256. Also cited in Smart Communications, Inc.
(SMART) v. National Telecommunications Commission (NTC), G.R. Nos. 151908 & 152063,
August 12, 2003, 408 SCRA 678, 686.
22
Smart Communications, Inc. (SMART) v. National Telecommunications Commission (NTC),
supra at 686-687.
23
Note that Section 17 of RA 10121 provides that a declaration of a state of calamity shall make
mandatory the immediate undertaking of four remedial measures. The law, however, does not
expressly limit to these four remedial measures the effects and consequences of declaring an area
in a state of calamity.
24
Including high concentration of fecal coliform in the beaches, degradation of nearby coral reefs
and coral cover, disproportionate level between generation of solid waste and capacity to
haul/dispose, destruction of the natural habitats of animals endemic to the island, and other
environmental degradation.
25
Under Section 3(II) of RA 10121. a State of Calamity is defined thus:
(II) "State of Calamity" - a condition involving mass casualty and/or major damages to property,
disruption of means of livelihoods, roads and normal way of life of people in the affected areas
as a result of the occurrence of natural or human-induced hazard.
26
[10th ] WHEREAS Clause, Proclamation No. 475.
27
Supra note 18.
28
Id. at footnote 13. Citations omitted.
29
"Evacuate" means "to remove from some place in an organized way, especially as a protective
measure" or "to remove inhabitants of a place or area," Webster's Third New International
Dictionary of the English Language Unabridged (1993), p. 786.
30
Under Section 11(b)(3) of RA 10121, local governments, through the recommendation of the
NDRRMC's local counterparts, may issue pre-emptive and forced evacuation orders. See
National Disaster Preparedness Plan.
See https://lga.gov.ph/media/uploads/2/Publications%20PDF/Book/NDPP%20Vol%201.pdf, last
accessed January 22, 2019. For an illustration of a local government unit's evacuation guideline;
see also https://www.academia.edu/23793398/EO_No._10_Forced Evac, last accessed Januarv
22, 2019.
31
See https://www.phivolcs.dost.gov.ph/index.php/volcano-hazard/volcano-alert-level, last
accessed January 2, 2019.
32
NDRRMC Update SitRep No. 18 re: Mayan Volcano Eruption. See:
http://webcache.googleusercontent.com/search?q=cache: http://www.ndrrmc.gov.
ph/attachments/article/3293/SitRep_No
_18_re_Mayon_Volcano_Eruption_as_of_27JAN2018_8AM.pdf, last accessed November 25,
2018.
33
See https://www1.pagasa.dost.gov.ph/index.php/20-weather, last accessed February 12, 2019.
34
See https://www.rappler.com/move-ph/issues/disasters/181894-guide-marikina-river-alarm-
level system, last accessed December 27, 2018.
35
Id.
36
Energy Regulatory Board v. Court of Appeals, G.R. Nos. 113079 & 114923, April 20, 2001,
357 SCRA 30, 40, citing Nestle Philippines, Inc. v. Court of Appeals, G.R. No. 86738,
November 13, 1991, 203 SCRA 504, 510-511, citing In re Allen, 2 Phil. 630 ( 1903).
37
G.R. No. L-44616, June 29, 1985, 137 SCRA 314.
38
Id. at 319.
39
G.R. No. L-73140, May 29, 1987, 150 SCRA 565.
40
Id. at 568-569.
41
G.R. Nos. 181912 & 183347, November 29, 2016, 811 SCRA 27.
42
Id. at 74-75. Citation omitted.
43
467 U.S. 837 (1984).
44
Id. See also City of Arlington, Texas, et al. v. Federal Communications Commission, et al., 569
U.S. 290 (2013).
45
Sec. 26. Congressional Oversight Committee. - There is hereby created a Congressional
Oversight Committee to monitor and oversee the implementation of the provisions of this Act.
The Committee shall be composed of six (6) members from the Senate and six (6) members from
the House of Representatives with the Chairpersons of the Committees on National Defense and
Security of both the Senate and the House of Representatives as joint Chairpersons of this
Committee. The five (5) other members from each Chamber are to be designated by the Senate
President and the Speaker of the House of Representatives, respectively. The minority shall be
entitled to pro rata representation but shall have at least two (2) representatives from each
Chamber.
46
Sec. 27. Sunset Review. -Within five (5) years after the effectivity of this Act, or as the need
arises, the Congressional Oversight Committee shall conduct a sunset review. For purposes of
this Act, the term "sunset review" shall mean a systematic evaluation by the Congressional
Oversight Committee of the accomplishments and impact of this Act, as well as the performance
and organizational structure of its implementing agencies, for purposes of determining remedial
legislation.
47
48
39 Phil. 660 (1919).
49
A.M. No. P-11-2927, December 13, 2011, 662 SCRA 126, 134-135.
50
G.R. 197930, April 17, 2018.
51
In this case, the Court stressed that, in addition to the three considerations provided under the
Constitution, there must also be an explicit provision of statutory law which provides for the
impairment of the right to travel.
52
381 U.S. 1 (1965).
53
2008 U.S. Dist. LEXIS 109090, December 3, 2008.
54
84 Wn. 2d 645, December 12, 1974.
55
94 Wn. 2d 552, October 16, 1980.
56
Phil. Movie Pictures Workers' Assn. v. Premiere Productions, Inc., 92 Phil. 843 ( 1953). See
also JMM Promotion Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996,
260 SCRA 319, 330.
57
United States v. Gomez Jesus, 31 Phil. 218 (1915).
58
Southern Luzon Drug Corporation v. The Department of Social Welfare and Development,
G.R. No. 199669, April 25, 2017.
59
Mirasol v. Department of Public Works and Highways, G.R. No. 158793, June 8, 2006, 490
SCRA 318, 349.
60
Rollo, pp. 83-84.
61
Id. at 20, 22-25, 82, 84-85, 89.
62
Mirasol v. Department of Public Works and Highways, supra at 348, citing City of Raleigh v.
Norfolk Southern Railway.Co., 165 S.E.2d 745 (1969).
63
Id., citing Board of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah's Witnesses, 117
N.E.2d 115 (1954). Italics supplied.
64
Chamber of Real Estate and Builders Associations, Inc. (CREBA) v. Secretary of Agrarian
Reform, G.R. No. 183409, June 18, 2010, 621 SCRA 295, 312; Mangaliag v. Catubig-Pastoral,
G.R. No. 143951, October 25, 2005, 474 SCRA 153, 161-162.
65
66
G.R. No. 122846, January 20, 2009, 576 SCRA 416.
67
G.R. No. 148339, February 23, 2005, 452 SCRA 174.
68
G.R. No. 170656, August 15, 2007, 530 SCRA 341.
69
In White Light Corporation, the parties agreed to submit the case for decision without trial as
the case involved a purely legal question; in Lucena Grand Central Terminal, Inc., the parties
agreed to dispense with the presentation of evidence and to submit the case for resolution solely
on the basis of the pleadings filed; and in Metropolitan Manila Development Authority, the
parties limited the issues, entered into stipulations, and agreed to file their respective position
papers in lieu of hearings.
70
See Samahan Ng Mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442,
August 8, 2017 and Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,
G.R. No. 148208, December 15, 2004, 446 SCRA 299.
71
David Crump, "How do the Courts Really Discover Unenumerated Fundamental Rights?
Cataloguing the Methods of Judicial Alchemy," 19 Harv. J. L & Pub. Pol'y 795 (1996), pp. 799-
800.
72
See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, supra at
footnote 16.
73
See Obergefell v. Hodges, 576 U.S._ (2015), footnote 19.
74
G.R. No. 148560, November 19, 2001, 369 SCRA 394.
75
Id. at 461-462. Citations omitted. Emphasis supplied.
76
G.R. No. L-24693, July 31, 1967, 20 SCRA 849.
77
282 U.S. 251 (1931).
78
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, supra.
(Emphasis supplied.) See also Agustin v. Edu, G.R. No. L-49112, February 2, 1979, 88 SCRA
195; Justice Teodoro R. Padilla's Separate Opinion in Guazon v. De Villa, G.R. No. 80508,
January 30, 1990, 181 SCRA 623; and the US case of Nashville, C. & St. LR Co. v. Walters, 294
U.S. 405 ( 1935).
79
Abakada Guro Party List v. Purisima, supra note 19 at 289.
80
Mirasol v. Department of Public Works and Highways, G.R. No. 158793, June 8, 2006, 490
SCRA 318, 348.
DISSENTING OPINION
CAGUIOA, J.:
"As one great furnace flamed, yet from those flames

No light, but rather darkness visible."1

On April 26, 2018, President Rodrigo R. Duterte issued Proclamation No. 4752 (Proclamation
475), declaring a state of calamity in the island of Boracay and ordering its temporary closure for
a maximum of six months.
Petitioners Mark Anthony Zabal (Zabal) and Thiting Estoso Jacosalem (Jacosalem), residents
and workers in Boracay, filed the present Petition to assail the temporary closure of the island.
They are joined herein by petitioner Odon Bandiola (Bandiola), a regular visitor of Boracay for
business and pleasure.
Together, petitioners claim that Proclamation 475 is unconstitutional as it constitutes an invalid
exercise of legislative power which places undue restrictions on their constitutional rights to
travel and due process.
The ponencia denies the Petition, and affirms the validity of Proclamation 475, viewing it as an
executive measure which does not pose an actual impairment on the right to travel and due
process.3 Moreover, the ponencia is of the view that even if Proclamation 475 were to be
construed as restrictive of these fundamental rights, its issuance remains justified as a reasonable
exercise of police power occasioned by the pressing state of Boracay island.4
The judicial confirmation of Proclamation 475's purported validity comes after Boracay's re-
opening. The temporary closure has come to an end; its decreed rehabilitation now complete. It
appears that the proverbial ship has now sailed, as "paradise" appears to have been restored. Its
restoration, however, has been forged at great expense — the indiscriminate impairment of
fundamental rights.
I cannot, in conscience, give my imprimatur to yet another constitutional shortcut. In a
democratic state governed by the rule of law, fundamental rights cannot be traded in exchange
for the promise of paradise. Without question, under the rule of law, the end does not, and can
never ever, justify the means.
I register my dissent not because I refuse to acknowledge the serious problems that Boracay has
faced. On the contrary, I recognize that there was a problem; a disaster that, in fact, needed
action. The necessity for action did not, however, justify the measures which the Executive chose
to take.
Our country's form of government – democratic, republican, and presidential – characterized by
separation, coordination, and the interdependence of its branches, has long been criticized for
having burdensome processes that slow down program execution, particularly, in the realm of
disaster response. However, as long as this form of government is in place, and so long as our
Constitution subscribes to the ideals of separation of powers, no shortcuts of any kind may or
should be allowed. I find Proclamation 475 unconstitutional. It finds absolutely no basis in law,
and unduly permits the consequent impairment of the rights to travel and due process by
executive fiat.
Thus, I am impelled to dissent upon the insistence that the Constitution must be, at all times,
respected. As the bedrock of our civil society, the Constitution deserves no less.
The constitutional right to travel
The right to travel is a chief element of the constitutional guarantee of liberty which was first
introduced by the Congress of the United States to the Philippines during the early days of the
American regime.5
In Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City6 (Spark), the Court held
that the right to travel refers to "the right to move freely from the Philippines to other countries
or within the Philippines" and covers, among others, "the power of locomotion".7 In the simplest
of terms, it is the freedom to move where one chooses to go.
As a fundamental constitutional right, the protection afforded by the right to travel inures
to every citizen. The provision granting such right is self-executing; its exercise is not contingent
upon further legislation governing its enforcement.8
The same does not hold true, however, with respect to the right's impairment.
Section 6, Article III of the Constitution is clear — the right to travel may only be restricted by
law
The impairment of the right to travel, while permissible, is subject to the strict requirements set
forth under Section 6, Article III of the Constitution, thus:
Section 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. (Emphasis supplied)
The import of the provision is crystal clear — the right to travel may only be impaired in the
interest of national security, public safety or public health, on the basis of a
law explicitly providing for the impairment.
Expounding on these parameters, the Court, in Genuino v. De Lima9 (Genuino), unequivocally
held:
Clearly, under the provision, there are only three considerations that may permit a restriction on
the right to travel: national security, public safety or public health. As a further requirement,
there must be an explicit provision of statutory law or the Rules of Court providing for the
impairment. The requirement for a legislative enactment was purposely added to prevent
inordinate restraints on the person's right to travel by administrative officials who may be
tempted to wield authority under the guise of national security, public safety or public
health. This is in keeping with the principle that ours is a government of laws and not of men
and also with the canon that provisions of law limiting the enjoyment of liberty should be
construed against the government and in favor of the individual.
The necessity of a law before a curtailment in the freedom of movement may be permitted is
apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr.
Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase
"and changing the same" is taken from the 1935 version; that is, changing the abode. The
addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether
the rights be impaired on order of a court or without the order of a court, the impairment must be
in accordance with the prescriptions of law; that is, it is not left to the discretion of any public
officer.10 (Emphasis and underscoring supplied)
The requirement of a law authorizing the curtailment of the right to travel is, to repeat, crystal
clear — any restriction imposed upon such right in the absence of the law, whether through a
statute enacted through the legislative process, or provided in the Constitution itself,11 necessarily
renders the restriction null and void.
Proclamation 475 poses an actual restriction on the right to travel
The dismissal of the Petition is primarily grounded on the premise that any effect which
Proclamation 475 may have on the right to travel is "merely corollary to the closure of Boracay,"
and as such, a necessary incident of the island's rehabilitation.12 This premise gives rise to the
conclusion that Proclamation 475 need not comply with the requirements set forth under Section
6, Article III, as its effect on the right to travel is only indirect and merely incidental.
I disagree.
The requirements under the Constitution are spelled out in clear and absolute terms — 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. The provision does not distinguish between
measures that directly restrict the right to travel and those which do so indirectly, in the
furtherance of another State purpose. Ubi lex non distinguit, nec nos distinguere debemus. This
interpretation is grounded on the text of the Constitution and finds basis in case law both here
and in the United States.
In Shapiro v. Thomspon13 (Shapiro), the Supreme Court of the United States (SCOTUS) was
confronted with a constitutional challenge against certain statutory provisions enacted in
Connecticut, Pennsylvania and the District of Columbia (D.C). The assailed provisions denied
welfare assistance to applicants who have not resided in the cities' respective jurisdictions for at
least a year immediately preceding the filing of their applications. These provisions, according to
the appellants therein, had been crafted as "a protective device to preserve the fiscal integrity of
state public assistance programs."14
Resolving the case, SCOTUS ruled that the assailed provisions violate the constitutional
guarantee of interstate movement, among others, insofar as they create classifications which
effectively penalize the exercise of the right to travel,15 thus:
We do not doubt that the one-year waiting period device is well suited to discourage the influx of
poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job,
and start a new life will doubtless hesitate if he knows that he must risk making the move
without the possibility of falling back on state welfare assistance during his first year of
residence, when his need may be most acute. But the purpose of inhibiting migration by needy
persons into the State is constitutionally impermissible.
This Court long ago recognized that the nature of our Federal Union and our constitutional
concepts of personal liberty unite to require that all citizens be free to travel throughout the
length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably
burden or restrict this movement. x x x
xxxx
Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the
classification created by the one-year waiting period, since that purpose is constitutionally
impermissible. If a law has "no other purpose . . . than to chill the assertion of constitutional
rights by penalizing those who choose to exercise them, then it [is] patently
unconstitutional."16 (Citations omitted)
Following Shapiro, SCOTUS handed down its decision in Attorney General of New York v.
Soto-Lopez17 (Soto-Lopez), holding that "[a] state law implicates the right to travel when it
actually deters such travel, x x x [whether] impeding travel is its primary objective, x x x or
when it uses 'any classification which serves to penalize the exercise of that right."'18Soto-
Lopez involved a challenge against the employment preference afforded by the New York
Constitution and Civil Service Law to New York resident-veterans honorably discharged from
the Armed Forces.19
More recently, in State of Ohio v. Burnett20 (Burnett), the Supreme Court of Ohio was confronted
with an action questioning the validity of a Cincinnati ordinance which established "drug-
exclusion zones" within the city for the purpose of controlling drug-related activity in the area.
These zones were identified as those where the number of drug-related arrests were significantly
higher than other similarly situated and sized areas of the city. The establishment of these zones
had the incidental effect of prohibiting persons from entering the zones within a specified
"exclusion period" upon the threat of arrest for criminal trespass. Thus, the Cincinnati ordinance
was questioned for being violative of the right to travel, among others.
While conceding that the Cincinatti ordinance had been grounded on a compelling state
interest, the Ohio Supreme Court nevertheless ruled that it had the incidental effect of
"unconstitutionally burdening" the right to travel.21 Hence, the Supreme Court of Ohio held:
Cincinnati asserts that the purposes of Chapter 755 are "restoring the quality of life and
protecting the health, safety, and welfare of citizens using the public ways" in drug-exclusion
zones and "allowing the public to use and enjoy the facilities in such areas without interference
arising from illegal drug abuse and/or illegal drug abuse related crimes." We agree with the city
that these asserted interests are compelling. The destruction of some neighborhoods by illegal
drug activity has created a crisis of national magnitude, and governments are justified in
attacking the problem aggressively. When legislation addressing the drug problem infringes
certain fundamental rights, however, more than a compelling interest is needed to survive
constitutional scrutiny. The statute must also be narrowly tailored to meet the compelling
interest. It is our opinion that while Chapter 755 is justified by a compelling interest, it fails
constitutional analysis because the ordinance is not narrowly tailored to restrict only those
interests associated with illegal drug activity, but also restricts a substantial amount of
innocent conduct. (Citations omitted; emphasis supplied)
Though these cases are not binding in this jurisdiction, the Court has regarded American case
law as a rich source of persuasive jurisprudence22 that may guide the bench.
That said, the Court need not look beyond its own jurisprudence to find the answers that it seeks.
In the recent case of Spark, the Court characterized curfew ordinances as restrictive of minors'
right to travel, albeit imposed primarily for the interest of public safety, particularly the
promotion of juvenile safety and prevention of juvenile crime.23 To stress anew, the Court therein
referred to the right to travel as "the right to move freely from the Philippines to other countries
or within the Philippines," and a "right embraced within the general concept of liberty” which,
in turn, includes "the power of locomotion and the right of citizens to be free to use their
faculties in lawful ways and to live and work where they desire or where they can best
pursue the ends of life."24
The afore-cited cases tell us that measures which impede the right to travel in furtherance of
other state interests, whether impermissible (as in Shapiro) or even permissible (as
in Burnett and Spark), are treated in the same manner as those which directly restrict the right.
The foregoing cases, taken together with the text of the Constitution, unequivocally negate the
assertion that Proclamation 475 does not cause a substantive impairment on the right to travel so
as to exempt it from the requirements set forth in Section 6, Article III.
In this regard, I disagree with the contention that the effect of the closure of Boracay on a
person's ability to travel is merely incidental in nature; hence, conceptually remote from the
right's proper sense. To my mind, that an assailed government act
only indirectly or incidentally affects a constitutional right is inconsequential as any impairment
of constitutionally-protected rights must strictly comply with the mandate of the Constitution. As
held in Genuino:
The DOJ would however insist that the resulting infringement of liberty is merely incidental,
together with the consequent inconvenience, hardship or loss to the person being subjected to the
restriction and that the ultimate objective is to preserve the investigative powers of the DOJ and
public order. It posits that the issuance ensures the presence within the country of the
respondents during the preliminary investigation. Be that as it may, no objective will ever
suffice to legitimize desecration of a fundamental right. To relegate the intrusion as
negligible in view of the supposed gains is to undermine the inviolable nature of the
protection that the Constitution affords.25 (Emphasis supplied)
As well, Proclamation 475 cannot be likened to government regulations that amount to the
"cordoning-off" of areas ravaged by calamities, where access by people thereto may be
prohibited pursuant to public safety considerations. This is because local government units are
already explicitly authorized under the Local Government Code to close down roads for such
purpose, to wit:
Section 21. Closure and Opening of Roads. — (a) A local government unit may, pursuant to
an ordinance, permanently or temporarily close or open any local road, alley, park, or
square falling within its jurisdiction: Provided, however, That in case of permanent closure,
such ordinance must be approved by at least two-thirds (2/3) of all the members of
the sanggunian, and when necessary, an adequate substitute for the public facility that is subject
to closure is provided.
xxxx
(c) Any national or local road, alley, park, or square may be temporarily closed during an
actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an
undertaking of public works and highways, telecommunications, and waterworks projects, the
duration of which shall be specified by the local chief executive concerned in a written
order: x x x (Emphasis supplied)
Thus, I submit that the present case cannot be likened to a "cordoning-off” situation, considering
that the latter actually complies with Section 6, Article III, i.e., that the restriction be grounded
on either national security, public safety or public health, and that the restriction be provided by
law. Accordingly, I maintain my position that the resolution of this case hinges on the right to
travel.
There is no law which grants the President any form of police power so as to authorize the
impairment of the right to travel during a state of calamity
The ponencia alternatively holds that the issuance of Proclamation 475 is valid as a police power
measure. It cites Republic Act No. (RA) 10121 and RA 9275 as statutory bases for the validity of
the proclamation.
The ponencia, as well as respondents, rely on the provisions of RA 10121 which empower the
National Disaster Risk Reduction and Management Council (NDRRMC) to recommend to the
President the declaration of state of calamity. In particular, they cite the following provisions:
SEC. 6. Powers and Functions of the NDRRMC. — The National Council, being empowered
with policy-making, coordination, integration, supervision, monitoring and evaluation functions,
shall have the following responsibilities:
xxxx
volunteers; recommend to the President the declaration of a state of calamity in areas extensively
fund allocation;
xxx
SEC. 16. Declaration of Stale of Calamity. — The National Council shall recommend to the
by the National Council. x x x
From the foregoing provisions, the ponencia argues that "the statutes from which [Proclamation
475] draws authority and the constitutional provisions which serve as its framework are
primarily concerned with the environment and health, safety, and well-being of the people, the
promotion and securing of which are clearly legitimate objectives of governmental efforts and
regulations."26 The ponencia then concludes that Proclamation 475 is a valid police power
measure.
I differ.
First, the afore-cited provisions of RA 10121 only empower the NDRRMC to recommend to the
President the declaration of a "state of calamity" and submit to him "proposals to restore
normalcy in the affected areas." In turn, the actions or programs to be undertaken by the
President during a state of calamity, to be valid, must still be within the powers granted to him
under the Constitution and other laws.
To be sure, there is absolutely nothing in RA 10121 from which it could reasonably be inferred
that the law empowers the NDRRMC or the President to close an entire island. In fact, RA 10121
does not even refer to the President, except in connection with the declaration of a state of
calamity in Section 16, quoted above.
Parenthetically, it should be emphasized that, under RA 10121, a "state of calamity" only
authorizes the President to impose the following remedial measures:
(a) Imposition of price ceiling on basic necessities and prime commodities by the President upon
the recommendation of the implementing agency as provided for under Republic Act No. 7581,
otherwise known as the "Price Act", or the National Price Coordinating Council;
(b) Monitoring, prevention and control by the Local Price Coordination Council of
overpricing/profiteering and hoarding of prime commodities, medicines and petroleum products;
(c) Programming/reprogramming of funds for the repair and safety upgrading of public
infrastructures and facilities; and
(d) Granting of no-interest loans by government financing or lending institutions to the most
affected section of the population through their cooperatives or people's organizations.27
The very narrow scope of the President's powers during a state of calamity as declared in
accordance with RA 10121 becomes more apparent when placed in contrast with those granted
by the statute in favor of the NDRRMC.
The powers and prerogatives of the NDRRMC are detailed under RA 10121 as follows:
SEC. 6. Powers and Functions of the NDRRMC. — The National Council, being empowered
with policy-making, coordination, integration, supervision, monitoring and evaluation functions,
shall have the following responsibilities:
(a) Develop a NDRRMF which shall provide for a comprehensive, all-hazards, multi-sectoral,
inter-agency and community-based approach to disaster risk reduction and management. The
Framework shall serve as the principal guide to disaster risk reduction and management efforts in
the country and shall be reviewed on a five (5)-year interval, or as may be deemed necessary, in
order to ensure its relevance to the times;
(b) Ensure that the NDRRMP is consistent with the NDRRMF;
volunteers; recommend to the President the declaration of a state of calamity in areas extensively
fund allocation;
(d) Ensure a multi-stakeholder participation in the development, updating, and sharing of a
Disaster Risk Reduction and Management Information System and Geographic Information
System-based national risk map as policy, planning and decision-making tools;
(e) Establish a national early warning and emergency alert system to provide accurate and timely
advice to national or local emergency response organizations and to the general public through
diverse mass media to include digital and analog broadcast, cable, satellite television and radio,
wireless communications, and landline communications;
(f) Develop appropriate risk transfer mechanisms that shall guarantee social and economic
protection and increase resiliency in the face of disaster;
(g) Monitor the development and enforcement by agencies and organizations of the various laws,
guidelines, codes or technical standards required by this Act;
(h) Manage and mobilize resources for disaster risk reduction and management including the
National Disaster Risk Reduction and Management Fund;
(i) Monitor and provide the necessary guidelines and procedures on the Local Disaster Risk
Reduction and Management Fund (LDRRMF) releases as well as utilization, accounting and
auditing thereof;
(j) Develop assessment tools on the existing and potential hazards and risks brought about by
climate change to vulnerable areas and ecosystems in coordination with the Climate Change
Commission;
(k) Develop vertical and horizontal coordination mechanisms for a more coherent
implementation of disaster risk reduction and management policies and programs by sectoral
agencies and LGUs;
(l) Formulate a national institutional capability building program for disaster risk reduction and
management to address the specific weaknesses of various government agencies and LGUs,
based on the results of a biennial baseline assessment and studies;
(m) Formulate, harmonize, and translate into policies a national agenda for research and
technology development on disaster risk reduction and management;
(n) In coordination with the Climate Change Commission, formulate and implement a
framework for climate change adaptation and disaster risk reduction and management from
which all policies, programs, and projects shall be based;
(o) Constitute a technical management group composed of representatives of the
abovementioned departments, offices, and organizations, that shall coordinate and meet as often
as necessary to effectively manage and sustain national efforts on disaster risk reduction and
management;
(p) Task the OCD to conduct periodic assessment and performance monitoring of the member-
agencies of the NDRRMC, and the Regional Disaster Risk Reduction and Management Councils
(RDRRMCs), as defined in the NDRRMP; and
(q) Coordinate or oversee the implementation of the country's obligations with disaster
management treaties to which it is a party and see to it that the country's disaster management
treaty obligations be incorporated in its disaster risk reduction and management frameworks,
policies, plans, programs and projects.
xxxx
Section 15. Coordination During Emergencies. — The LDRRMCs shall take the lead in
preparing for, responding to, and recovering from the effects of any disaster based on the
following criteria:
(a) The BDC, if a barangay is affected;
(b) The city/municipal DRRMCs, if two (2) or more barangays are affected;
(c) The provincial DRRMC, if two (2) or more cities/municipalities are affected;
(d) The regional DRRMC, if two (2) or more provinces are affected; and
(e) The NDRRMC, if two (2) or more regions are affected.
RA 10121 likewise established Local Disaster Risk Reduction and Management
Councils/Offices (LDRRMCs/LDRRMOs) in every province, city, and municipality in the
country, which are "responsible for setting the direction, development, implementation and
coordination of disaster risk management programs within their [respective] territorial
jurisdiction[s]."28 Specifically, LDRRMOs are empowered to, among others, (i) identify, assess,
and manage the hazards, vulnerabilities and risks that may occur in their locality;29 (ii) identify
and implement cost-effective risk reduction measures/strategies;30 and (iii) respond to and
manage the adverse effects of emergencies and carry out recovery activities in the affected area.31
Notably, majority of those who compose the LDRRMCs are officials of local government
units32 (LGUs) over whom the President only exercises supervision, instead of
control.33 Restated, it is very clear that the intent of the law — in directing the LDRRMCs to
"take the lead", and in declaring that the NDRRMC would only take over "if two (2) or more
regions are affected" — is to favor local autonomy in disaster preparedness and disaster
response.
From the foregoing, there can be no serious doubt that the six-month closure of Boracay, as
ordered by Proclamation 475, cannot be anchored on RA 10121. To conclude as such
requires an Olympic leap in logic which is totally unwarranted, considering that RA 10121:
(i) gave preference to local actors, not national ones, as regards disaster response and (ii) only
granted the President authority to implement limited remedial measures following a declaration
of a "state of calamity".
The case of Review Center Association of the Philippines v. Executive Secretary Ermita34 is on
point. Therein, the President issued an executive order authorizing the Commission on Higher
Education (CHED) to supervise review centers and similar establishments. The petitioner therein
sought to declare the executive order unconstitutional on the ground that CHED had no
supervisorial authority over them and that the executive order constitutes a usurpation of
legislative power by the President. Ruling m favor of the petitioner, the Court held:
The scopes of EO 566 and the RIRR clearly expand the CHED's coverage under RA 7722. The
CHED's coverage under RA 7722 is limited to public and private institutions of higher education
and degreegranting programs in all public and private post-secondary educational institutions.
EO 566 directed the CHED to formulate a framework for the regulation of review centers and
similar entities.
The definition of a review center under EO 566 shows that it refers to one which offers "a
program or course of study that is intended to refresh and enhance the knowledge or
competencies and skills of reviewees obtained in the formal school setting in preparation for the
licensure examinations" given by the PRC. It also covers the operation or conduct of review
classes or courses provided by individuals whether for a fee or not in preparation for the
licensure examinations given by the PRC.
xxxx
The President has no inherent or delegated legislative power to amend the functions of the
CHED under RA 7722. Legislative power is the authority to make laws and to alter or
repeal them, and this power is vested with the Congress under Section 1, Article VI of the
1987 Constitution which states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved to the people by
the provision on initiative and referendum.
xxx
Police power to prescribe regulations to promote the health, morals, education, good order or
safety, and the general welfare of the people flows from the recognition that salus populi est
suprema lex — the welfare of the people is the supreme law. Police power primarily rests with
the legislature although it may be exercised by the President and administrative boards by
virtue of a valid delegation. Here, no delegation of police power exists under RA 7722
authorizing the President to regulate the operations of non-degree granting review
centers.35 (Emphasis and underscoring supplied; emphasis in the original omitted)
Second, police power is an inherent attribute of sovereignty which has been defined as the power
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 for the subjects of the same."36 Our
Constitutional design, however, lodges police power primarily on the Legislature.
That police power is lodged primarily in the Legislature does not appear to be in dispute. This is
apparent from the ponencia itself, which defines police power as the "state authority to enact
legislation that may interfere with personal liberty or property in order to promote the general
welfare."37
Clearly, police power cannot be exercised by any group or body of individuals not possessing
legislative power; its exercise, therefore, is contingent upon a valid delegation.38
In fact, a look at the powers at the President's disposal in times of calamity leads to the inevitable
conclusion that Proclamation 475 does not find basis in any law.
Under the Constitution, the President, on whom Executive power is vested by Section 1, Article
VII of the Constitution, may, in times of calamity, exercise:
(1) calling out powers, an ordinary police action39 to call on the armed forces to prevent or
suppress three specific instances - lawless violence, invasion, or rebellion;40
(2) emergency powers, which, even then, may only be exercised in times of war or after
Congress considers the calamity as a "national emergency" and passes a law authorizing the
President to exercise "powers necessary and proper to carry out a declared national policy";41 and
(3) taking over powers, which include taking over of, or directing the operation of any
privately-owned public utility or business affected with public interest;42 and the power to
establish and operate vital industries in the interest of national welfare or defense, and the power
to transfer to public ownership utilities and other private enterprises to be operated by the
Government upon payment of just compensation.43
Under RA 7160 or the Local Government Code of 1991, the President may also exercise general
supervision over LGUs,44 and augment the basic services and facilities assigned to an LGU when
the need arises, that is, when such services or facilities are not made available or, if made
available, are inadequate to meet the requirements of its inhabitants.45
Further, in cases of epidemics, pestilence, and other widespread public health dangers, the
Secretary of Health may, upon the direction of the President and in consultation with the LGU
concerned, temporarily assume direct supervision and control over health operations in any LGU
for the duration of the emergency, but in no case exceeding a cumulative period of six (6)
months.46
Finally, in areas declared by the President to be in a state of calamity, the President may enact a
supplemental budget by way of budgetary realignment, to set aside appropriations for the
purchase of supplies and materials, or for the payment of services which are exceptionally urgent
or absolutely indispensable to prevent imminent danger to, or loss of life or property, in the
jurisdiction of an LGU concerned.47
From the foregoing, it is thus clear that the President has no power to close an entire island, even
in a calamitous situation, and despite the blanket invocation of the State's police power.
The authority to restrict the right to travel cannot be implied from the executive department's
power, under RA 9275, to "take measures necessary to upgrade the water quality"
The ponencia also views RA 927548 as another statutory basis for the issuance of Proclamation
475.49 This position is anchored on Section 6 of said statute which reads:
SEC. 6. Management of Non-attainment Areas. — The [DENR] shall designate water bodies, or
portions thereof, where specific pollutants from either natural or man-made source have already
exceeded water quality guidelines as non-attainment areas for the exceeded pollutant. x x x
The [DENR] shall, in coordination with [National Water Resource Board], Department of Health
(DOH), Department of Agriculture (DA), governing board and other concerned government
agencies and private sectors shall take measures as may be necessary to upgrade the quality
of such water in non-attainment areas to meet the standards under which it has been
classified. (Emphasis and underscoring supplied)
Again, I disagree.
While the language used by RA 9275 was general, such that it may include any measure to
upgrade the quality of water in a particular area, the provision in question is still bound by the
limitations imposed by the Constitution and other applicable laws.
Specifically, RA 9275 itself provides that "[t]he LGUs shall prepare and
implement contingency plans and other measures including relocation, whenever necessary, for
the protection of health and welfare of the residents within potentially affected areas."50 It is
apparent, therefore, that it is again the LGUs who are tasked with the implementation of
contingency plans when measures need to be taken for the protection of the health and welfare of
the residents in the area concerned. The DENR's, and consequently the President's, jurisdiction is
limited to the adoption of measures for the treatment of water, that is, any method, technique, or
process designed to alter the physical, chemical or biological and radiological character or
composition of any waste or wastewater to reduce or prevent pollution.51
More importantly, even if the language employed by RA 9275 was as general as it could be to
allow leeway for the DENR as to the means it would undertake to clean the water, the DENR
would still inarguably be bound by Section 6, Article III of the Constitution, which, as
discussed, requires that the curtailment of the right to travel be done on the basis of a law.
The right to travel cannot he impaired by a mere Presidential Proclamation
As discussed, the existence of a law – which may either refer to the Constitution or to a statute
necessarily enacted by the Legislature – is a prerequisite for the curtailment of the right to travel.
The case of Ople v. Torres52 (Ople) lends guidance.
In Ople, the President sought to establish a national computerized identification reference
system, or National ID System, through a mere administrative order. The petitioner in the said
case questioned the legality of the administrative order on the ground that, among others, the
subject of the administrative order should properly be contained in a law, not a mere
administrative issuance. In declaring the administrative order unconstitutional, the Court
explained at length:
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of
Congress is understandable. The blurring of the demarcation line between the power of the
Legislature to make laws and the power of the Executive to execute laws will disturb their
delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is
"the authority, under the Constitution, to make laws, and to alter and repeal them." The
Constitution, as the will of the people in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines. The grant of legislative power to Congress
is broad, general and comprehensive. The legislative body possesses plenary power for all
purposes of civil government. Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine,
except as limited by the Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern or common interest.
While Congress is vested with the power to enact laws, the President executes the laws. The
executive power is vested in the President. It 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 head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of
his department. He has control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive department, bureau and
office, or interfere with the discretion of its officials. Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power over bureaus and offices under
his control to enable him to discharge his duties effectively.
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:
"[Section] 3. Administrative Orders. — Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated in
administrative orders."
An administrative order is an ordinance issued by the President which relates to specific aspects
in the administrative operation of government. It must be in harmony with the law and should
be for the sole purpose of implementing the law and carrying out the legislative policy. We
reject the argument that A.O. No. 308 implements the legislative policy of the Administrative
Code of 1987. x x x
xxxx
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code
of 1987. It establishes for the first time a National Computerized Identification Reference
System. Such a System requires a delicate adjustment of various contending state policies — the
primacy of national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the
A.O. No. 308 involves the all-important freedom of thought. As said administrative order
redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as
the line that separates the administrative power of the President to make rules and the
legislative power of Congress, it ought to be evident that it deals with a subject that should
be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no
right, imposes no duty, affords no protection, and creates no office. Under A.O. No. 308, a
citizen cannot transact business with government agencies delivering basic services to the
people without the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus clear as daylight that
without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges.
Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot
stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative
legislation and consequently erodes the plenary power of Congress to make laws. This is
contrary to the established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: "x x x Many regulations however, bear directly on the
public. It is here that administrative legislation must be restricted in its scope and application.
Regulations are not supposed to be a substitute for tire general policy-making that Congress
enacts in the form of a public law. Although administrative regulations are entitled to respect,
the authority to prescribe rules and regulations is not an independent source of power to make
laws."53 (Emphasis and underscoring supplied)
In the present case, the order to close Boracay for six months was issued in a form of
a proclamation. Title 1, Book III of Executive Order No. 292 or the Revised Administrative
Code of 1987 (Administrative Code) enumerates the different powers of the Office of the
President. Chapter 2 of the same – which contains the ordinance powers of the President –
defines a "proclamation" as follows:
BOOK III
Office of the President
TITLE I
Powers o fthe President
CHAPTER 1
Power of Control
SECTION 1. Power of Control. — The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
CHAPTER 2
Ordinance Power
SEC. 2. Executive Orders. — Acts of the President providing for the rules of a general or
permanent character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.
SEC. 3. Administrative Orders. — Acts of the President which relate to particular aspects of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.
SEC. 4. Proclamations. — Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
SEC. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
SEC. 6. Memorandum Circulars. — Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.
SEC. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or
special orders. (Emphasis supplied)
The declaration of a state of calamity in the present case was embodied in a "proclamation". But
that is not all that was covered by the "proclamation". Along with the declaration of a state of
calamity, Proclamation 475 also ordered the closure of an entire island — an order which
directly impacts fundamental rights, particularly, the right to travel and due process.
Borrowing the words of the Court in Ople, when an issuance "redefines the parameters of some
basic rights of our citizenry vis a-vis the State,"54 then such is a subject matter that should be
contained in a law. Such matters are beyond the power of the President to determine, and cannot
be undertaken merely upon the authority of a proclamation.
As explained by Justice Dante O. Tinga in David v. Macapagal Arroyo:55
x x x The power of the President to make proclamations, while confirmed by statutory grant, is
nonetheless rooted in an inherent power of the presidency and not expressly subjected to
constitutional limitations. But proclamations, by their nature, are a species of issuances of
extremely limited efficacy. As defined in the Administrative Code, proclamations are merely
"acts of the President fixing a date or declaring a status or condition of public moment or interest
upon the existence of which the operation of a specific law or regulation is made to depend". A
proclamation, on its own, cannot create or suspend any constitutional or statutory rights or
obligations. There would be need of a complementing law or regulation referred to in the
proclamation should such act indeed put into operation any law or regulation by fixing a date or
declaring a status or condition of a public moment or interest related to such law or regulation.
And should the proclamation allow the operationalization of such law or regulation, all
subsequent resultant acts cannot exceed or supersede the law or regulation that was put into
effect.56 (Emphasis supplied)
In sum, as the governmental action at hand involves the curtailment of the constitutionally
guarded right to travel, it was thus invalid for the President to have done so (i) without enabling
legislation and (ii) in the form of a mere proclamation.
The authority to curtail the right to travel is neither subsumed in the President's duty to
execute laws, nor can it be deemed inherent in the President's power to promote the general
welfare
In the absence of statutory and Constitutional basis, it is imperative to stress that the restriction
of the right to travel, as imposed through Proclamation 475, cannot be justified as a necessary
incident of the Executive's duty to execute laws.
The faithful execution clause is found in Section 17, Article VII of the Constitution. It states:
SEC. 17. The President shall have control of all the executive departments, bureaus and offices.
He shall ensure that the laws be faithfully executed.
The foregoing clause should not be understood as a grant of power, but rather, an obligation
imposed upon the President.57 In turn, this obligation should not be construed in the narrow
context of the particular statute to be carried out, but, more appropriately, in conjunction with the
very document from which such obligation emanates. Hence, speaking of the faithful execution
clause, the Court has ruled:
[The faithful execution clause] simply underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is obliged to obey and execute them.
This is precisely why the law provides that "administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws or the
Constitution."58 (Emphasis supplied)
Based on these premises, I cannot subscribe to the position that the restriction of the right to
travel imposed as a consequence of Boracay's closure is valid simply because it is necessary for
the island's rehabilitation. The fact that the restriction of the right to travel is deemed
necessary to achieve the avowed purpose of Proclamation 475 does not take such restriction
away from the scope of the Constitutional requirements under Section 6, Article III.
As well, I cannot agree with respondents' contention that the authority to restrict the right to
travel is inherent in the exercise of the President's residual power to protect and promote the
general welfare.59 This claim appears to result from an analogy drawn from the Court's rulings
in Silverio v. Court of Appeals60 (Silverio) and Leave Division, Office of the Administrative
Services, Office of the Court Administrator v. Heusdens61 (Leave Division), which speak of the
inherent powers of the judicial and legislative departments.
A close reading of these cases reveals, however, that respondents' claim does not find support in
either Silverio or Leave Division.
In Silverio, the petitioner therein had been charged with a violation of the Revised Securities Act.
The petitioner assailed the order issued by the handling Regional Trial Court (RTC) which
directed: (i) the Department of Foreign Affairs to cancel his passport; and (ii) then Commission
on Immigration to prevent him from leaving the Philippines.62 The petitioner further argued that
the RTC could not validly impair his right to travel on the basis of grounds other than national
security, public safety and public health.63
Resolving the issue, the Court held that Section 6, Article III should not be construed to limit the
inherent power of the courts to use all means necessary to carry their orders into effect, thus:
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of
the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the
allowable impairment of the right to travel only on grounds of interest of national security, public
safety or public health, as compared to the provisions on freedom of movement in the 1935 and
1973 Constitutions.
xxxx
Petitioner x x x theorizes that under the 1987 Constitution, Courts can impair the right to travel
only on the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the
liberty of travel may be impaired even without Court Order, the appropriate executive
officers or administrative authorities are not armed with arbitrary discretion to impose
limitations. They can impose limits only on the basis of "national security, public safety, or
public health" and "as may be provided by law," a limitive phrase which did not appear in
the 1973 text x x x. Apparently, the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel upon application of an
interested party x x x.
Article III, Section 6 of the 1987 Constitution should by no means be construed as
delimiting the inherent power of the Courts to use all means necessary to carry their orders
into effect in criminal cases pending before them. When by law jurisdiction is conferred on
a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it
into effect may be employed by such Court or officer x x x.
xxxx
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof
by failing to appear before the Court when required. Warrants for his arrest have been issued.
Those orders and processes would be rendered nugatory if an accused were to be allowed to
leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an
accused in a criminal case within the reach of the Courts by preventing his departure from the
Philippines must be considered as a valid restriction on his right to travel so that he may be dealt
with in accordance with law. The offended party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal prosecutions should run their course and
proceed to finality without undue delay, with an accused holding himself amenable at all times to
Court Orders and processes.64 (Emphasis and underscoring supplied; citations omitted)
In Leave Division, petitioner therein argued that the Office of the Court Administrator (OCA)
Circular No. 49-2003 (B), which requires court employees to secure a travel authority as a
requisite for foreign travel, unduly restricts the right to travel.
Speaking of "inherent limitations on the right to travel", the Court in Leave Division held:
Inherent limitations on the right to travel are those that naturally emanate from the source. These
are very basic and are built-in with the power. An example of such inherent limitation is the
power of the trial courts to prohibit persons charged with a crime to leave the country. In such a
case, permission of the court is necessary. Another is the inherent power of the legislative
department to conduct a congressional inquiry in aid of legislation. In the exercise of
legislative inquiry, Congress has the power to issue a subpoena and subpoena duces
tecum to a witness in any part of the country, signed by the chairperson or acting
chairperson and the Speaker or acting Speaker of the House; or in the case of the Senate,
signed by its Chairman or in his absence by the Acting Chairman, and approved by the
Senate President.65 (Emphasis supplied)
While the foregoing cases decree that the requirements of Section 6, Article III should not be
interpreted to unduly negate the inherent powers belonging to the judicial and legislative
departments, these cases do not purport to sanction the curtailment of the right to travel solely on
the basis of implication.
To be sure, the authority to restrict the right to travel, while inherent in the exercise of
judicial power and in the conduct of legislative inquiry, do not stem from mere abstraction,
but rather, proceed from specific grants of authority under the Constitution. These grants
of authority therefore satisfy the requirement that the restriction be provided for by law.
To recall, Section 5(5), Article VIII of the Constitution vests unto the Court the power to
promulgate rules concerning, among others, the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts. Pursuant to such authority, the Court
promulgated the Rules 135 of the Rules of Court, which reads:
SEC. 6. Means to carry jurisdiction into effect. — When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted which appears comfortable to the spirit of the
said law or rules.
In this connection, the jurisdiction to exercise judicial power and exert all means necessary to
carry such jurisdiction into effect is conferred upon the lower courts by law, specifically, under
Batas Pambansa Bilang 129.
Similarly, the Legislature's power to promulgate rules governing the conduct of a congressional
inquiry stems from Section 21, Article VI of the Constitution, thus:
SEC. 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation m accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such inquiries shall be respected.
In turn, the Congress' power to resort to coercive measures in the course of legislative inquiry
have been detailed in their respective internal rules promulgated pursuant to Section 21.66
Plainly, there is no basis to conclude that these inherent powers constitute exceptions to the
parameters set forth by Section 6, Article III, for the reason that the Constitution itself provides
the basis for their exercise.
Nevertheless, respondents argue, by analogy, that the authority to restrict the right to travel is
inherent in the President's exercise of residual powers to protect general welfare.67 In support of
this proposition, respondents rely on Marcos v. Manglapus68 (Marcos), the relevant portion of
which reads:
x x x The power involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of the nation demand. x x x
x x x The President is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency specified in the commander-in-chief
provision. x x x69 (Citations omitted)
I cannot subscribe to this position.
To echo the Court's words in Genuino, the imposition of a restriction on the right to travel may
not be justified by resorting to an analogy.70
A closer look at the very limited cases in which the President's unstated "residual powers" and
"broad discretion" have been recognized71 reveals that the exercise of these residual powers can
only be justified in the existence of circumstances posing a threat to the general welfare of the
people so imminent that it requires immediate action on the part of the government.
In Marcos, these circumstances were "the catalytic effect of the return of the Marcoses that may
pose a serious threat to the national interest and welfare",72 the fact that the country was only
then "beginning to recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of whom are still here in
the Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, in its efforts to recover the enormous wealth stashed away by the Marcoses
in foreign jurisdictions".73 The distinctiveness of these circumstances impelled the Court to thus
treat its pronouncement therein as sui generis:
This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to return, is in a class by
itself.74 (Emphasis supplied)
I submit, therefore, that respondents' reliance on the Court's ruling in Marcos as basis to
determine the scope of the President's "residual powers" is erroneous.
In any case, the "residual powers" as referred to in Section 20, Chapter 7, Title I, Book III of the
Administrative Code, refers to the President's power to "exercise such other powers and
functions vested [in the President] which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President in accordance with
law."
While residual powers are, by their nature, "unstated," these powers are vested in the President in
furtherance of the latter's duties under the Constitution. To exempt residual powers from the
restrictions set forth by the very same document from which they emanate is absurd. While
residual powers are "unstated", they are not extra-constitutional.
Indeed, while the President possesses the residual powers in times of calamity, these powers are
limited by, and must therefore be wielded within, the bounds set forth by the Constitution and
applicable laws enabling such powers' exercise. As aptly observed by the Supreme Court
in Rodriguez, Sr. v. Gella:75
Shelter may not be sought in the proposition that the President should be allowed to
exercise emergency powers for the sake of speed and expediency in the interest and for the
welfare of the people, because we have the Constitution, designed to establish a government
under a regime of justice, liberty and democracy. x x x Much as it is imperative in some cases
to have prompt official action, deadlocks in and slowness of democratic processes must be
preferred to concentration of powers in any one man or group of men for obvious reasons. The
framers of the Constitution, however, had the vision of and were careful in allowing delegation
of legislative powers to the President for a limited period "in times of war or other national
emergency." They had thus entrusted to the good judgment of the Congress the duty of coping
with any national emergency by a more efficient procedure; but it alone must decide because
emergency in itself cannot and should not create power. In our democracy the hope and survival
of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful
adherence to the Constitution."76 (Emphasis supplied)
Inasmuch as the President has the power to ensure the faithful execution of laws,77 and to protect
the general welfare of the people, such power can, by no means, be wielded at every turn, or be
unduly expanded to create "inherent restrictions" upon fundamental rights protected by the
Constitution.
There are Constitutionally permissible measures to address the problem
In the resolution of this Petition, the ponencia and the related concurring opinions appear to harp
on the necessity of the governmental action involved, i.e., closure of the entire island to solve the
problem at hand. The ponencia, for instance, states:
Certainly, the closure of Boracay, albeit temporarily, gave the island its much needed
breather, and likewise afforded the government the necessary leeway in its rehabilitation
program. Note that apart from review, evaluation and amendment of relevant policies, the bulk
of the rehabilitation activities involved inspection, testing, demolition, relocation, and
construction. These works could not have easily been done with tourists present. The
rehabilitation works in the first place were not simple, superficial or mere cosmetic but rather
quite complicated, major, and permanent in character as they were intended to serve as long-term
solutions to the problem. Also, time is of the essence. Every precious moment lost is to the
detriment of Boracay's environment and of the health and well-being of the people
thereat. Hence, any unnecessary distraction or disruption is most unwelcome. Moreover, as part
of the rehabilitation efforts, operations of establishments in Boracay had to be halted in the
course thereof since majority, if not all of them, need to comply with environmental and
regulatory requirements in order to align themselves with the government's goal to restore
Boracay into normalcy and develop its sustainability. Allowing tourists into the island while it
was undergoing necessary rehabilitation would therefore be pointless as no establishment would
cater to their accommodation and other needs. Besides, it could not be said that Boracay, at
the time of the issuance of the questioned proclamation, was in such a physical state that
would meet its purpose of being a tourist destination. For one, its beach waters could not be
said to be totally safe for swimming. In any case, the closure, to emphasize, was only for a
definite period of six months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the
Court, this period constitutes a reasonable time frame, if not to complete, but to at least put in
place the necessary rehabilitation works to be done in the island. Indeed, the temporary closure
of Boracay, although unprecedented and radical as it may seem, was reasonably necessary and
not unduly oppressive under the circumstances. It was the most practical and realistic means
of ensuring that rehabilitation works in the island are started and carried out in the most
efficacious and expeditious way. x x x78 (Emphases and underscoring supplied)
As I earlier intimated in this opinion, I concede and recognize that Boracay was facing a critical
problem that necessitated its closure. I do acknowledge that there was
both necessity and urgency to act on the island's problem. Nonetheless, at the risk of being
repetitive, I reiterate that the closure was invalid without an enabling law enacted for the purpose
— a requirement that is neither impossible nor unreasonable to comply with.
To illustrate, under the Constitution, the President may certify a bill as urgent "to meet a public
calamity or emergency."79 Thus:
No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter,
and the yeas and nays entered in the Journal. (emphasis supplied)
In Tolentino vs. Secretary of Finance,80 the Court ruled that the President's certification dispenses
with the requirement of (i) three readings on separate days and (ii) of printing and
distribution three days before its passage. This constitutional mechanism allows the President to
communicate to Congress what the government's priority measures are, and allows these same
bills to "skip" what otherwise would be a rather burdensome and time-consuming procedure in
the legislative process. Stated differently, this certification provides a constitutionally sanctioned
procedure for the passing of urgent matters that needed to be in the form of a law.
Indeed, this is not uncharted territory. The Court can take judicial notice81 of the fact that, for
instance, the bill that would later on become the Bangsamoro Organic Law was certified as
urgent on May 29, 2018.82 In less than two months, or by July 26, 2018, the bill was already
signed into law.83 Another example is the passage of the Responsible Parenthood and
Reproductive Health Act. After its second reading in the House of Representatives on December
12, 2012, the Reproductive Health (RH) Bill was certified as urgent by the then President on
December 13, 2012.84 The House of Representatives and Senate approved the measure on third
reading on December 17, 2012 and ratified its final version on December 19, 2012.85 By
December 21, 2012, or merely eight days from the certification of the bill as urgent, the RH
Bill was signed into law.86
There is thus clear precedent on the effectiveness of this mechanism. Regrettably, it was not
resorted to in addressing Boracay's problems. Instead, an unconstitutional shortcut was taken by
merely issuing a proclamation to close the island.
This unconstitutional shortcut is, to repeat, the raison d'etre for this dissent. The situation in
Boracay is undoubtedly dire; yet, there are constitutionally permissible measures that the
government could, and should, have taken to address the problem.
The protection afforded by the right to due process, as asserted in connection with one's right
to work, applies with equal force to all persons, regardless of their profession
Finally, the ponencia declares that petitioners Zabal and Jacosalem, being part of the informal
economy sector where earnings are not guaranteed, cannot be said to have already acquired
vested rights to their sources of income in Boracay. Since their earnings are contingent,
the ponencia proceeds to conclude that petitioners have no vested rights to their sources of
income as to be entitled to due process.87
I disagree.
Section 1, Article III on the Bill of Rights of the Constitution provides that "[n]o person shall be
deprived of life, liberty, or property without due process of law x x x." Property protected under
this constitutional provision includes the right to work and the right to earn a living.
In JMM Promotion and Management, Inc. v. Court of Appeals,88 which was cited by
the ponencia, the Court held that "[a] profession, trade or calling is a property right within the
meaning of our constitutional guarantees. One cannot be deprived of the right to work and the
right to make a living because these rights are property rights, the arbitrary and unwarranted
deprivation of which normally constitutes an actionable wrong."89
Notwithstanding this constitutional protection, the right to property is not absolute as it may be
curtailed through a valid exercise of the State's police power.90 However, such deprivation must
be done with due process.
The ponencia concedes that one's profession or trade is considered a property right covered by
the due process clause.91 However, the ponencia is of the position that petitioner Zabal and
Jacosalem's right thereto is merely inchoate, reasoning as follows:
In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have already
acquired vested rights to their sources of income in Boracay. As heretofore mentioned, they are
part of the informal sector of the economy where earnings are not guaranteed. x x x
x x x Clearly, said petitioners' earnings are contingent in that, even assuming tourists are still
allowed in the island, they will still earn nothing if no one avails of their services. Certainly, they
do not possess any vested right on their sources of income, and under this context, their claim of
lack of due process collapses. To stress, only rights which have completely and definitely
accrued and settled are entitled protection under the due process clause.92
There is no question that petitioners have no vested right to their future income. However, what
is involved here is not necessarily the right to their future income; rather, it is
petitioners' existing and present right to work and to earn a living. To belabor the point,
such right is not inchoate — on the contrary, it is constitutionally recognized and protected. The
fact that petitioner Zabal and Jacosalem's professions yield variable income (as opposed to fixed
income) does not, in any way, dilute the protection afforded them by the Constitution.
On this score, I take exception to the position that petitioners Zabal and Jacosalem lack legal
standing to file the present Petition.93
Locus standi or legal standing is the right of appearance in a court of justice on a given
question.94 In order to possess the necessary legal standing, a party must show a personal and
substantial interest in the case such that s/he has sustained or will sustain direct injury as a result
of the challenged governmental act.95 This requirement of direct injury "guarantees that the party
who brings suit has such personal stake in the outcome of the controversy and, in effect, assures
'that concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions."'96
In their petition, petitioners stated that:
106. Petitioners Zabal and Jacosalem's daily earnings from their tourism-related activities are
absolutely necessary to put food on the table, send their children to school, and cover the daily
expenses of their families.
107. Without such sources of income – even if only for a period of six (6) months – said
petitioners' families will go hungry and, worse, be uprooted or forced to relocate to other places.
Such a development would disrupt their children's schooling and work untold hardships upon
their families.
108. Petitioners have every right to continue to earn a living in the manner they so choose which,
and depriving them of their livelihood violates such right and creates untold hardships for them
and their families.97
Applying jurisprudential standards, the inescapable conclusion is that petitioners Zabal and
Jacosalem unquestionably have legal standing. Undoubtedly, they have a personal and
substantial interest in this case and they have shown that they would sustain direct injury as a
result of the Boracay closure.
In denying petitioners any legal standing, the ponencia cites Galicto v. Aquino III,98 (Galicto) a
case involving the constitutionality of Executive Order No. (E.O.) 7 issued by President Benigno
Aquino III which ordered, among others, a moratorium on the increases in the salaries and other
forms of compensation of all government owned and controlled corporations (GOCCs).
The ponencia summarized the ruling therein as follows:
x x x The Court held that Galicto, an employee of the GOCC Philhealth, has no legal standing to
assail [E.O.] 7 for his failure to demonstrate that he has a personal stake or material interest in
the outcome of the case. His interest, if any, was speculative and based on a mere expectancy.
Future increases in his salaries and other benefits were contingent events or expectancies to
which he has no vested rights. Hence, he possessed no locus standi to question the curtailment
thereof.99
Applying the foregoing principles, the ponencia finds that petitioners Zabal and Jacosalem do
not have standing to file the instant petition, reasoning that:
x x x, Zabal is a sandcastle maker and Jacosalem, a [tricycle] driver. The nature of their
livelihood is one wherein earnings are not guaranteed. As correctly pointed out by respondents,
their earnings are not fixed and may vary depending on the business climate in that while they
can earn much on peak seasons, it is also possible for them not to earn anything on lean seasons,
especially when the rainy days set in. Zabal and Jacosalem could not have been oblivious to this
kind of situation, they having been in the practice of their trade for a considerable length of time.
Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere projected earnings
which are in no way guaranteed, and are sheer expectancies characterized as contingent,
subordinate, or consequential interest, just like in Galicto. Concomitantly, an assertion of direct
injury on the basis of loss of income does not clothe Zabal and Jacosalem with legal standing.100
Contrary to the foregoing supposition, Galicto is inapplicable in this case.
In Galicto, the Court correctly ruled that Galicto's interest was merely speculative and based on a
mere expectancy because he has no vested rights to salary increases and, therefore, the absence
of such right deprives him of legal standing to assail E.O. 7. The same ruling cannot be applied
in the instant case. The impairment of petitioners' rights as a consequence of the closure of
Boracay gives rise to interests that are real, and not merely speculative. There is no doubt
that they will be directly affected by the closure because they derive their income on tourism-
related activities in Boracay. While Galicto was concerned about future increases, what is
involved in the present case is petitioners' constitutionally protected right to work and earn a
living.101 To stress, the fact that petitioners Zabal and Jacosalem's professions yield variable
income does not, in any way, dilute the protection they are entitled to under the Constitution.
Conclusion
I end this discourse fully cognizant of the unfortunate realities that the island of Boracay has
faced. I do not attempt to ignore the degradation it has suffered in the hands of those who have
refused to comply with statutes, rules and regulations crafted for its protection.
When the exigencies of times call for limitations on fundamental rights, it is incumbent
upon Congress to respond to the need by explicitly authorizing such limitations through
law.102 While the President has the power, nay, duty, to address such exigencies, the necessity of
impairing constitutional rights in connection therewith is not for him to determine, more so,
unilaterally impose, most particularly in cases where, as here, there is an absence of any
indication that Congress would be unable to respond to the call.
The requirements under Section 6, Article III of the Constitution are as clear as they are absolute.
The parameters for their application have been drawn in deft strokes by the Court
in Genuino promulgated just nine (9) months ago. Respondents' shotgun attempt to carve out an
exception to these requirements in order to justify the issuance of Proclamation 475 actually
betrays their complete awareness of the Proclamation's nullity. In Genuino, the Court warned
against the sacrifice of individual liberties for a perceived good as this is disastrous to a
democracy. Therein, the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it
is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere
expediency will not excuse constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject only to a few notable
exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a
person invoking a right guaranteed under Article III of the Constitution is a majority of one even
as against the rest of the nation who would deny him that right.103
The Court did not hesitate to protect the Constitution against the threat of executive overreach
in Genuino. The refusal to do so now is nothing less than bewildering.
The judicial validation of Proclamation 475 lends itself to abuse. It grants the President the
power to encroach upon fundamental constitutional rights at whim, upon the guise of "faithful
execution," and under a sweeping claim of "necessity." The ponencia lauds the "bold and urgent
action" taken by the present government, but in the process, lost sight that it did so at the expense
of fundamental rights. Undue premium has been placed on the underlying necessity for which
the remedial action was taken, and the speed in which it was implemented. As a consequence,
the inviolability of constitutionally protected rights has been forgotten.
I invite everyone, both within and outside the confines of this judicial institution, to learn from
history. The Berlin Wall — the border system that divided a country physically and ideologically
for nearly three decades — was said to have been built overnight. For a modern democracy, such
as ours, that is struggling to strike a balance between maintaining the integrity of its institutions
and dealing with its inefficiencies, the swiftness with which the Berlin Wall was built may be
astonishing, if not enviable.
Yet, it is well to be reminded that the Berlin Wall was constructed at the initiative of a leader
perceived by many as a dictator. If this country is to remain a democracy — as opposed to a
dictatorship — the challenge for all of us is to accept that progressive and sustainable changes
require much time.
To my mind, this ponencia, which prioritizes swiftness of action over the rule of law, leads to
the realization of the very evil against which the Constitution had been crafted to guard against
— tyranny, in its most dangerous form. To say that we believe in our Constitution, and yet
discard it so easily because of expediency, is to champion hypocrisy to the detriment of our
national soul.
In view of the foregoing, I vote to GRANT the Petition.
Endnotes:
1
Milton, J., Paradise Lost (1667).
2
AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST
DESTINATION.
3
Ponencia, pp. 18, 24 and 28.
4
See id. at 21-22.
5
Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 867- 870 (2003 ed.)
6
G.R. No. 225442, August 8, 2017, 835 SCRA 350.
7
Id. at 402-403.
8
As a general rule, the provisions of the Constitution are considered self-executing, and do not
require future legislation for their enforcement. For if they are not treated as self-executing, the
mandate of the fundamental law can be easily nullified by the inaction of Congress. See
generally Tondo Medical Center Employees Association v. Court of Appeals, 554 Phil. 609, 625
(2007).
9
G.R. Nos. 197930, 199034 and 199046, April 17, 2018.
10
Id. at 17-18.
11
See Justice Leonen's Separate Opinion in Genuino, supra note 9.
12
Ponencia, p. 20.
13
394 U.S. 618 (1969). Penned for the majority by Associate Justice William J. Brennan, Jr.,
with Chief Justice Earl Warren, and Associate Justices Hugo Black and John Marshall Harlan
dissenting. Chief Justice Warren and Associate Justice Black were of the position that Congress
has the power to impose and authorize nationwide residence requirements under the "commerce
clause". (Id. at 651.) Justice Harlan, on the other hand, was of the view that "a number of
considerations militate in favor of [the] constitutionality [of the assailed provisions]",
particularly, that (i) "legitimate governmental interests are furthered by [the] residence
requirements"; (ii) "the impact of the requirements upon the freedom of individuals to travel to
interstate is indirect" and "according to [the] evidence, x x x insubstantial"; (iii) the assailed
provisions are not attempts to interfere with the right of citizens to travel, but a case where the
states act within the terms of a limited authorization by the National Government; and (iv) the
legislatures which have enacted the assailed provisions have rejected appellees' objections after
"mature deliberation". (Id. at 674.)
14
Id. at 627.
15
Id.
16
Id. at 629-631.
17
476 U.S. 898 (1986). Penned for the majority by Associate Justice William J. Brennan, Jr.,
with Associate Justices Sandra Day O' Connor, William Rehnquist and John Paul Stevens
dissenting. Justice O' Connor, with whom Justices Rehnquist and Stevens concur, opined that the
New York veterans' preference scheme assailed in the case does not penalize the right to migrate,
and is thus, permissible.
18
Id. at 903.
19
Id. at 900.
20
93 Ohio St. 3d 419. Penned by Chief Justice Thomas J. Moyer for the unanimous Court.
21
Id.
22
Social Justice Society (SJS) v. Dangerous Drugs Board, 591 Phil 393, 409 (2008).
23
Spark, supra note 6, at 405-408.
24
Id. at 402-403. Emphasis and underscoring supplied.
25
Genuino, supra note 9, at 27.
26
Ponencia, p. 22.
27
RA 10121, Sec. 17.
28
Id., Sec. 12(a).
29
Id., Sec. 12(c)(9).
30
Id., Sec. 12(c)(11).
31
Id., Sec. 12(c)(16).
32
See id., Sec. 11(a).
33
San Juan v. Civil Service Commission, 273 Phil. 271, 280 (1991).
34
602 Phil. 342 (2009).
35
Id. at 364-369.
36
Gancayco v. City Government of Quezon City, 674 Phil. 637, 651 (2011), citing MMDA v. Bel-
Air Village Association, 385 Phil. 586, 601 (2000).
37
Ponencia, p. 21 , citing Gorospe, Rene, B., Constitutional Law, Notes and Readings on the Bill
of Rights, Citizenship and Suffrage, Volume 1 (2006), p. 9, further citing Edu v. Ericta, 146 Phil.
469 1970).
38
MMDA v. Bel-Air Village Association, supra note 36, at 601.
39
David v. Macapagal-Arroyo, 522 Phil. 705, 780 (2006).
40
1987 CONSTITUTION, Art. VII, Sec. 18.
41
Id., Art. VI, Sec. 23(2).
42
Id., Art. XII, Sec. 17.
43
Id., Art. XII, Sec. 18.
44
RA 7160, Sec. 25.
45
Id., Sec. 17(f).
46
Id., Sec. 105.
47
Id., Sec. 321.
48
Otherwise referred to as the PHILIPPINE CLEAN WATER ACT.
49
Ponencia, p. 22.
50
RA 9275, Sec. 6.
51
Id., Sec. 4(kk).
52
354 Phil. 948 (1998).
53
Id. at 966-970.
54
Ople, id. at 969.
55
J. Tinga, Dissenting Opinion, supra note 39, at 818-854.
56
Id. at 820-821.
57
Almario v. Executive Secretary, 714 Phil. 127, 164 (2013).
58
Id. at 164.
59
Ponencia, p. 8.
60
273 Phil. 128 (1991).
61
678 Phil. 328 (2011).
62
Silverio, supra note 60, at 130.
63
Id. at 131, 132.
64
Id. at 132-135.
65
Leave Division, supra note 61, at 340-340.
66
Sections 17 and 18 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
state, in part:
Sec. 17. Powers of the Committee. — The Committee shall have the powers of an investigating
committee, including the power to summon witnesses and take their testimony and to issue
subpoena and subpoena duces tecum, signed by its Chairman, or in his absence by the Acting
Chairman, and approved by the President. Within Metro Manila, such process shall be served by
the Sergeant-at-Arms or his assistant. Outside of Metro Manila, service may be made by the
police of a municipality or city, upon request of the Secretary. x x x
Sec. 18. Contempt. — (a) The Chairman with the concurrence of at least one (1) member of the
Committee, may punish or cite in contempt any witness before the Committee who disobeys any
order of the Committee or refuses to be sworn or to testify or to answer a proper question by the
Committee or any of its members, or testifying, testifies falsely or evasively, or who unduly
refuses to appear or bring before the Committee certain documents and/or object evidence
required by the Committee notwithstanding the issuance of the appropriate subpoena therefor. A
majority of all the members of the Committee may, however, reverse or modify the aforesaid
order of contempt within seven (7) days.
A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be
ordered by the Committee to be detained in such place as it may designate under the custody of
the Sergeant-at-Arms until he/she agrees to produce the required documents, or to be sworn or to
testify, or otherwise purge himself/herself of that contempt.
On the other hand, Section 7 of the House of Representatives Rules of Procedure Governing
Inquiries in Aid of Legislation states, in part:
Section 7. Compulsory Attendance of Witnesses. — The committee shall have the power to issue
subpoena and subpoena duces tecum to witnesses in any part of the country, signed by the
chairperson or acting chairperson and the Speaker or acting Speaker x x x.
67
Ponencia, p. 8.
68
258 Phil. 479 (1989); see Ponencia, p. 8.
69
Marcos, id. at 504-505.
70
Supra note 9, at 45-46.
71
Marcos, supra note 68; Sanidad v. COMELEC, 165 Phil. 303, 336 (1976).
72
Id. at 508.
73
Id. at 509.
74
Id. at 492.
75
92 Phil. 603 (1953).
76
Id. at 611-612.
77
1987 CONSTITUTION, Art. VII, Sec. 17.
78
79
1987 CONSTITUTION, Art. VI, Sec. 26(2).
80
305 Phil. 686 (1994).
81
RULES OF COURT, Rule 129, Sec. 1 provides:
SECTION 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial departments of the Philippines, the laws
of nature, the measure of time, and the geographical divisions. (Emphasis and underscoring
supplied)
82
Dharel Placide, "Duterte certifies BBL as urgent," ABS-CBN News, < https://news.abs
cbn.com/news/05/29/18/duterte-certifies-bbl-as-urgent > (last accessed January 22, 2019).
83
"Duterte signs Bangsamoro Law," ABS-CBN News, < https://news.abs-
cbn.com/news/07/26/18/duterte-signs-bangsamoro-law > (last accessed January 22, 2019).
84
Willard Cheng, "PNoy certifies RH bill as urgent" ABS-CBN News, < https://news.abs-
cbn.com/nation/12/14/12/pnoy-certifies-rh-bill-urgent > (last accessed January 22, 2019).
85
Angela Casauay, "President Aquino signs RH bill into law," <
https://www.rappler.com/nation/18728-aquino-signs-rh-bill-into-law > (last accessed January 22,
2019).
86
Karen Boncocan, "RH Bill finally signed into law," Inquirer, <
https://newsinfo.inquirer.net/331395/gonzales-aquino-signed-rh-bill-into-law > (last accessed
January 22, 2019).
87
88
329 Phil. 87 (1996).
89
Id. at 99-100.
90
Id. at 100.
91
Ponencia, p. 24.
92
Id. at 25-26.
93
Id. at 14.
94
Advocates For Truth in Lending, Inc. v. Bangko Sentral Monetary Board, 701 Phil. 483, 493
(2013).
95
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 893 (2003).
96
The Provincial Bus Operators Association of the Philippines v. DOLE and LTFRB, G.R. No.
202275, July 17, 2018, p. 17.
97
Petition, p. 25.
98
683 Phil. 141 (2012).
99
Ponencia, p. 13.
100
Id. at 13-14.
101
1987 CONSTITUTION, ART. II, SEC. 18 and ART. XIII, SEC. 3. provide:
Section 18. The State affirms labor as a primary social economic force. It shall protect the rights
of workers and promote their welfare.
xxxx
Section 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
102
See Genuino, supra note 9, at 20.
103
Genuino, id. at 27, citing Association of Small Landowners in the Philippines, Inc. v. Secretary
of Agrarian Reform, 256 Phil. 777, 809 (1989).

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Republic of the Philippines

PRESBITERO J. VELASCO, JR. (On official leave)

(On leave) (On official business)

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

MARIA LOURDES P.A. SERENO BIENVENIDO L. REYES

ARTURO D. BRION* DIOSDADO M. PERALTA

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDDOZA BIENVENIDO L. REYES

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

Republic of the Philippines

I join the Dissent of J. Leonen.

Please see my separate Opinion

See separate opinion In corporating I also join the separate opinion of J, De

JOSE PORTUGAL PEREZ BIENVENIDO L. REYES

I dissent. See separate opinion

G.R. Nos. 201418-19, October 3, 2018

AVON PRODUCTS MANUFACTURING, INC., Petitioner, v. THE COMMISSIONER OF

Return Date Filed

3rd Quarter VAT Return October 25, 1999

4th Quarter VAT Return January 25, 2000

January February 25, 1999 February 25, 1999

February March 25, 1999 March 25, 1999

March April 26, 1999 April 26, 1999

April May 25, 1999 May 25, 1999

May June 25, 1999 June 25, 1999

June July 26, 1999 July 26, 1999

July August 25, 1999 August 25, 1999

August September 27, 1999 September 27, 1999

September October 25, 1999 October 25, 1999

November December 27, 1999 December 27, 1999

December January 25, 2000 January 25, 20008

KIND OF COMPROMIS TOTAL

Income Tax 1999 22,012,984.19 13,207,790.51 25,000.00 35,245,774.70

Excise Tax 1999 913,514.87 658,675.57 73,200.00 1,645,390.44

VAT 1999 20,286,033.82 13,254,677.47 50,000.00 33,590,711.29

TOTAL P49,102,260.14 P30,925,999.01 P218,200.00 P80,246,459.1513

(3) There must be evidence supporting the tribunal's decision.

(a) Exclusive original or

(2) Inaction by the Commissioner of Internal Revenue in cases

In Metro Construction, Inc. v. Chatham Properties, Inc.,177 this Court held:

December 17, 2018

Very truly yours,

WHEREFORE, this Office, through the undersigned, DENIES respondents Marc Douglas C.

SO ORDERED.15 (Emphasis in the original)

(3) DENIES the Motion For Reinvestigation and To Defer the Issuance of Warrants of

Hence, this Petition for Certiorari.

The petition is meritorious.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

2) Special Prosecuting Officers;

4) Investigating Officials authorized by law to conduct preliminary investigations or

5) Lawyers in the government service, so designated by the Ombudsman.

Bersamin, Martires, and Gesmundo, JJ., concur.

Very truly yours,

Division Clerk of Court

Republic of the Philippines

MARIA LOURDES P.A. SERENO ANTONIO T. CARPIO

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING and/or

President Duterte is dropped as respondent in this case